The RSS Is Right In Asking For A New Definition For 'Minority' Institutions

Why the RSS and Bharatiya Shiksa Mandal (BSM) initiative must be welcomed

Now let me explain why the BSM initiative must be welcomed. The rest of this article lays out the spread of education laws and the sectarianism that has been baked in. Those who are just education consumers may be less than impressed but remember these are life-death issues for those who are trying to be suppliers.

The real facts about Minority quotas

For aided minority institutions

The rule established by St Stephens judgment  is 50% [of students] must be from the minority community.  Unfortunately the expected precision is lacking from most judgments in this area. The rule was that the state can regulate intake in minority-aided institutions no more than 50%.  This has come to mean in practice a 50-50 split with the minorities granted their own admission rules in the open category 50%. They are exempt from the OBC quota and it isnt entirely clear if they can be exempt from SC/ST quota too.  See the cases in Sindhi Educational Society v NCT Delhi (2010) SC and  Federation of Catholic Faithful  vs Tamilnadu (2014) Madras HC. We will get to this in a moment.  It is also important to note the distinction between aided schools vs aided colleges. Post #RTE the aided minority schools are exempt from the law in toto.

For unaided minority institutions

There was no set rule. After the cases in the TMA Pai troika, the minority and Hindu-run unaided institutions were on the same level (give or take a few). Post enactment of the 93rd Amendment and the RTE Act the ground has completely shifted from under the Hindu unaided schools. This is why the RSS/BSM move is of an urgent nature.  The entire gamut of top schools across the country from St Columba’s to Bishops to Campion to La Martiniere  fall under the unaided minority category. The essence of the argument is –  schools that have low minority student ratio are exempt from all burdens imposed only because the management happens to be clergymen or individual minority born persons.  This leads to the following absurd situation for example :

where Christian-run school with 5% Christians is exempt but Hindu school with 5% Christians is met with full force of the burdens imposed by the law.

There have been efforts in Karnataka and Maharashtra to peg the minority student content anywhere from 25% to 75% – but they have not been fructified because the folks are unable to think with clarity and establish new principles or even to defend existing one. If I may speak for a moment on behalf of RSS/BSM – this is the hub of the issue. Parity.

Benefits of minority status in India’s education sector

First folks have to understand the astounding benefits that ‘minority’ status bestows on an educational institution. Here is a quick summary.

Note that this list varies in minor ways from state to state. Some go over and some under. The general benefits remain the same across all states.

1. Aided minority institutions are usually aided upto 95% of the salary of the staff. This comes out of all taxpayer money. This is where St Stephens case (1991) got it wrong.  The state is essentially subsidizing 50% christian quota by tax money which all Indians including Hindus, Christians, and Muslims pay.

2. Minority Aided schools or colleges do not have to follow the TEACHERS quota for SC/ST. They can promote a pure meritocracy (whatever that means) or innovate in this matter.  ( See Sindhi Society Case )

3. Minority Aided schools or colleges can hire Hindu faculty without any limit. Only the top management is permanently with the clergy.  For example : St Stephens has a large Hindu teaching body.

4. Minority Aided [schools and colleges] can apply own selection criteria for students. This was actually the real issue with St Stephens case (1991). They wanted to add a written test + interview on top of DU rules. The court allowed them that autonomy. Today Stephens is able to break the grade inflation induced tie-breakers by conducting a written test and interview. Hindu colleges  have to follow DU rules strictly.

5. Minority Unaided and Hindu Unaided [schools and colleges] pretty much have the same freedom after TMA Pai.  But as soon as Congress swept into power in 2004 the first thing they did was demolish TMA Pai by passing the 93rd Amendment.  As it stands, the wording of Article 15(5) – introduced by the 93rd Amendment –  is very wide and practically transfers the entire (unspecified) social burden only on Hindu-run schools and colleges. The language also redundantly and explicitly excludes minorities.

6. Minority aided [schools and colleges] can innovate promotion of their teaching cadre. They need not follow seniority rules, or go to the government employment exchanges for new vacancy. They can advertise and recruit on their own.  [This is] Denied to Hindus.

7. Minority aided colleges need not have a University nominee on board. Even one. In many cases, including St Stephens the Church of North India clergymen have total control of the affairs of the institute.  Similarly minority schools need not have a Govermentt Education Officer on board.  The ratio in  State of Kerala v Very Rev Mother Provincial (1970)  still holds the field. In that case, the impugned provisions were like this. Minority colleges were to have a governing board of 11 members – 6 from the college itself (thus a simple majority) and among the balance of 5 the principal and manager of the college. Thereby making up a majority of 8-3. The remaining three were to be University Nominee+ Teachers nominee + Goverment appointee.  Even this hopeless minority oversight of these taxpayer aided colleges were rejected by the court.

8. Minority colleges (Aided by govt) are completely exempt from OBC quota. They are also exempt from the SC/ST quota post a 2014 judgment that interpreted the 93rd Amendment to be so. News report “Minority colleges out of quota purview”  and judgement in Federation of Catholic Faithful vs TN

9. Minority colleges in Mumbai also have a 15% management quota on top of the 51% set aside for minorities. They are free to fill this with anyone.

10. There is no need for Minority [school or college] to be run by a religious trust – a single minority person can run a school and get all the exemptions. Deccan Education Society vs Karnataka.

11. The minority institutions can impart a totally secular education identical to that imparted by the Hindu school across the street.  This is actually the crux of the issue in a epic 9 Judge Bench in Ahmedabad St Xaviers vs State of Gujarat (1974)a 44 year old case. Among other things like exempting St Xaviers from University interference in selection the case delinked ‘preservation of culture’ (Art 29) from ‘right to establish and run’ (Art 30).  At this point, it isn’t exactly clear how the below absurdity does not follow.

Do institutions established by minorities that are engaged not in preservation of culture, but destruction of culture also avail of legal exemptions?  Conversely Can a Hindu establish a school that has a clergyman come in and conduct regular Catechism and then avail of minority benefits because obviously he is promoting preservation of culture that even Stephens and Xaviers do not insist on?

These are simple absurdities that would never get past the “Golden Rule of interpretation” that Western societies  have evolved over time from the period of Modernity. Is this alien to Indians ?

12. Takeover of minority institutions. Tamilnadu and other states have excluded minority institutions from takeover provisions, at best, they can appoint a minority member belonging to the same religion. [ Refer to News Report “State cannot takeover minority school management“]   Most folks may not have heard of  the All Bihar Christian Schools vs State of Bihar, a landmark case where the state took over non-minority schools. The rule today is : only if a minority school itself makes a representation to takeover that is possible.

13. Permission to expand class size and hiring.  A minority aided school in many states like TN can first expand to cater to demand and then apply for aid to pay for the new teaching/non-teaching staff capacity.

14. Selection of teachers.  No university, govermentt, civil society, or teachers union (body) representative can be imposed on the selection panel when hiring teachers in minority aided colleges.  In Hindu colleges in addition to faculty reservation and other rules regarding seniority based hiring, there is presence of goverment,university,and teachers.

15. Private goods.  The Congress government with such scholars like Shashi Tharoor in the Humam Resources Department ministry introduced schemes like IDMI which were grants given to private minority institutions and denied to a similarly situated (and bearing all of the above legal burdens) Hindu school across the street. This may be an aberration and may not be repeated in the current MHRD, but lets not forget 2019 is not far off.

16. Establishment. A minority and Hindu have different processes – while a number of formalities may appear to be the same, minorities who face difficulty in obtaining a NOC (No Objection Certificate) in the states can approach the NCMEI and get that case heard by a minority only panel. The NCMEI also has the power to issue a minority certificate.  This is not a minor issue (no pun) as the NCMEI has issued thousands of such certificates post the 93rd Amendment. See my article “Bulkwarks erected against redefining minorities in India’s education system”

Post #RTE the situation has dramatically changed.

Prior to the 93rd amendment, even though the aided minorities were getting all of the above benefits denied to Hindus, the unaided institutions were on parity more or less. However, the Congress government aided by the Sonia Gandhi NAC, disrupted the status quo. Even though the public face of Congress is goofy, the inner core appears to work strategically.  The Congress first passed the 93rd Amendment to the Constitution and then instituted the NCMEI. I have blogged about these TWIN initiatives of Congress extensively in “A Brief History of the 93rd Constitutional Amendment“.  Post RTE the Hindu institutions are under an open-ended liability under a statute capable of very wide interpretation.  There is no rationale to either the 25% quota nor to the stopping of quotas at Class 8. The NGO activists who spun off from the Congress party’s NAC  and founded the Aam Aadmi Party are now taking this further. They are now slotting various conducts of Hindu run schools into a criminal code. For instance, a screening procedure – which is an essential component of autonomy – would result in MINIMUM 5 year jail term and a MAXIMUM 10 year. A school principal who decides who to admit [a student] is being punished like a rapist murderer.

To give you an idea of how skewed the 93rd Amendment is – I present this passage from the Sindhi Education Trust v NCT Delhi  (2010)  case

1. Article 15(5) of the Constitution excludes the minority educational institutions from the power of the State to make any provision by law for the advancement of any social or backward classes of the citizens or for Scheduled Castes and Scheduled Tribes in relation to their admission to educational institutions including private educational institutions whether aided or unaided. This Article is capable of very wide interpretation and vests the State with power of wide magnitude to achieve the purpose stated in the Article. But, the framers of the Constitution have specifically excluded minority educational institutions from operation of this clause

Framers of the Constitution? Really?

Article 15(5) was introduced, not by Ambedkar or Patel – but  by Congress stalwart Arjun Singh aided by Sonia and likes of Kejriwal in the NAC.  Are these the framers of the constitution?  This is the real problem with an unchecked culture of amendments that mutilate the original document.  We confuse the ‘framers’ with the ‘mutilators’. In the end there is no spirit – the amendments are several times more voluminous than the original.

This sectarianism in education only in India ?

There is no country in the world with this skew. There is Ireland – but Catholics are a majority there and there is already a movement afoot to start a debate on that.  One can raise the issue of state funding Catholic schools in province of Ontario in Canada. Catholics are a minority in Ontario but majority in Quebec. This is a rich country with quality public schools and this special protection was negotiated by a 150 year old  treaty. There is already a debate in Canada to end this. United States has the cleanest separation – the state will not touch by way of taxpayer money any religiously controlled school or college. France has issue too but once again France is majority Catholic (nominally). Iran outlaws minorities from running schools. [In the] UK faith based schools can be funded but they must be faith based not normal schools merely controlled by practitioners of a certain faith.  Face it ; this is a unique Indian invention. I fully understand that India does not need to copy the Western societies and can blaze its own path, so I won’t dwell on this further. It is however important to keep in mind that equality is the norm everywhere and India is the outlier.

Should minority body be the yardstick?

This may not be desirable but is better than the current definition.  Insisting on a minority student body at , say 80% places a natural check on the ability of these institutions to proliferate.  Once again, I remind readers that no one is against CHRISTIANS or MUSLIMS or JAINS operating schools under the SAME rules as Hindus. They are free to proliferate under a secular law. I had to sneak in this obvious sentence to avoid being accused of various atrocities.  The reason this rule won’t work in the short run is the quantity of minorities must be high enough such that Hindus do not misuse this route and turn it into an absurdity.

For example if the minority quota is only 10%;  and the rule was minority body is the yardstick;  then a Hindu should also be able to start a school with 10% minority quota and gain the exemption.

 Linguistic?

From media reports it is clear the RSS wants to introduce a non-sectarian regime in education. That would automatically submit the linguistic minority to the same regime. On a side note, while linguistic minorities are equally abhorrent to equality in education, if you believe in the logic that there are forbidden grounds for discrimination then linguistic minority is a lesser evil than religious or racial minorities.

The way forward.

I hope I have explained how despite the crass name calling from the Liberal and Idea of India camp – it is the Chaddiwallahs, that have modernity on their side in this particular case.

Now, what is the way forward.

To find a way forward there need to be practical compromises keeping in mind the principles of harm. Why should this be discussed at this time? First everyone must admit that the RSS and aspiring Hindu education providers have clinching arguments from their side. The current situation is also not a tenable one because due to social media it is no longer possible to divert people’s attention or to prevent the debate from taking place entirely. Some intellectuals lament the absence of ‘constitutional method’ – here is RSS using a constitutional method and is being ignored completely or being attacked for wearing Chaddis. For constitutional methods to work India needs folks with genuine curiosity and honesty, those who can spot valid arguments and engage with them irrespective of who is making them.

See also: Minority Educational Institutions: The UPA’s Unconstitutional Law