Recently a former social media volunteer and now an office bearer in the BJP govt at the Centre made the following comment in response to my #RTE tweets.

Let us not blame the Congress, the Right to Education Act as passed by the UPA did not exempt minority institutions – the Supreme Court did. So this is the court’s fault and not the Congress partys. (from Twitter – dont recall exact words)

Another variant of this I’ve seen with very senior BJP members is “Please do not attack RTE on sectarian grounds, the law is not the problem the Constitution of India is” . The same sentiment is also expressed sometimes as “.. that minority thing is a constitutional issue. Lets not go there – lets talk about teacher training instead“.

This mindset is disturbing on many levels and belies an understanding of the issues. Lets take a deeper look at the 93rd Amendment, history of Article 15, and the Right to Education Act.

OBC Quota in Central Institutes used to piggyback

Twin issues that appear to be related but arent. The 93rd Amendment and the OBC Quota. Let us see how the Congress government brilliantly intertwined the two.

I have already written an article titled “A Brief History of the 93rd Constitutional Amendment” where I’ve covered some of the landmark Supreme Court judgments that made Hindu educational institutions gain equal legal status as those run by minorities. I want to pick up where I left off. Lets cut to one of the major efforts of the UPA-1 government, one that took 4 years of extreme effort of Congress to accomplish. The 27% Quota for OBC (Other Backward Castes) in Central Educational Institutions like IIT/IIM/AIIMS/HCU etc.

First, as soon as UPA-1 stormed into power they realized that TMA Pai v State of Karnataka (2002) had to be overturned. The final push came in Aug 2005 when the Supreme Court in a 7-judge bench P.A Inamdar & Ors vs State of Maharashtra affirmed the essential parity in Education between Hindus and Minorities.

Secondly, the OBC quota issue was raked up and had the vociferous support of all the parties. Even within the BJP the OBC bloc seems to have supported the quota. Now here is how the two were mixed up. The UPA used the popular sentiment for OBC quota to piggyback the 93rd Amendment. It is not at all clear to me that you even needed an amendment to provide the OBC Quota. To explore this further you need a little bit of info about the Article 15 of our constitution.

History of Article 15.

Article 15 – the simplest of articles in all countries – had the most harrowing journey in India. The simple diktat was “thou shall not discriminate on basis of ..” The original article read like this

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.- 15 (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

15 (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. 15(3) Nothing in this article shall prevent the State from making any special provision for women and children.

No sooner did the constituent assembly finish its job and the British has left our shores, than this article was subject to mutilation. Tamilnadu’s communal quota in college admissions was cancelled by a unanimous decision of the Madras High Court and then a Full 7 judges of the Supreme Court in State of Madras vs Champakam Dorairajan (1951) . Even before the First Lok Sabha had met – Jawaharlal Nehru and others who had participated in the Constitution making just a few months earlier overturned the Supreme Court’s decision and passed the First Amendment.

The First Amendment added a new clause (4) to Article 15 that read.

“15 (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”.

Most of the states have been providing quotas to OBCs happily under the cover of Article 15(4) even though it does not specifically mention education. There is no reason why the UPA cant provide the OBC quota in Central Educational Institutions under this same non-obstante clause. But this was presented as an imperative and with overwhelming support of the OBC bloc and JDU deserting the NDA at the last minute the 93rd Amendment was passed.

The 93rd Amendment (at that time known as the 104th Constitution Amendment Bill) added a new clause (5) to Article 15 that read.

“15 (5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.”

Pay attention to the emphasized text to deduce the real intention of the 93rd Amendment. It had nothing to do with the OBC quota at all but everything to do with restoring the minority advantage that TMA-Pai and finally P.A Inamdar had leveled out. Specifically :

The new Art 15(5) was to abrogate Art 19(1)(g) : By this I mean – Art 19(1)(g) (‘right to carry out an occupation’) which was used by TMA Pai to provide parity to Hindus was rendered waste as far as education was concerned.

: By this I mean – Art 19(1)(g) (‘right to carry out an occupation’) which was used by TMA Pai to provide parity to Hindus was rendered waste as far as education was concerned. Art 30(1) was to be a non-obstante for the new Art 15 (5) : In other words : nothing in Art 15(5) shall apply to minorities involved in education field.

: In other words : nothing in Art 15(5) shall apply to minorities involved in education field. Art 15(5) singular purpose appears to be to drive a wedge and elevate Art 30(1) “the minority” and completely abrogate Art 19(1)(g) “the non minority”.

After so many years of observing Indian political economy, I now think that the non-Congress parties are simply not intellectually equipped to see through these things. In any event , the 93rd Amendment passes and becomes an “enabling amendment”. So you may ask “what is an enabling amendment ?”. What was it supposed to “enable” ?

It enabled the grand confiscation that was still to come as the Right of Children to Free and Compulsory Education Act 2009. Also known as RTE.

The Enabling Amendment

This is a curious creature I now know is uniquely Indian. Essentially the court strikes down something as ultra vires (outside powers) of the constitution ; then the politicians go and change the constitution itself to give it that elusive power. Now when the amendment itself is challenged the bar is suddenly very high. The court has to use the ill defined “Basic structure” test. ( Side Note : Justice Dalveer Bhandari thought that the 93rd Amendment was against the Basic structure even without the minority exemption. Luckily for UPA he wasnt around the court much longer)

Once again worth repeating what the Enabling Amendment contained and why the court had no role to harmonize :

Explicitly exempted minorities in the amendment itself. Rather than depend on the court to harmonize with the protection already in Art 30. This ruled out some harmonizing with Art 30 – such as forcing minorities to admit own religion EWS or to force them to use lotteries .

. Explicitly abrogated Art 19(1)(g) protection to Hindus (non minority) in the amendment itself. Rather than depend on the court to harmonize (for example by severing provisions impinging on full refund & autonomy in selection etc).

Now you can say that this was all just a happy co-incidence.

I was also wondering if the Congress really lucked out and that the amendment was phrased by accident. Look at what Manish Tiwari of the Congress wrote recently about the Indira Sawhney judgment

On November 16, 1992, the Supreme Court by a majority of 6:3 upheld 27 per cent reservation for the socially and educationally backward classes (read Other Backward Castes) provided by the V.P. Singh government while striking down the 10 per cent reservation for economically backward sections of society provided by the successor Narasimha Rao government. .. Why did 10 per cent reservation for the economically backward cutting across communities not covered by the existing quota architecture not find favour with the Supreme Court? For the simple reason that the Rao government was only paying lip service to the cause of economic reservation. Kesri ensured that despite the amendment to the earlier Office Memorandum, no economic criterion was ever evolved and presented to the Supreme Court and no enabling constitutional amendment was carried out. Source DC : State of the Union : Regression for Progression by Manish Tiwari

So there you go. The Congress lawyers have been through this. They knew very well from the ill fated econ quota in the Mandal saga that without an enabling amendment the laws were simply going to be struck down.

This was what they used in the Right to Education Act.

RTE Act as passed did not exempt minorities

As passed by the Parliament the Right to Education Act did not exempt minority institutions. But even I could smell the disaster from my little perch in nowhere land [ “RTE how well thought out is this – Dec 2009” ].

UPA-2 HRD Minister Mr Kapil Sibal met a lot of minority community leaders who were protesting the Right to Education Act. I dont know exactly what transpired. In any case, in no time the RTE was challenged in the Supreme Court and the unaided minority schools got exempted from the law in a 2-1 Decision in Society of Unaided Private Schools Rajasthan vs Union of India (Apr 2012) Why?

Because of two things :

The enabling amendment did not just keep quiet on minorities but explicitly exempted them – it was a foregone conclusion that the court would strike it down for them. Leaving only the Hindus (non minority) wide open The court erred in not using the so called “Doctrine of Severability”. In short this doctrine means that if you chop off too much from a given statute – what is left does not make sense (i.e. is an absurd outcome). I guess only lawyers acquainted with the Lutyens and Supreme Court circuit at a very close level can explain why this happened. For an excellent analysis of this read “RTE Analysis : A question of severability“

Further down the road in May 2014 ; a 5-0 decision in Pramati Edu Society vs Union of India further pushed the RTE and exempted even the aided minority schools from the entire provisions of the act. ( See pp 26 of judgment that uses the exemption in enabling amendment to waive the law)

So to cut a long story short : The so called “Enabling Amendment” allowed the government to pass an ostensibly secular Act and the minorities can get out of it on a mere “facial challenge” – i.e. easy work.

If my friend got this far – I am sure he would realize what we are dealing with here. The 93rd Amendment cannot be divorced from RTE. The latter is built on the former.

/ jh