• The key question is: is there any other country in the world where the majority community is discriminated against like this?
• What is Net Impact of Article 30 and RTE?
• Article 30 must be amended immediately and all sections of Indian society must be granted equal rights for running educational institutions.

We are repeatedly told that all Indians are equal before law but not told how some laws apply unequally to the majority community. Right to management of educational institutions is an example. 

Article co-author is Hariprasad Nellitheertha

Article 30 (1) of the Constitution states: “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

What is background to Article 30?

The initial Draft versions of the Indian Constitution prepared by Dr K M Munshi had proposed explicit, and equal, educational rights to all communities. However, when this section was referred to the Minorities sub-committee of the Constituent Assembly, what came out was a very different version. It read:  

“All minorities, whether of religion, community or language, shall be free in any unit to establish and administer educational institutions of their choice, and they shall be entitled to State aid in the same manner and measure as is given to similar State-aided institutions.”

The origin of Art 30 lies in the discussions held primarily in the Second Round Table Conference held in 1931. It was derived from the memorandum submitted by Indian Christian representatives then. The version of the clause in the memorandum actually asked for “equal rights for all religions”. However, in the joint agreement version, that particular phrase was left out.

Therefore, Indian Christians whose schools received preferential treatment during British Protestant rule wanted special rights to continue after independence. (co-author went to a convent school that started around 1870).  

When the Constitution was adopted the majority community was anyway expected to enjoy complete freedom in matters of culture, religion and educational rights. Alas! That was not to be.

This article looks at provisions of Article 30 and Right to Education Act (RTE), their interpretation by courts and how implemented. It is presented in an FAQ format for easy reading.  

Article 30 provides similar benefits to religious and linguistic minorities.

Firstly, who is a religious minority?  The Indian Constitution does not define the word ‘Minority’ and assumes that Sanatana Dharma is a one-book, organised monolith like Abrahamic religions. 

In 1950, religious minority meant Muslims, Christians and Parsis. Today it includes Sikhs, Buddhists and Jains. The Constitution does not specify a population percentage beyond which a community ceases to be a minority, meaning 50 crore Muslims would still be a minority because their population is less than Hindus.  

This lack of definition has resulted in quaint situations. In Punjab, Sikhs constitute more than 50% of the population but are considered a minority for the purposes of Article 30 since their population on all an Indian basis is less than that of Hindus. Ditto for Muslims in the erstwhile state of Jammu and Kashmir or Christians in Meghalaya.

Next, who is a linguistic minority? Since the creation of linguistic states, a community whose mother tongue is the language of the State is the majority and others minority.

So a school started by a Gujarati speaking Hindu in Maharashtra is a linguistic minority because Marathi is the language of the state. If the majority trustees of a charitable trust, that run a school in Maharashtra, are Gujaratis the school is deemed to be run by a linguistic minority. Needless to say this provides scope for misuse.

What is the current scenario?

Over time, courts received numerous cases relating to educational rights, and passed judgements interpreting provisions of the Constitution from the point of view of the majority and minority communities. Here are some significant court orders and their impact.

Q1. What type of institutions can be started by minorities that gave them protection under Article 30 (1)? 

According to ‘re Kerala Education Bill’ judgement the Supreme Court (SC), in 1958, made it very clear that Article 30 (1) allows minorities to open and run ‘any kind of institution’. There are no limitations placed on the subjects to be taught in such institutions, a particular religion or language may or may not be taught. 

SC said, “In other words, the Article leaves it to their choice to establish such educational institutions as will serve both purposes, namely, the purpose of conserving their religion, language or culture, and also the purpose of giving a thorough, good general education to their children.”

Thus, minorities can open schools, colleges, management institutions, medical colleges etc. It will be deemed to be a minority institution if the religion or language of the management is minority. It does not matter if the nature of the institution has no relation to preserving the minority community’s culture and religion.

Does this not put the majority community at a disadvantage?  

Q2. Do minority institutions teach or evaluate in a different way?

Notwithstanding the special rights, minority institutions teach the same way and evaluate using the same tools. In the ‘Ahmedabad St Xavier’s College….’ case, the Supreme Court said:

“With regard to affiliation to a University, the minority and non-minority institutions must agree in the pattern and standards of education. Regulatory measures of affiliation enable the minority institutions to share the same courses of instruction and the same, degrees with the non- minority institution.”

Q3. Since Article 30(1) rights is meant to further religious and cultural aspirations of minorities, one would assume its students are limited to those belonging to the minority community that runs the institution.

No. A minority institution can admit student from all communities. It does not have to admit a pre-determined percentage of students from that community to qualify as a minority institution. Courts support this view.

In the ‘TMA Pai Foundation vs Others 2002’ Case, the Supreme Court quoted one of its earlier judgement in the matter and stated:

“…The real import of Article 29(2) and Article 30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution. Indeed the object of conservation of the distinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular minority community…”

Does the order tacitly support the propagation of religion by minority communities?

What is a good percentage in terms of ‘outsiders’ vs ‘insiders’ is left to individual state governments to decide? The figure for minority community students in Karnataka is maximum of 25% and Maharashtra is 50%. It is doubtful if these percentages are in public domain and monitored by State governments.   

Thus, we see that in this market segment of ‘education’ the majority and minority communities are operating on the same material (institutions), performing the same processing (teaching, standards, evaluation) and delivering the same products (graduates) and yet only one market operator – the minorities – get special privileges. More about this later.  

The British created a concept of majority and minority that does not exist in their country, and sowed the seeds for discrimination against the majority community that Protestant majority does not suffer from in England. This idea of giving specific concessions to minority communities that do not apply to majority communities is, to the best of our knowledge, not found in any country.

Q4. Like Article 30(1) for minorities do Hindus have similar rights?

The Supreme Court has on various occasions said that the non-minority communities derive a ‘similar’ right from Article 19(1) (g) of our Constitution which gives every citizen the right to carry on any occupation etc. Article 19 reads: 

“Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(g) to practise any profession, or to carry on any occupation, trade or business”

However, the difference between the two sources of rights is that while Article 30(1) is unhinged and carries no exceptions, Article 19(1) (g) has a restrictive clause under Article 19(6) that imposes certain restrictions on the rights and reads:

“(6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or……”

Since 1950 governments have, supported by the Judiciary, used Article 19 (6) to bring in laws that control each and every aspect of establishing and administering majority community educational institutions.

Why is the majority community being denied the right to conserve their language, culture and religion?

Q5. What are the rights that minority but majority community institutions do not have?

In the ‘TMA Pai Foundation vs Others…’ judgement the Supreme Court has listed these rights. 

“50. The right to establish and administer broadly comprises of the following rights i.e. to:

(a) Admit students:

(b) Set up a reasonable fee structure:

(c) Constitute a governing body;

(d) Appoint staff (teaching and non-teaching); and

(e) Take action if there is dereliction of duty on the part of any employees.”

This table compares rules for majority vs minority community educational institutions.  

Let us look at some of these rights in some detail.

1. What does Right to admit students mean?

This involves the type of students being admitted and procedure to admit students.

One, minority institutions need not reserve 25% of the seats under the Right to Education (RTE) Act. Conversely Hindu schools have to under RTE, reserve 25% of their seats to be allocated by the government. The RTE was held valid by the SC in the ‘Pramati Educational Society…’ case year 2014.

Why is the responsibility of educating children from economically weaker sections of society placed on the majority community alone? 

Two, there is a huge disparity on the procedure to be adopted with respect to selection of students. Section 13 of The RTE Act says:

“No capitation fee and screening procedure for admission: (1) No school or person shall, while admitting a child, collect any capitation fee and subject the child or his or her parents or guardian to any screening procedure.”

It means that a RTE compliant institution cannot screen any child to determine whether or not he/she will fit well into the school for students admitted under RTE quota. A Mumbai based school administrator told this author that many parents moved their children out of their school due to poor quality of students admitted under RTE. It is not that the school did not want to take students under RTE but there has to be a profile match. 

Minority institutions have always enjoyed complete freedom in selecting students. This has been highlighted by the SC in the ‘Sindhi Education Society….’ Judgement:

“A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit.”

The words fair and transparent allow scope for misinterpretation and abuse.  

As a result, minority institutions have freedom in selecting students that is not available to non-minority institutions.

2. How are schools paid for students taken under RTE?

There is invariably a large gap between expenses incurred and reimbursement by the state government. Reimbursements are not prompt either.  

In February 2019, over 4,000 schools threatened a one day bandh in Maharashtra due to a delay in reimbursement of student fees to schools.

The state government tried to reduce its liability by modifying the norms for RTE reimbursement stating that “if a private school is using any government land and benefiting from the same then the school would not receive reimbursement for students who have been admitted in 25 per cent RTE quota,” Mumbai Mirror.

A Mumbai based school was told that it could claim exemption from this provision if it paid property taxes in excess of Rs 1 lakh per year.

Delays in reimbursement adversely affect school cash flows, increases costs and puts them at a disadvantage as compared to minority community schools. Members of the majority community complain why so few schools are run by them, most are unaware of this discrimination?

3. How has RTE negatively affected Hindu schools?

According to the trustee of a Mumbai school that belongs to the majority community,

“The number of students is restricted to 40. The subsidy does not cover all expenses. There is no clarity on what is covered under subsidy for e.g. books, uniforms, fees for additional facilities, sports etc. This leads to constant arguments with the education department who advice parents to demand the same from schools inspite of not being clear on matter. If parent do not pay, school has to bear the cost as you cannot single out these students.” 

“There is no clarity on how fee subsidy is fixed. It allows unfettered intrusion and interference from education department and parents. It is very difficult to expel students for harmful activities, bad behaviour etc. Vacancies on account of shortfall (difference between total number on 25% basis and actual admissions taken under 25%) in number of RTE students cannot be filled up at all so seats remain vacant. This results in financial loss for majority community schools.”

This is also a national loss as some students lose opportunity to learn in private schools which are better than government schools.

Why must schools of the majority community be discriminated against like this? 

4. Right to appoint teaching staff.

In Maharashtra majority community schools are given a Teachers Rule Handbook. Name of book by which they govern secondary schools is called SS Code. The minority community have to adhere to this only if they receive government aid. Further, state government can transfer surplus teachers from other aided school to another without consulting management.

Also, according to a March 2018 Madras High Court order , irrespective of whether the institution receives government aid or not, the Court has ruled that teachers are exempt from Teachers Entrance Test (TET). So teachers of majority community schools have to go through TET but not minority. 

Minority institutions have complete autonomy in selection of teachers, the only restriction is that the process must be fair and transparent, subjective to say the least.

The ‘Sindhi Education Society….’ Judgement elucidates on this matter as well:

“……in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself…”

Conversely, state governments have made laws detailing multiple qualifications for appointment of teaching staff to educational institutions. Majority community run institutions have to strictly adhere to these norms.

According to a trustee of a school in Maharashtra, all can fire teachers after conducting an enquiry as mandated by the law. But except for aided schools, education department is not involved.

He adds that generally education laws in Maharashtra are applicable to every school, but education department is reluctant to challenge the minority schools or take action on complaints. Also, all boards make it compulsory to adopt state qualifications for teachers. So indirectly, it is applicable to minority schools also.

When there is no standardization of teacher qualification, can the quality of teaching be consistent? 

Further, a minority institution can appoint a teacher for a secular subject based on religious considerations, whereas a majority community run institution cannot do the same, even if it intends to further the cultural and religious education of Hindus.

For example, in a minority school, even a teacher of mathematics or science can be selected in such a way that their adherence to the religious principles of the particular minority is taken into account.

On the other hand, no Hindu school can make choices of similar teachers involving any religious or dharmik factors.

This makes it difficult for Hindu runs schools to teach their culture and religion making children grow up in a cultural void.  This is one of the reasons why those want to seriously study or teach Sanatana Dharma migrate abroad, mostly the U.S., because there is freedom to learn and a better appreciation of Indian thought in that country.

5. Right to appoint management (principal)

Article 30 (1) provides minority institutions with a large amount of flexibility in the matter of appointment of a Principal or Headmaster.

The Supreme Court ruled thus in the ‘The Secretary, Malankara Syrian….’ Judgement:

“Section 57(3) of which act specify provides that the post of Principal when filled by promotion is to be made on the basis of seniority-cum-fitness. Section 57(3) trammels the right of the management to take note of merit of the candidate, or the outlook and philosophy of the candidate which will determine whether he is supportive of the objects of the institution.”

“Such a provision clearly interferes with the right of the minority management to have a person of their choice as head of the institution and thus violates Article 30(1). Section 57(3) of the Act cannot therefore apply to minority run educational institutions even if they are aided.” Act is “Kerala University Act, 1974.”

Only a minority institution can appoint a Principal keeping aside concerns of seniority and merit in order to further the objectives of the institution.

One wonders why the principals of majority should be controlled by state laws when the same does not apply to those run by minorities.

6. Restrictions on Fees

Hindu schools have to get their fee structure approved by the State Education department. Unaided schools do not require pre-approval of state government for fixation of fees. If the increase in fees is challenged by the parents then procedure laid down by the law is followed. In practice, minority school parents do not complain about increase in fees.

7. Right to provide religious education 

Article 28 of the Indian Constitution states that no religious instruction shall be provided in any educational institution wholly maintained out of State funds, simply put no Government school can provide any religious education.  

Whenever the government provides aid to a Hindu run institution (even private), the same becomes ‘aided’ thus teaching ‘religious practices’ is disallowed.

Conversely, when the same government provides aid to a private minority institution, it does not stop it from teaching religious principles and practices.

What is difficult to fathom is this disdain, for teaching of Sanatana Dharma in educational institutions, by those who drafted and interpret the Constitution? No wonder children grow up without an understanding or appreciation of Indian culture and thought.  

Even if a government school has 100% Hindu students, it cannot provide any religious education to them.

Even if a minority institution has only 1% of the student body belonging to the actual community, it can still teach religious education to all students belonging to any religion. This continues even if the said institution is aided significantly by the same government!

8. Based on Art 28, can the state government deny aid to a minority institution because it imparts religious education? 

The Constitution, however, prohibits such a possibility through Article 30(2), which reads:

“The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”

Other regulations for Hindu schools 

Hindu run schools face multiple other regulations for which individual States have prepared rules for e.g. mandatory requirement of a certain amount of real-estate, infrastructure, sports and play equipment, compulsory establishment of libraries, setting up of school-management-committees with 75% representation from parents etc.   

Being exempt from the above minority institutions have complete flexibility to setup any kind of an educational institution – from a budget school to a premier institution.

In case of mismanagement in a majority community institution, the State can appoint an administrator but not if the school is a minority institution. Further the State cannot insist on having its own nominees on the managing body in case of a minority institution. It has become difficult to ensure security of tenure to teachers in minority institutions.

Net Impact of Article 30 and RTE?

One, numerous Hindu run institutions face threats of closure due to excessive government regulations, many institutions, especially schools have closed down.

Two, it has given the Christian minority disproportionate advantage in the education sector. First, they inherited the management of schools set up by the British. Two, freedom under Article 30. Three, those wrote the Constitution did not visualize large funding from multinational Church based organizations.

For example the Ryan International Group of Institutions, founded by Dr. A F Pinto in 1976 has over 130 institutions today in India and abroad.

One sent a questionnaire to Madam Grance Pinto, MD of the Ryan Group, on various aspects of Article 30 including, how much of this success would you attribute to your being a Minority Educational Institution?

Her office responded, “Thank you for your email, however, we would not like to be part of this questionnaire. Hope you understand.” 

A similar questionnaire was sent to the Principal of Cathedral and John Connon School, Mumbai on November 7 2019 (founded in 1860) but yet to receive a response.

By virtue of being part of a global church network Christian schools receive foreign donations. For e.g. Tirunelveli Diocesan Trust Association that received Rs 3.72 crores in 2015-2016 and Warangal Catholic Diocese received Rs 2.89 crs in 2016-17.

Did those who drafted the constitution and interpret it visualize that Article 30 would be used the minority community to set up a huge business  and receive foreign funding from multinational church organizations to set up schools?

Three, minority schools use useful in facilitating religious conversions.

Arihant Pawariya wrote in Swarajyamag that with respect to the admission process in Central Entrance Test (CET) for B.Ed courses in universities and colleges of Andhra Pradesh the Supreme Court stated in order of September 25, 2019, “67 out of 200 students in New College of Education, Nizamabad; 90 out of 136 in Rayalseema College of Education, Kurnool etc were admitted on the basis of Baptism Certificates. In most of these cases, the candidates declared themselves to be Christians subsequent to the date of submitting their applications for the Entrance Test.” 

Former Infosys Director TV Mohandas Pai wrote in Economic Times, “Two house maids who converted said that the school where their children went raised fees and due to their inability to pay, they were told they would waive it if they converted (which they were forced to do). Of course, the school was rabid in their evangelism with these children.”

And these are only a few instances.

Four, slowly and steadily, institution building is slowing down amongst Hindus. Without institutions, Hindu society becomes weak - culturally, spiritually and educationally.

Five, communities wish not be Hindu because of excessive government control. No wonder an institution as respected the Ramakrishna Mission petitioned the Courts that they are not Hindus.  

Dr Radhakrishnan, former President of India, wrote in ‘Recovery of Faith’ page 184: 

“When India is said to be a secular state, we hold that not one religion should be given preferential status.” 

Today, all but the religion of the majority community are given preferential status.

Article 30 must, therefore, be amended immediately, and all sections of Indian society must be granted equal rights for running educational institutions.

Let us hope that in the near future Article 30(1) of our Constitution shall read as follows:

“All citizens shall have the right to establish and administer educational institutions of their choice.”

Those who speak about minority rights must read what Supreme Court Judgment in Mudgal vs. Union of India, A. 1995 S.C. 1531 (para 35) had to say:  

“Those who preferred to remain in India after Partition fully knew that the Indian leaders did not believe in the two nation or three nation theory and that in the Indian Republic there was to be only one Nation – the Indian Nation – and no community could claim to remain a separate entity on the basis of religion.”

Is there any country in the world where the majority community is discriminated against like this? 

Was the purpose of Article 30 to give minority institutions unbridled rights to set up educational empires and support conversions?

When there is so much freedom given to schools in education, will not the quality of education suffer?

Has not Article 30 led to a serious study of Indic faiths outside than in India? 

The Indian educational sector is divided into majority and minority institutions, one subject to excessive and another to minimal or no government control.

Sanjeev Nayyar is a Chartered Accountant and founder www.esamskriti.com. Hariprasad Nellitheertha is a software professional who is interested in spirituality, and law, and writes occasionally on these topics.

First published in Swarajyamag and here