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S. Gurumurthy
The
post-Partition Indian Constitution-making efforts
seem to have been driven more by idealism unrelated
to reality than by practical wisdom. In hindsight,
it would appear that the issue of establishing
durable relation between Hindus and Muslims -read
Minorities -as structured in the Indian Constitution
was not conceived from long-term, future perspective.
It was based on a narrow, short term quick-fix
model to get over the immediate partition psychology.
More critically, the majority-minority relation
-read Hindu-Muslim relation -in its form in the
Constitution was evidently conceived and structured
to address the psychological dents and deficits
in the confidence of the Muslim leadership in
the national -read Hindu -leadership, such dents
having been caused by the distorted, but powerful,
anti-national and anti-Hindu message and mission
of the Muslim League to Muslims in pre- Partition
politics.
Thus,
the Majority-Minority relation in the post-Partition
India was a victim of the pre-partition tensions
between the nationalists and Muslims and thus
suffered from all the listless pre-partition appeasement
techniques of the nationalists to soften the separatist
character of the Muslim League. This relation
born of the tensions of the pre-partition politics
took the shape of constitutional relation between
the Majority -read Hindus -and Minority -read
Muslims. Thus, distorted the Hindu-Muslim relation
of the past, not the future that avoids the distortions
of the past, became the basis of the constitutionally
sanctioned Majority-Minority relation in post-Partition
India. This pre-partition distortion has been
politically accepted and legislated in the Constitution
of political India. Thus the failed prescription
to avoid partition pre-Partition became the constitutional
basis for national unity post-Partition. Despite
its failure to produce the desired results decades
after the Constitution took effect, so far it
has not been studied, appreciated, critiqued,
or handled by the intellectual India to assess
whether it has been able to achieve national integration
through the assimilation of both the majorities
and the minorities into a harmonious nation.
Following
Partition, the idioms and phrases that the pre-
Partition politics had generated changed, but
the psychology of the pre-Partition days continued.
And the relationship of the Minorities -read Muslims
-to the Majority -read Hindus -as distorted by
the partition politics was smuggled into the Constitutional
relation between them through the misconceived
notions of secularism. Secularism was already
a misfit in Hindu civilisation. The original Indian
constitutional understanding of secularism was
essentially a transplant from the experience of
Christendom and adopting it amounted to experimenting
with that alien experience in India, which was
a product of an entirely different, inclusive
spiritual experience. Thus, from the start, secularism
as it evolved in the Christendom and adopted in
India without adaptation to Indian conditions
has been a mismatch to the Indian way of life,
and more, it was also misconceived from the start
and misinterpreted by vote- bank politics and
misapplied in India. A dispassionate analysis
of secularism in its origin and its practice in
India is long overdue.
In
Christendom, secularism was the concept of the
separation of state and church. But the separation
is not separation of faith ' from rule, but separation
of the powers within the same faith. In Christendom,
both the state and the church owed their loyalty
to the same religion. Even now the Church of England
is headed by the titular head of Britain, the
Crown. In Christendom, secularism was an issue
between the state, which was essentially Christian
and the Christian Church and not between any Christian
majority and non-Christian minority. In substance,
in its origins, secularism was an issue between
the state and the religious establishment within
the same faith, and thus not an issue between
majority and minority. In contrast, historically
all Indian states -save that of the Emperor Ashoka,
who established the only theocratic state on this
soil- have always been religion-neutral. There
never existed a faith- based State in Indian history
other than Ashoka's. Y-et; even the faith-driven
Ashoka, as his edicts show, guaranteed freedom
of faiths in a manner unknown to human civilisation
till then or even later. In India, traditionally
kings could never interfere with the beliefs of
the people. The beliefs of the Indian people have
been diverse. Indians never believed in one God.
They believed in multitude of Gods. So, accepting
other ways of worship is natural to the Hindu
civilisation. Even if there were no Muslim or
Christian community in India, the Indian state
would have been faith-neutral. Thus, secularism
is not, and can never be, an issue of majority
and minority in India here or elsewhere. Yet in
India, secularism has been distorted to mean precisely
what it is not; it has been made into an issue
concerning the relation between the Majority -read
Hindus -and minorities -read Muslims.
Theoretically
thus, secularism has nothing to do with majority-
minority issues. A fortiori, it has nothing to
do with the special minority rights devised under
the Constitution. Secularism, as understood in
modem parlance and based on the experience of
Christendom, defines the character of the State
as just a faith-neutral institution. It must always
be remembered that secularism was a product of
all-Christian nation States and not of multi-religious
nation States or societies. So, the concept of
faith-neutral State as the essence of secularism
did not originate in Christendom. In its origins,
the secularism of Christendom was not separation
of faith from the State but only the separation
of the Church from the State. The faith-neutral
character of secularism was a later development
with the arrival of legitimised irreligiousness
or agnosticism in modem-west. In any event secularism
was not, and was never intended as, a rule of
arbitration between the majority and the minority
in the religious sense of the two terms.
But,
unfortunately, in the Indian debate on secularism,
the issue of minority rights has been constitutionally
confused with, and politically linked to, the
secular character of the Indian state. This is
a clear -in some sense, even an intended -distortion.
This happened essentially because the pre-Partition
debate on Hindu- Muslim relation was reborn as
debate on secularism after Partition. While, theoretically,
secularism, in its truest and genuine sense, is
an inseparable and inalienable part of the character
of the state as a religion-neutral institution,
the special minority rights -even if these were
justified in the beginning and up to some point
in time, like reservation for weaker sections
-cannot be an eternal element or feature of any
Constitution. It can only be a transitional, time
bound, arrangement, which will obviously need
to be calibrated and phased-out when the minority
overcomes its perceived and psychological backwardness,
becomes self-confident from within and gains trust
and confidence in the majority and finally integrates
with the majority as an equal. Correspondingly
it also rests on how the majority generates confidence
in the minority and assimilates it into the national
mainstream. Actually, the institution of special
rights to a minority militates against the secular
character of the State. The genuinely secular
character of the state in the sense of the state
being neutral to religion and religious issues
is the very essence of a representative State.
Seen in this light, special right for any section
of the people is inconsistent with a representative,
section-neutral state.
Another
issue, which has been deliberately mixed up and
confused with the issue of secularism and minority
rights, is the issue of minority identity. In
fact, constitutional recognition of any separate
identity and enforcing that identity weakens,
and is destructive of, the secular foundations
of the state. Non-interference in religious matters,
which is integral to the secular character of
the state, implies protection of the idea of identity.
But explicitly 1 promoting -by granting special
rights -special identity of any section of the
society, be it the majority or the minority, is
theoretically injurious and destructive of the
idea of a faith-neutral and sectional-identity-neutral
state. A secular democratic state knows only one
identity for its people and that is as citizens
with equal rights. It knows no other identity.
Any other sectional identity constitutionally
recognised and mandated and made enforceable,
is only at the cost of the secular character of
the state. At least, this is the theoretical position
of the faith-neutral secular state.
This
distortion in the concept and practice of the
theory of minority rights as mixed up and, in
fact, messed up with the concept of secularism
occurred partly because the majority-minority
relation in India has been historically an extension
of the colonial and pre- Partition psychology
and political process into the scheme of the Constitution
of India. .In pre-Partition India, all issues
of faith were essentially Hindu-Muslim issues.
The process of framing the Constitution of India
could not get over the hangover of the pre- Partition
psychology and Partition, nor could the practice
of post- Partition politics do it. The interface
between the Hindu faiths and the Islamic faiths
during the colonial period, being a product of
mutual suspicion ~nd distrust promoted in the
main by the Muslim League, had become substantially
adversarial. In fact, it is almost admitted by
the Supreme Court that the majority-minority relation
in India as structured in the institution of minority
rights was a continuity of the pre-Partition Hindu-Muslim
issues. The Supreme Court traced the conceptual
origin of the minority rights in the Constitution
in St Xavier's case [AIR 1974 SC 1389 at 1413]
speaking through Justice H.R. Khanna, the Court
said:
"75.
Before we deal with the contentions advanced before
us and the scope and ambit of Article 30 of the
Constitution, it may be pertinent to refer to
the historical background. ...The closing years
of British rule were marked by communal riots
and dissensions. There was also a feeling of distrust
an~ the demand was made by a section of the MusliIrts
for separate homeland. This ultimately resulted
in the Partition of the country. Those who led
the fight for Independence of India always laid
great stress on communal amity and accord. They
wanted the establishment of a Secular State wherein
people belonging to different religions should
have a feeling of equality and non-discrimination.
Demand had also been made by a section of people
belonging to various minority groups for reservation
of seats and separate electorates. In order to
bring about integration and fusion among different
sections of population, the framers of the Constitution
did away with separate electorates and introduced
the system of joint electorates, so that every
candidate in an election should have to look for
the support of all sections of the citizens. Special
safeguards were guaranteed for minorities and
were made part of the fundamental rights with
a view to instil a sense of confidence and security
in the minorities. Those provisions were a kind
of a Charter of rights for the minorities so that
none might have the feeling that any section of
the population consisted of first class citizens
and others of second~class citizens. The result
was that the minorities gave up their claims for
reservation of seats. Sardar Patel, who was the
Chairman of the Advisory Committee dealing with
the question of minorities, said in the course
of his speech delivered on February 27,1947:
"This
Committee forms one of the most vital parts of
the Constituent Assembly and one of the most difficult
tasks that has to be done by it is the work of
this Committee. Often you must have heard in various
debates in British Parliament that have been held
on this question recently and before when it has
been claimed on behalf of the British Government
that they have a special responsibility -a special
obligation -for protection of the minorities.
They claim to have more special interest than
we have. It is for us to prove that it is a bogus
claim, and that nobody can be more interested
than us in India in the protection of our minorities.
Our mission is to satisfy every interest and safeguard
the interests of all minorities to their satisfaction."
(The Framing of India's Constitution. B.
Shiva Rao, Select Documents, Vol. II p.66). It
is in this context of that background that we
should view the provisions of the Constitution
contained in Articles 25 to 30. The object of
Articles 25 to 30 was to preserve the rights of
religious and linguistic minorities, to place
them on a secure pedestal, and withdraw from the
vicissitudes of political controversy."
It
is evident from the historical background to Articles
29 and 30 of the Constitution traced by the Supreme
Court that the constitution-making process was
taking place under the heavy pressure of Muslim
distrust which had led to Partition and the continuation
of that psychology in the form of demand for separate
electorates; and, that -that the pre-Partition
mutual distrust between the Hindus and Muslims
-was the reason for the special dispensation provided
for the minorities. So, the nationalist leadership
was under the pressure of the special circumstances
of the time. This is clearly established by the
speech of Sardar Patel, which testifies to the
pressure exerted by the British interests. These
interests were teasing the country and the national
leadership about her capability to ensure protection
to the minorities. Shiva Rao clearly admits that
the constitutional provisions on minority rights
were intended 'to satisfy every interest'. While
the national leadership succumbed to the British
pressure to guarantee special rights to the minorities
in India, no one seemed to have asked the most
obvious question, namely, what the British did
to protect the Hindu minorities in Pakistan, who
were about 20% of the total population of West
Pakistan before Partition and were under mass
exodus to India -actually it is now less than
2%!
So,
without a long-term vision and national perspective
and caught in the pressure of the finite situation,
the nationalist leadership of India devised a
constitutional scheme for minorities, which later
caused, thanks to judicial interventions and innovations,
a reverse discrimination against the Hindus. This
precisely caused in the reverse what, according
to Justice Khanna quoted above, the constitution-makers
wanted to avoid, namely, the feeling that any
section of the population consisted of first class
citizens and the other of second class citizens.
Now, considering that the majority communities
are the victims of the special rights granted
in favour of the minorities, the majority indeed
feels that it consists of second- class citizens.
This is evident from the fact that many communities
that are part of the majority are trying to shed
their majority identity and search for minority
identity. This is a clear indication of where
the advantage of first class citizenship lies
in the Indian polity of today and who enjoys the
benefit of the status as the first class citizen.
Again,
the charge of the British mal-intervention between
Hindus and Muslims as the reason for mutual suspicion
and distrust would have been valid for defining
and deciphering pre-Partition political games
in which the Indian nationalists lost out to the
Islamist leaders and had to accept Partition.
But even afterf'artition, considering the quality
and character of the constitutionally devised
interface between Hindus and Muslims -which was
mirrored into the relation between Hindus and
the minorities in general -the same mutual suspicion
and distrust became the foundation of the constitutional
relation between Hindus and the minorities -read
the Muslims in the main. In fact, the general
relation between Hindus and the minorities has
been structured on the model of the Hindu-Muslim
relations of the pre-Partition times. Thus, the
constitutionally devised scheme seemed to extend,
durably, the suspicion and distrust, which dogged
the Hindu-Muslim relation, into the future relationship
of Hindus with other minorities. Given the forces
and philosophy that drove the country to Partition,
the people of India would have rightly expected
that post- Partition India would get rid of the
distortions of the pre-Partition days. But this
is precisely what did not happen and following
Partition, both the constitution-making process
and constitutional functioning in India continued
to nurture the psychology of mutual suspicion
and distrust, which distorted the Hindu-Muslim
relation in pre-Partition India, as the basis
for the constitutional relation between Hindus
and the minorities. The mutual suspicion and distrust
spoiled the political relation between Hindus
and Muslims in particular. So even though post-Partition
India claims to detest and depart from the distortions
of pre-Partition Indian polity, in substance,
and even in form, it has internalised, in the
Constitution of India, substantially the same
distortions arising out of mutual suspicion and
distrust that stymied the national polity in pre-
Partition India.
Consequently,
the constitutionally devised relation between
Hindus and the minorities has been reduced to
an adversarial relation between the two faiths
and communities. The constitutional scheme allows
very little play of trust in majority Hindus by
the minorities. So, the majority Hindus, instead
of allaying the fears of Muslims and promoting
confidence in them, opted for the easy way out
and went out of the way to please the minorities
-read Muslims -by offering them special rights.
Thus, in retrospect, the pre- Partition suspicion
and distrust between Muslims and Hindus seems
to emerge as the un-spelt reason for the extraordinary
constitutional provisions, particularly Articles
29 and 30 of the Constitution. Thus, the working
of the constitutional relation between the Hindu
majority and the minorities has gradually yielded
adversarial relation between the two in politics
and in the public domain. In this adversarial
positioning, the Hindu majority seems to be at
the receiving end. Having conceded rights to the
minorities which the majority does not have under
the Constitution, it is faced with the spectre
of various Hindu communities renouncing their
Hindu identity and faith to claim minority status.
There is an exodus from the Hindu fold to the
special safety net which the Constitution has
created for the minorities. Thus, the constitutional
provisions that have disbalanced the relation
between Hindus and the minorities have gradually
turned it into an adversarial relation. Such is
the result of the pre-Partition generation of
mutual suspicion and distrust between Hindus and
Muslims becoming the principal drive of the constitutionally
devised relation between Hindus and minorities.
On
top of it, the intellectual India, which doubles
as the secular India, began to articulate all
distortions of the pre-Partition days as virtues
of secular polity. Everything in the Muslim League
politics that was detested in pre-Partition India
as divisive and disruptive came to be accepted,
and even adored as a legitimate part of minority
politics, in post-Partition India. The majority-minority
relation became central to this distortion. This
distortion promoted and perverted intellectualism,
even as protests rooted in nationalist thinking
mounted against it. All that the separatists in
the pre- Partition days said and did to rationalise
the Partition became the logic and the agenda
of secular India to de-legitimise the nationalist
protest. The fundamental reason for this is the
continuance of the psychology of Partition that
has been written into our Constitution in the
form of the perverted notion of majority-minority
relation; this perversion has been even further
deepened in the actualisation of the constitutional
provisions in politics and even in judicial pronouncements.
This paper is intended to explain this distortion
in legal and constitutional terms in the main
and also to indicate its political side effects.
I.
The dis-balancing of Hindu-minority relation in
the Constitution and the role of judiciary in
accentuating the imbalance despite the dissenting
judgement by Justice T .L. Venkatarama Aiyar and
the suggestions based on high wisdom from Dr.
Gajendragadkar, the former Chief Justice of India,
to reinterpret or amend Art. 30 of the Constitution:
The
issue of minority rights, particularly the special
rights provided to minorities under Articles 29
and 30 of the Indian Constitution, has been often
a subject of intense debate in public domain.
The
relevant part of Article 29 of the Constitution
which grants special right to the minorities states
that "any section of the citizens resident
in the territory of India or any part thereof
having distinct language, script or culture of
its own, shall have the right to conserve the
same". Even though the main Article does
not limit it to the minorities, the head note
of the article, which reads 'Protection of interests
of minorities', has the effect of limiting it
to the minorities. It is not clear even now whether
the rights under Article 29 are available to non-minorities
also.
The
relevant part of Art. 30 states:
"
All minorities, whether based on religion or language,
shall have the right to establish and administer
educational institutions of their choice."
The
rights granted under Articles 29 and 30 are undeniably
rights available only to the minorities, not to
the majority communities, even though the Constitution
is not a Hindu- majoritarian, but a secular, Constitution.
This places the Hindu communities at a disadvantage
vis-a-vis not just the minority, but the
secular state itself.
At
one point the Central Government did give an assurance
to the judiciary that the majority community would
not be placed at a disadvantage. In State of Kerala
vs. Very Rev. Mother Provincial [AIR 1970
SC 2079] the Supreme Court had to deal with the
issue of the equality between the Majority and
Minority Educational Institutions. Justice Hidayatullah
who delivered the judgement on behalf of the Court
stated:
"The
claim of the majority community institutions to
equality with Minority communities in the matter
of establishment and administration of their institutions
leads to the consideration whether the equality
clause can at all give protection, when the
Constitution itself classifies the Minority communities
into a separate entity for special protection
which is denied to the majority community. This
is not a case of giving some benefits to minority
communities which in reason must also go to the
majority community institutions but a special
kind of protection for which the Constitution
singles out the Minority communities. This question,
however, does not fall within our purview as the
State, at the hearing announced that it was not
intended to enforce the provisions of the law
relating to the administrations against majority
institutions only, if they could not be enforced
against the Minority institutions." [Para
7] (emphasis added)
Again,
finally, the Court stated:
"The
"High Court has held that the provisions
(except Sec 63) are also violative of Art. 19
(1) (f) insofar as the petitioners are citizens
of Indian both in respect of the majority as well
as minority institutions. This was at first debated
at least insofar as majority institutions were
concerned. The majority institutions had invoked
Art. 14 and complained of discrimination. However,
at a later stage of proceedings Mr Mohan Kumaramangalam
stated that he had instructions to say
that any provision held inapplicable to minority
institutions would not be enforced against majority
institutions also." (emphasis added)
But
that assurance remained on paper; no step was
taken to implement it. This assurance was given
in the year 1970. By 1969 the Congress Party had
already split and acute and unprecedented competition
for votes, particularly for minority votes, had
commenced in the electoral domain marked by ..agmenting
political parties. As a consequence, the minority
political power, which was dormant since the days
of Partition, had turned ascendant and later even
assertive. With the result the assurance given
to the majority totally lost its meaning. Thereafter,
the provisions of the Acts, which protected the
minority institutions, were made inapplicable
to the majority institutions. As a result, the
Constitution of India has become minoritarian
-instead of becoming, as apprehended by some,
majoritarian -in character. More importantly,
the minoritarian character of the Constitution
has been perversely interpreted to mean as the
secular character itself!
The
imbalance in the original constitutional scheme
for structuring the relation between the majority
and the minorities was accentuated and even deepened
by a series of judicial decisions expanding the
scope of minority rights under Art. 30 and by
de- linking the cultural rights under Article
29 from the educational rights under Article 30
of the Constitution. Article 29 of the Constitution
granted to all sections of citizens of India having
a distinct language, script or culture of their
own the right to preserve the same. Article 30
of the Constitution granted to all minorities,
whether based on language or religion, the right
to establish and administer educational institutions
of their choice. One view was that the educational
rights of minorities under Art. 30 were intended
to facilitate the exercise of the right to preserve
their language, script or culture granted under
Art. 29; and, the other view was that since the
rights under Art. 30 are qualified by the word
'educational institutions of their choice', the
rights under Art. 30 cannot be limited to the
rights granted under Art. 29. In the Presidential
Reference on the Kerala Education Bill, the Supreme
Court took the view that the educational rights
under Art. 30 are independent of the cultural
rights under Art. 29.
The
only dissent to this view -which appears to be
the more correct view now considering the repeated
need to scrutinise the scope of the constitutional
rights of minorities -was expressed by Justice
T. L. Venkatarama Aiyar, who said that such a
view would place the minority in a more favoured
position than the majority communities. The majority
opinion expressed by the Supreme Court in the
Reference of Kerala Educational Bill and the subsequent
decisions of the judiciary expanding the scope
of the rights of the minorities under Art. 30
heightened the imbalance between the majority
and the minorities in the constitutional scheme.
The dissenting views of Justice Venkatarama Aiyar,
which judicial philosophy would regard as the
brooding appeal to the judicial conscience in
future, have actually proved to be a brooding
appeal to the judicial conscience of India. The
appeal of Justice Venkatarama Aiyar seems to have
had its impact in some of the recent decisions
of the Supreme Court; these decisions seem to
be concerned at the licentious rights given to
minorities under the Constitution, which has created
an imbalance in the majority- minority relations.
This is explicitly manifest in the most recent
pronouncement of the Supreme Court.
A
survey of the judicial decisions on minority rights
indicates that more than the secular governments
of the day it is the judiciary, which has tended
to expand the scope of the minority rights and
make it much wider than what the constitution-makers
could have intended. When the government pleaded
that the provisions of Art. 30(1) should be limited
by the scope of the cultural rights specified
in Art. 29, as otherwise the minorities would
enjoy more rights than the majority community,
the judiciary held that the minority rights under
Art. 30 (1) should not be limited by the scope
of Art. 29 and that Art. 30 stands independent
of Art. 29. Again, whenever the governments pleaded
before the judiciary that the normal powers which
the government exercises in respect of the educational
institutional belonging to all should be allowed
to be , exercised in respect of minority institutions
also, the judiciary almost held that no action
of the government should have the effect of denying
aid to such minority institutions to ensure compliance
with any of the regulations made by the government.
Such denial of aid, the Courts seem to have held,
would mean abrogation of the rights under Art.
30. Thus, more than the executive, it is the judiciary,
which has expanded the scope and content of the
minority rights under Art. 30 (1) of the Constitution.
'Later,
some rethinking began to develop in judicial circles.
In .' his Tagore Law Lectures on Indian Parliament
and Fundamental Rights, Dr. P.B. Gajendragadkar,
a highly reputed Chief Justice of : India, expressed
the view:
"The
right to establish and administer educational
institutions which is guaranteed by Art. 30 is
in substance a right to safeguard the language,
script and culture of the minority concerned.
It is conceivable that a linguistic or religious
minority may start educational institution of
its choice solely or mainly with the object of
preserving its own language, script and culture."
[pp.
54-57]
This
view was unfortunately rejected by the Supreme
Court in St. Xavier's case [AIR 1974 SC
1389] despite the fact that in this case itself,
two of the judges, Chief Justice A.N. Ray and
Justice Palekar, had said -in fact had implicitly
warned:
"If
the rights under Art. 29 and 30 are the same then
the consequence will be that any section of the
citizens, not necessarily linguistic or religious
minorities, will have the right to establish and
administer educational institutions of their choice.
The scope of Art. 30 rests on linguistic or religious
minorities and no other section of the citizens
of India has such a right."
This
is a clear judicial admission -and in fact a judicial
warning 0 the lawmakers -that the special rights
of the minorities are special) only to the minority
and the majority does not have that right. H.
M. Seervai, a great constitutional jurist, in
his monumental work) on the 'Constitutional Law
of India', dismissed Dr. Gajendragadkar's view
saying that
"
...it is unnecessary to consider Dr. Gajendragadkar's
views in detail, beyond saying that, first, that
they do not proceed on an analysis of the terms
of Articles. 29 and 30, but on what he believed
to be the intention of the framers of the Constitution
which he then read into Art 29 and 30, a procedure
which is contrary to the settled principles of
construction." [Constitutional Law of
India by H.M. Seervai, 3Ed. Vol. I, p. 963].
Later
in 1972, in his Jawaharlal Nehru Memorial Lecture
on he Philosophy of National Integration under
Chapter 6 entitled, The role of universities in
National Integration', Dr. Gajendragadkar once
again reverted to the subject of special ninority
rights and said: .
"1
am, however, anxious that the problem should not
be politicalised, but should be considered in
the context of academic considerations without
inducing political overtones. May I earnestly
suggest that the University Grants Commission
and the State Education Ministers should, with
the co-operation of Vice- Chancellors and the
I. U. B., evolve a healthy consensus after a frank
and full discussion of the pros and cons of the
problem; failing that, the said authorities may
consider whether it would be appropriate and advisable
to move the Supreme Court to reconsider its decisions,
or to move the Parliament for a suitable amendment
of Art. 30 (1) which may save the present supervisory
and regulatory jurisdiction of all the Universities
in respect of the colleges affiliated to them."
Neither
the purport of the framers of the Constitution
that they iid not intend to grant such special
right was considered valid for Interpreting the
two articles in a combined form, nor the creation
of a highly adversarial majority-minority relationship
as a result of reading the two articles separately,
seems to have had an impact on the judicial interpretation
of the two articles. The net result of the situation
is that the majority-minorities relation structured
in the two articles is weighed heavily against
the majority communities. The manner in which
H.M. Seervai concluded the discussion in his treatise
-
"...
where special rights are conferred on minorities
alone, it is obvious that the minorities and majorities
are treated differently and a plea for uniformity
between the minorities and the majority contradicts
the very concept of special minority rights.
"...is
a poetic articulation of the distortion and the
consequent imbalance in the minorities-Hindus
relation in the Constitution. This also showed
the extent to which the elite intellectual opinion
was, and continues to be, divorced from the popular
opinion as, we shall see later." [Ibid. p.
964]
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