Reality Check India

A Brief History of the 93rd Constitution Amendment

Posted in Uncategorized by realitycheck on March 22, 2015

Early 2005 was a time of joyous celebration in the Congress Party. They had just upset the BJP led National Democratic Alliance at the polls. Their allies DMK and the Communists had pulled off spectacular wins in their states.  Sonia Gandhi was in firm control of the Congress party and none of the smaller allies had any big ticket ambitions. They could be placated by a few sectarian concessions, relaxed prosecution, or providing them corruption opportunities. It seemed like the dark days of the Hindutva agenda under Vajyapee were truly over.

However, under the covers, one critical problem loomed that needed urgent fixing. Strategic thinkers of the establishment realized that the principal canon of the “Idea of India” was damaged beyond recognition under BJPs rule.  That of the state to run outright communal preferences in the domain of education.

Judicial blows to the Idea of India

The Indian state has grappled unsuccessfully with the issue of education ever since its inception.  The question that most concerned everyone during the 90’s was how to regulate the rapidly proliferating private education space.  After a series of over eager judgments in Mohini Jain and Unnikrishnan it became abundantly clear that the government alone was not in a position to fulfil the education needs of the people and running the private sector into the ground (such as in Mohini Jain) would backfire.  Faced with this reality various state governments resorted to biting off a part of the private capacity and using that to advance its social objectives. Almost immediately this ran into the minority issue as well as issues related to fees and cross subsidies. A number of these questions  accumulated and the need to settle this once and for all was felt by everyone. The opportunity presented itself in a case called TMA Pai Society vs Union of India.

Eleven judges of the  Supreme Court, the second largest bench after the 1973 Kesavanada Bharati’ thirteen judges would hear the education and minority issues and settle the issues once and for all.  The hope was this large bench would not be encumbered by the earlier nine judge bench in St Xaviers v Gujarat.  I wont go into the details of TMA Pai but the 11-judge bench delivered its verdict in 2002.  The split was roughly 7-4 on a number of questions; but even the 4 dissenting judges agreed on a number of the framed questions. The most shocking part of the judgment was the following.

Private education institutes established by minorities and non-minorities were held to be on equal footing.  Hindus could enjoy the exact same rights under Sec 19-1(g) that the minorities did under Art 29/30.

This may seem like a no-brainer decision to us or to a western liberal observer but this kind of parity is anathema to the Idea of India. The best evidence for this came recently when Fali Nariman spoke at the National Minorities Convention. Sample this :

The decision in TMA Pai was a un-mitigated disaster for the minorities. Let me tell you why. Article 30 (the right of minorities,religious and linguistic to establish and maintain education institutions of their choice) has now been placed by Court decision on a much lower pedestal than it was – or was intended to be. It has been equated only with a fundamental right guaranteed under Article 19(1)(g)– i.e. a mere right to an occupation (running an educational institution the Judges said is an “occupation” like any other)

Fali Nariman speech at the National Commission of Minorities

Of course, It is not a question of lower or higher pedestal but that of parity with everyone else. Why would you not interpret that everyone is now elevated to Art 30 level protection ?

Post TMA Pai, there were a number of issues related to entrance exams, capitation, and such like that caused major confusion. Another constitution bench of 5 judges was setup under Islamic Academy vs Karnataka to clarify. They still left some vagueness in the questions related to admissions. Then a final bench of 7 judges was constituted for PA Inamdar v Maharashtra to further seal the issue.  A lot of questions got answered – a lot did not. But here is what happened.

The essential parity the court accorded to minorities and Hindus in the field of education persisted.  The concept of parity between Hindus and Minorities run educational institutions emerged unscathed after examination of large benches. First a 11 judge, then 5 judge, then 7 judge.  The final word :

In the opinion of S.B. Sinha, J, minority educational institutions do not have a higher right in terms of Article 30(1); the rights of minorities and non-minorities are equal. What is conferred by Article 30(1) of the Constitution is “certain additional protection” with the object of bringing the minorities on the same platform as that of non-minorities, so that the minorities are protected by establishing and administering educational institutions for the benefit of their own community, whether based on religion or language.

It is clear that as between minority and non-minority educational institutions, the distinction made by Article 30(1) in the fundamental rights conferred by Article 19(1)(g) has been termed by the majority as “special right” while in the opinion of S.B.Sinha, J, it is not a right but an “additional protection”. What difference it makes, we shall see a little later.

PA Inamdar v State of Maharashtra  Aug 2005

http://indiankanoon.org/doc/1390531/

The final word in PA Inamdar came in August 2005.  It was now clear beyond doubt that the principle of parity to Hindus in education had just emerged unscathed from three big constitution benches.  It was settled. It was final. It was going to be the way forward for India.  I realize now that the ecosystem must have been inconsolable at this. How was the Sonia led Congress govt going to restore the minority preference over these epic judgments ?

The Congress govt just decided to, ahem.. simply change the Constitution of the great Republic of India. 

Invidious agenda set in 2004 lives to this day. Repeal needed.

Invidious agenda set in 2004 lives to this day. Repeal!

The 104 Constitutional Amendment bill is born

After PA Inamdar came down in Aug 2005, minority preferences in unaided education had reached a judicial cul-de-sac. It really was game over. The Congress govt worked with great urgency to move a constitutional amendment bill that would obliterate the court judgments  The idea was to

  • allow the state to take (to an unspecified extent) from unaided educational institutions
  • explicity exempt institutions run by minorities from it
  • explicitly encode the exemption in Art 15(5) itself

The person selected by the party high command  to pilot such an outrageously divisive bill was none other than Arjun Singh – the Congress HRD Minister. They quickly added a new section in the Constitution of India called Article 15(5) which read.

“(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.”.

Article 15(5) inserted by the 93rd amendment

The minority exemption was immediately opposed by the BJP.  Unfortunately they did not make an intellectually honest case as to why this bill was wrong. Instead they sought to include backward among minorities in their institutions. Also remember this was 2005, there was no social media. The mainstream media had absolute control of the discourse and they might have simply decided to suppress all dissent and continued with their propaganda. Regardless, it does seem that BJP put up a fight – however nominal. This is what happened.

  • Since 2005 was a massive victory for the Idea of India in total contrast to 2014 – the Congress could work the caste blocs within the NDA with targeted benefits
  • The JDU  backstabbed the NDA at the last minute leaving it stranded
  • The BJP opposition was not very  sustained or principled.  In the end, the BJP voted for the bill and moved a separate amendment which extended Art 15(5) to minorities. That was predictably defeated
  • You can see that pattern evolve in much of BJP’s support to invidious UPA legislation such as RTE

Impact on SC/ST

Since a large chunk of the top educational institutions are run in India by minorities – the bill predictably hurts the Dalits by shutting them off elite professional colleges. For example in Kerala minorities run 14 of 18 medical colleges. This is the clearest proof that the Congress party which claims to fight for Dalits will only do so when it does not come into conflict with Christians and to a lesser extent the Muslims. (Only because among minorities Christians run a much larger chunk of education than Muslims do).  A forum of SC/ST parliamentarians raised this issue and a delegation appears to have met the Prime Minister. They finally seemed to have been assured by the Prime Minster Manmohan Singh that their concerns will be taken care of. Of course , we know now that he really wasnt in control of anything. This fizzled out and Dalits still dont have quotas in aided or unaided minority institutions. Hope the BJP leaders involved in those days speak up now in detail. Details are scant in the media.

In the end, on Dec 22 2005  the 93rd Amendment was passed. The Constitution of India was changed. Years of effort of huge benches, dozens of lawyers, thousands of hours of arguments were obliterated.  Minorities were once again restored to a preferred status when it came to the issue to education.

Validity of the bill

One of the reasons I wrote this article was to highlight the need to understand the 93rd amendment.  A good summary of details can be found on this blog as well. Quite naturally this 93rd Amendment was challenged.  While hearing the OBC quota case Ashok Kumar Thakur v Union of India. the court noted that they would not hear challenge to the 93rd amendment until the Centre passed a law that depended on it.

That opportunity to test the 93rd amendment against the “Basic Structure” came n 2010 in the form of the Right to Education Act. This was a law that exercised the 93rd amendment by imposing on private educational effort while exempting those schools run by people born as minorities. Remember that the quanta 25% is arbitrary – there is absolutely no protection upto 49.5%. Even that is crumbling.  An earlier bench hearing a challenge to the RTE Act  involving Rajasthan Private Schools did not go into the constitutional question. I can only guess because that was only a 3-judge bench. Eventually they did constitute a 5-judge bench to hear the RTE Case in 2014 involving a large number of petitioners under Pramati Educational and Cultural Society.

On May 9th 2014, a week before Narendra Modi led BJP swept into power on a massive mandate – the 93rd Amendment was held to be constitutional by a 5 – Judge bench in Pramati Educational & Cultural … vs Union Of India & Ors 6 May 2014  http://indiankanoon.org/doc/32468867/

While departing, the Idea of India ecosystem had managed to secure its crown jewel.

This is where we stand now.

——

Fallouts of the 93rd amendment.

Post the 93rd amendment, sectarianism in education has taken deep root. Minority colleges have flourished. Even aided minority colleges are exempt from quotas that are applicable to fully unaided Hindu run colleges.  The trajectory of the education scene can be best illustrated by a Jan 2014 judgment in Madras High Court  Federation of Catholic Faithful vs State of Tamilnadu Jan 2014

In the light of the above said judgment, even in respect of aided courses run by minority colleges, there cannot be any direction to follow the rule of communal reservation.

Next week we shall talk about another crucial case.

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38 Responses

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  1. Dhaval Panchal said, on March 28, 2015 at 3:00 pm

    Nicely written and very Informative.

  2. Vijay Kumar (@m_vijayakumar) said, on March 28, 2015 at 7:04 pm

    So the author has absolutely no interest (much less, delight) in prospect of increased educational access to dalits/backwards. Instead, he is bothered that “minority” run schools do not have the “burden”! This is amazing at so many levels that one does not know where to even begin.
    Minority schools have done a great service to the poor/dalits/backwards and you cant get a single poor/dalit/backward to deny that. So in this case, the fact that it is voluntary rather than a law is merely a technicality (a technicality, which if touched, will open a pandora’s box, with respect to recognizing dalit christian/muslims etc – that’s another big topic, conveniently ignored by the author). Secondly, si the article suggesting that schools run by hindu backwards will have any problem having 25% of poor/dalit/backward? A majority of even upper caste would be delighted at the opportunity to serve the poor/dalit (and the primary reason why most people start schools to being with, is to serve and bring people together).
    So who supposedly has a problem with RTE? Some exclusive super rich, super casteist, super elite cream, who want exclusively their own kind bunched together in a classroom, ignorant of the realities/problems of the world? What a tragic scene that would be!

    “week before Narendra Modi led BJP swept into power on a massive mandate” .. If Modi/BJP spoke like what the author is saying, they will be reduced to 0 (not even the 2 seats they once got). The “mandate” has absolutely nothing to do with anything that is said in the article. Even if you see it is a “RW/hindutva” vs “idea of india”, the win is merely technicality due to splinter of latter’s votes and the fact that Modi cleverly limited his speeches/agenda to generic issues like corruption, improving economy, jobs etc. I am sure the author knows that quite well. So to call that a “massive mandate” is a tad disingenuous.

    • anono said, on March 29, 2015 at 2:14 am

      Outstanding comment. Author is a bigot even right wing does not support.

    • AdarshLiberal said, on March 29, 2015 at 5:18 am

      Did you really read the article?

      Dalits/backward classes are actually hurt by this amendment. Dalits/backward classes cannot avail reservation in minority(even public-funded a.k.a. aided minority) institutions.

      • whitericevsam said, on March 29, 2015 at 5:40 am

        Vijay Kumar,

        Nicely argued but I would suggest you read RC’s archives on RTE and how it is misused without any data analysis. How repeatedly historic injustice is used without any current data analysis. The main issue is that there is hardly any analysis on how reservations have benefited even though data may be available. If you have them please provide links so that we may be enlightened (I am not sarcastic please believe me).

        anono,

        Why make ad hominem attacks with epithets when you have nothing to add? At least have the decency to argue like Vijay did.

    • Vikram Sharma said, on April 1, 2015 at 10:52 am

      Do you know how the RTE is crippling private schools by its diktats on infrastructure, play grounds etc.? Fees reimbursement from govt is a pain (no surprises there) & this can lead to hikes for the general category. Then there is the question of RTE only allowing from govt reimbursement from 1st standard, while govt accepts schools to subsidize nursery to KG. The situation on the ground is that many Hindu orgs are having a re-think on opening schools (at the end of the day, any private entity has to worry about financial viability). Why doesnt the govt focus on improving quality of govt schools or issue school vouchers? And since minority institutions are doing such good work and have higher proportional representation in the education sector, why cant they do their bit for a national cause? Most well located schools in our major cities tend to be christian run, probably due to the prime land allocated to them during British era…these schools will be easily accessible for the common man, compared to the usually far off new schools in suburbs.

    • Tom said, on May 10, 2015 at 8:28 pm

      If RTE is so good, why not implement it universally? What possible good can come from keeping minority institutions out of it? Also, as per you, these noble minority institutions are already doing more than what is necessary for Dalit and poor communities. So what is the problem with making it official?
      The main reason for NDA’s massive victory may have been the naked corruption of UPA, but a significant one is the recognition of brazen sectarian and communal policies being effected in the name of secularism. In the end, you cannot hide the bias from the people. I am ashamed that such blatantly partisan laws are being passed against certain citizens of this country.

  3. […] This article first appeared here […]

  4. xyz said, on March 30, 2015 at 3:32 am

    vijaykumar,
    what do you do for a living and where do you live(in which city)?

    I share RCs concerns as someone who lives in Chennai?

  5. xyz said, on March 30, 2015 at 3:38 am

    This backward is a catch all word.It can signify anything.Also middle class brahmanas,nairs,etc have legitimate grievances in cities like chennai where they are finding it difficult to get admissions in schools,colleges.They are being discriminated by christians.Even such basic things like quality education is being cornered by christians as if they have a divine right conferred by european missionaries

  6. xyz said, on March 30, 2015 at 4:45 am

    Ok my comment to vijaykumar is intrusive,but then India has spawned a NGO culture wherein so many ‘do-gooders’ who have no useful vocation have developed powerful networks with great privilege while they spout tear jerkers to the media.

    A nair is discriminated compared to a mallu Xtian.Whats the justification?In India brahminical caste/religion is questioned. Why should the ‘2% christists'(which itself is BS) run institutions for 98%?Why should the primitive Xist faith be equated with modernity?Why should Xtists enjoy colonial privileges bequeathed by foreign conquerors?On top of it Xist institutions get govt funding and foreign funding?

  7. xyz said, on March 30, 2015 at 5:02 am

    I believe the situation is not very different in bengaluru,mumbai,delhi etc.

    Where I differ from RC is,the hindu upper classes themselves have allowed this situation to happen.These could be for following reaons.
    1)The historical divide between Hindu upper classes and lower classes exarcebated by british oppresion and divisive policies.Universal education of the school type is a 20th century phenomenon and there never was any universal uniform education in any pre-20th century society.
    2)The view of thinking brahmanas,that ‘modernity’,’egalitarianism’ is just another hype.Today the old 3Rs are not enough as they never were at any time.Today we need domain specific skills and specialisation as life always demands.As Modibhai asked:what good is a school teacher who cannot cycle,swim or cook?

  8. whitericevsam said, on March 30, 2015 at 1:39 pm

    xyz,

    This historical divide seems overhyped. I remember reading some British era statistics on how all castes were studied under one roof. Sanskrit even. I wanted to give you links but my laziness prevents me from doing it right now maybe some other day. Maybe those were before the British divided us Indians as you mentioned. Certainly more research needs to be done to set the narrative right.

    I agree that hindu upper classes themselves have allowed this to happen but how much of it is due to the emasculation by the British first and then later by the Congress ecosystem? There are very very very few ppl (like our RC here 😉 ) who have the patience to fight the system against repeated attacks.

  9. confused said, on April 5, 2015 at 8:20 am

    I wonder what is the definition of a “minority institution”. For example take a private international school run by an NRI group. Can it be claimed to be a minority institution because NRI’s are a minority. Why should religion play a role in this. It is supposed to be all equal irrespective of religion, language and culture, is it not?

  10. […] This article first appeared in the writer’s blog. […]

  11. pmohan said, on April 9, 2015 at 4:45 pm

    Reblogged this on From Demonocracy To Democracy.

  12. froginthewell said, on April 16, 2015 at 3:55 am

    I have an off-topic, unsolicited comment, which I realize to be rude, but this is on an issue I also have some passion about. Was very happy to note HRD minister’s invitation to you. While I don’t dare give any suggestion on the content to a far more knowledgeable person like you, I hope you will prepare a presentation for them that is much simpler than your usual highly pedantic prose. May I please request you to try your best to use simple words, short sentences and pictorial illustrations (it is often hard to come up with short sentences, but they make a big difference to ease of comprehension) to the extent possible? May be you could rehearse it by lecturing to someone relatively lay/slow with processing statistics?

  13. xyz said, on April 16, 2015 at 8:21 am

    Dear RC,
    You have got a very well deserved invite.I wish you all the very best for the meeting.

    I hope it leads to outcomes that we all desire-Better education for more and more of our children,Non-discrimination against the majority hindus,equal treatment before law,fairness and transparency in admissions.

    Wish you again all the very best for the road ahead.

  14. whitericevsam said, on April 16, 2015 at 12:37 pm

    All the best RC! Do not stop with RTE alone. Take up all issues including Jallikattu/Elephants etc. Strike the iron when its hot!! No one deserves this invite more than you! Best of luck!

  15. Vijay Kumar (@m_vijayakumar) said, on April 22, 2015 at 6:06 am

    So is the author suggesting that it should be legally mandated (through RTE) for hindu children to be present in thousands of madrasas across the country, and read the Quran, the Sunnah and recite that ‘there is no God but Allah and Muhammad his messenger’? Large sections of hindu society are desperate enough to take up that as well – and why not, given the attitude seen in this article, where the “hindu schools” apparently do not want to touch the poor/backward hindus with a barge pole? Alas, some things do not change. (No, things are not so bad – the widespread support for RTE is an indication that things do change).

    This blog is a classic case of missing the forest for the trees. It is true that law has to be “uniform” (ultimately), but societies have to progress against a upstream of what was already wrong and discriminatory to begin with. Our progress is like rowing a boat against an upstream of things like the manu’s law/society/system, of racism, of slavery etc. We cannot escape that reality of our starting point. These issues have to be addressed philosophically, culturally, and yes, even legally if needed. To not have affirmative action (reservations, scholarships, RTE, diversity programs etc) is like sitting back relaxed in a boat in a violent torrent, while we collectively get washed away to destruction. We cannot sit back. We have to propel against the prevailing discriminations, if we hope to make any progress towards genuine rule of law and non-discrimination.

    Now, one can (and should) argue/debate better ways of addressing the prevailing issues – in which case, the author has to give his solution, instead of simply saying that reservations/RTE etc are discriminatory. That betrays a complete loss of touch with ground realities. To get a ‘reality check’, the author should take a week off and live at a dalit basti in the outskirts of a village, or a slum.

  16. Leo said, on May 2, 2015 at 12:01 pm

    Ever read the articles in the website below?
    https://wideawakegentile.wordpress.com/2015/04/12/sunny-leones-jews/

    …just sharing, must read 😉

  17. […] been set up than the Supreme Court handed down a judgment in TMA Pai Society (2002) case (see previous post [History of the 93rd Constitution Amendment) that prohibited imposition of quotas or erosion of autonomy in admissions in private colleges. […]

  18. […] instituted the NCMEI. I have blogged about these TWIN initiatives of Congress extensively in “A Brief History of the 93rd Constitutional Amendment“.  Post RTE the Hindu institutions are under an open-ended liability under a statute capable […]

  19. […] instituted the NCMEI. I have blogged about these TWIN initiatives of Congress extensively in “A Brief History of the 93rd Constitutional Amendment“.  Post RTE the Hindu institutions are under an open-ended liability under a statute capable of […]

  20. […] of the Supreme Court in marathon deliberations over 3 years in TMA Pai series finally ruled that minorities have same protections as Hindus and are not on a higher pedestal . With this everyone thought the matter would rest. The Congress government however immediately […]

  21. Setting The Agenda | devayasna said, on November 10, 2015 at 2:37 am

    […] Within months of the UPA coming to power in 2004, this ecosystem, with it’s most prominent members elevated to an extra-constitutional law-framing institution (the NAC) had an assortment of laws written and ready for the UPA to pass, in particular the 93rd Amendment to the Constitution (read more about it here- https://realitycheck.wordpress.com/2015/03/22/how-congress-pursued-its-invidious-legislative-agenda-…). […]

  22. rmantha said, on November 15, 2015 at 5:21 am

    A very informative article that utterly missed the actual motive behind Sonia’s constitutional amendment.
    She did it not to deny dalits access to minorty Institutions,she did it to convert minorities to christianity. Sonia and her cabal knew that this would be used by forces of conversion to entice dalits to convert by using school admissions as a carrot.

  23. Authors of posts said, on November 20, 2015 at 3:47 am

    Reblogged this on Indian People's Congress.

  24. […] 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 […]

  25. UPA-4 Scraps RTE | whitericevellasamy said, on March 22, 2016 at 4:45 am

    […] was the last institution that was providing resistance but with its closure 3 weeks ago there are no more non-minority institutions ergo there is no need for this […]

  26. GK LOKAM - Visit Me said, on June 25, 2016 at 3:56 pm

    Nice.

  27. […] SC quota. This is the main reason the UPA govt exempted the minority run colleges from it using the 93rd Amendment and by using NCMEI to grant minority status to AMU and thousands of other educational institutions. […]

  28. […] It is incumbent on Hindus to develop Hindu institutions to resist the anti-Hindu laws (temples, RTE) of India and develop into the magnificent civilization it once […]

  29. […] ब्लॉग ‘रियलिटी चेक’ के मूल ब्लॉग का हिंदी मैं अनुवाद का प्रयास […]

  30. […] “The failure of the socialist state to provision education led to the state taking from private effort. Next this was challenged at each step as minority runs schools repelled each of these efforts that Hindu run schools could not.  In early 2000’s  a total of  21 judges of the Supreme Court in marathon deliberations over 3 years in TMA Pai seriesfinally ruled that minorities have same protections as Hindus and are not on a higher pedestal . […]

  31. […] A Brief History of the 93rd Constitution Amendment […]

  32. […] अँग्रेज़ी स्रोत: https://realitycheck.wordpress.com/2015/03/22/how-congress-pursued-its-invidious-legislative-agenda-post-win-in-2004-history-of-the-93rd-const-amendment/ […]


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