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PUCL Bulletin, July 2003

Analysis of Supreme Court judgement on minority run educational institution
-- By Amrik Singh

It is somewhat odd that the Supreme Court decision on the minority education rights, given on October 31, 2002, has been discussed mainly in relation to issues which interest only a few. No one has stopped to do an overview of what this Judgement has accomplished and what the shape of things is going to be.

Since the issues raised were of fundamental and statutory importance, an unprecedented 11-judge Bench was constituted to discuss the validity or otherwise of Article 29 (Protection of Interests of Minorities) and Article 30 (Rights of Minorities to Establish and Administer Educational Institutions) of the Constitution. Owing to the changing temper of politics in the country, these two Articles have come under persistent attack. A committee to review the working of the Indian Constitution had been set up under the Chairmanship of a former Chief Justice of India, among other things to re-examine the two particular Articles, which had become a subject of controversy, and their relevance in the current situation.

In the course of arguments in the court, the Solicitor-General adopted an approach with which the Attorney-General apparently did not identify himself. At its request, the latter was asked to assist the Court and he put forward a different point of view. In the ultimate outcome, it was his point of view which was accepted by the Court. The Judgement too is interesting insofar as there are three sets of judgements. The first one is by a majority of six, which was led by Chief Justice B.N. Kirpal along with a separate, concurring Judgement by Justice V.N. Khare who is currently the Chief Justice. There are two other minority judgements however. One of them takes a line of approach which is even ahead of the majority in its emphasis on the rights of the minorities and the other takes a somewhat different line of approach.

For all practical purpose, the Supreme Court has upheld the validity of these two Articles of the Constitution though there are some who argue that the majority Judgement could have been more specific with regard to some of the minority rights. This implies that in the years to come, some of these issues might be agitated again before the Supreme Court.

It would not be misleading to say that this part of the Judgement has been accepted by most people, as consistent with what has been happening so far. Even though a Bench of 11 judges -- the largest in the history of the Supreme Court so far - applied their minds to the issues involved, the outcome was to virtually reiterate what had been the majority view of the Court all along.

It was something else, however, which captured the attention of the public and the public and the educationists much more than this part of the decision. After having given the background of the case and its history, the majority Judgement posed one question sharply: Does the Unnikrishnan case require reconsideration? The answer, as given, needs to be reproduced here: "In view of the discussion herein-above, we hold that the decision in Unnikrishnan's case, insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequent directions given to UGC, AICTE, Medical Council of India, Central and State Governments, etc., are overruled."

Being arriving at this conclusion, the Court went into considerable depth in regard to the various issues connected with the establishment and variety of professional colleges, their fees and the system in terms of which they admit students etc. That part of the discussion is enlightening as well as instructive. Quoting from the judgment given in 1991, the Court conceded that private educational intuitions had become a necessity in the present day context. It was not possible to do without them because the Government is in no position to meet the demand. Therefore, it concluded by saying, "private educational institutions - including minority educational institutions - too have a role to play".

Before coming to this somewhat radical conclusion, the Court accepted the connection of the private institutions that "it has been submitted by the learned counsel for the parties that the implementation of the scheme by the States, which have amended their rules and regulations, has shown a number of anomalies. As already noticed 50 percent of the seats are to be given on the basis of merit determined after the conduct of a common entrance test, the rate of fee being minimal. The payment seats, which represent the balance number, therefore, cross subsidise the "free seats". The experience of the educational institutions has been that students who come from private schools, and who belong to more affluent families, are able to secure higher positions in the merit list of the common entrance test, and are thus able to seek admission to the "free seats". Paradoxically it is the students who come from less affluent families, who are normally able to secure, on the basis of the merit list prepared after the common entrance test, only "payment seats".

This is strongly put, even more strongly than what several people had said in criticism of the 1991 Judgement. It is refreshing to find therefore that the Court did not find it difficult to reverse its earlier stand. For a whole decade, the decision governed by the Supreme Court in the Unnikrishnan Case had created all kinds of problems. In order to seek relief from some of them, many persons had groups represented to the Courts which went on modifying its decisions as the situation demanded.

Two things emerge clearly from the details of the argument as given in the course of the judgement. The first one is that had the Ministry of HRD and/or any of the professional councils such as the UGC, the AICTE or the Medical Council presented point of view in detail to the Supreme Court when the Unnikrishnan Judgement was yet to be given, some of the mistakes could have been avoided. It was their failure to present the professional point of view which led to a situation where the judges were left with no choice but to act upon whatever arguments were presented to them from time to time. The Court had no choice in the matter. It was failure of the Ministry concerned and the professional councils to present their point of view which created a situation from which the Court wriggled out bit by bit, till in the 2002 Judgement; it virtually abandoned its earlier decision of 1991.
There are problems of adjustments between the private institutions and the State Governments today.

In Karnataka, the controversy continues unabated. Maharashtra has however, done something which deserves to be noticed and treated as a precedent. On the lines of the Telecom Regulatory Authority of India, it has set up a body which will go into the issues which are under dispute between the private institutions and the State Government. This particular development shows the way things should be taken care of in the interest of fairness as well as high academic standards.

Secondly, in the last few weeks, I had occasion to ask people connected with education if they had read the text of the judgment. More than half of them were serving the Vice Chancellors. At least two out of them hold office in a teacher's organisation. Not even one of them had read it. In this situation, it would be unfair to blame only the Ministry of HRD or the professional councils for having defaulted on an important dimension of their responsibility. The rot is much deeper, if one may venture to say


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