RIGHTS OF MINORITIES TO ESTABLISH AND ADMINISTER

EDUCATIONAL INSTITUTIONS UNDER ARTICLE 30 OF THE

INDIAN CONSTITUTION

SUB-TOPIC: PROVISIONS FOR MINORITY PROTECTION IN

RELATION TO ART. 29 AND ART. 30 OF THE INDIAN
CONSTITUTION

RESEARCH QUESTION: WHAT IS THE PRESENT SCENARIO OF

THE MINORITY GROUPS IN INDIA?

SUBMITTED BY: SUBMITTED TO:

PRIYANKA DR. LAKHWINDER SINGH
18195 (SEC. C) (ASSISTANT PROFESSOR OF
LAW)
GROUP NO. 29

RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

SUBMITTED ON: 10 SEPTEMBER, 2019
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​ACKNOWLEDGMENT

On completion of this project it is my privilege to acknowledge my heartfelt gratitude and

indebtedness towards my teachers for their valuable suggestion and constructive
criticism. Their precious guidance and unrelenting support kept me on the right path
throughout the whole project and very much thankful to teacher in charge and project
coordinators for giving me this relevant and knowledgable topic.

I wish to express my sincere gratitude and encouragement in carrying out this project
work. I also wish to express my thanks to my group members and my friends for their
ideas because of which this project became more captivating. I am also thankful to my
institutional library for providing a broad range of books to learn more.
 CONSTITUTIONAL LAW I - PROJECT

​ SUPERVISOR’S CERTIFICATE

Dr. Lakhwinder Singh Place: Patiala, Punjab

Date: 10 September, 2019 Rajiv Gandhi National University of Law, Punjab

This is to certify that the Dissertation entitled: Constitutional Law Project: “Rights of
minorities to establish and administer educational institutions under article 30 of the
indian constitution”, submitted to Rajiv Gandhi National University of Law, Punjab in
partial fulfillment of the requirement of the BA.LLB (Hons.) course is an original and
bonafide work carried out by Ms. Priyanka under my supervision and guidance. No part
of this project has been submitted to any university for the award of any degree.

Dr. Lakhwinder Singh

(Supervisor)
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​ ​INDEX

​S.NO. ​TOPIC

1. STATEMENT OF PROBLEM

2. INTRODUCTION

3. CONCEPT OF MINORITY
- EXCLUSIVE RIGHTS OF MINORITIES
- CLASSIFICATION OF MINORITIES UNDER ARTICLE 30

4. PROVISIONS UNDER INDIAN CONSTITUTION FOR

MINORITIES

5. CLASSIFICATION OF MINORITY EDUCATIONAL

INSTITUTIONS

6. EXTENT OF GOVERNMENT CONTROL OVER MINORITY

INSTITUTIONS

7. CRITICAL APPRAISAL OF ARTICLE 30

8. SUGGESTIONS

9. CONCLUSION
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1. STATEMENT OF PROBLEM
From previous times, ancient India is considered to be a land of minorities which is of
various groups- racial, religious, linguistic and cultural. The most important task before
the constitution makers was to construct a constitutional arrangement that protects
number of minorities from discrimination and promises to safeguard those characteristics
which have divided them apart from the rest.
The not so clear idea of minority rights of establishment and administering educational
institutions promised in good faith has now taken such a root in India that it has become
the prime source of inequality. The object of the study is to deal with the present scenario
of the minority groups in India. The essence of Article 30 lay in its intendedness to
ensure are not discriminated against or denied equal treatment. But in practice it begin to
mean that non-minority institutions can be denied the right to “establish and administer”
institutions in their own way. India as a nation of minorities, should be driven by
universal rights, not by the minority rights.

2. INTRODUCTION
The protection of the religious and ethnic minority rights comprises the backbone of
India’s secular values. It’s Article 30 of the Constitution of India amongst many other
provisions that ensure preservation of minority rights. Article 30 is classified under Part
III of the Constitution of India and it throws light on the fundamental rights provided to
the Indian citizens irrespective of their caste, religion and sex etc.

CONSTITUTIONAL PROVISIONS RELATING TO MINORITY RIGHTS:

It is praiseworthy that our Constitution of India has afforded protection to the minorities
in the country. The framers of the Constitution were quite conscious of the importance of
these provisions In Indіa, the safeguards for mіnorіtіes under the constіtutіon of Indіa are
іn the form of fundamental rіghts.1 Fіrstly the Constіtutіon nowhere dіscrіmіnates among
the cіtіzens of Indіa on the grounds of relіgіon, race, caste, etc and secondly, the rіghts
conferred under Artіcles 25 to 30 are fundamental rіghts. The State іs duty bound to
protect the fundamental rіghts.

1
Basu Durga Das Dr, ​Commentary on the Constitution of India;​ Lexis Nexis
Butterworths Wadhwa- Nagpur, Eighth Edition 2008, p. 132
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There are some Articles in the Constitution of India that exclusively safeguards
minority’s rights, whereas, there are certain Articles though not
2
specifically meant for minorities but they strengthen minorities’ rights .
Article 14 (Equality before law), Article 15 (Prohibition of discrimination on the grounds
of religion, race, caste, sex or place of birth), Article 16 (Equality of opportunity in
matters of public employment), Article 21 (Protection of life and personal liberty),
Article 25 (Freedom of conscience and free profession, practice and propagation of
religion), Article 26 ( Freedom to manage religious affairs), Article 27 (Freedom as to
payment of taxes for promotion of any particular religion), and Article 28 (Freedom as to
attendance at religious instruction or religious worship in certain educational institutions)
are some of such articles safeguarding minority rights.

Article 30 allows minorities to establish and administer educational institutions. Article

30 has two clauses:
Article 30 (1) promises to all linguistic and religious minorities the right to establish and
administer education institutions of their own choice. The word “establish” indicates the
right to bring into existence and the right to administer an institution means the right to
manage and conduct the institutional affairs effectively.
Article 30 (2) restricts the state from making discrimination in the matter of providing
help to any education institution on the ground that it is managed by a religious or
linguistic minority.

3. CONCEPT OF MINORITY
The word “minority” is derived from the Latin word “minor”and the suffix “ity” which
denotes ‘small number’. The Indian constitution uses the word minority but does not
define it.
Art. 29 of the Indian constitution speaks about “any section of the citizens inhabiting the
territory of India or any part of the country” should have the right to protect their
language or script or culture which is different and varied.
Section 2 © of the National Commission of Minorities Act declares six communities as
minority communities. They are Muslims, Christians, Buddhists, Sikhs, Jains and
Zoroastrians (Parsis). Article 30 which we are dealing talks only about religious and
linguistic minorities.

EXCLUSIVE RIGHTS OF MINORITIES:

2
​ kshar Prakashan, Mumbai, 1996, p. 41.
Bakshi P.M., ​The Constitutional Law of India, A
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India is the largest democracy of the world with secular character and is governed by the
constitution. The founding fathers of the Indian Constitution, in order to give a sense of
security and confidence to the minorities, have conferred Chapter IV certain rights to
minorities.3 Minorities in India do not stand on equal footing with others, which made the
framers of the Constitution, through Article 29 and Article 30, accord special rights to the
people who form religious or linguistic minority in India.

CLASSIFICATION OF MINORITIES UNDER ARTICLE 30:

Religious minorities
Muslims, Buddhists, Sikhs, Jains, Christians and Zoroastrians are the six community
groups existing in India. The numerical strength of the community is the basic ground for
a community to be nominated as a religious minority. For example, in India, Hindus are
the majority community.

Linguistic Minorities
Group of people whose mother tongue is different from that of minority groups is known
as linguistic minorities. Article 350-A of the Indian constitution obliges states to provide
enough facilities for instruction in the mother language at the primary level education to
children belonging to the linguistic minority community.

4. PROVISIONS UNDER INDIAN CONSTITUTION FOR MINORITIES

ARTICLE 29
Article 29(1) provides the right to conserve their language, script or culture to the citizens
living in any part of the country having different language, script, culture of its own. The
right to establish and hold and keep establishments of their very own desire is vital
belonging to the right to conserve its exclusive language, script or culture.
Art. 30(1) of the constitution guarantees the right to the minorities. The right is moreover
conserved by Art. 30 (2) which shelters state in providing help to the educational
institutions on the basis that it is under the minority governance, whether it is based on
religion or language. This right is although subject to clause (2) of Article 29, shall not be
disallowed to take admission in any educational institution that is under state supervision
or getting help out of state funds on the basis of religion, race, caste etc.

3
​Imam
Mohammed, ​Minorities and Law, T ​ he Indian Law Institute, New Delhi and N. M.
Tripathi Private Limited, Mumbai, First Edition, 1972, p. 62.
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Article 29 is applied only to citizens while art. 30 applies to both non-citizens and
citizens.4
In ​S.P. Mittal v. Union of India5, t​ he reasonableness of Auroville (Emergency
Provisions) Act, 1980 was questioned by the community on the basis that it was
infringing the rights guaranteed under Art. 29 and 30 of the Indian constitution. It was
thereby stated by the Supreme Court that the benefit of Article 30 can only be demanded
by the religious or linguistic minority community and their organisation. Since the
Auroville community was not the religious or linguistic minority one and it was
established in Pondicherry to spread the ideals of Sri Aurobindo and mothers through its
various centres in India and abroad. Taking over their designation based on their religion
does not constitute to the violation of Article 29 & 30.
In ​D.A.V. College Jullunder v State of Punjab case6 , it was held that where a legal
provision required the Guru Nanak University to promote studies and research in Punjabi
language and literature, and to undertake measures for the development of Punjabi
language, literature and culture, did not infringe Article 29(1). The Supreme Court had
emphasized that the purpose and object of the linguistic States, which has come to stay in
India, is to provide greater facility for the development of the people of the area
educationally, socially and culturally in the regional language.7

ARTICLE 30
Art. 30(1) : It assures the right to establish educational institutions of their personal
choice and to administer or effectively manage the institutional affairs. It enables the
institution establishers to give shape to the institutions according to their thinking and
ideas so as to serve and protect the interests of the community as a whole. It grants them
the freedom to exercise their right and conserve their respective religion, language and to
provide their children education in their own language.

Right to establish educational institution:

The right to establish under article 30(1) means the right to establish real institution that
will effectively serve the need of their community and the scholars who resort to them.8
The minority is not required to seek prior permission for the establishment of an

4
D.R.Singh, “​Cultural and Educational Rights in India"​ , in G.S.Sharma (ed.), Qp.cit., p.136.
5
1983 AIR , 1 1983 SCR (1) 729
6
AIR 1971 SC 1737
7
​ aqin A., ​
Y Constitutional Protection of Minority Educational Institutions in India, D ​ eep
and Deep Publications, New Delhi 1986, p. 52​.
8
Re Kerela education bill,​ AIR 1958 SC956
​​
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educational institution. Article 30(1) does not require that the whole community must
have been involved in establishing educational institution. Again, where funds, were
obtained from abroad for assisting in setting up and developing a school, which was
established by a minority in India, or that the management as is carried on at times by
some persons who are not born in India, can be no ground to deny to the school the
protection of article 30(1).10 Likewise, the fact that the school was successively having a
non Christian headmaster does not lead to conclusion that it was not established by the
Christians.

Right to administer educational institution

A minority can claim a right to administer an educational institution only if it has been
established by it not otherwise. Article 30(1) postulate that the religious community will
have the right to establish and administer educational institution of their own choice i.e.
where a religious minority establishes an educational institution, it will have the right to
administer that. The right to administer has been given to the minority so as it can mould
the institution in accordance with its ideas of how the interest of the community and
institution in general, will be served best. For the purpose of article 30 (1) even a single
philanthropic individual from the community concerned can found the institution with its
own means.

Limits of the Right to Administer :

Though article 30 itself does not put any limitation upon the right of a minority to
administer its educational institution, this right is not absolute and it must be subject to
reasonable regulation for the benefit of the institution as the vehicle of education for the
minority community, consistent with the national interest such as
- To prevent anti-national activity;
- To enforce the general laws of land, applicable to all persons, e.g., taxation, sanitation,
social welfare, economic regulations, public order, morality.
- To prescribe syllabus, curriculum of study and regulate the appointment of teachers.
- To ensure efficiency and discipline of the institution.

D.A.V College, Bhatinda v. State of Punjab11, i​ t was ordered by the University that
In ​
Punjabi would be the only medium of instruction in affiliated colleges. The Court held

9
​Socio Literati Advancement Society Bangalore v. State of Karnataka,​ AIR 1979
Karn.217
10
​Bishop S.K Patro v. State of Bihar,​ AIR1970SC 259
11
1971 AIR 1731, 1971 SCR 677
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that the right provided to minorities under Article 30 guarantees them to establish and
administer educational institutions of their own choice including the right to instruct in
their own language and the University Circular was directly violating their right to have
instructions in Hindi as their own language and thus infringing Art. 30 (1). A University
possesses the authority to suggest the academic staff qualification but the selection and
recruitment of teachers remains in the hands of the minority educational institutions.
Article 30 (2) restricts a state from discriminating any minority section on religious or
linguistic grounds in the matter of providing help to any educational institutions run by
them.
In ​Bramchari Sidheswar v. State of West Bengal12 (​ Ram Krishna Mission case),
Supreme Court decided that Swami Vivekananda established Ram Krishna Mission to
propagate ideas of Vedanta as explained by Ram Krishna is not considered a religion
under minority community but it’s a branch of Hindu religion. Thus, they aren’t able to
exercise the fundamental rights as provided under Art. 30 (1) of the Indian Constitution.
Three judge bench of Justice N. Venkatchara, Justice Kuldip Singh and Justice S. Saghir
Ahmed decided not to consider the Calcutta High court judgement declaring Ramkrishna
Mission different from Hindu religion and that’s why should be considered as minority
religion in West Bengal.
In ​re Kerala Education Bill case13 Supreme Court held that Article 30(1) covers
institutions imparting general secular education. The object of Article 30(1) is to enable
children of linguistic and religious minorities to go out in the world fully equipped.
Protection guaranteed to minority under Article 30 is to preserve
and strengthen the іntegrіty and unіty of the country.
As per the Article 13 of the Constitution of India, a State is barred from making any law
abridging or limiting any of the fundamental rights guaranteed under chapter III of the
Constitution of India. It threatens to veto the laws found inconsistent with the
Fundamental Rights.
A number of provisions in the Constitution of India provide protection of interest of the
linguistic minorities. These are:
(1) Art. 345 of the Indian Constitution states very clearly that "Subject to the provisions
of Articles 346 and 347, the Legislature of a State may
by law adopt anyone or more of the languages in use in the State or Hindi as the language
or languages to be used for all or any of the official purposes of that State"

12
1995 AIR 2089, 1995 SCC (4)
13
AIR 1958 SC 956
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Special provisions have also been made under Articles 350A and 350B to provide smaller
communities educational opportunities in their mother tongue and to appoint a special
officer for linguistic minorities.

5. CLASSIFICATION OF MINORITY EDUCATIONAL INSTITUTIONS

Minority Educational Institutions are categorised into recognized and unrecognized
institutions. Institutions like schools and colleges that provide secular education are
generally recognized by the government, where as informal centers of education like
Madrasas, Bible colleges, etc are unrecognized. Recognized schools and colleges are of
two kinds Viz: Aided and Unaided. Aid schools and colleges means financial assistance
is granted to the said schools or colleges by the Central government, State government or
any funding agency established by the government. Unaided schools and colleges are the
one which do not receive any funds from the government and they manage the
institutions by the funds generated by them. It would be pertinent to understand the kind
of Educational Institutions run by Minority Community.
Recognized – means an institution recognized by an appropriate authority where
‘appropriate authority’ can be defined as administrator or any other officer authorized by
Central or State government.
Aided schools or colleges ​– means a recognized school or college which is receiving aid
in the form of maintenance grant from the central government, administrator or local
authority or any other authority designated by the central government, administrator or a
local authority.
Unaided schools or colleges – means a recognized school or college, which does not
receive any aid.
In terms of government regulations also, there is difference between aided and unaided
institutions
1) State can’t impose its reservation policy on minority and non-minority on unaided
private colleges including professional colleges.
2) Up to the level of undergraduate education, the minority unaided educational
institution enjoys total freedom.
3) However, different considerations would apply for graduate and postgraduate level of
education as also for technical and professional educational institution i.e. such education
cannot be imparted by any institution unless recognized or affiliated by any competent
authorіty created by law such as unіversіty, board, central or state government or alike.

The Indian Parliament on the 17, May 1992 passed the National Commission for
Minorities Act, ordering the Central Government to constitute a body, called the National
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Commission for Minorities. In 2004 National Commission of Minority Educational
Institutions Act was enacted to ensure that the rights guaranteed to minorities were
effectively implemented.

6. EXTENT OF GOVERNMENT CONTROL OVER MINORITY INSTITUTIONS

The management of the institution and the Government requires a regular check and
cooperation amongst it. Classes arises between them due to their varied interests and
motives. The different explanations of Art. 29 and 30 is another reason for clashes among
the institution and the government. Control on the minority institutions by the
Government is must to prevent misuse or exploitation of the rights of people or
employees under those institutions. The control will help maintain the standards requires
in the institutions. The State has authority to frame directive policies for the organisation
and keep an eye for the effective management and functioning of the institutions.
In many cases, it was held that Government can’t interfere in the functioning of the
institutions as it leads to infringement of the minority rights under the Art. 30 of the
Indian Constitution.
In ​TMA PAI v. State of Karnataka14, ​the judgment stated was,”.......it was suggested that
the State does have the right to intervene or make policies related to administration of
minority institutions. Particularly, protest was taken to the nomination by state on the
administration of private institutions , to provide rights regarding admission to students,
setting up fee structure, appointing faculties by channels of the state.”
The minority community run institutions spreading formal education falls under the
formal education system of India. The extent of Article 30 also includes right to
recognition and affiliation. The clarification of Supreme Court judgements concludes that
these rights are not perfect or complete. Justice Reddy stated that, “the only motive
behind the fundamental right guaranteed under Art. 30 (1) is that the minorities has the
authority to bring their institutions into existence, make their own terms and policies etc.”

7. CRITICAL APPRAISAL OF ARTICLE 30

Article 30, considered to be a mixture of the advantages as well as the limitations. on one
side and it guarantees special immunity and advantages to the minorities of the nation, on
the other side it includes some disadvantages also. The limitations consist of the
Government role. It have to provide such position and incorporation or affiliation to those
minority groups who are attempting to obtain the affiliation. The committee known as
the National Commission for Minority Education Institution will be formed to give final
and unbreakable decision, recommend powers, authority and to give advice.

14
AIR 1994 SC 13
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During the rule of the United Progressive Alliance (UPA) government, some of the
central universities were provided direct and immediate incorporation. During UPA
government the states under the rule of the Bhartiya Janata Party (BJP) were hugely
differentiated and harassed many minority educational institutions due to the objection of
the BJP to the provisions guaranteed under Article 30 of the Indian Constitution.
Article 30 provides certain educational rights to minority institutions but also results in
disadvantages to the Hindu and other majority institutions. There is no government
interference over the management of educational institutions run by the minority
community. Article 30 of the Indian constitution releases the minority institutions to
maintain the criteria of reserving 25% of the seats for the poor according to Right to
Education Act and it is again contradictory to the fundamental rights as guaranteed under
the Constitution of India.
Additionally, Clause 1(A) of Article 30 discharges the minority institutions from the
obligation to carry out the implementation of the reservation policy for the backward
classes and again it infringes the rights of the backward classes as provided by the Indian
Constitution. It is preventing the non-minority groups to exercise their right of formation
and management of their institutions properly.
The one more instance of the discrimination of non-minority institutions is the autonomy
of minority groups which exempts them from government control and non-minority
groups again has to face the government intervention and control over their institutions.
This creates and imbalance between both the communities.

8. SUGGESTIONS
Since the question as to who is a religious minority or what conditions must be satisfied
by a group for being entitled to be recognised as minority is neither clear nor uniform, it
is high time for the judiciary to answer the said questions in unequivocal terms.
Otherwise, an amendment to Article 30 is required defining the term minority in the light
of the intention of the framers of the Constitution of India. the minority status. of
linguistic group has to be ascertained in terms of the population of any particular State
irrespective of its being a numerical minority in terms of the population of the whole
country. It is desirable that the State has to constitute an authority preferably the
Minorities Commission, with proper guidelines to issue a minority certificate to all the
groups which claim to be entitled to the right under Article 30(1) of the Constitution.
Courts have reiterated through many judicial pronouncements that standards of education
are part of art. 30, it will be necessary for the judiciary to have a watchful eye on the
extent of the regulatory power of the State on the right of minorities to establish and
administer educational institutions, in accordance with the principles already enunciated
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15
and applied. As regarding admissions in minority' educational institutions, it is
suggested that the entire seats should be reserved to the students belonged to the
particular minority" community, and the admission should be on the basis of merit as
determined in a joint common entrance test or the qualifying examination as the case may
be. As regarding the appointment of the staff, it is permissible for the State to prescribe
the qualification of teachers.

9. CONCLUSION
The current scenario of Article 30 is very depressing as it only frames out a tolerating
behavior of government towards the minority institutions rather than an encouraging one.
This is because the minority institutions have absolute autonomy on the institutions run
by them and government authorities have no right to interfere in their management
activities and they cannot control the workings of the minority institutions. Non-minority
institutions have to face a greater amount of government intervention and control and are
not able to exercise their right of creating and managing their institutions properly which
becomes the main reason for the discrimination among both the minority and
non-minority groups. The reason behind the provision for the minority communities was
only to provide them equal treatment in the aspects of establishing and managing the
affairs and activities of the educational institutions run by them. The provision has now
turned into a disadvantage for the non-minority groups and the minority groups are under
complete autonomy regarding the matter of establishing and administering educational
institutions of their choice. Article 30 is creating a communal imbalance in the society
and preventing the non-minority groups to exercise their right to establish and administer
educational institutions properly as they have to follow all the orders and confront the
restrictions and obligations imposed by the government

10. BIBLIOGRAPHY

BOOKS
1. Prof. M.P. Jain, Indian Constitutional Law, Wadhwa Publisher Nagpur, 5th
edition reprint 2006.
2. Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 43rd edition,
2006.
3. P.M. Bakshi, The Constitution Law of India, Universal Law Publishing Company,
8th edition.

15
Hidayatullah, C.J. observed in ​State of Kerala v. Mother Provincial ​A.I.R. 1970 s.C.
2079 at 2082; ​St.Xavier vs State of Gujarat ​AIR- 1974 S.C. 1389
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4. Yaqin A., ​Constitutional Protection of Minority Educational Institutions in India,
Deep and Deep Publications, New Delhi 1986, p. 52​.
5. D.E D.J, The Constitution of India, ( Hyderabad , Published by Asia Law House,
Edition 2002, vol.1) 7. Shukla V.N​, Constitution of India ( Lucknow, Published by
Eastern Book Company, Edition 2001)

​ EBSITES
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1. https://www.eurac.edu/Press/Publications/Monographs/0059701.htm
2. http://pd.cpim.org/2004/1226/12262004_ragesh.htm
3. http://www.hinduonnet.com/2002/12/17/stories/2002121700891000.htm-20k