Summary
• The British are responsible for accentuating the Hindu Muslim divide starting the 1860’s. Part of their strategy of divide and rule. They cemented it by introducing separate electorates for Muslims in 1909. They divided the nation further by introducing in 1935 separate electorates for Sikhs and Christians also. Through the same Act for the first time the word Scheduled Caste was introduced.
• Three key words Religion, Secularism and Minority form the basis of concessions under articles 25 to 30. One the Constitution has not defined none of terms leading to confusing and generous interpretation by various Courts. Two these terms are alien to India.
• By virtue of not being defined in the Constitution Secularism has become the most abused words in India. The Courts have not defined it exhaustively either. The words used by Dr Radhakrishnan above are ‘no one religion should be given preferential status’. Yet it is only Indian Muslims that are given a subsidy for undertaking the Haj. If we are indeed a secular country why State Governments must be managing Hindu temples. Money donated by Hindus to their temples goes to the State Treasury and indirectly used to fund madrassas but the government dare not touch monies collected by madrassas. That is what secularism has come to mean in India. Germany is a secular country inspite of its majority community the Christians paying a tax to the Church. The Queen is the head of the Church of England and Head of State, yet we dare not call England a communal country?
• The word Religion has been used to divide us into Hindus, Muslims and Christians. Sri Aurobindo rightly said religion is a Western concept and alien to India. The Indian equivalent is Dharma. Further on the same premises followers of Indian religions are being divided into Hindus, Sikhs, Buddhists and Jains. What unites them is the Indian concept of Dharma that has not found a place in the country’s Constitution.
• Who is a Minority? Is he to be defined in the context of a country, state, and city? The internationally accepted definition says ‘people who are displaced owing to war or like circumstances causing territorial changes without the consent of people residing in those territories, the identity of such communities who have been torn as under by circumstances beyond their control should be preserved from ethnic extinction, by affording safeguards through international Charters and national Constitutions’. But in India anyone who is not a Hindu has come to become a Minority.
• Linguistic Minorities – special Constitutional safeguards have been provided. As a nation we seem to have forgotten that Sanskrit is the mother of all Indian languages. Harping on linguistics differences resulted in the creation of linguistic states. Today everyone says he is a Gujarathi, Tamilian, and Bengali. Where is the nation dear? How many say we are Indians? A visit to the U.S. would make you realize how linguistics has divided the Indian population into Maharashtrian, Andhra mandals and so on. What is the solution? Sri Aurobindo said that a simplified Sanskrit needs to be the national language of India. Since Sanskrit influences every Indian language it would be acceptable to Indians across the country. No anti-Hindi agitations.
• Arising out of the need to conserve the language, script and culture as provided in art 29 (1) a school started by Gujaratis in Maharashtra is a minority school and so on. Someone rightly pointed out that Indians are first Gujaratis, Punjabis, and Tamilians and so on. This is one of the reasons.
• Minorities have the right to establish and administer educational institutions? What these imply? Right to choose its managing and governing body. Right to choose its teachers and the right to impose service conditions regarding the teachers. Right relating to the admission of students. Right to choose its own medium of instruction and atleast a part of the syllabus. Right to use its properties and assets for the benefits of its own institution. Friends ask yourself a simple question. Why must Hindus be made to suffer government interference? Have not such provisions resulted in the country being divided on religious lines. Do the U.K. or U.S.A. treat their majority community the way we do?
• Benefit Debate - while deciding whether an institution is a minority one must not we see as who is the beneficiary of such education? If art 30 (1) is read in conjunction with art 29 (1) it would be safe to assume that framers of the Constitution wanted minorities to conserve their culture, language by the establishment of educational institutions. This may be true in the case of Madrassas where Islamic religious education is imparted but does surely not apply to Christian schools. Here the majority of students are Hindus. In such a case how are these schools conserving Christian culture, language and script as provided for in art 29 (1)? Quote Advocate Mihir Desai ‘I believe that for achieving minority status the institution should be established for the benefit of the minority is the correct view’. The Supreme Court has given confusing verdicts on the issue. Through the Supreme Court judgment in the St Stephan’s College case it is now assumed that atleast 50 % of the students in a minority institution must be from the non-minority communities. Again this ruling is relevant for Christian institutions because no Christian or Hindu would go to a Madrassa where Islam is taught.
• So any school started by a Minority would be deemed to be a minority institution even if it were to provide secular education.
• Next come the words to Establish and Administer. While granting affiliation and recognition to minority educational institutions the State cannot impose such conditions as would erode the core of minority rights as provided in art 30 (1). It has come to mean that the State exercises more control over a part of its population as compared to others encouraging separatists tendencies in the process.
• Minority rights to establish and administer educational institutions is not Absolute. Regulation must be with the intent of making it a better educational institution and not take away minority rights as provided for in art 30 (1).
• Minority educational institutions do not have to reserve seats for scheduled castes and tribes, backward classes.
• The State cannot exercise any control on the composition or working of the Managing Committee of a minority educational institution.
• In case of mismanagement a Minority educational institution cannot be taken over by the State govt.
• In a nutshell what are the provisions that only Hindu schools have to grapple with? The major issues are - They are subject to greater control and supervision by the state govts. Their right to recognition and affiliation can be regulated on grounds of public interest or national interest, which is not the case in minority institutions. In case of mismanagement an administrator can be appointed or the management can itself be transferred to another body, which is not the case in minority institutions. The State can insist on having its own nominees on the managing body or in the management of the institution, which is not the case in minority institutions.
• Above para follow - The State can mandatorily prescribe the procedure for appointment of Head Masters/Principals, which is not the case in minority institutions. The schools would have to follow the Reservation Policy for Scheduled Caste/ Tribes w.r.t. students and teaching/non-teaching staff which is not the case in minority institutions. The State/University can control selection Committee for teachers, which is not the case in minority institutions. On the basis of a cogent policy the State can refuse to give permission to start or recognize a new educational institution, which is not the case in minority institutions. Do the schools have the right to use their properties and assets for the benefit of its own institution?
• Hindus do not have a fundamental right to establish and administer an educational institution, which may be secular in nature!
Friends would like to end this summary with a few thoughts.
• Nations are formed through amalgamation of identities for a larger national cause not by continuously telling its people how one is different from the other.
• One of the reasons that India is facing the problems that we are today is because after independence the Indians did not Indianize their governance but followed the Western model. A symbolic example is forcing Lawyers to wear black coats to Court. In Britain weather conditions permit such a dress but in hot, humid India it makes you sweat profusely.
• The politicians of this country have failed to show the requisite political will to introduce a Uniform Civil Code in the country.
• Surely the framers of the Constitution did not intend such constitutional provisions to lead to another Partition. Although, for now, our nation is one the mind is divided!