RIGHT OF MINORITIES TO ESTABLISH EDUCATIONAL INSTITUTIONS UNDER THE INDIAN CONSTITUTION: A CRITICAL ANALYSIS
Author: Akshita Jain
UPES, Dehradun
ISSN: 2582-3655
CONTENTS
- Introduction
- Categorization of minorities for the purpose of Article 30
- Degree of State intervention
- The interrelationship between Article 29(2) and Article 30(1) of the Constitution
- Interpretation of the word ‘and’ under Article 30(1) – establishment ‘and’ administration
- Right to minorities to establish a minority educational institution under the National Commission for Minorities Educational Institutions Act, 2004
- Constituent Assembly Debate
- Conclusion
Right of minorities to establish educational institutions under the Indian Constitution: A critical analysis
As Nelson Mandela says, “Education is the most powerful weapon which you can use to change the world.”
Abstract: Education plays a vital role in the development of the whole nation. To ensure equality and uniformity in the education system, there is a need to provide the special right to the minority. Exclusive right to establish and administer educational institutions to the linguistic and regional minorities is being provided under Article 30. The aim of the paper is to highlight various concerns relating to the establishment and administration of the educational institutions by the religious and linguistic minorities of their choice, compliance require to be followed in order to set up an educational institutions, classification and the concept of minority, whether the words ‘establish’ and ‘administer’ under Article 30 (1) to be read conjunctively, degree of state intervention with regard to the administration of institutions established by minorities, interrelationship between Article 29(2) and Article 30(1) of the Indian Constitution so as to examine the institutions established by minorities will only admit students belonging to the minority section only, problems faced by minorities in seeking affiliation or recognition by the statutory authority and benefits available to these educational institutes. This paper attempts to critically analyze the developments and present situation of the minority institutions in India.
Keywords: Minority, Establish And Administer, Compliance, Concept Of Minority, State Intervention, Problems, And Benefits.
Right of Minorities to Establish Educational Institutions under the Indian Constitution: A Critical Analysis
Introduction
Education is a prerequisite for the success and survival of democracy. The democratic political system can only be successful when the leaders are selected wisely by the once who are educated and knows whom to choose as a government through free and fair elections. India is a multi-religious and culturally diverse country with Hindus in the majority. Educational institutions play a vital role in shaping the future of our nation. Minority educational institution denotes an organization established and affairs are managed by the minorities.
Indian constitution declares India as a secular state, provides minority rights without defining the term ‘minority’ itself. ‘Minority’ is derived from the Latin word ‘minor’ and suffix ‘ity’ which means in small number. The word ‘minorities’ is used in Article 29 (in the headnote), 30, 350A and 350B of the Constitution. Part III of the Constitution guarantees certain fundamental rights to the Indian Citizens. The safeguards for minorities by providing fundamental rights under Article 29 and 30 for the preservation of interest of minorities in establishing educational institutions and for administering such institutions. The purpose behind providing such rights to minorities is not to promote inequality but to bring equality by safeguarding them.
‘What is a minority?’ can be simple and complex at the same time. In its most rudimentary form, it can be said that ‘minority’ refers to a numerical minority of the population that shares common cultural, language and/or religious characteristics.[1] Minority, simply, means a community which is less than 50% and is linguistically and religiously different from the rest. The Apex Court suggested in the Re Kerala Education Bill, 1957[2] that the status of a minority is decided based on the applicability of the Act. If the Act is applicable to the whole of India then the minority group will be determined on the basis of national figures. Whereas, if the Act is applicable to a particular state then the ascertainment of minority status will be on the basis of state figures or it should be calculated on the basis of the population of the particular locality. For considering such status, the community or the group of people must be different in religion and language from the rest of the populace and are not more than 50%. Further, minority institutions have no inherent right to get recognition and affiliation directly by the Government under Article 30(1) of the Constitution. The Hon’ble Court analyzed Article 30 of the Constitution through various approaches. The word ‘administration’ was interpreted by applying a linguistic approach that confines it to good administration and not maladministration of an institution.[3]
Besides, the minority is defined under Section 2 (f) of the National Commission for Minority Educational Institutions Act, 2004. The minority is a community considered by the Central Government. Minority educational institution is defined under Section 2 (g) of the Act. Minority educational institution means an organization established and managed by the members belonging to the minority sect.
On 27th January 2014, the Central Government through Gazette of India notified the Jain community as a minority community in several States in addition to the other five communities already notified. As per the recent census, “Jains have the highest number of literates among India’s religious communities with over 86 percent of them educated and Muslims have the highest number of illiterates, nearly 43 percent of their population.[4]”
Categorization of minorities for the purpose of Article 30
Religious minorities
Religious minorities are determined on the basis of the numerical strength of the community. Six religions in India have been awarded “National Minority” status. According to Section 2(c) of the National Commission for Minorities Act, 1992 the following are considered as minority communities notified in the Gazette of India as minority communities by the Union Government, that is, Muslims, Christians, Sikhs, Jains, Buddhists, and Zoroastrians. National Commission for Minorities Educational Institutions has been established by the Union Government to assess the progress and development of the minorities. In one of the cases decided by the Delhi High Court, the term ‘minorities based on religion’ mentioned under Article 30(1) was discussed and the Hon’ble Court was of the opinion that the religious minorities include various communities like Muslims, Christians, Jains, Buddhists, Sikhs, etc. only not the religious denominations or sects.
Linguistic minorities
Linguistic minorities consist of the one which must have distinct spoken language from the rest of the populace for the purpose of Article 30(1). According to Article 350B of the Constitution, a special officer is to be appointed by the president for linguistic minorities. Article 30 is introduced to protect the interest of linguistic minorities and have a right to govern and establish educational institutions of their choice.
The judgment was given by the Gauhati High Court in Jugal Kishore v. The State of Assam,[5] held that it is wrong to confine the interpretation of Article 30(1) where the minority educational institutions discriminate on the basis of language, script or culture of minorities. As in this case, the petitioner was from the Marwari community. The Hindi language was used by the petitioner in conversations. Both the Marwari community and the Hindi community should be considered as a minority for the purpose of Article 30(1) of the Constitution.
Minority educational institutions should allow the minority to preserve their religion and language and to facilitate quality education and hence lead to the development and growth of the children belonging to the religious and linguistic minority communities as held in the landmark judgment[6] P.A Inamdar v. The State of Maharashtra.[7]
In the case of T.M.A Pai Foundation v. State of Karnataka,[8] the question before the Hon’ble Supreme Court was regarding the extent to which right of minorities to establish and administer educational institutions of their choice can be exercised under Article 30(1) read with Article 29(2) of the Indian Constitution. It was held by 11 judges bench that the term “minority” can be used in two different ways, that is, one can be on the basis of religion and the other on the basis of spoken language. A right given to minorities is not an absolute one and is dependant on regulations. For ascertaining a particular community as a minority, the determination should be Statewise as the States in India are reorganized on a linguistic basis and the factor will be a State and not the whole of India even for a central law. Minority includes the groups that are less than 50% of the total population of the State and are linguistically and religiously distinct. Further, under Article 30(1) a right to admit students is included in the right to administer minority institutes. The State provides an extent up to which minority communities can take admission in a particular institution depending on its level as a primary school or secondary school and college. So, the 50% limit is not appropriate for the reservation of a minority community. For the appointment of faculty members and other staff, minimum qualifications and skills should be prescribed by educational institutions. In the case of minority educational institutions procuring funds from the government, the rules and regulations can be proposed by the State without interfering in administrative functions. But, if the minority educational institution is not supported by the Government than the State cannot interfere in any matters and suggested regulations need not have complied. But still, there is any ambiguity regarding the interpretation of the terms ‘religious’ and ‘linguistic’.
Determination of the status of the minority is on the state basis as different religions are in different compositions in different states as in Kashmir, Hindus are in minority and Muslims are in majority. The words ‘religion’ and ‘language’ have not been defined under the Constitution. So, it is troublesome to classify under a class of minority to avail benefits available for the religious and linguistic minorities for setting up and managing the affairs of minority educational institutions under the Constitution. The following are the advantages available to the educational institutions established by minorities:
- No requirement to maintain a reservation for Scheduled Castes, Scheduled Tribes, and Other Backward Classes in work.
- Power to choose staffs and representatives on their own
- Keeping of reservation for students belonging to minority community up to 50 percent depending on the level of institution and is established in which state.
In the case of D.A.V. College, Jullundur v. the State of Punjab,[9] it was observed that a particular minority is considered as a linguistic minority when the minority must at least have a distinct vocal language. It is mandatory that the one who speaks a language must also have a distinct script.
Degree of State intervention
Conflict of interest arises when there is dissimilarity in the opinions and interests of the administration of the institution and the Government. The concern of the State is reasonable to control is required upon the minorities otherwise rights can be misused by such community.[10]
Article 29(2) of the Constitution provides a right to all the residents of India whether belonging to minority or majority not to be denied admission into any minority educational institution in which the funds are granted by the State. The application of Article 29 (2) was first considered by the court in the case of State of Madras v. Smt. Champakam Dorairajan’s case,[11] in this case as per the order of the Madras government passed in 1927 there was a reservation on the basis of caste in institutes providing medical courses in the State. Smt. Champaran Dorairajan, a woman from Madras, was denied admission to a medical college as per the Communal G.O. The reservation criteria were as out of every fourteen seats, six were to be given to Non- Brahmin Hindus, two to Brahmins, two to Harijans, two to Backward, one to Christians and the remaining one to a Muslim. A Brahmin candidate who couldn’t be admitted challenged the Government Order as conflicting with Article 29(2). This case led to the first amendment in the Indian Constitution in 1951. The Supreme Court struck down the order of the Madras Government regarding the allocation of seats on the basis of caste-based reservation. Is was “held that the Directive Principles of State Policy should conform to and run as subsidiary to the chapter on fundamental rights in the Constitution because the latter were enforceable in the courts, whereas the Directive Principles were not.[12]”
In-State of Bombay v. Education Society, Bombay,[13] a government-aided school named Barnes High School at Deolali, an English medium school. As per the government orders, no primary or secondary shall admit only the one whose mother tongue is English only and includes Anglo- Indians, and citizens of non- Asiatic descent. A person belonging to the Gujarati Hindu Community was refused admission on the basis of aforesaid order as his mother tongue was Gujarati. Under Article 226 of the Constitution, a writ was filed before the High Court of Bombay. The Government’s contention was that such an order will promote the usage of English. The Supreme Court discarded the contention and held that the discrimination on the basis of spoken language, caste or religion is not permitted as mentioned in Article 29(2).
Citizens have the right to conserve one’s script as stated by the Karnataka High Court in Associated Managements of Primary and Secondary School v. the State of Karnataka,[14] students belonging to both minority and majority section have a fundamental right to protect and preserve their language, script or culture of own under Article 29(1) of the Constitution. Educational institutions only can help the majority community to conserve its language and culture. Further, the order of the Karnataka Government was challenged in the case of English Medium Students Parents Association v. State of Karnataka,[15]the question was whether a student had a fundamental right to get instruction in his/ her mother tongue during school as the government ordered that in every school of the Karnataka, Karnataka language should be taught from standard 5th as the second language. Here, the school includes minority educational institutes as well. The contention was regarding the imposition of such order on minority educational institutes as well as the minority institutes can’t be compelled to accept a certain language (Karnataka- regional language) as a medium of instruction. So there should not be a load upon students whereas, an option can be provided to such students to choose. The state language can only be taught in addition to the language which the child might have chosen as a first language.
Further, the scope of the government control over the minority educational institutions was discussed in the case of St. Xavier’s College v. State of Gujarat[16], it was observed by the Hon’ble court that in order to gain uniformity and excellence in the educational system, the government regulations are required. So, the government has the authority to frame rules regarding the curriculum, discipline qualifications for a teacher, conditions of employment of teachers, health, sanitation, and other facilities beneficial for the organization. On the other hand, the control exercised by the government over minority educational institutions may provide undue space for governmental control. The scope of control was further discussed in the case of Sidhrajbhai v. State of Gujarat,[17] the rules and regulations framed by the government must not exercise any control on the unquestionable right which is provided under Article 29 and 30 to the minorities and they secure the proper functioning of the institutions.
The interrelationship between Article 29(2) and Article 30(1) of the Constitution
Cultural and Educational rights are provided under Article 29 and 30 of the Constitution specifically for minorities. Interests of minorities are protected by a fundamental right provided under the Constitution by preserving their language, religion, and culture. Article 29(1) deal with a particular class of people resident of India having language, script or culture different from the rest of the populace. Article 29(2) prevents discrimination on the basis of religion, race, caste, language or any of them of citizens to take admission in any educational institution funded by the State or receiving aid by the State. Article 30(1) gives a privilege to linguistic and religious minorities to set up and manage the affairs of minority educational institutions of their choice. Article 30(2) doesn’t allow the State to discriminate against any educational institution managed by the religious or linguistic minority in granting an aid by the government.
Article 29(1) and Article 30(1) deal with the different issues relating to minorities and are supplementary of each other. Generally, “Article 30(1) and Article 29(1) of the Constitution are ambiguous on the issues like while discriminating a student on the basis of religion or language can he be stopped from taking admission in such minority educational institutions. Whether in admission the minority students can be given preference over the criteria of merit.” In most the cases, the Court in the case St. Xavier’s College v. State of Gujarat,[18] held that the minority education institutions which do not receive any aid from the Government have complete liberty to opt for students of their choice. Unaided minority institution doesn’t come under the scope of Article 29(2). And the same was held in the case of Ashu Gupta v. State of Punjab,[19]where the petitioner was denied to take admission in Sri Guru Govind Singh College of Pharmacy even after she was having better merit than the student who was admitted to the course. The contention of the institute was that the government didn’t provide any aid to this institution and therefore, it is a separate entity from the other institutes to whom funds were granted by the Government namely Sri Guru Govind Singh College for Men and Sri Guru Govind Singh College for Women. And thus, the present institute has its separate building with different courses of instructions. Therefore, the unaided minority educational institutes have complete liberty to select students on their own.
The relation between Article 29(2) and Article 30(1) was considered by the five judges bench in the landmark judgment of St. Stephen’s College v. University of Delhi,[20]Article 29(2) applies to both students belonging to the minority and the majority community. Article 30(1) applies only to religious and linguistic minorities. The court held that the right provided under Article 30(1) cannot be nullified on the basis that Article 29(2) applies to minorities as well as the majority community. But a minority educational institution has the power to reserve up to 50% seats for students belonging to its own community. Treating students differently doesn’t amount to a violation of Article 29(2) and Article 14 (equality before law) of the Constitution. Minority educational institutions should not aim at providing benefits to minority communities only. In this case, judges were influenced by the ‘melting pot’theory.
Every educational institution should consist of various types of students belonging to different religions. Minority institutions should not deny admission to students either belonging to majority communities or other minority sectors. In “Indulal Hiralal Shah v. S.S Salgaonkar,[21]” Gujarati linguistic minority established an educational institution where the medium of instruction was Gujarati. So, it was held by the Court that admission of students who are not Gujarati speaking won’t change the status of the minority institution and it will be considered as a minority educational institution established and administered by the minority only. Similarly, an educational institution was established by the funds donated by the Jain Swetamber sect. More than half of the students were belonging to the Jain Swetamber community only and moreover, the school promoted the culture and religious principles along with secular education. It was declared that the school was entitled to obtain benefits under Article 30 of the Constitution.[22]
Under Article 30(2) of the Constitution, the State shall not discriminate in granting aid to educational institutions whether belonging to linguistic or religious minorities. It is to be noted that the minority educational institutions should not be treated differently as compared to other educational institutions in obtaining funds from the government. The State shall financially assist educational institutions run by both minority and majority in the same manner. Also, minority educational institutions can’t claim State aid as a matter of right under Article 30(2) of the Constitution as they are already entitled to receive aid from the government in the same way other education institutions run by the majority community.
Interpretation of the word ‘and’ under Article 30(1) – establishment ‘and’ administration
Conditions regarding setting up of an institution and its management were discussed in the case of St Stephan’s College, [23] as mentioned under Article 30(1) religious and linguistic minorities have the right to establish and administer educational institutions of their choice, the question raised was words “establish and administer” should be read together or separately. It was held that these words are to be read conjunctively which means if the minority wants to administer an educational institution than it must be established by the minority under Article 30(1). Hence, the ‘literal rule’ of interpretation was applied by the court.[24] In-State of Kerala v. Mother Provincial,[25]the Hon’ble Court considered the scope of Article 30(1) and to establish the constitutional validity of the Kerala University Act, 1969. The objective of the Act was to reorganize the University of Kerala. It was held that subsections (2), (4) and (6) of section 48 and section 49 of the Act are violative of Article 30(1) of the Constitution. The primary right provided to minorities is the right to establish. So, it was considered important that the institution must be set up by the minority community only. Further, the Kerala High Court in the case of Mathew Munthiri Chinthyll v. State of Kerala,[26] the petitioner challenged the right of establishment of religious minority under Article 30 as it is to be treated as an absolute right for the Catholic community to establish and manage the affairs of educational institutions of their choice. Secondly, the constitutional validity of the Kerala Education Act was challenged. It was held that the regulations made by the State for minority educational institutions must be in favor of such institutions for safeguarding the interests of minorities. It was considered essential that the petitioner must apply for asking for permission for establishing an institute as only permissible number of institutes can run in a particular locality, seeking funds from the State, affiliation, and recognition of such institute. The government should consider the need of the minority communities for setting educational institutes.
Right to establish and administer was considered in the case of St. Thomas U.P. school, Kerala v. Commissioner,[27] where it was held by the Hon’ble Court that the educational institutions established by religious minorities have the right to administer the same so as to serve the purpose of such establishment. Further, it is not mandatory that the institution must be established by a group of persons as even a single philanthropic person can spend on the setting up of such institute.
The Apex Court of India in the case of P.A Inamdar & Ors v. State of Maharashtra,[28]considered the issue regarding the control of the State in making certain rules and regulations regarding reservation in minority educational institutions. Whether the government has the power to formulate policy regarding the admission of students in aided and unaided educational institutes? The court was of the opinion that the criterion for admitting students through reservation is not applicable to minority educational institutes. The State can only assist in providing certain qualifications and conditions for staff members. In unaided minority educational institutes, the State has no right to regulate the admission of students in such schools and colleges. Therefore, the control should be minimal and should not interfere in administrative activities of the minority institutions which are not funded by the State. But, it cannot be said that the minorities are provided with more rights over non- minorities by conferring right under Article 30(1). So, minorities and non- minorities are to be considered equals and it is just to protect the rights of minorities. Same as under Article 19 (1) (g) of the constitutional right is being provided to the citizens other than the minority.
Right to minorities to establish a minority educational institution under the National Commission for Minorities Educational Institutions Act, 2004
The National Commission for Minority Educational Institutions is a statutory authority that provides direct affiliation for minority professional institutes to Central Universities, with its headquarters in Delhi. The aim is to protect religious minority educational institutions. The National Commission for Minorities Educational Institutions Act, 2004 applies only to religious minorities. Religious minorities are also provided the right to establish and manage the affairs of minority educational institutions under Article 30(1) of the Constitution.
If the person applying for establishing a minority educational institution is not allowed by the competent authority to set up an educational institution by not granting the no-objection certificate to the applicant under Section 10 of the National Commission for Minorities Educational Institutions Act, 2004. Such a person can file an appeal to the National Commission for Minority Educational Institution against the Competent Authority under Article 12A (1) of the Act for refusing to grant no objection certificate for establishing a minority educational institution. Such appeal is to be filed within thirty days from the date of the order of the Competent Authority after such order is being communicated to the applicant. After thirty days, an appeal can only be accepted if there is a sufficient reason for not filing in the provided period.
The National Commission for Minority Educational Institution has the power to decide whether an educational institution is to be considered as a minority educational institution or not if the authority established by the Central Government or any State Government rejects the application for the grant of minority status under Section 12B of the National Commission for Minorities Educational Institutions Act, 2004.
Constituent Assembly Debate
The constitutional debate was held on 7th and 8th December 1948. The debate was on Article 23 which later on became Article 29 and Article 30 of the Constitution. The discussion was based on three categories for minority status, that is, religious minorities, Scheduled Castes, and backward tribes and these communities were supposed to be treated especially rather than the communities favored under British rule. The purpose was to secure the cultural and educational rights of minorities. No laws can be passed which will affect the language and culture of minorities.
At first, only linguistic minority rights were considered to be protected but later on, Assembly accepted the proposal to specify the types of minorities based on religion or language.[29]
The word ‘minority’ is nowhere defined under the Constitution but it is mentioned under Articles- 29, 30, 350A and 350B. Articles 350A and 350B deal with linguistic minorities only. Further, two amendments were introduced by the Drafting Committee. First Amendment was made in Article 29(1) by replacing the word ‘and’ by ‘or’. Earlier, ‘language, script and culture’ written and now, it is replaced by ‘language, script or culture.’[30] The Second Amendment was regarding the prohibition of discrimination by the State or State-aided educational institutions for admitting students on the basis of religion, race, caste, language or any of them.
Conclusion
The aim of the paper is to bring about the disappointing picture of the rights guaranteed to the minorities through Article 29 and Article 30 of the Constitution. Various debates were held in the Constituent Assembly implies a tolerant rather than an encouraging approach of the State towards the minorities. The purpose of the Constitution makers was to make the minorities claim their demands and not to give them fundamental rights automatically.
Interpretation of Article 30 of the Constitution can be taken in three ways: firstly, the judgments can include the personal approach of the judge. Secondly, the judgments give more privilege to linguistic minorities than religious minorities and, thirdly, the intervention of the State in controlling minority educational institutes is rising as the scope of the Article is reducing consistently as the words ‘establish’ and ‘administer’ should be read together. This can create a hindrance for minorities in exercising their rights. The ‘melting pot’ theory was applied in the St. Stephan’s and the T.M.A Pai case by the judiciary for creating uniformity in the law and order.”
Article 29 (2) read with Article 30 (1) make the
scope of the articles narrow for the minorities and hence, reservation policy
is applied in minority education institutions while admitting students from the
minority community. This approach is used as under Article 29(2) fundamental
right is provided to all citizens where the reservation can’t be given to the minority
community. And it is true, one shouldn’t be denied any admission in
institutions is he/she passes the eligibility criteria. At the same time,
minority educational institutes face various legal and administrative
constraints. The Government can make rules regarding fees, salaries, conditions
of employment, and various curriculum activities. The Government can even
exercise control to the unaided educational institutions. If there is any
dispute between the employment and the management in minority institutes than
Tribunals can be constituted to resolve the same.
[1]Bertus De Villiers, Language, Cultural and Religious Minorities: What and Who Are They?, 36 U.W. Austl. L. Rev. 92 (2012).
[2] AIR 1958 SC 956
[3]P.M. Bakshi, Rights of minorities, Vol.29, No.4 (October- December 1987), Journal of the Indian Law Institute, pp. 581-584
[4] PTI, Muslims Least, Jains Most Illiterate: Census, The Hindu, Sept. 22, 2016
[5] AIR 1988 GAU 8
[6] DURGA DAS BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA at 129 (21st ed. 2013)
[7] AIR 2005 SC 3226
[8] (2002) 8 SCC 481
[9] AIR 1971 SC 1737
[10] Ranu Jain, Minority Rights in Education: Reflections on Article 30 of the Indian Constitution, Vol. 40, No. 24 (Jun. 11-17, 2005), Economic and Political Weekly, pp. 2430-2437.
[11] AIR 1951 SC 226
[12] V. Venkatesan, A response in an earlier era, India’s National Magazine, Sept. 10- 23, 2005
[13] AIR 1954 SC 561
[14] 2008 (4) Kar LJ 893
[15] AIR 1994 SC 1702: (1994) 1 SCC 550
[16] 1974 (1) SCC 717
[17] AIR 1963 SC 540
[18] 1974 (1) SCC 717
[19] AIR 1987 P&H 227
[20] AIR 1992 SC 1630
[21] AIR 1983 Bom 192
[22] Sree Jain Swetamber Terapanthi Vidyalaya v. State of West Bengal AIR 1982 Cal 101
[23] AIR 1992 SC 1630
[24]Ranu Jain, Minority Rights in Education: Reflections on Article 30 of the Indian Constitution, Vol. 40, No. 24 (Jun. 11-17, 2005), Economic and Political Weekly, pp. 2430-2437.
[25] 1970 AIR 2079
[26] AIR 1978 Ker 227
[27] (2002) 9 SCC 497
[28] 2006 (6) SCC 537
[29] Constituent Assembly Debates: https://www.constitutionofindia.net/constitution_of_india/30/articles/Article%2029
[30] Constituent Assembly Debates: https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-08