Abdicating Legislation to Judiciary?

I was recently reading the book – “The Vision of the Anointed” by Thomas Sowell. While discussing the issue of “Judicial Activism”, the author briefly makes a point about how, in the US, the “anointed” deliberately blur the concept of separation of powers and leave some parts of legislation unclear so that they could use help from their “co-anointed” in the judiciary to get laws the way they want it structured. In other words, deliberate abdication of the responsibility of legislation.

In India too, one can sense a similar strategy played by #IOI. While there may be numerous examples, I will focus on a couple of them related to #Core1 which shows a deliberate abdication from legislation in order to ensure requisite laws framed in the desired way through the courts.

The reasons for such an approach could be multiple

  • Insufficient strength in legislature to pass a (perhaps) controversial piece of legislation.
  • Fear of the move turning out to be electorally unpopular if recorded in black & white.
  • Desire for a contrary interpretation from the courts and legal difficulties in encoding the same in law.

Clause 3 of the Draft Article 21A

In another article, I had detailed how Article 21A of the Constitution came into being. One of the important developments during the drafting of the law was the debate on inclusion of a clause (number 3) which specified that private unaided institutions would not be required to participate in any law in providing free and compulsory education.

“Clause (3) The State shall not make any law, for free and compulsory education under Clause(2), in relation to the educational institutions not maintained by the State or not receiving aid out of State funds”

The bill was sent to the Standing Committee of Rajya Sabha where this particular clause was debated extensively. Finally, the Committee took a strange decision. It said that since the Supreme Court had already commented on this issue (in Unnikrishnan) there is no need to legislate this piece at all!!

“As regards the interpretation as to whether the private institutions should provide free education or not, the Committee is aware of the Supreme Court judgment given in the Unni Krishnan case. This judgment provides the rule for application and interpretation. In view of the judgment, it is not necessary to make a clause in the Constitution. It would be appropriate to leave the interpretation to the courts instead of making a specific provision in black and white.

Here was a new law being made to introduce free education to kids in India, and a legislation about whether or not the private unaided schools of this country would be made to participate in this endeavour was left “to the interpretation of the courts”. In other words, the legislature asked the Courts to make the law on their behalf.

If the logic of an existing judgement is used, then in the very same Unnikrishnan judgement, the honorable court had also declared Education as a fundamental right and therefore Article 21A itself would not have been needed!!!

This was a clear case of legislature abdicating its responsibility of legislating in favour of the judiciary.

The law, without Clause3, was passed in early 2002 and a few months later, the Supreme Court pronounced the TMA Pai judgement. As detailed in a separate article, the SC interpreted various existing legislation, including 21A and other Constitutional provisions, and declared that private unaided institutions can be asked to reserve seats in order to implement laws related to free education. However, TMA Pai went one step ahead and declared that such a responsibility can also be placed upon minority educational institutions.

“At the same time, the admissions to aided institutions, whether awarded to minority or non-minority students, cannot be at the absolute sweet will and pleasure of the management of minority educational institutions ….. 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”

So TMA Pai did give the “interpretation” which the Rajya Sabha Committee wanted. However this interpretation did not go fully well with #IOI. The part about including even minority educational institutions was not as per plan, it would seem. Therefore, a somersault was made on this issue of legislating about the role of private unaided institutions and in 2005, the 93rd amendment to the Constitution added Article 15(5)!!

Article 15(5) introduced specific provisions in the Constitution to ensure all kinds of schools *except minority educational institutions* were to give up seats to implement free and compulsory education programs.

It is quite clear how the legislature took exact opposite stances on its role in legislating depending upon the interpretations made by Courts.

The RTE Act

A second such instance can be seen in 2009 with the drafting of the RTE Act. The Right to Education Act was a comprehensive law comprising legislation on every single aspect of running educational institutions. It includes sections on admissions, infrastructure, teachers, management of schools, examinations and so on. It is obvious that these topics affect every single (type of) school in the country.

In spite of this, the Act makes no reference with regard to its applicability to minority institutions. In TMA Pai the Supreme Court had pretty much brought minority and non-minority institutions on par on many aspects of regulation and management. In light of this, it was very important for such a critical law to make itself clear about its applicability. Yet the lawmakers chose not to do so.

If, hypothetically, the lawmakers had indeed decided to include in the RTE Act a line about it’s applicability to minority schools – it certainly could not have been a blanket statement stating the Act applies to minority schools as well. Such an inclusion would be in direct conflict with Article 15(5) of the Constitution. Therefore, any clarity on applicability would have had to be in one of two forms

“Section 12(1)(c) of this Act shall not be applicable to minority educational institutions”

OR

“All sections of this Act are applicable to minority educational institutions as well, except Section 12(1)(c)”

Section 12(1)(c) is the section in conflict with Article 15(5). Above examples are only representative. Other sections which may conflict would have also have been included in the exemption list.

However, the key point is – with the inclusion of such a clause, the entire Act automatically becomes severable. That is, the law itself makes it possible to apply portions of itself while leaving out few. This is the exact principle used by the SC in Unaided Schools of Rajasthan in declaring that the RTE Act shall not be applicable to unaided minority schools. The same reasoning was retained in Pramati as well and unaided minority schools were also exempted.

Thus, legislation about applicability to minority institutions was deliberately avoided as otherwise, the law would have evolved itself into a severable Act.

We can thus clearly see how legislature abdicates and avoids clarity in making laws in order to obtain desired outcomes without having to expose their own stance clearly.

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Difference in interpretation between Religious Establishment Rights & Educational Rights

I want to highlight a strange difference in interpretation, by our executive and judiciary, of the Rights guaranteed under our Constitution for running our temples (religious establishments) and a section of our citizenry running educational institutions.

Common structure between religious establishment rights and educational rights

There is considerable similarity in the way rights related to religious establishments and educational establishments (for minorities) are coded in our constitution.

  • Both the rights are governed by two sets of Articles in the constitution
  • The first right is in the sense of a generic right. This right has an exception encoded.
  • The second right is a specific right to run the particular establishment.

Let us look at the specifics.

I) Rights related to religious establishments

Generic right

The generic right is provided by Article 25. It is as follows

25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

By this right, all citizens are free to profess and practice any religion.

Restriction to the generic right

A sub-clause under Article 25 itself imposes some restrictions on the above right.

25. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice

By virtue of this, the State can get involved in any economic or other secular activity even if the practice is religious.

Specific right

Under Article 26, all citizens have the right to establish and maintain religious institutions. For Hindus, this translates to temples and mathas.

26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—
(a) to establish and maintain institutions for religious and charitable purposes

We can notice from the wording of Article 26(1) that it is very broad and does not impose any restrictions.

Interpretation of the specific right

Over the years, our governments and courts have interpreted the above rights in such a way that even though the specific right (Art 26(1)) does not have any restriction, the restrictions under the generic right (Art 25(2)(a)) have been read along and hence State interference in management of temples and mathas have been held constitutional.

For e.g. in Pannalal Bansilal Pitti & Ors, the Court said

The right to establish a religious and charitable institution is a part of religious belief or faith and, though law made under clause (2) of Article 25 may impose restrictions on the exercise of that right…….

 The administration of religious institution or endowment or specific endowment being a secular activity, it is not an essential part of religion and, therefore, the legislature is competent to enact law.

Due to this line of interpretation, most of the State Governments in India have taken over management of Hindu temples.

II) Rights related to educational establishments

Generic right

The generic right to establish educational institutions is provided by Article 19(1)(g)

19. (1) All citizens shall have the right—

(g) to practise any profession, or to carry on any occupation, trade or business

Under this right, any citizen can open and run a school, college or any other form of educational institution.

Restriction to the generic right

A sub-clause under Article 19 imposes certain restrictions on the above generic right.

19. (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, 2[nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business…]

As one can see the State can make laws to impose restrictions on running educational institutions, just like it can for any other establishment.

Specific right (for minorities)

Under Article 30(1), minorities obtain rights to establish and maintain educational institutions.

30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice

Once again, we notice from the wording of Article 30(1) that it is very broad and does not impose any restrictions.

Interpretation of the specific right

When it comes to interpreting this particular specific right, governments and judiciary, over the years, have taken an opposite stance when compared with rights related to temples. Here, they have held that the specific right (Art 30(1)) will NOT be governed by the restrictions on the generic right (Art 19(6))

For e.g. in the Pramati judgement, we find the following

Religious and linguistic minorities, therefore, have a special constitutional right to establish and administer educational schools of their choice and this Court has repeatedly held that the State has no power to interfere with the administration of minority institutions…

Due to this, various laws such as RTE, fee-restriction-Acts etc are not applicable to minority institutions.

Conclusion

  • On the issue of temples, the restriction on the generic right is held as good enough to be imposed on the specific right.
  • On the issue of minority educational institutions, the restriction on the generic right is held as not having any impact on the specific right.

Educational Rights for Hindu Minority Communities

This post is part 2 of a 2-part series. Read the 1st one here.

Article 23 in the Draft Constitution

When the Constitution was being drafted, the Rights under Articles 29 and 30 were clubbed under a common Article 23. This Article had 3 clauses. Clause 3 had 2-sub-clauses. The entire Article consisted of clause 23(1), 23(2) and 23(3)(a) and 23(3)(b).

minority-rights-draft-3

Two crucial amendments to Draft Article 23

On the 8th of December 1948, Pandit Thakurdas Bhargava moved 2 important amendments to the above draft. In a significant development, both these amendments were accepted in full by Dr B R Ambedkar.

Amendment 1

The first amendment proposed a re-write of sub-clause 2. The proposed wording was

No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them

While justifying this amendment, Pandit Bhargava laid down his arguments on 3 different aspects

1) The first change was to replace the word ‘minority’ with ‘any section of the citizens’. This was proposed because Pandit Bhargava felt that when it came to educational rights, there should NOT BE any discrimination between majority and minority

In educational matters, I cannot understand, from the national point of view, how any discrimination can be justified in favour of a minority or a majority

2) The second change was to include institutions which received State aid, in addition to those institutions which were run by the State

3) The third, and *critical* change, was to remove the word ‘community’ from the clause and replace it with ‘race or caste’. This was done because Pandit Bhargava felt that whatever was conveyed by the word ‘community’ was already fully captured by the words ‘religion’ and ‘language’. His full explanation on this aspect is given below

Now, Sir, the word ‘community’ is sought to be removed from this provision because ‘community’ has no meaning. If it is a fact that the existence of a community is determined by some common characteristic and all communities are covered by the words religion or language, then ‘community’ as such has no basis. So the word ‘community’ is meaningless and the words substituted are ‘race or caste’. So this provision is so broadened that on the score of caste, race, language, or religion no discrimination can be allowed

As noted above, this entire amendment was accepted by Dr B R Ambedkar and the same was included in the Constitution as Article 29(2)

Amendment 2

This was a change to Article 23(3)(a) which eventually became Article 30(1). Let us look at the ‘before’ and ‘after’ versions of this clause.

Before

All minorities, whether based on religion, community or language, shall have the right to establish and administer educational institutions of their choice

After

All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice

As highlighted, the key, and only, change made here was the deletion of the word ‘community’.

Pandit Bhargava, while debating this amendment, made the following submission

This is an amendment to amendment No. 690. There is not much to be said. The word ‘community’ as I said before has no meaning. No common characteristic can differentiate one community from another which is not covered by the words ‘religion or language’. These words sufficiently cover the field that is sought to be covered by the word ‘community’. Therefore the word ‘community’ has no meaning in that provision and therefore it should be deleted.

The key part of the submission here is the referral to the explanation of the previous amendment. Pandit Bhargava said that the purpose of removal of ‘community’ was because it was sufficiently covered in the remaining words itself.

Dr B R Ambedkar’s explanation of the term ‘minorities’

While finally discussing inclusion of these 2 amendments, some relevant portion of Dr Ambedkar’s speech is extremely important.

While initiating the discussion on the amendments, he said thus

Sir, of the amendments which have been moved to article 23, I can accept amendment No. 26 to amendment No. 687 by Pandit Thakur Dass Bhargava. I am also prepared to accept amendment No. 31 to amendment No. 690, also moved by Pandit Thakur Dass Bhargava

Thus, at the outset, he accepted the two amendments.

Then, Dr Ambedkar gave a detailed explanation of the term minorities. Instead of paraphrasing it, I reproduce relevant portions as-is

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…

I have supplied emphasis in the above quotes to the most important portions of the speech. The following can be gathered from the speech.

By stating that the meaning of minorities is NOT THE SAME as in political safeguards, Dr Ambedkar has clearly stated that the term here goes beyond religious minorities and SC/STs since the entire discussion around guaranteed representation in legislature and services was based on religion (Muslims and Sikhs, especially) and to SCs and STs.

Dr Ambedkar has also clearly stated that these rights are for those who are minorities in the cultural and linguistic sense. Since all religions apart from Hinduism have already been covered under Article 30(1) anyways, the term ‘cultural minority’ would be redundant for them and therefore it is referring to Hindu communities only.

In the third portion of the speech quoted, the highlighted part shows that Dr Ambedkar feared that the word minority would be interpreted in the narrow sense of the term i.e as non-Hindus. Hence he kept referring to the phrase ‘technically not minorities but minorities nonetheless”

We should also remember that when all these discussions took place, all the clauses and sub-clauses were under one single Draft Article (23). Therefore, the explanation of the term minorities provided by Dr Ambedkar is fully relevant to what eventually became a separate Article 30.

One additional point. When Pandit Bhargava defended the removal of the word ‘community’ from Article 30(1), he said his explanation for this was exactly the same as it was for Article 29(2) which means it was meant to be ‘race and caste’ also which was covered under the umbrella term of ‘religion’.

Based on all this distinct evidence, we can safely conclude that the phrase ‘based on religion’ in Article 30(1) not only means minorities when compared across religions, but ALSO MINORITIES WITHIN A RELIGION.

Therefore, communities such as Lingayats, Vokkaligas, Brahmo Samaj and others, who form a distinct minority ‘community’ under the broader Hindu religion also qualify for Rights under Article 30(1) WITHOUT HAVING TO MOVE OUT OF HINDUISM.

References:

  1. Constituent Assembly Debates, Volumes V and VII
  2. The Framing of India’s Constitution, A Study – By B Shiva Rao, First Published 1968

Evolution of Minority Cultural & Educational Rights

This post will be part of a 2-post series where I aim to prove that the makers of our Constitution very much intended to provide Educational Rights to all communities, INCLUDING THOSE WITHIN THE HINDU RELIGION.

The deduction of that intention will be made in the 2nd post of this series. However, in order to get there, it is important to understand the textual transformation of the minority cultural and educational rights in our Constitution during its making.

Draft under Sub-Committee of Fundamental Rights

The first draft of the cultural and educational rights of minorities was prepared by a team consisting of K M Munshi, K T Shah and Harnam Singh. The draft prepared by them was placed in front of the Sub-Committee of Fundamental Rights on the 27th of March 1947.

The Sub-Committee felt that this particular area was better placed under the supervision of the Minorities Sub-Committee and transferred the drafting to this group. On the 19th of April 1947, the Minorities Sub-Committee came up with the first official draft which looked as below

minority-rights-draft-1.png

Clause 18 in the interim report

The Minorities Sub-Committee deliberated further on the above 6 points, and came up with a refined version which came to be included as Clause 18 in the Draft Constitution. In this Clause 18, sub-clauses (i), (v) and (vi) from the first draft were dropped and sub-clauses (ii), (iii) and (iv) remained, with some modifications. Clause 18 looked as below

minority-rights-draft-2.png

It is to be noted that even in the above draft version, clauses 1 and 2 still retained the term minorities.

Article 23 in the Draft Constitution

Further deliberations on the above draft took place on the 1st and 3rd of November 1947 and a refined version of the Article 23 came to be prepared. This looked as below

minority-rights-draft-3.png

The key difference noticeable in the above draft is that under clause 1, the word ‘minority’ had been replaced by ‘any section of the citizens’ and some other changes to the wording had been performed.

Articles 29 & 30 of the Indian Constitution

On the 7th and 8th of December 1948, Draft Article 23 came up for discussion in the Constituent Assembly. 2 key changes took place

  1. sub-clause (2) was re-written. The new sub-clause read
    • No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them
  2. The word “community” was dropped from sub-clause 3(a)
    • Sub-clause 3 (a and b) were moved out as a new Draft Article 23-A

With the above 2 (main) amendments included, Draft Articles 23 and 23-A were approved and included in the Constitution, and finally became Articles 29 and 30.

The Articles now looked as below

minority-rights-draft-4.png

The amendments moved to modify what became 29(2) and 30(1) give some very important clues on the real intentions of the makers of the Constitution. Hence it will be covered in detail in the next post.

Core and the Rationale Behind Equal Rights for All Institutions

This article is a response to the article titled “Jamia and the Rationale Behind Special Rights for Minority Institutions” published by The Wire on the 22nd of August 2017, in which the author has attempted to justify, with several arguments, the need for special status for minority educational institutions. A response is especially important since the author is a well known thought leader on minority rights.

The response will be for several of the claims and arguments made in the article. I will briefly quote or paraphrase the argument made, and then provide a counter response under each heading.

Intent of the Constitution makers

The article quotes the statements of Sardar Patel and G B Pant to claim that the makers of the Constitution always intended to bestow special privileges to minorities.

As part of the same deliberations (The Debates of the Constituent Assembly), while discussing about Article 29(2), Pandit Thakur Das Bhargava had this to say

Unfortunately, there is in some matters a tendency that the minorities as such possess and are given certain special rights which are denied to the majority

In educational matters, I cannot understand, from the national point of view, how any discrimination can be justified in favour of a minority or a majority

When discussing about Article 30(1), Professor K T Shah introduced an amendment to add a sub-clause that read as follows

Provided that no part of the expenditure in connection with such institutions shall fall upon or be defrayed from the public purse; and provided further that no such institution, nor the education and training given therein shall be recognised, unless it complies with the courses of instruction, standards of attainment, methods of education and training, equipment and other conditions laid down in the national system of education.

The above sub-clause bound the rights given under Article 30(1) to the conditions that would laid down under a common national system of education.

It becomes clear from the above discussions and attempts in the Constituent Assembly that there were distinct voices in the house that wanted Equal, and not Special, rights to minorities with respect to educational institutions.

Substantive Equality

The author of the referenced article justifies the special rights to minorities using the reservation policy for under privileged communities.

The authors of the constitution recognised that India needed ‘substantive equality’ and thus they made provisions for reservation in favour of weaker sections and special rights for the minorities

A starting point for reading up on ‘substantive equality’ may be this wikipedia article. However, the concept of substantive equality is only suitable, if at all, in situations where distribution of resources or opportunities, such as seats, jobs and scholarships are involved. In other words, substantive equality can only be applied in zero-sum games. Due to the inherent advantage enjoyed by the majority, if ‘formal equality’ is used in distribution of resources, the minority may never get an opportunity to compete on equal terms and get their share. Hence in many countries, affirmative action, a form of substantive equality, is used.

For e.g. if there are only 100 seats in an institution, and if merit is the only criteria, then children belonging to the dalit castes (for e.g) whose families have never had the opportunity to grow up in an ecosystem that enables children to crack entrance exams may never make the cutoff. In such situations, reasonable reservations under substantive equality does help to an extent.

However, the establishment and maintenance of educational institutions is a completely non-zero-sum game. It is no ones argument that allowing the majority to run institutions under the same rules and regulations is going to deny the ability to do so to minorities. Further,  the field of educational institutions, though charitable, is still a competitive market. Under the non-zero-sum game theory, it is well recognized that if one of the parties involved is subjected to “restriction of alternatives”, then that party eventually is forced to go with the opposite party, to maximize payoff.

In the present case, by not specifying any explicit rights to the majority, subjecting them to a myriad of educational laws and rules, and at the same time exempting minorities from almost all of the laws, the State is effectively restricting alternatives to the majority community. In the long run, the majority community, in order to maximise its payoff (on factors such as fees, standards, teachers’ pay and so on) WILL have to go with minority institutions. This will have a devastating effect on majority institutions!!

(Do read up the link on non-zero-sum game theory linked above; It explains the threat to the majority perfectly)

State-wise classification of minorities

The article claims that there is nothing preventing Hindus from claiming and enjoying minority rights in states where they are in minority, such as Jammu Kashmir and Punjab.

But we must remember that even Hindus have religious minority status in a few states and are fully entitled to all the privileges as linguistic minorities in the remaining states

This is only theoretically correct.

In reality, all the privileges granted to religious minorities in India are governed by the NCM Act and the NCMEI Act (specific to educational institutions). Under both these Acts, the Government of India has the power to notify religious communities as minorities. As it stands today, only 6 communities – Muslims, Christians, Jains, Buddhists, Sikhs and Parsis are designated as minorities by the GOI.

No one else, apart from these 6, can enjoy any minority rights anywhere in India.

The author further quotes the Supreme Court judgement in “N. Ammad vs The Manager, Emjay High School” to support the contention that Hindus too can enjoy minority rights. The said judgement was delivered in 1998 when no Act existed that had the provision to declare institutions as minority. However, post the creation of NCMEI, every educational institution that wants to enjoy minority rights has to be certified as a minority by either a Competent Authority (CA) or the NCMEI. And both the CA and NCMEI are bound by the GOI’s notification that defines who a minority is.

History of minority rights in other countries

The article subsequently quotes several international laws and treaties to claim granting of ‘Special’ Rights to minorities is a long standing feature of International law.

The idea of special rights for minorities is not new and dates back to the 19th century

I quote below several of the laws cited by the author and then highlight the exact stance of those very laws on this issue.

a) Article 19 of the Austrian Constitutional Law (1867) 

The exact text of Article 19 of the Austrian Constitutional Law (1867) is as below

….All the languages used in the provinces are recognized by the State as having equal rights with regard to education, administration and public life

Notice the phrase “equal rights” which places all communities on equal pedestal with regard to educational rights.

b) Hungary’s Act XLIV of 1868

The relevant text of Hungary’s Act XLIV of 1868 is quoted below

The Act (Article 26.) further ensures that all citizens, communes and Churches of all nationalities shall be free in the future — as they were in the past too — to found
primary, secondary and higher education institutes and associations, the language to be used by such institutes and associations to be determined by those responsible for
their foundation

Here too, one can easily notice “all citizens….and…all nationalities” being given equal rights without any special privilege to any section of citizens.

c) Peace treaty between Allied and Associated Powers and Poland

The portion of the treaty related to minority rights, especially with respect to educational rights is produced below

Art. 8. Polish nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Polish nationals. In particular they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.

Quite clearly the treaty actually grants equal, and NOT special, status to minorities.

d) Peace treaty between Allied and Associated Powers and Bulgaria (known as the Neuilly treaty)

A common format was used for treaties between Allied and Associated Powers and several countries such as Bulgaria, Albania and so on. The relevant portion of the treaty is produced below.

Article 54: Bulgarian nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Bulgarian nationals. In particular they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein

From all the above treaties and Acts (referred to by the author himself), it is evidently clear that every single country grants *Equal* rights to minorities with regard to establishing educational institutions, and NOT special rights.

Rights under Article 19

The article then goes on to claim that the majority in India enjoy the same rights as Article 30(1) but under Article 19.

Non-minorities too have a similar right under Article 19

This is totally incorrect. Rights under Article 19(1)(g) are generic rights to practice any profession or occupation available to all citizens including minorities too. Of course, it does cover the right to open educational institutions but it is a much weaker right than that available to minorities under Article 30(1).

The rights under Article 19(1)(g) are subject to several restrictions, like for e.g. those under Article 19(6) where as those under Article 30(1) have no restrictions. The Supreme Court of India also, on several occasions, has reinforced this facet of Article 19(1)(g). A couple of relevant portions from the 2014 Pramati judgement is sufficient to confirm this difference.

Reference to Article 19(1)(g) and Article 15(5)

…Clause (5) in Article 15 of the Constitution, thus, vests a power on the State, independent of and different from, the regulatory power under clause (6) of Article 19…

Reference to Article 30(1)

the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions

The above snippets clearly show majority rights under Article 19(1)(g) being subject to restrictions under 19(6) and 15(5) while no such restrictions exist for Article 30(1).

Hence the comparison between the two is an attempt to draw a false equivalence.

Reservations in Private Majority Institutions

Next, the article claims private majority institutions like Amity, Bennett and others enjoy privileges equal to that of minority institutions.

Private, unaided universities like Amity, Bennett or Ashoka are not at too much of a disadvantage. Like minority institutions, they too are exempt from the SC/ST/OBC reservations

This, too, is incorrect.

Amity University comes under the ‘Maharashtra Act No XIII of 2014’ Act and is subject to the same reservation policy as other institutions. This condition is covered by Sections 6(2) and 35(3) of the Act. The University is also subject to other guidelines under the UGC Act.

Similarly, Bennett University is also subject to the Government’s reservation policy for private unaided Universities, as clearly mentioned in their website.

Miscellaneous

I am clubbing together a few other incorrect claims made in the article, in this common section.

The article claims JMI does not enjoy sufficient autonomy.

In fact, universities like AMU and JMI hardly have any substantial autonomy as they receive funds from the government

The truth is that JMI is a minority institution, as it stands today due to such recognition from NCMEI in 2011 and therefore enjoys all the rights and privileges that are available to it.

Next, the article claims that AMU was denied minority status due to it adopting standards and control procedures per Government rules.

In AMU’s case, on this very basis, the Supreme Court denied the institution its minority character

This is far from the truth. In “S. Azeez Basha And Anr vs Union Of India” the primary reason why AMU was denied minority recognition was because it was found to have not been established by the minority community.

The article also claims all minority institutions educate 50% non-minority students.

Minorities invest their resources, properties and time and then educate 50% non-minorities in their institutions, yet we have problems with these institutions which are playing a major role in uplifting minorities

Once again, this is incorrect. The rules of almost all states regarding admission of minority students is very clear. There is a minimum stipulation, which varies from 25% to 50%, from state to state. However, every institution is fully free to admit students of their own community even up to 100%. In fact, the very fact that even 25% stipulation per RTE Act has not been mandated for minority schools confirms this point.

Conclusion

Minority educational institutions enjoy a significant advantage in terms of rights and exemption from obligations and rules, none of which are available to majority institutions. In a non-zero-sum area such as educational institutions, such a privilege, coupled with a heavy regulatory regime for majority institutions, means minority institutions enjoy an unfair competitive advantage.

Benefits of Minority Tag in India

Some leaders of the Lingayat community in Karnataka have renewed their demand for their group to be considered as separate from Hindus. They want to ‘move out’ of the Hindu fold. This demand has been in existence from many decades and seems to have a co-relation to the recognition of non-Hindus as ‘minorities’ and consequent benefits being granted to them. In the past too, other groups, such as the Ramakrishna Mission, have demanded to be ousted from the Hindu fold.

It is a no-brainer that the demand to be considered as a non-Hindu has its basis in the institutional, legal and economic benefits associated with the tag of a minority, rather than cultural or religious reasons. Else, there is really nothing that a Hindu needs to do to move away from being one. Hindu religion does not really codify what it takes to be a ‘Hindu’ nor does it define anywhere what would be considered blasphemy for a group to be thrown out of the Hindu fold. So Lingayats could just declare themselves non-Hindus from tomorrow and continue their practices as it exists today.

However, what they are really looking forward to is an inclusion, by the Government of India through the National Commission for Minorities (NCM), into the official list of minorities. Currently Muslims, Christians, Jains, Sikhs, Parsis and Buddhists are the six religious minorities recognised.

When any Government implements policies aimed at affirmative action, it is natural that there is a redistribution of resources between ‘preferred’ groups and ‘non-preferred’ groups. Typically the resources are economic in nature. The reasons for classifying certain groups under the preferred category are mostly social and/or economic. In countries like India, due to centuries of denial of opportunity and equality, many communities have suffered socially and economically. In order to address this problem, policies such as reservation have been introduced since Independence (some form of reservations existed in British India too). In addition to reservation in education and jobs, financial benefits such as scholarships, easy access to finance and targeted infrastructure delivery are also usually provided.

With these benefits in sight, it is only natural that those communities which are in the non-preferred list would be keen to make it to the preferred groups’ list. In India, there exists two main categories of preferred groups. Category 1 is based on caste and the main groups under this denomination are the SCs, STs and OBCs. Category 2 is based on religion. It’s members are known as minorities and the six religions noted above belong to this category.

Let us look at some factors which make this transition from the non-preferred to the preferred list easy or difficult. The focus of this post is on Category 2 where the grouping is based on religion.

Benefits of getting redesignated as a minority

If one community enters the preferred group based on caste, the benefits primarily are economic and, to an extent, social. However, if one enters the preferred group based on religion, in addition to economic benefits, institutional and legal benefits are also granted. In fact, such institutional and legal benefits outweigh the economic benefits (otherwise extremely well-to-do communities such as Jains and Parsis wouldn’t figure in the list).

Minorities get absolute freedom to run educational institutions due to Article 30(1) of our constitution and few other sections. It is an undisputed fact that education is the key to social and economic progress of an individual or community. And unfettered rights to establish and administer educational institutions of choice is an extra ordinary instrument available ONLY to minorities to control social and economic development of not just their own group (religion) but those of others as well.

In addition to #Core1 benefits as mentioned above, minorities get a dedicated budget to fund socio-economic schemes based on religion. You can avail a handsome scholarship from grade I all the way to your post-graduation if you are a minority student. And the budget for these schemes only keeps increasing significantly year after year. There are schemes to help finance any entrepreneurial ventures that minorities want to undertake. Easy access to finance can be key to establishing businesses. And availing it can become easy if you are a non-Hindu.

An important point to note here is that, unlike schemes run for caste-based-preferred groups, the distribution of resources in schemes run for religion-based-preferred-groups is perfectly pro-rata. So, even though you can get clubbed with a number of other co-minorities, your share of the redistributed resource is fixed and guaranteed.

The Government of India also runs several schemes (such as those under JNURM and 15-point programs) where areas with high(er) concentration of minorities get special attention from an infrastructure development point of view. So if you are a minority and are living in an area with a significant population of your religion, you stand a better chance of getting good roads, lighting, schools and so on.

Cost of not being preferred

World over, it is well recognized that affirmative action, in the immediate term *at least*, is a zero-sum game i.e. the non-preferred groups lose what the preferred groups gain. Some like Thomas Sowell have, with empirical evidence, argued very well that in the long run affirmative action is actually a negative-sum game (for the country) because both the preferred and non-preferred groups perform sub-optimally – for opposite reasons. Irrespective of it, there is no dispute on it being a zero-sum game at least.

One would therefore think that even in India, affirmative action could be a zero-sum game in the immediate term. However, for religion based affirmative action, it is actually a significant negative-sum game for the community that is in the non-preferred group. Firstly, you of course lose out on the seats and scholarships that goes to those in the preferred group. Secondly, you are deprived of the institutional and legal rights that minorities are given. However, the death-blow comes from the fact that you are not just deprived of benefits but are subject to severe restrictions if you are a non-minority.

So it is not just that you cannot easily establish and administer educational institutions of your choice but that you are subject to a myriad web of rules and regulations if you want to run a school or college. Run a school without a sufficiently large playground and you could receive a show-cause notice. Punish a rogue student who indulged in indiscipline in your college and your principal could be arrested. Refuse to admit a student who showed signs of being a complete academic misfit in your school and, well, your school could simply be shutdown.

An equally deadly scenario exists when it comes to another important institution of religious dimension. If you are a Hindu, your temple has most likely been taken over by the state government. Every single activity in the temple is subject to approvals from ‘relevant authorities’. As with every institution where Government has a role, these temples too have to deal with corruption involving officials.

On the economic front, there is partial spite in case you are a Hindu and belong to a community that is covered under the caste based preferred-groups policy. However, increasing discrimination there too is rendering the existing thin advantage slip-by. If you are a kid belonging to the OBC community, you can still get a scholarship from the Government for your education but it will be an order of magnitude less than what a minority kid studying the same course can get (exact differences covered elsewhere in this blog).

If you are a Hindu and do not belong to any caste-based preferred-group, then there is a complete loss even on the economic front. A poor brahmin kid is at the mercy of a state government to show some benevolence and grant it a scholarship with a meagre budget that can address perhaps a few tens of kids every year.

Therefore, the cost of not being in a preferred-group is chiefly threefold

  • Total lack of freedom to run educational institutions and being subject to extreme Government control.
  • Takeover of your religious institutions by the Government.
  • Measurable impact on the economic and infrastructure front

The ease of ‘redesignation’

The above two sections where we looked at the benefits of being a minority and the dangers of being a non-minority make it obvious that communities currently under the non-preferred category will desire to make it to the preferred group. One factor that can dampen the enthusiasm for such ‘conversions’, usually, is the difficulty associated with such a redesignation.

However, in the present case, two reasons make even this redesignation process very easy.

  1. The loose definition of who is a ‘minority’. There is only one requirement here – that of being a non-Hindu. All one needs to prove to become a minority and avail the numerous benefits is to somehow show how he is not a Hindu. Note: While this definition is actually true when looked at from a demographic point of view, the problem is the association of this definition with institutional, legal, social and economic benefits.
  2. The vague, or non-existent, definition of who is a ‘Hindu’. Except perhaps the Brahmin sect, who are joined at the hip with Vedas, Smritis, Puranas and rituals, every other community can venture to claim they are non-Hindus, or at least ‘no longer Hindus’. Most kshatriyas today are not into military or police service. Very few Vaishya communities are still in business. The remaining communities surely can cite the instances of them being denied equal privileges in the past to claim they were never ‘allowed to be Hindus’. Further, Hinduism as a religion, has never mandated any holy book, custom or ritual that every adherent must follow in order to be treated as an Hindu. This makes the task of detaching oneself from Hinduism even more simpler.

When it comes to becoming a minority, the key is to get the Government to accept what you are NOT (Hindu) rather than make them realize who you are. Due to this – historical conditions, present economic situations, relative social position – none of these matter in the attempt to get redesignated.

Another side-effect of such a classification, with no socio-economic parameters being considered, is that it is safe to assume that there is no exit criteria for falling out of the minorities list. Once you are in, you cannot be out just because for e.g. your community grew into a very affluent one. If there were to be the case, there is simply no explanation for why communities such as Jains and Parsis have to be in the minorities list in the first place. Get in once, and stay there forever.

Conclusion

There are significant benefits to becoming a minority in India. And the reasons are not just socio-economic but much more significant centering around institutional control. If you are a community that has a significant stake in institutions (such as Lingayats for e.g) it simply makes no sense to subject oneself to the draconian measures intended for the ‘non-minority’.

Demand for recognition as a non-Hindu is therefore only natural. In all likelihood, as knowledge of the benefits of redesignation and dangers of existing designation become known, more and more Hindu communities are likely to demand the same status.

Five questions on Article 15(5)

An attempt to raise some questions on the nature of Article 15(5) brought in by the 93rd amendment.

Some of the questions may have already been raised, argued and answered already. A little repetition doesn’t harm, IMHO 🙂

Article 15(5)

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

Question 1:

How can the State assume that any, and every, special law made with respect to admissions to educational institutions transgresses the rights given to minorities under Article 30(1)?

Multiple SC judgements have held that the spirit of Article 30(1) is to ensure
(a) Minorities are not denied rights to establish educational institutions
(b) Law does not take away the minority character of the institution

How can the State assume that any, and every, law made in relation to admissions
will destroy the minority character of the institution?

Question 2:

Why can not the question of whether a particular law, for e.g. the RTE Act, steps over the rights granted to minorities under Article 30(1) be left to the interpretation of the Courts?

Question 3:

Admissions is just one part of the ‘administration’ process. By granting a blanket cover for admissions under this amendment, is not the State saying that it does not have any power to impose any law related to any aspect of establishing or administering a minority institution? Does Article 30(1) grant such blanket rights?

For e.g. (sounds trivial – do excuse) if tomorrow a state government brings in a law that no person can teach in a school unless he/she has studied at least up to 10th grade, quoting the above amendment, minorities can very well argue that the State does not have ANY power to impose even elementary standards when it comes to teachers’ recruitment?

Question 4:

Article 15(5) allows the State to make special laws for non-minorities only. Is this not discrimination? How is this not violative of Article 14?

Question 5:

The spirit of the Constitution allows the State to make special laws to favor disadvantaged groups/communities. Laws related to SC/ST etc all fall under this category.

The 93rd amendment has 2 parts to it.

(a) Power to make special laws related to admission
(b) Applicability of the laws made under (a)

(a) grants a privilege
(b) imposes a duty

While the Constitution allows laws falling under (a), there is no example, and therefore it is against the spirit of the Constitution, to make laws under (b) that applies ONLY to some groups and not to others. Is (b) therefore not unconstitutional?