From RTE To Scholarships, Indian Education Is Hobbled By Minorityism

The question “What’s wrong with India’s education sector” elicits really innocent answers in India like: education is not accessible to all; curriculum encourages rote learning or bookish knowledge rather than kindling creativity or promoting innovation; pathetic state of government schools; unhealthy competition; commercialisation, tuition and coaching culture; lack of good teachers; reservation; obsession with marks and so on.

But these to me, at least, sound like first world problems because if you ask a commoner in the United States, he would probably list out the same. It’s similar to complaining about poor lighting on the second floor of your house while the foundation itself is shaky.

While we need to fix the above outlined problems, there is another more fundamental flaw that needs fixing. And that is the division of the system along communal lines buttressed by the enshrinement of sectarianism within the Constitution itself.

Sectarian Public Goods

Although the Indian state professes to strive to remove social ills such as caste and religion-based discrimination, its policies serve only to reinforce them. Education is just one sector in which the pernicious effects of such ill-considered policies are being felt. Although good schools are of interest to all residents of India regardless of social or economic category, the state shows its largesse unevenly, and, one might argue, arbitrarily.

It is impossible to give a complete rundown of all the schemes in the education sector that have a sectarian tilt. For convenience, let us consider just the handful that have just recently enjoyed parliamentary attention: Mukhtar Abbas Naqvi, the Minister of State (IC) for Minority Affairs, informed the Rajya Sabha on 7 February 2017, that his government operates nine “schemes throughout the country (including the rural areas), for educational empowerment of six notified minority communities namely Muslim, Christian, Sikh, Buddhist, Jain and Parsi." These are:

• Pre-matric Scholarship for Class I to X: This is the same scheme which Narendra Modi had opposed as the chief minister of Gujarat. His government knocked on the doors of the High Court (HC), pleading that the scheme was discriminatory and that his government was already running a similar programme that was blind to the student's religion. However, a five-judge bench ruled 3-2 in favour of the scheme. Gujarat government appealed against the order in Supreme Court which upheld the HC’s decision. When Modi moved to Lok Kalyan Marg, one obviously expected him to roll back the scheme. As prime minister, however, he has not sought to do so. In fact, the budgetary allocations are increasing by approximately Rs 200 crores each year for this same scheme. In 2014-15, the amount disbursed stood at more than Rs 1,100 crores given to around 75,00,000 minority students.
• Post-matric Scholarship for Class XI to Ph.D. degree: In 2014-15, the Modi government disbursed Rs 501 crores to 9,05,620 minority students.
• Merit-cum-Means based Scholarship Scheme for Professional and Technical courses: Rs 381 crores disbursed to 1,38,770 students in 2014-15.
• Free Coaching and Allied Scheme for Competitive Examinations of Professional Courses and Government Jobs: Under this scheme, beneficiaries have doubled since the Modi government came to power from 479 in 2013-14 to 975 in 2015-16. Under this, the Ministry of Minority Affairs provides a stipend of Rs 1,500 to local students and Rs 3,000 to outstation students respectively.
• Maulana Azad National Fellowship (MANF) for M.Phil. & Ph.D. students: Over Rs 55 crores were released under this scheme in 2015-16.
• Support for Minorities for clearing prelims exam conducted by Union Public Service Commission (UPSC), Staff Selection Commission (SSC) and State Public Service Commissions (SPSCs): Apart from giving minority students a coaching subsidy, minority students receive further financial assistance from the government to the tune of Rs 50,000 for Gazetted Post and Rs 25,000 for Non-Gazetted Post on clearing the prelims stage of these exams.
• Padho Pardesh for overseas studies at Masters, M.Phil. and Ph.D. Level: Not only do minority students get exclusive scholarships to study at home, but their overseas studies are also financed by the Modi government which gives interest subsidy. In 2015-16, the Centre released Rs 7.5 crores through the scheme to 1,343 students.
• Nai Manzil: Unlike other schemes, this scheme is not a legacy of the UPA regime. It was launched by the Modi government in 2015 with an aim to help minority youth who do not have a formal school leaving certificate (read: those who studied in madarsas). In 2016-17, the Centre disbursed Rs 155 crores for the training of 25,000 such youth.
• Begam Hajrat Mahal National Scholarship for Meritorious Girls belonging to Minorities studying in Classes XI and XII: As if the above gender-neutral schemes weren’t enough, the government further segregated the public purse to give scholarship exclusive to minority girls. 48,000 girls benefited under this scheme at a cost of Rs 57 crore.

As stated earlier, this is not a comprehensive list. Other government schemes that focus on improving employability are available exclusively for minority communities but they are beyond the scope of our current discussion on education.

The MHRD justifies such schemes of sectarian character by brandishing ‘Article 46’ which says:

This justification is flawed at several levels.

First, this article is a part of the Directive Principles of State Policy section of the constitution which means that it is not enforceable in courts and hence not legally binding on the government, much like the platitude about a Uniform Civil Code (UCC).

Second, the article says ‘weaker sections’ - there is no indication that this requires a purely social interpretation and not an economic guideline as well. After all, there are poor Hindus as well.

Third, the directive states, ‘in particular of the SCs and STs’. Minorities, as we have come to politicise them today, are not the prime beneficiaries of Article 46. One would only assume – wrongly, as it turns out – that the state ensures the lion's share of benefits to SC/STs rather than other groups.

In a penetrating analysis of the disbursement of educational monies, Hariprasad N, who runs a blog Secure #Core compares scholarships given to minorities vis-a-vis to Scheduled Caste students and shows that “minorities get more than double the scholarship than what an SC student will get, for (almost the exact) same parameters.”

The author compares the two pre-matric scholarship schemes for minorities and SC students and finds that while for minorities, the scholarship is available from classes I to X, for SCs it is available for only in classes IX and X. A minority day-scholar receives benefits of Rs 5,900 per annum but a similar SC student receives only Rs 2,250 over the year; a residential minority student gets Rs 11,900 per year but his SC counterpart gets only Rs 4,500.

Hariprasad has dug out data on scholarships to OBC students too and his findings are disturbing. Post-matric scholarship for OBC students is Rs 1,261 per student per year while the same for a minority student is Rs 6,040. The situation is worse for pre-matric students: those belonging to the OBC category received a scholarship of Rs 47 for the year 2015-16 while his minority classmate received Rs 1,529 – an amount 30 times in excess!

On the surface, it appears as if the government has similar educational welfare schemes for all socially depressed categories but even a cursory glance deeper exposes the criminally iniquitous structure of the government's educational scholarships. There is no sense of proportion, equality, or justice.

The Right to Discrimination Act

Scholarships are but one aspect of the government's differential treatment of its citizens. The Right of Children to Free and Compulsory Education Act (RTE) passed by Sonia Gandhi’s UPA government in 2009 is the epitome of discrimination in the education sector between minority-run schools and non-minority schools. The law, that allegedly brings the benefit of quality education to even the economically weaker segments of society, mysteriously does not apply to minority schools. Is it the government's case that minority educational institutions are not fit to contribute to the general well-being of society or is it that minorities have no duties but only rights? Either way, the burden of uplifting all sections of the economically underprivileged falls upon non-minority – Hindu – institutions of learning.

Let us understand how the RTE Act works: it specifies that private schools set aside 25 per cent of its seats for students from poor and disadvantaged groups. It also makes various other demands of these schools in terms of teacher quality, teacher-student ratio, infrastructure, and so on. In return, the government reimburses to the private school the amount equivalent to what the government spends on each student in its public schools.

On paper, at least. Most state governments are yet to release the promised reimbursements, after nearly four years. Even when they do, it is never a simple and straight-forward process. For instance, the Karnataka government recently reimbursed private schools only partially after fighting legal RTE-related cases against the schools, losing, and passing on the expenses to the schools!

To hedge against such governmental caprice, private schools increase the fees for their other students. This makes them unaffordable and gives minority schools who are outside the ambit of the RTE a marketplace advantage. In another study on the impact of the RTE, Hariprasad shows that in Bengaluru, the total number of Private Unaided Schools have grown from 2,753 to 2,868 i.e. at a growth rate of 1.39 per cent per year, while total number of private unaided minority schools have grown from 160 to 340 at a growth rate of 37.5 per cent per year between 2012-13 and 2015-16.

Eventually, non-minority schools close down or look for creative ways like obtaining linguistic minority certificate.

Getting a linguistic certificate, however, is not as easy as it sounds. An application needs to get past the National Commission for Minority Educational Institutions (NCMEI), a body set up in 2004 through an ordinance by the UPA whose membership is barred to Hindus. Section 2 of the NCMEI Act mandates:

4. Qualifications for appointment as Chairperson or other Member

(1) A person shall not be qualified for appointment as the Chairperson unless he

(a) is a member of a minority community; and

(b) has been a Judge of a High Court

(2) A person shall not be qualified for appointment as a Member unless he

(a) is a member of a minority community; and

(b) is a person of eminence, ability and integrity

In essence, the UPA believed that Hindus cannot be responsible for fair treatment of non-Hindus but the converse was possible.

What were the courts doing? one may wonder. Why didn’t they strike down such openly discriminatory act? Well, because the UPA pre-empted the courts and amended the constitution in 2005 (93rd constitutional amendment) making way specifically for such kind of discrimination. We will discuss this later why it was done, under what circumstances and how they did it.

Some now may propose that let’s repeal the RTE act and the 93rd amendment. Surely, that would bring parity between minorities and non-minorities in education? I am afraid it isn’t as easy.

From Nehru to Vajpayee: Legal Developments

To appreciate the history of the RTE Act and 93rd constitutional amendment better, we need to go back to the roots of minority rights related to education given in our constitution.

The founding fathers of the modern Indian Republic, including Jawaharlal Nehru believed that minority-majority concept was alien to India and was injected by the British as a part of their divide and rule policy. However, when the constitution was being framed, it was thought wise not to dispense with this divisive classification. After bloody partition, framers of the constitution were anxious to assuage the anxieties of Minorities. Members of minority communities in constituent assembly zealously tried to secure rights for their people. Some outrageous communal clauses were pushed (like reservation in legislatures) however, most such demands did not find currency among the majority. Whatever rights were conceded did not intend to create a kind of pampered or privileged section of people. The intention was to shield them from any majoritarianism that may raise its head in future. However, since independence, the SC has conceded more rights than originally intended by literally interpreting the constitution rather than understanding the essence behind the concessions ceded to minorities in education sector. For instance, their fundamental right under article 30(1) has been interpreted as more fundamental than non-minorities right to establish the same kind of educational institutions under article 19(1)(g).

Article 30 (1) reads:

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

The definition of ‘minority’, however, is conspicuously missing from the text. The framers of constitution left it to the courts to decide. Who is a member of a minority group? What tests should one employ to determine if a certain community qualifies to be a minority? Should the geographical area to decide the status be a district, state or country? Are minorities based on faith, language, or ethnicity?

Various judgments spanning many decades have ventured to address these questions. The 1957 Kerala Education Bill case kind of gave two tests – a minority should be numerically smaller (less than 50 per cent) and will be defined in reference to the law. Therefore, if it is a state law that is in question, state population will determine minority and if it is a central law, the national population will be the criterion. These views were reiterated in several subsequent cases – Shri Krishna v. Gujarat University, D.A.V. College Jullundar v. State of Punjab, Sree Jain Swetambar Terapanthi Vidyalaya v. The State of West Bengal, and others. But after decades of holding this view, the 11-judge bench of the Supreme Court in TMA Pai foundation v. State of Karnataka ruled that since the linguistic minority can only be decided on the basis of state population, the same test should also apply to religious minority. This was a major shift and is currently the prevailing view of the court.

Coming to the specific topic of minority education institutions, before the Pai Foundation case, the court interpreted Article 30 liberally, especially the words “of their choice”.

Here is a brief list of expanded autonomy given to the minority institutions under Articles 29 and 30 through various court judgments.

• A minority institute set up before the constitution came into effect will enjoy the protection of Article 30(1).
• A minority institution need not have been set up by a citizen of India. A foreigner, resident in India, may also set up the institute with the help of local minorities.
• In Sidhirajbhai v. State Of Gujarat, the Supreme Court held that the right given to minorities under Article 30(1) was meant to be real and should not be whittled down in any manner. The court ruled that this did not confer absolute power on minorities but, however, it gave great autonomy by suggesting that if the state regulates a minority institution, then the regulations must pass two tests a) the regulations must be reasonable; and (b) it must be regulative of the educational character of the institution and conducive to making the institution an effective vehicle of education for minority community or other persons who resort to it.
• Minority institutions have the right to choose the medium of instruction as it is important for the preservation of culture. Though the state can prescribe a medium, it should also allow the language of instruction of minority communities.
• Even in the area of recognition/affiliation of a minority institution, the autonomy is much more than for general institutions. The state cannot put conditions for affiliation of these institutes which may jeopardise their rights under Article 30(1).
• The state cannot take over a minority institution except when the institution itself offers to surrender itself unconditionally. The courts have held that the interests of minority institutions is best served if they themselves are in control of administration.
• As far as appointment of staff, service conditions and disciplinary control by the administration is concerned, the courts have considered them regulatory measures and have held that regulations help achieve security of tenure of teachers, improve service conditions will ensure in enhancing academic excellence. So, the state can regulate in these secular areas.
• Such institution will still be a minority institution if it has taken funds from general public and not just the minorities.

Apart from these, a Twitter handle reputed for commentary on education, @RealityCheckInd, lists many other exclusive benefits minorities receive: minority institutions funded by government are aided up to 95 per cent, they do not have to follow reservation guidelines for SC/ST/OBCs in hiring teachers, no restrictions are placed on hiring non-minority faculty, and they can determine their own criteria for admitting students.

But most important of all are the judicial developments on two very important matters that have been cast in stone over the decades by constant reaffirmation by the courts.

The first is the kind of students a minority institution can admit, and the second pertains to the kind of education they can impart. The judiciary’s pronouncements in answering these questions give us an idea of how broad the rights of minorities have become.

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 ‘sprinkling’. This was later decided in a historic decision in St Stephen’s College v. University of Delhi. Delivering the majority judgment, K. Jagannatha Shetty said:

He also ruled that ‘the admission of other community candidates shall be done purely on the basis of merit.’ However, giving freedom to reserve 50 per cent seats to minorities raised objections that this infringes on the rights given by Article 29(2) which says: “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.”

Justice Shetty went further and put the rights granted by Article 30(1) on a higher pedestal than those given by Article 29(2) and held, “The fact that Article 29(2) applies to minorities as well as non-minorities does not mean that it was intended to nullify the special right guaranteed to minorities under Article 30(1).”

The second question relates to the type of education minority institutions could impart. One argument was that Article 30(1) should be read in conjunction with Article 29(1) which states that any section of citizens have the right to preserve their culture. Therefore, a minority group that is setting up an educational institution should do that only to preserve their culture or language through the imparting of education that will do the same. After all, why would a minority wishing to impart secular education need the protection of Article 30(1).

Another argument was that Article 30(1) should be read in isolation and the words ‘of their choice’ meant the framers of the constitution wanted to give them vast powers, so it is up to them whether they want to impart religious education to propagate and preserve their culture or secular training. This second view has prevailed in the courts: Justice Das in the Kerala Education Bill case, Justice Hidayatullah in W. Proost v. State of Bihar, Justice Ray in St. Xavier’s College v. State of Gujarat, Justice Reddy, Justice Khanna, Justice Mathew, Justice Beg, and Justice Dwivedi have reiterated these views over the years and the issue has now effectively been set in juridical stone. All have maintained that without giving minority institutions right to impart secular education, the right under Article 30(1) would cease to be meaningful.

However, what may be technically correct legally need not serve the cause of fairness. Consider the implications of the rulings: Let us say that there are two schools in a district, one run by minority Christians and another by Hindus. Both impart secular education and teach the same subjects. Now, let us say that the two have 10 and 12 percent Christian students respectively. According to the courts, the Christian school with a lower percentage of Christian students than the Hindu-run school has more autonomy in the management of its affairs. A complete mockery of justice!

This was the situation before the 93rd constitutional amendment was passed. Furthermore, in K.A. Hamid v. Hohd Haji Saboo Siddik Polytechnic case, the Bombay High Court ruled that the government’s order that asked polytechnics to reserve a certain percentage of seats for SC/ST students cannot be made applicable to the minority institutions as it violated Article 30(1). As this ruling clearly indicates, it is not possible, in the interests of fairness, to expand the ambit of the RTE to include minority institutions as such legislation has no legal standing.

The question arises, if minority institutions enjoyed so much autonomy what was the need to pass the RTE Act and the 93rd constitutional amendment?

Pre-Sonia Era

The answer to the above question lies in three back-to-back judgments delivered by big benches of the Supreme Court which gave great autonomy to Hindu-run schools, though still not at par with minorities institutions.

The TMA Pai Foundation v State of Karnataka judgment came in 2002. Justice Kirpal, writing the majority decision, wrote:

“The fixing of a rigid fee structure, dictating the formation and composition of a government body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.”

“In the case of unaided private schools, maximum autonomy has to be with the management with regard to administration, including the right of appointment, disciplinary powers, admission of students and the fees to be charged.”

He further wrote:

“Like any other private unaided institutions, similar unaided educational institutions administered by linguistic or religious minorities are assured maximum autonomy in relation thereto; e.g., method of recruitment of teachers, charging of fees and admission of students.”

As is clear from the language, this brought non-minority private unaided institutions at par with the minority institutions. Additionally, the court answered the question, “Whether the non-minorities have the right to establish and administer educational institution under Article 21 and Article 29(1)read with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions?” as follows:

“The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26, to minorities specifically under article 30.

All citizens have a right to establish and administer educational institutions under Articles 19(1) (g) and 26, but this right is subject to the provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in this judgment.”

This still gives more autonomy to minority institution but Hindu-run schools now stood almost at parity with the former.

The fact that a 11-judge bench delivered this judgment multiplied the worth of its substance. However, a new five-judge bench was constituted in Islamic Academy v State of Karnataka, where the court argued that TMA Pai Foundation v State of Karnataka could not be interpreted to mean ‘that non-minority educational institutions would have the same rights as those conferred on minority educational institutions by Article 30 of the Constitution of India. Non-minority educational institutions do not have the protection of Article 30. Thus, in certain matters they cannot and do not stand on similar footing as minority educational institutions.’

The majority argument was that minority institutions “stand on a better footing than non-minority institutions.” It states that the protection under Article 30(1) is available as a “special right” to minority educational institutions only. However, Justice S.B. Sinha writing separately, said that it was not a “special right” but only an "additional protection". Parity still eluded Hindu-run schools but the autonomy won by them in TMA Pai Foundation v State of Karnataka was upheld. In 2005, a seven-judge constitution bench in P.A. Inamdar v State of Maharashtra was constituted to further clarify issues that arose from these two previous judgments. It ruled that “neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution.”

Sonia Gandhi Era

The rulings in Pai Foundtion and PA Inamdar, combined with Justice SB Sinha's statement defined the field fairly precisely and to the detriment of the RTE Act which was in its nascent stage. A constitutional amendment was required to allow for its provisions in favour of minority institutions at the the expense of Hindu schools. The 93rd amendment added a clause to Article 15 that effectively nullified the entire body of case law on sectarian educational institutions. It read:

The 93rd amendment specifically targeted the protection extended to majority community by the Supreme Court in TMA Pai foundation case under article 19(1)(g). It also targeted not just government aided Hindu-run schools but even private unaided ones, conveniently leaving out minority education institutions because the government knew the courts would otherwise strike it down.

In Ashok Kumar Thakur v Union of India, the 93rd amendment was challenged. The Court ruled that constitutionality can be tested only if the government passed a law. And it did: in 2009, the RTE act was passed. It did not need to state that the law applied only to Hindu-run schools because the 93rd amendment already took care of that. In April 2012, the Supreme Court in Unaided Private Schools of Rajasthan v Union of India, ruled that unaided minority educational institutions were outside of the purview of the RTE Act but:

“…We hold that the 2009 Act is constitutionally valid qua aided minority schools.”

In a most politically transparent move, the UPA government rushed to save aided minority institutions and within 12 days of the Court's judgment, amended the act.

Kapil Sibal reasoned in Parliament:

Nonetheless, the constitutional validity of the 93rd amendment was yet to be decided by the Supreme Court. It formed a five-judge bench to hear the matter. The bench included RM Lodha of IPL fame and Dipak Misra, the Chief Justice of India-in waiting. The judgment, authored by Justice A.K. Patnaik, was delivered exactly 10 days before the results of the 2014 general election were declared and dashed all hopes of parity between Hindu education institutions and minority ones.

The court noted that though the judges in T.M.A. Pai Foundation case ruled that the establishment and running of an educational institution “is occupation” within the meaning of Article 19(1)(g) of the Constitution, they also said this right and autonomy will not be affected if a small percentage of students belonging to weaker and backward sections of the society were granted freeships or scholarships. It also did not agree with the petitioners that Article 15(5) destroys the rights of the majority to run educational institutions with autonomy. It noted that Article 15(5) affected the voluntary element of this right under Article 19(1)(g) of the Constitution “to a very limited extent.”

The Court's capacious definition of “very limited extent” to mean a quarter of seats at no cost certainly stretches the bounds of reason, not to mention that the limit of 25 per cent is arbitrary and may rise even higher at a future date. It is only the floor of the quota that is set at a quarter of all available seats.

Enter Modi

There were high hopes from Narendra Modi that he will not allow such sectarianism in education to continue if voted to power. Disappointingly, for his followers, sectarian scholarships have not just increased in number but also in budgetary allocations from the BJP government. Furthermore, instead of working to undermine the RTE, state BJP governments are zealously implementing the provisions of the Act. The efficient governance model Modi promised to usher in during his electoral campaign is now pushing Hindu schools towards closure faster as minority schools are booming and Hindu edupreneurs do not dare to enter such a hostile market.

Way Ahead

It is clear that repealing the RTE Act and the 93rd amendment won’t bring parity to educational institutions. Even judgments which have been favourable to Hindu institutions have maintained that by the virtue of Articles 29 and 30, minority institutions are on a superior footing to Hindu schools. To attain absolute parity, Articles 29 and 30 will have to be amended which is highly unlikely.

This is not to discourage from repealing the RTE Act and the 93rd amendment; rather, it is to underline that those can only be a first step and will provide some relief to Hindu schools. Greater autonomy must be fought for under Article 19(1)(g).

Meanwhile, in the short run, the easier move in the direction of educational sectarian parity would be to pluck the low-hanging fruit of abolishing sectarian scholarships. No majority in the upper house of Parliament is required unlike the more challenging agenda of dismantling institutional sectarianism within Indian education. If the BJP cannot achieve even this, it might at least consider opening up these same scholarships to all or at least the economically under-privileged regardless of religion.

Time is of great essence in a critical area like education. A generation can make or break the country. We can only hope that it is not too late before Lok Kalyan Marg wakes up to these adharmic policies.

Writer’s note: A much truncated version of this piece appeared in the May issue of Swarajya.

This article is part of our special series on the shortcomings of the RTE Act. If you would like to sponsor a subscription to raise awareness on this issue, please click here.