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Article 30 - How Hindu Rights Have Been Seriously Damaged by Article 30 and RTE Act
Article 30 - How Hindu Rights Have Been Seriously Damaged by Article 30 and RTE Act
Article 30 - How Hindu Rights Have Been Seriously Damaged by Article 30 and RTE Act
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Snapshot
The key question is: is there any other country in the world where the majority
community is discriminated against like this?
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 the law but not told
how some laws apply unequally to the majority community. The right to
managing educational institutions is an example.
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It read:
The origin of Article 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.
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 various provisions of Article 30 and the Right to Education
Act (RTE), their interpretation by courts and how they have been implemented.
It is presented in a frequently-asked-questions (FAQs) format for easy reading.
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The first question is who is a religious minority? The Indian Constitution does
not define the word ‘minority’ and assumes that Sanatana Dharma is an
organised monolith like Abrahamic religions, based on one book and one
founder.
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is absurd for it means even at 500 million, Muslims would still be considered a
minority because their population is less than that of the Hindus.
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Over time, courts received numerous cases relating to educational rights, and
passed judgements interpreting the provisions of the Constitution from the
point of view of the majority and minority communities. Here are some
significant court orders and their impact.
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Q1. What type of institutions can be started by minorities given protection under Article
30 (1)?
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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:
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Q3. Since the rights under Article 30(1) are meant to further the 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 students from all communities. It does not
have to admit a pre-determined percentage of students from that community
to qualify as a minority institution. The courts support this view.
In the ‘TMA Pai Foundation vs Others 2002’ Case, the Supreme Court quoted
one of its earlier judgements in the matter and stated:
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cent. It is doubtful if these percentages are in the 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. They sowed the seeds for discrimination against the majority
community that the 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.
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Q4. Like Article 30(1) for minorities, do Hindus have similar rights?
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:
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“ (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……
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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 have, but majority community institutions do not
have?
In the ‘TMA Pai Foundation vs Others…’ judgement, the Supreme Court has listed
these rights.
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“50. The right to establish and administer broadly comprises of the following rights, i.e.
to:
The table below compares rules for majority versus minority community
educational institutions.
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This involves the type of students being admitted and the procedure to admit
them to the institution
One, minority institutions need not reserve 25 per cent of the seats under the
Right to Education (RTE) Act. Conversely, Hindu schools have to do so. The RTE
was held to be valid by the Supreme Court in the ‘Pramati Educational Society’
case in 2014.
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The words fair and transparent allow scope for misinterpretation and abuse.
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As a result, minority institutions have freedom to select students that are not
available to non-minority institutions.
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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 the 25 percent RTE
quota,” says a Mumbai Mirror report.
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.
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This is also a national loss as some students lose the opportunity to learn in
private schools, which are better than government schools.
Why must schools of the majority community be discriminated against like this?
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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.
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-run schools to teach their culture and religion,
and children grow up in a cultural void.
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This is one of the many reasons why those who want to seriously study or teach
Sanatana Dharma migrate abroad, mostly to the US, because there is freedom
to learn and a better appreciation of Indian thought in that country.
The Supreme Court ruled thus in the ‘The Secretary, Malankara Syrian….’
Judgement:
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“ Section 57(3) of (the Kerala University) Act (1974) 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
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One wonders why the principals of majority should be controlled by state laws
when the same does not apply to those run by minorities.
5. Restrictions on Fees
Hindu schools have to get their fee structure approved by the state education
department. Unaided schools do not require prior approvals from the 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 increases in fees.
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Even if a government school has 100 per cent Hindu students, it cannot provide
any religious education to them.
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On the other hand, even if a minority institution has only 1 per cent of the
student body belonging to the actual community, it can still offer religious
education to all students belonging to any religion. This continues even if the
said institution is aided significantly by the same government!
7. Based on Article 28, can the state government deny aid to a minority institution
because it imparts religious education?
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Hindu-run schools face multiple other regulations for which individual states
have prepared rules — for example, 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 per cent representation from parents etc.
Being exempt from the above, minority institutions have complete flexibility to
set up any kind of educational institution — from a budget school to a premier
institution.
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Two, RTE has given the Christian minority a disproportionate advantage in the
education sector. First, they inherited the management of schools set up by the
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British. Second, they get freedom under Article 30. Third, those who wrote the
Constitution did not visualise large funding from multinational Church-based
organisations.
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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 Sir John
Connon School, Mumbai, on 7 November 2019 (founded in 1860), but we are
yet to receive a response.
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Did those who drafted the Constitution and interpret it visualise that Article 30
would be used by the minority community to set up a huge business and
receive foreign funding from multinational church organisations to set up
schools?
Former Infosys director T V Mohandas Pai wrote in Economic Times, “Two house
maids who converted said that the school where their children went raised fees
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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.”
Four, slowly and steadily, institution building is slowing down amongst Hindus.
Without institutions, Hindu society becomes weak — culturally, spiritually and
educationally.
Today, all excluding the religion of the majority community are given
preferential status.
Let us hope that in the near future, Article 30(1) of our Constitution shall read
as follows:
Those who speak about minority rights must read what the Supreme Court
judgement in Mudgal vs Union of India (1995 SC 1531), para 35, had to say:
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When there is so little freedom given to Hindu schools in education, will not the
quality of education suffer?
Has not Article 30 led to a serious study of Indic faiths outside India rather than
in India?
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The Indian educational sector is divided into majority and minority institutions,
one subject to excessive control and another to minimal government control.
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