There has been some discussion on social media recently wherein some people have questioned the voices against Article 30 of the Constitution. The question is “What is the problem with Article 30? It is only a protective right to ensure no minority community is deprived of educational rights”. This post will attempt to explain why this provision is a concern.
Article 15 of the Constitution, especially clause 15(1), is a kind of a first-amongst-equals when it comes to Fundamental Rights of Indians. It guarantees that no individual shall be discriminated (by the State) on grounds of religion, language, etc.
(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.
With this over-riding Fundamental Right in place, any other Right that is specifically applicable only to certain communities necessarily has to be validated against this Right. Any other Right can (or rather should) be used only to determine whether a law in question deprives the Right under Article 15(1).
Article 30 grants educational rights to religious and linguistic minorities.
(30)(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
Now there are two ways to look at this Right.
a) As a *protective right* – that ensures that minorities are not deprived of any right that the non-minorities enjoy.
b) As a *positive right* – that grants rights specifically to minorities related to educational institutions.
Irrespective of what interpretation the courts of this country come up with (from the above two options), the purpose of the Right has got to be to determine the validity of a law, rather than its applicability.
In other words, if a particular law in question is challenged in the court under Article 30, the question to be answered is “Is this law a valid law that can be imposed on all our citizens?”
The question cannot be – “Can this law be applicable to minorities?”
Interpretation as a Protective Right
Let us say the courts decide to interpret Article 30 as a protective right. Then any law under question/dispute has to pass the “discrimination test“. The key attributes of this approach will (or should) be:
- At the outset, it will be assumed that this law will be applicable to all communities.
- Now, if the law is allowed to take effect, will it take away some right, that is critical for an educational institution, ONLY from minority communities?
If the answer to question 2 is YES, then the entire law ought to be held as ultra vires of Article 30.
For e.g. let us say the Government brought in a law that bans the teaching of proselytization in educational institutions. Such a law would affect those educational institutions whose founders come from proselytizing religions. Under Art 25, every citizen has the right to profess his or her religion and under Art 30, religion can be taught in minority educational institutions. Hence such a law would not be sustainable.
Interpretation as a Positive Right
If the courts decide to interpret Article 30 as a positive right, then any law under question will have to pass the “reverse discrimination test“. Key attributes under this approach will be:
- To start with this law shall be deemed to be applicable to non-minority communities.
- Can this law be allowed to be made applicable to minority communities, without violating any right critical to run an educational institution?
If the answer to question 2 is NO, then it would mean that the law would be applicable only to non-minority communities but not to minorities. Such a situation would be VIOLATIVE of Article 15(1) that guarantees absolute non-discrimination.
Therefore, the law under question has got to be held ultra vires of Article 15(1) and therefore invalid.
For e.g. the current RTE Act has many clauses related to student admissions, curriculum and teacher appointments where the State holds some control. The courts have therefore held that this Act cannot be imposed on minority institutions. Under the above interpretation, the Act would automatically become invalid for non-minority institutions also.
In both approaches above, the key point is that the Fundamental Rights are being used to determine whether a law is valid or not, rather than to determine whether a law is applicable to some and inapplicable to others.
Unfortunately, most of the cases in our courts revolving around Article 30 have intended to discuss applicability of a law, rather than validity.
There will, no doubt, be situations where laws will be made that will appear to be very useful to society. The courts must however consider the usefulness of a law against the importance and non-negotiability of Article 15(1). In my honest opinion, Article 15(1) will overweigh the usefulness that any law may bring in.
So all laws related to educational institutions MUST necessarily be applicable to all – or to none.
The problem today is that the State has a myriad of laws related to educational institutions. And the courts have interpreted all of them from an applicability point of view, rather than a validity point of view. Which has meant that the non-minorities are being subjected to an increasing number of laws and regulations, while the minority institutions are being exempted from the same. In a ultra competitive segment such as education, this has dangerous implications for those who are under the claws of these laws.