On 6 May 2014, when the country was occupied by the last phase of the general election, the Supreme Court upheld the 93rd amendment to India’s constitution. The five-judge Supreme Court bench’s judgment had enormous consequences for secularism and economic liberty – the judgment bestowed constitutional sanction to communalism and minority appeasement in education by invalidating three judicial precedents on educational equality.

In TMA Pai versus State of Karnataka (2003), an 11-judge bench held unanimously that the state could not impose its policy of caste-based reservation in educational institutions on minority and non-minority unaided private colleges (including professional training institutions).

This judgment treated unaided educational institutions equally, irrespective of denomination. The court cited from the report of the University Education Commission (UEC) chaired by Dr S Radhakrishnan, which said that “exclusive control of education by the State has been an important factor in facilitating the maintenance of totalitarian tyrannies…state aid is not to be confused with state control over academic policies and practices”.

In Islamic Academy versus State of Karnataka (2003), a five-judge bench held that government could not fix fee structure for unaided minority or non-minority institutions. In P A Inamdar versus Maharashtra (2005), a seven-judge bench ruled that the government’s reservation policy could not be imposed on unaided institutions, and neither could a quota or fixed percentage of seats be appropriated by the state.

But what followed was a familiar template: the Sonia Gandhi-led Congress party, having been defeated in court, simply amended the Constitution of India, just like Indira Gandhi had maimed and blighted the Constitution through the 1960s and 1970s when courts ruled against policies such as the nationalisation of industries. The 93rd amendment enabled the government to make special provisions for the advancement of socially and educationally backward classes, and for Scheduled Castes and Scheduled Tribes too.

Such provisions would apply to “educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions.” (emphasis ours)

Thus, while minority institutions were given a blanket exemption, non-minority institutions including those that didn’t take a rupee of government aid would be forced to follow the state’s diktats. The red line drawn by the Dr Radhakrishnan-chaired UEC between state aid and state control was erased. In a political masterstroke, the Congress camouflaged the communal bent of the 93rd amendment as caste justice, simultaneously co-opting the minority communities that were made exempt from the intrusive hand of the state and cleaving the majority community by playing up caste reservations. This meant that BJP could not be seen as opposing an amendment brought for correcting caste injustice.

By upholding the 93rd amendment, the Supreme Court dealt a body blow to the Indian right even as an epic political victory was being scripted. The action by the honourable court and the initiative of the Congress to amend India’s Constitution thus should be seen in the context of then-HRD minister Arjun Singh’s push to increase caste reservations across universities, the constitution of the Sachar Committee in 2005, and finally the introduction of the Right to Education (RTE) Act in August 2009.

The Congress party first divided the majority community, then created a narrative of minority repression through the Sachar Committee (without exploring endogenous reasons for backwardness, such as aversion to women's education and employment) and finally dealt the knockout punch by amending the constitution to expand government control into educational institutions with minorities exempted. As the Modi government, the first majority-BJP government at the centre enters its fourth year; it is time to repeal and replace such iniquitous laws.

On the ground, many budget private schools are being closed due to the RTE's one-size-fits-all policies, while minority schools are left alone, sometimes completely unregulated. In our universities, taxpayers are funding minority-first institutions such as St. Stephens and Aligarh Muslim University. We even have government scholarships exclusively for religious minorities - a clear incentive to convert in a country where the majority religion is not proselytising.

Moreover, besides economic positive externalities, one oft-repeated justification for publicly funded education is the creation of a citizenry that is mindful of its rights as well as responsibilities. By not just segregating publicly funded education on the lines of religion, but indeed going one step further and disproportionately regulating Hindu-run schools, the Indian polity and judiciary have shown yet again their instincts to appease minority communities, whereas all they really end up doing is cementing mental ghettoes.

Moreover, this desire to control Hindu institutions right from education to personal laws to temple, while exempting “other” ones betrays a distinctly home-grown, and indeed Nehruvian, “orientalism”.

It accepts the fundamental “us versus them” distinction while singing paeans to a largely non-existent syncretic culture, kicking the can further down the road on the actual hard work of national integration. Nehruvian orientalism says “social reform for Hindus is good”, but others should catch up at their own pace, while simultaneously indulging in the puerile celebration of films like Amar, Akbar, Anthony.

Under this toxic regime, the group and not the individual remains the building block of the Indian state, including its education policy. India must change that, and if we cannot form a consensus on that, then an increasingly educated electorate is likely to ensure that the majority-run institutions get more state support. India has had too many centrifugal forces; it is time for a course correction.