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Written Submissions of Soli J. Sorabjee, Attorney-General for India†
INTRODUCTORY STATEMENT
1. At the outset I would like to bring to Your Lordships' notice that I have appeared in the earlier round for one of the petitioners against the Government of India and filed my written submissions. Therefore, on my own, I cannot appear for the Government of India nor for the petitioner.
2. I am appearing pursuant to Your Lordships' request conveyed to me on 2-5-2002 that I may assist the Court in this case. If any party or any litigant has any objection or reservation about my appearance, let it be frankly stated, I will not mind it at all and Your Lordships may relieve me.
The galaxy of eminent counsel and the Solicitor-General have rendered substantial assistance as I can see from the written submissions filed.
3. I want to make it clear that I am not appearing for or against the Government of India or any of the parties. I am not here to take sides but to present every side of the constitutional scenario, place relevant material before Your Lordships for your consideration and decision. The reason is that my past appearance and the stand I had taken earlier may unconsciously influence my thinking and attitude or give rise to apprehensions on that score. I trust my conception of the role I have to play in the present case meets with Your Lordships' approval.
4. There is no question of any confrontation with the Government of India nor any rift between the Attorney-General and the Solicitor-General nor any pressure by the Government as has been mischievously reported in one national daily. This is wishful thinking and wild imagining.
WRITTEN SUBMISSIONS OF SOLI J. SORABJEE, ATTORNEY-GENERAL FOR INDIA AS AMICUS CURIAE
I. International thinking and aspects regarding minorities
(a) The treatment of minorities and their protection assumed great importance and engaged international attention especially after World War I. Treaties for the protection of rights of minorities were entered into by different States and the League of Nations played an important role in that behalf. The reason for concern for the minorities was the realization that denial of minority rights had resulted in violent conflicts and was likely to lead to instability and breach of peace within a State, and sometimes between States, especially in a country which had people of diverse religions and languages and different cultures and traditions. President Wilson observed way back in 1919 that, "Nothing is more likely to disturb the peace of the world than the treatment which might in certain circumstances be meted out to minorities." Lord Acton emphasized that "The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities."
(b) In the field of international law relating to minorities, it is generally accepted that minorities, on account of their non-dominant or vulnerable position in society, in addition to the guarantee of non-discrimination available to all persons, require special and preferential treatment. This is the basic underlying rationale and principle of protection and promotion of the rights of minorities in a democratic polity.
Attention is invited to the recommendation by the Sub-Commission in its report to the Commission on Human Rights - quoted at p. 27 of Minority Protection and International Bill of Human Rights by Urmila Haksar which states as follows:
"Protection of minorities is the protection of non-dominant groups, which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics which they possess and which distinguish them from the majority of the population. The protection applies equally to individuals belonging to such groups and wishing the same protection. It follows that differential treatment of such groups or of individuals belonging to such groups is justified when it is exercised in the interest of their contentment and the welfare of the community as a whole." Cited in St. Xavier's College1, at p. 798, para 131.
(c) This principle was established in the landmark advisory opinion of the Permanent Court of International Justice in a case relating to minority schools in Albania. The Advisory Opinion on Minority Schools in Albania, 6-4-1935. (1935), Series A/B, No. 64, p. 19.
(i) The facts of the case are interesting and the opinion of the Court is very instructive. Albania, subsequent to her admission into the League of Nations, signed a Declaration relating to the position of minorities in Albania. The first paragraph of Article 4 of that Declaration ran as follows: (SCC p. 773, para 78) "All Albanian nationals shall be equal before the law, and shall enjoy the same civil and political rights without distinction as to race, language or religion." Article 5 of the Declaration was in the following words:
"Albanian nationals who belong to racial, religious or linguistic minorities will enjoy the same treatment and security in law and in fact as other Albanian nationals. In particular they shall have an equal right to maintain, manage and control at their own expense or to establish in the future, charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein." (SCC p. 773, para 78)
Subsequently the Albanian Constitution was amended and a provision was made for compulsory primary education for all Albanian nationals in State schools and all private schools were to be closed.
(ii) The question before the Permanent Court of International Justice was whether the Albanian Government was justified in its plea that, as the abolition of private schools in Albania constituted a general measure applicable to the majority as well as to the minority, there was no violation of the rights of the minorities under Article 5 of the Declaration. The Court by majority rejected the plea of the Albanian Government. It observed that: (SCC p. 774, para 79)
The object of the Declaration was first to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on a footing of perfect equality with the other nationals of the State. The second was to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics. These two requirements were indeed closely interlocked, for there would be no true equality between a majority and a minority if the latter were deprived of its own institutions and were consequently compelled to renounce that which constitutes the very essence of its being a minority. (emphasis added)
(iii) The Court further made the following important observations: (SCC p. 774, para 79)
There must be equality in fact as well as ostensible legal equality in the sense of the absence of discrimination in the words of the law. Equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of different treatment in order to attain a result which establishes an equilibrium between different situations. It is easy to imagine cases in which equality of treatment of the majority and the minority, whose situation and requirements are different, would result in inequality in fact; treatment of this description would run counter to the first sentence of paragraph 1 of Article 5. The equality between members of the majority and of the minority must be an effective, genuine equality, that is the meaning of this provision.
In the opinion of the Court
the institutions mentioned in Article 5 are indispensable to enable the minority to enjoy the same treatment as the majority, not only in law but also in fact. The abolition of these institutions, which alone can satisfy the special requirements of the minority groups, and their replacement by government institutions, would destroy this equality of treatment, for its effect would be to deprive the minority of the institutions "appropriate to its needs", whereas the majority would continue to have them supplied in the institutions created by the State.
The reasoning and the approach of the International Court in this opinion have been accepted by this Hon'ble Court in its landmark decision in St. Xavier's College case1. See SCC at pp. 773-74 (per Khanna, J.); 799 (per Mathew, J.).
(d) The Universal Declaration of Human Rights (UDHR) does not contain any specific provision relating to minority rights.
(e) Article 27 of the International Covenant on Civil and Political Rights, 1966 (ICCPR), guaranteed minority rights in these terms:
In those States in which ethnic, religious or linguistic minorities exist persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religions or to use their own language.
(f) Francesco Capotorti, a distinguished professor of international law, former member and Special Rapporteur of the UN Sub-Commission has highlighted the vital distinction between the concept of "equality and non-discrimination" and the concept of "protection of minorities". In his celebrated study on the Rights of Persons Belonging to Ethnic, Religious or Linguistic Minorities (1979) at p. 37, he has stated as follows:
"Article 27 of the Covenant must, therefore, be placed in its proper context. To enable the objectives of this article to be achieved, it is essential that States should adopt legislative and administrative measures. It is hard to imagine how the culture and language of a group can be conserved without, for example, a special adaptation of the educational system of the country. The right accorded to members of minorities would quite obviously be purely theoretical unless adequate cultural institutions were established. This applies equally in the linguistic field, and even where the religion of a minority is concerned, a purely passive attitude on the part of the State would not answer the purposes of Article 27. However, whatever the country, groups with sufficient resources to carry out tasks of this magnitude are rare, if not non-existent. Only the effective exercise of the rights set forth in Article 27 can guarantee observance of the principle of the real, and not only formal, equality of persons belonging to minority groups. The implementation of these rights calls for active and sustained intervention by States. A passive attitude on the part of the latter would render such rights inoperative."
(g) Attention is invited to the International Seminar on the Promotion and Protection of the Human Rights of National, Ethnic and Other Minorities, held at Ohrid, Yugoslavia in 1974, where the role of governments, as regards the cultural rights, was described as follows:
"Several participants referred to the right to individual members of minorities, as well as to the right of groups in their collectivity, to enjoy the free expression of their individuality and group culture, to maintain their cultural identity and originality, to preserve their distinctive traditions, including artistic and theatrical traditions, and to maintain a natural link with the countries of their origin. It was considered the responsibility of the authorities to guarantee in law and in practice the maintenance and preservation of such traditions and customs and to provide for their autonomous development, where necessary by public financing." (emphasis added)
(h) The interpretation placed by the high-powered Human Rights Committee functioning under the Optional Protocol of ICCPR in its General Comment adopted by the Committee on 6-4-1994 is instructive. The Committee points out that Article 27 establishes and recognizes a right, which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant. (emphasis added)
In the view of the Committee "although Article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a 'right' and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party. Although the rights protected under Article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by the State may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group.
The Committee's conclusion is that Article 27 relates to rights whose protection imposes specific obligations on State parties. The protection of these rights is directed to ensure the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. Accordingly, the Committee observes that these rights must be protected as such and should not be confused with other personal rights conferred under the Covenant. State parties, therefore, have an obligation to ensure that the exercise of these rights is fully protected and they should indicate in their reports the measures they have adopted to this end." (emphasis added)
(i) Reference may be made to the judgment of the Constitutional Court of South Africa in re: dispute concerning the Constitutionality of Certain Provisions of the School Educational Bill of 1995 which finds a place in the Solicitor-General's compilation. Attention is invited to the judgment of Justice Sachs in which reference is made to Francesco Capotorti's study, the General Comment of the Human Rights Committee and International Thinking on Minorities. (See pp. 16, 18, 24, 25, 26, 27, 28, 31 and in particular the conclusions at p. 38 of the Solicitor-General's compilation.)
(j) The historic UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992 recognizes that according special or preferential treatment to minorities because of their vulnerable and non-dominant position in a society does not per se constitute discrimination. See clause 8(3). The said Declaration also recognizes the distinction between prevention of discrimination towards minorities and the need for special measures to create favourable conditions for protection of minorities. See clauses 4(1) and 4(2).
(k) Attention is invited to the commentary on the "UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities" (hereinafter referred to as "the Minority Declaration") prepared by Asbjorn Eide and in particular paras 55, 56 and 83 relating to clauses 4.1, 4.2 and 8.3 of the Minority Declaration.
What emerges from above is that 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 the compulsion of the mandate of equality, that is real de facto equality.
(l) The true concept of equality has been explained by this Hon'ble Court in Pradeep Jain v. Union of India2 (SCC at p. 677, para 13) in the following words:
"We cannot, therefore, have arid equality which does not take into account the social and economic disabilities and inequalities from which large masses of people suffer in the country. Equality in law must produce real equality; de jure equality must find its raison d'etre in de facto equality."
(m) In St. Xavier's College case1 this Hon'ble Court has held that
"it is obvious that 'equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations' ". (SCC p. 799, para 132)
II. The conception and thinking of national leaders and the founding fathers regarding minorities and their fundamental rights
(a) Our national leaders and founding fathers recognized the importance of minority rights and the necessity of fully safeguarding them. According to Gandhiji the claim of a country to civilization depended upon the treatment it extended to minorities. In the words of Jawaharlal Nehru, we can also lay down as our deliberate policy that there shall be no unfair treatment of any minority. Indeed we should go further and state that it will be the business of the State to give favoured treatment to minority and backward communities.
(emphasis supplied)
(b) The speeches of the founding fathers in the Constituent Assembly clearly indicate their concern for minority rights. Reference is invited to the passages referred to in the Solicitor-General's compilation. Sardar Patel gave an assurance that "our mission is to satisfy every interest and safeguard the interests of all the minorities to their satisfaction".
(c) The fundamental rights guaranteed to the minorities have been described as "our sacred obligation to the minority communities who are of our own" (see Kerala Education Bill, 1957, In re3, SCR at p. 1070 and at p. 1071). These special safeguards were incorporated in the chapter on fundamental rights with a view to instill in the minorities a sense of confidence and security. The legitimate exercise of fundamental rights by a particular minority community under Article 30(1) is not tantamount to infraction of the fundamental rights to the equality of the majority community.
One facet of Article 30 is that it is rooted in the concept of equality, real, de facto equality as explained by this Hon'ble Court in the cases of Pradeep Jain2 and St. Xavier's College1 referred to hereinabove.
(d) It is submitted that it is from "this angle of vision" (Kerala Education3 ibid., p. 1071) and in light of the aforesaid historical background that Articles 29 and 30 should be construed.
III. Scope of the right under Article 30 of the Constitution
(a) The fundamental right of administration of a minority educational institution under Article 30, on its terms and language, is absolute. However, in a catena of decisions it has been held that no fundamental right in our Constitution is absolute and unregulated. The same would apply to Article 30. In Kerala Education Bill3, SCR at p. 1062, this Hon'ble Court has held that right to administer does not comprise the right to maladminister.
The concept of imposition of reasonable restrictions as contemplated by Articles 19(2) to (6) is not germane to Article 30. (See Sidhajbhai Sabhai v. State of Bombay4, SCR at p. 849.)
It has been observed by this Hon'ble Court that the question whether a regulation is in the general interest of the public has no relevance, if it does not advance the excellence of the institution as a vehicle for general secular education. (Ahmedabad St. Xavier's College Society v. State of Gujarat1, SCC at pp. 812, 813, para 176 followed in St. Stephen's College v. University of Delhi5, SCC at p. 598 between C-D.) These observations need to be understood of the inapplicability in the context of Article 19(6) which permits imposition of restriction in the interest of the general public. The observations in Sidhajbhai case4 (SCR p. 856) that the right under Article 30 cannot be "whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole" require to be explained and put in the proper context.
A law or executive order which passes the test of reasonableness under Article 19(1)(g) read with Article 19(6), it may still fall foul of Article 30(1). The threshold for considering reasonableness under Article 19(6) and Article 30 is qualitatively different.
Regulation made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed. (See Sidhajbhai Sabhai v. State of Bombay4, SCR at p. 850.)
Regulations which will serve the interests of students and teachers, and preserve the uniformity in standards of education among the affiliated institutions could be made. The minority institutions cannot claim immunity against such general pattern and standard or against general laws such as laws relating to law and order, health, hygiene, labour relations, social welfare legislations, contracts, torts etc., which are applicable to all communities. (See St. Stephen's College case5, supra at p. 599 between a-b.)
(b) The management must be free from control so that the founder or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served. (See St. Stephen's College case5, supra at p. 596 between e-f.)
The right to administer a minority educational institution, (hereinafter referred to as "MEI") inter alia comprises the right of management of the institution by a committee appointed by it. According to the judgments of this Hon'ble Court, it is not open to the executive or any outside agency to displace that committee of management and replace it by another one. Again the appointment of a qualified principal and teachers including their removal and dismissal and exercise of supervisory and disciplinary powers upon them is part of management in exercise of its right of administration. Any interference which erodes that right necessarily affects the autonomy of the educational institution and would be impermissible under Article 30. It must be clarified that a MEI does not have the right of arbitrary dismissal of a teacher and cannot claim immunity from judicial scrutiny in respect of such action or a limited supervision.
(c) Institutions which are "in truth educational institutions and not fake institutions" do not lose their minority status because they admit students of non-minority communities.
Reference is invited to the observations of the Supreme Court in the case of Rev. Father W. Proost v. State of Bihar6 (SCR at p. 80 G-H, last para) as under:
"[T]he choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities."
(d) It is open for the Government to pierce the minority veil and ascertain whether in truth and reality the educational institution is a genuine MEI. Article 30 is a protective measure for the benefit of religious or linguistic minorities and no "ill-fit or camouflaged institution should get away with the constitutional protection". (See St. Stephen's College case5 at p. 587, end of para 28.)
It is submitted that interpretation of constitutional provisions should not be influenced by instances of abuse of Article 30(1) by some educational institutions.
(e) Article 30 in its terms apparently makes no distinction between primary education, secondary education or technical education. It is for this Hon'ble Court's consideration whether limitations should be read into the fullness of this constitutional provision.
(f) One view is that imparting of education by a minority religious educational institution militates against the secular value or spirit of the Constitution. On the other hand, it is contended that it is open to a minority to establish an educational institution to impart instruction best suited to its culture and traditions and mould the educational institution according to the ideas of the founders as to how the interest of the community in general and the institution in particular will be best served. The institution wants to produce students who are not merely proficient in technical efficiency, but are well-moulded, morally and spiritually. The institution does not want merely to produce bright and good students of its own community alone, but such students from all communities. Thus, educational institutions help the minorities to retain their identity "through all those distinctive things they value". The observations of this Hon'ble Court in Kerala Education Bill case3 apparently take the latter view. The provisions of Article 28 must be kept in mind.
(g) The right of administration and management under Article 30 also comprises the right to admit students of a particular community for which the institution has been established. Indeed it is an important facet of administration. According to some petitioners, a MEI which is unaided can provide admission for students belonging to its minority community even up to 100%. This Hon'ble Court, if it is inclined to accept this submission may be clarified that the process of admission should be fair and transparent and not tainted by nepotism or other extraneous considerations.
(h) The vexed question is whether restrictions in the matter of admission of students - which is a part of the right of management - can be imposed on aided MEIs and, if so, to what extent.
Two views have been urged. Both of them are highly arguable.
One view is that no educational institution can in modern times, afford to subsist and efficiently function without some State aid and, therefore, to continue their institutions they will have to seek aid. It is, however, well known that in modern times the demands and necessities of modern educational institutions to be properly and efficiently run require considerable expense which cannot be met fully by fees collected from the scholars and private endowments which are not adequate and, therefore, no educational institution can be maintained in a state of efficiency and usefulness without substantial aid from the State. (See Kerala Education Bill3, SCR at pp. 1057, 1059.)
Aid cannot be doled out on conditions which impair the autonomy of MEI or adversely affects its right of management which includes the right to admit students belonging only to minority community. This view derives support from observations in Kerala Education Bill3, SCR at pp. 1057, 1059).
As regards the applicability of Article 29(2), it is argued that if in legitimate exercise of the fundamental rights under Article 30, a student of a community other than the particular minority community is not given admission because of non-availability of seats, there is no discrimination only on the ground of religion. However, if seats are available but a student belonging to a community other than the minority community is denied admission because of his or her language or religion alone, then Article 29(2) is attracted. Again, if a student belonging to the same minority which is running the educational institution is denied admission because of case or race alone, Article 29(2) is attracted.
This Hon'ble Court's attention may be drawn to the fact that Pattabhi Sitaramayya and others proposed the deletion of the word "only" wherever it occurred in the draft article corresponding to the present Article 15. B.N. Rau, the Constituent Adviser, in response, gave cogent reasons in favour of the retention of the word. He cited the example that if India decided to discriminate against South African nationals in India in retaliation against South Africa's policy of racial discrimination towards Indians, it would be on grounds of race but not only of race and would, therefore, be permissible if the word "only" was retained but not otherwise. (See Shiva Rao: Framing of India's Constitution, A Study, p. 187.)
The judgments of the Bombay High Court in Yusuf Abdul Aziz v. State7 and State of Bombay v. Narasu Appa Mali8 lend support to that view.
(i) Another view is that whatever be the reason or cause, if in effect students of non-minority communities are denied admission because of their religion, the mandate of Article 29(2) is not complied with. The State in requiring an aided MEI not to reserve seats only for its students is not attaching conditions in giving aid but insisting on compliance with Article 29(2). The judgment of this Hon'ble Court in State of Bombay v. Bombay Education Society9 (SCR at pp. 581, 582, 583 & 584) does not accept the interpretation placed on the word "only" and has distinguished the Bombay High Court's judgments on the ground that the issue in these cases was with reference to Article 15 and not with reference to Article 29(2). Reliance is also placed on the amendment of Article 15(4) and absence of any similar amendment in Article 30. Furthermore, the said judgment holds that whatever the object or reason for the denial of admission may be, if it is "the immediate ground and direct cause" of denial of admission, Article 29(2) is attracted. There are observations to the effect that public funds in the form of aid cannot be used by religious or linguistic minority schools for denying admission to the students of other communities.
(j) The correctness or otherwise of the judgment in St. Stephen's case5 ultimately depends upon this Hon'ble Court's interpretation of Article 30 read with Article 29(2). The prescription of 50% of seats for admission is apparently derived from the cases laying down the quantum of reservation for Scheduled Castes and Scheduled Tribes.
In this connection, it is a matter for consideration for the Court whether receipt of aid, whatever its quantum, totally debars MEI of its right to reserve seats for students of its community or the restriction on admission can be linked with the quantum of aid vis-a-vis the total expenditure of a MEI.
(k) As submitted above, both these views are equally cogent. In my role of assisting the Court and in view of my previous stand in the matter, it would be inappropriate for me to adopt a partisan role or take a dogmatic stand. My duty in assisting the Court is to present the rival view and the supporting material to the Court for its consideration.
- Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717
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- (1984) 3 SCC 654
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- 1959 SCR 995
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- (1963) 3 SCR 837
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- (1992) 1 SCC 558
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- (1969) 2 SCR 73
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- AIR 1951 Bom 470
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- AIR 1952 Bom 84
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- (1955) 1 SCR 568
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