The Delhi High Court has allowed the Central Government to amend its stance on the religious minority status of Jamia Millia Islamia (JMI), and accepted a new affidavit filed on 5 March 2018 as its official position.
This is a reversal of the UPA-II administration’s support for JMI to be considered a minority institution in 2011, and will have a significant impact on cases related to the institution’s status before the Delhi High Court and Supreme Court.
What Happened in 2011?
In February 2011, the National Commission for Minority Educational Institutions (NCMEI) passed an order declaring JMI a religious minority institution. Various student and teacher associations from JMI had filed a petition for the same before the NCMEI after a government’s direction in 2006 to all central universities to include 27 percent reservation for OBCs.
What’s the Big Deal in Being a Minority Institution?
After JMI was declared a minority institution, it scrapped reservations for OBCs, SCs, and STs. It then instituted 50 percent reservation for Muslims as well, which included a 10 percent reservation for Muslim women and a 10 percent reservation for Muslim STs and OBCs.
This became possible since minority institutions are (perceived to be capable of) relying on Article 30(1) of the Constitution of India to claim that they can administer themselves, without having to follow all the norms and regulations put out by the government.
The NCMEI decision to grant minority status to JMI is under challenge in the Delhi High Court. If the High Court finds that the NCMEI got it wrong, and that JMI isn’t a minority institution, JMI will have to scrap its Muslim reservation policy, and reinstate reservations for SCs, STs and OBCs in line with other educational institutions.
Where Does the Government Position Come Into This Then?
In September 2011, when the challenge against the NCMEI decision was first raised, Kapil Sibal, representing the HRD Ministry, said that the government “respected” the decision of the NCMEI. The case continues to go on in court today, and the government’s position is important to it, legally and symbolically.
Legally, this change in position could have an impact not only on the case before the Delhi High Court, but also on a concurrent case in the Supreme Court where the power of the NCMEI to designate institutions as minority institutions is being questioned.
Symbolically, the status of institutions like Aligarh Muslim University (AMU) and JMI has been politicised for many years now. After the Supreme Court had held that AMU was not a minority institution, the Congress government in 1981 created a law which clarified that it was a minority institution. The issue meandered in the courts for years, and in January 2016, the NDA government changed the official position relating to AMU as well, saying that it was not a minority institution.
It has been known since that time that the government was planning to change its stance on JMI as well. Former Attorney-General Mukul Rohatgi had provided an opinion to the HRD Ministry in January 2016 in which he advised that the government could change the official stance on JMI, despite the previous declarations of support. In August 2017, The Indian Express reported that the Centre had decided to file an affidavit setting out the new position.
Why Has the Government Changed its Position?
The Supreme Court has previously held that these words in Article 30(1) of the Constitution need to be read together – this means that a minority group only gets a right to administer an educational institution if it was also established by that minority group.
In 1967, in the Azeez Basha case, the Court held that AMU was not established by a minority group since its establishment as a university came about under a 1920 Act by the Central Legislature (itself under the British government). This 1920 AMU Act also included provisions which envisaged non-Muslims performing certain administrative tasks. On this basis, the tag of being a minority institution under Article 30(1) of the Constitution was denied to AMU (though the government tried to work around this).
The government has based its changes in position on both AMU and JMI on the findings in the Azeez Basha case. For AMU, they point to the 1920 Act, while for JMI, the forthcoming affidavit to the Delhi High Court will refer to the Jamia Millia Islamia Act 1988 (which designated JMI as a central university).
According to the affidavit, the Centre has argued that JMI is a Central University and:
16. Treating a Central University as a minority education institution is repugnant to Law besides undermining its status and is against the basic tenet of a Central University.
17. By no stretch of imagination Article 30(1) could be read to mean that even if educational institution has been established by a Central Act, still the minority has the right to administer it.
Has the Government Got it Right on Jamia?
In view of this, the Centre has said that JMI is not a minroty institution having been set up by an Act of Parliament and funded by the Central Government and also that it was not set up by a minority sect.
However, this seems to be extremely specious reasoning, as a simple examination of the specific facts relating to JMI, as well as more recent Supreme Court case law, would demonstrate.
First, on the issue of whether JMI was established by a minority group:
The 1988 JMI Act is significantly different to the one under which AMU was established, and it is therefore incorrect to import the reasoning from Azeez Basha (which dealt with AMU) wholesale into a discussion on JMI’s status. Some key differences (expressly discussed by the NCMEI order) are:
- AMU only became a university after the 1920 AMU Act, having previously been the Mohammedan Anglo-Oriental College. This affects AMU’s status because it was only established as a university by the 1920 Act, which was not by a Muslim minority, but the government. JMI, on the other hand, had been recognised as a deemed university by the UGC long before the 1988 JMI Act, and so the 1988 Act did not “establish” JMI.
- Section 2(o) of the 1988 JMI Act expressly recognises the context in which JMI was set up, including its previous registration as the Jamia Millia Islamia Society, which set out its Muslim character. This strengthens the argument that JMI had been established prior to the 1988 Act, and that this was done by a minority group.
Secondly, on the issue of funding by the central government:
Just because an institution receives central funding does not strip it of its minority status. The Supreme Court’s judgment in the 2002 TMA Pai Foundation case (which is the final word on these issues) expressly recognises this fact, and sets out positions of law relating to what it calls “aided minority institutions”.
One of these positions set out is on reservations – aided minority institutions can reserve seats for their minority group, though they have to also keep some seats open to others, something which JMI already does.
The fact that JMI receives central funding should therefore be irrelevant to its minority status.
What Will be the Fall-Out From This Decision?
As mentioned earlier, there is significant political capital at play here, which relates directly to the provision of reservations. By virtue of being minority institutions, AMU and JMI provide reservations to the Muslim community. This ability to reserve seats for a community applies to other institutions as well, established and administered by not just religious minorities, but also linguistic minorities.
Loss of minority status significantly affects such institutions as it reduces the number of seats they can reserve for their own community. This is particularly important for universities like JMI or St Stephen’s which are committed under their incorporating legislation to not imposing a religious (or other) test for admission, and therefore use reservations to fulfil their objectives relating to their communities.
The government’s changed stance on the JMI matter (not AMU, because there are genuine questions regarding its establishment) will cause concerns among a number of minority institutions, that a retrospective position may be adopted in relation to their minority status, for political reasons without any real basis in law. This will only add to the narrative that this government is looking to politicise communal issues in educational matters.
Perhaps the government will come up with better reasons for its change in position as the case in the Delhi High Court progresses. Either way, the issue demonstrates the confusion that can arise when a government (whether UPA or NDA) gets involved in the administration of minority institutions, and should hopefully be a reminder for any of them to avoid such interference, and adhere to established law as laid down by the courts.
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