Law and You > Constitutional Law > Educational Institutions Managed by Minorities (Art. 29 and 30)
India is a dynamic constitutional democracy with unity in diversity. The meaning of diversity has different connotations such as geographical, religious, linguistic, racial and cultural. To say India is linguistically diverse because the Constitution recognizes 22 languages in 8th Schedule. Articles 29 and 30 of the Constitution gives provision for establishment and administration of educational institutions managed by minorities linguistic or religious.
Defining Minority:
The term ‘minority’ is not defined anywhere in the Constitution of India.
In A.M Patroni v. Kesavan, AIR 1965 Ker 75 case, the Court held that “any religious or linguistic community which is less than 50% of the total population shall be considered as a “minority”
In D.A.V College, Bathinda v. State of Punjab, AIR 1971 SC 1731 case, the Apex Court held that for the purpose of article 30(1) a community may constitute a minority based on language, even though they may not have a separate script; it would be enough if they have a separate spoken language. Court further held that a minority has to be determined in relation to the particular legislation which is sought to be implemented. If it is a state law, the minorities have to be determined in relation to state population.
In A.S.E Trust v. Director, Education, Delhi administration, AIR 1976 Del 207 case, the Court held that the term “minority based on religion” should be restricted only to those religious minorities, e.g., Muslims, Christians, Jains, Buddhists, Sikhs, etc., which have kept their identity separate from majority, namely, the Hindus.
Article 29 in the Constitution of India:
Protection of Interests 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 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
Article 29(1) extends to all the citizens irrespective of the fact whether they are in majority or minority, the only condition being that such section must have a distinct language, script or culture of its own. It is an absolute right for the minorities to preserve its language and culture through educational institutions and cannot be subject to reasonable restrictions in the interest of the general public.
Article 29(2) is general in nature as it starts with No Citizen, it means this Article is applicable to all irrespective of minority or majority groups. The present clause gives an aggrieved person, who has been denied admission on the ground of his religion. If a person has the academic qualifications but is refused admission only on the grounds of religion, race, caste, language or any of them, then there is a clear breach of the fundamental right under this clause.
In State of Madras V. Champakam Dorairajam, AIR 1951 SC 226 case, an order of Madras Government was challenged in on the ground that it denied admission to a person only on the ground of religion or caste, which had fixed the proportion of students of each community that could be admitted into the state Medical and Engineering Colleges. The petitioners in this case were denied admission only because they were Brahmins. Supreme Court held that the order was invalid for being violative of Article 29(2).
Article 30 in the Constitution of India:
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.
To claim the benefit under article 30(1) it is not necessary
- That the institution must seek to conserve the language, script or culture of the minority community; what is necessary is its establishment by the minority community, it may impart religious or secular education wholly unconnected with language, script, and culture.
- That admission into such institution must be confined exclusively to members of the minority community, and not a single member of the majority community or other minority communities should have its advantage.
Administration:
The word “Administer” under article 30(1) of the Constitution means the right to manage and conduct the affairs of the institution. The right to administer may be said to consist of the following rights:
- To choose its managing or governing body;
- To choose its teachers; and headmaster/principal.
- Not to be compelled to refuse admission to students;
- To use its properties and assets for the benefit of the institution;
- To select its own medium of instruction; hence, a legislation which would penalize by disaffiliation from the university any institution which uses a language as the medium of instruction other than the one prescribed by it, offends against article 30(1).
It is open to a university to impose reasonable conditions upon a minority institution for maintaining the requisite educational standard and efficiency like
- Qualifications of teachers to be appointed in the institution;
- Conditions of service e.g., the age of superannuation of teachers;
- Qualifications for entry of students;
- Courses of study (subject to special subjects which the institution may seek to teach)
- Hygiene and physical training of students.
Article 30(1) does not require that the whole community must have been involved in the establishment of the educational institution. It might be established even by a philanthropic individual with his own means in the interest of the minority community, it would be entitled to the protection of article 30(1).
In St. Xavier’s College v. State of Gujarat, AIR, 1974 SC1389 case, the Court, after reviewing its earlier decisions, held that article 29(1) and 30(1) deal with distinct matters and may be considered supplementing each other so far as certain cultural rights are concerned. Article 30(1) covers institution imparting general secular education. The object of article 30 is to enable children of minorities to go out in the world fully equipped.
In Andhra Pradesh Christian Medical Association v. Government of Andhra Pradesh. AIR 1986 SC 1490 case, the Supreme Court has asserted that the government, the university and ultimately the court can go behind the claim that the institution in question is a minority institution and “to investigate and satisfy itself whether the claim is well founded or ill-founded”, the government, the university and ultimately the court “have the undoubted right to pierce the minority veil” and “discover whether there is lurking behind it no minority at all and in any case no minority institution”.
In State of Bombay v. Bombay Education Society, AIR 1954 SC 561 case, the Supreme Court struck down an order of the Bombay Government banning admission of those whose language was not English into schools having English as the medium of instruction because it denied admission solely on the ground of language. The order, the court said, would not be valid, even if the object for making it was the promotion or advancement of national language. The Court observed: “Where…..A minority like the Anglo Indian community, which is based, interalia, on religion and language has the fundamental right to conserve its language, script and culture under Article 29(1) and has the right to establish and administer educational institution of their choice under Article 30(1) surely then there must be implicit in the fundamental right, the right to impart instruction in their own institutions to children of their own community in then own language…….such being the fundamental right the police power of the state to determine the medium of instruction must yield to the fundamental right to the extent it is necessary to give effect to it and cannot be permitted to run counter to it”
In St. Stephen’s College v. University of Delhi, 6 December, 1991 case, the preference is given to Christian students by St. Stephen’s College was challenged. The Supreme Court by the majority of 1 to 4 held that the college is not bound to follow the university circulars as it will deprive the college of their minority character. The right to select students for admission is an important facet of administration. This power also can be regulated but the regulation must be reasonable and should be conducive to the minority institutions. The impugned directive of the university to select students on the uniform basis of marks secured in the qualifying examinations would deny the right to the college to admit students belonging to the Christian community. Unless some concession is provided to the Christian students. The court decided the two categories for the selection process:
- Category I – 50% of the seats reserved for the minority community.
- Category II – remaining 50% are selected on the basis of merit.
In A.M Patroni v. Asst Educational Officer, AIR 1974 ker.197 case, where a school previously run by some other organization, was taken over by the church, which reorganized and managed it to cater to and in conformity with the school as established by Roman Catholics. The school was held to have been established by the Roman Catholics for the purpose of article 30(1).
In T.M.A Pai Foundation v. State of Karnataka, AIR 2003 SC 355 case, the Supreme Court held that a minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence”. The court also overruled the decision in St. Stephen‟s case. The court has now granted the power to the state to fix quotas for minority students.
In P. A. Inamdar v. State of Maharashtra, AIR 205 SC 3226 case, the court held that the policy of reservation cannot be enforced by the state nor can a quota or percentage of admissions be carved out to be appropriated by the state. The state may, through itself or through some agency arrange a common entrance test that is fair and transparent. And students can accordingly be admitted on the basis of merit of the common entrance test. Every institution is free to define its fee structure subject to certain restrictions. NRI seats permitted to the extent of 15% in educational institutions. The two committees for monitoring admission procedure and determining fee structure under the judgment of Islamic academy are permissible as regulatory measures. In case of the absence of any central legislation, the central and state governments should make legislation on the subject.
Conclusion:
Article 29 only protect the interests of the minorities whether based on language, script or culture, and article 30 provide for the right to establish and administer educational institutions of their own to promote their own society or their community. These Articles play very important role in protecting rights and interests of minorities. India consists of the people of various languages, religions, cultures etc. so existence of minority on the basis language, religion etc. are common therefore such provision play important role in protecting the rights of minority. Therefore, we as the secular country need such provision. Many time various political parties in the name of giving benefits to the minorities play with minority but that is not fair implementation, fair implementation must be there.
In St. Xavier College v. State of Gujarat, AIR 1974 SC 1389 case, the Court observed that “the spirit behind the provision of the following article is conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutes, of their choice for the purpose of giving their child the best general education to make them complete man and women of the country.”