NCMEI Needs To Integrate With The Mainstream
Did the previous UPA Government, in the first flush of their
unexpected 2004 victory, leaning, as usual, on its traditional minority vote-
banks, go too far out on a limb on minority rights?
Did it pass a law with a possibly unconstitutional key
provision? Did it over- do ‘intent’ in the drafting of the National Commission
for Minority Educational Institutions (NCMEI) Ordinance of November 2004, and
the subsequent Act of Parliament, promulgated in January 2005?
That the UPA was in a hurry to consolidate its minority
favouring credentials, after languishing for eight years in the Opposition is
understandable. And a law on the subject was indeed a promise made in its
Common Minimum Programme (CMP).
The ordinance, and subsequent law was enacted on the basis of Article 30 of the Indian Constitution, which
in part states: ‘ All minorities whether based on religion or language shall
have the right to administer educational institutions of their choice’.
So far, so good, as a solid common-weal provision, but to turn it into a hermetically sealed fiefdom was probably a subversion of the constitutional aim. The question is, was it deliberate or unintentional?
The Indian Constitution does not expressly state that the
regulatory board that oversees such minority educational institutions must also
be peopled exclusively by the self-same minorities.
To do so would have implied that people belonging to the
majority community of Hindus, are not to be trusted to oversee the workings of
minority educational institutions. That the Hindu cannot do so in a fair,
unbiased, and above-board manner. But this is shades of the Jinnah-led Muslim
League that led to the creation of Pakistan!
This baseless slur was therefore unlikely to have been the intention of the
authors of the Indian Constitution, or the broader Constituent Assembly, that
voted it into effect. But it is clearly, either by design, or oversight, or
foolishness, how it turned out, in the letter of the NCMEI Act of 2005.
The danger of this provision enshrined in the NCMEI Act of
2005, that has only now been challenged, is that it legitimises the notion that
a rank- and-file Hindu, a High Court Judge to boot, just because he belongs to
the majority community, is somehow unfit to sit as a member or chairperson in the
quasi-judicial NCMEI. This, even though the candidates may have been successful,
even eminent, in the higher judiciary!
Watching the NCMEI in
practice over almost ten UPA run years, is to see a clear pandering to the
Muslim vote bank, by giving it control over its educational institutions, with
the Government restricting itself to funding all newly created affiliates to
its Central Universities.
But this key discriminatory and divisive provision, of
excluding the Hindus from an executive
role in NCMEI, has come back into contention now, ten odd years after the Act
became law.
The NCMEI Act itself
has been recently challenged via a PIL in the Allahabad High Court, for being
both unconstitutional, and in violation of the principles of secularism that
the UPA otherwise vociferously espouses.
And not only has this PIL been admitted by the Honourable High Court of Uttar Pradesh, but the Court has,
in turn, asked for explanations from the University Grants Commission (UGC),
the Government funding agency for educational institutions, and the Secretary,
NCMEI, incidentally, a Hindu, to be filed before it shortly .
The alleged discriminatory anomaly, could possibly
be unintentional, a consequence of weak
drafting in the law, a common enough problem
with quite a few parliamentary bills. And this Bill, passed in
haste by our legislature in 2005, is nevertheless expected to be at least
judicially examined, if not rectified, by order, now.
This can be done, either by passage of a parliamentary
amendment, of its own volition, in recognition of its past error. This is not
unprecedented, as this Act has been amended quite a few times already. It could
also, of course, be changed as a consequence of the Allahabad High Court’s expectedly favourable
verdict.
However, should neither be forthcoming, the PIL filed by a
group of 11 Hindu lawyers from Lucknow, will most likely go on appeal, all the
way to a Constitutional Bench of the Supreme Court, for final adjudication.
Is it constitutionally correct to exclude Hindus from
sitting in the NCMEI on an unfounded presumption of their bias? The idea, if it
is found to be true intent, is not only offensive, but flies in the face
of equity and justice for all citizens
of India. How does our completely non-communal
military run so well? But if the Central Government starts making such
pernicious distinctions where will it lead us and our unity in diversity?
In a sensitive and crucial area like education, that is,
after all, meant to be open to all comers, this sort of cynical affirmative action, gone wrong, can pervert
the course of institutions financed and aided by the Central Government,
leaving it without effective remedy.
Western countries, almost uniformly born out of the convulsions
of the Christian faith, the centuries of bloody warring between Catholicism and
Protestantism, pogroms against Jews and Muslims, have now become practically
secular. Sickened by this gory past, and
the manipulations of the clergy through recent history, hardly 4% of the Europeans go to Church or practice any
form of active Christianity now.
But even then, in
their bitterly acquired wisdom, and after two horrific world wars, they do not
allow the minorities, whether they be new immigrants from the former colonies,
or indeed historically embedded ones, to dictate the course of their own
educational institutions. This irrespective of whomsoever may have set them up,
or are presently running them, by excluding themselves, the majority, from a
say!
The offensive provision in the NCMEI Act, as per the PIL
admitted, bars anyone that does not belong to a minority, either by religion or
language, to be a chairperson or a member off the NCMEI.
But, since it has the powers of a Civil Court, another, more
understandable provision says that any member or chairperson appointed, must
have been a High Court judge previously. This has not been adhered to, except
for the first and one and only Chairman of the NCMEI, to date.
The Chairman of the NCMEI has been in place from inception
in 2004. He is one Justice MSA Siddiqui, a retired Delhi High Court judge. In
addition, there is only one member listed in 2015, Mr. Zafar Agha, a fellow
Muslim and a journalist.
At other times, Sister Jessy Kurien, Dr. Cyriac Thomas, Dr.
Naheed Abidi, even one Mr. Singh, appear
in sporadic reports as members of the NCMEI. None of their number appear to be
former High Court judges, even though the NCMEI functions as a quasi-judicial
body.
The purpose of the NCMEI, as it has worked out, is to facilitate direct affiliation of minority professional institutions to Central Universities. The NCMEI, under Siddiqui, has certainly been very active in this regard over the years, particularly with reference to Muslim institutions.
It has also famously designated the Capital’s Jamia Millia
Islamia, already appointed a Central University by an Act of Parliament in
1988, a minority institution. This gave it the right to reserve 50% of its
seats for Muslims, and leave the other 50% to the ‘others’. This, instead of
the erstwhile 25% for Muslims, 22.5% for SC/ST students, 2.5% for the
handicapped and 50% for the rest. Why exactly was this done is not too clear,
as it clearly exceeds the brief, and then Union HRD Minister Kapil Sibal, was
none too pleased with the change.
The NCMEI also passed an order in 2010, stating that
minority institutions had to have 30% of its students from its designated
minority, in order to qualify as a minority institution. This, much to the
consternation of Christian schools and
colleges in the North East that did not necessarily have 30% of their number as Christian students, and
feared losing their autonomy. Sometimes arcane affirmative actions like this,
with its reservations ethic, can be awkward; particularly when the prevailing
tendency of the country as a whole is to mainstream everyone.
There have also been controversial if unproven charges that
the NCMEI, under the long-reigning Siddiqui, has been helping channel black
money and hawala funds to finance some of the quickly mushrooming minority
institutions.
On the other hand, Justice Siddiqui has been felicitated by
Mulayam Singh Yadav and the Uttar Pradesh Government for his ‘excellent work’
done with minority, meaning Muslim run institutions, as recently as last year. But then the Samajwadi Party (SP), is no
stranger to corruption charges itself.
The NCMEI theoretically was meant to have a Chairman for a five year
term, plus two members, also from the minority communities, nominated by the
Central Government. But, in practice, it has largely been a solo act run by
Siddiqui over the last ten years, with episodes involving some other members,
including Christians, and a lone Sikh.
To truly make the NCMEI non-partisan, the Act will have to
drop its apartheid provisions. And then, the new improved NCMEI, may well end
up doing much better with Hindus on board.
For: Swarajyamag
(1,522 words)
May 11th, 2015
Gautam Mukherjee
No comments:
Post a Comment