Introduction

Articles 29 and 30 of the Indian Constitution has given provisions relating to cultural and educational rights. It has afforded protection to minorities in India. By the virtue of these rights, minorities in India are entitled to establish and administer educational institutions of their own choice. It is also the duty of the State to protect rights and liberties of minorities as guaranteed by Arts. 29 and 30.

In T. M. A. Pai Foundation v. State of Karnataka, (2003), the Court said that, object behind Arts. 29 and 30 is the recognitionand preservation of different types of people with diverse languagesand different beliefs, which constitute the essence of secularism in India.

Art. 29 : Protection of interest of minorities :-

 (1) Any section of the citizens residing in the territory of India or any part thereof, having a distinct language, script or culture of its own shall have the right to conserve the same.

(2) No citizens shall be denied admission into any educational institutions maintained by the State or receiving aid out of State funds on grounds only of religion, race, cast, language or any of them.

Comments

The benefit of Art. 29 is not confined only to minority groups, but extends to all citizens whether belonging to a majority or minority groups. This constitutional provision protects the language, script or culture of the section of the citizens. In matter of admission to any State-aided educational institution, protection is available to both majority and minority groups. State shall not make discrimination with reference to the admission of any person on the basis of religion, race, cast, language or any of them.

Therefore, school run by a majority, if it is aided by the State funds, cannot refuse admission to boys belonging to other communities. The State cannot direct such school to restrict admissions to their own community.

In State of Madras v. Champakam Dorairajan, (1951), an order of Madras government had fixed the proportion ofstudents of each community that could be admitted in the Statemedical and engineering colleges. The order was challenged on theground that it denied admission to a person only on the ground ofreligion or cast. The petitioners in this case were denied admission

only because they were Brahmins. The Supreme Court held the orderinvalid for being violative of Art. 29(2).

Again in State of Bombay v. Bombay Education Society, (1954), an order issued by the Bombay government banningadmission to those whose language was not English into schools usingEnglish as a medium of instruction, because it denied admission solely, on the ground of language. The order was declared invalid under Art.29(2).

There are some implied restrictions on Art 29 like,

In Ramesh Chandra v. Principal B.B.I. College, (1953), Allahabad High Court held that, the protection of Art. 29(2) does not apply where the student is expelled from an institution on the ground of indiscipline. The student who has been expelled on the ground of indiscipline cannot justify his action under Art. 29(2) by saying that, he has been expelled on the ground of religion, race, caste, language or any of them.

Again in Nageshwara Rao v. Principal, Medical College, (1962), Andhra Pradesh High Court held that, the protectionof Art. 29(2) does not apply when the admission is refused on theground that, the candidate is not possessing requisite qualificationsfor any particular course. In such case, protection under Art. 29 cannotbe claimed because of ineligibility of the candidate to opt for any particular course.

According to ‘Article 30’ all minorities whether based on religion or language, shall have the right to establish and administer educational institution of their choice.

Art 30 : Right of minorities to establish and administer educational institutions :-

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

(2) The State shall not, in granting aid to educational institutions discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

What is minority ?

Art. 30(1) uses the term ‘linguistic’ or ‘religious minorities’. But what is minority is not defined under Art. 30 of the Constitution. Literally, it means a non-dominant group. It is a relative term and is referred to, to represent the smaller of two numbers, sections or groups. A linguistic minority for the purpose of Art. 30(1) is one, who has a separate spoken language. It is not necessary that, the language should have separate script.

In re Kerala Education Bill, (AIR 1958 SC 956), the Supreme Court observed that, while it is easy to say that a minority means a community which is numerically less than 50%, the important question is whether 50% of the entire population of India or State or a part thereof. It is possible that, a community may be in majority in a State, but in a minority in the whole of India.

A community may be concentrated in a part of a State and may thus be in majority there, though it may be in minority in the State as a whole. Thus, if a State law extending to the whole of a State is in question, the minority must be determined with reference to the entire State population. In such a case, any community, linguistic or religious, which is numerically less than 50% of the entire State population will be regarded as a minority for the purposes of Art. 30(1). Thus, the Christian community being 20% of the population in Kerala, is a minority there.

The ruling in the Kerala Education Bill Case has been reiterated (दोहराया / पुन्हा सांगितले) by the Supreme Court in D.A.V. College, Jalandar v. State of Punjab, (1971), popularly known as Gurunanak University Case. The Supreme Court rejected the contention of the State of Punjab that a religious or linguistic minority should be a minority in relation to the

entire population of India. The Court has ruled that a minority has to be determined in relation to a particular legislation which is sought to be impugned. According to Court, minority can be determined on the basis of population of the entire State and not on the basis of entire population of India.

The 44th Amendment Act 1978 has inserted a new clause (1-A) to Article 30 which provides that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

Clause (2) of Article 30 prohibits the State from making discrimination in the matter of grant of aid to any educational institution on the ground that it is managed by a religious minority or linguistic minority.

The fundamental freedom to establish and administer educational institution by minorities guaranteed under clause (1) of Article 30 is absolute in terms. It is not subject to any reasonable restrictions of the nature provided in Article 19 of the Constitution.

All minorities, linguistic or religious have under Article 30 an absolute right to establish and administer educational institutions of their own choice. Any law or executive direction which seeks to infringe the substance of that right under Article 30 (1) would to that extent be void.

In W. Proost v. State of Bihar, (1969), it was observed that the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter article i.e 29(1) is a general protection which is given to minorities to conserve their language, script or culture. The former i.e 30(1) is a special right to minorities to establish educational institution of their choice. This choice is not limited to institution seeking to conserve language, script or culture and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities.

Establish and administer :

The words ‘administer’ and ‘establish’ in Art. 30 (1) have to be read together. Therefore a minority can claim a right to administer an educational institution only if it has been established by it, but not otherwise. A religious minority cannot claim the right to administer an educational institution established by someone else.

Art. 30 postulates that, the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. The right to administer have been given to the minority so that it can mould the institutions as it thinks fit and in accordance with its ideas of how the interest of the community in general and the institution in particular, will be best served.

In S. P. Mittal v. Union of India, (1993), the Supreme Court has stated that, in order to claim the benefit of Art. 30(1), the community must show

(1) that it is a religious or linguistic minority and

(2) that the institution was established by it.

In a landmark judgment in the case of Frank Anthony Public School Employees Association v. Union of India, (1986),the Supreme Court has held that, the statutory measures regulatingthe terms and conditions of services of teachers and other employeesof minorities educational institutions for maintaining educationalstandards and excellence are not violative to the fundamental rightsof the minorities to administer the educational institution of theirchoice under Art. 30(1) of the Constitution. Court said that, theexcellence of educational institutions would directly depend upon thequality of the teaching staff. The management of a minority schoolcannot be permitted under the guise of the Art. 39(1) to oppress or toexploit its employees.

In St. Stephens College v. University of Delhi, (1992),

the validity of the admission programmes and the preference given to

the Christian students by the college was challenged as violative of Delhi University circulars for admission of B.A. and B. Com. courses.

St. Stephens College is affiliated to University of Delhi. It was contended that the college was bound to follow the university rules for admission. The college filed writ petition before the Supreme Court challenging the validity of university circular on the ground that they were violative of their fundamental right to manage their college under Art. 30 of the Constitution. The Supreme Court by majority of 4 to 1 held that, the college was not bound to follow the university circulars as it would deprive the college of their minority character. The right to select students for admission is an important facet of administration.

In a landmark decision in T.M.A. Pai Foundation v. State of

Karnataka, (2003), scope of Art. 30 is re-examined by the Supreme Court. From the majority judgment, the following some of the  important points may be called out.

(1) The term ‘minority’ in Art. 30(1) covers linguistic and religious minority.

(2) For the purpose of determining the minority, the unit will be

the State and not the whole of India.

(3) Art. 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words of their choice indicates that even professional educational institutions would be covered by Art. 30.

(4) Admission of students to un-aided minority educational institutions cannot be regulated by the State or concerned university except for providing the qualifications and minimum conditions of eligibility in the interest of academic standard.

(5) An un-aided minority institution is entitled to admit students belonging to minority group. At the same time, it is also required to admit non-minority students to a reasonable extent.

(6) A minority institution may have its own procedure and method of admission as well as selection of students so long as the procedure is fair and transparent.

(7) While giving aid to professional institutions, the aid giving authority may prescribe the condition on the basis of which the admission will be granted.

(8) The right to administer, not being absolute, there could be regulatory measures ensuring educational standards and maintaining excellence thereof.

Recently, in P. A. Inamdar V. State of Maharashtra, (2005), the Supreme Court has again considered the status of minorityeducational institutions under the canopy of Art. 30. In this case,following some of the important aspects are laid down by the Court.

 (1) Minority institutions are free to admit students of their choice. It can as a matter of its free will, admit students of non-minority community. However, non-minority community students cannot be forced upon it.

(2) Minority educational institutions are not immune from regulatory control by the State.

(3) With the reference to the policy of admission, the State or concerned university should not interfere in the internal policy of minority institute. They can only laid down the guidelines and rules for the maintenance of academic standards.

(5) Minority institution can reserve any number of seats for their candidates.

Relationship between Arts. 29 and 30 :

Articles 29(1) and 30(1) are related to each other.

As Art. 29(1) speaks about conservation of language, script or culture. It is difficult to conserve it without establishing and administering educational institutions. However, Supreme Court has pointed out distinction between these two Articles in number of cases.

(1) Art. 29(1) is a general protection given to sections of citizens

to conserve their language, script or culture. Art. 30 is a special right to minorities to establish educational institutions of their choice.

(2) Art. 29(1) is concerned with language, script or culture, while

Art. 30 deals with minorities based on language or religion.

(3) Art. 29(1) does not deal with education as such. Art. 30(1) deals only with the establishment and administration of educational institutions.

(4) Under Art. 29(1), conservation of language, script or culture may be unconnected with educational institutions. But under Art. 30(1), conservation of religion and language of minority is connected with educational institutions.

(5) Art. 29(1) is available to minority as well as majority. Art.

30(1) is available only to minority.