CHAPTER-VI

CULTURAL AND EDUCATIONAL RIGHTS OF THE

MINORITIES
In a plural society State neutrality vis-a-vis various religious and

linguistic groups must be zealously maintained. The Indian Constitution in

addition to promising such neutrality also guarantees certain positive rights to

the Minorities. Ail this was done mainly in the, broader interest of national

integration and to inculcate confidence among the Minorities so that they

should feel that they are partners and co-rulers in the country. The object of

conferring these rights is to establish real equality between a handicapped

group of people i.e. Minority group and the advantaged section of the people
i.e. the majority1.

6.1 ARTICLE 29 OF THE CONSTITUTION

Article 29 and Article 30 of the Constitution deal with Cultural and

Educational Rights of the Minorities. These two Articles disclosed the anxiety

of the Indian Democracy to assure to the religious and linguistic Minorities

their language, script or culture would receive absolute protection so that they

should never be denied the pleasure and privilege of enjoying a sense of

identity and personality.

Article 29 provides for the Protection of interest of Minorities:-

(1) Any section of the citizens residing in the territory of India or any part

there of having a distinct language, script or culture of its own shall

have the right to conserve the same.

(2) No Citizens shall be denied admission into any education institution

maintained by the State or receiving aid out of State funds or grounds

only of religion, race, caste language or any of them.

B.N. Pandey, “Socio-legal Study of Cultural and Educational Rights of Minorities”, ed.
2000.
 117

Article 29 of the Constitution guarantee two different rights, clause (1)

of Article 29 protects distinct language, script or culture of a section of the

citizens whereas, clause (2) of Article 29 of the Constitution guarantees the

right of an citizen not to be discriminated against only on the ground of

religion, race, caste, language or any of them in matter of admission in an

educational institution2. The Common thread that runs through Article 29 (1)

is language, script or culture and not religion. Article 29 (1) can be claimed by

“any section of the citizens” whether it belongs to majority group or to

Minority group. The section of citizens claiming the protection of Article 29

of the Constitution must not only prove that it has got a distinct language,

script or culture but also that it is “their own”. To claim the protection of

Article 29 (1) the claimant must fulfill following Condition:-

1. A section of citizens of India.

2. Resides in the territory of India.

3. Having a distinct language, script or culture, and

4. That the distinct language, script or culture is their own.

To claim the protection of Article 29 of the Constitution all the above

requisites are to be proved simultaneously. Article 29 (1) guarantees the right

to “any section of the citizens” whether they are in Minority or majority

religion to conserve their language, script and culture3.

In D.A. V College, Bhatinda v. State of Punjab4, it was observed that

Art 29 (1) is wider that Article 30 (1). In Article 29 (1) any section of citizens

including Minorities can invoke this right. The right guaranteed under Article

30 (1) is only available to Minorities based on religion or language. A reading

of these two articles together would lead us to conclude that a religious or

linguistic Minority has a right to establish and administer educational

2
In re. Kerala Education Bill 1957; AIR 1958 SC 956 at 976.
3
Arun Kumar, “Cultural and Educational Rights of Minorities under Constitution”.
4
AIR 1971 SC 1737.
 ' ‘ 118 ;

institutions of its choice for effectively conserving its distinctive language,

script or culture, such right however is subject to the regulatory power of the

State for maintaining and facilitating the excellence of its standard. This right

is further subject to Article 29 (2) which provides that no citizen shall be

denied admission into any educational institution which is maintained by the

State or receives aid out of State funds on grounds only of religion, race,

caste, language or any of them. It was also observed that Article 30 (1) is

subject to Article 29 (2).

In Kerala Education Bill Das, C.J., at one place had said that it was

obvious that the Minority community could effectively conserve its language,

script or culture by and through educational institutions and, therefore; the

right to establish and maintain educational institutions of its choice was a

necessary concomitants to the right to conserve its distinctive language, script

or culture and that was what was conferred on all Minorities.5

In Ahmedabad St Xavier college society and others v. State of Gujrat6,

H.R. Khanna, J., rightly pointed out that, “Although the marginal note of

Article 29 mentions protection of Minorities right, the rights actually

conferred by that Article are not restricted merely to the Minorities. In order to

invoke the benefit of Article 29 (1) all that is essential is that a section of the

citizens residing in the territory of India or any part thereof should have

distinct language, script or culture of its own, Once that is proved those

citizens shall have the right, to conserve their language, Script or culture

irrespective of the fact whether they are member of the majority community or

Minority community.”

In D.A. V College Bhatinda v. State of Punjab1 the Hon’ble Supreme

Court held that, “it would be sufficient for the petitioner if they could establish

AIR 1958 SC 956. p 979

AIR 1974 SC 1389 at p 1413.
AIR 1971 SC 1731 at p 1733.
 119

that they had distinct script of their own and they were a religious Minority, to

invoke protection of Article 29 (1) and 30 (1)”.

Article 29 (1) gives protection to any section of citizens having a

distinct language, script or culture by guaranteeing their rights to conserve the

same. Article 30 (1) guarantees to every religious or linguistic Minority, the

right to establish and administer educational institution of their choice.

The Hon’ble Supreme Court in W. Proost v State of Bihar8, held that

clause (1) of Article 29 is not meant to cut down the width of Article 30 (1),

which provides for general protection which is given to Minorities to conserve

their language in distinction to Article 29 (1) which is a special right of the

Minorities to establish educational institution of their choice which, of course,

is not limited to institution seeking to conserve language, script and culture.

Such choice is not taken away if Minority community having established an

educational institution of its choice can also admit members of other

communities. The right given by Article 29 (1) as fortified by Article 30 (1),

in so far as Minorities are concerned.

Thus, Article 29 (1) and Article 30 (1) have created two separate rights

and there is possibility of meeting together. It cannot be said that only those

institution, which have been established for conserving the language, culture

and script of a particular community are entitled to protection of Article 30 (1)

of the Constitution.

The scope of Article 30 could not be cut down by introducing any

consideration on which Article 29 (1) is based. Article 29 (1) is a general

protection given to sections of citizen to conserve their language, script or

culture whereas, Article 30 is a special right Art given to Minorities to

establish educational institutions of their choice. The scope of Article 30 rests

on linguistic or religious Minorities and no other section of citizens of India

8
AIR 1969 SC 465=(1969)2 SCR 73.
 ' X'120

has such a right. However the religious or linguistic Minorities referred in

Article 30 (1) of Constitution also have a right under Article 29 (1) of

Constitution.

The “right to conserve” means the right preserve or right to maintain. It

means and include not only right to preserve and to maintain one’s own

language, script or culture but also to agitate for its protection, In Jagdev

Singh Sidhanti v Pratap Singh Dulta,9 the respondent, a defeated candidate,

challenged the election of the appellant to the house of people on the ground

that he had committed corrupt practices during election campaign to promote

communal enmity between the Hindu and the Sikh communities prohibited by

Section 123 (3) of the Representation of people Act, 1951. The Hon’ble

Supreme Court observed that,

“The Constitution has thereby (by Article 29) conferred the right,

among other, to conserve their language upon the citizens of India. Right to

conserve the language of the citizens includes the right to agitate for the

protection of the language. Political agitation for conservation of the language,

of a section of the citizens cannot therefore be regarded as a corrupt practice

within the meaning of section 123 (3) of the Representation of people Act,

1951.”

The Court further held that making promises by a candidate to work

for the conservation of the electorate’s language did not amount corrupt

practice under section 123(3) of the representation of peoples Act, 1951, must

be read subject to Article 29 (1). The right under Article 29 (1) had been made

absolute by the Constitution unlike Article 19 (1), Article 29 (1) is not subject

to any reasonable restriction.

Article 29 (1) secures to every section of citizens residing in the

territory of India, the right to conserve its own language, script or culture. It

9
AIR 1965 SC 183.
 121

includes Minority as well as majority community. So majority community

also has a right to protect and promote majority language. As held in D.A. V.
College, Jullundhar v State of Punjab,10 the Hon’ble Supreme Court held that

the setting up of the Guru Nanak Dev University at Amritsar to promote, inter

alia, the studies and research in Punjabi language and Culture did not infringe

Article 29(1).

6.1.1 Inter relationship of Article 29(1) and Article 30(1)

Article 29 (1) Protect the right of section of citizens to have their own

distinct language, script or culture, Article 30 (1) confers on Minorities,

religious or linguistic, the right to establish and administer their own

educational institution without any interference or hindrance from the State.

Article 29 (1) confers on every section of the citizen a right to conserve

its language, script or culture. As language, script or culture of any

community represents the personality of the community and gives that

community sense of it own identity.

Article 29 (1) guarantee the right to majority as well as Minority

community.

Article 30 (1) provides educational right to the Minorities whether

based on religion or language to ‘establish and administer educational

institution of their choice. The purpose for which Minorities can establish

educational institutions have always been a matter of controversy. According

to one view Minorities can establish educational institutions only for the

protection of their language, script or culture as indicated in Article 29 (1),

because the general heading and marginal notes of these articles express that

Article 30 (1) is complementary to Article 29 (1). The other view is that

Article 30 (1) does not depend upon Article 29 (1), because of the word ‘of

10
AIR 1971 SC 1737.
their choice’ of that article gives vast discretionary power to the Minorities,

whether based on religion or language to establish an educational institutions.

After referring various decision it seems to be settle that the right to

establish and administer educational institutions under Article 30 (1) is not

confined only for the purposes specified in Article 29 (1) but includes the

institution imparting general secular education.

Describing the scope of Article 30 (1), Das, C.J, in Kerela Education

Bill11 has said that there was no limitation placed on the subjects to be taught

in such educational institution as such Minorities would ordinarily desire that

their children should be brought up properly and efficiently and be eligible for

a higher university education and go out in the world fully equipped with such

intellectual, attainment as will make them fit. So educational institutions of

their choice would necessarily include institutions imparting general secular

education also.12

6.1.2 Distinction between Article 29(1) and Article 30(1)13

Firstly Article 29 (1) conferred the fundamental right on any section of

the citizens which would include the majority section, whereas Article 30 (1)

conferred the right only on Minorities which are based either on language or

religion.

Secondly Article 29 (1) was concerned with language, script or culture

whereas Article 30 (1) dealt with the Minorities of the nation based on

religion or language.

Thirdly Article 29 (1) was concerned with right to conserve language,

script, or culture whereas Article 30 (1) dealt with the right to establish and

administer educational institutions of the Minorities of their choice.

AIR 1958 S.C. 956.

Ibid.
St. Xavier college v.State. ofGujrat (made by Raj, C.J) AIR 1974 S.C. 1389.
 123

Fourthly Article 29 (1) deals with conservation of language, script or

culture which might be by means wholly unconnected with educational

institutions and similarly establishment and administration of educational

institutions by a Minority under Article 30 (1) might be unconnected with any

motive to conserve language, script and culture.

Fifthly Article 29 (1) does not speak of any Minority, religious or

otherwise. It confer right not only upon a Minority as understood in its

technical sense but also upon a section of citizens resident in the territory of

India which may not be a Minority in technical sense. The beneficiary of the

right under Article 30 is Minority, either religious or linguistic.

In W. Proost v State of Bihar,14 Hidayatullah, C.J. emphatically

rejecting the argument of State that Article 29 (1) and Article 30 (1) should

be read together and observed, “the width of Article 30 (1) cannot be cut
down by introducing in it consideration on which Article 29 (1) is based”15.

Hidayatullah, C.J., distinguished respective scope of the two Articles

and said that Article 29 (1) was a general protection which was given to

Minorities to conserve their language, script or culture, Article 30 (1) was a

special right to Minorities, whether they were religious or linguistic, to

establish educational institutions of their choice. The choice was thus

unlimited to the institutions seeking to conserve language, script or culture16.

He also held that the language of Article 30 (1) was wide and must receive

full meaning and attempt to whittle down the protection could not be allowed.

Thus he tried his best to protect the Minority education institutions from every

point of view. He concluded that Articles 29 (1) and Article 30 (1) should be

read independently.

14
AIR 1969 S.C. 165.
15
Ibid at 468.
16
Ibid at 468-469
 124

It is clear from above observations that purposes for which Minorities

can establish institution cannot be limited only to the purposes indicated in

Article 29 (1). This view was re affirmed by Hon’ble Supreme Court in Saint

Xavire College v. State of Gujrat, where all the nine judges agreed with the

view that Article 30 was in no way limited by the allowance on which

Article 29 (1) was built-up.

In State of Bomaby v. Bombay Education Society and others , the

Hon’ble Supreme Court, observed that, “Article 29 (1) gives protection to any

section of the citizen having distinct language script or culture by

guaranteeing their right to conserve the same. Article 30 (1) secure to all the

Minorities whether based on religion,;' or language the right to establish and

administer educational institutions of their choice.

Thus if the right under Article 30 (1) is regarded as being limited to

conservation of language, Script or culture, Article 30 (1) would obviously

become redundant as the right to conservation of language, script or culture

under Article 29 (1) is itself wide enough to include within its scope, a right to

establish educational institutions for carrying this object into effect.

Article 29 (1) confer right to conserve language, script or culture on

any section of citizens, but it does not specify the means for conservation of

language, script or culture. Thus, ‘Section of citizens’ to whom Article 29 (1)

applies may adopt any lawful means for the conservation of its language,
script or culture. The Hon’ble Supreme Court18 held that the Article 29 (1)

includes the right to agitate for the protection of the language’ and making of

promises by a candidate to work for conservation of the electorates’ language

does not amount to a corrupt practices in terms of Section. 123 (3) of the

representation of the people Act, 1951, which makes an appeal by a candidate

17
AIR 1954 SC 561 p.566
18
AIR 1965 S.C. 183
 125

to vote or refrain from voting for a person on the ground of language a corrupt

practice. The decision clearly demonstrate that the means for conservation of

language, script or culture under Article 29 (1) and the objects for which an

institution may be established are not one and the same.

To conclude, the right the conserve language, script or culture

guaranteed in Article 29 (1) and the right to establish and administer

educational institution secured under Article 30 (1) are not identical right,
though as Hidayatullah, C J. had pointed out in W. poorst19 Case, they may

meet in a given case. The whole object of Article 29 (1) is to conserve

language, script or culture of any section of citizens i.e. Minority or majority

both are covered in this Article. The object of Article 30 (1) is to ensure that

there will be equality between the majority and the Minority. If the Minority

do not have such special protection they will be denied equality.

6.1.3 Non-discriminatory clause: Article 29(2)

Article 29 (2) provides “No citizens shall be denied admission into any

educational institution maintained by the State or receiving aid out of State

funds an grounds only of religion, race, caste, language or any of them”.

Article 29 (2) confers a fundamental rights on all the citizens not to be

discriminated against in the matter of admission to any educational institution

maintained by State or receiving aid from the State funds on ground of only of

religion, Caste, race, language, or any of them. Just like Article 15(1) and (2)

and clause (1) and (2) of Article 16, Article 29 (2) is also Non discriminatory

Article.
In State of Bombay v Bombay Education society,20 the Hon’ble

Supreme Court held that the right contained in Article 29 (2) is available to

every citizen of India, whether belonging to a Minority or majority group. It is

19
AIR 1969 S.C. 165
20
AIR 1954 S.C. 561.
a right of citizen as a citizen not as a member of any community or class.

Denial of admission to the pupil on the basis that their mother tongue is not

English was held violative of Article 29 (2) as it was based on one of the

forbidden grounds specified in Article 29 (2) i.e. language.

Article 29 to does not confer absolute right on citizens to be

admitted in to any educational institutions maintained by the State or

receiving aid out of State fund. Therefore admission can be denied on grounds

other than religion, race, caste, or language.

Right under Article 29 (2) is not available in following Cases:-

1. Where admission in educational institution is denied on ground other

than those specified therein Tor e.g., where seat in the educational

institutions are reserved by the State government on the basis of

residence or domicile or sex or admission is denied on ground that all

the seats in the institution are already filled, lack of requisite

qualification or having less marks, etc.

2. If the institution is neither maintained by the State nor is receiving aid

out of the State funds then Article 29 (2) cannot be invoked for seeking

admission into such educational institution. The term aid in Article 29

(2) covers grants made by the government including the grants made
under Article 33721. Article 337 contains special provisions with

respect to educational grants for the benefit of Anglo-Indian

community.

If any citizen seeks admission into any educational institution which is

State maintained or receiving aid out of the State funds, but has no requisite

academic qualification and is denied admission on this ground, he cannot

claim Article 29 (2) Article 29 (2) Can be claimed only on ground religion,

21
In Re Kerala Education Bill, 1957, AIR 1958 SC 956.
 127

race, caste, language or any of them. The word “only” used in Article 29 (2) is

of considerable significance and has been used for some avowed purpose.

6.1.4 Impact of first amendment, 1951 on Article 29 (2):-

In, State of Madras v champakam Durairajan,22 the State of Madras

issued an order known as communal Government Order Providing for

allocation of seats in the medical and Engineering Colleges of the State,

proportionately to the several communities viz. Brahaman, Backward Hindus,

Harajans, Christians and Muslims etc. Though the object of communal G.O

was to advance the interest of educationally backward classes of citizens but it

was struck down by Hon’ble Supreme Court as violative of Article 29 (2).

To nullify the effect of the decision and to ensure advancement of

socially and educationally backward classes, of citizens, the Constitution (first

amendment) Act, 1951 added clause (4) to Article 15. The clause reads as

follows:-

“Nothing in Article 15 or in Article 29 (2) would prevent the State

from making any special provision for the advancement of any educationally

and socially backward classes of citizens or for the schedule castes and

schedule tribes.”

Object of adding Article 15 (4). was for the advancement of the

backward classes or of Schedule Castes or Schedule Tribes. Therefore Article

29 (2) is Constitutionally subject to the principal of ‘rational classification’.

In State of Bombay v Bombay educational society23 State government

issued order banning admission of all those whose language was not English

into school having English as medium of instruction. Though the object of the

order was to promote national language. It was held by the Constitutional

bench of five learned judges that,

AIR 1951 SC 226.

AIR 1954 SC 561.
 -■ ’ 128 / '

“........ Laudable object of the impugned order does not obviate the

prohibition of Article 29 (2)”.

Thus the order of the government was struck down as volatile of

Article 29 (2), When any Minority education institution was established under

Article 30 and it receive aid from State than the provision of Article 29 (2)

will indeed be applicable.

6.1.5 Person entitled to claim the protection of Article 29 (2):-

In State of Bombay v. Bombay education society24 considering that in

the matter of admission into any educational institution which is either

maintained by the State or State aide, his lordship rightly held, that, “surely

the citizens of the very section whose language, Script or culture is sought to

be conserved by the institution or the citizens who belong to the very Minority

group which has established and is administering the institution do not need

any protection against themselves and therefore Article 29 (2) is not designed

for the protection of this section or this Minority. Nor do we see any reason to

limit Article 29 (2) to citizens belonging to a Minority group other than the

section or the Minorities referred to in Article 29 (1) or Article 30 (1), for

citizens, who do not belong to any Minority group, may quite conceivably

need this protection just as much the citizens of such other Minority group.”

So Article 29 (2) does not provide protection to persons covered under

Article 29 (1) or the Minorities only but also to majority. In other words, if

any educational institution is State maintained or aided whether established by

government or the majority or Minority cannot deny admission to citizen on

the grounds only of religion, race, caste or language.

24
AIR 1954 SC 561.
 129

6.1.6 Article 29 (2) and Article 15 (1) of the Constitution.

Clause (1) of Article 15 Provides, “The State shall not discriminate

against any citizen on ground only of religion, race, caste, sex, place of birth

or any the them.”

Both the Articles i.e. Article 15 (1) as well as Article 29 (2) of the

Constitution read together aim at equality also prohibits discrimination against

the citizen, but there are significant difference between the two:-

1. Clause (1) of Article 15 of the Constitution affords a general

protection to the citizen against the State from being discriminated

against, whereas, clause (2) of Article 29 of the Constitution

guarantees protection to the citizens from being discriminated against

in the matter of admission into any educational institution maintained

by the State or receiving aid out of State funds.

2. Article 29 (2) not only covers educational institution maintained by

State but it also available against the individual or societies which have

established the educational institution and are receiving aid from the

State funds. So Article 29 (2) extend against the State as well as others

i.e. Private individuals or societies also. Whereas Article 15 (1)

extends against the State only.

3. Article 15 (1) prohibit discrimination on the ground of religion, race,

Caste, Sex or place of birth. Article 29 (2) Prohibits denial of

admission to educational institution aided or maintained by State on

ground of religion, race, caste or language.

4. Article 15 (1) is more general and wide in its operation than Article 29

(2). e.g. Refusal to admit someone in an educational institution on the

ground of sex or place of birth does not offend Article 29 (2) but would

be invalid under Article 15 (1). So Article 15 (1) is more wide as it

cover the area where Article 29 (2) is not applicable.

 130

Article 29 (2) does not apply to Private education institution which are

not receiving aid out of State funds. Minority educational institution receiving

aid from the State can no longer be regarded as ‘other authorities’ within the

meaning of State in Art 12 of the Constitution held in Pradeep Kumar Biswas

and others v.Indian Institution of Chemical Biology and other.25 Article 29 (2)

Pertains to the right of an individual not a class right.

The framer of the Constitution unambiguously and unanimously intended

that rights given under Article 30 (1) could be fully enjoyed so long as the

educational Institutions were established and administer at their own cost and

expenses. Once the State aid taken, then the principle of equality and

secularism, on which our Constitution is based, were to prevail and admission

could not be denied to any students on the ground of religion, race, caste,

language, or any of them. On receiving aid educational Institution would be

bound by Constitutional mandate of Article 29 (2).26

6.2 RIGHT OF MINORITIES TO ESTABLISH AND ADMINISTER

EDUCATIONAL INSTITUTIONS [ARTICLE 30].

Article 30 (1) "All Minorities whether based on religion or language,

shall have the right to establish and administer educational institution of their

choice."

Article 30 (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."

Article 30 (1-A): Provides that the parliament in the case of a central

legislation or the State legislature in case of the State legislation shall make a

specific law to ensure that the amount payable to the Minority educational

2002 (5) SCC 111.

TMA Pai foundation V/s St of Karnataka AIR 2003 SC 355 (at page 489).
 131

institution for the acquisition of their property will not be such as will in any

manner impair their functioning.

Article 30 (1-A) was inserted by the Constitution, (forty fourth

amendment) Act 1978.

6.2.1 Object of Article 30

Minorities by their very numbers, are in a politically disadvantaged

situation and require special protection at least in the field of education.27

Article 15 (4) 337 and 30 are facets of substantive equality by making special

provisions for special classes on special considerations.

As Equality and Secularism are the basic structures of the Constitution.

They are more important than the right under Article 30 (1). Purpose of

Article 30 was not to create a special or privileged class of citizens. It was

framed only for the purposes of ensuring that the politically powerful majority,

did not prevent the Minority from having their educational institutions. Article

30 does not deal with Minorities who are economically or socially backward.

These are not communities whose children are not capable of competing on

merit eg. Tamilians in Tamil competes with other and get admission on merit.

When he/she shift to Maharashtra, he/she continue to be able to complete

openly and get admission on merit. Merely Tamil shift to Maharashtra or

some other State they become entitled to special right not available to other

citizens, this was not the purpose of Article 30. This Art was framed only to

ensure that the Maharashtrians by reason of their being politically powerful,

do not prevent the Tamilian from establishing an educational Institutions at

their own cost. Therefore Article 30 merely protects the right of Minority to

establish and administer and educational intuitions i.e. to have the same right

as enjoyed by majority (emphasis supplied).

27
AIR 2003 SC 355. 2002 AIR SCW 4957 para 371-372
 ...............................' • 132

The Court in T.M.A Pai foundation case28 observed.

“It is difficult to comprehend that framers of the Constitution would

have given such an absolute right to the religious or linguistic Minorities,

which would enable them to establish and educational institution in a manner

so as to be in conflict with the others parts of the Constitution. It is difficult to

accept that in the establishment of educational institutions by the Minorities,

no law of the land, even the Constitution is to apply them?

Although the Article 30 (1) is wide in its scope as words and phrases

used are unqualified but the right is not absolute, it is subject to general laws

of the land, health, morality and standard of education etc.

V.N. Khare,29 J observed that Article 30 (1) strictly may not be subject

to reasonable restrictions it cannot be disputed that Art 30 (1) is subject to Art

28 (3) and also general laws and the laws made in interest by national

security, public order and morality.

Syed Shah Mahammed Quadri30 J. had expressed the opinion that the

right conferred under Article 30 (1) is absolute as no such limitation as are

placed on rights conferred under Art 19, 25 and 26 are to be found in Article

30 (1); this is however, not to deny the power to the State to frame regulations

in the interest of Minority educational Institution with regard to standard of

education and check mal-administration.

The kerala31 education Bill is the first important case in which right of

religious or linguistic Minorities under Article 29 and 30 of Constitution as

exhaustively considered by apex court into its advisory opinion given in a

reference under Article 143 of the Constitution .It was observed by the court

that right to establish and administer could not obviously include the right to

AIR 2003 SC 355.

Ibid 363.
Ibid 447
AIR 1958 SC 956.
 133

mal administer. This qualification is implicit in Article 30 and cannot be

treated as a limitation on the right conferred there under.

Their Lordships of the Supreme Court has further observed in the case

ofP.A. Inamdar and others v.State ofMaharashtra that “the object underlying

Article 30(1) is to see the desire of Minorities being fulfilled that their

children should be brought up properly and efficiently and acquire eligibility

for higher university education and go out in the world fully equipped with

such intellectual attainments as will make them fit for entering public services,

educational institutions imparting higher instructions including general secular

education. Thus the twin objects sought to be achieved by Article 30(1) in the

interest of Minorities are: (i) to enable such to conserve its religion and

language, and (ii) to give a thorough good general education to the children

belonging to such Minority. So long as the institution retains its Minority

character by achieving and continuing to achieve the aforesaid two objectives,

the institution would remain a Minority institution.”

In St. Stephen’s case the Supreme Court had ruled that Article 30(1) is

a protective measure only for the benefit of the religious and linguistic

Minorities and “no ill fit or camouflaged institution can get away with a

Constitutional protection.”

Emphasising the need for preserving its Minority character so as to

enjoy the privilege of protection under Article 30(1), it is necessary that the

objective of establishing the institution was not defeated. The management of

a Minority institution cannot resort to the device of admitting the Minority

students of the adjoining state in which they are in majority to preserve

Minority status of the institution.

Article32 30 (1) creates a special class in the field of educational

Institution- a class which is entitled to special protection in the matter of

32
T.M.A . Pai foundation v Sate of Karnataka AIR 2003 SC 504.
 134 :

setting up and administering educational of their choice. This has been

affirmed in various decisions of this court where the right has been described
as “a sacred obligation”33, an absolute right34, a special right35 guaranteed

right,36 “the conscience of nation37, a befitting pledge,38 and an article of

faith.39

Article 30 (1) guarantees to all linguistic and religious Minorities the

‘right to establish’ and the ‘right to administer’ the educational institution ‘of

their choice’. The right contained in Article 30 (1) is available only to

Minorities whether based on religion or language. The word ‘or’ in Article 30

(1) indicate that Minorities for the purposes of this Article, may either be

linguistic or religious and it does not have to be both.

The position that emerges from the interpretation of Article 30 (1) by

the Hon’ble Supreme Court in many cases, clearly show that the right of the

Minorities to establish and administer educational institution of their choice

consists of three main rights.

1. The right to establish educational institution;

2. The right to administer institution; and

3. The right to determine the nature of their educational institution at their

own choice.

In Ahmedabad saint Xavier college society and others etc. v State of

Gujrat40, it was observed as follows:-

“Every section of the public, the majority as well as Minority has right,

in respect of religion as contemplated in Article 25, 26, and Article 29. The

whole object of conferring the right on Minorities under Article 30 is to

33 Keshavanand Bharti v State of Kerala AIR 1973,1461.

34 In re: kerala edu. Bill, 1957,1959 SCR 995,1070.
35 Rev. Sidhajbhai v. State of Bombay 1963 (3) SCR 837.
36 Rev father w. Poorst v. State of Bihar, 1969 (2) SCR173, 192.
37 St. Kerala v. very Rev-mother privated 1971 (1) SCR 734-940.
38 St Xavier college v State of gujrat 1975 (1) SCR 173-192.
39 Lilly karain v. lewina 1979 (2) SCR 124-137
40 AIR 1974 P 1394
 135

ensure that there will be equality between the majority and the Minority. If the

Minority do not have such special protection they will be denied equality. The

Minorities are given this protection under Article 30 to preserve and

strengthen the integrity and unity of the country.

6.2.2 The Right to Establish Educational Institutions

The Right to establish an educational institution is given under three

articles of the Constitution i.e. under Article 19 (1) (g), 26, 30 (1). Article 19

(1) (g) gives the right to all the citizens to practice any profession, trade or

business. This right is subject to reasonable restriction under Article 19 (6).

Article 19 (1) (g) uses the four expression- profession, occupation, trade and

business. Education falls within the meaning of the expression “occupation”.

In Sodan Singh and other v New Delhi Municipal Committee and other41

observed “occupation” would be an activity of a person undertaken as a means

of livelihood or mission in life. Therefore “Occupation” comprehends the

establishment of the educational institution.

The Constitution recognizes the right of the individual or religious

denomination or a religious or linguistic Minority to establish an educational

institution.

Article 26 (a): Right of every religious denomination or any section

thereof to establish and maintain institution for religious and charitable

purposes subject to public order, health and morality.

Under this Article members belonging to any religious denomination,

including the majority religious community to set up an educational

institution. The establishment of educational institution comes within the

meaning of the expression “charitable purpose”. This Art does not deal with

the right of individual, but is confined to a religious denomination. To some

extent Article 26 (1) (a) and Article 30 (1) overlap, as they relate to

[(1989)4SCC 155, Pg 174, Para 28]

 • 136

establishment of educational institution, but Article 26 gives right both to

majority as well as Minority to establishment and maintain institution for

charitable purpose which would include educational institution also. Whereas

Article 30 refers to right of Minorities to establish and maintain educational

Institution of their choice. Article 26 refer only religious denomination where

as Article 30 contains right of religious as well as linguistic Minorities to

establish and administer educational Institution of their choice.

Clause (1) of Article 30 confers a right on all the Minorities, whether

based on religion or language, the “right to establish” and administer

educational institution of their choice. Different dictionaries’ have given

different meaning to words ‘establish’. It proves that the expression has got a

number of meanings namely.

1. To found; to regulate; to ratify; confirm; settle; to create;

2. To settle or to fix, as to establish justice.

3. To setup; to find; to prove beyond doubt.

4. To bring into existence; to originate; make; start.

5. To create, to ratify or confirm, as we the people, etc., do ordain and

establish this Constitution.

In Azeez Basha v. Union ofIndia42, the Hon’ble Supreme Court did not

agree that the word “establish” only means “to found”. His Lordship pointed

out that it also means “to bring into existence”. So the right given by this

Article to the Minority is to bring into existence an educational institution and

if they do so, to administer it. To administer an educational institution, it is

necessary that such institution should be established by these Minorities group

who claim protection.

42
AIR 1968 SC 662, P. 672.
 137

Article 30 (1) given protection only to those educational institution

which are established by the Minorities. No other educational institution can

claim this right.

In S.P. Mittal v. Union of India43 it was observed by the Hon’ble

Supreme Court, “The benefit of Article 30 (1) can be claimed by the

community only on proving that it is a religious or linguistic Minority and the

institution was established by it.”

The right to established and administer are correlative. Establishment

of an institution is a condition precedent to get the right to administer it.

However it does not imply that the members of the Minority community

should contribute to the funds for the establishment of an institution, or that no

funds can be raised for this purpose from the member of the public. Even a

single philanthropic individual has founded such an institution with his own

means, but the intention must be to found the institution for the benefit of a

Minority or community at large contributes the funds- it does not matter. The

position is law is the same and the intention in either case must be to found an
institution for the benefit of Minority community.44

In Azees Basah and another v Union of India,45 a controversy arose

was, whether the Aligarh Muslim University was established by the Muslim

Minority and the Muslims had the right to administer it or not in this case

petitioner contended that Aligarh Muslim University was established by

Muslim Minority and therefore, the Muslim had the right to administer it and

the provisions of the Acts of 1951 and 1965 to the extent they took away or

abridged any part of that right were ultra vires of Article 30 (1) of

Constitution whereas, Union of India contended that the Aligarh Muslim

University was established in 1920 and that establishment was not by the

43 AIR 1983 SC 1
Manager, saint Thomas U.P. School Kerala v Commissioner and Secretary, General
Education Department, AIR 2002 SC 756
45
AIR 1968 SC 662.
 : v 138

Muslim Minority but by the government of India, and, therefore, the Muslim

Minority could not claim any fundamental right to administer the Aligarh

University under clause (1) of Article 30. The fact that the university was to

be composed entirely of Muslims did not give any right to Muslim community

as such to administer the university which had been administer by authorities

established by the 1920 Act.

The Supreme Court explained the scope of clause (1) of Article 30.

K.N. wanchoo, J. held Aligarh University when it came into existence in 1920

was established by the central Legislature by the Aligarh Muslim University

Act, 1920. It may be a fact that the 1920 Act was passed as a result of the

efforts of the Muslim Minority. But that did not mean that the Aligarh Muslim

University when it came into being under the 1920 Act was established by the

Muslim Minority.

The words ‘establish’ and administer’ in the Article must be read

conjunctively and so read it gives the right to the Minority to administer an

educational institution provided it has been established by it.

The expression “establish” as defined in various dictionaries showed

that though one of its meaning was to found and it was not the only meaning.

For the purpose of clause (1) of Article 30, the expression ‘establishment’

meant to bring into existence an educational institution. The word

“Educational institution” was of wide import and would include a university

also. ■ ■ • .

-The provisions of section 6 in the 1920 Act showed that Aligarh

Muslim University, when it came to be established in 1920 was not

established by the Muslim Minority, so the Minority could not insist on the

recognition by government of the degrees conferred by an university

established by it.
 139

So it was held that the Aligarh University was neither established nor

administered by the Muslim Minority and amendment to the 1920 Act made

by Parliament through the amending Act of 1951 and 1965 were not

unconstitutional under Article 30 (1) for that article did not apply to Aligarh

University.

Some eminent authors like Mohammed Ghouse and Seervi have raised

doubts on the aforesaid judgment. While evaluating the judgment,

Mohammed Ghouse has pointed out that by holding that ‘establish’ means to

‘bring into existence’ and rejecting ‘to found’ (meaning of establish) is

unconvincing and surprising. The meaning of established should be delimited

contextually and syntactically.46 Seervai47 Stated that

Even if the definition given by the court to the word ‘establish’ was

correct, namely ‘to bring the university in existence’, it was not correct to hold

that the university was not established by the Muslim Minority, actually the

Muslim community brought the university into existence in the only manner

in which a university could be brought in to existence, namely, by invoking

the exercise by the sovereign authority of its legislative power. The Muslim

community provided lands, buildings, college and endowments for the

university, and without these, the university as a body corporate would be an

unreal abstraction.

So the criticism that the decision was based on narrow technical

ground is based on the history of the early institution. No doubt that the

university may have come into existence as a result of Muslim initiative and

efforts and that is not to say that it was established by Muslims. It is

established by the State, no doubt mostly for the Muslims but that is a

different matter. Once the university was established by the act of a sovereign

46
Mohd. Ghouse, a Minority university and the supreme court 10 J.I.L.I, (1968) P.P. 524-
525.
47
Seervi, “Constitutional law of India”, 1975 Vol. 1 at 614.
 140 ~

legislation it is the State that took the financial and other responsibility of

maintenance of the university.

The Aligarh Muslim University (Amd) Act, 1981 amended the

principal Act of 1920 and the word ‘establish’ was omitted from the preamble

of the act so as to whittle down the effect of Azeez Basha in relation to.

Aligarh Muslim University by parliament. It is submitted that parliament has

no right to amend the Aligarh Muslim University Act so as to confer Minority

status on it when Hon’ble Supreme Court held that it was not established by

Minority.

As in our opinion Hon’ble Supreme Court has very rightly concluded

that Aligarh Muslim University was not established by Muslim Minority and

thus, is not entitled to get protection of Article 30 (1). No educational

institution can be said to be established by a Minority, if it is established by an

Act of a legislature.

• Test to identify Minority Institutions

Before an institution is ordained with a Minority character, it must be

satisfied that the institute was established by the Minority community be it

religious or linguistic. A Minority can claim the right to administer an

institution if it is established that the institution was established by the

Minority but not otherwise.48

When an institution is established by a member of a particular religion,

if the religion happens to be a Minority the institution does not assume the

character of that Minority religious community. In order to treat an institution

as a Minority institution, it must be established that the institution serves or

promotes the interest of Minority community by promoting its religious

tenets, philosophy, culture, language etc.49

48
S. Azeez Basha v union of India 1968 (1) SCR 833, P. 662.
49
C. Samuel v district education officer, AIR 1982 AP 64.
 141

The institute must not only established but also has all through been

administered by the Minority alone.50 The right of such institution as Minority

institution arise only after the recognition is granted as a Minority institution

under the Recognition Rule, 1988. No educational agency can by itself treat

an educational institution establishment by it as a Minority educational

institution on its own. It is for the State to certify whether the institute

established is a Minority institution. The certificate recognizing the institution

as a Minority institution, shall relate back to the date of establishment. The

order of recognition by the State clothes the institution with a Minority

character.

Right to establish and administer under Article 30 (1) is available only

to the Minority institutions which have not acquired the status and character of

State instrumentalities51.

The educational institution may be established by a community or by

an individual, whether constituting a society or not, belonging to Minority

community cannot ipso facto be treated as Minority institution. The

educational institution must serve and benefit the Minority community in

some manner, either by promoting the language (in case of linguistic

Minority) or by teaching and promoting the religion and culture of the

Minority community (in case or religious Minority) or by serving the

economic and social needs of the community in some positive manner and the

benefit must be real. There must be some connection between the institution

and the community as such and the institution must be for the benefit of the

Minority community, it must serve the interest of the community.

50
Vallore educational trust v State of AP. 1987 Supp. SCC 543 AIR 1988 SC 130,
51
Hassan all khan v. Director of Higher education, (1987) 1 APLJ (HC) 178.
 - 142

• Jamia Millia declared Minorities Institution

In a historic order, the National Commission for Minority Educational

Institutions (NCMEI) has granted Minority institution status to Jamia Millia

Islamia University. This will allow Jamia Millia - started in 1920 and declared

a Central University by an Act of Parliament in 1988 — to reserve up to 50

per cent seats for Muslims. "We have no hesitation in holding that Jamia was

founded by the Muslims for the benefit of the Muslims and it never lost its

identity as a Muslim Minority educational institution," said the order signed

by Justice M.S.A. Siddiqui, Chairperson of the Commission. Grant of

Minority status would mean that Jamia Millia Islamia will no longer have to

give reservation to Scheduled Castes and Scheduled Tribes students.

The petition had been moved before the quasi-judicial body by Jamia

Students' Union, Jamia Old Boys' Association, and Jamia Teachers'

Association in 2006. The Union Human Resource Development Ministry had

opposed the move on the ground that a petition challenging the Minority

status of the Aligarh Muslim University was pending in the Supreme Court

and its judgment would have a bearing on the Jamia case. The order can only

be challenged in the High Court through a writ petition or in the Supreme

Court.

"We find and hold that Jamia Millia Islamia is a Minority educational

institution covered under Article 30 (1) of the Constitution of India with

section 2(G) of the National Commission for Minority Educational

Institutions Act," the order said, adding that the University existed even before

the Constitution was in place.

Jamia was established for the purpose of keeping Muslim education in

Muslim hands, entirely free from external control. Thus the Muslim

community brought Jamia into existence in the only manner in which a

university could be brought into existence.

 143

The Commission in its order held: "On a conjoined reading of Section

2(o) and 4 of the Jamia Millia Islamia Act along with the history and facts and

events which led to the establishment of Jamia, we have no hesitation in

holding that Jamia was founded by the Muslims for the benefit of the Muslims

and it never lost its identity as a Muslim Minority educational institutions."

An aided Minority educational institution, therefore, would be entitled

to have the right of admission of students belonging to the Minority group and

would be required to admit a reasonable extent of non-Minority students so

that the rights under Article 30(1) are not substantially impaired," the order

said.

"It is well settled that mere receipt of aid does not annihilate the right

guaranteed under Article 30(1) of the Constitution." On the HRD Ministry's

directive of 2006 allowing Jamia to take appropriate steps to admit students

from Muslim Minority community at least to the extent of 50 per cent, the

judgment said that by issuing the said direction, which is in consonance with

the aforesaid directions of the Supreme Court, the HRD Ministry has

impliedly recognized the factual position relating to Jamia's Minority status.

Section 2(o) of the Jamia Millia Islamia Act, 1988, acknowledges it in

no uncertain terms that Jamia was founded by the leaders of the Khilafat

movement. It is well known that the Khilafat movement was spearheaded by

Maulana Shaukat Ali and Maulana Mohd. Ali Jauhar, and that the Khilafat

movement gave birth to the noncooperation movement launched by Gandhiji.

On the Minority status case of Aligarh Muslim University pending in

the Supreme Court, it said: "It has to be borne in mind that according to Azeez

Basha's case the Muhammedan Anglo-Indian College had lost its identity by

its conversion into the AMU, which was established by the AMU Act, 1920. In

the instant case, the Jamia never lost its identity till enactment of the Act. "

[The Hindu, 23/02/2011]

 144

• Jamia University’s Minority status under scanner

The grant of Minority status to Jamia Millia Islamia University by the

National Commission for Minority Educational Institutions (NCMEI) came

under the scanner of the Delhi High Court which has sought responses from

the Centre and others on a PIL. "Issue notice to Human Resources

Development Ministry, the Ministry of Minority Affairs... for February 22, a

Bench of Chief Justice Dipak Misra and Justice Sanjiv Khanna said.

The high court has admitted for hearing a public interest litigation (PIL)

of Vijay Kumar Sharma, president of NGO 'Yuva Bharti Samiti', alleging that

"the Jamia Millia Islamia Act, 1988, incorporates and establishes the

university and dissolves the Jamia Millia Islamia Society, which was

managing and running it, and the NCMEI has no jurisdiction or authority to

declare it a Minority institution." Besides the ministries concerned, the court

has also sought responses from the Vice Chancellor of the University, the

teachers' association and five others including the students' union.

The NCMEI headed by Justice M.S.A Siddiqui had recently granted

"Minority" status to the University which will enable it to reserve up to 50

per cent seats for Muslim students. The Varsity will no longer have to give

reservation to SC and ST students also, the panel, a quasi-judicial body, had

said while allowing the petitions of students union, Jamia Old Boys

Association and Jamia Teachers Association. The petitions were filed in

2006. "The Act does not provide any special consideration for a person

belonging to a particular community and the posts of chief policy making

body (Anjuman)... are open to persons of all caste, creed and religion with no

special consideration to Muslims...," the PIL said, adding grant of Minority

status defeated the purpose of the law which was enacted by Parliament.

"The University is a central university of national importance and is

an alloy of secular Indian culture where members of all caste, creed and
 145

religions have been benefited and cannot be conferred with the status of

Minority institution," the petition, filed by advocates Rakesh and Santosh

Kumar, said. Earlier, the NCMEI had said Jamia would continue to enjoy the

central university status and the only "Minority central university" in the

country, given its unique character. [The Indian Express, 24/03/2011]

6.2.3 Pre and Post Constitution Institution

Article 30 (1) of the Constitution made no distinction between the

Minority institutions existing from before the Constitution or established after

the commencement of the Constitution. As the language employed in Article

30 (1) is wide enough to cover both pre-Constitutional and post Constitutional

institutions.

In re Kerala educational bill, 195752 S.R. Das, C.J held, There is no

reason why the benefit of Article 30 (1) should be limited only to educational

institutions established after the commencement of the of the Constitution.

Article 30 (1) gives the Minorities two rights, namely, to establish and

administer educational institution of their choice. The second right clearly

covers pre-Constitution schools just as Article 26 covers the right to maintain

pre-Constitution religious institution.

Whether the persons who established educational institutions were not

a Minority at the time of establishment but later become a Minority are

entitled to protection ofArticle 30 (1)?

This question was answered by Madras High Court in N. Paramswara

Kurup v State of Tamil Nadu53 as follows, “Protection guaranteed under

Article 30 (1), should not be deprived merely because plaintiff who

established the institution were not Minority at the time when the institution

52
AIR 1958, SC 956 at PP. 977,978.
53
AIR 1986, Mad 126.
 146

were established, but later became Minority. This change is due to

reorganization of States.

“For establishment, it is not necessary that the school must be

constructed by the community even if the school previously run by some other

organization is taken over or transferred to the church and church recognizes

and manages the school to cater to and in conformity with the ideals of the

Roman Catholics it can be safely concluded that the school has been

established by the Roman Catholies”. Held in AM. Patronit v. Assistant

Educational officer.54

The educational institutions, which were established by the funds

collected outside the country or at the time they were administered by such

persons who were not Indian citizens, can also get the protection of Article 30

(1).
In S.K. Patro v State of Bihar55, Hon’ble Supreme Court was of the

view that it is immaterial to consider the fact of collection of funds for the

establishment of the institution. To seek the protection of Article 30 (1) the

institution should be established by those Minorities who were claiming the

right to administer it.

To be recognized as a Minority institution there must be something

related to the object of Article 30 (1) of the Constitution. The object of Article

30 (1) is to give the Minorities a sense of security and a feeling of confidence

by enabling all Minorities, religious or linguistic to establish and administer

educational institutions of their choice. There institutions must be educational

institutions of Minorities in truth and reality and not mere masked phantoms.

Purpose of establishing is to give the children of the Minorities the best

general and professional education, to make them complete men and women

54
AIR 1974. Ker. 197.
55
AIR 1986 SC 1490.
 147

of the country and to enable them to go into the world fully prepared and
equipped56.

In A.P Christains Medical Educational Society v Government of

Andhra pradesh57, their lordship observed, “What is important and what is

imperative is that there must exist some real positive index to enable the

institution to be identified as an educational institutional of Minorities.”

In Saint Stephen college case58 it was held that the right conferred on

the Minorities to establish education Institution under Article 30 does not

mean that Minorities could establish education Institution for the benefit of

their own community people, indeed they cannot. It was also pointed in re

Kerala Education Bill that Minorities cannot established educational

institution for the benefit of their own community If such was the aim, Article

30 (1) could have been differently worded and it would have contained the

words ‘for their own community’.

Christian Medical Educational Society v State of A.P59, It was held

that Article 30 (1) does not require that a whole community must have been

involved in the establishment of an educational Institution. Even a single

philanthropic individual with his own means in the interest of Minority

community, it would be entitled to the protection of Article 30 (1).

Right to establish under Article 30 include right to establish

professional institution also. Word ‘education’ used in Article 30 (1) means

and implies education at all level” i.e. from primary up to the post graduate

and include professional institutions also.

In T.M.A Pie foundational case60, it was observed by Hon’ble court

that expression ‘educational institution’ include all such institutions which

T.M.A. Pai foundation v State of Kamata AIR 2003 SC 355, p.504

AIR 1988 SC 1490.
AIR 1992 Sc 1630 p 1658-59.
AIR 1986 SC 1490
AIR 2003 SC 443
 148

impart education therefore it will include professional institution in its wide

scope and amplitude having regard to the width of entry 2561 of the

concurrent list the choice of educational institutions may be understood to

include places for imparting education of their choice at all level primary,

secondary, university, vocational and technical, medical etc.

To conclude we can say that the limitation incorporate in Article 19,

25, 26 cannot be read with Article 30. This article confer autonomy on

educational Institution established and administered by Minorities so it

cannot be interfered by the State, but State is empowered to impose

reasonable regulations in the interest of Minority institution, to maintain

excellence of education and to prevent mal administration.

6.2.4 Right to Administer Educational Institutions

The Minorities whether based on religion or language have right to

establish and administer educational institution of their choice. Administration

of educational institution of their choice under Article 30 (1) means

management of the affairs of the institution.

This management must be free from control so that the founders or

their nominees can mould the institution in accordance with their ideas of how

the interest of the community in general and the institution in particular will

be best served. So this right is not made subject to any restrictions or

limitations, like Article 19. But in a modem welfare State, there can be no

absolute right, so it has to be read subject to the regulatory powers of the

State. Minority institution cannot be permitted to fall below the standards of

excellence expected from any educational institution. So standard of education

is not a part of management as such. The State, therefore has the right to

regulate the standard of education and allied matters. The State may

61 Substituted by Constitution ( Forty second Amendment) Act, 1976 w.e.f.3-1 -1977 as

fowls: [Education including technical education, medical education, Universities
subject to the provision of entry 63,64,65, and 66 of list I, Vocational and technical
training of labor
 149

legitimately insist that reasonable restrictions be prescribed to ensure the

excellence of the institution before giving aid or recognition.

All the citizens have right to establish educational institutions under

Article 19 (l)(g) and 26 (a) These articles are subject to Article 19 (6) and 26

respectively. Article 25 which provides for freedom of conscience and

freedom to prefers, practice and propagate religion is also subject to the

limitations incorporated in the article. But the framers of the Constitution have

chose not to subject Article 30 (1) to any such limitation. Therefore no such

limitations were to be found in Article 30 of the Constitution It means that all

Minorities, linguistic or religious have an absolute right to establish and

administer educational Institution of their choice under Article 30 and any law

or executive direction which seek to infringe the right under Article 30 (1)

would to that extent void.

In Rev Sidhajbhai Sabhaj and others v State of Bombay62 and another

case it was held, “The right established by Article 30 (1) is a fundamental

right declared in terms absolute. The right is intended to be effective and is

not to be whittled down by so called regulative measures conceived in the

interest not of Minority educational institution but of public or the national

interest as a whole. If the regulations destroy the power of administration is

held justifiable because it is in the public interest or national interest, though

not in into interest as an educational institution the right guaranteed by Article

30 (1) will be but a ‘teasing illusion’, a promise of unreality. These

regulations must satisfy the dual test.

In the Ahmedabad Saint Xavier’s college society and others v State of

Gujrat and others63 it was observed by Ray, C J. at page 194 as follows:

AIR 1963 SC 540

AIR 1974 SC 1396
 150

......... The right to administer is said to consist of four principle

matters. First is right to choose its governing or managing body. It is said that

the founders of the Minority institution have faith and confidence in their own

committee or body consisting of persons elected by them. Second is the right

to choose its teacher. It is said that Minority institution wants teachers to have

compatibility with the ideals, aims and aspirations of the institution. Third is

the right not to be compelled to refuse admission to students i.e. they have the

right to admit students of their choice subject to reasonable regulations about

academic qualification. Fourth is the right to use its property and assets for the

benefit of its own institution. While considering the right, to administer it was

held that the same was not absolute right and that right was not free from

regulations.
In Kerala education BillI64 case, justice S.R. Das explained the scope of

administration as follow:

‘The right to administer cannot include the right to maladministration.

The Minority cannot surely ask for aid or recognition for an educational

institutions run by them in unhealthy surroundings without any competent

teachers possessing any semblance of qualification and which does not

maintain even a fair standard of teaching or Which teaches matters subversion

of the welfare of the scholars.”

Right of administering the institution is somewhat restricted in the

interest of teachers and students which is nothing but the interest of general

public. But “the balance is to be kept between two objectives that of ensuring

the standard of excellence of the institution and that of preserving the rights of

the Minorities to establish and administer their educational institutions. Any

regulation that embraced and reconciled the two objectives could be

64
AIR 1958 SC 956.
 151

considered to be reasonable”. It was observed in the case of Saint Xavier’s

college case.65.

Where the Minority community had validly surrendered its right to

administer the institution which was in existence prior to the establishment of

the institution and had also transferred its assets and liability, then the right to

administer would be irretrievably lost.

The right to administer is not an absolute rights as it is not free from

regulatory measures which facilitates smooth administration. The right to

administer its educational institution involves, as a part of it, a correlative duty

of good administration (in Ahmadabad saint Xavier’s college society v State

of Gujarat66}.

State of Bombay v. Bombay education society67 Hon’ Supreme Court

Observed,

“There is no limitation placed on the subjects to be taught in such

educational institutions. As such Minorities will ordinarily desire that their

children should be brought up properly and efficiently and be eligible for

higher university education and go out in the world fully equipped with such

intellectual attainment as will make them fit for entering the public services.

Educational institution of their choice will necessarily imparting general

secular education also. In order words, the article leaves it to their choice to

establish such educational institutions as will serve both purposes, namely the

purposes of conserving their religion, language or culture and also the purpose

of giving a through good general education to their children”.

In T.M.A Pai Foundation v State of Karnataka,68 the apex court held

that the right to establish and administer educational institutions is of the

choice of the Minorities. The expression ‘institution of their choice’ means

65 AIR 1974 SC 1389

66 AIR 1975 SC R 173
67 AIR 1954 SC 561.
68 AIR 2003 SC 441
 -- 152

institution for the benefit of the Minorities; the word ‘Choice’ encompasses

both of the students as well as the type of education to be imparted in such

educational institution.

6.2.5 Right to Establish and Administer is not Absolute

In democratic countries absolute right cannot be conferred on anybody

or a group. Although Article 30 (1) strictly may not be subject to reasonable

restriction, but the right under Article 30 are not absolute. The Hon’ble

Supreme Court for the past 50 years has held that the rights under Article 30

(1) are subject to restrictions. Any regulation framed in the national interest

must necessarily apply to all educational institution whether run by majority

or Minority. The right under Article 30 (1) cannot override the national

interest. It is subject to Article 28 (3), general laws of the land pertaining to

health, morality and standard of education. So the right to establish and

administer an educational institution can be regulated by State. Such

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 conducive to

making the institution an effective vehicle of education for the Minority

community or other persons who resort to it. (given in Sidhajbhai Sabhais

Case)69. The right under Article 30 (1) cannot be such as to override the

national interest or to prevent the government from framing regulation in

that behalf but such regulation cannot destroyed the Minority character of

the institution or to make the right to establish and administer a mere

illusion.

6.2.6 Right to determine nature of their educational institution ‘at their

own choice’.

Article 30 (1) not only confers the right to establish and administer

religious or linguistic Minority educational institution, but it confer the right

69
AIR 1963 SC 547.
 153

to establish institutions, “of their choice”. The use of the phrase ‘of their

choice’ in Article 30 (1) clearly postulates that the religious and linguistic

Minorities could establish and administer any type of educational institution

whether it was a school, a degree college or professional college. The word of

their choice is not qualified by any words of limitations. This article gives

choice to Minorities to establish such an institution which will serve both the

purpose.

1. The purpose of conserving their religion, language or culture.

. 2. The purpose of giving thorough general education to their children.

(In re kerala educational bill70, 1957).

In re kerala education bill, 1957 it was held that, “The key to

understanding of the true meaning and implication of the Article under

conservation are the words ‘of their choice’. It is said that dominant word is

choice and the content of Article is as wide as the choice of particular

Minority community may make it”.

6.2.7 Non discriminatory clause

Article 30 (2):-

“The State shall not, in granting aid to educational institution,

discriminate against any educational institution on the ground that it is under

the management of a Minority whether based on religion or language.”

Article 30 (2) states that Minority institutions shall not be

discriminated against when aid to educational institutions granted. In other

words, when a grant is given to all institutions for imparting secular

education, a Minority institution is also entitled to received it, subject to the

fulfillment of the requisite criteria. It cannot be argued that no conditions can

be imposed while giving aid to Minority institution. The conditions for grant

or non-grant of aid to educational institutions have to be uniformly applied,

70
AIR 1958 SC 956-979
 ■ 154 '

whether it is majority run institution or Minority run institution. Merely on the

ground that an institution is under the management of a Minority whether

based on religion or language, grant of aid to that educational institution

cannot be discriminated against, if otherwise educational institution are

entitled to receive aid.

The purpose of Article 30 (2) is to forbid the State from refusing aid to

a Minority educational institution because it is being run as a Minority

institution. ‘Aid’ means to give support to help or assist. Merely because an

institution receives aid, it does not cease to be a Minority institution. Article

30 (2) is an additional right conferred on Minorities beside Article 30(1)

According to Oxford dictionary (10th edition), 864, the word ‘management’

must be construed to means the ‘process not the ‘Persons in Management’. It

may be defined as the ‘process of managing’ not limited to the people

managing the institution.

The Minority cannot surely ask for aid or recognition of an institution

run by them in unhealthy surroundings, without any competent teacher

possessing requisite qualification and without maintaining fair standard of

teaching. State cannot be compelled to grant aid to such a Minority institution.

As Article 30 does not give any right to demand aid. Article 30 (2) only

prohibit discrimination of Minority institution while granting aid and

recognizes that by receipt of aid Minority institution would not lose its

character.

However State is empowered to impose conditions of receiving aid.

Such conditions or regulations are not restrictions on the right but they merely

deal with the aspect of proper administration of educational institution, to

ensure excellence of education and to avert mal administration of Minority

educational institution and will therefore, be permissible. Regulations

regarding healthy surrounding of the institution, competency and

 155

qualification of teachers, fair standard of teaching etc. However conditions

like to surrender the right to management on Minority educational institution

would be violative of Article 30 (2). Any conditions imposed by State on

Minority educational institutions would be valid if they are imposed on other

educational institutions receiving aid. No such conditions can be imposed by

the State on Minority educational institution. Article 30 (2) of the Constitution

is moulded in negative terms. It prohibits the State not to discriminate against

any educational institution on the ground that it is under the management of

Minority.

Clause (2) of Article 30 of the Constitution comes into operation only

when a Minority institution seek aid from the State and the same is denied on

the ground that the institution is under the management of a Minority. So this

Article imposes obligation upon the State to maintain equality of treatment in

matters of financial assistance to educational institutions. The prohibition

contained in Article 30 (2) applied with regard to both the types of the

institution i.e. institution imparting general secular education and the

denominational institution imparting secular as well as religious instruction.

In All Saints High School v. The State of Bihar,71 Hon’ble Court

reaffirmed the views expressed in re kerala educational Bill72, 1957 and

Sidrajbhai v State of Gujrat73 that Constitution did not confer any right on the

institution to get any aid, it, however forbade the State in granting aid to

educational institutions from discriminating and educational Institution on the

ground that it was under the management of the Minority whether based on

religion or language.

AIR 1980 SC 1042

AIR 1958 SC 956
AIR 1963 SC 540.
 ■ 156

Thus the State is competent to sanction or not to sanction any grant to

educational institution, but, while sanctioning grant the State is under

Constitutional obligation:

> Not to discriminate against educational institutions on the ground

that it is under the management of a Minority, whether based on

religion or language.

> State cannot while sanctioning grants, impose restrictions upon

the substance of the right guaranteed by Article 30(1).

> Though the State may prescribe reasonable regulations to ensure

the excellence of the institutions to be aided. No institution which

fails to conform to the requirement would be entitled to any aid.

> Reasonable regulations must be related to the proper utilization of

the grant and fulfillment of the objective of the grant.

> Regulations must be secular in nature such as proper audit with

regard to the utilization of the funds and the manner in which the

funds are to be utilized will be applicable and would not dilute

the Minority status of the educational institution.

> Conditions would be valid if they are also imposed on other

educational institutional receiving the grant.74

The right under Article 30 (2) implies that any grant that is given by

State to Minority institution cannot have such conditions attach to it which

will in any way dilute or abridge the right Minority institution to establish and

administer that institution Such regulation must satisfy dual test of

reasonableness,75 i.e. 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.

T.Ma Pai foundational v. State of Karnataka, AIR 2003 SC 413

Rav. Sidhajbhai sabhai v state of Bombay AIR 1963 SC 540.
 157

Article 30 (2) only prohibits discrimination it does not give any right to

demand aid. Right to demand aid is given under Article 337. Article 337 only

gives the right to assistance by way of grant to Anglo-Indian community for

specified period of time. It may be noticed that provisions contained in Article

337 were to last up to 25th January, 1960. Therefore, they are now merely of

academic importance.

In Roman Catholic Society v. The Government of Tamil Nadu,16

wherein the court held that the educational institutions were not business

houses. They did not generate wealth and therefore they could not survive

without public funds or private aid. The court said that Minorities could not be

saddled with the burden of maintaining educational institutions without grant

in aid. The paucity of finance, the court said could not be valid ground to

denying aid to Minority educational institutions.

In Sidrajbhai v State of Gujrat11 it was held that the object of Article

30 (2) is to make the right secured by clause (1) as a real right.

6.2.8 Effect of Receiving Aid on Minority Institutions

As long as an educational institution, whether belonging to the

Minority or the majority community, does not receive aid, it would be its right

and discretion to impart religious instruction to grant admission to such

students as it selects. The moment any educational institution obtains an aid,

Article 28 (1), 28 (3) and 29 (2) comes into play.

Article 28 (1) provides’, “No religious instruction shall be provided in

any educational institution wholly maintained out of State funds.” A Minority

educational institution has a right to impart religious instructions but if such

an institution is maintained wholly out of State funds, then this right is taken

76
1991writLR 130
77
AIR 1963 SC 540.
 ■> 158

away by Article 28 (1). So the right to impart religious instruction in Minority

educational institution is curtailed by Article 28 (1).

Article 28 (3) provides’ “No person attending any educational

institution recognized by the State or receiving aid out of State funds shall be

required to take part in any religious instruction that may be imparted in such

institution or to attend any religious worship that may be conducted in such

institution or in any premises attached there to unless such person or if such a

person is minor, his guardian has given his consent there to.”

So the educational institutions which are either recognized by the State

or getting aid out of State funds, in such institutions there in no prohibition

against imparting of religious instructions or holding religious worship. But,

no person attending such educational institution shall be required to take part

in religious instruction imparted therein or attend any religious worship held

therein unless such person has given his consent thereto. If such person is

minor, consent of his guardian would be required for requiring him to attend
the religious instruction.78

Article 30 provides right to establish and administer educational

institution Right to give admission is one of the essential ingredients of right

to administer conferred on religious or linguistic Minorities. When such

Minority institution, takes any State aid, Article 29 (2) would apply, therefore,

one of the rights of administration of the Minorities would be eroded to some

extent. Under Article 29 (2) no citizen can be denied admission by an aided

Minority institution on the grounds only of religion, race, caste, language or

any of them, A Minority institution would fall within the ambit of Article 29

(2) in the same manner in which Article 28 (1) and Article 28 (3) would be

applicable to an aided Minority institution. So the Article 30 (1) is subject of

Article 29 (2).

78
St. Xavier’s college society v State of Gujrat AIR 1974 SC 1389.
 159

The right of the citizen not to be denied admission is granted in Article

29 (2) and right of religious or linguistic Minority to administer and establish

an institution of its choice granted under Article 30 (1) are two competing

rights. There is a need to strike a balance between these two rights.

The Question of the interplay of Article 29 (2) with Article 30(1) had

arisen in the case of St. Stephen’s cases for the first time.
In Saint Stehphen’s79 case the court observed, “the fact that Article 29

(2) applies to Minorities as well as majorities does not mean that it was

intended to nullify the special rights guaranteed to Minorities in Article 30

(1)”. In was further observed that as long as the Minority educational

institution permits admission of citizens belonging to the non-Minority class

to a reasonable extent based upon merit, it will not be an infraction of Article

29 (2), even though the institution admits students of the Minority group of its

own choice for whom the institution was meant. What would be a reasonable

extent would depend upon variable factors and it may not be advisable of fix

any specific percentage. The situation would vary according to the type of

institution and nature of education that is being impart in the institution.

Usually, at the school level, although it may be possible to fill up all the seats

with students of Minority group, at the higher level, either in colleges or in

technical institutions, it may not be possible to fill up all the seats with the

student of Minority group. However even if it is possible to fill up all the seats

with students of Minority group, the moment the institution is granted aid, the

institution will have to admit students of the non-Minority group to a

reasonable extent, where by the character of the institution is not annihilated,

and at the same time the right of citizen engrafted under Article 29 (2) are not

subverted. It is for this reason a variable percentage of admission of Minority

students depending upon the type of institution and education is desirable and

79
AIR 1992, SC 1630.
 160

indeed, necessary, to promote the Constitutional guarantees enshrined in both

Article 29 (2) and Article 30.

In Indra Sawhney v Union of India 80 B.P. Jeevan Reddy. J. made

observation that aided Minority educational institution were entitled to

preferably admit their community candidates so as to maintain the Minority

character of the institution, and that the State may regulate the intake in this

category with due regard to the area that the institution was intended to serve,

but that this intake should not be more than 50% in any case.
In T.MA Pai Foundation v State of Karnataka,81 court accept the ratio

of Saint Stephen’s case and held that Article 29 and Article 30 apply not only

to institution of higher education but also to schools, a ceiling of 50 % would

not be proper. It will be more appropriate that depending upon the level of

institution, whether it be a primary or secondary or high school or a college,

professional or otherwise, and on the population and needs of the area in

which the institution is to be located, the State properly balances the interests

of all by providing for such a percentage of student of Minority community

for which the institution was established.

So both the Articles cannot be read in isolation they have to be read

harmoniously to provide meaning and purpose. It has been settled by a long

line of decisions of the S.C. that granting of aid to Minority institution cannot

be such as to denude them of their character as Minority institution even after

receiving aid they remain Minority educational institution in all their

attributes.

Ruma Pal, J. also agree with the majority opinion that grant of aid

under Article 30 (2) cannot be used as a lever to take away the right of the
Minorities under Article 30 (l)82. .

80
AIR 1992 SC. 1630.
81
AIR 2003 SC 355.
82
Ibid, at P. 470.
 161

6.2.9 Article 30 vis-a-vis Article 29 (2)

Article 29 (2) : No Citizen shall be denied admission into any

educational institution maintained by the State or receiving aid out of State

funds on grounds only of religion, race, caste, language or any of them.

Article 29 (2) confers an individual right on every citizen to seek

admission into any educational institution maintained by the State or receiving

aid out of State fund. This article does not apply to private educational

institution which are not receiving aid.

Article 29 (2) embodies the principle of equality and prohibit

discrimination on the ground of religion, race, caste, language of any of them

only. The word ‘only’ suggests that if the denial of admission is on grounds

other than prohibited grounds eg sex, residence, merit etc. then the mandate of

Article 29(2) is not violated. Thus Article 29(2) does not create an absolute

right for citizen to be admitted into any educational institution maintained by

State receiving aid out of State funds.

Even on the prohibited grounds i.e. religion, race, caste, language,

Article 29 (2) is subject to the principle of ‘rational classification,’ e.g. 15(4).

If a person is denied admission on the basis of a Constitutional right, that is

not a denial only on the basis of religion, race etc. Thus Article 15(4) does not

contradict the right under Article 29 (2) because of the use of word’ only’ in

Act 29(2)83.

Article 30: All Minorities whether based on religion or language, shall

have the right to establish and administer educational institution of their

choice”.

The object of conferring the right on Minorities under Article 30 is that

there will be equality between the majority and Minority. As Equality under

Article 14 cannot be achieved if unequal’s are treated alike as it would only

TMA Pai Foundation v State of Karnataka, AIR 2803 S.C. 471

 162

result in inequality. Article 14 permits discrimination based on rational

classification for differential treatment having nexus to the Constitutionally

permissible object. The framers of the Constitution were aware of the ground

realities and existing inequalities in various sections of the society, and in

order to instill a sense of confidence and security in the mind of Minority

they have conferred right to then under Article 30 by applying the doctrine

of real de facto equality.

Article 30 (1) covers the right to admit student and there is an

apparent conflict between Article 29 (2) and 30 (1). As Minorities claimed

that the right to establish and administer educational institutions be

considered an absolute right and that by giving aid the State cannot impose

conditions which would restrict or abrogate in any manner the right under

Article 30 (1) According to them right under Article 30 (1) prevail over

Article 29 (2)

A reading of constituent Assembly debates clearly shows that the

framers of the Constitution intended that the right given under Article 30(1)

could be fully enjoyed so long as the educational institutions were

established and administered at their own costs and expense. Once the State

aid was taken, then principles of equality and secularism on which our

Constitution is based were to prevail and admission could not be denied to

students on grounds of religion, race, caste, language or any of them.

Article 29(2) applies to “any educational institutional maintained by

the state or receiving aid out of State funds. The words “any” educational

institution” takes within its ambit an educational intuition established Under

Article 30(1) As Article 30(1) nowhere provides that the provision of Article

29 (2) would not apply to it.

Article 30 does not make it compulsory for a Minority institution to

take aid or the State to give it but in cases where the State gives aid to
 163

educational institutions the State would be bound by the Constitutional

mandate of Article 29(2) to ensure that no citizen is denied admission into the

educational institution on grounds of religion race, caste, language or any of

them.

In TMA Pai foundation v State of Karnataka84, the Hon’ble Supreme

Court held that every single authority of this court for the past 50 years has

held that the right under Article 30(1) are subjects restriction. It was also

held that if Article 30 (1) is subject to general secular laws of the country

then it can hardly be argued that they are not subject to Constitutional

provision.

All the citizen have fundamental right to establish and administer

educational institution under Article 19(l)(g), 26 (a) 29(1). All such

institutions are governed by Article 29(2). If such institution on receiving aid

have to comply with Article 29(2), then it would be anomalous to say that a

religious or linguistic educational institution, merely because it is set up by a

Minority need not to comply with Article 29 (2).

Educational institutions set up under 26(a) would be for teaching

religion and educational institution set up under 29(1) would be for

conserving district language, script or culture On the other hand an

educational institution setup under Article 30 May be to give secular

education. So when institution setup to teach religion, or to conserve district

language, script or culture has to comply with 29(2) the it would be

anomalous to say that educational institutions set up to impart secular

education does not have to comply with Article 29 (2). Thus Article 29

(2) fully applies to Article 30.

84
AIR 2002 SC 355
 - 164

In State of Madras v Champakam DorairajaniS, in this case State of

Madras was maintaining Engineering and Medical College. Certain seats for

Backward Hindus, Muslim. Christians, Harijans, Anglo Indians were reserved

under communal G.O. before the commencement of Constitution communal

G.O was challenged as violative of Article 29(2) In this case Hon’ble court

held that Article 29 (2) does not permit reservation in favour of any caste,

community or class of people, religion, language or any or them. The court

further observed that ‘any educational institution’ in Article 29(2) would also

include Minority educational institution. Moreover reservations were not just

for economically or socially backward communities. So the court struck down

the reservation.

After this case Article 15(4) was amended by legislation by adding

Article 15 (4) which reads as;

“Nothing in the article or in clause (2) of Article 29 shall prevent

the State from making any provision for the advancement of any socially

and educationally backward classes of citizens or for the schedule caste

and scheduled Tribes.”

Thus from the above amendment it is clear that where the framers

of the Constitution did not want Article 29 (2) to apply they have

specifically provided so. No such amendment was made in Article 30. Thus

Article 30 is subject to Article 29 (2)

In State of Bombay v Bombay Education Society and others 86 case

Barnes High school, which is an Anglo-Indian School receiving aid from

State of Bombay. In 1954 State of Bombay issued circular that no primary or

secondary school could admit to a class where English is used as a medium

of instruction any pupil other than the pupil whose mother tongue was

AIR 1951 SC 226

AIR 1954 SC 561
 165

English. In this case it was submitted that the object of the circular order

was to secure advancement of Hindi which was ultimately to be the National

Language. In this case it was observed by the apex court that the laudable

object of the impugned order does not obviate the prohibition of Article 29

(2) as the effect of the order was to deny admission only on the ground of

language.

Therefore order was struck down by the court as violative of Article 29

(2). In this case the court held that 29(2) is application to Article 30 A citizen

cannot be denied admission in a Minority educational institution on ground

“ only” of religion race, caste, language or any of them.

In Re Kerala Education Bill, 1957s1 case, the President of India made

reference under Article 143(1) of the Constitution of India for obtaining

opinion of this court upon certain question relating to the Constitutional

validity of some of the provision of the Kerala Education Bill which has

been passed by Kerala Legislative Assembly, but had been reserved by the

Governor for consideration of the President of India. In this case it has been

held that Article 29 (2) applies to Minority educational institution established

under Article 30. Thus Article 29 (2) would govern Article 30(1)
In Rev. Sidhajbhai Sabhai v State of Bombay 88case petitioners

belonged to the Minority and maintained an educational institutions for the

benefit of Christian community. Institution was not receiving any aid. The

Government of Bombay issued an order directing all private training college

to reserve 60% of seats for trainee teacher of the school maintained by

the Board. In this case it was held that right under Article 30 (1) are subject

to reasonable restrictions and regulation for example restrictions relating to

health, sanitation, discipline, public order etc.

AIR 1956 SC 956

AIR 1963 SC 540
 * 166

In Rev. Father w. Proost v State of Bihar89 case it was held that even

if members of other community are admitted in to the institution, the

institution would still remain a Minority institution which is under the

management of Minority.

In 1971, the apex court in the case of D.A.V. college v State of

Punjab90 case has also held that Article 29 (2) governs Article 30(1).

In St. Xavier College 91 case it was held by the Hon’ble court that the

once the State aid was received, admission to Minority educational institutions

were not restricted only to the students of Minority community. In this case

Justice Dwivedi observed that,

“The Constitution makers did not intended to confer absolute rights on

religions or linguistic Minority to establish and administer educational

institutions. The Article 29 (2) imposes one restriction on the right in Article

30(1) No religious and linguistic Minority establishing and administering an

educational institution which receives aid from the State funds shall deny

admission to any citizen to the institution on grounds only of religion, race,

caste, language or any of them. The right of admissions further curtailed by

Article 15 (4) which provide exception to Article 29 (2). Article 28 (3)

imposes a third restriction on the right in Article 30(1), Article 28 (3)

prohibits a religious Minority establishing and administering an educational

institution which receive and or is recognized by the State.”

6.2.10 Effect of outsider admission in Minority Institutions

In Kerala Education Bill Case92 It was observed that there is no such

limitation in Article 30 (1) and to accept this limitation will necessary

involve the addition of the word “for their community” in the Article An

institution which receive aid on account of its being Minority educational

AIR 1969 SC 465

AIR 1971 SC 1737
91
AIR 1974 SC 1380
92
AIR 1958 P.1978
 167

institution must not refuse to admit any members of any other community

only on the grounds therein mentioned. The real import of Article 29 (2) and

Article 30(1) seems to us to be that they clearly contemplate a Minority

institution with a sprinkling of outsiders admitted into it. By admitting a non

member into it the Minority institution does not shed its character or cease

to be a Minority institution.

Therefore when Minority institution receives aid outsiders have to be

admitted. The State while granting aid may prescribe reasonable regulation to

ensure excellence of the institution. The object of conservation of the distinct

language, script, and culture of a Minority may be better served by

propagating the same amongst non - member of the particular Minority

community.
In the case of Saint Stephen College v University of Delhi 93 it was

held that as long as the Minority educational institution permits admission

to of citizens belonging to the non Minority class to a reasonable extent

based on merit. It will not be an infraction of Article 29(2) even though the

institution admits students of the Minority group of its own choice for whom

the institution was meant.

What would be a reasonable extent would depend upon variable factors

and is may not be advisable to fix any specific percentage94. Usually, at the

school level although it may not be possible to fill up all the seats with

students of the Minority group, at higher • either in college or in technical

institutions, it may not be possible to fill up all the seats with students of

Minority group. However even if it is possible the moment the institution is

granted aid the institution will have to admit students of non Minority group

to a reasonable extend, whereby the character of the institution is not

AIR 1992 SC 1630

AIR 1992 SC 1630
 " 168

annihilated and at the same time the of the citizen engrafted under Article 29

(2) are not subverted95

Article 30 (1) is subject to Article 29 (2) competing interest under

Article 29 (2) and Article 30 must be balanced in order to harmoniously

construe both article and give effect to both of them96.

Although Minorities were entitled to accord preference in favor of or

reserve seats for candidates belonging to their own community, yet

preferential admission of candidates could be only up to 50% of the annual

admission to their institution in order to maintain the Minority character of

their institute with respect to the other 50% seats, admission should be open
to all the students based on merit97

In order to make Article 30 (1) workable and meaningful the real de

facto equality has been given in T.M.A. Pai foundation case98 The apex court

observed that the doctrine of real defacto equality envisages giving a

preferential treatment to members of Minorities in the matter of admission in

their own institution. This doctrine will make Article 30(1) workable and

meaningful, but also serve the mandate of Article 29 (2). To hold that receipt

of State aid completely disentitles the management of Minority educational

institutions from admitting students of their own Community to any extent

will be to denude the essence of Article 30. It is, therefore necessary that

Minority be given preferential right to admit students of their own

community in their own institution in a reasonable measure otherwise there

would be no meaningful purpose of Article 30 in the Constitution99

Syed Shah Mohamaed Quadri, J: observed that fixing a percentage

for intake of Minority students in Minority educational institution would

AIR 1992 SCW 1792

Ibid
Ibid
AIR 2003 SC 438
AIR 2003 SC 438
 169

impinge upon the right under Article 30 as it would amount to cutting

down that right. The best way to ensure compliance with Article 29 (2) as

well as Article 30(1) is to consider individual case where denial of

admission of a non -Minority student by a Minority educational institution is

alleged to be volatile of Article 29 (2) and provide appropriate relief100

Hon’ble Apex Court further held that Minority educational Institution

may admit non Minority students to a reasonable extent so that the right of

both Minorities and non Minorities are protected.

However the reasonable extent may be determined by the State

having regard to such factor as ‘the type of institution, course of education,

‘Population’ and educational needs of Minorities. It is farther laid down that

Minority institution are required to admit students having regard to inter-se

merit amongst the applicants. Non Minorities students, who qualify the test,

would be entitled to seek admission against the allotted seats as per their own

respective cumulative merit. (Emphasis supplied)

Preference could be always be given to the students on their own

community. But preference necessarily implies that all other things are equal

i.e. merit of the students of their community is equally to the merit of the

students of other community.

Thus the only interplay between Article 29 (2) and 30(l)is that once

the State aid is taken then student of all communities must be admitted.
In Mark Netto v. Govt ofKerala and other 101 while considering the

question that whether Regional Deputy Director of Public Instructions can

refuse permission to a Minority institution to admit girls students. The court

held that refusal to grant permission to admit a girl student in a boys

Minority institution is violative of Article 30.

Ibid 460
AIR 1979 SC 83
 170

In T.M.A. Pai foundation v State of Karnataka102, the bench

consisting of 11 judges after considering various judicial decision and

looking into the Constitutent Assembly debates through which the

intention of the framers of the Constitution can be determined in enacting

Article 29 and 30 of the Constitution and held that Article 30(1) is subject to

Article 29 (2) It was further observed that Minority institutions receiving

government aid are bound by the Constitutional mandate enshrined in

Article 29 (2) But the right conferred on Minorities under Article 30(1)

would serve no purpose when they cannot admit students of their own

community in their own institution.

Till date not a single case has held that the right under Article 30 (1)

would not be governed by Article 29(2) So on the basis of the principle of

“ stare decisis”, we can conclude that the right under Article 30(1) is a

special right which is given by way of protection so that majority, which is

politically powerful, does not prevent the Minority form establishing their

educational institutions. If the Minority educational institutions choose to

take State aid then must not refuse admission to students of other

communities on any of the grounds mentioned in Article 29 (2).

— o -—

102
AIR 2003 SC 430