February 22, 2020
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Majority Opinion

The SC orders more state control over aided minority institutions. More Coverage

Majority Opinion
Gauri Gill
Majority Opinion
The Supreme Court's judgement last week redefining the rights of minority-run educational institutions (MEI) is bound to have far-reaching ramifications. On the one hand the court has, to a great extent, deregulated the MEIs that are unaided. On the other, it has increased state control over those that access funds from the government. This is significant since the majority of MEIs in higher education receive funds from the government.

The majority judgement, delivered by the 11-member constitutional bench of the SC headed by Chief Justice B.N. Kirpal, has thrown up contentious issues like assigning powers to the state to fix the percentage of quota for non-minority students in aided MEIs, a prerogative of the managements of these institutions till now.

While some MEIs, like Delhi's prestigious St Stephen's College, have expressed their satisfaction over the fact that the apex court has upheld their special status protected by Article 30 (1) of the Constitution, irrespective of whether they receive aid from the state or not, they are wary of the powers vested in state governments to fix quota for non-minority students in aided MEIs.

Says Anil Wilson, principal, St Stephen's College: "Suppose in a Christian majority state like Nagaland the Christians open an MEI. A certain percentage of seats—decided by the state government—will be reserved for non-minority students. It may so happen that non-minority students from other states rush for admissions, whereas deserving local Christians don't get a chance."

The interpretation and implementation of the ruling by various state governments is an area of prime concern. Says lawyer Kapil Sibal, among the counsel who appeared on behalf of the MEIs: "If the state prescribes the method of admission for members of the majority community, it's certainly interference. This is a problematic area, however, and any such state decision is subject to judicial review." Sharing a similar view, constitutional expert Fali Nariman says that in case the state takes an arbitrary decision regarding the admission procedures in MEIs, the court can always strike it down. "The state or legislature is not the final word," he adds.

Some highlights of the SC order:

  • Non-aided MEIs will be free of government control. However, the admission process must be transparent and merit-based.

  • Aided MEIs to enjoy their special status but will have some state control. Non-minority students will have to be admitted as per quota fixed by the state governments.

  • The state can prescribe qualification criterion for selection of principals and teachers in both aided and unaided MEIs.

  • Redressal of grievances of employees of MEIs before appropriate judicial authority.

  • Religious or linguistic minority to be re-defined according to state's demography.

Fixing non-minority quotas isn't the only point of contention. There are several questions which the petitioners feel have remained unanswered. After clubbing over a hundred petitions containing overlapping concerns from MEIs, the court had shortlisted 11 major questions for redressal. These included whether a religious sect of the majority community can claim minority status.

This was of particular interest since sects like the Arya Samaj and the Brahmo Samaj were seeking minority status. "The court has delinked this question and it remains to be considered," says senior advocate Rajeev Dhawan who appeared for the Arya Samaj and others. "This is not the comprehensive judgement one had hoped for."

Similarly, the rationale of defining the minority status of a community on a state-to-state basis is being questioned. "It would have been better if it had been defined at the national level.The effect of this will be most felt in educational institutions in places like Punjab, the Northeast and Goa where a community which is in a minority on a national scale is in a majority within the state," says Dhavan.

For the time being, it may seem that the judgement has once and for all decided on the rights of MEIs. But as and when the fine print of the judgement and its implications begin to be felt on the ground, there could be yet another round of litigation.

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