Main Problems faced by Minorities
In India
Some of the main problems faced by minorities in
India are as follows: 1. Problem of Identity 2. Problem of Security 3. Problem
Relating to Equity.
1. Problem of Identity: Because of the
differences in socio-cultural practices, history and backgrounds, minorities
have to grapple with the issue of identity everywhere which give rise to the
problem of adjustment with the majority community.
2. Problem of Security: Different identity
and their small number relative to the rest of the society develops feeling of
insecurity about their life, assets and well-being. This sense of insecurity
may get accentuated at times when relations between the majority and the
minority communities in a society are strained or not much cordial.
3. Problem Relating to Equity: The minority
community in a society may remain deprived of the benefit of opportunities of
development as a result of discrimination. Because of the difference in
identity, the minority community develops the perception of the sense of
inequity.
So far as the problems of Muslims are concerned, which is the
largest minority community in India, they fall into three categories: (a) Problems those
are common to all poor people. (b) Problems those are common to all minorities.
(c) Problems those are specific to Muslims only.
Here, we will deal especially the third category,
which is specific to Muslims only. Religion is a complex phenomenon in India.
Though India is declared a ‘secular’ state, yet the problem of secularism looms
large here. Conversion to Islam and Christianity has been a much controversial
issue over the last couple of decades. Reasons for this are varied—ranging from
poverty to perceived discrimination resulting in alienation of Muslims and
Christians in India. The Government of India has constituted a committee on 9th
March 2005 under the chairmanship of justice Rajendra Sacchar to enquire and analyze
the problems faced especially by Muslims in India.
The Indian socio-economic fabric is very complex
because it is much affected by caste, religion and even more
regional/linguistic differentials. At the same time, the Indian economic,
social and political institutions that are persisting since centuries have a
historical basis also. These factors have given a unique character to Indian
society. It has become a conglomeration of various layers and segments divided
and sub-divided.
Minority Rights----The Judicial
Approach
Introduction
Who are the persons of inherence of the rights under Article 30 of
the Indian Constitution? This right secures to religious and linguistic
minorities a right to establish and administer educational institutions of
their choice. Whenever, therefore, a group seeks its protection by challenging
a law or executive action before a court, the foremost question that the court
must dispose of a preliminary step is whether the group seeking protection is
in fact a minority definable in terms of the article. The probe would require
an enquiry into two questions, (i) What is a minority? (ii) How is minority to
be ascertained in a given situation?
The Constitution nowhere does not define the terms 'minority', nor
does it lay down sufficient indicia to the test for determination of a group as
minority. Confronted, perhaps, with the fact that the concept of minority, lie
its problem, was intercalate, the framers made no efforts to bring it within
the confines of a formulation. Even in the face of doubts being expressed over
the advisability of leaving vague justifiable rights to undefined minorities,
the members of the Constituent Assembly made no attempt to define the term
while article 23 of the Draft Constitution, corresponding to present articles
29 and 30, was being debated, and, presumably left it to the wisdom of the
courts to supply the omission.
However, as the following would show, the opinions of the courts
on the first question appear to be the result of a half-hearted attempt, and,
only indicate the futility of depending on them in any search for an answer to
the second question.
What is a
Minority?
The word minority has not been defined in the Constitution. The
Motilal Nehru Report (1928) showed a prominent desire to afford protection to
minorities, but did not define the expression. The Sapru Report (1945) also
proposed, inter alia, a Minorities Commission but did not define Minority. The
U.N. Sub-Commission on Prevention of Discrimination and Protection of
Minorities has defined minority as under:
1) The term 'minority' includes only those non-documents group of
the population which possess and wish to preserve stable ethnic, religious or
linguistic traditions or characteristics markedly different from those of the
rest of the population; 2) Such minorities should properly include the number
of persons sufficient by themselves to preserve such traditions or
characteristics; and 3) Such minorities should be loyal to the state of which
they are nationals.
The initial courtroom attempt to answer the first question was
made in In re Education Bill where the Supreme Court, through S.R. Das C.J.,
suggesting the techniques of arithmetic tabulation, held that the minority
means a "community, which is numerically less than 50 percent" of the
total population. This statistical criterion prevail with the Kerela High Court
also which, in A.M.Patroni v. Kesavan , defined minority to mean the same thing
as it meant to the Supreme Court.
The 'definition' refers to group of individual who are
particularly smaller as the majority in a defined area. It however does not
indicate as to what factor of distinction, subjective or objective are to be
taken as the test for distinguishing a group from the rest. Thus, while considering
'minority', a numerically smaller group, as against the majority in a defined
area, some place emphasis upon certain characteristics commonly possessed by
the members constituting the minority and, to them, these characteristics
serves as objective factors of distinction. In this sense the term used to
cover "racial, religious or linguistic sections of the population within a
State which differ in these respects from the majority of the population."
Minority in other sense also means, a group constituting a
minority group has a feeling of belonging to one common unit, a sense of
akinness or community, which distinguishes from those belonging to the majority
of the inhabitants. They are "group held together by ties of common
descent, language or religious faith and feeling themselves different in these
respects from the majority of the inhabitants of the given political
entity." There are also those who define minority in terms of relationship
between the dominant groups and minority. To them it is much more important
"to understand the genesis of the relationship between dominant group and
minority then it is to know the marks by the possession of which people is
identified as member of either." Rose defined minority as a "group of
people differentiated from others in the same society by race, nationality,
religion, or language - who both think of themselves as a differentiated group
and are though of by others as a differentiated group with negative
connotation."
Thus most of the definitions explained above place emphasis either
upon certain common characteristics present among the members of the groups
which serve as the marks of distinction and such objective test, and it is only
in some cases that the factor of relationship between the dominant and non dominant
group is regarded as the main determinant of minority status which, in turn, at
least some cases, renders relative numbers in and out of the group concerned as
irrelevant for definitional purpose.
A 'consciousness' of the difference with the majority on the basis
of certain characteristics is, therefore, considered as a distinguishing mark,
and as such a subjective element. thus, the definition which lays emphasis upon
certain subjective factors such as 'feeling' or 'consciousness' provide a test
which is too vague and uncertain, and more psychological in nature than real.
Every situation may not necessarily involve the assumption that the group in
order to deserve the title of 'minority' must be distinguishable from the
majority by the presence of the feeling or consciousness of its being different
from the majority. A group distinguishable from others by the possession of
certain objective characteristics, such as language, may not have a feeling or
consciousness of its distinct status of being counting as minority. The most
acceptable definitions, given by the Human Rights Commission, is not beyond the
reach of argument. That definition appears to be confined to those non dominant
groups only which, apart from having certain objective characteristics that are
distinctively of their own, wish to preserve the distinctive identities and are
not willing to be assimilated with the rest of the population.
No definition comes out to be comprehensive to cover all the
varied situations, illustrates the difficulty experienced in assigning limits
to concept of minority. This must remain the possible explainable reason why
courts have not ventured to formulate a general definition. Indeed, as far as
the limited purpose of article 30 is concerned, such a venture would have been
rather unnecessary too. For, religion and language being the criteria indicated
in article 30, a pre-condition for the latter acceptability, the Constitution
itself tends to confine the tasks of the courts to the ascertainment whether
the group claiming constitutional protection is the group identifiable by the
characteristics of religion or language and is numerically non-dominant. The
courts have therefore, only to be sure for themselves that the basis of claim
to protection is ether religion or language. Interpreting the words,
"based on religion" in article 30, the Delhi High Court rightly
pointed out that the words would mean that "the only or the principal
basis pf the 'minority' must be their adherence to one of the many
religions…and that the other features of the minority are subordinate to the
main feature, namely, its separateness because of the religion." A similar
interpretation can also be placed on the words 'based on language'. That being
so, it can be concluded that for the purpose of article 30, a majority means a
non-dominant collectively distinguishable from the majority of population by
the objective factors of religion or language or language or a combination of
both.
Constituent
Assembly Debate
The whole debate in the Constituent Assembly on article 23 of the
Draft Constitution, which later assumed the shape of the present article 29 and
30, revolve round this issue: what rights could or should be conceded to
minorities? The reference to minorities was a reference to none other than
Indian minorities existing in India. The original draft of the fundamental
rights submitted to the Constituent assembly on April 16, 1947 by the
Sub-Committee on Fundamental Rights did not contain any provision corresponding
to article 30(1) and did not even refer to the word minority. The letter
submitted by K.M. Munshi to the Minorities Sub-Committee on the same date when,
along with some other rights, the rights now forming part of article 30(1) was
proposed, made a reference on the term "national minorities".
The Drafting committee, however, sought, to make a distinction
between the rights of any section of the citizen to conserve its language,
script or culture and the right of the minorities based on religion or language
to establish and administer educational institutions of their choice and for
this the committee omitted the word 'minority' in the earlier part of the draft
article 23 corresponding to article 29, while it retained the word in the
latter part of the draft article 23 which now forms part of the article 30(1). Ambedkar
sought to explain the reason the reason for substitution in the Draft
Constitution of the word minority by the words "any section"
observing: It will be noted that the term minority was used therein not in the
technical sense of the word 'minority' as we have been accustomed to use it for
the purpose of certain political safeguards, such as representation in the
Legislature, representation in the service and so on. The word is used not
merely to indicate the minority in the technical sense of the word, it is also
used to cover minorities which are not minorities in the technical sense, but
which are nonetheless minorities in the culture and linguistic sense. That is
the reason why we dropped the word "minority" because we felt that
the word might be interpreted in the narrow sense of the term when the
intention of this House….was to use the word 'Minority' in a much wider sense
so as to give cultural protection to those who were technically not minorities
but minorities nonetheless.
Ambedkar's explanation that the right was available not only to
minorities in the 'technical sense' but also to minorities in the 'wider sense'
has an obvious reference only to that part of Draft article 23 which now forms
part of article 29(1) and not to that which is now clause (1) of article 30.
His expiation, therefore, may be taken to be an attempt to broaden the scope of
clause (1) of article 29 only so as to include within the term 'minority' other
minority groups also, as contemplated and illustrated by him, and thus to
confine article 30(1) to those minorities which he described as minorities in
the technical sense, were politically recognized and the most prominent amongst
them were represented in the Constituent Assembly also.
The whole problem, as far as this part of constitution is
concerned, that engaged considerable time and efforts of the framers was to
achieve a consensus an a constitutional arrangement, between the numerically
dominant majority considered as such on the national scene and the minorities
referred to above- a solution which could give the minorities a feeling of
security against discrimination, and security against interference with those
characteristics which had divided them apart from the majority. And, it is too
obvious to be noted that, at no stage was any section of this majority ever
treated as 'minority'. If these assumptions as accepted as truly reflecting the
intention of those who drafted and incorporate these provision in the
constitutional document, with a wishful hope that they were rendering a
constitutional solution to the problem of Indian minorities, it may be argued
that where a minority is the historical or national context and its claim is
based on religion it must be defined and ascertain in terms of the population
of the whole country, irrespective of its being in numerical majority in any
particular state; and, where a group in not a minority considered as such in
the national context, but is still definable as 'minority' under Ambedkar's stretched
meaning of the term, it may be ascertained with reference to the population of
the state concerned. The argument is correct, it is submitted, if the provision
in the question are viewed against the historical prospective in which they
were adopted, and are construed to carry into effect the true spirit and
intention of the constitution.
Protection
of Interest of Minorities
Article 29 of the Constitution of India defines the protection of
interest of minorities: -1) Any section of the citizen residing in the
territory of India or any part thereof having a distinct language, script or
culture of its own shall have right to conserve the same.2) No citizen shall be
denied admission into any educational institution maintained by the State
receiving aid out of State funds on grounds only of religion, race, caste,
language or any of them.
Clause (1) Clause (1) gives protection to every section of the citizens
having distinct language, script or culture by guaranteeing their right to
conserve the same. If such section desires to preserve their own language and
culture, the state would not stand in their way. A minority community can
effectively conserve its language, script or culture by and through educational
institutions and therefore necessary concomitant to the right to conserve its
distinctive language, script or culture and that is what is conferred on all
minorities by article 30(1). But article 29(1), neither controls the scope of
article 30(1) nor is controlled by that article. The scope of the two is
different. Article 29(1) is not confined to minorities but extends to all
sections of citizens. Similarly article 30(1) is not confined to those
minorities, which have 'distinct language, script or culture' but extends to
all religious and linguistic minorities. Further, article 30(1) gives only the
right to establish and administer educational institutions of minorities'
choice while article 29(1) gives a very general right 'to conserve' the
language, script or culture. Thus, the right under article 30(1) need not be
exercised for conserving language, script or culture.
Clause (2) Clause (2) relates to admission
into educational institutions, which are maintained or aided by state funds. No
citizen shall be denied admission in such institutions on grounds only of
religion, race, caste, language or any of them. Article 15 prohibits
discrimination against citizen on ground of religion, etc. but the scope of two
articles is different. Firstly, article 15(1) protects all citizens against the
state where as the protection of article 29(2) extends to the state or anybody
who denies the right conferred by it.
Secondly, article 15 protects all citizens against discrimination
generally but article 29(2) is a protection against a particular species of
wrong, namely, denial of admission into educational institutions maintained or
aided by the state . Finally, the specific grounds on which discrimination is
prohibited are not the same in two articles. 'Place of birth' and 'sex' do not
occur in article 29(2), while 'language' is not mentioned in article 15.
The right to admission into an educational institution is a right,
which is an individual citizen, has as a citizen and not as a member of a
community or class of citizen. Hence a school run by a minority, if it is aided
by state funds, cannot refuse admission to children belonging to other
communities. But the minority community may reserve up to 50 percent of the
seats for the members of its own community in an educational institution
established and administered by it even if the institution is getting aid from
the State. The state, however, cannot direct minority educational institutions
to restrict admission to the members of their own communities. Article 29(2),
however, does not confer a legal right on the members belonging to other
communities to freely profess, practice and propagate their religion within the
precincts of a college run by a minority community . Article 29(2) cannot be
invoked where refusal of admission to a student is on the ground of his not
possessing requisite qualifications or where a student is expelled from an
institution for acts of indiscipline. To overcome the conflict with article 15
as well as article 29 the Constitution (First Amendment) Act, 1951, added
clause (4) to article 15 to the effect that nothing in article 15 and article
29(2) shall prevent state from making any special provision for the advancement
of any socially and educationally backward classes of citizen or for the
schedule caste and the schedule tribes. The state is empowered to reserve seats
in state colleges for socially and educationally backward classes of citizen or
for SC and ST.
Rights of
Minority to Establish and Administer Educational Institutions
Article 30 of the Constitution of India defines Rights of Minority
to Establish and Administer Educational Institutions: - 1) All minorities,
whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice. [1-A) In making any law
providing for the compulsory acquisition of any property of an educational
institution establish and administered by a minority, referred in clause (1),
the State shall ensure that the amount fixed by or determined under such law
for the acquisition of such property is such as would not restrict or abrogate
the right guaranteed under that clause.] 2) The State shall not, in granting
aid to educational institutions, discriminate against any educational
institution on the ground that it is under the management of a minority,
whether based on religion or language.
Clause (1) Clause (1) gives rights to all minorities based on religion or
language the right to establish and administer educational institution of their
own choice. Article 29 and 30 are grouped together it will wrong to restrict
the rights of minority to establish and administer educational institution
concerned with language script and culture of the minorities. The reasons are:
Firstly, article 29 confers the fundamental rights on any section of the
citizen which will include the majority also where as article 30(1) confers all
rights on all minorities. Secondly, article 29(1) is concerned with language,
script or culture, whereas article 30(1) deals with minorities based on
religion or language. Thirdly, article 29(1) is concern with the right to
conserve language, script or culture, whereas article 30(1) deals with right to
establish and administer educational institutions of the minorities of their
choice. Fourthly, the conservation of language, script or culture under article
29(1) may be by means wholly unconnected with educational institutions, and
similarly establishment and administer educational institutions by a minority
under article 30(1) may be unconnected with any motive to conserve language,
script or culture. A minority may administer an institution for religious
education, which is wholly unconnected with any question of conserving
language, script or culture. It may be that article 29(1) and article 30(1)
overlap, but the former cannot limit the width of the latter. The scope of
article 30 rests on the fact that right to establish and administer educational
institution of their own choice is guaranteed only to linguistic or religious
minorities, and no other section of citizens has such a right. Further article
30(1) gives the right to linguistic minorities irrespective of their religion.
It is, therefore, not at all possible to exclude secular education from article
30.
The expression 'minority' in article 30 remains undefined though
the court has observed that it refers to any community which is numerically
less than 50 percent of the population of a particular state as a whole when a
law in consideration of which the question of minority right is to be
determined as a State law. A community, which is minority in specific area of
the State though a majority in the state as a whole, would not be treated as minority
for the purpose of this article. A minority could not also be determined in
relation to entire population of the country. If it was a state law, the
minorities must be recognized in relation of that state. But the fact that the
expression minority an article 30(1) is used to distinct from 'Any section of
citizen' in article 29(1) lends support to the view that article 30(1) deals
with national minorities or minorities recognized in the context of entire
nation. In that case, however, article 30(1) would become inapplicable to the
national majority even if it is a minority in any particular state, e.g.,
Hindus in Punjab or Jammu and Kashmir. Although article 30(1) does not speak of
citizens, the minority competent to claim the protection of that article must
be a minority of person residing in India. 'The minority under article 30 must
necessarily mean those who farm a distinct and identifiable group of citizen in
India'. Article 30(1) does not confer upon foreigners not residents in India
the right to set up educational institutions of their choice. The right
conferred on minorities is to establish educational institutions of their
choice. It does not say that minority based on religion should establish
educational institutions for teaching of their own language alone. The article
leave it to their choice to establish such educational institutions as will
serve both the purpose, namely, the purpose of conserving their religion,
language, or culture, and also the purpose of giving a thorough general education
to their children. Minorities are, however, not entitled to have educational
institutions exclusively for their benefit.
In D. A. V. College v. State Of Punjab , it was observed that, a
linguistic minority for the purpose of art. 30(1) is one which must at least
have a separate spoken language. It is not necessary that that language should
also have a distinct script for those who speak it to be a linguistic minority.
Religious or linguistic minorities should be determined only in relation to the
particular legislation which is sought to be impugned, namely that if it is the
State Legislature these minorities have to be determined in relation to the
population of the State. Arya Samajis have a distinct script of their own,
namely Devnagri therefore they are entitled to invoke the right guaranteed
under art. 29(1) because they are a section of citizens having a distinct
script and under art. 30(1) because of their being a religious minority.
Sub-sections (2) and (3) of s. 4 do not in our view offend by themselves any of
the rights of the petitioners either under art. 29(1) or art. 30(1) of the
Constitution. Nowhere there is a mandate for compelling Colleges affiliated to
it either to study the religious teachings of Guru Nanak or to adopt in any way
the culture of the Sikhs.
Thus religious or linguistic minorities should be determined only
in relation to the particular legislation which is sought to be impugned,
namely that if it is the State Legislature these minorities is to be determined
in relation to the population of the State. It was held that, religious
instruction is that which is imparted for inculcating the tenets, the rituals,
the observances, ceremonies and modes of worship of a particular sect or
denomination. To provide for academic study of life and teaching or the
philosophy and culture of any great saint of India in relation to or the impact
on the Indian and world civilizations cannot be considered as making provision
for religious instructions. The State of Punjab is created as a unilingual
State with Punjabi as its language and if provision is made for study of
Punjabi language that does not furnish a ground for discrimination nor can the
provision for study of the life and teachings of Guru Nanak afford any cause
for complaint on grounds of violation of art. 14 of the Constitution. The right
to form association implies that several individuals get together and form
voluntarily an association with a common aim, legitimate purpose and having a
community of interest. The right extends inter alia to the formation of an
association or Union. Section 5 of the impugned Act does not effect the right
of D.A.V. College Trust and Society to form an association. Therefore, there is
no infringement of art. 19(1)(c).
The right conferred on minorities is to establish educational
institutions of their choice. It does not say that minority based on religion
should establish educational institutions for teaching of their own language
alone. The article leave it to their choice to establish such educational institutions
as will serve both the purpose, namely, the purpose of conserving their
religion, language, or culture, and also the purpose of giving a thorough
general education to their children. Minorities are, however, not entitled to
have educational institutions exclusively for their benefit.
Clause (2) Clause (2) is only a phase of
non-discrimination clause of the constitution and does not derogate provisions
made in clause (1). The clause is expressed in negative terms: the state is
therefore enjoined not to discriminate in granting aid to educational
institutions on the ground that the management of the institutions is in the
hands of minority, religious or linguistic. The clause does not mean that the
state is competent otherwise to discriminate so as to impose restrictions upon
the substance of rights to establish and administer educational institutions by
minorities. The rights established by article 30 (1) is intended to be a real
right for the protection of the minorities in the matter of setting up of
education institution of their choice.
Kerala
Education Bill Case--The article
first came up for interpretation before a seven judge Constitution Bench
constituted to consider the reference made by the President under article 143
in In re Kerla Education Bill sponsored by the Communist Government of the
state which was stoutly opposed by Christians and Muslims. Chief justice S.R.
Das delivered the majority opinion. He spoke for six judges- the sole dissent
by Justice Venkatarama Aiyar being confined to the question whether minority
institutions were entitled also to recognition and state aid as part of the
right guaranteed by article 30(1). C. J. Das held, inter alia: a) An
institution, in order to be entitled to the protection, need not deny admission
to members of other communities. b) It is not necessary that an institution run
by religious minority should impart only religious education or that one run by
the linguistic minority should teach language only. Institution imparting
general secular education is equally protected. The minority has a right to
give "a thorough, good general education". c) Grant of aid or
recognition to such institution cannot be made dependent on their submitting to
such stringent conditions as amount to surrendering their right to administer
to them. However, the right to administer does not include the right to
misadministration reasonable regulations can be made. d) Regulation prescribing
the qualifications for teachers was held reasonable. Those relating to protection
and security of teachers and to reservation in favor of backward classes, which
covered government schools and aided schools alike, were "perilously near
violating that right", but "at present advised" were held to be
permissible regulations. Provision centralizing recruitment of teachers through
State Public Service Commission and taking over the collection of fees etc.
were held to be destructive of rights of minorities to manage the institutions.
Clauses of the Bill, which authorized the taking over of management in the event of specified failings, in effect,
annihilated the minorities' right to administer educational institutions of
their choice.
Minority
Rights flow from Articles 14,15,19(1)(2) 21, & 26 (a) Thus while it is true that it is
only the minorities whose right to establish and administer educational
institutions is mentioned n article 30(i) it dos not follow the same is denied
to the majority communities. It was considered necessary like a special
mentioned for the right of minorities by way of extra assurance to it is not
correct to say that minorities were considered backward and needed concessions
though article 30(i) to bring them up. The object was to make that they will
not be discriminated against. It was not intended to pamper as favored
communities. It should follow therefore form articles 14 and 15 majority
communities have right to similar treatment at the hands of the in the matter
of recognition affiliation government aid or non displacement management in
respect of educational institutions established by majority as accorded to
minority institutions of course condition can and to be imposed in regard to
aid, affiliation and recognition in order to ensure standard of teaching but
the same have to be uniformly onerous and not be so drastic as to involve
surrender by the community or founder or management of its right to establish
and administer the institution. The thesis that the majority in a system of
adult franchise hardly needs any action it can look after itself and protect its
interests any measure wanted by majority can without much difficulty be brought
on the statute book because majority can bet that done by giving a mandate to
the elected representatives only the minorities who need protection is with the
utmost respect to the anguished judge to naive to command acceptance. Modern
parliamentary democracy are run on a party system which in India the more so in
the post mandal is built largely on the basis of caste and communal
co9nbination Government are returned to power not on the basis of issues or
mandates. Managements functional institution do not for a vote bank wile their
teachers do the. Religions majority namely Hindus are not a homogeneous
monolith. It is a much-divided society. There are caster and sub caste division
and the same court defense to the legislative and executive wisdom on article
has no made things easier electoral arithmetic has led to all sorts of and
combination. Apart from articles 15 and 15(I) this right to establish and
administer educational institutions also flows as seen above form articles
19(i) (g) and 26(a), which make no distinction between majority and minority
communities. The right of students to education as a fundamental right under
article 21, also simples that they as well as their parents have the right to
choice of institutions in which they would like the former to be educated.
Every community has a right to found and administer educational and other
charitable institutional and to run them according subject perceptions of what is
best of the community and for the institution subject of perceptions of what is
best for the community and for the distinction for religion or language
minority or majority. The only consequence of this will be that provisions
relating to displacing of managements through statutory schemes of
administration or through take over of institutions and appointment of
authorized controllers and also those divesting the management of the powers of
appointment and discipline pertaining to teachers will have to be treated as
unconstitutional in so far as they relate to majority institutions too to the
same extent as they have been treated vis-à-vis minority institutions and it
will not be such a bad thing from the educational angle either the ground
reality is that just as nationalization of many private industries on ground of
mismanagement by industrialists has proved counterproductive. so also has the
taking over of the management institutions. The cause. for interference in each
case was the acts of mismanagement and dissipation on the party of private mil
owners or school college managers. But the bureaucrats displacing them have by
and large not felt any commitment to the industry institution at all and have
succumbed to political pressures with the result that things have only worsened
instead of improving. That is why they are now being re-privatized it is only
though de politicization of control over the institutions that the management
can be better and more evenly disciplined. Deprivation of management of their
power concerning appointment and discipline of teachers has likewise led to a
steep fall in discipline and standard. Many teachers do not care to listen even
to their principal or head of department what to say of the management.
Absenteeism indulgence in private tuitions and running of coaching schools are
the order of the day. Of course regulatory provision to the same extent not
more noels as have been accepted to be necessary for the protection of teacher
of minority institutions would in any case continue in relation to teachers of
majority institutions also. The trend the work over is now for less and less of
government. If misadministration can be prevented in the case of minority
institutions without emasculating the management the same should be minority
institution too. As per Ray C.J. in St. Xavier's and per Jag Mohan Reddy J. all
institution irrespective of any denominational distinction should be places of
workshop of learning for students
Conclusion--The courts, however, seem to have
been persuaded by practical compulsion rather than be swayed away by a feeling
of faithfulness to the spirit. Their course of opinion seems to have been
determined by some of the followings:
i. That provisions in question seeks to protect minorities against
state action, which term includes laws and also under them, executive actions.
ii. That ours being a federal democratic system, political and
legislative processes operate not only from the national center of power but
also from the states.
iii. That these states are autonomous in their respective
legislative spheres-and laws are passed by majority votes.
iv. That minorities, considered as much on the national level, do
constitute numerical majority in some states.
v. That these majorities may, by their laws, deny the protection
to the non-dominant group which the Constitution so emphatically seeks to
secure.
vi. That these majorities may, by their numerically strength,
overshadowed the distinct shadow the distinct characteristics and individuality
of the non-dominant groups, and the latter may have to live under a
psychological fear of being discriminated and overwhelmed.
vii. That it was this fear in some sections of some minorities at
least, which had pervaded the politics the politics of pre-partition India, and
that it was on this premise that minority rights were demanded and conceded in
Constitution Assembly.
viii. That it is this fear, which continues to be the core
component of the minority component.
ix. That the assurance to protection for minorities can tell its
true meaning only when a non-dominant group in a state is define and ascertain
as 'minority' where the law in question is a state law, eve though the group
happens to be a part of the 'majority', considered a majority in the context of
the whole country.
x. That the same reason that became the basis for article 29 and
30 to find a place in the category of justifiable Fundamental Rights must be
valid in this situation also
