Minority Institution Bill Debate in Rajya Sabha
Date-21.12.2004
SHRI BALAVANT alias BAL APTE: Sir, I seek to oppose this Bill because I find that it is cosmetic and hypocritic. Sir, I remember an old adage,
"¿Ö¸Ë×ü¤ü ®Ö ¾ÖÂÖÔןÖ,ÝÖ•ÖÔןÖ, ¾ÖÂÖÔ×ŸÖ ¾ÖÂÖÖÔÃÖã, ׮քþ֮ÖÖê ´Öê‘Ö„…
®Öß“ÖÖê ¾Ö¤ü×ŸÖ ®Ö Ûãú¹ýŸÖê, ¾Ö¤ü×ŸÖ ®Ö ÃÖÖ¬Öã: Ûú¸üÖꟵÖê®Ö…"
´ÖÆüÖê¤üµÖ, ×•Ö®Ö ÛúÖê Ûãú”û ®ÖÆüà Ûú¸ü®ÖÖ Æîü, ¾Öê ²ÖÖŸÖë •µÖÖ¤üÖ Ûú¸üŸÖê Æïü †Öî¸ü ×•Ö®Ö ÛúÖê Ûãú”û Ûú¸ü®ÖÖ Æîü, ¾Öê ²ÖÖŸÖë Ûú´Ö Ûú¸üŸÖê Æïü… ‡ÃÖ ²ÖÖ¸êü ´Öë ¤üÖê ˆ¤üÖÆü¸üÞÖ †Ö¯Ö Ûêú ÃÖÖ´Ö®Öê ¸üÜÖ®ÖÖ “ÖÖÆüŸÖÖ ÆæÓü…
ÁÖß ²Ö»Ö¾ÖÓŸÖ ˆ±Ôú ²ÖÖ»Ö †Ö¯Ö™êü (ÛÎú´ÖÖÝÖŸÖü) : ÃÖ¸ü, ‹®Ö.›üß.‹. ÃÖ¸üÛúÖ¸ü ®Öê †¯Ö®Öê ÛúÖµÖÔÛúÖ»Ö ´Öë ´ÖÖî»ÖÖ®ÖÖ †Ö•ÖÖ¤ü ‹•ÖãÛêú¿Ö®Ö ±úÖˆÞ›êü¿Ö®Ö ÛúÖê ו֮¤üÖ Ûú¸üŸÖê Æãü‹, 352 ´ÖÖ‡®ÖÖò׸ü™üß ‡ÓÙüß™ü¶æ¿Ö®ÃÖ ÛúÖê 69 Ûú¸üÖê›Íü, 65 »ÖÖÜÖ 39 Æü•ÖÖ¸ü Ûúß ´Ö¤ü¤ü ¤üß… ŸÖß®Ö Æü•ÖÖ¸ü ´Ö¤ü¸üÃÖÖë ÛúÖê ´ÖÖò›ü®ÖÖÔ‡•Öê¿Ö®Ö Ûêú ×»Ö‹ ´Ö¤ü¤ü ¤üß… ÃÖïÛú›ÍüÖë ”ûÖ¡ÖÖ†Öë †Öî¸ü Æü•ÖÖ¸üÖë ”ûÖ¡ÖÖë ÛúÖê ÃÛúÖò»Ö¸ü׿֯ÃÖ ¤üß… ˆ¤æÔü ‹Ûêú›ü´Öß ÛúÖ ²Ö•Ö™ü, •ÖÖê ‡®ÖÛêú ÛúÖµÖÔÛúÖ»Ö ´Öë 84 »ÖÖÜÖ £ÖÖ, ˆÃÖêü 11 Ûú¸üÖê›Íü ×ÛúµÖÖ, וÖÃÖ ¯Ö¸ü ›üÖ. ¸ü±úßÛú •ÖÛúÖ׸üµÖÖ ®Öê ›üÖ. ´Öã¸ü»Öß ´Ö®ÖÖêÆü¸ü •ÖÖê¿Öß ÛúÖê †Öê¯Öê®Ö»Öß Ûú´¯»Öß´Öë™ü ×ÛúµÖÖ… ‡ÃÖÛúê ²ÖÖ¤ü •ÖÖ×Æü¸üÖŸÖ ‹®Ö.›üß.‹. ®Öê ®ÖÆüà Ûúß, ŒµÖÖë×Ûú "¾Ö¤ü×ŸÖ ®Ö ÃÖÖ¬Öã: Ûú¸üÖꟵÖê"… (Ûéú¯ÖµÖÖ ÃÖã¬ÖÖ¸ü ¤ëü) ...(¾µÖ¾Ö¬ÖÖ®Ö)...
ÁÖß ˆ¯ÖÃÖ³ÖÖ¯Ö×ŸÖ : ¿ÖÖ×Æü¤ü ×ÃÖקüÛúß ÃÖÖÆü²Ö, ¯»Öß•Ö… †Ö¯Ö ÛúÖ ®ÖÖ´Ö Æîü… •Ö²Ö †Ö¯ÖÛúÖ ®ÖÖ´Ö †Ö‹ÝÖÖ ŸÖ²Ö ²ÖÖê×»Ö‹ÝÖÖ…
ÁÖß ²Ö»Ö¾ÖÓŸÖ ˆ±Ôú ²ÖÖ»Ö †Ö¯Ö™êü : ÃÖ¸ü, ‡®ÖÛúß ×Æü¯¯ÖÖÖêÛÎêúÃÖß ÛúÖ ¤æüÃÖ¸üÖ †×³Ö»ÖêÜÖ, ‡ÃÖ ¯ÖÖÙ»ÖµÖÖ´Öë™ü Ûêú ׸üÛúÖò›ËüÃÖÔ ´Öë Æîü… 1977 ´Öë •Ö²Ö •Ö®ÖŸÖÖ ¯ÖÖ™üßÔ ÛúÖ ¿ÖÖÃÖ®Ö †ÖµÖÖ, ŸÖ²Ö ÛÓúÙüß™ü¶æ¿Ö®Ö 46th ‹´Öë›ü´Öë™ü ×²Ö»Ö 1978 ´Öæ¾Ö ×ÛúµÖÖ ÝÖµÖÖ, וÖÃÖ´Öë †ÖÙ™üÛú»Ö 338 ÃÖ²ÃÖß™ü¶æ›ü Ûú¸ü®Öê Ûúß ²ÖÖŸÖ Æãü‡Ô… Article 338 provides for a Commissioner for the Scheduled Castes and Scheduled Tribes. By that amendment, it was proposed that there shall be a Commission for the Scheduled Castes and Scheduled Tribes, and it was also proposed that there shall be a Commission for the Minorities, to be known as the Minorities Commission.
Sir, it is a matter of record that the Scheduled Castes and Schedules Tribes Commission amendment was passed, but the Minorities Commission amendment was not passed because of the Members of the other side. Therefore, this, that they opposed a Minorities Commission getting a constitutional status, and now they are bringing forward this Bill, exposes their hypocrisy. ŒµÖÖë×Ûú ˆ®ÖÛúÖê Ûãú”û Ûú¸ü®ÖÖ ®ÖÆüà Æîü… ³ÖÖÂÖÞÖ Ûú¸ü®ÖÖ Æîü… Ûãú»Ö ×´Ö»ÖÖÛú¸ü ‡®ÖÛúÖ ¾µÖ¾ÖÆüÖ¸ü ‹êÃÖÖ Æîü ×Ûú "¿Ö¸üפü ®Ö ¾ÖÂÖÔ×ŸÖ ÝÖ•ÖÔןÖ"… Sir, this Bill actually is not for minorities. It is for minority institutions, which, in the present circumstances of dearth of professional colleges and demand for seats, want to make money. Therefore, this Bill is to favour these institutions, which want to make money.
If I come to the legislation per se, I find firstly, it is unnecessary. We already have the National Commission for Minorities Act.1992 This Act makes provisions for the protection of the interest of minorities, minorities education, minorities welfare, and if at all, they wanted an authority to deal with even the affiliation of minority institutions, one simple amendment in that Act might have been necessary, might not have been necessary. But if you want to make a show that you are doing it for the minorities, you must bring a Bill with fanfare. That is what is required. Therefore, my first objection is that this is an unnecessary Bill. My second objection to this Bill is, it is patently mala fide, and the mala fides are writ large on the statement as to why an Ordinance was issued. The statement makes a mockery of the concept of Ordinance-making power under article 123 of the Constitution.
SHRI BALAWANT alias BAL APTE (CONTD.): It is a power which is termed as an emergency power, which is termed as a power to be exercised when the Parliament is not in Session, and there are circumstances, compelling reasons, which require to resort to this power. Now what is the urgency which is spelt out in the proclamation?
"In view of the commitment of the Government in the National Common Minimum Programme, ..."
--on the basis of which they came to power six months ago--
"...the issue of setting up a National Commission for the minority
educational institutions was a matter of utmost urgency."
No circumstances are referred to, not even mentioned! And this is done on 11th November, 2004 . Normally, the Parliament sits from the week commencing from 17th November or so. They did not have any Legislative Business; therefore, the Session was cut short to three weeks. If the Parliament were to sit on 17th November, what was the urgency to issue an Ordinance on 11th November? Therefore, my attack on this Bill is on the basis that it is a Bill mala fide not for the purposes for which it is sought to be enacted.
My more serious objection to this Bill is with reference to Article 30. The source of Minority Institutions' rights is Article 30. The way that
Article has been used and interpreted by the courts, it has become a privilege to be a minority in this country because you are above law, because you are above regulation, and, therefore, if you are an institution, with the label 'minority' on it, you can do whatever you like. ...(Interruptions)...
¯ÖÏÖêü0 ÃÖî±ãú§üß®Ö ÃÖÖê•Ö : ÛúÖê‡Ô ³Öß ‹Ý•ÖÖ´¯Ö»Ö ¤êü ¤üßו֋…
ÁÖß ˆ¯ÖÃÖ³ÖÖ¯Ö×ŸÖ : ÃÖÖê•Ö ÃÖÖÆü²Ö, †Ö¯Ö ‡ÃÖ ¯Ö¸ü ²ÖÖê»Ö®Öê ¾ÖÖ»Öê Æïü, ®Ö? ˆÃÖ ¾ÖŒŸÖ ²ÖÖê»Ö »Ößו֋ÝÖÖ…
SHRI BALAVANT alias BAL APTE: Even the Ramakrishna Mission was tempted to claim the 'Minority' status because it found that it was a matter of privilege to be a minority, to be above law. But that is about Article 30, which is a larger issue. What I am pointing out is, the Statement of Objects & Reasons says that the Constitutional guarantees are there, but still justice is not being done. And then the Act goes on talking about the minority institutions by defining them in clause (g) of Section 2. The Supreme Court has consistently held that for an institution to be a minority institution, it has to be established and administered by a minority.
The definition contemplates only the establishment of the institution. The definition is silent about administration. What is mentioned is "established or maintained". "Establishing" or "maintaining" is one thing, and "administration" is totally a different thing. Administration part is missing from the definition. Therefore, the definition is vitiated with reference to Article 30.
There is another definition, and that definition is of 'minority'. 'Minority' is something which, as the Act says, will be decided by the Central Government. How can the Central Government decide about what is stated expressly by and is interpreted, as such, by the Constitution and the Supreme Court. For an institution to be a minority institution, as I said, it is a matter of establishment and administration, and for a minority to be a minority in this country, one attribute is, minorities contemplated in this country are only two, religious and linguistic. The Supreme Court has held that this is not a matter of all-India conception, but since we have linguistic States, the reference to a minority or the concept of minority is referable to a State, not all-India.
SHRI BALAVANT alias BAL APTE (CONTD.): That is the majority view of the Eleven Judge Bench and that is binding on us, until we have a Constitutional amendment. That view says, "A reference to minority is necessarily with reference to a State. A community is a minority community within a State". Now, how can the Central Government decide that? If at all a Government has to decide, it will be the State Government which would decide. Therefore, the definition of minority is such that the Central Government would do what it wants without reference to article 30 of the Constitution and with a clear danger of this action being unconstitutional.
My next objection to this Bill is on a very small point and I will not elaborate on it. There is a sub-clause in clause 25 of this Bill. This clause is given the specious name of "power to remove difficulties". In other words, by this clause the Executive wants to take over the legislative power of the Parliament. This is notorious in Administrative Law. It is known as the Henry viii clause and that is a clause by which the Executive wants to take the initiative from Parliament. This clause is introduced in this small Bill. What are the difficulties that you can't foresee? If such difficulties arise--fortunately, our Parliament meets very regularly--we can find solutions. It is not like the British Parliament in the days of Henry viii. So, why is this Henry viii clause which is draconian in nature? It really demonstrates the attitude of those in power.
Now, the aspect of minority institutions, in a wider context, has to be looked at from the point of the recent history of the field of education. There we find that, during the last 20 years, with the demand for professional colleges growing, with the State not in a position to have as many professional colleges as is necessary to meet the demands of students--it started with Karnataka and Maharashtra picked it up early, followed by Andhra Pradesh and Tamil Nadu--professional colleges became a business; open up private unaided professional colleges, charge any fees you like, don't give any infrastructure, don't give any facilities and earn money. That has happened during the last 20 years. The matter went to the Supreme Court. At one stage, in 1993, the Supreme Court laid down some principle. Since the Government did not do anything, the Supreme Court, in the Unnikrishnan case, laid down that there would be free seats, there would be payment seats and there would be support to the poor by way of the rich paying half the fees of the poor. All that happened. The institutions went to the Supreme Court claiming that they are minority institutions and that they have a right to admit their own students on the basis of the decision of the Supreme Court in St. Stephens case. The Supreme Court tried to find a way out and also, in a way, kept ways out for the institutions, from time to time, providing for what are called the management seats through which money was earned.
Sir, in Mumbai, this concept of minority and majority has been given a perverse meaning when we find that Mumbai is the capital of Maharashtra . So, Marathi is supposed to be the language of the majority. In Mumbai, institutions run by Gujarati-speaking, Sindhi-speaking, Punjabi-speaking and South Indian languages-speaking people are working. They never bothered to claim this. Everybody was governed by the University Act, by the statutes under it, by the UGC and now by the IMC and the AICTE.
SHRI BALAVANT alias BAL APTE (CONTD): Incidentally, I do not want to go into that discussion. The AICTE's approval is considered, by the Supreme Court again, to be above the approval of the university or the UGC. Even if the university approves it, if the AICTE does not approve it, you cannot be a technical institute. Therefore, reference to the AICTE is now inevitable. That is what the Supreme Court has ruled.
THE MINISTER OF HUMAN RESOURCE DEVLOPMENT (SHRI ARJUN SINGH): I would like to point out one thing that each of these courses in this institution had been approved by the AICTE. That should not be forgotten.
SHRI BALAVANT alias BAL APTE: I am not on that. But whether a reference to the AICTE is necessary, undoubtedly it is. I am only on that. Since colleges earn money, we have nothing for the students. From St. Stephens, 50 per cent students will be of a particular community which has established the institution. In Andhra Pradesh, we had the spectacle of students getting converted so that they could get admission. This was brought to the notice of the High Court by the Andhra Pradesh Governemnt that this has happened. They gave statistics. This is almost embracing another religion so that your bigamy becomes legal. There are social ramifications also of this attitude by which colleges were run. In these circumstances, the Supreme Court in the case of T.M.A. Pai and then again in the case of Islamic Academy of Education brought out a formula. They said that there should be a quota for the minority students. It may not be 50 per cent; it may be less or it may be more. If the particular situation of the college is such that there are more minority students, then it need not be 50 per cent; it can be more also. But apart from that, the minority institutions would have their own admission procedures and the management will have certain remaining seats to fill in. * Sir, cases demonstrated in courts....(Interruptions).
SHRI ANAND SHARMA: Will you yield for a minute?
SHRI BALAVANT alias BAL APTE: You will have your say when your turn comes.
SHRI ANAND SHARMA: When I am speaking, I normally yield. Even yesterday I yielded.
SHRI BALAVANT alias BAL APTE: I yielded to you the other day.
SHRI ANAND SHARMA: I will just take a minute. Sir, what is being referred to here are the Supreme Court rulings and that the Supreme court * . This should not go on record. I think it is a very serious matter. It is highly objectionable.
SHRI M.P. ABDUSSAMAD SAMADANI: Sir, it is highly objectionable.
* Expunged as ordered by the Chair.
SHRI ANAND SHARMA: Sir, he is casting aspersions on the highest court of the land. This forum is not meant for that.
MR. DEPUTY CHAIRMAN: I will examine the record.
SHRI BALAVANT alias BAL APTE: Sir, this is not an aspersion.
MR. DEPUTY CHAIRMAN: I will examine the record.
SHRI BALAVANT alias BAL APTE: This is an interpretation to which I am entitled and I have said this before the courts. It is not that I am speaking here. I have told the court that this is what is happening.
SHRI R. SHUNMUGASUNDARAM: He cannot say it here.
SHRI BALAVANT alias BAL APTE: In such circumstances, whether the college is properly run with proper infrastructure, with necessary teachers, with necessary equipment, becomes necessary and there comes the role of both the university and the AICTE.
Now again under the orders of the Supreme Court -- these days the administrations are run by the Supreme Court almost -- every university now has a Master Plan. In that Master Plan, the student population is visualised and according to that the nature of colleges, the number of colleges, the areas where colleges are necessary is to be spelt out by the university. In that, colleges are permitted to grow or permitted to be affiliated. In such circumstances, the needs of the area are irrevocably connected with the establishment of a college.
SHRI BALAVANT alias BAL APTE (CONTD.): Now, if that is so, a university becomes a problem for an institution whose motive is not catering to education. Therefore, now, it is provided for a university of choice. Why? This country has so many universities. Universities function according to certain norms. Every university has its own standards. Mumbai University Pune University Aligarh University India University of Delhi is almost for an apology; the North-Eastern Hill University in Dibrugarh; Pondicherry University ; Assam University , Nagaland University , Mizoram University
Sir, therefore, this choice of university has nothing to do with the independence or the protection of minorities. You want to come out of rules; you want to come out of restrictions which are necessary for purposes of standards. So, go to a remote university. The remote university has no experience of such types of colleges and, therefore, it is very easy for you to convince them. This is not a matter of minority education at all. This is a matter of institutional vested interest. And I am, therefore, opposing it.
Sir, today, insofar as minority institutions and education in them are concerned, there are several unanswered questions which, in fact, it is necessary for the legislature to answer. And if the legislature does not answer, the Supreme Court is there to legislate. While deciding the earlier cases which I mentioned, the Supreme Court has kept five questions unanswered which are really basic to matters of education. I would just point them out and I would urge that, in fact, if the Minister has some interest of education in his mind, let him legislate on this. The first question is: what is meant by religion? Article 30 talks about religious and linguistic minorities. But what is religion? Can a sect or a denomination claim the status of a religion for purposes of claiming minority status? The law is not very clear. Therefore, Supreme Court had referred this issue to a larger Bench. But they did not answer it. The other question is: What are the indices for treating an educational institution as a minority educational institution? Is it a minority educational institution because a person of minority established it? Or, is it a minority educational institution because it is administered by persons of minority? Question is raised; it is not answered. The third question is: where can a minority institution be operationally located? Can such an institution in one State admit students of their community from other States? This has happened. You establish a university in Andhra Pradesh, claiming to be a Tamil minority institution, and then admit students from Tamil Nadu. Can you do that? That is the question which is raised, and which continues to be unanswered. And who becomes a member of the management of the minority institution? Is it those only from one State or from all States? Is it possible for an institution to claim minority status in a State when, in fact, it is managed by persons belonging to other States where they are not in minority?
SHRI BALAVANT alias BAL APTE (CONTD.): The question is, whether such an institution is really a minority institution. Can a non-minority in one State, a linguistic non-minority in one State, claim minority status in another? Sir, there, while discussing or dealing with the question of minority education, it is necessary to answer these questions; otherwise, the law as it stands will be taken disadvantage of by these institutions which even today they are doing.
Sir, there are certain wider implications which I want to point out to this august House, and those implications are, why is this protection to the minorities? Ultimately, if the society is to be a society as a whole, then this protection to the minorities which should lead to that integration of all the sections of the society and, then, Sir, I have to point out two things. One is, the international document which talks about minority rights, particularly the last declaration, namely, the Declaration of the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, 1992. Incidentally, Sir, our country does not have any national or ethnic minorities. We are one people, but we have religious and linguistic minorities. But, in a preamble to this Declaration, what the United Nations say is, "Emphasising that the constant promotion and realisation of the rights of persons belonging to national, ethnic, linguistic, religious minorities as an integral part of the development of society as a whole." So, protection of minorities is an integral part of the development of the society as a whole. If we continue to segregate everything, are we going to achieve that? That is one question on the basis of this.
Sir, we have two reports. One is by the Organisation for Economic Cooperation and Development, which was reported in September, 2001, where they suggest that education system should not just be fair to minorities. They should promote a spirit of equality and tolerance among ethnic and cultural groups. Then, there is a Report on minority rights in education in Estonia , Latvia , Romania and Macedonia
Sir, looking from the national perspective, I believe, while talking only about minority rights, we must consider that ultimately we don't want the minorities to be ghettoised, but it should be a matter of equality and tolerance among all the communities.
MR. DEPUTY CHAIRMAN: Mr. Apte, you have already taken 30 minutes of the allotted time to your party. There is one more speaker from your party.
SHRI BALAVANT alias BAL APTE: Lastly, there is one sad aspect to this. Why is this unnecessary legislation which really is mad, or, is there any method in this madness? Sir, I believe, when I look at the performance of this Government during the last six months, I would say this. You repealed the POTA; you gave prizes to Isharat Jehan, posthumously, who was a terrorist, died along with the terrorists; you offered five per cent reservation on communal basis to the Muslims; you glossed over the threat of Bangladeshi infiltration.
SHRI BALAVANT alias BAL APTE (contd.): There is a reply given by a Minister to a House of Parliament, which is sought to be negated by a statement outside Parliament. Sir, we have an NGO claiming to be an NGO which is, in fact, not an NGO but a private limited company with allegations that it is funded from Saudi Arabia, and the president of that NGO sits on several prestigious committees of the HRD Ministry, and their slogan is accused must be punished. So, we want the law of this country to stand on its head when the law says that an accused is innocent until he is proved to be guilty in a competent court.
¯ÖÏÖê0 ÃÖî±ãú§üß®Ö ÃÖÖê•Ö : ‹®Ö•Ö߆Öê ²ÖŸÖÖ‡‹ ®Ö ÛúÖî®Ö Æîü?
SHRI BALAVANT alias BAL APTE: You want to say that an accused should be punished. I believe, there is a method in this madness. (Interruptions)
¯ÖÏÖê0 ÃÖî±ãú§üß®Ö ÃÖÖê•Ö : ‹®Ö•Ö߆Öê ÛúÖ ®ÖÖ´Ö ²ÖŸÖÖ®ÖÖ ¯Ö›ÍêüÝÖÖ…
SHRI BALAVANT alias BAL APTE: I believe, there is a method in this madness and this kind of an approach will not integrate anybody, but will divide the country. This you are doing only for the purposes of gaining temporarily some votes because those votes are not going to last you for long. Thank you. (Ends)
No comments:
Post a Comment