To hold private education institutes established by minorities and non-minorities on equal footing so that Hindus can enjoy the exact same rights that the minorities do, is a no-brainer decision but this kind of parity is anathema to the Idea of India.
Early 2005 was a time of joyous celebration in the Congress Party. They had just upset the BJP led NDA at the polls. Their allies had pulled off spectacular wins in their states. Sonia Gandhi was in full control of the party and government.
However, one critical problem loomed that needed urgent fixing. Strategic thinkers of the establishment realized that the principal canon of the “Idea of India” was damaged beyond recognition under BJP’s rule: the idea to have outright communal discrimination in the domain of education.
Judicial Blows To The Idea Of India
As the private education industry started booming in the country, various state governments resorted to biting off a part of the private capacity and using that to advance its social objectives. This ran into the minority issue as well as issues related to fees and cross subsidies. A number of these questions accumulated and the need to settle this once and for all was felt by everyone. The opportunity presented itself in a case called TMA Pai Society vs Union of India.
Eleven judges of the Supreme Court, the second largest bench after the 1973 Kesavanada Bharati’ thirteen judges bench, would hear the education and minority issues and settle the issues once and for all. The hope was that this large bench would not be encumbered by the earlier nine judge bench’s views in St Xaviers v Gujarat case. The 11-judge bench delivered its verdict in 2002. The split was roughly seven-four on a number of questions, but even the four dissenting judges agreed on a number of the framed questions. The most ‘shocking’ part of the judgment was the following:
Private education institutes established by minorities and non-minorities were held to be on equal footing. Hindus could enjoy the exact same rights under Sec 19-1(g) that the minorities did under Article 29/30.
This may seem like a no-brainer decision to us or to a western liberal observer but this kind of parity is anathema to the Idea of India.
Post TMA Pai, there were a number of issues related to entrance exams, capitation, and such like that caused major confusion. Another constitution bench of five judges was setup under Islamic Academy vs Karnataka to clarify. They still left some vagueness in the questions related to admissions. Then a final bench of seven judges was constituted for PA Inamdar v Maharashtra to further seal the issue. A lot of questions got answered – a lot did not. But here is what happened.
The essential parity the court accorded to minorities and Hindus in the field of education persisted. The concept of parity between Hindus and Minorities run educational institutions emerged unscathed after examination of large benches. First an 11-judge, then five-judge, then seven-judge. The final word:
In the opinion of S.B. Sinha, J, minority educational institutions do not have a higher right in terms of Article 30(1); the rights of minorities and non-minorities are equal. What is conferred by Article 30(1) of the Constitution is “certain additional protection” with the object of bringing the minorities on the same platform as that of non-minorities, so that the minorities are protected by establishing and administering educational institutions for the benefit of their own community, whether based on religion or language. It is clear that as between minority and non-minority educational institutions, the distinction made by Article 30(1) in the fundamental rights conferred by Article 19(1)(g) has been termed by the majority as “special right” while in the opinion of S.B.Sinha, J, it is not a right but an “additional protection”.PA Inamdar v State of Maharashtra Aug 2005
The final word in PA Inamdar came in August 2005. It was now clear beyond doubt that the principle of parity to Hindus in education had just emerged unscathed from three big constitution benches. It was settled. It was final. It was going to be the way forward for India. I realize now that the ecosystem must have been inconsolable at this. How was the Sonia-led Congress government going to restore the minority preference over these epic judgments?
The Congress govt just decided to simply change the Constitution. And thus the 104th Constitutional Amendment Bill Is born,
The Congress government worked with great urgency to move a constitutional amendment bill that would obliterate the court judgments The idea was to:
- allow the state to take (to an unspecified extent) from unaided educational institutions
- explicitly exempt institutions run by minorities from it
- explicitly encode the exemption in Art 15(5) itself
They quickly added a new section in the Constitution of India called Article 15(5) which read:
(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.Article 15(5) inserted by the 93rd amendment
The minority exemption was immediately opposed by the BJP. Unfortunately, they did not make an intellectually honest case as to why this bill was wrong. Instead, they sought to include backward among minorities in their institutions but their amendment was defeated. This was in 2005 when there was no social media. The old mainstream media had absolute control of the discourse.
The Impact On SC/STs
Since a large chunk of the top educational institutions are run by minorities – the bill hurts the Dalits more by shutting them off. For example, in Kerala, minorities run 14 of the 18 medical colleges. This is the clearest proof that the Congress party which claims to fight for Dalits will only do so when their interests do not come into conflict with Christians and to a lesser extent the Muslims. A forum of SC/ST parliamentarians seems to have raised this issue with the Prime Minister but he really wasn’t in control. This fizzled out and Dalits still dont have quotas in aided or unaided minority institutions.
In the end, on December 22, 2005, the 93rd Constitutional amendment was passed. The Constitution of India was changed. Years of effort by huge benches, dozens of lawyers, thousands of hours of arguments were obliterated. Minorities were once again restored to a preferred status when it came to the issue of education.
Validity Of The Bill
Naturally, this 93rd Amendment was challenged. While hearing the OBC quota case Ashok Kumar Thakur v Union of India, the court noted that they would not hear challenge to the 93rd amendment until the Centre passed a law.
That opportunity to test the 93rd amendment against the “Basic Structure” came in 2010 in the form of the Right to Education Act. This law imposed quotas on private educational effort while exempting those schools run by people born as minorities.
Remember that the share of 25 per cent is arbitrary – there is absolutely no protection upto 49.5 per cent. Even that is crumbling. An earlier bench hearing a challenge to the RTE Act involving Rajasthan Private Schools did not go into the constitutional question, perhaps because that was only a three-judge bench. Eventually they did constitute a five-judge bench to hear the RTE Case in 2014 involving a large number of petitioners under Pramati Educational and Cultural Society.
On May 9th, 2014, a week before Narendra Modi-led BJP swept to power on a massive mandate – the 93rd Amendment was held to be constitutional by a five–Judge bench in Pramati Educational & Cultural … vs Union Of India & Others.
While departing, the Idea of India ecosystem managed to secure its crown jewel.
Fallouts Of The 93rd Amendment
Sectarianism in education has taken deep root. Minority colleges have flourished. Even aided minority colleges are exempt from quotas that are applicable to fully unaided Hindu run colleges. The trajectory of the education scene can be best illustrated by a January 2014 judgment in Madras High Court, Federation of Catholic Faithful vs State of Tamilnadu: