ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Legal Dynamics of Minority Educational Institutions

Legal Dynamics of Minority Educational Institutions Arshad Amanullah The volume under review foregrounds experiences of the minorities in the subcontinent to discuss the legal dynamics of minority educational institutions. Situating the debate within the discourse of the gap between the laws and the reality, the articles in this collection interrogate the role of the polity (


Legal Dynamics of Minority Educational Institutions reference (1958), St Xavier’s (1974), and so on. It stood bitterly opposed to any move which amounts to infringement upon the administrative control of the minorities in
Arshad Amanullah the institutions established by them. One may cite in this regard examples of cases

he volume under review foregrounds experiences of the minorities in the subcontinent to discuss the legal dynamics of minority educational institutions. Situating the debate within the discourse of the gap between the laws and the reality, the articles in this collection interrogate the role of the polity (“Islamic”/secular) in facilitating a smooth and fearless functioning of such institutions. The volume also interrogates the statutes and jurisprudence related to minority educational institutions that came into existence as a result of the functioning of the judiciary and legislature after independence.

The book opens with Tahir Mahmood’s introduction which is a personalised narrative of his engagement with different minority institutions and also a successful endeavour to map issues confronting educational institutions of minorities. He attributes the failure to exercise the educational rights of the minorities to all three pillars of the Republic and dubs their functioning as “wholly disappointing” from the very beginning. Absence of any proper law under Article 30 to look after the establishment and administration of minority educational institutions shows the indifference of the legislature to this pressing need. To illustrate the apathy of the

Politics of Minority Educational Institutions: Law and Reality in the Subcontinent edited by Tahir Mahmood; Imprint One, Gurgaon, Haryana, 2007; pp 293, Rs 495.

administration in this respect, he mentions “tremendous difficulties” the Urduspeaking sections of the society face in setting up and running Urdu medium educational institutions. These difficulties have been the fate of Urdu since independence despite the provision of Article 350-A for facilities for instruction in the mother tongue at the primary stage of education.

The saga of long-drawn legal battles some educational institutions have been fighting to gain minority status and rights constitute the core of three segments of the book: legal framework, major institutions and beyond frontiers. Studying the labyrinth of court verdicts in this regard, many contributors to the volume have divided functioning of the Supreme Court in the post-Constitution era into two broad phases: liberal and deterioration. The latter phase still continues.

Liberal Phase

In the beginning, the apex court was very assertive in protecting the educational rights of the minorities as is evident from its verdicts in the Kerala Education Bill like Father Proost (1969), Mark Netto (1979), All Saints (1980), etc. The judgment of the Supreme Court in Azeez Basha Case (1968) relating to the Aligarh Muslim University (AMU) however signifies that its record even in this phase has “not been free form aberrations”. In this case, K N Wanchoo ruled out that AMU was established not by Sir Syed and his associates with donations from the Muslim community but through the 1920 statute by the then government.

The phase of a remarkably liberal attitude ends with the St Stephen’s case (1992) in which the apex court said: “The minority institution shall make available at least 50 per cent of the annual admission to members of communities other than the minority community”. It marked the beginning of the current phase which proves to be “an era of deterioration”. This shift in the Supreme Court’s way of interpreting the constitutional provisions regarding the educational rights of the minorities symbolises one of the by-products of its efforts to achieve a utopia of complete secularisation of the general education and curriculum. Various large benches from 1997 onwards, according to Mahmood, tried to cast a fresh look into legal issues relating to these institutions although they, instead of offering solutions, made the problem more acute. To name a few in

march 22, 2008

Economic & Political Weekly


this connection: T M A Pai (2002), Islamic Academy (2004) and P A Inamdar (2005).

Era of Deterioration

The T M A Pai case attracted severe criticism from a number of contributors as almost all post-T M A Pai verdicts have been furthering the process of narrowing the expanse of minority educational rights. M P Raju, in his long piece, tries to map the trajectory of this negative trend. The majority view in this 11-judge verdict destroyed the concept of national minorities and made the state alone the unit for determining minority status. Interestingly enough, it does so in the absence of a factual matrix. The provision of reservation for non-minorities in the minority institutions gains further acceptance in the T M A Pai case as it, in an attempt to discern interplay between Articles 29 (2) and 30 through the principle of harmonious construction, makes such reservation and quota compulsory if the concerned institution receives any sort of government aid. Moreover, it paves the way for further infringement on the rights of minority institutions by permitting an external Appellate Tribunal in their disciplinary matters.

On the pretext of clarifying doubts arising from T M A Pai, the Supreme Court in Islamic Academy (2004) laid down some new rules with regard to admission procedure and the fee structure in minority educational institutions. In the process, it brought minority unaided professional educational institutions almost at par with their non-minority counterparts. Likewise, T M A Pai has come to cast its shadow on the fate of unaided professional colleges run by religious minorities. Having relied on the latter’s ruling in favour of the state being the unit for the purpose of deciding minority, the P A Inamdar case (2005) raises the question of trans-border operation of Article 30 (1). Inamdar gives a clean-chit to the government to provide a common entrance test procedure and even to take over the admission procedure. This and many other provisions which Inamdar ruled out in favour of state intervention in the affairs of minority institutions draw their legitimacy from the argument of “meritocracy”. Does this argument not go against the Aristotelian

Economic & Political Weekly

march 22, 2008

principle of treating the unequal unequal to the evolution of madrasa education. In
ly? Does it not kill the main spirit of the this regard, he gives the impression that
fundamental right of the minorities to es- Waliullah for the first time demonstrated
tablish and administer educational insti in his writings principles of Tatbiq-i-Hadis,
tutions of their choice? the science of reconciling the so-called
The recent trend of judicial intervention conflict among Hadis texts or between the
has, thus, been affecting minority educa latter and the texts of the Qur’an. To me,
tional rights at three levels: (a) minority Tatbiq-i-Hadis is as old as the Hadis stud
intake in minority colleges; (b) rights of ies. However, Sharho Mushkilil Aasar by
the aided institutions; and (c) the regula- Tahawi (d: 321 Hijri) is considered the first
tory measures applicable to minority edu comprehensive book in this regard. He
cational institutions. It clearly demon was followed by Qutaiba who authored
strates that with reference to Articles 29 Taweelo Mukhtalifil Hadis in the fourth
and 30, the judiciary in recent times buys century Hijri. Insistence on the study of
the “protection/privilege than right argu- Hadis is definitely a vital part of Waliul
ment”. Against this backdrop, Mahmood lah’s scheme, but it is Hujjatullahil Ba
has aptly observed: “The true connotation ligha, a work which deals with the myster
and implications of Articles 29 and 30 of ies/rationale of the religious injunctions
the 56-year old Constitution are lost in a of Islam, that secured his place in the his
heap of judicial decisions and remain un tory of Muslim thought.
certain”. Categorising them as against the Another issue on which I disagree with
spirit of the Constitution, Mihir Desai in Alam is that the Deobandis put “an em
the concluding part of his piece, calls for a phasis on Hadith”. What they emphasise,
“comprehensive overhaul of the Article 30 in practice, is the jurisprudence of the
jurisprudence developed by the Supreme Hanafi School as is obvious from the
Court over the last 50 years”. number of volumes and periods devoted
to the same in the curriculum of all
Madrasa Education Deobandi madrasas across the subconti-
The volume contains three articles on nent. The misunderstanding on the part of
Indian madrasas. It is interesting to note the author emanates from the fact that he
that it is silent about Christian madrasas/ considers only the Hadis literature, apart
gurukuls of the country while it provides from the Qur’an, to be the “transmitted
information about the same situated in sciences”, while the Deobandis include ju-
Pakistan. Given the contemporary politi risprudence also in the same category and
cal atmosphere, all doubting Thomases hence regard it “unamendable”.
find it fashionable nowadays to champion To underline the importance the Prophet
the cause of madrasa reform. As an insider attached to the acquisition of knowledge
to the madrasa space, this reviewer Mahmood has cited two Hadis in his in
strongly feels the need for reform in the troductory paper. The authenticity of the
madrasa system and curriculum but the Hadis literature itself is debatable among
question is what will be the nature and social scientists. So, what about those
form of reform. I agree in this regard with hadis/es which are considered defective
Arshad Alam who argues in his insightful even among the Mohaddisin, scholars of
piece that an informed debate on the issue the Prophetic traditions? According to the
presupposes a nuanced understanding of Hadis terminology, the first Hadis quoted
“the location of madrasas within the by him is Zaeef (weak) while the last is
present Muslim society, its strategy of re- Mozu’ (concocted).
production and its practical politics”. The In short, the book successfully
present scholarship on madrasas is simply charts out issues confronting different
of no help in this connection as it address minorities in exercising their educational
es the issue from the state’s perspective rights enshrined in the Constitution.
rather from the subaltern’s. It convincingly locates those problems
I would like to differ from Alam on two within the functioning of different
issues in his piece. Borrowing from government agencies.
Barbara Metcalf and N Jalbani, he has an
alysed the contribution of Shah Waliullah Email:

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