Minority Educational Institutions: The UPA’s Unconstitutional Law

Gautam Mukherjee is a political commentator whose columns figure regularly in different right-of-centre media outlets

The law presupposes that a Hindu would be unfair to institutions run by — and for — religious minorities. This is unacceptable.

Did the previous UPA government, in the first flush of their unexpected 2004 victory, leaning, as usual, on its traditional minority vote banks, go too far out on a limb on minority rights?

Did it pass a law with a possibly unconstitutional key provision? Did it overdo ‘intent’ in the drafting of the National Commission for Minority Educational Institutions (NCMEI) Ordinance of November 2004, and the subsequent Act of Parliament, promulgated in January 2005?

That the UPA was in a hurry to consolidate its minority-favouring credentials, after languishing for eight years in the opposition, is understandable. And a law on the subject was indeed a promise made in its Common Minimum Programme (CMP).

The ordinance, and subsequent law was enacted on the basis of Article 30 of the Indian Constitution, which in part states:

“All minorities whether based on religion or language shall have the right to administer educational institutions of their choice.”

So far, so good, as a solid common-weal provision, but to turn it into a hermetically sealed fiefdom was probably a subversion of the constitutional aim. The question is, was it deliberate or unintentional?

Here are the details, from the relevant Government of India website:

The National Commission for Minority Educational Institutions was established to protect and safeguard the educational institutions established by the minorities in India. This is also to ensure rights of minorities to establish and administer educational institutions of their choice as provided in Article 30 of the Constitution of India.

The NCMEI was established for the welfare of the minorities as mentioned in the national common minimum programme and government established the commission through an ordinance in November 2004. In January 2005, the ordinance was replaced by an Act.

The commission is headed by a Chairman who belongs to a minority community and has been a Judge of a High Court. Two members are nominated by Central Government. They too must belong to a minority community and must be “persons of eminence, ability and integrity”.

The Constitution does not expressly state that the regulatory board that oversees such minority educational institutions must also be peopled exclusively by the self-same minorities.

To do so would have implied that people belonging to the majority community of Hindus are not to be trusted to oversee the workings of minority educational institutions. That the Hindu cannot do so in a fair, unbiased, and above-board manner! But this is shades of the Jinnah-led Muslim League which led to the creation of Pakistan.

This baseless slur was unlikely to have been the intention of the authors of the Constitution, or the broader Constituent Assembly, that voted it into effect. But it clearly is, either by design, oversight, or foolishness, how it turned out, in the letter of the NCMEI Act of 2005.

The danger of this provision enshrined in the NCMEI Act of 2005, that has only now been challenged, is that it legitimises the notion that a rank-and-file Hindu, a High Court Judge to boot, just because he belongs to the majority community, is somehow unfit to sit as a member or chairperson in the quasi-judicial NCMEI. This, even though the candidates may have been successful, even eminent, in the higher judiciary!

Watching the NCMEI in practice over almost 10 UPA-run years, is to see a clear pandering to the Muslim vote bank, by giving it control over its educational institutions, with government restricting itself to funding all newly created affiliates to its central universities.

But this key discriminatory and divisive provision, of excluding the Hindus from an executive role in NCMEI, has come back into contention now, 10-odd years after the Act became law.

The NCMEI Act itself has been recently challenged via a PIL in the Allahabad High Court, for being both unconstitutional, and in violation of the principles of secularism that the UPA otherwise vociferously espouses.

And not only has this PIL been admitted by the High Court of Uttar Pradesh, but the court has, in turn, asked for explanations from the University Grants Commission (UGC), the government funding agency for educational institutions, and the Secretary, NCMEI, incidentally, a Hindu, to be filed before it shortly.

The alleged discriminatory anomaly, could possibly be unintentional, a consequence of weak drafting in the law, a common enough problem with quite a few parliamentary bills. And this Bill, passed in haste by our legislature in 2005, is nevertheless expected to be at least judicially examined, if not rectified, by order, now.

This can be done by passage of a parliamentary amendment, of its own volition, in recognition of its past error. This is not unprecedented, as this Act has been amended quite a few times already. It could also, of course, be changed as a consequence of the Allahabad High Court’s expectedly favourable verdict.

However, should neither be forthcoming, the PIL filed by a group of 11 Hindu lawyers from Lucknow, will most likely go on appeal, all the way to a Constitutional Bench of the Supreme Court, for final adjudication.

Is it constitutionally correct to exclude Hindus from sitting in the NCMEI on an unfounded presumption of their bias? The idea, if it is found to be of true intent, is not only offensive, but flies in the face of equity and justice for all citizens of India. How does our completely non-communal military run so well? But if the Central government starts making such pernicious distinctions, where will it lead us and our unity in diversity?

In a sensitive and crucial area like education, that is, after all, meant to be open to all comers, this sort of cynical affirmative action, gone wrong, can pervert the course of institutions financed and aided by the Central government, leaving it without effective remedy.

Western countries, almost uniformly born out of the convulsions of the Christian faith, the centuries of bloody warring between Catholicism and Protestantism, pogroms against Jews and Muslims, have now become practically secular. Sickened by this gory past, and the manipulations of the clergy through recent history, hardly 4 per cent of the Europeans go to Church or practice any form of active Christianity now.

But even then, in their bitterly acquired wisdom, and after two horrific World Wars, they do not allow the minorities, whether they be new immigrants from the former colonies, or indeed historically embedded ones, to dictate the course of their own educational institutions. This, irrespective of whomsoever may have set them up, or are presently running them, by excluding themselves, the majority, from a say!

The offensive provision in the NCMEI Act, as per the PIL admitted, bars anyone that does not belong to a minority, either by religion or language, to be a chairperson or a member of the NCMEI.

But, since it has the powers of a Civil Court, another, more understandable provision says that any member or chairperson appointed, must have been a High Court judge previously. This has not been adhered to, except for the first and one and only Chairman of the NCMEI, to date.

The Chairman of the NCMEI has been in place from inception in 2004. He is one Justice MSA Siddiqui, a retired Delhi High Court judge. In addition, there is only one member listed in 2015, Zafar Agha, a fellow Muslim and journalist.

At other times, Sister Jessy Kurien, Dr Cyriac Thomas, Dr Naheed Abidi, even one Singh, appear in sporadic reports as members of the NCMEI. None of them appear to be former High Court judges, even though the NCMEI functions as a quasi-judicial body.

The purpose of NCMEI, as it has worked out, is to facilitate direct affiliation of minority professional institutions to Central Universities. The NCMEI, under Siddiqui, has certainly been very active in this regard over the years, particularly with reference to Muslim institutions.

It has also famously designated the capital’s Jamia Millia Islamia, already appointed a Central University by an Act of Parliament in 1988, a minority institution. This gave it the right to reserve 50 per cent of its seats for Muslims, and leave the other 50 per cent to the ‘others’ — this, instead of the erstwhile 25 per cent for Muslims, 22.5 per cent for SC/ST students, 2.5 per cent for the handicapped and 50 per cent for the rest. Why exactly this was done is not too clear, as it clearly exceeds the brief, and then Union HRD Minister Kapil Sibal was none too pleased with the change.

The NCMEI also passed an order in 2010, stating that minority institutions had to have 30 per cent of its students from its designated minority, in order to qualify as a minority institution. This, much to the consternation of Christian schools and colleges in the North East that did not necessarily have 30 per cent of their number as Christian students, and feared losing their autonomy. Sometimes, arcane affirmative actions like this, with its reservations ethic, can be awkward; particularly when the prevailing tendency of the country as a whole is to mainstream everyone.

There have also been controversial if unproven charges that the NCMEI, under the long-reigning Siddiqui, has been helping channel black money and hawala funds to finance some of the quickly mushrooming minority institutions.

On the other hand, Justice Siddiqui has been felicitated by Mulayam Singh Yadav and the Uttar Pradesh government for his ‘excellent work’ done with minority, meaning Muslim-run institutions, as recently as last year. But then the Samajwadi Party (SP) is no stranger to corruption charges itself.

The NCMEI theoretically was meant to have a chairman for a five-year term, plus two members, also from the minority communities, nominated by the Central government. But, in practice, it has largely been a solo act run by Siddiqui over the last 10 years, with episodes involving some other members, including Christians, and a lone Sikh.

To truly make the NCMEI non-partisan, the Act will have to drop its apartheid provisions. And then, the new improved NCMEI may well end up doing much better with Hindus on board.

http://swarajyamag.com/politics/minority-educational-institutions-the-upas-unconsutitional-law/

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