By changing rules that govern the recognition of minority schools, Tanveer Sait has effectively reinterpreted the Constitution.
The apex court needs to take cognisance of the move and reassert its authority.
The Bharatiya Janata Party (BJP) in Karnataka had barely recovered from Chief Minister Siddaramaiah’s coup de maître giving minority religion status to the saffron party’s core vote base – lingayats – that the state’s Education Minister Tanveer Sait has now decided to step on the accelerator, strengthening the Congress party’s minoritarian agenda.
Sait announced on Wednesday (21 March) that his government has tweaked the rules on minority educational institutions.
Earlier, a minority institution, say, one run by a Christian, was mandated to allocate 25 per cent of the seats to students from its own community, i.e., Christians, to qualify as a minority institution. Now, after the change, it will be classified as such if the 25 per cent quota is filled by any number of minorities – linguistic or religious.
Why does this matter? Here’s why.
What should differentiate a minority educational institution from one run by a member of the majority community?
a) It should be established and administered by a minority;
b) It should have been set up chiefly for the purpose of the minority and, more importantly, for the purpose of protecting and preserving the language and culture of the said minority, as education is considered the most effective method of doing so.
This was the intention of the makers of our Constitution when they gave all linguistic and religious minorities “the right to establish and administer educational institutions of their choice” under Article 30 (1). Article 29 provided that “any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same”.
Clearly, the idea behind the additional protection was never to give more rights to minorities than the majority, as will be clear to anyone who reads the constitutional debates. The intention was to shield the minorities from any potential future majoritarianism.
What’s the situation today?
Thanks to judicial activism, the courts have ruled that the words “of their choice” means that a minority institution will be considered as such even if it’s not established and administered for protecting and preserving the language, culture, or script of the concerned minority.
The second ideal condition, that a minority institution should have been set up chiefly to serve a minority community, was upheld by courts for some time. In the Kerala Education Bill case, the court ruled that a sprinkling of outsiders in a minority institution would not amount to the cessation of the minority character of the institution. The court did not specify the precise percentage of this “sprinkling”.
So far, so good. But in St Stephen’s College v. University of Delhi, the Supreme Court ruled that the “sprinkling” of non-minorities should be 50 per cent or more, turning the right on its head. Now, a so-called minority educational institution could justify its tag by having more majority students than minority ones! The T M A Pai judgement removed the 50 per cent ceiling and gave states the power to define the percentages based on their local conditions and requirements.
Until 2014, Karnataka mandated that at least 75 per cent of the students in a minority educational institution should be from the minority community it was set up to serve. Sait changed the rules that year and brought down the required percentage to 25 per cent. This move came as a boon for the minority schools as a great burden on them was lifted. They proliferated, their numbers rising greatly from 1,059 in 2014 to more than 1,900 in 2016, according to this report in The Hindu.
And now comes further dilution of norms that will strengthen minority schools more.
Though the government’s amendment will benefit all minority institutions, it is expected to help linguistic minority institutions more than the religious minority ones as they found it much harder to find 25 per cent students from their linguistic community. If 2014 changes led to a proliferation of religious minorities, we can expect a similar boom in linguistic minority schools in the coming years.
Irrespective of who benefits from the change, think for a moment how absurdly this move will play out in the real world.
- A Telugu minority school established to serve the interests of Telugu people and their language and script can now have more Muslims or Christians in the minority quota than Telugu-speaking students.
- A Christian minority school can have more Hindus (Telugu minority, Tulu minority, Hindi minority, etc) than Christians under the 25 per cent minority quota and still justify its Christian minority tag.
The absurdity reaches a different level when we compare minority and non-minority schools. Let’s say both these schools have 100 students each and a minority school should have 25 students from all minority communities combined.
- A non-minority school which has 75 Hindu students, 10 Muslims, 10 Christians, and five Jains will not enjoy any rights and benefits given to minority students, but
- A Christian minority school can have 80 Hindu students (including five Telugu/Tamil/Hindi minority), 15 Muslim students, and only five Christian students, but would still get all the benefits.
After Sait’s latest amendment, it seems that the only differentiating factor between a minority and non-minority educational institution is the religion of the person or management administering it. How is such a preposterous regime even legal? Because the courts with their judicial activism have been expanding the rights of minority institutions by interpreting words in Articles 25-30 literally rather than basing the rulings on what they were intended to do.
Sait has only taken their interpretation notches higher, effectively reinterpreting the Constitution – a sole discretion of the Supreme Court of India.
Sait says the eligibility criteria for recognition as minority educational institutions has been tweaked keeping in mind the articles of National Commission For Minority Education Institution (NCMEI). One is not sure which articles he is referring to, but NCMEI has the final say in deciding which institution is a minority and which is not. And Sait’s amendment is in line with the commission’s thought process. It has held, as pointed out by Hariprasad in his tweet, that the percentage of minority students in a minority institution cannot be a factor in deciding whether that institution gets the minority tag. As the commission’s former acting chairman noted, “Jains who form 0.45 per cent of the population cannot bring 25 per cent of the students.”
Here is the counter-point: If they can’t even bring 25 per cent of the students, and thus clearly not serving the minority they are supposed to serve, why should they be treated any differently from schools run by members of the majority community?
But everything aside, Sait has tried to interpret the Constitution in his own way by changing the rules governing the recognition of minority institutions. The Supreme Court is the final interpreter of the Constitution, not Sait. The apex court should take suo moto cognisance of this transgression, rebuke Sait, and reassert its authority.