Time To Change Our Anti-Majority, Pro-Minority Education Laws

In a series of posts earlier, we have looked in detail at the anomalies in the Indian Constitution with respect to granting of rights for establishing educational institutions. Such a right under Article 30 exists only for religious and linguistic minorities, and not for the majority community.

In the previous articles, the history, evolution and implications of Article 30 have been looked at elaborately. This article will examine the provisions provided in the constitutions of various countries that grant equal rights and opportunities to ‘all’ its citizens for establishing educational institutions.

There are a few countries which do provide specific rights for their minorities (ethnic communities) to establish educational institutions. However, along with these provisions, as we shall see later, the rights of the majority have been well protected.

Germany

The ‘Basic Law’ for the Federal Republic of Germany has a dedicated article for its school system. This Article 7 gives explicit rights to its citizens for establishing private schools.

It is clear that this right is uniformly available to all the citizens and is not bound by any conditions. Article 3 of the same document underlines this point by declaring that no citizen will be favoured or discriminated against based on any special attribute.

Spain

Section 27 of the Spanish Constitution talks about the rights of its citizens relating to education. There is a specific provision that grants rights to establish educational institutions.

We see that the right is not bound by any considerations based on religion, language or any other parameter. Just to reconfirm, we can also look at Section 14 of the Constitution that debars any discrimination based on such parameters.

South Africa

South Africa has had a history of racial discrimination (apartheid) and, therefore, the need to ensure equal rights for all its citizens, especially ensuring that native communities do not suffer any disadvantages, was paramount. With that context in mind, let us look at its Constitution for the provision relating to establishing educational institutions.

Notice the operative word ‘Everyone’ in the article. All sections of its citizens have been given equal rights.

The South African Education Policy Act further reinforces this constitutional principle that reads:

South Africa, therefore, does not provide any special favours to any community or individual over establishing educational institutions.

Jordan

In Jordan, Islam is the state religion. It, therefore, becomes especially interesting to look at their constitutional provisions governing private schools.

There is no distinction between communities when it comes to this right. Let us look at Article 6 (i) of the Constitution that reinforces our understanding of equality granted under Article 19.

Both with regard to rights and duties, Jordan’s Constitution does not discriminate based on religion or language. Hence, the right under Article 19 is truly available to all its citizens.

Singapore

Section 16 of Singapore’s Constitution provides rights to its citizens on various aspects relating to education. This section guarantees equal rights to all its citizens for establishing institutions of their choice, including religious educational institutions.

The elucidation of the article renders it unnecessary to elaborate any further on Singapore’s outlook towards equality in this domain.

Brazil

Section 29 of Brazil’s Constitution provides the right to establish private schools. It says:

No favour is curried out to any section of its citizens, nor is any community deprived of this right.

Ireland

Article 42, Section 4 of the Irish Constitution provides the right to establish private educational institutions. No special provisions favour any community, nor is the right denied to any class.

The provisions under the Irish Constitution that deal with religion make it further clear that no religious community shall be favoured or discriminated against in any matter.

Portugal

Article 43 of the Portuguese Constitution provides the right to teach. This is guaranteed to all its citizens, without any discrimination.

The Constitution’s provisions relating to equality and non-discrimination make it further clear that no community shall be deprived of any right or duty.

Greece

Article 16 of the Greek Constitution provides the right to run private educational institutions and without any discrimination.

Article 13(1) makes it abundantly clear that the right under Article 16(8) does not depend upon any religious affiliation.

Chile

The Constitution of Chile uses interesting methods to highlight that the right to open educational institutions is especially free from any favour or bias.

Egypt

The Constitution of Egypt has a simple provision that guarantees autonomy for its educational institutions. The provision is free from any clause restricting it to a few communities or depriving the same to others.

Italy

Article 33 of the Italian Constitution provides a non-discriminatory right to its citizens to run their own educational institutions. The article, in fact, makes it clear that all such institutions shall be given “full liberty”.

In fact, Article 3 of the Constitution imposes additional responsibility on the state to ensure all impediments to the absolute equality of all citizens are removed and all are treated equally in the political, economic and social organisations of the country.

Jamaica

Jamaica provides equal opportunity for all religious communities to provide religious, or “any education”, to all its citizens. Article 17 of its Constitution grants such a right.

Kazakhstan

The Constitution of Kazakhstan makes it clear that the state shall impose “uniform” standards that must be complied by “any” educational institution. In other words, all types of private educational institutions are subjected to the same rules and standards.

Malaysia

Malaysia is an excellent case study for the current exercise. The state religion of Malaysia is Islam. It also has minorities based on ethnicity in addition to religious diversity. Yet, the Constitution of Malaysia provides a remarkable example of the state guaranteeing equality in establishing educational institutions. Article 12 of the Constitution says:

In spite of being an Islamic state, Malaysia grants equal rights to all religious groups in this matter.

Mexico

The Constitution of Mexico too provides equal rights to all its citizens in setting up educational institutions and the only requirement is for the private entities to comply with the laws of the land.

Netherlands

The Constitution of Netherlands provides non-discriminatory rights to all its citizens in this matter.

Poland

The Constitution of Poland is an interesting example. In light of the history of the previous century, the protection of ethnic minorities is a big concern for the state. Its Constitution, therefore, has an explicit provision to guarantee protection and rights, including educational, to the minorities.

However, what is interesting is that the same rights are guaranteed to the non-minorities under a separate article, and equal rights have been explicitly declared.

Romania

In the Romanian Constitution, the issue of rights and their relative position between minorities and non-minorities has been addressed at a higher level that applies to all forms of culture, including education. It provides an overarching framework within which it becomes impossible to discriminate against or favour any particular segment of society. Article 6 of the Romanian Constitution reflects this essence.

The Constitution, while recognising the need of the minorities to preserve their culture and, therefore, the need to give them explicit rights also makes it very clear that the same shall not turn into reverse discrimination against other citizens.

Slovakia

Slovakia, too, has found it necessary to address the concerns of its ethnic and other minorities through the Constitution. Like some of the other eastern European countries, Slovakia too grants rights to such minorities. However, it makes it explicitly clear that any such right or protection shall not jeopardise the rights of any of the non-minorities.

Therefore, in Slovakia, no law can manifest in a way where a section of citizens are discriminated against in the process of granting rights to the minorities. A good balance and practical equality has thus been achieved.

India

We have looked at the constitutions of 20 different countries in this article. All of them talk explicitly about granting rights to their citizens to establish and administer educational institutions. However, not a single one of them grant it ‘solely’ to one section or group of citizens. The rights, inevitably in every case, are equally applicable to ‘all’ citizens.

India, on the other hand, offers such rights to only religious and linguistic minorities. On the other hand, through its myriad education laws and regulations, the state ensures that the educational institutions run by the non-minorities remain under the tough control of the state.

The current reading of Article 30(1) of the Indian Constitution is as follows:

The need of the hour is to change the above worded article into one that grants equal rights to all communities, in the following manner:

Only when such an amendment to the Constitution is brought to effect can we truly claim to be a non-discriminatory state that is governed by the rule-of-law.