Introduction
Indian Constitution is not only the longest written Constitution in the world, but it also contains some unique features. With the careful analysis of its fundamental framework, we can get precise insights into its profound spirits and the aims and aspirations of its framers. We can contemplate that pluralism is the intrinsic nature of the Constitution because India is the homeland of numerous religious, cultural, educational, social, castes, linguistic groups of people having their diverse norms and traditions. Despite having such a multitude of differences, ‘unity in diversity’ is one of the most distinct characteristics of the Constitution. As the Constitution recognized certain groups of people as minorities, it was essential to provide adequate Constitutional safeguards to protect their interests. In this context, along with other fundamental rights enumerated in Part III of the Indian Constitution, Articles 29 and 30 deal with the ‘Cultural and Educational Rights.’
Article 29 guarantees the protection of the interests of minorities. According to Article 29(1), if any particular section of citizens who reside in any part of the nation have ‘a distinct language, script or culture’ of its own, they have the right ‘to conserve the same.’ Alongside Article 29(1), Article 29(2) lays down that ‘no one is not to be denied to any citizen into any educational institutions maintained by the State or receiving aids out of the State funds on the grounds only of religion, race, caste, language or any of them.’ Irrespective of the communities to which a citizen belongs, both Articles guarantee every citizen’s cultural and educational rights if some specific criteria are satisfied. On the other hand, Article 30 of the Constitution confers the right ‘to minorities to establish and administer educational institutions of their choice.’ It is also very relevant in the present context when the right to free and compulsory education to all children of the age sixteen to fourteen years has been made a fundamental right under Article 21A. We may note that the same rights to establish and manage educational and other religious or charitable institutions are conferred to the non-minorities under Articles 19(1)(g) and 26 of the Constitution, respectively.
In this article, the aforementioned cultural and educational rights as enumerated in Part III of the Indian Constitution are discussed.
The concept of minorities
At the outset, the concept of the ‘minorities’ must be perspicuous to explain the current topic. Though the exact definition of the word ‘minorities’ is not present in the Constitution, it can be elucidated from the literature of Article 30(1) that the term denotes ‘linguistic’ or ‘religious’ minorities in this regard. It means that the minorities are those sections of citizens of the country who either speak in their separate languages or profess different religions compared to the rest of the country’s population. It can be noted that a distinct language may not have a particular script. Still, the people who speak in that language for the purposes of Article 30(1) may constitute minorities. Even having any of the distinct entities of their own is adequate to get recognition of minorities. The word ‘or’ implies that fulfilling any of the aforementioned criteria is sufficient for any section of citizens to be considered ‘minorities.’ If any section of citizens is either linguistic or religious or both minorities, they can be regarded as ‘minorities’ to grant them the protections guaranteed under Article 29 and 30. But the definitions of ‘minorities’ may differ from each other in different circumstances. In the ordinary sense, the people who have a distinct language, script, or culture of their own can constitute ‘minorities’ at least for the purposes of Article 29(1).
On the other hand, in some landmark cases like the Islamic Academy of Education vs. State of Karnataka[1] and Bal Patil vs. Union of India[2], the Apex Court held that in order to determine the minority status of any particular community, other factors such as economic welfare should be taken into consideration. The Supreme Court of India in the Islamic Academy of Education case clarified the T.M.A. Pai Foundation’s judgment. It summarized that the unaided Minorities Educational Institutions must have the freedom to fix the reasonable institutions’ fee structures. It must be solely for the institution’s benefit or betterment, not for profiteering, business purposes, or personal gain.
The Court also issued directions to the respective State Governments to form a committee headed by a retired High Court judge of the State to supervise the fee structures of the Minority Educational Institutions. According to Section 2(c) of the National Commission for Minorities Act, 1992, “minority,” for the purposes of this Act, means a community notified as such by the Central Government.” In Bal Patil’s case, the Supreme Court relied upon the aforementioned provision and refused to issue a writ of mandamus to direct the Government to recognize Jain communities as religious minorities; however, the Court left it to the respective State Governments to decide. As of now, the Central Government has recognized only the following communities as religious minorities, namely Buddhists, Christians, Sikhs, Muslims, and Zoroastrians. Even the Government now explicitly awarded the minority religion status to the Jains under Section 2(c) of the National Commission for Minorities Act, 1992.
In the leading case- In Re Kerala Educational Bill (1957)[3], the President of India, exercising power to seek advice from the Supreme Court on any legal question arising before him under Article 143 through Special Reference No. 1 of 1958, sought the opinion of the Supreme Court regarding the Constitutionality of some of the provisions of Kerala Education Bill, 1957 which were sought to be violative of the minority rights to establish and administer educational institutions of their choice under Article 30(1) of the Constitution. Under its advisory jurisdiction, the Supreme Court upheld the validity of the provisions of the said impugned State legislation. The Court clarified that Article 30(1) doesn’t necessarily confer any right to the minority educational institutions to exploit the teachers and staff, paying them meager salaries because it will violate their right to live a good livelihood. The State is entitled to fix these issues in this regard.
In this case, the Court also noted one crucial question: it is easy to determine that any community that is numerically less than 50 percent of the total population can get the minority status, but the 50 percent of what population? The Court doubted whether the total population of the country or the total population of the State should be taken into consideration to determine the specific issue. It was evident from this said question that any community that is a minority in a particular State within its territorial limits may not be a minority in the entire country. So it will be wrong to treat any specific community as a minority in a State where they are a majority in population although a minority in relation to the country’s entire populace. The Supreme Court in the said case concluded that the concerned issues of minority status are to be decided on the nature of the particular impugned legislation, whether it is State or Central, which is challenged. If a State legislation is challenged, the minority status should be determined within the population of that State limits. Likewise, when any Central legislation is challenged on the same ground, the country’s entire populace should be considered.
Thus if the Sikh community constitutes 15 percent of the total population of West Bengal, they will get the minority status in relation to any State legislation only within the territorial limits of West Bengal. The Supreme Court reaffirmed the same decision in the Guru Nanak University[4] case. In that case, some provisions of the Guru Nanak University (Amritsar) Act, 1969, were challenged as those were sought to be inconsistent with the minority rights. In this case, the Supreme Court ruled that the minority status of any community must be determined in relation to the particular legislation which is sought to be impugned. The Court refused to accept the contention of the State of Punjab that the religious or linguistic minority status is to be determined in relation to the entire population of India. When the State legislature passes a law sought to be impugned, the minority status must be determined within the State limits in relation to the State population only.
Thus the Hindus and Arya Samajists in Punjab are also religious minorities having their distinct language and script. Therefore they can invoke Article 29(1) and Article 30(1) to protect minority rights. In the Union Territory of Delhi, the Arya Samajists are not regarded as religious minorities for the purpose of Article 30(1) because it is only a reformed sect of Hinduism, not a separate religion, and Hindus are the majority in Delhi. However, they are religious denominations for the purpose of Article 26, and they are entitled to claim certain rights under Articles 25, 28, and 29. In the State of Bombay vs. Bombay Educational Society[5], it was held that Anglo Indians being religious and linguistic minorities, can also invoke Article 29(1) and 30(1). But a Theosophical society can’t be declared religious minorities. In Arya Samaj, Shillong vs. Meghalaya[6], the Gauhati High Court held that the Arya Samajists being a reformed sect of Hinduism, are both religious and linguistic minorities in the State of Meghalaya.
Hence, we may find out that the numerous sects of any particular religious community don’t constitute minorities at all because it will create a more complex and stratified society. Moreover, if such minority status is granted to all sects of any majority religious community, that majority community will be converted to a minority community in due course of time. Therefore, the minority status should be confined within few religious communities, namely Muslims, Sikhs, Jains, Christians, Zoroastrians, etc. It is noteworthy that the Buddhists, Sikhs, and Jains, although governed by the same Hindu personal laws, have been awarded the minority status because of having distinct entities of their own. However, in Sree Jain Swetambar Terapanthi Vidyalaya vs. State of West Bengal[7], the Calcutta High Court held that Jain Swetambar Terapanthi is a religious sect. Therefore, it is not a part of the Hindu religion in any way because it possesses different beliefs compared to the Hindus. In a peculiar instance, if the population of territory becomes so fragmented that no religious or linguistic group by itself can constitute 50 percent of the total population, then each community or group of the population can fall within the ambit of Article 30(1) in the absence of any majority community or group.
We can also point out that a society that works to promote the cultural and educational interests of a linguistic minority in a particular State is entitled to claim the privileges under Articles 29 and 30(1) as held by the Karnataka High Court[8]. From this aspect, a society that promotes Hindi literature and cultures in West Bengal, where Bengalis are majorities, represents linguistic minorities.
Another point must be noted that Article 29 requires citizenship as an essential qualification of the minorities to avail the protection guaranteed by this provision, whereas Article 30(1) doesn’t explicitly stipulate citizenship as a necessary qualification. The Supreme Court gave another significant ruling in Rt. Rev. Bishop S. K. Patro & Ors vs. State Of Bihar & Ors. [9] in this regard. In this case, an order of State Educational Authorities instructing a minority Christian Educational Institution to constitute a managing committee was challenged before the Patna High Court because it negated their minority rights. The institution was under the management of the National Christian Council of India, and it was founded at Bhagalpur in 1854 with the aid of the Church Missionary Society of Landon. The High Court dismissed the petition citing that the Insition was established before the enactment of the Indian Constitution, and the founders of the institution in 1854 were not citizens of India. Further, the funds to establish the said institution were received from a foreign country; hence the members of the institution can’t take the privilege of Article 30(1) despite being minorities in this case. The Supreme Court emphasized that it is true that foreigners who don’t reside in India don’t come within the purview of minorities under Article 30(1). Therefore, only the minorities who reside in India and form ‘well-defined religious or linguistic minorities’ can invoke Article 30(1) to protect their minority rights. But, in this case, the institution was founded by the local residents of Bhagalpur, and there was no Indian citizenship in 1854. Even if the management of an institution is carried on at times by some persons who were not born in India, it also doesn’t disentitle the institution to be declared a minority institution. Hence, denying protection to minorities under Article 30(1) only on the ground that the United Kingdom contributed the funds is not warranted by the Indian Constitution. Thus, the Court ruled that obtaining funds to establish a Minority Educational Institution in India is not a ground to take away the rights of minorities protected under Article 30(1). Accordingly, the Court found the said order of the State Educational Authorities invalid.
In order to ascertain the contours of the State to regulate the private minority institutions, two Supreme Court verdicts occupy relevance even in the present day. So far as the Constitutional validities of the State regulations upon the minority institutions are concerned, the concept of minorities and legitimacy of such regulations can be adjudged with the help of these two most leading concurrent cases. These are namely:
T.M.A. Pai Foundation & Ors vs. State Of Karnataka & Ors[10]:
In this case, T.M.A Pai was a trust under which many educational institutions were founded by Dr. T.M.A Pai. The institutions were owned and managed by the concerned trust itself. Among the other institutions, there was an academy named “The Academy for General Education” that was registered as a society under the Societies Registration Act. As shown in the trust deed, the said academy aimed to promote Konkani language and culture and work for the advancement of the Konkani speaking students who were linguistic minorities in Karnataka, including all castes and communities. The institution was declared as an unaided private educational institution. The Governor of the State promulgated an Ordinance- Karnataka Educational Institutions Ordinance, 1984 banning the evil collection of the excess fee from the students of the private institutions. The State Government also fixed the total intake of the private unaided institutions and stipulated by an order that 40% of the total seats are to be reserved for the Government. A writ petition that sought the impugned Ordinance and the Government order is an infraction of the minority rights guaranteed under Article 30(1) was filed in challenging the said before the Supreme Court in 1993. Eventually, during the pendency of the petition, an Act came into force that prescribed the rate of tuition fee and capitation fee that the private unaided institutions can charge.
Besides the cardinal facts of this case, its background should not be left untouched. In the case of Miss Mohini Jain vs. State Of Karnataka And Ors[11], the Supreme Court put emphasis on the necessity to treat the right to education as an essential Constitutional right. For this reason, the Court observed that the fees of education in all aided and unaided private institutions must be equal for both rich and poor. The students shouldn’t be allowed to be exploited by the private institutions by charging an extra fee. The State regulation was necessary to frame uniform and reasonable fee structures for those institutions. But, this would amount to a violation of the minority rights under Article 30(1). In the later case of the Unni Krishnan, J.P. & Ors. vs. State of Andhra Pradesh[12], the Supreme Court put forth its observation to get rid of the absurdities found in Mohini Jain’s judgment that the minimum State control to prevent commercialization of the private institution wouldn’t harm their autonomous character. The capitation fee was forbidden, but the institutions would be free to charge an adequate and reasonable fee.
In another case of St Stephen’s College vs. the University of Delhi[13], the Supreme Court held that the minority institution had to make available 50% of the annual admission of the other non-minority communities, and the admission of those seats was to be purely merit-based. Since the validities of all these preceding decisions were doubted on the Constitutional grounds and after the introduction of the 42nd Constitutional Amendment Act, 1976 whereby the “Education” was inserted into the Entry 25 of Concurrent List, removing the same from the State List under Seventh Schedule, the Supreme Court in 2003 felt the need to reframe the earlier decisions. The case was referred to a larger Bench of 11 Judges led by the 31st Chief Justice of India- Justice B.N Kirpal, to settle the issues raised in the preceding cases. The verdict came with the majority judgments of 6 judges out of 11. The Court elaborated that the right of minorities under Article 30(1) is not absolute or unbridled. The State is authorized to “impose law and regulatory measures to ensure the educational standards and maintain professional excellence thereof, especially in professional institutions.” The State can also frame regulations concerning the areas like the welfare of students and teachers, maintain a conducive academic atmosphere, and such regulations will not interfere with the rights of minorities to manage the institution as per their choice enshrined under Article 30(1) of the Constitution. Their right to administer the institutions is inviolable but subject to reasonable restrictions, public order, health, hygiene, and morality. Such restrictions should be based upon the national interests, integrity, sovereignty, and security of the nation. Where the national interests are involved, such restrictions must apply to every educational institution, be it a minority or non-minority institution, because the minority rights must not override the national interests. The minority institutions can be classified into aided and unaided institutions, and the latter will have greater autonomy than the former. The Court overruled St Stephen’s College’s decision as it would harm their autonomy. It held that the institutions are authorized to devise their own set of regulations in matters of admission of the students, including the admission to the non-minority students to some reasonable extent, and they are not bound to comply with the 50% earmark that was set earlier. It is an intrinsic character of a minority institution that its administration is to be managed by the minorities as per their sweet will. Still, the process of admission must be transparent and merit-based. Nevertheless, the State authorities may insist on allocating certain seats to those belonging to the weaker and distressed sections of the society from amongst the non-minority seats. The judgment also overruled the Unni Krishnan judgment’s scheme regarding grant of admissions and fixation of fee. The Court emphasized that the regulations set by the State in some exceptional grounds must be concomitant to the minority character of the institution.
Further, the Court dealt with a significant issue concerning the unit, whether the State or the whole nation to be taken into account to determine the linguistic, religious, or any other minority status of any community. The majority of the judges observed that the minority status of any community within the meaning of Article 30(1) must be determined in relation to the State in which the minority institution is sought to be established, be it State legislation or Central legislation. It is because the recognitions of various Indian States are primarily based on linguistic differences. So likewise, to determine religious minorities, the State must be the yardstick because, for the purpose of Article 30(1), the linguistic and religious minorities have been put on equal footing.
It is significant to note that the minority view differed from the above. It stated that the minority status of a community has to be determined in relation to the offending piece of legislation or executive order. When the source of the infringing action is the State, the said status has to be determined within the territorial limits of that State and the population of that State will be taken into account in that regard. Similarly, when the entire country is sought to be affected by a Union legislation or executive order, the question of said status has to be determined in reference to the population of the nation as a whole. The reasoning of the minority view can be understood through an example. Suppose the Central Government by an Executive order or a Legislation prescribes Hindi as a sole compulsory medium of instruction in all Central and State Government-run educational institutions (including at the primary level), there are some States where the non-Hindi speaking people are the majorities in reference to the population of their respective States though minorities in reference to the pan-India population. Evidently, as per this judgment of the Supreme Court, they will not be considered minorities within the meaning of Articles 29(1). In that case, they will be disentitled to claim their right for protection of distinct language, culture, or script because this right is only available to the minorities. Thus, they will suffer unjust treatment even though there will be manifest infringements of their fundamental right guaranteed under Article 29(1).
P.A. Inamdar vs. State of Maharashtra[14]:
In the Islamic Academy of Education case, the Supreme Court instructed the State Governments to set up committees to fix the issues like fee regulations, quotas, and State reservations in private institutions. The above judgment was further questioned before a 7 Judges Bench of the Supreme Court. The verdict of this case can be discussed in the following points:
- The State cannot enforce either the policy of reservations or quotas or the percentage of student’s intake upon any private institution.
- A group of similarly placed institutions can conduct an entrance test for the admission of the students. However, it must be fair, transparent, non-exploitative, and purely merit-based. If the above criteria are not satisfied, the State can itself take over or constitute a body to conduct such entrance tests.
- As instructed in the Islamic Academy of Education case, the committees can be permissible to fix the reasonable fee structure of the institutions and oversee the admission procedures thereof.
- Every educational institution is at liberty to design its own fee structure provided that there must not be any profiteering motive, and capitation fee cannot be charged in any form. Even reservations up to 15% of the total intake for the Non-Residential Indians(NRIs) are permissible in all institutions.
- There is no bar for the States and Central Governments to bring out comprehensive and well-thought-out legislations on the particular issues discussed here.
In this way, the Court also clarified the earlier T.M.A Pai Foundation’s judgment.
Protection of interests of minorities
As per Article 29 of the Indian Constitution—
“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.”
So far as the literature of Article 29(1) is concerned, it delineates the spirit that the interests of the minorities are not to be undermined. Therefore, any section of citizens who reside in India or any part thereof has a distinct language, script, and culture of its own is vested with the right to conserve the same. As we have already seen, citizenship is a necessary qualification in respect of the rights guaranteed under Article 29. In various landmark cases, the Supreme Court widened the sphere of this Article through a number of interpretations. In the D.A.V. College, Jullundur vs. State of Punjab[15], a legal provision requiring the Guru Nanak University to promote education and research in the Punjabi language was challenged on being inconsistent with the protections given to the minorities under Article 29(1) and 30(1). The Supreme Court held that the legal provision in question doesn’t contravene the minority rights because the said Articles don’t create any explicit bar for the State to make any special provision to promote the regional language of that particular State. There is no prohibition for the State to develop the majority population’s language, culture, or religious teachings. However, any encroachment on the domain of minority rights by the State is not permissible.
Thus, any provision compelling the minority educational institutions affiliated to the Guru Nanak University to impart education and research in the Punjabi language impedes the right to conserve their distinct language, culture, or script; hence it is not warranted by the Constitution. It is further held that any provision mandating the affiliated minority institutions to impart the teachings of saints of a particular religion or the philosophies and research of their lives as an integral part of the academic curriculum can be construed so as to an onslaught on the said fundamental right. In Jagdev Singh Sidhanti vs. Pratap Singh Daulta[16], the Court held that the right conferred under Article 29(1) by the Constitution to the minorities to conserve their unique identities is absolute; it is not subject to any reasonable restriction. Therefore, seeking votes from electorates by making promises by a political party candidate to conserve their language or unique identities doesn’t amount to corrupt practices as per Section 123(3) of The Representation of The People Act, 1951. It was emphasized that “this clause must be read subject to Art. 29(1), for it, could not be construed so as to trespass upon the Fundamental Right in question.”[17]
In another significant ruling in the Usha Mehta & Ors vs. State Of Maharashtra & Ors[18], the imposition of the Marathi language as a compulsory study in a minority institution was challenged in the Supreme Court. The Court relying upon the ‘three-language formula,’ ruled that Articles 29(1) and 30(1) shouldn’t be given any negative interpretation so as to exclude minority institutions from studying regional languages. Therefore, imposing regional language as compulsory study, though not a mandatory medium of instruction, doesn’t contravene minority rights. Correspondingly, a Government order imposing Kannada as a mandatory teaching medium instead of English was struck down by the Karnataka High Court.
On the other hand, Article 29(2) elucidates that the rights guaranteed under this Article are not restricted to any particular community or section of citizens. It is available to every citizen in India irrespective of their minority or majority status in the matter of admission to any educational institution aided and maintained by the State. The rights conferred by it are absolute and unqualified; hence these are not subject to any reasonable restrictions. It is also clear that any private educational institutions receiving aid out of the Government funds are also bound not to discriminate the students only on religion, race, caste, or language in the matter of admission. If any such discrimination takes place, the High Courts can issue a writ of mandamus to the Government as well as Private Institutions receiving aid out of the Government funds under Article 226 to enforce the fundamental rights guaranteed by it. However, the word ‘only’ in the Article implies that any discrimination on any grounds other than the grounds specified therein doesn’t violate the mandate of clause 2 of Article 29. Therefore, if the discrimination is found to be not merely on the grounds of language, caste, race, religion, or any of them, but also some additional grounds not being irrelevant or fanciful, Article 29(2) cannot be invoked. Thus, we may comprehend that Article 29(2) can be invoked when the discrimination is based only upon the prohibited grounds; hence the said Article doesn’t create an absolute right in the case when the additional grounds are involved. The said right is absolute and unqualified only when the discrimination in question is based on the grounds specified in the Article.
The scope of Article 29(2) can be ascertained with the help of landmark cases decided by the Supreme Court. In the State of Madras vs. Srimathi Champakam Dorairajan[19], the application of Article 29(2) was questioned in the Supreme Court for the first time. In the instant case, a Government Order issued by the State of Madras allotted seats for admission to a State-aided Medical College proportionally to the candidates of various communities, including Muslims, non-Brahmin Hindus, Christians, Harijans, Anglo-Indians, etc., excluding the Brahmins. The said order was challenged on the ground being repugnant to Article 29(2). The Supreme Court held that the Government order in question was communal in nature. Therefore, such denial of admission to the Brahmin candidates, specifically on the ground of caste even though they fulfilled the required criteria, is the transgression of Article 29(2). However, if a candidate is denied admission because of not fulfilling the specified eligibility criteria viz. requisite marks in the entrance exam and any other academic qualification or misconduct on the part of the candidate, the protection granted under this Article cannot be invoked. It is also held that completely denying admissions of the students even though the seats are available on the grounds of language, race, caste, religion to a minority educational institution aided and managed by the State is unconstitutional while preferring the minority students over the others or providing them reservations is not prohibited.
A Government Order issued by the State of Bombay forbidding the admission of the pupils whose mother tongue was not English to the State-aided English medium schools was found to be unacceptable in the State of Bombay vs. Bombay Education Society[20]. There was no doubt that the object underlying such discrimination was intended for the promotion and development of the English language in the State, and it is commendable too. Still, its validity must be adjudged by the methods of its operation and its effect on the fundamental rights guaranteed under Article 29(2). Here the immediate ground of such denial of admission in the English medium schools to the pupils whose mother tongue was not English was the only medium of instructions; hence that impugned order couldn’t be upheld. The Court has emphasized that there must be a nexus between the object intended to achieve by the order in question and the mode and manner adopted therein to achieve the same. Declining admission to the students belonging to the majority community means that they don’t have the right to get admission to the educational institutions maintained by the State, and for the maintenance of which, they are paying taxes. Correspondingly in the Suneel Jatley vs. State of Haryana[21], the Supreme Court invalidated the provision comprising reservation in Medical Colleges in the urban areas for the students passing out Class VIII from the rural areas. The Government contended that such reservation would help the advancement of students who didn’t get proper education, usually in their rural areas, to pursue Medical studies in urban areas. The Court noticed that the contention was utterly irrational and unjustified because the education till Class VIII has hardly any relevance to Medical studies.
Relationship between Article 29(2) and Article 15(1)
Reservation is always deemed to be the biggest evil of meritocracy. We know that both Articles 15(1) and 29(2) prohibit discrimination on some specified grounds. Nevertheless, some differences between these two Articles must not be ruled out. Firstly, the right under Article 29(2) is available to every citizen of India only in matters relating to admissions to any educational institutions aided and maintained by the State. But, on the other hand, right under Article 15(1) is available to every citizen in generally all matters. Secondly, the right under Article 15(1) is available only against the State, but the right under Article 29(2) is available against the State as well as private bodies that infringe the right specified therein. Lastly, Article 15(1) expressly prohibits discrimination only on the grounds of religion, race, caste, sex, or place of birth, or any of them, though not on language, while Article 29(2) doesn’t include sex or place of birth as prohibited grounds of discrimination.
Therefore, discrimination on the grounds of sex or place of birth is permissible under Article 29(2) though not under Article 15(1). Thus, it can be discerned that Article 15(1) has a broader spectrum and guarantees protections from discrimination on numerous grounds, even though those are not specified under Article 29(2). In case if Article 29(2) fails to protect from arbitrary discrimination on some areas not provided under Article 29(2) in matters of admission to educational institutions aided and maintained by the State, Article 15(1) can cover those areas and provide safeguards against such discrimination. Correspondingly, suppose there is any discrimination on the place of birth for admission to a State-aided educational institution. In that case, that will be invalid under Article 15(1), though it is not mentioned under Article 29(2). Again, unlike Article 29(2), Article 15(1) doesn’t mention language as a prohibited ground of discrimination; hence discrimination on language may be permissible under Article 15(1) but impermissible under Article 29(2) in the matter of admission in educational institutions aided and maintained by the State.
Relationship between Article 29(2) and Article 15(4)
After the Champakam Dorairajan[22] judgment, Clause 4 was inserted into Article 15 by the 1st Constitutional Amendment Act, 1951 to make the State empowered to make special provisions for the advancement of any socially and educationally backward classes, or any particular section of citizens, including to make reservations in educational institutions for Scheduled castes, Scheduled tribes, or other backward classes. Thus, prima facie, Article 15(4) contradicts the prohibitions given under Article 29(2) to some extent. But, Article 15(4) postulates that such reservation is allowed only when its sole purpose is the advancement of the backward classes. Therefore, it shouldn’t be interpreted as an abridgment of the other Constitutionally guaranteed fundamental rights. If any reservation is not justified under Article 15(4), that is always invalid. In a case where the State provided for a maximum of 15 percent reservation for the backward classes, but the students of backward classes secured more than 15 percent seats by their merits in general competition, it was held that the rule of 15 percent couldn’t be invoked to reject the students over the prescribed number as it will cause an infringement of their fundamental rights under Article 29(2). In the Champakam Dorairajan[23] judgment, the Government order in question that denied admission of specifically Brahmin candidates to the State-aided Medical College was invalidated because it was communal in nature, and it utterly disregarded both Articles 15(4) and 29(2). There was no intention for the advancement of the non-Brahmins and other communities.
Relationship between Article 29(2) and Article 15(5):
The Apex Court in the T.M.A Pai Foundation case distinguished between the State-aided and non-State-aided educational institutions and held that the State cannot compel the non-State-aided private educational institutions to implement the State’s policies on reservation for granting admission to any socially or educationally backward classes or any particular section of Indian citizens on any eligibility criterion except merits. So as to overrule the said judgment, Clause 5 was inserted into Article 15 by the 93rd Constitutional Amendment Act, 2005 that empowered the State to legislate specific laws so as to formulate special provisions for the upliftment of the socially and educationally backward classes, including the Scheduled castes and Scheduled tribes “insofar as such special provisions, relate to their admission to all educational institutions, including private educational institutions, whether aided or unaided by the State other than the minority educational institutions referred to in Article 30(1).” Therefore, the laws made by the legislature in exercise the powers conferred by clause 5 of Article 15 cannot be outlawed by the operations of Article 29(2) and Article 19(1)(g). Subsequently, the parliament introduced the Central Educational Institutions (Reservation in Admission) Act, 2006, which stipulates the special provisions for reservation of 15%, 7%, and 27%, seats for SCs, STs, and OBCs, respectively. The said Act and the Constitutional Amendment were challenged before the Supreme Court in the Ashoka Kumar Thakur vs. Union Of India And Ors.[24] It was argued that the 93rd Constitutional Amendment Act, 2005 was violative of the Basic Structure of the Constitution. However, the Supreme Court upheld the Constitutional validities of the said Act and Constitutional Amendment.
Right of minorities to establish and administer educational institutions:
The perusal of Article 30 of the Constitution of India states—
“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.”
From the literature of Article 30(1), it perspicuous that it confers the minorities, whether linguistic or religious, two following rights: (a) to establish educational institutions, and (b) to administer the same as per their own choice. These rights are available exclusively to the minorities, not to other citizens in general. Moreover, Article 30(1A) spells out that in case the State makes any law for the purpose of compulsory acquisition of the properties of a minorities educational institution founded and administered by them under the provision of clause 1, it has to ensure that “the amount fixed by or determined under such law” will not infringe their rights guaranteed by the same clause. More importantly, the ‘Right to property’ was removed from Article 31 by the 44th Constitutional Amendment Act, 1978, and it was no longer made a fundamental right. But, it was ensured that such amendment wouldn’t affect the right of minority communities to establish the educational institutions of their choice.
Alongside the above provision, Article 30(2) mandates that the State cannot discriminate while granting aids to any minority educational institution on the ground that it is established and administered by the minorities, be it religious or linguistic. However, the Article doesn’t mean that the minority communities can claim financial aid as a matter of right. But, such educational institutions are entitled to be treated equally along with the other educational institution run by the majority groups. It is ruled in St Stephen’s College vs. the University of Delhi that the receipt of financial aid from the State doesn’t in any way take away the minority status of the educational institution in question. In the T.M.A Pai Foundation case, the Supreme Court stated that the expression ‘educational institution’ extends to all educational institutions starting from the primary level to the postgraduate level, including professional education. Further, It was unanimously agreed in the view that the right of minorities to establish and administer educational institutions also includes the following rights: (i) to set up a governing body; (ii) to admit students; (iii) to appoint staff including teaching as well as non-teaching; (iv) to formulate a reasonable fee structure; and (v) to take appropriate action in case of dereliction in the duty on the part of the employees. In many notable cases, the Apex Court emphasized that when Article 30(1) postulates the right to the minorities to establish educational institutions, it equally gives them the right to administer the same of their choice. Thus, the purpose of granting the right to administer educational institutions is that minorities can mold such institutions according to their ideas and needs of how the interests of the community in general and the institution, in particular, can be best served. In the Rev. Sidhajbhai Sabhai vs. State of Bombay[25], the Government of Bombay instructed all non-government training schools to reserve 80% of the teaching seats of each school for the candidates chosen by the Government and not to admit private students more than 20% of the class strength without the permission of the Education inspector. A principal of a non-State-aided teaching school established and run by a minority society who had faith in Christianity refused to comply with the Government order and challenged it before the Supreme Court. The Court held that such a Government order is an infraction of the right granted by Article 30(1), being violative of Article 30(1) of the Constitution. More importantly, the Court laid down two tests that can be useful to determine the legitimacy of the State’s regulation on the minority institutions. Those are: (a) such State’s regulation must be regulative, not destructive of the minority character of the institutions, and (b) the purpose of such regulation must be to make minority institutions an effective vehicle of minority education.
In the State Of Kerala, Etc vs. Very Rev. Mother Provincial, Etc[26], 11th Chief Justice of India- Justice Md. Hidayatullah expounded that “the right to establish an institution would include a case where a single philanthropic individual with his own means founds the institution.”[27] The position of law is the same whether an educational institution is established by a single individual of a minority community with his/her sole efforts and funds or with funds contributed by a large population. But, in all possible ways, the purpose of such work must be to cater to the needs of the entire community. It was held that the mere fact that an educational institution was founded by a person who belongs to a particular religion doesn’t make it a minority institution. However, in numerous cases, the Court pointed out that these two terms’ establish’ and ‘administer’ must be read conjunctively. No minority community is entitled to avail of the protections to administer an educational institution under Article 30(1) if that institution is not established by the members of the same community. The Supreme Court, in the landmark case of S. Azeez Basha And Anr vs. Union Of India[28], it was stated that “the material factor to attract Art. 30(1) is the establishment of the institution by the minority concerned.”[29] In this particular case, the Court asserted that the Muslim community did not establish the Aligarh Muslim University. It was established by a statute; hence the Muslim community cannot seek protection to administer the University. The validity of the statute concerning the University’s administrative regulations cannot be adjudged within the purview of Article 30(1). In the same case, the Court further expatiated: “The Art. in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. Art. 30 cannot be read to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or the other, it might have been administering it before the Constitution came into force.”[30]
Therefore, we may notice that the Apex Court delivered a number of verdicts to restrict the realm of the said Article so that nobody can take any unfair advantage by availing the special privileges granted to exclusively minorities. It is because of the fact that by showing the minority status, any community can grasp those privileges that are not available to the non-minority communities. For this reason, many non-minority communities may seek protection under Article 30(1) by showing false minority status. In another significant case of S.P. Mittal Etc. Etc vs. Union Of India And Others[31], the Supreme Court asserted that in order to claim the right to administer a minority educational institution, the community has to satisfy the two following conditions: (a) the community concerned belong to a religious or linguistic minority group, and (b) the institution in question is established by the members of the same community. If it is found that any of the above twin requirements is not duly fulfilled, that community is debarred from such protections. The condition-precedent in this regard is the proof that shows that the institution in question is established by the minorities, and its veracity must be proved without any reasonable doubt. The onus to produce satisfactory evidence in order to satisfy the conditions mentioned above is upon the concerned community. The Apex Court was more categorical to oversee the misuses of this Article in Andhra Pradesh Christian Medical Association vs. Government of Andhra Pradesh[32]. The Court has observed that the Government, the University, and ultimately the Court can examine the maintainability of the minority claim of any community. The very object of this provision will be defeated if the minority claim is not investigated, ‘whether it is well-founded or ill-founded.’ If the institution in question is under a mere cloak or pretension of minority and the real motive is a business adventure, the protection under Article 30(1) is not available to it. Therefore, the Court emphatically stated that “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.” The Court further proceeded: “The object of Art. 30(1) is not to allow bogies to be raised by pretenders. The institution must be an educational institution of minority in truth and reality and not mere masked phantoms.”[33] In the instant case, the minority claim was made by the purchaser of the institution. The Court discovered that the institution was initially started with a business adventure to make money from the gullible persons incapable of obtaining admission in professional institutions. Accordingly, the Court rejected considering it a minority educational institution and disentitled it from availing the protections.
The Allahabad High Court in Yogendra Nath Singh vs. State of Uttar Pradesh[34] held that even if the Government recognizes the minority status of any educational institution, it doesn’t make it immune from judicial scrutiny of antecedents. Therefore, the Government’s recognition of minority status is not binding; hence the ultimate decision in this regard lies upon the Courts to ascertain whether the institution in question is minority or not. In this instant case, a Government order that recognized an educational institution as a minority institution was challenged before the Allahabad High Court. By its careful examination of facts and evidence of the case, the Court acknowledged that even though the institution in question was being managed by the minority community, it was not established by them from its very beginning. The twin requirements must be fulfilled to be granted the minority recognition— (a) the institution in question is founded by the minorities, and (b) the institution is currently managed by the minorities. In the absence of any requirements mentioned above, no educational institution is entitled to be granted minority status. The Court concluded: “A minority school continues to be so whether the Government declares it as such or not. When the Government declares the school as a minority school, it merely recognizes a factual position that the school was established and is being administered by a minority community. The declaration is merely an open acceptance of the legal character of the institution, which must necessarily have existed antecedent to such declaration. Such a declaration is neither necessary nor decisive of the character of the institution in question as a minority educational institution.”[35] In another similar case, the Andhra Pradesh High Court also ruled that even if an educational institution is founded by minorities about a century ago, the institution in question cannot be said to be a minority when it is currently managed by the Government.
It is also a well-settled position of law that if a minority institution doesn’t formulate a memorandum of association or by-laws comprising some special provisions such as reservations or scholarships as to provide for some benefits to the minority community for which it was granted the said status, or fails to satisfy their primary needs, the institution ceases to be a minority institution to get the protections because the primary purpose of Article 30(1) is hereby defeated.[36] In correspondence with the Andhra Pradesh Christian Medical Association[37] case, many High Courts in several instances have given the same rulings that the Supreme Court explored in the said case. The well-established principle is that there must be a nexus between the institution and the particular minority to which it claims to belong. It is because the right under Article 30(1) is not conferred to any individual minority but the entire minority community. Therefore, the interests of a considerable minority population must be catered to by the educational institutions ‘established and administered’ by them. Thus, to be characterized as a minority institution, it must qualify the test whether it in any manner serves the minority community to which it belongs, or it promotes the minority interests or not. Even a minority institution can impart secular education. It is not binding to the concerned minority community to restrict themselves within teachings of their minority language, religious tenets, culture, or literature. But, besides these teachings, they have to impart the teachings of their minority language, literature, religious tenets, culture, and philosophy too so that the considerable population of the community gets benefitted and keeps the minority status of their institution intact. In the case of Indulal Hiralal Shah vs. S.S. Salgaonkar[38], an educational institution that was established and managed by the predominantly Gujarati-speaking people. Even 80 percent of the teachers were also Gujarati speaking. The Bombay High Court upheld the linguistic minority status of the said institution even though it allowed the admission of some non-Gujarati students. In the Ahmedabad St. Xaviers College vs. State of Gujarat[39], the Apex Court emphasized that the spirit of Article 30(1) lies upon the purpose of providing the best quality education to the children of linguistic as well as religious minorities so that they can’t feel isolated from the other communities. It is essential to inculcate feelings of integrity and commonness amongst the country’s whole population at large, transcending all diversities of languages, religions, cultures, or narrow community interests. In this way, the true spirits of liberty, equality, and fraternity as envisioned by the Constitution can be imparted to the children through the medium of education. According to noted jurist M.P Jain, “General secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole.”[40]
Nevertheless, no minority institution should be confined to themselves by promoting their interests exclusively, notwithstanding that their interests must be met considerably. In the In Re Kerala Educational Bill (1957) case, the Supreme Court notably marked that the perusal of ‘right to establish and administer minority educational institution’ under Article 30(1) and ‘protection of interests of minorities’ under Article 29 clearly denotes “a minority institution with a sprinkling of outsiders admitted into it.”Any minority community shouldn’t confine themselves solely to the benefits of their own community. Therefore, they are not entitled to refuse admissions to the students of the majority community. It is because, to some extent, it negates the spirit of plurality as envisaged in the Indian Constitution. Such minority institutions should be open to the other communities as well without abrogating the interests of the minority population. The Apex Court reiterated the same perspective in the notable case of St Stephen’s College vs. the University of Delhi[41]. In the instant case, the Court put forth an outstanding observation in this regard: “Every educational institution irrespective of community to which it belongs is a ‘melting pot’ in our national life” and that it is essential that there should be a “proper mix of students of different communities in all educational institutions.” More appreciably, the Court put greater emphasis on the said observation and noted that: “Even in practice, such claims are likely to be met with considerable hostility. It may not be conducive to have a relatively homogeneous society. It may lead to religious bigotry, which is the bane of mankind. In the nation-building with secular character sectarian schools or colleges, segregated faculties or Universities for imparting general secular education are undesirable, and they may undermine secular democracy. They would be inconsistent with the central concept of secularism and equality embodied in the Constitution.” Many eminent jurists didn’t comply with the aforementioned arguments and found those to be violative of the several Articles of the International Covenant on Civil and Political Rights. In the T.M.A Pai Foundation case, the arguments differed from the majority view. But, the same rationale of St Stephan’s College rulings was reinforced in the P.A. Inamdar vs. State of Maharashtra[42]. In this case, also the Supreme Court explored Article 30(1) in a wide amplitude. It held that the minority educational institutions have an unqualified right to admit the students of the minority community as per its choice. Still, as a matter of free will, it can also admit students belonging to non-minority communities, provided that the minority character must not be diminished. In Society for Un-Aided Private Schools of Rajasthan vs. Union of India[43], the Supreme Court expounded that admitting students of non-minority communities don’t derogate the minority character of an educational institution. Lastly, the non-minorities students cannot be forced upon it.
Relationship between Article 29 and Article 30:
Articles 29 and 30 are distinguishable on many grounds. Firstly, to be granted the protections under clauses 1 and 2 of Article 29, it stipulates citizenship as a condition precedent to such rights, i.e., to claim such rights, the section of the population in question must be citizens of India. On the other hand, Article 30 doesn’t stipulate citizenship as a crucial condition precedent. Secondly, any section of Indian citizens, including any section of the majority population who possess any distinct entity, can invoke Article 29(1). In contrast, Article 30(1) is available exclusively to religious and linguistic minorities.
From a different perspective, we may notice that both the Articles have a close affinity with each other. To some extent, it appears that Article 29(1) is dependant on Article 30(1) because no section of Indian citizens can be able to conserve their own distinct language, script, or culture unless they have the right to establish and administer educational institutions as per their choice. The reason behind it is that such distinct language, script, or culture can only be conserved in an ideal manner if those are imparted to future generations through the medium of education. Therefore, to impart education as per their own choice, they have to establish separate educational institutions that they must manage. So, if their right to establish and administer educational institutions is not protected by Article 30(1), there is less hope that their right to conserve their distinct identity will be protected. However, as we have thoroughly discussed earlier, it doesn’t mean that minority institutions, whether religious or linguistic, are bound to impart only the teachings of their own religion, language, script, or culture. There is no bar to such institutions in imparting secular or general educations, and it doesn’t necessarily diminish the minority character of the institutions. But, as expressed in many cases by the Apex Court, the underlying object in such educational institutions should serve a considerable population of the concerned minority community. In the Indulal Hiralal Shah vs. S.S. Salgaonkar[44], it is well settled that the protection granted by Article 30(1) is available to all minorities irrespective of their objects, whether those are to conserve their distinct language, script, or culture or not. The Court expressed that “the width of Art. 30(1) cannot be cut down by introducing in it considerations on which Art. 29(1) is based.”[45] Eventually, it is adjudged that “the advantage of Art. 30 is available to all minority educational institutions and not only to those whose object is to conserve or promote the language of the minority.”[46] So far, the circumscription of the right conferred by Article 30(1) is concerned; the greater emphasis must be put on the expression “of their choice.” It is evident from the term ‘choice’ of Article 30(1) itself that an institution of general education founded and managed by minorities can claim protection under this Article. We may summarize that Articles 29 and 30 are not mutually exclusive.
Moreover, Article 29(2) mandates that a State-aided educational institution, even though run by any particular minority community, cannot discriminate in matters of admission to any students on religion, race, caste, and language. Thus, admitting students of other communities does in no way affect the minority character of an institution. Where a provision of the Gujarat University Act authorized the Universities to undertake all undergraduate classes depriving the affiliated colleges of such teaching, it was deemed to be an infringement of the right guaranteed under Article 30(1). In another instance, “a power in the University to make affiliated colleges as constituent colleges and integrate them with the University was held not applicable to minority colleges for they would thereby lose their individual and minority character.”[47]
[1](2003) 6 SCC 697
[2](2005) 6 SCC 690
[3]1959 1 SCR 995
[4]D. A. V. College Etc vs. State Of Punjab & Ors, 1971 AIR 1737
[5]1954 AIR 561
[6]AIR 2001 Gau 47
[7]AIR 1982 Cal 101
[8]Socio Literati Advancement Society, Bangalore vs. State of Karnataka, AIR 1979 Knt 217
[9]AIR 1970 SC 259
[10](2002) 8 SCC 481
[11]1992 AIR 1858
[12]1993 AIR 2178
[13]AIR 1992 SC 1630
[14](2005) 6 SCC 537
[15]AIR 1971 SC 1737
[16]1965 AIR 183
[17]MP Jain: Indian Constitution Law 6th Edition 2013
[18](2004) 6 SCC 264
[19]1951 AIR 226
[20]AIR 1954 SC 561
[21]1984 AIR 1534
[22]1951 AIR 226
[23]1951 AIR 226
[24](2008) 6 SCC 1
[25]1963 AIR 540
[26]1970 AIR 2079
[27]MP Jain: Indian Constitution Law 6th Edition 2013
[28]1968 AIR 662
[29]MP Jain: Indian Constitution Law 6th Edition 2013
[30]MP Jain: Indian Constitution Law 6th Edition 2013
[31]1983 SCR (1) 729
[32]AIR 1986 SC 1490
[33]MP Jain: Indian Constitution Law 6th Edition 2013
[34] AIR 1999 All 356
[35]MP Jain: Indian Constitution Law 6th Edition 2013
[36]Delhi Sikh Gurudwara Management … vs. Union Of India & Ors., 152(2008 )DLT 132
[37]AIR 1986 SC 1490
[38]AIR 1983 Bom 192
[39]1974 AIR 1389
[40]MP Jain: Indian Constitution Law 6th Edition 2013
[41]AIR 1992 SC 1630
[42](2005) 6 SCC 537
[43]AIR 2012 SC 3445 (3466)
[44]AIR 1983 Bom 192
[45]MP Jain: Indian Constitution Law 6th Edition 2013
[46]MP Jain: Indian Constitution Law 6th Edition 2013
[47]MP Jain: Indian Constitution Law 6th Edition 2013
