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: