Issues with the Karnataka HR & CE Act

Recently, the Karnataka Government sent out a circular seeking feedback from the public over the issue of taking over of Hindu mathas and (additional) temples. In the face of a strong backlash, the circular was withdrawn within a day. Even as the entire HR&CE Act was struck down as being unconstitutional by the Karnataka High Court on multiple occasions, the Government continues to use it to gain control over, and manage, tens of thousands of temples throughout the state. This has been made possible due to the stay over the High Court judgement given by the Supreme Court till the final decision on the appeal being heard by it.

In this context, let us look at a few provisions in the Act which appear contentious and warrant a wider discussion.

The Karnataka HR & CE Act was first passed in 1997 and notified in 2001. Subsequently, it has undergone 2 amendments, the latest being in 2011. The latest version of the Act can be found here.

Let us take a look at few of the provisions in this Act, and the conflicts with Constitutional rights, as also the inconsistencies they bring in.

Section 9-1

Appointment of Archakas 1[and temple servants]1.- (1) The committee of management of a notified institution may with the approval of the Commissioner appoint one or more archakas 1[and temple servants]1 to each temple belonging to the institution

Even though the Government has claimed on various occasions that it does not interfere with the religious practices of temples, by virtue of keeping the veto power on the matter of appointment of archakas and all other temple employees, the Government has ensured it has complete control over the daily running of the temple. Without its approval, no staff can be appointed. This rule is applicable to both ‘notified institutions’ and ‘declared institutions’ – the two ‘types’ of temple takeover provisions in the Act.

It is a no-brainer that appointment of personnel in any institution is a fundamental part of ‘management’ of the same. Therefore, this clause is a direct infringement of the rights guaranteed under Articles 25(1) and 26(b) of the Constitution.

Section 17

Creation of Common Pool Fund.- It shall be lawful for the 1[Rajya Dharmika Parishat]1 to create a fund to be called the Common Pool Fund out of.-
1[(a) contributions made by the notified or declared institutions at the following rate:-
(1) ten percent of the net income in respect of institutions whose gross annual income exceeds rupees ten lakhs;
(2) five percent of the net income in respect of institutions whose gross annual income exceed rupees five lakhs but does not exceed rupees ten lakhs.]1
(b) Grants received from the State Government.

Through this section, the Act takes away up to 10% of the net income of a temple for other ‘charitable’ purposes. Though the subsequent sections of this Act, specifically Section 19, lists a number of noble causes for which this money can be used, the fact remains that this measure amounts to forcibly taking away a portion of the income even if it can be put to good use in the same temple itself. This is a tax on contributions to the temple – without directly saying so.

Section 19-1-a

Section 19-1 lists a number of causes for which the money under the Common Pool Fund can be utilized. Section 19-1-a specifically says the following

(a) the grant of aid to any other religious institution which is poor or in needy circumstances;

In the original Act of 1997 (2001), the phrase “religious institution” was undefined. However, in the subsequent amendment Act of 2007, the definition of this term was introduced as below.

“Religious Institution” means a temple or an endowment and includes a brindavana, samadhi, peetha, paduka or any other institution established or maintained for a religious purpose

Notice the last part of the definition which goes as

or any other institution established or maintained for a religious purpose

It does NOT explicitly state that this “other institution” has to be Hindu. This leaves a potential opening for the funds to be used for non-Hindu institutions.

Section 23-a-i

Section 23-a deals with the conditions under which a temple can come under the control of the Government via the “notified institution” route.

Sub-clause (i) says this specifically

(a) all Charitable Institutions and Hindu Religious Institutions which on the date of commencement of this Act are in the sole charge of the State Government 1[under the provisions of Mysore Religious and Charitable Institutions Act, 1927]1 or for the benefit of which.
(i) any monthly or annual grant in perpetuity is made from public revenues: or

This means any temple which receives a monthly or annual grant from the Government automatically comes under the control of the Government. There does not have to be a reason of mismanagement, or abandonment, or any other cause for the control to be taken over.

Now under Section 19 where details of the use of the Common Pool Fund is listed, the following is mentioned under sub-section (a)

19-(a) the grant of aid to any other religious institution which is poor or in needy circumstances;

The combination of these 2 powers leads to a very dangerous situation. The Government could use the money from a rich temple, setup a grant to another poor(er) temple, and take over the latter temple simply because it received a grant. The money from one temple can lead to the takeover of another temple.

Theoretical – but fully plausible scenario!

Section 25-3-ii

In the beginning of the Act, under Section 11-1, the following is stated

(1) The Archaka of the temple, and if there are more Archakas than one, the Pradhana Archaka shall be an ex-officio member on the committee of management of the temple

Subsequently, under Section 25-3-ii, the Act says

(3) No person shall be qualified for being appointed as member of the Committee of Management of a notified institution unless,-
(ii) he has attained the age of twenty five years;

If both these sections are read together, then it imposes a condition that a person less than 25 years cannot be appointed as the archaka of a temple. This is an unreasonable restriction (although it may not have been intended to be this way).

Section 43-8

Under this Act, if the Government discovers “mismanagement” of a temple, it can declare the temple as a “declared institution” and takeover complete control of the temple. Any existing management committee shall be dissolved.

The duration for which the Government shall hold reigns is defined under Section 43-8 as follows

(8) Every Notification issued under sub-section (5) or (7) shall remain in force for such period as may be specified therein and which may be extended further, so however that the total period shall not exceed five years from the date of the first notification, or till a new Committee of Management is formed to the satisfaction of the State Government whichever is earlier

The Government can therefore take over control for up to 5 years.

However, if the temple is a “notified institution” instead of a “declared institution” then when “mismanagement” is identified, Section 29 applies

29. The 1[the Rajya Dharmika Parishat or the Zilla Dharmika Parishat]1 shall appoint an officer of the State Government as Administrator in place of the Committee of management dissolved or suspended under sub-section (1) or (3) of section 28 or after the expiry of the term of office of the Committee under section 26 3[or for any other reasons]3 and till a new Committee of Management is constituted or for a period of six months whichever is earlier.

If a temple is a “notified institution” the takeover limit is only up to 6 months while for a “declared institution” it is up to 5 years. This is inconsistent logic.

Section 44

44. Effect of Declaration.- Where any Hindu Religious Institution is declared under section 42, the Committee of Management of the Institution by whatever name called shall from the date of such declaration stand dissolved and its administration shall vest in the State Government to be regulated in the manner hereinafter provided.

Under this section, the complete “administration” of a “declared institution” is taken over by the Government – a blatant violation of Article 25(1) and 26(b).


The Karnataka HR&CE Act is laden with numerous inconsistencies and violations of religious rights of Hindus. Hopefully, the Supreme Court will hear the appeals at the earliest and quash this Act and uphold the judgement of the Karnataka High Court – thereby returning control of Hindu temples back to its devotees.


Educational Rights According To The Makers Of Our Constitution

Over a number of articles, we have seen the various phases of development of Article 30 during the framing of our Constitution. In particular, we have looked at how the text of the Article, as it stands today, was derived heavily from a memorandum submitted by a group of minority leaders during the Second Round Table Conference of 1931. We have also seen how the members of the Constituent Assembly, especially Dr B R Ambedkar, interpreted the text and highlighted how the rights are always meant to be applicable for all communities.

In the present article, we shall see the Draft articles prepared by various members of the Constituent Assembly on the topic of ‘Educational Rights of Minorities’ that covers Article 30. The aim of this collation is to show how almost all members of the Constituent Assembly intended the rights to be protective in nature, as also meant it to be equal in terms of applicability. In other words, the rights under Article 30 were never meant to be as a privilege to only the minority communities.

The inputs of the Constituent Assembly members will be covered under three sections.

Draft Articles on Fundamental Rights

The cultural and educational rights of minorities fell under the category of Fundamental Rights and hence the responsibility of charting it out fell on the Fundamental Rights Committee (FRC) of the Constituent Assembly (CA). When the FRC started its work, it depended upon the Draft Articles prepared by four of its members to initiate the task. The four members were Professor K T Shah, K M Munshi, Dr B R Ambedkar and Harnam Singh.

Responses to the Questionnaire distributed by the Minorities Sub-Committee

Out of all the Fundamental Rights, those concerning the minorities were handed over to a sub-committee for finalization. In its meeting on the 28th of February 1947, this sub-committee framed a short questionnaire and circulated it amongst all its members soliciting responses before the 31st of March 1947. The questionnaire was as follows.

  1. What should be the nature and scope of the safeguards for a minority in the new Constitution?
  2. What should be the political safeguards of a minority: (a) in the Centre (b) in the Provinces?
  3. What should be the economic safeguards of a minority: (a) in the Centre (b) in the Provinces?
  4. What should be the religious, educational and cultural safeguards for a minority?
  5. What machinery should be set up to ensure that safeguards are effective?
  6. How is it proposed that the safeguards should be eliminated, in what time and under what circumstances?

Responses to all questions were not mandatory, nor was it necessary to respond in the above manner itself. However a number of the members did respond to the questions and a sub-set of them addressed question number 4 – which covered educational rights.

We shall also look at the responses to question number 4 given by the members. (Only those of the responses which addressed the issue of granting rights to run educational institutions have been included in this article. Few other responses, which do not directly address this topic, although related to educational rights, have not been reproduced).

Memorandum submitted by various groups and individuals

The Minorities Sub-Committee received representation from various individuals, both part of the CA and other individuals, and various groups interested in minority rights. Relevant sections of their inputs have also been collated in this article.

Document: A Note On Fundamental Rights by K T Shah, December 23, 1946

Section: Draft Clauses

  1. The culture, language and script of specified religious or communal minorities, as well as of the different linguistic areas in the Union, or in any component part thereof, shall be duly protected, and safeguarded, without prejudice to any public encouragement or support being given for the development of a single national language for official or public intercourse throughout the Union as the official national medium of intercourse and expression in all public documents, before all public bodies, or tribunals, and for all public purposes.

Note: The theme of this draft Article, as clearly seen, is of a protective nature.

Document: K M Munshi’s Note and Draft Articles on Fundamental Rights, March 17, 1947

Section: Draft Articles, Article VI

  1. Citizens belonging to national minorities in a State whether based on religion on language have equal rights with other citizens in forming, controlling and administering at their own expense, charitable, religious and social institutions, schools and other educational establishments with the free use of their language and practice of their religion.
  2. No legislation providing State-aid for schools shall discriminate against schools under the management of minorities whether based on religion or language.

Note: Two salient features of these draft Articles are the emphasis on “equal” rights and the focus on non-discrimination against minorities.

Document: Dr B R Ambedkar’s debate in the Constituent Assembly, 8th of December 1948.

Section 1: Debate on amendments to Draft Article 23 moved by Pandit Thakurdas Bhargava

The first point that I would like to submit to the House as to why the Drafting Committee thought it necessary to alter the language of paragraph 18 of the Fundamental rights is this. On reading the paragraph contained in the original Fundamental Rights, it will be noticed that the term “minority” was used therein not in the technical sense of the word “minority” as we have been accustomed to use it for the purposes of certain political safeguards, such as representation in the Legislature, representation in the services and so on.

The word is used not merely to indicate the minority in the technical sense of the word, it is also used to cover minorities which are not minorities in the technical sense, but which are nonetheless minorities in the cultural and linguistic sense. For instance, for the purposes of this article 23, if a certain number of people from Madras came and settled in Bombay for certain purposes, they would be, although not a minority in the technical sense, cultural minorities…..

The article intends to give protection in the matter of culture, language and script not only to a minority technically, but also to a minority in the wider sense of the terms as I have explained just now. That is the reason why we dropped the word ‘minority’ because we felt that the word might be interpreted in the narrow sense of the term, when the intention of this House, when it passed article 18, was to use the word ‘minority’ in a much wider sense, so as to give cultural protection to those who were technically not minorities but minorities nonetheless…

Note: Dr B R Ambedkar had prepared his own set of Draft Articles on Fundamental Rights. However, they did not contain any explicit Article related to educational rights of minorities.

Section 2: Proceedings of the Meetings of the Advisory Committee of the Constituent Assembly, April 21-22, 1947

Dr B R Ambedkar: “There are two propositions in this. The first is whether every minority, religious, communal or linguistic, should have the liberty to establish its own educational institutions. That is the first question. The second proposition is this: Whether if the State decides to give any grant, it should treat all such institutions equally. If these two propositions are kept in mind, I think we should be able to arrive at some formula….”

Note: Dr Ambedkar’s emphasis here too is on giving minorities liberty to establish institutions and also treating them equally, especially of course of matters of State aid.

Document: Harnam Singh’s Draft on Fundamental Rights, March 18, 1947

Section: Draft Articles

  1. The State shall protect the culture, language and script of the various communities and linguistic areas in India
  2. A minority school shall be established on the application of a national supported by the persons legally responsible for the education of at least 40 children of the minority provided that these children are nationals and that they belong to the same school district and that they are of the age at which education is compulsory and that their parents intend to send them to the said school. If at least 40 of these children belong to the same denomination or religion a minority school of the denominational and religious character desired shall be established on such applications.
  3. Legislative or administrative measures providing state aid for schools shall not discriminate between schools under the management under different religious denominations.

Note: In these Draft Articles too, the focus on non-discrimination and therefore safeguards for minorities is clearly visible.

Document: Letter from K M Munshi circulated to the members of the Sub-Committee on Minorities, April 16, 1947

Section: Draft submitted as part of the letter

  1. Citizens belonging to national minorities in a State whether based on religion on language have equal rights with other citizens in forming, controlling and administering at their own expense, charitable, religious and social institutions, schools and other educational establishments with the free use of their language and practice of their religion.

Note: In this note too, K M Munshi reiterated the importance of equal rights for all citizens.

Document: Reply to the Questionnaire circulated by the Minorities Sub-Committee, M Ruthnaswamy, March 31, 1947

Section: Question – “What should be the religious, educational and cultural safeguards for a minority?”

  1. (i) grants-in-aid to schools and other educational institutions maintained by these religious communities and in which their religion is taught.
  2. (iii) schools for minorities, where their religion and their culture would be cultivated, should be maintained by the government in areas where the majority of the population belongs to a cultural ore religious minority.

Note: M Ruthnaswamy insisted on the State running minority schools under its control.

Document: Reply to the Questionnaire circulated by the Minorities Sub-Committee, P K Salve, April 3, 1947

Section: Question – “What should be the religious, educational and cultural safeguards for a minority?”

4(b)(2) No discrimination on the grounds of religion, creed, caste or sex in the matter of admission to services in any educational institution of secular character (All communal education should be abolished).

Document: Memorandum on Minorities by Shyama Prasad Mookerjee, April 17, 1947

Section: Minority Rights

1(a) All minorities shall have equal right to establish, manage and control at their own expense charitable and religious institutions, and start educational schools and colleges with freedom to use their own language and to practise their own religion therein.

Note: S P Mookherjee makes it explicitly clear that all communities, including minorities, shall have equal rights.

Document: Memorandum on Minorities by Ujjal Singh and Harnam Singh, March/April, 1947

Section: Religious, educational and cultural safeguards

4(x) The maintenance of minority educational institutions shall be provided for according to the same principle as the maintenance of other State educational institutions.

4(xv) Religious minorities in the country shall have a right to establish autonomous institutions for the preservation and development of their national culture and to maintain special organizations for their welfare so far as it is not incompatible with the interests of the State, the organizations having power to levy the taxes for the maintenances of such institutions.

Note: Two things that stand out in this proposal are the emphasis on equal treatment and the over-riding of the autonomy granted if a greater national interest arises.


The contents of each of the above quoted documents clearly indicates that the founding fathers of our nation, the architects of our Constitution, had only equal rights and privileges in mind, when it came to granting rights to establishing and administering educational institutions. While this article reaffirms the same from excerpts of the Draft Articles, Responses and Minutes of the discussion meetings, we have already seen from previous posts how the same intention permeates even in the Constituent Assembly debates and also the text of the Article.

It is unfortunate that, over the past several decades, Article 30 has been interpreted very narrowly, thereby denying the majority community the rights that are granted to the non-majority. It is time this anomaly is corrected explicitly and a level playing field for all citizens, irrespective of their religion or community, is provided for.


  1. Constituent Assembly Debates, 8th December, 1948
  2. The Framing of India’s Constitution, B Shiva Rao, Select Documents 2 – Universal Law Publishing

The 93rd Amendment vs Article 15(1)


This is part-2 of a two-part article that attempts to show why the 93rd Amendment of the Indian Constitution, that inserted Article 15(5), is discriminatory and against Constitutional principles.

The first part shows the origins of Article 15(1) and explains how its intent was to have an over-arching principle of non-discrimination across all provisions, and how only certain classes are exempt, in order to provide benefits needed for their upliftment.

The key summary of part-1 is as below

  • Article 15(1) is the underlying, foundational, principle that mandates non-discrimination.
  • Special beneficial provisions can be made for a few classes
    • For women and children, via Article 15(3)
    • For socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes, via Article 15(4)
  • No other class or community in our society can similarly be exempt from the non-discriminatory principle.

Background of Article 15(5)

By mid-2005, the troika judgements of ‘TMA Pai – Islamic Society – PA Inamdar’ by the Supreme Court had established that the privileges guaranteed to religious and linguistic minorities under Article 30(1) does not include a blanket protection from having to admit students belonging to under-privileged sections of society. In other words, the SC said that the State can insist, and take away, a small percentage of seats in schools and other educational institutions to further any larger national cause.

In TMA Pai, the Supreme Court said the following..

It would be open to the state authorities to insist on allocating a certain percentage of seats to those belonging to weaker sections of society, from amongst the non-minority seats”

Against this background, and to overcome the direction, the 93rd Amendment to the Constitution, that inserted Article 15(5), was conceived.

The components of Article 15(5)

First, let us read the entire Article 15(5) together

Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled
Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by
the State, other than the minority educational institutions referred to in clause (1) of article 30

Let us split this clause into 3 parts for better analysis

Part A:

This part ensures the State can make special provisions related to admissions in educational institutions for the benefit of certain classes

Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled
Tribes in so far as such special provisions relate to their admission..”

  • This part grants a benefit
  • The benefit is applicable to socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes

The only key question regarding this part, from a discrimination point of view, is whether the targeted classes can avail such benefits. The answer is yes – due to Article 15(4) – as noted above.

Part B:

This part describes an obligation – that of providing seats to ensure the benefit described in Part-A materialises.

“…to educational institutions including private educational institutions, whether aided or unaided by the State…”

This obligation is imposed upon

  • State run educational institutions
  • Private educational institutions, both aided and unaided

The inclusion of private educational institutions has been contested hotly in Pramati and other cases, and the Supreme Court has held that such an obligation does not violate any other fundamental right, especially the right to occupation under Article 19(1)(g)

From a discrimination point of view also, since no particular class of citizens are targeted under this part, there is no direct conflict.

Part C:

This part describes who gets exempted from the obligation imposed in Part B.

“…other than the minority educational institutions referred to in clause (1) of article 30″

Article 30 talks about religious and linguistic minorities and hence those two classes are exempted from having to admit students as determined by the State.

  • This part is in clear conflict with Article 15(1) which prohibits discrimination based on religion, race, caste, sex or place of birth.
  • Unlike women and children, for whom discrimination is allowed via Article 15(3) and ‘socially and economically backward sections and SCs and STs’, for whom discrimination is allowed via Article 15(4) – there is simply no provision anywhere in the Constitution which allows special provisions to be made for religious and linguistic minorities.

Remember: The legal justification for such an exemption CANNOT be drawn from Article 30 because the Courts had already held (via TMA Pai et al) that no such protection related to admissions is available under Article 30. In fact, it is good to recall that the very purpose of the 93rd amendment is to correct the lack of protection from Article 30. Otherwise the need for such an amendment itself would not have come up.


Therefore, it is clear Article 15(5), introduced via the 93rd amendment goes against the non-discrimination principle and hence against our Constitution.

Post Script:

The only way the 93rd amendment would survive the test of non-discrimination is if Article 15 had a sub-clause that stated something like the following

Nothing in this article shall prevent the State from making any special provision for religious and linguistic minorities”

This could have been the real Article 15(5) and the current 5th sub-clause would perhaps then be Article 15(6).

The Intent Behind Article 15(1)

This is part-1 of a two-part article that attempts to show why the 93rd Amendment of the Indian Constitution, that inserted Article 15(5), is ultra vires (of the Constitution, of course). In this first part, the reasoning provided by the makers of the Constitution in creating Article 15(1) will be detailed. In the second part, using this reasoning and the text of the Constitution, at attempt will be made to highlight why Article 15(5) is not sustainable.

The Advisory Committee

The Constituent Assembly formed several committees to handle various aspects of Constitution making. One of the important committees thus formed was the “Advisory Committee on Fundamental Rights, Minorities, etc”. Its scope was to come up with the draft provisions for fundamental rights and provisions for minority rights.

This advisory committee constituted two sub-committees:

  • Sub-committee on Fundamental Rights
  • Minorities Sub-committee

The agenda of each of these committees is self-evident from their names.

The two sub-committees submitted interim, and subsequently full, reports to the parent Advisory Committee for further refining and adoption. On the 21st and 22nd of April 1947, the Advisory Committee held detailed meetings to achieve the same.

Safeguard against discrimination

In the morning session of the meeting on the 21st April, various provisions giving benefits to minorities and depressed classes were being debated threadbare. Sri Alladi Krishnaswami Ayyar then raised a serious objection to the whole structure of the fundamental rights. He pointed out that the entire section was evolving into a section of ‘discriminatory provisions’ and hence urged that this be remedied.

Is this a chapter on fundamental rights or is it a chapter of discriminatory provisions? Let us be quite clear on that point….


You may have all protection to minorities, you may have all protection to any particular class, but this fundamental principle that there shall be no discrimination on account of race or colour among the citizens of this Union must be placed in the forefront….


There are differentiations made, for example, when you want to have a certain proportion for the depressed classes. By all means have it. But they must be treated as an exception of the fundamental principle recognised, namely that there shall be no discrimination subject to this….

This argument of Sri Ayyar quickly found support among the various other members of the Committee. Sri K T Shah then clarified that discrimination as being discussed can only mean that it is in the mould of a special advantage and cannot be a discrimination against anybody.

Discrimination is generally used in the sense of discrimination against. It does not mean discrimination in favour of a special advantage…….It is not discrimination against anybody

At that point, Sri C Rajagopalachari suggested that a special clause be inserted right at the front to highlight this fundamental principle of non-discrimination.

I suggest a very small draft immediately if it is acceptable. We do not require a committee ‘There shall be no discrimination against any citizen on grounds of religion, race, caste, language or sex‘.


The only thing to be provided is beneficial provision for some.

‘Provided that this shall not prevent any provision being made for the convenience of particular classes like women or backward groups‘”

Dr B R Ambedkar fully agreed with this approach, and in fact further explained how the entire section would operate.

Provision can be made this way. Clause 4 may start like this: ‘Subject to the provisions hereinafter following, there shall be no discrimination against any citizen on grounds of religion, race, caste, language or sex’.

K M Munshi, M Ruthnaswami and other members all agreed to this approach.

Birth of Article 15(1)

Due to the above deliberations, the clauses were redrafted and refined, and, in the report submitted by the head of the committee, Sri Sardar Vallabhbhai Patel, on the 23rd of April 1947, the following clauses came into being.

“Section titled “Rights of Equality”

4(1) The State shall make no discrimination against any citizen on grounds of religion, race, caste or sex.

4(2)(a) and 4(2)(b) <………..text……….>

Provided nothing contained in this clause shall prevent separate provision being made for women and children.”

Current state of these clauses

Some further refinements were made to the above clauses before their final adoption by the Constituent Assembly. Also, over time, due to amendments, special provisions were inserted for socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

As of today, this is how the provisions exist.

“15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”

Note: Clause 15(4) was added via the Constitution (First Amendment) Act, 1951

Classes enjoying special provisions

For the purpose of part-2 of this post, it is important to remember the following two points

  1. The classes that are provided special provisions under fundamental rights are -women, children, socially and educationally backward classes of citizens and Scheduled Castes and Scheduled Tribes.
  2. Religious or linguistic minorities DO NOT come under the protection of these special provisions.


  • The Indian Constitution
  • The Framing of India’s Constitution – Select Documents – Vol 2
    • Advisory Committee Proceedings, April 21-22, 1947
    • Interim Report of the Advisory Committee on Fundamental Rights, April 23, 1947

The Source Document(s) for Article 30(1)


In a previous article, we had seen how the initial Draft versions of the Indian Constitution prepared by Dr K M Munshi had guaranteed a very different form of educational rights to its citizens. It was based on the Polish Treaty of World War I and proposed explicit, and equal, educational rights to all communities.

3. Citizens belonging to national minorities in a State whether based on religion or language have equal rights with other citizens in forming, controlling and administering at their own expense charitable, religious and social institutions, schools and other educational establishments with the free use of their language and practice of their religion”

However, when this section was referred to the Minorities sub-committee of the Constituent Assembly, what came out was a completely different avatar of this right.

“All minorities, whether of religion, community or language, shall be free in any unit to establish and administer educational institutions of their choice, and they shall be entitled to State aid in the same manner and measure as is given to similar State-aided institutions”

Looking at this drastic transformation, the key question that arises, naturally, is – what is the reference for this altogether-transformed Article?

Minorities Committee of the Second Round Table Conference

Between 1930-32, three round table conferences were arranged by the British Government to discuss Constitutional reforms in India. Out of the three, the maximum representation from the Indian side happened in the second round table conference that took place at London between September and December of 1931.

The majority of the work in this conference was done by two sub-committees – Federal Structure and Minorities.

The Minorities sub-committee was a fairly large committee and was chaired by Ramsay MacDonald. The prominent members of this committee were M K Gandhi, Dr B R Ambedkar, Dr MM Malaviya and HH The Aga Khan.

This committee met on the 28th of September, 1st and 8th of October and then on the 13th of November 1931 for the final time.

The main “stakeholders” of this committee were the Muslims, Indian Christians, Depressed Classes (Dalits), Anglo-Indians and Europeans.

Between the last two meetings of this committee i.e. between the 8th of October 1931 and 13th of November 1931, a lot of separate meetings were held by the various communities involved. The covering note submitted by the chairman of the committee on 18th November 1931 records the fact that a lot of “private negotiations” took place in the time between these two meetings.

Two key developments took place in this interval

  1. Various communities came up with their own memorandum to be submitted to the Minorities sub-committee.
  2. Although an overall consensus on minority rights could not be arrived at, the group of Muslims, Indian Christians, Depressed Classes, Anglo-Indians and Europeans came up with an “agreement” which they presented to the committee for acceptance. However, this agreement was not acceptable to the Hindu and Sikh representatives.

Memorandum on the Claims of Indian Christians

On October 20th 1931, Rao Bahadur K T Pannir Selvam submitted a short memorandum to the committee to be considered as the demands of the Indian Christian community.

Along with a few observations on the role played by Gandhi on this issue, the note placed forth three main demands from the Christian community. The third of the demand, which is relevant to this post, is produced below

“3. Persons belonging to any religion shall have a right to establish, manage and control at their own expense, charitable, religious and social institutions, schools, and other educational establishments, with the right to exercise their religion therein; and where specific sums of money from public funds, as set out in the State budget, or in the Budget of local or other public authorities, are to be devoted to education, religion, or philanthrophy, a due share in the use and enjoyment of such sums shall be secured to these institutions as well”

Joint Agreement by Representatives of many Minority Communities

On the 13th of November 1931, during the final meeting of the Minorities Committee, a joint delegation of Muslims, Indian Christians, Depressed Classes, Anglo-Indians and Europeans came up with an “agreement” which they presented to the committee for acceptance.

The agreement was signed by the leader of each community that agreed with the settlement. HH The Aga Khan (Muslims), Dr B R Ambedkar (Depressed Classes), Rao Bahadur Pannir Selvam (Indian Christians), Sir Henry Gidney (Anglo-Indians) and Sir Hubert Carr (Europeans) were the signatories.

In this agreement, there were 11 different clauses for protection of minority rights. The clause of relevance to this post – clause number 4 – is reproduced below.

“4. The right to establish, manage and control, at their own expense, charitable, religious and social institutions, schools and other educational establishments with the right to exercise their religion therein”

At the end of this agreement, an explanatory memorandum was added. The last point in this memorandum stated the following.

“7. The proposals may be taken as being acceptable to well over 115 millions of people, or about 46 percent, of the population of India”


  • Even a casual observation of Clause #4 in the joint agreement submitted to the Minorities Committee reveals that this particular statement is the source from which the Draft Constitution of 1947-50 derived its Article on Educational Rights.
  • The particular Clause #4 itself was in turn derived from the memorandum submitted by the Indian Christian representatives in the second round table conference. The version of the clause in the memorandum actually asked for “equal rights for all religions”. However, in the joint agreement version, that particular phrase was left out.
  • Originally, these rights were meant to be enjoyed by minorities, a group which also included the ‘Depressed Classes’ or the ‘Dalits’. This is clearly established by the participation, and signature, of Dr B R Ambedkar who represented the Dalits in the conference.
  • The concluding note in the agreement which states that these rights would be applicable to over 46% of India’s (then) population also clearly highlights that the definition of minorities under which these rights applied, including the backward classes amongst Hindus.

Adding on what I had stated in an earlier article highlighting Dr B R Ambedkar’s explanation of the term ‘minorities’ in the Constituent Assembly, the above details clearly establish that Educational Rights in Independent India were NOT meant to be restricted to just religious and linguistic minorities but also included the backward classes as well as racial minorities.


  1. Speeches and Documents on the Indian Constitution – Sir Maurice Gwyer and A Appadorai, Oxford University Press, 1957
  2. Indian Round Table Conference, Proceedings of the Federal Structure Committee and Minorities Committee (Volume 1), GOI, Central Publication Branch
  3. Appendices III and VIII – Indian Round Table Conference, Proceedings of the Federal Structure Committee and Minorities Committee (Volume 3), GOI, Central Publication Branch

SC Medical Colleges Case: Reasonable Grounds for Fear of Bias?

A lot many articles have been written in the past week or so on the developments in the Supreme Court of India with regard to the petition by CJAR seeking the constitution of an SIT to monitor an investigation into a medical college scam. Two excellent articles that must be read in this regard are here and here.

In this present post, I would like to discuss a little about the theoretical grounds for the ‘bias’ that is being feared, due to which the recusal of the CJI was being sought in the petition.

Extrajudicial source doctrine

In many countries, and especially so in the United States, the doctrine of ‘extrajudicial source’ is applied whenever a situation arises where the recusal of a judge is sought for. The principle generally followed is that the judge does recuse from a matter if the possibility of bias arises from an ‘extrajudicial source’.

The concept of ‘extrajudicial source’ has been described well in the matter of Johnson v Trueblood 629 F.2d 287 in United States Court of Appeals, Third Circuit. It says

“Extrajudicial bias refers to a bias that is not derived from the evidence or conduct of the parties that the judge observes in the course of the proceedings”

The origin of the doctrine itself can be traced to Berger vs United States 255 US 22 (1921).

According to this doctrine judges may be disqualified from a case only if the possibility of their bias arises from an extrajudicial source.

In the present case, the situation is not that the matter filed by CJAR was either heard earlier by the judges whose recusal was being sought. Nor is it the case that either the same or related matter was heard earlier and an appeal was being made. In either of such situations, the test of extrajudicial source of bias fails and there would have been no grounds for seeking recusal.

However, in the present case, the possibility of bias is being derived from an FIR filed by the CBI, in which there is a mention about the offenders (named in the FIR) having declared that they are working on “getting the matter favorably settled” in the highest court of the land. Given this fact, the recusal of some of the judges who were hearing the medical cases matter was being sought.

Hence the grounds for fearing bias, in the present case, clearly is derived from an extrajudicial source.

In the present case, both the 5-judge Constitutional Bench that annulled the orders of Justice Chelameshwar and Justice Nazeer, and the subsequent 3-judge bench that dismissed the petition placed far too much reliance on the observations of the SC in the ‘D.C Saxena vs Hon’ble CJI” matter.

In the cited case, the matter of the petitioner was dismissed summarily, following which he filed a writ petition against the CJI alleging bias and sought various remedies including removal of the CJI. The petitioner demanded, during the pendency of his petition, that the CJI not constitute any benches nor allocate work.

It was in response to this absurd demand that the observations of the Constitutional powers of the CJI were made. And clearly, in that matter, the source of the bias was NOT extrajudicial, since it was clearly connected to the dismissed matter of the petitioner.

However, in the present case, like highlighted earlier, the source of the bias that was feared was clearly from an altogether different matter – the CBI FIR and the pointers therein to the pending case before a bench of the SC.

Applicability for administrative matters

This question has been explained very well by Sri Gautam Bhatia in the article cited above. Hence I will not delve into this in any detail. Clearly, there is sufficient ground, due to the setup of the Supreme Court and the powers of the CJI, for fearing possibility of bias even on the administrative side of matters. Hence the request was made.

Such matters have been encountered earlier on administrative issues on the executive side. The general inclination seems to be towards treating administrative and judicial decisions on par in such matters. For e.g. in ‘Administrative Law’, Wade and Forsyth state

..this distinction has long been a vexed issue but submit that it is now clear that in accordance with general principle, the same approach to bias should be adopted to
both administrative and judicial decisions

While the reference in the above cited work is intended towards administrative matter bias in executive and other organs of the Government, there is no reason to deny its applicability in the present case, for the administrative side of things in the SC.

Reasonable Observer Test

In many countries, a ‘reasonable observer’ test is applied to determine whether bias that is feared has a genuine basis or not. If this particular test is passed, then there is sufficient ground to consider that the possibility of bias exists.

The basic premise here is that the reasons being quoted for fearing bias must appear to be valid to a ‘reasonable observer’. Many countries have their own definitions of who is a ‘reasonable observer’.

In Australian jurisprudence, the test is defined thus

whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide

According to Canadian law, the bias must be apprehended by

the reasonable, informed, practical and realistic person who considers the matter in some detail

Irish case law mandates that

(a) reasonable and fair-minded observer must apprehend bias on the part of the

From these definitions, the concept of a reasonable observer becomes quite evident.

In the present case, to arrive at a decision whether a ‘reasonable observer’ can apprehend bias, we need to look at some of the statements in the CBI FIR.

…who assured to get the matter settled in the Apex Court through their contacts…

…and they further engaged….(persons named)….for getting the matter settled in the Apex Court”

However he demanded huge gratification for inducing the public servants by corrupt and illegal means…

The above statements seem to have been the basis for the request for recusal made as part of the petition. The question is – does it cause grounds for fearing bias to any ‘reasonable observer’?

Again, one must remember that it is sufficient for a *possibility* of bias to be apprehended in order to request a recusal. Obviously whether or not there is any truth at all in these allegations is a totally different matter.