In a blow to the educational rights of students from the backward classes – Scheduled Caste (SC), Scheduled Tribe (ST), and Other Backward Class (OBC) – the Supreme Court on Thursday (13 July) upheld the Bombay High Court’s verdict exempting minority colleges affiliated with Mumbai University from providing caste reservations.

The Bombay High Court’s judgment was in reference to a two-decades-old Maharashtra government resolution that had mandated that all colleges including minority ones reserve seats for the socially backward classes. In 2001, when Mumbai University directed colleges under it to implement the resolution, it was taken to court by St Xavier’s College. The High Court ordered a stay on the resolution in 2002 until it passed its judgment on the matter, which came in October 2017 – 15 years later, during which time minorities enjoyed complete admissions autonomy. The Maharashtra government woke last month out of its slumber and filed a special leave petition protesting the High Court order forcing admissions to come to a halt in India’s financial capital, affecting thousands of students.

The Supreme Court didn’t take much time in dismissing the state government’s petition, stating that the matter to keep minority institutions out of the ambit of caste reservations is already settled by Article 15 (5), which has been held Constitutional by the Supreme Court as well.

This is a blow to the ruling Bharatiya Janata Party (BJP) government as it has failed to secure more seats in some prestigious colleges of Mumbai for students from backward communities. This setback, however, should be seen as an opportunity to put a leash on the runaway minorityism in the education sector and make everyone play by the same rules.

The educational rights of Dalits and backward classes are curtailed. Some of the finest colleges, schools, and universities in India aren’t accessible to them. It’s time the BJP chose between championing their cause and keeping the pampered minorities above the rule of law.

There is one and only one definite way to do this – amend Article 30.

Sure, the Supreme Court dismissed the Maharashtra government’s petition citing Article 15 (5), but amending it would only result in limited success. Why? A short history is in order.

Three back-to-back Constitution benches in TMA Pai Foundation v State of Karnataka (11 Judges), Islamic Academy of Education, and P A Inamdar v State of Maharashtra had given two highly consequential orders stating: a) reservations can’t be forced on private unaided institutions, and b) unaided minority and non-minority institutions to be treated equally.

The Ninety-third Constitutional Amendment overturned the Supreme Court’s judgments on both counts by adding Clause 5 to Article 15 (5). Reservations were introduced in private educational institutions run by non-minorities (both aided and unaided) while minorities (including those funded by the state) were kept exempt.

Those who argue for keeping minorities exempt from this Amendment reason that it became necessary to do so because of the circumstances. Minority institutions are primarily for the benefit of minorities. That’s why they reserve seats for students from their own communities. Earlier, the maximum reservation limit was 50 per cent, which was waived in the TMA Pai foundation case. Given this, reserving 49.5 per cent seats for SC/ST/OBC wouldn’t have been possible for institutions that already have reservations at more than 50 per cent for minorities. So, it was only natural that the government exempted them. While this may not have been the thinking at the time, and the only reasons Arjun Singh, the then Human Resource Development minister, cited for exempting minorities was Article 30.

Be that as it may, the fact of the matter today is, minority institutions can’t be asked to reserve seats for Dalits and backward classes because it would take the total reservation above the threshold of 50 per cent prescribed by the Supreme Court in the Indira Sawhney case. We are in a tough spot. Thus, amending Article 15 (5) is necessary but not sufficient to end the minority raj in Indian education sector.

That can be done only by doing something about Article 30. If we go back to Constitutional debates, it’s clear that the Constitution makers didn’t wish to bestow on the minorities special rights and Article 30 was only an addition to Article 29, not a separate, new one.

Article 29 (1): Any section of the citizen residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have right to conserve the same. (Earlier version of this clause had “All minorities” instead of “any section of the citizen”.)

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

Treating the two Articles as separate has resulted in grave injustice. Currently, the only differentiating factor between a minority institution and a non-minority one is the religion of the person running it. As writer and journalist Arun Shourie wrote in Falling Over Backwards: