(This is the second of a two-part series by Anindita Pattanayak on same-sex education and the right against discrimination)
In the previous post, we explored some of the arguments against state-aided same sex educational institutions. In this post, we will examine the issue of rights granted to minority institutions to control admissions, and how it affects the right against non-discrimination under Article 15.
Is Article 29(2) an Exception to Article 15(1)?
The position of same sex education is further complicated in cases where the educational institution in question is a minority institution. The minority institution’s rights to control admission under Article 30 of the Constitution and the permissibility of restricting admission on the ground of sex under Article 29 of the Constitution are then brought into question. Article 29 of the Constitution is titled “Protection of the Interests of Minorities”, and Article 29(1) guarantees to minorities the right to conserve their language, script or culture. Article 29(2) states:
“No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”
In Shantha Bai, the High Court of Madras reasoned that Article 29(2) allowed Mahatma Gandhi Memorial College to discriminate on the basis of sex, as sex was not explicitly listed as a ground that the educational institution could not discriminate on, unlike in Article 15 where “sex” is clearly mentioned as a ground the State cannot discriminate on. On the relationship between the two rights, the Court reasoned – “it will be seen that while Article 15(1) enacts a general principle. Article 29(2) deals with a particular topic, viz., admission to educational institutions. If the principle generalia specialibus non derogant is to apply, the controlling provision would be Article 29(2) and not 15(1).” In other words, according to the Court, the individual right under Article 15 must yield to the right granted to institutions under 29(2). It must be noted here, that despite being located within the minority-protection scheme of Article 29, Article 29(2) was considered to be a stand-alone provision applicable to all educational institutions and not only minority educational institutions. Interestingly, it was considered special because it applied to educational institutions only.
This issue was addressed again by the High Court of Allahabad in Christian Inter College. Here, the High Court limited itself to examining the constitutionality of such a provision only within the context of minority institutions and held that Article 30 and 29 granted minority institutions the right to control admissions and restrict it on the ground of sex. Though, in that case, it resulted in the admission of girls into the institution, the judgment held that it was “open to the minority community to change its policy and to convert an institution from an institution meant for one of the sexes into a co-educational one and vice versa.”
Both these judicial decisions are, however, flawed on this issue. First, the High Court in Shantha Bai completely ignored the issue of whether Mahatma Gandhi Memorial College is a minority institution to which Article 29 would apply at all and if Article 29(2) is applicable to all institutions regardless of minority status. Even if it was a minority institution, the judgment in Shantha Bai and Christian Inter College defy the precedent set by the High Court of Calcutta in Anjali Roy outright. The decision by Bose J. before appeal states,
“Article 29(2) does not refer to the ground of sex. So this article by itself does not invalidate any order of the State Government or of the Authorities of an educational institution of the type described in Article 29(2) restricting the admission of women students into government or Government-aided institutions. Article 15(1) which is of wider application than Article 29(2) prohibits discrimination on the ground of sex on all matters and so it includes discrimination in matters of admission to educational institutions. The result is that Article 15(1) should be construed as controlling Art 29(2) of the Constitution, and tested in this light the order complained of would be bad being in contravention of Article 15(1) of the Constitution.”
On appeal, this observation was neither affirmed nor denied. Yet, Sen J, in the judgment on appeal held that it was open to a minority institution to restrict admission on the basis of sex. The justification provided was that, “the framers of the constitution may have thought that because of the physical and mental differences between men and women and considerations incidental thereto, exclusion of men from certain institutions serving women only and vice versa would not be hostile or unreasonable discrimination.”
This reasoning can no longer pass muster post Aruj Garg which warns against perpetuating gender stereotypes and reasoning grounded in the belief that males and females have particular tendencies or different ways of thinking.
Is Article 30 an Exception to Article 15?
Now, let us address the issue of the right granted to minority educational institutions under Article 30. Article 30 guarantees to minorities the right to “establish and administer educational institutions of their choice.” It becomes necessary to question why a minority institution decides to restrict admission on the ground of sex. The purpose of Article 30 is to allow religious and linguistic minorities to promote their cause or community. The Supreme Court, while trying to interpret the possible clashes between the right under Article 30 and Article 29(2) has taken this purpose into account and examined the reasons why a minority institution would draw a distinction between one class of persons and another and what purpose such a classification this would serve. According to the Supreme Court in TMA Pai v. State of Karnataka, “when the right of admission is exercised not to meet the need of the minorities, the rights of admission given under Article 30 (1) is to that extent removed and the institution is bound to admit students for the balance in keeping with the provisions of Article 29 (2).” If a similar strain of interpretation is employed in determining the clash between Article 30 and Article 15, it can be seen that a minority educational institution cannot show the nexus between denying admission to female students and the promotion of the minority community’s interests. Thus, Article 15 should prevail to that extent.
Reconciling an Expanded 29(2) with 15(1)
Recent decisions on Article 15, Article 29 and Article 30 negate the reasoning employed in Christian Inter College as well. According to the High Court of Allahabad in that case, restriction on admission on the ground of sex was permissible only for minority institutions as “sex” is not listed in Article 29(2). However, the Supreme Court has held that Article 29(2) applies not just to minority institutions but all educational institutions maintained by the State or receiving aid out of State funds. Extending the Supreme Court’s logic, all educational institutions maintained by the State or receiving aid out of State funds can then restrict admission on the ground of sex. However, this conclusion is absurd as the High Court itself follows Tewari and agrees that denial of admission to women by non-minority institutions is unconstitutional.
The best way to reconcile this anomaly is to argue that education is a public function that requires even aided minority institutions to follow constitutional principles of gender equality. A similar strain of reasoning was adopted in T.M.A. Pai where it was argued that the State had an interest in maintaining standards in professional courses which allowed it greater powers of interference in the administration of educational institutions offering professional courses.
The practice of same sex education can no longer be declared constitutional without a direct engagement on the merits of same sex education and a discussion on the tangible benefits of segregation of men and women in education. The only attempt at discussing the merit of co-education has been by a half hearted one by Markandey Katju J. in the following words –
“Co-education is healthy and good for the development of the personalities of both boys and girls. If there is co-education boys and girls will know how to interact with each other in a healthy manner and this will also help them towards social adjustability… A young man does not know how to interact with a young lady and behave in her presence and the young lady is terror stricken in the presence of a young man as she has only interacted with her father and brother till then. This segregation leads to several kinds of psychological and social problems fend hence it should be done away with.”
Without more rigorous and well researched analysis on the merits of same sex education, denial of admission to state aided same-sex educational institutions has to be declared unconstitutional.