Higher education: minority rights & social justice

M.A. Baby
The Hindu, 30 April

The irony of a constitutional provision meant to safeguard the interests of a vulnerable group itself becoming an instrument for the oppression of a more vulnerable group needs corrective intervention.

THE REACTIONS of Oommen Chandy, Kerala's Leader of the Opposition, and of Justice K.T. Thomas, former Judge of the Supreme Court, on the question of the grant of minority status to educational institutions run by the Pushpagiri Medical Mission (The Hindu, Kerala edition, April, 20) presented a study in contrast. While both expressed concern over the erosion of social justice that the decision of the National Commission for Minority Educational Institutions (NCMEI) could result in, there was little else in common between their views. While Mr. Chandy's attempt is to score a few brownie points by criticising the State Government and to reassure the private lobby in education regarding his continued support while giving them a sufficiently tame lecture on social commitment, Mr. Justice Thomas hit the nail on the head by raising the question of the marginalisation of the weaker sections as a result of the NCMEI decision.

The irony of a constitutional provision meant to safeguard the interests of a vulnerable group (in this case, the minorities) itself becoming an instrument for the oppression of a more vulnerable group (the Scheduled Castes and the Scheduled Tribes) needs corrective intervention to ensure the sanctity of the Constitution itself. A constitutional arrangement that negates social justice cannot be true to the spirit of the Constitution, the chief architect of which was Dr. Ambedkar, a great champion of social justice. Obviously, the problem is not with the constitutional provision that grants special protection to the minorities in establishing and administering educational institutions of their choice, but in the implementation of the scheme without reference to its spirit or context.

While the contextual relevance of the provision is ingrained in the principle of federalism, which is one of the basic features of the Constitution, the spirit of the constitutional provision for minorities has been enunciated in several judgments of the Supreme Court. The TMA Pai judgment, which categorically ruled that minorities have to be identified State-wise, emphasised the federal character of minorities. Subsequent judgments of the Supreme Court in both the Islamic Academy and Inamdar cases endorsed the ruling. While the specific rights of the minorities will be the same throughout the country, the categories identified as minorities, whether religious or linguistic, will vary from State to State. The Supreme Court has further clarified in Bal Patil that since the unit for identification of minorities is the State, the appropriate authority to undertake the exercise of identification would be the State Government concerned.

There are several obvious questions here. What are the norms for the identification of minorities? Is numerical criterion enough? Do a minority of one and a minority of 49 out of 100 get the same privileges? Does the minority have any right the majority does not have? The arithmetical criterion for the conferment of minority rights, which the NCMEI appears to have followed, clearly can be challenged on constitutional grounds. It does not apparently take into account the spirit of the provision for the special privileges for minorities. The Supreme Court clarified in TMA Pai and subsequent judgments that minority rights are a part of the right to equality. The principle of proportional equality, amplified by the Supreme Court in the Nagraj case, comes into play even in the identification of minorities.

While there is no one-line definition of minorities, there is substantial consensus in international fora on what constitutes a minority. Nowhere in the world is a minority identified merely with reference to numerical strength, though it is an important consideration. The more important question is the implication of numerical strength on the comparative empowerment/deprivation of the group in question. Minority, therefore, is not merely a measure of numerical deprivation; it is a measure of numerical deprivation coupled with deprivation in the social, political, religious, economic, educational spheres. The moot question here is whether the NCMEI, while conferring the status of minority educational institution, took its decision on an assessment of the index of educational deprivation of the community.

The NCMEI does not even recognise the need for an assessment of deprivation for the award of minority status. Strangely, the communities in question often cite the fact of their empowerment as justification for the award of minority status. They seem to argue that diligence and hard work should bring in rewards. True enough. But the reward need not be in the form of minority rights. Otherwise, the result would be as ironic as it is in the present case. Here, the community that runs the majority of educational institutions in the State gets the award of minority status. The special rights that go with minority rights will now be used not to achieve proportionate equality with the majority but to assume rights and privileges that are disproportionate to the numerical strength of the community in question.

A constitutional provision to ensure equality will in effect become an instrument to perpetuate inequality through the exercise of special rights and privileges. What is more, it could lead to the suppression of the educational rights of the majority belonging to all communities — minorities included. This is especially so in higher education, which has been classified as a category distinct from general education. The Supreme Court in Inamdar ruled that different considerations apply for general and higher education. Higher education is treated as a national wealth. Considerations of equity and quality override considerations of minority rights at this level of education.

The reinterpretation of the right to set up an educational institution as a right under Article 19(1) (g) by TMA Pai by overruling the Unnikrishnan judgment raises further questions about minority rights under Article 30(1). Article 19(1) (g) deals with the right to occupation which includes business, profession or trade. It means education is no longer a service or a charitable activity, as it was intended to be by the Constitution makers. The new interpretation makes the right under Article (30) (1) problematic. If education is no longer a service, but a trade and business, can minority rights be claimed to run that business? To put it differently, are minority rights applicable to trade or business? Can communities that make use of the commercial possibilities in education claim minority rights? These are serious constitutional questions that need to be pondered over by a Constitution Bench.

But a responsible government cannot wait for action till the Supreme Court resolves all the contradictions in the TMA Pai verdict. With all the limitations of power available at its disposal, it has to do its best to ameliorate the hardships of the people. Kerala's Leader of the Opposition has expressed his apprehensions about the possibility of commercialisation of education by the designated minorities. But his advocacy of dialogue as the only option available to the Government to solve the vexing issue amounts to reducing the role of the Government to that of a mercy petitioner.

The present State Government is not averse to discussions and dialogue. But it does not intend to limit its options to dialogue alone. A government has the responsibility to resort to both executive and legislative measures to safeguard the interests of the people. In fact, that is what the present Government did immediately after assuming office, by enacting the law to protect and strengthen equity and excellence in unaided professional education. The negative verdict of the High Court is not the last word on the legal validity of the law, much less on its social relevance.

The commodification of education is a comparatively recent phenomenon. This is an indirect result of the growing economic value of education. The role that knowledge plays in the process of production and consumption has increased so many times over the last few years that the appellation `knowledge economy' no longer raises any eyebrows. The prospects of commercialisation of education have grown with the growth of the knowledge economy.

The new role of knowledge as an economic agent is an opportunity and a challenge. It is an opportunity for the diffusion of wealth through the diffusion of knowledge. Theoretically, knowledge is free and could be shared freely. But the temptation to exploit this potentially commercial commodity is growing by the day. The challenge is to resist the temptation to commercialise education. Educational entrepreneurs have been resorting to this not because there is no one to counsel them against it. You can pretend to be so only if you do not want to resolve the problem.

A government committed to the welfare of the people cannot afford to pretend to discharge its responsibility by sermonising against commercialisation and exchanging pleasantries with the exploiters. It is duty-bound to act decisively through executive and legislative interventions to ensure access to education to the poor and marginalised sections. The present Government in Kerala is committed to producing results, trying all options at its disposal.

(M.A. Baby is Minister for Education, Kerala.)