Constitutional Interventions Have Created An Uneven Playing Field in Education

Political literacy plays a vital role in the sustenance and growth of any democracy. Unfortunately, even after almost 70 years of the commencement of the Constitution of Bharat, the dismal state of political literacy among the people of Bharat remains a daunting challenge before all of us. The Government of Bharat, in this light, has decided to commemorate and celebrate November 26 as ‘Constitution Day’ in order to spread political literacy. While we appreciate this initiative of the Union Government to spread political awareness among the citizens, it is imperative upon all of us to do our bit, and hence this write-up is devoted to the consequences of interventions in the Constitution in the field of education.

The Directive Principles of State Policy embodied in Part-IV are a unique feature of our Constitution. While seeking to protect the basic rights of the individual, the framers of the Constitution also wanted it to become an effective instrument for social revolution. Hence Article 45 was originally provided for free and compulsory education for all children upto the age of 14. But the Eighty-sixth Amendment (2002) made education a fundamental right for children of 6 to 14 years by inserting a new article 21A. As a corollary, article 45 was substituted by a new article providing for early child care and education to children below 6 years.

A provision under the title of ‘Cultural and Educational Rights’ has been made in the form of articles 29 and 30 for the protection of interests of minorities. The article 30(1) recognizes two kinds of minorities, viz. religious minorities and linguistic minorities and grants them the right to establish and administer educational institutions of their choice.


Not only has demand overwhelmed the ability of government to provide education, there has also been a significant change in the way that higher education is perceived. The idea of an academic degree as a “private good” that benefits the individual rather than a “public good” for society is now widely accepted. The logic of today’s economics and an ideology of privatization have contributed to the resurgence of private higher education, and the establishing of private institutions where none or very few existed before.

During the 1990’s, questions arose over regulating the proliferating private education space. In 2002, the Supreme Court delivered a landmark judgement in TMA Pai Society vs Union of Bharat which allowed autonomy in admissions to all private colleges. It held private education institutes established by minorities and non-minorities to be on equal footing. The judgment of Islamic Academy of Education vs State of Karnataka in 2003 further clarified,

“Although the minorities have a right to establish institutions of their own choice, they admittedly do not have any right of recognition or affiliation for the said purpose. They must fulfill the requirements of law as also other conditions which may reasonably be fixed by the appropriate Government or the University.”


This hard-fought parity to Hindus in education which was confirmed by successive Constitution benches of SC was quietly overturned in 2005 by the Sonia Gandhi led UPA, aided by likes of Yogendra Yadav in NAC. They introduced the Ninety-third Amendment which exempted educational institutions established and administered by minorities from making special provisions for admission to any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes. It was, thus, left to the discretion of the management of those particular educational institutions established and run by minorities:

(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part of any employees.

On the top of it, the Parliament passed the THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009 which rendered the very existence of private institutions, which offer primary education and are not established or run by minorities, virtually impossible. Salient clauses of the RTE Act, viz. reservation of 25 per cent of the total seats, prohibition of holding back and expulsion, no capitation fee and screening procedure for admission, pupil-teacher ratio, etc. amount to an administrative nightmare. The factors listed here will ensure that the overall quality of education also end up deteriorated, quite ironical to the very purpose of this RTE Act.

Many religious or social service trusts/societies invest in the Education sector. The diktats of RTE will make sure that the cost of running private schools, established and administered by non-minorities, becomes prohibitive enough to force the management to either slap a substantial hike in fees or shut down the school. So, exactly opposite to its very purpose, the RTE Act has ended up being detrimental to the provisions of article 21(A), and thus while we may claim that the fundamental right of the children of 6-14 years of age to avail compulsory and free primary education will be upheld, the ground reality is quite different.

Having received excellent schooling from a government school, I do not subscribe to the gross generalization that the government schools are unable to cater to offer quality schooling but at the same time I cannot and will not brush aside the harsh reality- that most government run schools are in shambles and need a major shakeup even to come at par with private schools which provide decent schooling. One more point I wish to make is that while the state has, so far, failed to provide free education to all its citizens, it is highly imprudent on its part to issue the death warrant of educational institutions which are catering to the educational needs of those who can afford them by means of the RTE Act. And there is a growing body of evidence to show that RTE has made the job of running private schools much harder for Hindu education entrepreneurs. Most importantly, the sectarian nature of RTE violates the very concept of uniform Law.

As we all know, it takes a very long time to undo the damage done by a bad legislation; also the current political scenario doesn’t allow us to hope that the NDA government of Prime Minister Narendra Modi will be able to clear the mess inherited to him as legacy by the machiavellian Congress led UPA government in the field of education any time soon. It is therefore imperative upon us to understand that we (i.e. Hindus) have to guard our interests on our own, and not expect someone else to do the job for us! And all this has to be done within the realm of the Constitution of Bharat.

As we discussed earlier, members of linguistic and religious minority communities are exempted from both the legislations. Anybody who lives in a state whose official language is not his first language is a member of the linguistic minority community in that particular state. For e.g. a person whose mother tongue is Gujarati living in, say, West Bengal, is a linguistic minority, eligible for both the exemptions, regardless of everything else, in the state of West Bengal. Similarly, a member of any of these six faiths/religions viz. Zoroastrianism, Sikhism, Christianity, Islam, Buddhism, and Jainism will be a member of the religious minority community throughout Bharat.

When a law ceases to serve the very objectives (stated or implied) which gave it birth, the government of the day has no option but to either amend or repeal that legislation. And insofar as my understanding goes, there are enough grounds to strike down both- The Ninety-third Amendment (2005) and THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009. But we must remember that there is a very powerful nexus at work to ensure discriminatory laws like RTE are persisted in the guise of social justice. In order to bring down this legislation or get it amended in the desired manner, we need to mount an organized and systematic campaign and build public awareness on this critical issue. As studies have shown, other solutions like school vouchers work better to compensate poor students if they want to attend a private school instead of the free government school.

To sum up, do not wait for any one party or organization to put forth a spirited fight for any Hindu cause. Instead let us draw our inspiration, my Hindu brethren, to put forth a spirited fight to guard our interests, from this Shloka of Katha Upnishad:

उत्तिष्ठत जाग्रत प्राप्य वरान्निबोधत,
क्षुरासन्न धारा निशिता दुरत्यद्दुर्गम पथ: तत् कवयो वदन्ति |

Or as retold to us by Swami Vivekananda-

Arise! Awake! and stop not until the goal is reached!

About the Author

Parin Shah
Foot-soldier of Hindutva, History Lover, News Junkie, Political Commentator; Electrical Engineer By Training and Electrical Contractor By Profession.