Cultural and Educational Rights (Articles 29-30) | Explained

Cultural and Educational Rights (Articles 29-30) | Overview

• Introduction
• Right to Conserve language, script or culture: Article 29
• Difference between Articles 29(2) and 15(1)
• When article 29 (2) does not apply
• Right to Minorities to establish and administer educational institutions: Article 30
• Difference between Article 30(1) and Article 29(1)
• Important and Leading Case Laws

Introduction

The cultural and educational rights are intended to protect the interest of minorities. The Constitution does not define the term “minority”. According to the Encyclopaedia Britannica “minorities” means groups held together by ties of common descent, language or religious faith and feeling different in this respect from the majority of inhabitants of a given political entity.[1] Article 29 applies only to citizens while Article 30 applies to both citizens and non-citizens.

The object behind Articles 29 and 30 is the recognition and preservation of the different type of people, with diverse languages and different beliefs which constitutes the essence of secularism in India. Articles 29 and 30 do not more than seek to preserve the differences that exist, and at the same time, unite the people to form one strong nation.

I. Right to Conserve language, script or culture: Article 29

Article 29 (1) provides that, “Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.” Therefore, Article 29(1) the guarantees the right to conserve one’s own language, script or culture.

To claim this right the following conditions must be satisfied:

1. The right can be claimed by any section of citizens. The right thus belongs to citizens and not to others.
2. That section of citizens must be residing in the territory of India or any part thereof.
3. That section of citizens must have a distinct language, script or culture of its own.

The right contained in article 29 (1) may be exercised by setting up educational institutions and by imparting instructions to the children of their own community in their own language.

Article 29(2) provides that “No citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of the state fund on the ground only of religion, race, caste, language or any of them.”

Difference between Articles 29(2) and 15(1)

Like Article 29(2), Article 15(1) also prohibits discrimination against the citizens. However, there are significant differences between the two:

1. While Article15(1) prohibits discrimination on the ground of religion, race, caste, sex or place of birth, Article 29 (2) prohibits denial of admission to educational institutions aided or maintained by the state on the ground of religion, race, caste or language.
2. Article 15(1) extends against the State, while Article 29(2) extends against the State as well as others, i.e. educational institutions maintained by the State or those belonging to private persons but getting grants-in-aid from the State.
3. Article 15(1) protects all citizens against discrimination generally, while Article 29(2) is protection against particular species of wrongs namely denial of admission to educational institution aided or maintained by the State.
4. Article 15(1) is more general and wider in its operation than Article 29(2). It would apply and cover the area when Article 29 (2) is not applicable. For example, the refusal to admit someone in an educational institution on the ground of sex or a place of birth. Article 29(2) guarantees to every citizen the right to admission to institutions maintained by the State or aided by the State and no citizen can be denied admission to such Institutions on the ground only of religion, race, caste, language or any of them.

When article 29 (2) does not apply

Article 29(2) prohibits denial of admission into educational institutions maintained or aided by the State on the ground only of religion, race, caste or language or any of them. It is, therefore, not attracted in cases where the admission is denied on the ground other than those specified therein. For example, where seats in the educational institutions are reserved by the State Government on the basis of residence or domicile or sex or on the basis of the need of the inhabitants of that State, there would be no violation of Article 29(2).

Application of Article 29(2) does not give permission for violation of other Fundamental Rights. For example, while merely because, as a result of Article 29(2), there is a legal right in members of Hindu community to get admission into the college, would not mean that there is every right under Article 25 to freely profess, practise and propagate their religion within the precincts of the college run by a minority community.

Further, Article 29(2) cannot be invoked for seeking admission into educational institutions getting no grants-in-aid from the State.

II. Right to Minorities to establish and administer educational institutions: Article 30

Article 30 gives protection to religious and linguistic minorities. Article 30(1) provides that all minorities shall have the right to establish and administer educational institutions of their choice. The word “establish” indicates the right to bring into existence, while the right to “administer ” means the right to effectively manage and conduct the affairs of Institution.

Article 30(1A) provides that in case of any property of an educational institution established and administered by a minority being acquired by the State, the State shall ensure that the amount fixed for such acquired property should be such as would not restrict or abrogate the rights of that minority. This provision was added by the 44th Amendment Act of 1978 to protect the right of minorities in this regard. The Act deleted the right to property as fundamental right.

Article 30(2) further prohibits the state from discriminating in granting aid to educational institutions managed by the religious and linguistic minorities.

Thus, the protection under Article 30 is confined only to minorities, religious or linguistic and does not extend to any Section of citizens (as under Article 29). Minority educational institutions are of three types:

1. Institutions that seek recognition as well as aid from the State.
2. Institutions that seek only recognition from the State and not aid, and
3. Institutions that neither seek the recognition not aid from the State.

The institutions of the first and second kind are subject to the regulatory power of the State with regard to syllabus description, academic standards, discipline, sanitation, employment of teaching staff etc. whereas the institutions of the third type are free to administer their affairs but they are subject to the operation of general laws like contract law, labour law, industrial law, tax law, economic regulation etc.

Difference between Article 30(1) and Article 29(1)

The rights guaranteed by Article 30(1) are available only to religious or linguistic minorities, whereas the rights guaranteed by Article 29(1) are available to any section of Indian citizens including the majority.

Article 30(1) does not refer to citizenship as a precondition for entitlement of the rights guaranteed by it, while article 29(1) guarantees the rights only to the Indians.

III. Important and Leading Case Laws

1. St. Xavier’s College v. State of Gujarat

In St. Xavier’s College v. State of Gujarat[2], it was held that minority institutions do not have a fundamental right to affiliation, but to deny affiliation or recognition except upon certain terms and conditions amount of the surrender of their rights to administer under Article 30(1). When a minority institution applies to a university for affiliation, it expresses its choice to participate in the system of general education.

Affiliation is for regulating the educational character and content of minority institutions. These regulations are not only reasonable in the interest of general secular education but also improve the strength of the minority institutions. Therefore, measures which regulate the course of study, the qualifications and appointment of teachers, the conditions of employment of teachers, health and hygiene of students, facilities of libraries and labs, are all compared in matters germane to the affiliation of minority institutions. These regulatory measures for affiliation are for uniformity, efficiency and excellence in educational courses and do not violate rights under Article 30.

2. re Kerala Educational Bill

In re Kerala Educational Bill[3] the Supreme Court held that the fundamental right given to all minorities under Article 30 (1) to establish and administer educational institutions of their choice does not militate against the claim of the State to insist that in granting aid the State may not prescribe reasonable regulations to ensure the excellence of the institutions.

3. N Ahmad v. Emjay High School

In N Ahmad v. Emjay High School[4] it was held that a school which is otherwise a minority school would continue to be so whether the government declared it as such or not. When the government declared the school as a minority School it has recognised a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration.

4. State of Tamil Nadu v. Melapalayam Muslim Megalir Kalvi Sangam

In State of Tamil Nadu v. Melapalayam Muslim Megalir Kalvi Sangam[5] it was held that minorities could not be asked to maintain their educational institutions without State aid. The educational institutions are not business houses. They do not generate wealth and therefore they could not survive without public funds or private aid.

The minorities could not be saddled with the burden of maintaining educational institutions without grant-in-aid. The paucity of finance could not be a valid ground to deny aid to minority institutions. The same view was held in Re Kerala Education Bill case as well.

5. Saint Stephen’s College Delhi v. University of Delhi

In Saint Stephen’s College, Delhi v. University of Delhi[6] the validity of admission program which gave preference to Christian students at 10% relaxation for them by the college was challenged by Delhi University as violative of Delhi University circulars for admission to various courses. It was contended that the college was bound to follow University rules for admission.

The Supreme Court held that the college, being a minority institution was not bound to follow the directions of the university. It may select students for admission by an interview and may not abide by the university rules to select students on the basis of marks obtained in the written examination. It also laid down that up to 50% seats may be reserved for students belonging to the Christian community. Other students may be admitted purely on the basis of merit.

6. TMA Pai Foundation case

This judgement was overruled in TMA Pai Foundation case[7]. In this case, an eleven judge Constitution Bench of the Supreme Court held that the right to establish and administer educational institutions is guaranteed to all citizens and to minorities specifically under Article 30. The rights of minorities under Article 30 cover professional institutions.

Minority communities have a right to establish and administer aided educational institutions whereas institutions which receive State aid could be subjected to government rules and regulations. In respect of unaided institutions, the only regulation a State Government University could make was regarding the qualifications and minimum conditions of eligibility of teachers and principal in the interest of academic standards.

The State could not make any laws regarding admissions fees in such institutions. A minority institution would not cease to be one the moment it was granted aid. An unaided institution would be entitled to have the right of admission of students belonging to that specific minority group. At the same time, it would be required to admit a reasonable extent of non-minority students so that their rights under Article 31A were not substantially impaired, and further citizens’ rights under Article 29 were also not affected.

Minority institutions may have their own procedure and method of admission; however, the procedure has to be fair and transparent. Selection in professional and higher education colleges should be based on merit. In case of aided professional institutions, the State may prescribe that only those persons may be admitted who have passed the common entrance test. Therefore, by holding this the Supreme Court said that the rigid percentage of reservation as prescribed in St. Stephen’s case cannot be stipulated.

In TMA Pai Case, the Court empowered the States to fix quotas for minority students, taking into account the type of institution, population, and educational needs of the minorities. The Court reiterated that the constitutional rights conferred on minorities to establish and administer educational institutions of their choice is not absolute or above other laws.

7. Islamic Academy of Education v. State of Karnataka

Then in the case of Islamic Academy of Education v. State of Karnataka[8] judgement of the Supreme Court, the doubts which arose in TMA Pai Foundation Case were clarified. Here the Court held that an institute will be entitled to have its own fee structure, but there cannot be any profiteering and capitation fees cannot be charged, because imparting of education was an activity which was charitable in nature, and therefore the surplus or profit that was generated had to be put to use for the benefit of that educational institution.

It is said that in order to give effect to the judgement in TMA Pai case the respective state governments what would constitute a separate committee to be headed by a retired judge of the High Court to approve the fee structure of the institutions. It was held that the laws cannot be in such a way that they favour majority institutions over minority ones. Further, the majority of educational institutions would have the same rights as conferred on minority institutions, but they will not have the protection of Article 30. It was further held that the committee constituted would also ensure that the tests conducted for admission were fair and transparent.

8. P.A. Inamdar v. State of Maharashtra

Then came the case of P.A. Inamdar v. State of Maharashtra[9] which further clarified the previous two judgements. Here the court held that “minority” is to be determined by the demography of each state. Each minority institution was entitled to have its own fee structure subject to the condition that there cannot be any profiteering. Minority institutions were held to stand on a better footing than non-minority institutions.

Minority educational institutions would have a guarantee or assurance to establish and administer educational institutions of their choice. The unaided professional Institutions would have full autonomy in the administration but the principle of merit would not be sacrificed. The court, however, clarified that neither can the policy of reservation be enforced by the State nor can any quota of the percentage of admissions be carved out to be appropriated by the State in a minority or non-minority unaided educational institution.

However, this was against what was ruled in the TMA Pai case. Such State imposition would constitute a serious encroachment on the right and autonomy of private professional institutions and also could not be held to be a regulatory measure in the interest of the minority within the meaning of Article 35(1) or a reasonable restriction under Article 19(6). Therefore, P.A. Inamdar case essentially amounted to the nationalisation of seats which was specifically disapproved in TMA Pai case.

In P.A. Inamdar, the Bench still felt that some of the questions remain unanswered after the Pai Foundation case and that such questions need to be answered by a larger bench however they left to posterity. The judgement of Court led the Parliament to enact Article 15(5) which gave the government the right to reserve seats for socially and educationally backward classes.

---

[1] Minority, Encyclopedia Britannica, available at https://www.britannica.com/topic/minority.

[2] 1974 AIR 1389

[3] AIR 1958 SC 956.

[4] (1998) 6 SSC 674.

[5] AIR 1998 Mad 91.

[6] AIR 1992 SC 1630.

[7] TMA Pai Foundation v. State of Karnataka (2002) 8 SCC 481.

[8] (2003) 6 SCC 697

[9] AIR 2005 SC 3226.

---

1. Constitutional Law
2. Right To Constitutional Remedies | Explained