India’s Attorney-General Does Not Favor Curbing Minority Rights
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Soli Sorabjee, Attorney General of India
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By
Md Zeyaul Haque, Special to IslamOnline
NEW
DELHI, July 26 (IslamOnline)- Attorney-General of India, Soli Jehangir
Sorabjee, submitted before the Supreme Court Thursday, July 25, that
the rights granted to minorities under Article 30 of the Constitution
to establish and administer their educational institutions was
absolute, and therefore beyond the purview of the interference of any
outside agency. Various forces in the country, including the ruling
BJP, would like to curtail these rights.
“The
fundamental right of administration of a minority educational
institution under the Constitution's Article 30, on its term and
language, is absolute,” Sorabjee told the court.
An
11-judge Constitution bench headed by the Chief Justice, Justice
Kirpal, is at present hearing arguments on over 200 petitions on
various aspects of minority educational institutions.
Sorabjee
said that the management of minority educational institutions should
be free of government control. This was necessary so that there be
enough scope for the founder or their nominees to mould the
institution in the way as he/she or they deemed fit and in accordance
with their ideas to serve best the betterment of their respective
community.
He,
however, added that “no fundamental right in our Constitution is
absolute and unregulated.” This aspect was equally applicable to
Article 30. The minority institutions could not claim “immunity”
against general laws relating to law and order, health, hygiene and
the like. However, the management of minority institutions is “not
open to interference by the executive or any outside agency.”
“Any
interference which erodes that right unnecessarily, affects the
autonomy of the educational institution and would be impermissible
under Article 30.” At the same time, Sorabjee made it clear that the
said institutions could not have the right of arbitrary dismissal of a
teacher, and thus could not claim immunity from judicial scrutiny in
respect of such action, or a limited supervision. There should be a
valid scope for the imposition of regulation made in the true
interests of efficiency of instruction, discipline, health,
sanitation, morality and public order. Besides, regulations could also
be made that would serve the interests of students and teachers and
preserve uniformity in standards among the affiliated institutions, he
said.
The
Attorney-General’s submission stood in bold contrast to the
submission made by Solicitor-General of India Harish Salve on Tuesday,
July 16, on the issue. The Attorney-General and Solicitor-General are
respectively the number one and number two law officers of the
country.
Salve,
who represented the Central government, while submitting before the
Constitution bench had said that the minorities had no absolute rights
under the Constitution to establish and administer educational
institutions, as such a right was subject to “reasonable
restrictions.”
“Article
30 confers the right to a minority to establish educational
institutions and administer them, but the right is not so wide to
block state laws which are applicable to all and enacted for
attainment of secular objectives,” Salve submitted before the SC
bench.
He
said that secular laws meant to achieve secular objectives would be
applicable to educational institutions established and administered by
minorities also. He further argued that if the institution was wholly
funded by the State, then the minorities stood to lose their right to
administer them, the rights conferred under Article 30
notwithstanding.
Salve
had contended that Articles 29 and 30 of the Indian Constitution
should not be read in isolation, and that these articles were required
to be read in consonance with Articles 14, 19,25, 26 and 28. He also
said that under the constitutional scheme of things, there was no
absolute right as no constitutional system had accepted such rights.
However,
if Article 30 was read in isolation, then textually there was no
restriction whatsoever regarding establishment and administering of
minority educational institutions. As such, constitutionally this
itself negated Solicitor-General Salve’s contention on the said
issue.
Salve
said that the minorities were being accorded a preferential treatment
and, sought to stress the fact that the right granted to minority
institutions was a “privilege and concession.”
Sorabjee,
took a contrary stand, and cited several international treaties and
declarations, besides Supreme Court judgments. He said, “According
preferential treatment to minorities in respect of their cultural,
linguistic and educational institutions is not in the nature of a
privilege or concession but their entitlement flowing from compulsion
of the mandate of equality, that is de facto equality.”
The
Attorney-General chose not to represent the government while deposing
before the Supreme Court in this case, while the solicitor-general
spoke for the government.
The
Supreme Court is hearing arguments at a time when minorities,
especially Muslims, are under great strain in India. Minorities fear
that the Hindu nationalist BJP-led government at the Centre is
inimical to their interests.
The
present government has already unleashed a propaganda campaign against
the madrasahs (Islamic schools) in the country. Without providing any
specific proof, it accuses them of teaching terrorism and churning out
terrorists. An order passed a few days back by the central government
has restricted government aid to only those madrasahs which obtain
security clearance from official agencies. This effectively bars aid
to these institutions since obtaining such clearance is nigh
impossible. Hindu outfits have been demanding closure of all madrasahs
in the country.
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