The ‘Core’ Judgement in Re Kerala Education Bill

As part of a short discussion on a previous article on Twitter, a reference to the dissenting judgement of Justice Venkatarama Aiyar in ‘Re Kerala Education Bill vs Unknown’ came up.

Since that dissenting judgement has many aspects in line with the #Core1 approach, this article attempts to highlight the various views of Justice Aiyar, along with short notes (where needed) and relevant portions of his judgement.

(Notes are made as bullet points. Portions of judgement quoted in italics)

Minority institutions have no inherent right under Article 30(1) for recognition from the Government

  • There is no inherent right embedded in Article 30(1) that mandates a Government to grant recognition to a minority institution
  • Under Article 30(1), both purely-religious and secular institutions can be opened. If such a right of recognition is accepted, it then means that the Government has to mandatorily recognise purely religious schools, which goes against the stated goal of the Constitution to be secular. Hence no such right can be read into Article 30(1)

“The educational institutions protected by Art. 30(1) might impart purely religious
instruction. Indeed, it seems likely that it is such institutions that are primarily intended to be protected by Art. 30(1). Now, to compel the State to recognise those institutions would conflict with the fundamental concept on which the Constitution is framed that the State should be secular in character. If institutions which give only religious education can have no right to compel recognition by the State under Art. 30(1), how could educational institutions established by minorities and imparting secular education be held to possess that right ?”

Policy behind Article 30(1) is to ensure the ‘majority’ do not destroy the ‘minority’

  • The main purpose behind Article 30(1) was to ensure that the majority in a State do not impair the rights of the (religious and linguistic) minorities
  • Meant to aid minorities to preserve and develop their own culture
  • The State cannot prevent minorities from establishing educational institutions

But what is the policy behind Art. 30(1) ? As I conceive it, it is that it should not be in the power of the majority in a State to destroy or to impair the rights of the minorities, religious or linguistic. That is a policy which permeates all modern Constitutions, and its purpose is to encourage individuals to preserve and develop their own distinct culture..

In other words, the minorities should have the right to live, and should be allowed by the State to live, their own cultural life as regards religion or language. That is the true scope of the right conferred under Art. 30(1), and the obligation of the State in relation thereto is purely negative. It cannot prohibit the establishment of such institutions, and it should not interfere with the administration of such institutions by the minorities

Article 30(1) is a shield for minorities and not a sword against the majority

  • Meant to be used be minorities to protect themselves from any attack by the majority.
  • Not meant to be used to compel the majority to grant concessions (such as recognition, exemption from laws, etc)

The true intention of that Article is to equip minorities with a shield whereby they could defend themselves against attacks by majorities, religious or linguistic, and not to arm them with a sword whereby they could compel the majorities to grant concessions

Summary of State’s position vis-a-vis Article 30(1)

(1) The State is under a positive obligation to give equal treatment in the matter of aid or recognition to all educational institutions, including those of the minorities, religious or linguistic.
(2) The State is under a negative obligation as regards those institutions, not to prohibit their establishment or to interfere with their administration

Exemption from certain provisions/laws will lead to discrimination

  • If unstated provisions are read into Article 30(1), a reverse discrimination will ensue
  • This is because there will be laws which the majority will be forced to comply while the minorities stand exempted

While recognised institutions of the majority communities will be subject to clause (20), similar institutions of minority communities falling within Art. 30(1) will not be subject to it. The former cannot collect fees, while the latter can. This surely is discrimination

No ground for a more favoured position for minorities

In my opinion, there is no justification for putting on Art. 30(1) a construction which would put the minorities in a more favoured position than the majority communities”

Conclusion

With the advantage, now, of being able to look back at this critical segment of Education – we can confidently state that the dissenting judgement of Justice Venkatarama Aiyar was indeed the correct approach on issues related to Article 30(1). While it completely upholds the protection offered to minority institutions, it nevertheless recognises that the purpose of Article 30(1) was only limited to ensuring that the minorities are treated on par with the majority, and not with the intention of according any special privileges.

The fear of reverse discrimination that J Aiyar expresses has, as we all now know, come true!

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