The Real Core Voter Won’t Be Silenced

A few days back, an article titled “Why The Core Hindu Voter is Upset With Modi” was published in the Swarajya magazine. The same writeup also appeared as the cover article in their May 2018 print edition. It analyzed the outlook of the present Modi administration towards Core Hindu issues and surmised that there has been very little progress on any major demand of the Hindu/Hindutva voters since the past 4 years. It quoted several scholars including Dr Konrad Elst and a few other writers/commentators active on social media after obtaining their inputs on the topic.

In response, an article titled “Will The Real Core Hindu Please Stand Up” was published by the same magazine subsequently. This article tried to completely dismiss the concerns raised in the original article and also the opinions of those quoted in it. In fact, the response attributed the opinion of all the interviewees to inherent malice, lust for control of administration and disappointment at being kept out of the corridors of power!

I was one of the people quoted in the original article, and the author who penned the response has *revealed* my true intentions behind the statements I made. I would consider it inappropriate to respond to some of the attributions made in that article. I will therefore skip responding to those. However, I wish to discuss a little on a few concerns raised in the response regarding the agenda of the “Core Hindu” groups.

Insinuations to Ignore

Before I venture further to discuss some of the objections raised against TeamCore, I must make it a point to highlight two of the insinuations repeatedly made against us – both in the article quoted above and also in numerous interactions over social media, especially on Twitter.

  • TeamCore is against ‘Vikas’. those asking for Core do not want the country to develop economically.
    • Of late this allegation has been furthered even more. The new version is ‘Even if they tell you they are not against Vikas, they are lying’.
  • TeamCore really wants the Congress party to come back to power.

The reason I want to mention both these insinuations are because of how ridiculous both of them are. Such meaningless attributions are sure to have one effect – that of raising the curiosity of those who hear them – and because of that precise reason I hope these allegations stay around for a while. Anyone who till date hasn’t been aware of TeamCore, when they hear someone say “Core team does not want the country to develop economically” is sure to be shocked and surprised and ask himself “Is there really someone who thinks like this? Who ARE these Core people?”

That curiosity is bound to bring them to the party and to try and understand what the demands of TeamCore are. And once anyone puts even a cursory effort to understand the ideas of this group the seriousness, and genuineness of the issues, and the ridiculous nature of the allegations – both will become clear.

It is one thing to say that the demands for Core may end up deflating progress on the economic front which in turn may bring back Congress to power. It is a totally different thing to say TeamCore actually wants both these things to happen. If the approach was the first, there could at least be a genuine discussion on why such an eventuality is actually possible. However, if the finger points at the very intention of the vanguards, then its only (albeit very useful) value is in bringing the curious crowd over to TeamCore’s side.

Thank you.

TeamCore Wants Hardcore Hindutva

The article written in response makes a connection between “Core” and “hardcore Hindutva”. I think this connection is misleading at best. Perhaps there has been very little effort at understanding at what TeamCore really wants.

The Core agenda is primarily about setting a level playing field in Indian society so that all are treated at real parity. Once such a stage is set, those seeking to lead a life of Hindutva can happily do so. Other communities that seek to lead a life based on their religious and social principles can equally do so. TeamCore’s concern is about the lack of parity and equal opportunity without which the followers of Hindutva cannot take pride in their dharti, jati and sanskriti!

Let us look at few of the concerns raised, and solutions sought, by TeamCore and understand if there is anything *hardcore* them.

(Note: I use the term hardcore here in the same sense that it was used in the response article – attaching to it a sense of disruptiveness in terms of peace and economic progress. It, of course, need not mean anything like that, in which case there is nothing wrong with the term ‘hardcore Hindutva’)

On the issue that is called out as the one with the most priority – Core1 – the ask is to ensure educational institutions run by the non-minority – Hindus in effect – are provided the exact same rights and privileges as is currently provided to minority run educational institutions. There has never been any sort of demand to take away privileges accorded to minorities or any other community. TeamCore rightly recognizes that the decontrolling of the private educational institutions is the most appropriate way to address the problems plaguing our educational institutions. It is also a no-brainer that Hindu run educational institutions suffer orders of magnitude more control and regulation by Government agencies than minority institutions. How then can asking for parity – asking for the same level of regulation (or freedom from it) – asking for equal privileges – be termed hardcore? Also, it is baffling how bringing about a change which accords privileges and rights to every community in the country can actually have adverse electoral consequences (especially keeping in mind that most of the minority communities enjoying the privileges currently are never going to become a votebank for the ruling BJP).

The demand made via Core2 is for a fair method of access and distribution of public goods based on pro-rata principles – if a religion or community based distribution is inevitable. There has never been a demand that any of the minorities currently enjoying scholarships, loans and other benefits must be devoid of the same – and that these goods must be provided only to the majority community. What is being firmly opposed is blatant sectarianism through the creation of separate channels – case in point being the minority affairs ministry – which can lead to unfair access and distribution. Here again, one fails to understand how a demand for fairness can be termed hardcore – or how the same can have adverse electoral consequences (unless of course those who envision a new structure do a terrible job at conception and execution – nothing can be attempted if such fears exist).

On the issue of Core4, the vanguards are asking for freedom for Hindus to manage their places of worship. In spite of economic hardship over decades now, the average Hindu is still a very dharmic and religious person. Matters related to the temples and mathas he visits still appeal to his heart. How then can asking for liberation of temples from the clutches of corrupt government administrators adversely affect electoral prospects? Minorities in this country already have total freedom in managing their places of worship. Demanding equal privileges for Hindus, therefore, can never be a ‘hardcore’ agenda item.

On Core3 too, the ask from the team has been to move to an open-data based implementation of affirmative action (quotas, reservations and the like) with the ultimate goal of *ending private violence* in Indian society. Can any group desiring to end all forms of private violence in a State be termed hardcore? Is shunning violence hardcore?

Overall, I feel that there is either gross lack of understanding of what TeamCore is championing or there is a deliberate attempt to paint the team with wrong intentions so they are shunned and their voices muted.

(A small note here on the issue of ‘being heard’. The article I quoted above accuses me of wanting to ensure that only the voices of a few intellectuals are heard and that the majority who voted for BJP in 2014 should not have a voice. I chuckle every time I read this accusation. I made the comment about governments needing to have accountability in the context of the repeated attempts of strong supporters of only-vikas-now-not-time-for-core-yet to convince TeamCore to ‘keep calm and trust Modi’. Every time someone raises a Core issue, he or she is told election years are not for raising concerns and that such issues must be brought forward only after ‘true consolidation of power’ occurs. These are clearly attempts to shut voices of concern. And in a strange paradox, we are being accused now of wanting to ensure only our voices are heard!)

Yet another concern raised in the original article was the issue of lack of effort towards rehabilitation of Kashmiri Pandits back to their homelands. Surely those who have been thrown away from their own homes and homelands asking that they be resettled back is not a hardcore demand? Elimination of terrorists and steps towards rehabilitation are related but distinct actions. The lack of ‘mention’ of the former has been pointed out as a failure of TeamCore. It is not the objective of TeamCore to mandatorily provide a report of the government’s achievements. Nor is it the intention of the group to sugar-coat issues. Every single day that a Kashmiri Pandit is spending time outside of his motherland is a day of injustice. Every grouse raised to highlight this injustice is therefore genuine. If the repeated raising of these issues is going to hurt electoral prospects, the right way to set right the damage is to begin actual work on rehabilitation, rather than asking displaced Pandits to make sure they highlight elimination of terrorists as a government achievement every time they ask for justice.

TeamCore and Control

Another major accusation against the members of TeamCore is that they are actually ‘conniving’ individuals who are after power and control of institutions. Since we ‘intellectuals’ have been left out of the corridors of power in the present dispensation, the demands for Core are actually an indirect attempt at restoring that control!!

On the issue of we being intellectuals – I will just let it pass J

Now coming to the issue of ‘control’, let us again revisit some of the Core issues to see if implementing any of them will actually lead to a scenario as is being feared.

On Core1, as the astute @realitycheckind has rightly observed, minority educational institutions have a “regulatability” of 1 out of 10. In other words, the amount of control that a government agency can exercise over a minority institution is close to 0. On the other hand, a non-minority aided institution has a regulatability of nearly 9 and an unaided non-minority institution stands at 8. In summary, Hindu institutions are under extreme government control while non-Hindu ones are almost completely free.

If the vision of Core1 is implemented, Hindu educational institutions too will enjoy almost complete freedom from control and management. If one implements such a policy, where exactly is the scope for the policy makers to exercise control or assert influence over institutions? The field of education lays the foundation for the future of any society. The students we churn out from our schools and colleges go out and shape society a few decades down the line. Any ‘intellectual’ worth his salt wanting to control policy or society would find it but inevitable that he exercise control over educational institutions. By asking for complete freedom for educational institutions TeamCore has shown how much control it really wants to exercise!

A similar argument lies in the area of Core4. The proponents of ‘free Hindu temples’ are actually asking that none, except those with ‘skin in the game’, be allowed to manage temples. This is orthogonal to asking for control over these institutions.

The claim that TeamCore is unsettled because of the lack of opportunity to exercise control, enjoy power or shape future of institutions is therefore baseless.

Anti-poor TeamCore

This is once again an oft-repeated allegation that those wanting the RTE Act to be abolished are actually anti-poor. I will only make a few comments on this issue.

It is baffling that the supporters of RTE amongst the Right Wing actually think there is no substitute to the model envisaged in the RTE on providing free education to our country’s poor. TeamCore demands removal of RTE on three primary grounds

  • Illegal application on only majority run educational institutions
  • Unfair financial burden on majority run private educational institutions
  • Extreme regulation – again applicable only to majority run private educational institutions.

Since the honorable Supreme Court itself, in ‘Unaided Rajasthan Schools vs Ors’ and again in ‘Pramati’ has held that the whole RTE Act is non-severable, there is no option but to rescind the whole Act. What this does NOT mean, however, is that there must not be any new education policy or Act that replaces the RTE.

A new Act that takes away the three major anomalies highlighted above would be most welcome to TeamCore. A simple voucher based system in which the value of the voucher is decided based on fair terms would be the simplest and most effective way to implement free education for the poor.

On the other hand, the existing Act has created innumerable problems for the children of the poor and underprivileged.

  • A lottery based admission system which does NOT actually guarantee every poor child free education.
  • No process for accommodating children who lose out during the lottery!
  • A bureaucracy-ridden admission process in which RTE kids do not get to start classes even 6 months into the year, which creates a learning-gap between them and the rest of the children.
  • A no-detention policy which has led to a disastrous drop in the quality of teaching, and learning.
  • Weak implementation rules, leading to false claims from well to do parents which is denying genuine kids a chance at free education.

The list goes on and on. And note I have not highlighted any of the problems from the schools’ point of view.

Anti-core warriors must realize Education is also an infrastructure issue. It is a ‘soft-infra’ issue. It is as critical, if not more, as roads, water, lighting and cooking gas. 5 years of inaction on this critical development item, while letting the unfair and sectarian Act of the previous regime to continue is nothing short of disaster.

TeamCore and Window-of-Silence

In the run up to the recent Karnataka Assembly elections, the BJP came out with an election manifesto in which the party gave some assurances, for the first time, on the issue of temple management. It has promised to ensure there will be no interference in management of temples and also that the earnings of the temples will not be diverted for any other cause.

Such a promise is a clear outcome of sustained demands from relevant stakeholders, including TeamCore. If these issues were totally irrelevant, as is being made out to be, there was no reason for the party to include it as a significant item in its manifesto. This small, yet significant, success shows that a sustained effort at educating the electorate on Core issues is surely bound to yield results.

For similar reasons, it is imperative that TeamCore does not adhere to any “window of silence” during election years, although it in principle supports right wing parties. Election years are the ones where lack of progress on any issues, especially significant ones, is highlighted and political parties are made to take a public stance. TeamCore believes in a society based on Equality of Law. Given the lack of awareness currently amongst the majority, it is imperative these issues are highlighted continuously, awareness is raised, and people are made to realize their importance.

TeamCore will certainly ‘keep calm’. TeamCore will, however, not ‘keep quiet’.

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Approaches to Affirmative Action

Apple from the Hills

Consider a hilly area near the Himalayas somewhere in North India. Owned entirely by the local Government, a special variety of Apple grew there. Every year, only a few hundred apple grew and there was always heavy demand for the same. After harvest, the Government, with all its noble intentions, gave away the apples for free – on a first come first serve basis.

Over few years, a section of the citizens started complaining that they never get to have the special apples. It turned out that those who lived near the foot of the hills always managed to get to the Government distribution center on top of the hill before those who lived further down in the plains. Hence the folks from the plains never got to taste the delicious apples.

Medicinal Lake

In another part of the country, there existed a beautiful lake whose waters had special medicinal properties. It never dried throughout the year and always had crystal clear mineral water. A bath in the lake cured people of various types of skin diseases. The success rate was 100% and therefore the citizens of nearby places sought to have bath in this lake to cure their diseases.

Over time, it so happened that the villagers surrounding the lake turned to bullying visitors from far off. They started threatening visitors and prevented many from taking bath. The villagers felt only they should use the lake. The visitors from far off started complaining to the Government that they did not get the opportunity to take bath due to the fear of the villagers and rid themselves of their diseases.

Library for the blind

In yet another region in the country, there existed a library for the blind. Many books, written in Braille, were available in the library and many visually challenged people from around the region made good use of the collection.

Some anti-social elements from the nearby villages turned ruffians and started damaging the library. They started barging into the place and tore up many of the books. Patrons used to be threatened by these rowdies and it became a nightmare for people to sit peacefully and enjoy the books.

Different forms of Social Justice

In each of the three cases, the Government had to come up with some solution to ensure that there was ‘social justice’ or ‘affirmative action’ so that all interested groups, in each case, were dealt with fairly.

What would be the correct/ideal way to provide social justice in each of these cases?

In the first case of the special apples, the resource in question – the apples – were finite. What was at stake was exhaustible. The problem in this case was that of scarcity. The way to ensure that the folks from the plains also get to enjoy this resource was to ensure a fair distributionAn ideal way would be to come up with a list of all interested groups – the plains-folks and the hill-folks – and ensure a pro-rata distribution between them.

In the second case of the medicinal lake, the resource in question – the lake itself – is inexhaustible. The problem in this case was that of access. Therefore the right way to ensure justice in this case was to ensure fair opportunityThe Government could come up with regulation that ensures no citizen who wants to have a bath in the lake is ever denied the opportunity to do the same. Rules about timing of visit, sections of the lake that are open for bathing, fees to be charged can all be decided by the Government and the same can be made applicable equally to all.

In the third case of the library for the blind, the resource in question – the library – was exclusive in nature. The problem in this case was that of danger. The right way to ensure justice in this case was to offer fair protection. The Government could strengthen security around the library and make sure the interested stake holders – the blind patrons – can use the resource peacefully.

Mapping to #Core

The above examples are intended to explain three key demands of #TeamCore.

In the area of #Core2 – the situation is similar to the example of the special apples. Public goods provided by the Government – scholarships, loans, fellowships and so on – are all exhaustible resources. But they are interesting to ALL sections of society. The only fair way to handle them is to distribute them pro-rata.

If you create separate programs of distribution to specific groups, it will lead to favor. And eventually incentivise the non-favoured groups to move into the pampered group.

In the area of #Core1 – the situation is similar to the analogy of the medicinal lake. When resources are non-exhaustible, like in the case of opening and administering educational institutions, the only fair way to handle them is to create EQUAL opportunity/access. If a special favour is extended to some groups, it only means making it tougher for the other groups to access the same. In the long run, it demotivates the losing group from even accessing the resource. In other words, the favoured group takes over the resource.

In the area of #Core5 – the situation is similar to the analogy of the library for the blind. The resource in question is exclusive to a group. Within limits of public peace, health and morality, there must be complete protection for the group to consume the resource (or say practice its beliefs/rituals). Lack of support in this case, for any group, translates effectively to a punishment for the said group.

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).

Conclusion

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.

Summary

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.

References:

  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)

Introduction

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.

Conclusion:

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.

References:

  • 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