CONSTITUTIONAL LAW I PROJECT ON MINORITY

RIGHTS

Submitted By- ROHIT S.

5th Semester

Reg. No. – 201291

Submitted To-

Mr. A Nageswara Rao

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ACKNOWLEDGEMENT

The present project on “Minority Rights” able to get its final shape with the support and

help of people from various quarters. I am proud to acknowledge gratitude to the individuals

during my study and without whom the study may not be completed. I have taken this

opportunity to thank those who genuinely helped me in the completion of this project many

people helped us directly and indirectly. First of all we would like to thank my university i.e.

DAMODARAM SANJIVIYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAM,

who gave us the idea and encouragement to venture into this project.

I am grateful to our Constitutional Law faculty Mr. A Nageswara Rao who gave us the

opportunity to make a project on this topic.

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INDEX

Page No.

1. List Of Cases…………………………………….…………………4

2. Protection Of Interests Of Minorities…………...………………..5-6

3. Right Of Minority To Establish Educational Institutions……….6-8

4. Acquisition Of Property Of A Minority Educational Institution....9

5. Regulation Of Minority Educational Institutions…………….....10-11

6. Legal Framework For The Protection Of Religious Minorities…12

7. Other Constitutional Safeguards For Minorities…………………..12-13

8. Bibliography………………………………………………...………14

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LIST OF CASES

1. Usha Mehta v. State of Maharashtra (2004) 6 SCC 264

2. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481

3. State of Bombay v. Bombay Educational Society, AIR 1954 SC 561

4. Ravneet Kaur v. Christian Medical College, Ludhiana, AIR 1998

5. Society for Un- Aided Private Schools of Rajasthan v. Union of India, AIR 2012 SC

34459 (3446)

6. D.A.V. College, Jullundur v. State of Punjab, AIR 1971 SC 1737

7. Kerala Education Bill, AIR 1958 SC 956

8. Society of St. Joseph’s College v. Union of India AIR 2002 SC 195

9. W. Proost v. State of Bihar AIR 1969 SC 465

10. Indulal Hiralal Shah v. S.S.Salgaonkar, AIR 1983 Bom 192.

11. Sidhrajbhai v. State of Gujrat, AIR 1963 SC 540

12. St. Stephe’s College v. University of Delhi, 152 (2008) DLT 228.

13. P.A.Inamdar v. State of Maharashtra , (2005) 6 SCC 537

14. Thomas Shingare v. State of Maharashtra , AIR 2002 SC 463

15. Sate of Bombay v. Bombay Educational Society, AIR 2005 SC 3226

16. S.Aneez Basha v. Union of India, AIR 1968 SC 662

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PROTECTION OF INTERESTS OF MINORITIES

According to Article 29 (1), any section of the citizens residing in any part of India having a

distinct language, script or culture of its own has the right “to conserve the same”. This

constitutional provision, therefore, protects the language, script or culture of a section of the

citizens, residing in India should have a invoke Art. 29(1), all that is essential is that a section

of the citizens, residing in India should have a distinct language, script or culture of its own.

If so they have to conserve the same.

Article 29(1) does not refer to any religion, even though the marginal note of the article

mentions the interests of minorities.1

(i) Scope of Article 29(1) – Article 29(1) includes the right “to agitate for the protection

of the language.” The right conferred upon the citizens to conserve their language,

etc., is made absolute by the Indian Constitution and it is not subjected to any

reasonable restrictions.

The constitutional validity of the imposition of Marathi language as a compulsory study in

schools run by the linguistic minorities was questioned in Usha Mehta v. State of

Maharashtra.2 The right of minorities to establish and administer educational institutions of

their choice under Art. 30(1) read with Art 29(1) would include the right to have a choice of

medium of instruction in imparting education.

(ii) Generality of Article 29(2) – Article 29(2) is broad and unqualified. It confers a

special right on all citizens for admission into the state maintained or aided

educational institutions. To limit this right only to minority groups will amount to

holding that citizens of the majority group have no right to be admitted into an

educational institution for the maintenance of which they contribute by way of taxes.3

To enforce the restrictions laid down in Art 29(2), a High Court can issue a writ under

Art. 226 even against a private institution receiving aid from the state cannot

discriminate on grounds of religion, caste, etc.4

1 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 4812 (2004) 6 SCC 2643 State of Bombay v. Bombay Educational Society, AIR 1954 SC 5614 Ravneet Kaur v. Christian Medical College, Ludhiana, AIR 1998

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Denying admission, even though seats are available, on the ground of the applicant’s

religion, race, caste or language, is prohibited, but preferring students of minority groups

does not violate Art. 29 (2).

RIGHT OF MINORITY TO ESTABLISH EDUCATIONAL

INSTITUTIONS

(i) Article 30(1) gives the linguistic or religious minorities the following two rights:

(a) The right to establish, and

(b) The right to administer educational institutions of their choices.

The real importance of Article 29 (2) and Article 30(1) is that they contemplate a minority

institution with a sprinkle of outsiders admitted into it. By admitting a non member into the

minority institution does not shed its character and cease to be a minority institution.5

The expression “educational institution” means institutions that impart education, including

education at all levels from the primary school level up to the postgraduate level as also

professional education. The minorities have been given protection under Art. 30 in order to

preserve and strengthen the integrity and unity of the country. The sphere of general secular

education will develop the commonness of boys and girls in India.

(ii) Who are Minorities Article 30(1) and comparison with earlier law –

Article 30(1) uses the term linguistic or religious minorities. The word ‘or’ means that a

minority may either is linguistic or religious and that it does not have to be both- a religious

minority as well as linguistic minority. A linguistic minority is one which has separate

spoken language. It is not necessary that that language should also have a separate script of

their own, but nonetheless, people speaking such a language will constitute a linguistic

minority to claim protection of Article 30(1).6

A linguistic Minority for the purposes of Article 30(1) is one which has a separate language.

The Constitution uses the term ‘minority’ without defining it. The ruling in the Kerala

Educational Bill has been reiterated by the Supreme Court in the Guru Nanak University

case.

5 Society for Un- Aided Private Schools of Rajasthan v. Union of India, AIR 2012 SC 34459 (3446)6 D.A.V. College,Jullundur v. State of Punjab, AIR 1971 SC 1737

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(iii) Right to establish and administer educational institutions-

The words ‘administer’ and ‘establish’ in Article 30 (1) have to be read conjunctively.

Therefore a minority can claim a right to administer an educational institution only if

it has been established by it but not otherwise.A religious minority cannot claim the

right to administer an educational institution established by it only and not by

someone else.

Article 30(1) postulate that the religious community will have the right to establish

and administer educational institutions of their choice meaning thereby that where a

religious establishes an educational institution, it will have the right to administer that.

T.M.A. Pai Foundation V. State Of Karnataka

The judgment delivered on October 31, 2002, in the T.M.A. Pai Foundation

case7 on minority educational institutions by an 11-member Constitution Bench of the

Supreme Court represents a watershed in the Court’s thinking. The Supreme Court seems to

be in favour of freeing minority educational institutions from Government control excepting

to maintain academic standards through prescribing qualifications for teachers and minimum

eligibility for students. Its judgement can be summarized as follows: -

(1) The court is emphatic in declaring that admission of students to

unaided minority educational institutions cannot be regulated at all by a State or University if

the procedure is transparent and merit-based. The right to admit students is part of the right to

administer educational institutions.

(2) An aided minority educational institution, however, would be required to admit a

reasonable extent of non-minority students so that therights under Article 30(1) are

substantially maintained while the citizens' rights under Article 29(2) are not infringed. What

would be a reasonable extent would vary depending upon the types of institutions, the

courses of education for which admission is being sought, the educational needs of the

minorities and similar factors. This (percentage of non-minority students) is for the State

Government concerned to determine and notify. In the case of aided professional institutions

it can also be stipulated that passing of the common entrance test held by the State agency is

necessary to seek admission unless specifically exempted otherwise.

7 (2002) 8 SCC 481

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(3) Regarding the procedure and method of admission of students minority educational

institutions totally free of Government/University control, provided the method employed is

fair, transparent and merit-based. In the case of aided institutions the Government or the

University can even ask for due consideration to be given to the weaker sections of society in

the admission process.

(4) While the court recognises the charitable nature and service goals of education, it allows

the authorities full freedom to collect fees and charges they find appropriate in unaided

educational institutions, the only caveat being that they should not appear to be charging

capitation fee for profiteering.

(5) The court declared that non-minority students in aided minority educational institutions

should be admitted on competitive merit through a State Government-conducted entrance

test.

(6) Any regulation framed in the national interest must necessarily apply to all educational

institutions, whether run by the majority or the minority.

In the famous case of five bench judges of S.Aneez Basha v. Union of India, AIR 1968 SC

662 it was observed that the Aligarh Muslim University was established by a statute. It could

not be therefore said to have been established by the Muslim community. No degree granting

institution can be established in India without statute. Accordingly the validity of statute

regulating administrative arrangements in the University could not be adjudged under Article

30(1).

ACQUISITION OF PROPERTY OF A MINORITY EDUCATIONAL

INSTITUTION

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The Constitution 44th Amendment enacted in 1978 added Article 30 (1A) to the Constitution

which seeks to protect the minority rights. Article 30 (1A) became necessary because Article

31 was being abrogated from the Constitution.

The state has a right to acquire property belonging to a minority institution. This provision

seeks to protect minority rights somewhat in this regard but the actual implications of Article

30 (1A) are not clear. In Society of St. Joseph’s College v. Union of India AIR 2002 SC 195

the Court has pointed out that Article 30(1A) has been introduced in the Constitution because

Parliament in its constituent capacity apprehended that minority educational institutions could

be compelled to close down or curtail their activities by the expedient of acquiring their

property and paying them inadequate amounts as compensation.

RELATION BETWEEN ARTICLE 29 AND 30

There is a close affinity between both the articles. A minority community can best

conserve its language, script or culture through educational institutions, for it is through

education that the language and culture of a minority can be inculcated into the minds of

the children of the community. The right to establish and maintain educational institutions

of its choice by a minority is therefore, concomitant to its right to conserve its distinctive

language, script or culture and that is what is envisaged by Article 30(1).

In W. Proost v. State of Bihar8 the Supreme Court ruled that Article 29 and 30 create two

separate rights and that the width of the Article 30(1) cannot be cut down by introducing

in its considerations on which Article 29(1) is based. The advantage of Article 30 is

available to all the minority educational institutions and not only to those whose object is

to conserve or promote the language of the minority.9

In Sidharajbhai v. State of Gujarat, Shah J. refused to accept that all regulatory measures

which were not wholly destructive or annihilate of minority rights were valid so long as

they sub served the public interest. Emphatically propounding a new, but delicately

balanced, approach, he insisted that any “Regulation must satisfy a dual test- the test of

reasonableness, and the test that it is regulative of the educational character of the

institution and is conductive to making the institution an effective vehicle of education for

the minority community or other persons who resort to it.” If this salutary decision had

8 AIR 1969 SC 4659 Indulal Hiralal Shah v. S.S.Salgaonkar, AIR 1983 Bom 192.

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been followed in letter and spirit, the later jurisprudence of the Court in this area would

have been much clearer and more palatable to the cause of protecting minority rights.

REGULATION OF MINORITY EDUCATIONAL INSTITUTIONS The regulation basically includes the government grant or recognition for the means of

establishing effective institution with certain conditions, where the actual selection of the

teachers must remain in the hands of the administration of the institution.

Government Grant and Recognition- At present the situation is such that an educational

institution cannot possibly hope to survive and function effectively, without government

grant nor can it confer degrees without affiliation to a University. The students of

unrecognised institutions can neither get admission in institutions of higher learning nor

can they enter public service.

 In re Kerala Education Bill, the Supreme Court opined that while it was easy to say

that minority meant a community which was numerically less than 50%, the important

question was 50% of what – the entire population of India, or of a State, or a district, a

town, a municipality or its wards. A community may be in a majority in a State but in a

minority in the whole of India. The Court did not however decide this point definitively.

However, it has come to be accepted that ‘minority’ is to be determined only in relation to

the particular legislation, which is being challenged. Thus, if a State law extending to the

whole of the State in question, the minority must be determined with reference to the

entire State population. In such a case, any community, linguistic or religious, which is

numerically less than 50% of entire State population, will be a minority for the purposes

of Article 30(1). It is within the realm of possibility that the population of a state may be

so fragmented that no linguistic or religious group may by itself constitute 50% of the

total state population. In such a situation, every group will fall within the umbrella of

Article 30(1) without there being a majority group in the state against which minorities

need to claim protection.

In re Kerala Education Bill, 1957, Supreme Court held that right to administer cannot

obviously include the right to maladministration. The constitutional right to administer an

educational institution of their choice does not necessary militate against the claim of the

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state to insist that in order to grant aid the state may prescribe reasonable regulation to ensure

the excellence of the institutions to be aided.

Regulation which may be lawfully be imposed either by legislative or executive action as a

condition of receiving grant or of recognition must be directed to making the institution while

retaining its character as a minority institution effective as an educational institution. The idea

of giving some special rights to minorities is not to have a kind of privileged or pampered

section of the population but to give to the minorities a sense of security and feeling of

confidence.

Conditions for Recognition- A minority institution being run in unhealthy surroundings or

without qualified teachers or which does not maintain any fair standard of teaching cannot

claim to be recognised.10Regulations can also be made providing for inspection or injury in

respect of school buildings, labs, etc. and the mode and manner of inspection and inquiry and

furnishing returns, statics and that information to the competent authority by the school

management.

Composition of Managing Bodies- Under the Kerala University Act, 1969, governing

body was to be constituted for each private college consisting of 11 members of whom 6

were to be nominated by the body which established or maintained that college. The

statutes made by a University required that an affiliated college should have a regularly

constituted governing body consisting of not more than 20 persons approved by the

Senate including among others, two representatives of the University and the principal of

the college as an ex officio member.

Appointment Of Teachers – The Gujarat University Act prescribed that for selection of the

Principal and the teachers of a college, there should be a college selection committee having a

representative appointed by the Vice- Chancellor. The Supreme Court held that the provision

could not apply to minority colleges as there was no guidance in the Act as to what type of

persons could be nominated as the representative of the Vice Chancellor.11

10 Sidhrajbhai v. State of Gujrat, AIR 1963 SC 54011 St. Stephe’s College v. University of Delhi, 152 (2008) DLT 228.

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Salary of Teachers- The Supreme Court has observed that an excellence of the instruction

provided in an institution depends directly on the quality and contentment of the teaching

staff. Minority institutions cannot exploit the teaching community.12

Admissions of Students – The right of the minority institution to admit students of its own

community is a necessary concomitant right which flows from the right to establish and

administer educational institutions in Article 30 (1).

(i) Fees- There is also the question of fees chargeable by the unaided minority

institution from its students. It is clear that unaided minority institutions cannot be

made to charge the same fees as an unaided institution. The reason is that the

unaided institution has to meet the cost of imparting education from their own

resources and the main source can only be the fees collected from the students.

Commercialisation of education is not permitted.13

(ii) Medium of Institution- The right of minority to establish and administer

educational institutions of its choice also carries with it the right to impart

instruction in its children bin its own language.14

LEGAL FRAMEWORK FOR THE PROTECTION OF RELIGIOUS

MINORITIES

With a view to evaluating progress and development of minorities, monitoring the working

of safeguards provided to them under the Constitution and laws, etc, the central government

had constituted a non-statutory Minorities Commission in 1978. In 1992 the National

Commission for Minorities Act was enacted to provide for constitution of a statutory

commission along with some major functions.

OTHER CONSTITUTIONAL SAFEGUARDS FOR MINORITIES

The other measures of protection and safeguard provided by the Constitution in Part III or

elsewhere having a bearing on the status and rights of minorities are:

12 P.A.Inamdar v. State of Maharashtra , (2005) 6 SCC 53713 Thomas Shingare v. State of Maharashtra , AIR 2002 SC 46314 Sate of Bombay v. Bombay Educational Society, AIR 2005 SC 3226

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(i) Freedom of conscience and free profession, practice and propagation of religion (Article

25)

(ii) Freedom to manage religious affairs (Article 26)

(iii) Freedom as to payment of taxes for promotion of any particular religion (Article 27)

(iv) Freedom as to attendance at religious instruction or religious worship in certain

educational institutions (Article 28)

(v) Special provision relating to language spoken by a section of the population of a state

(Article 347)

(vi) Language to be used in representations for redress of grievances (Article 350)

(vii) Facilities for instruction in mother tongue at primary stage (Article 350A);

(viii) Special officer for linguistic minorities (Article 350B).

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BIBLIOGRAPHY

1) M.P.Jain, Indian Constitutional Law, 7th Edition, Lexis Nexis

2) Prof. G.C.V. Subba Rao, Indian Constitutional Law, 10th Edition, S.Gogia &

Company Hyderabad

3) Dr. J.N.Pandey, Constitutional Law of India,51st Edition, Central Law Agency

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