CONSTITUTIONAL LAW I PROJECT ON MINORITY

RIGHTS

Submitted By- ROHIT S.

5th Semester

Reg. No. – 201291

Submitted To-

Mr. A Nageswara Rao

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 ACKNOWLEDGEMENT

The present project on “Minority Rights” able to get its final shape with the support and
help of people from various quarters. I am proud to acknowledge gratitude to the individuals
during my study and without whom the study may not be completed. I have taken this
opportunity to thank those who genuinely helped me in the completion of this project many
people helped us directly and indirectly. First of all we would like to thank my university i.e.
DAMODARAM SANJIVIYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAM,
who gave us the idea and encouragement to venture into this project.

I am grateful to our Constitutional Law faculty Mr. A Nageswara Rao who gave us the
opportunity to make a project on this topic.

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 INDEX

Page No.
1. List Of Cases…………………………………….…………………4
2. Protection Of Interests Of Minorities…………...………………..5-6
3. Right Of Minority To Establish Educational Institutions……….6-8
4. Acquisition Of Property Of A Minority Educational Institution....9
5. Regulation Of Minority Educational Institutions…………….....10-11
6. Legal Framework For The Protection Of Religious Minorities…12
7. Other Constitutional Safeguards For Minorities…………………..12-13
8. Bibliography………………………………………………...………14

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 LIST OF CASES

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

2. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481
3. State of Bombay v. Bombay Educational Society, AIR 1954 SC 561
4. Ravneet Kaur v. Christian Medical College, Ludhiana, AIR 1998
5. Society for Un- Aided Private Schools of Rajasthan v. Union of India, AIR 2012 SC
34459 (3446)
6. D.A.V. College, Jullundur v. State of Punjab, AIR 1971 SC 1737
7. Kerala Education Bill, AIR 1958 SC 956
8. Society of St. Joseph’s College v. Union of India AIR 2002 SC 195
9. W. Proost v. State of Bihar AIR 1969 SC 465
10. Indulal Hiralal Shah v. S.S.Salgaonkar, AIR 1983 Bom 192.
11. Sidhrajbhai v. State of Gujrat, AIR 1963 SC 540
12. St. Stephe’s College v. University of Delhi, 152 (2008) DLT 228.
13. P.A.Inamdar v. State of Maharashtra , (2005) 6 SCC 537
14. Thomas Shingare v. State of Maharashtra , AIR 2002 SC 463
15. Sate of Bombay v. Bombay Educational Society, AIR 2005 SC 3226
16. S.Aneez Basha v. Union of India, AIR 1968 SC 662

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PROTECTION OF INTERESTS OF MINORITIES

According to Article 29 (1), any section of the citizens residing in any part of India having a
distinct language, script or culture of its own has the right “to conserve the same”. This
constitutional provision, therefore, protects the language, script or culture of a section of the
citizens, residing in India should have a invoke Art. 29(1), all that is essential is that a section
of the citizens, residing in India should have a distinct language, script or culture of its own.
If so they have to conserve the same.

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

(i) Scope of Article 29(1) – Article 29(1) includes the right “to agitate for the protection
of the language.” The right conferred upon the citizens to conserve their language,
etc., is made absolute by the Indian Constitution and it is not subjected to any
reasonable restrictions.

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

schools run by the linguistic minorities was questioned in Usha Mehta v. State of
Maharashtra.2 The right of minorities to establish and administer educational institutions of
their choice under Art. 30(1) read with Art 29(1) would include the right to have a choice of
medium of instruction in imparting education.

(ii) Generality of Article 29(2) – Article 29(2) is broad and unqualified. It confers a
special right on all citizens for admission into the state maintained or aided
educational institutions. To limit this right only to minority groups will amount to
holding that citizens of the majority group have no right to be admitted into an
educational institution for the maintenance of which they contribute by way of taxes.3
To enforce the restrictions laid down in Art 29(2), a High Court can issue a writ under
Art. 226 even against a private institution receiving aid from the state cannot
discriminate on grounds of religion, caste, etc.4

1
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481
2
(2004) 6 SCC 264
3
State of Bombay v. Bombay Educational Society, AIR 1954 SC 561
4
Ravneet Kaur v. Christian Medical College, Ludhiana, AIR 1998

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 Denying admission, even though seats are available, on the ground of the applicant’s
religion, race, caste or language, is prohibited, but preferring students of minority groups
does not violate Art. 29 (2).

RIGHT OF MINORITY TO ESTABLISH EDUCATIONAL

INSTITUTIONS

(i) Article 30(1) gives the linguistic or religious minorities the following two rights:
(a) The right to establish, and
(b) The right to administer educational institutions of their choices.

The real importance of Article 29 (2) and Article 30(1) is that they contemplate a minority
institution with a sprinkle of outsiders admitted into it. By admitting a non member into the
minority institution does not shed its character and cease to be a minority institution.5

The expression “educational institution” means institutions that impart education, including
education at all levels from the primary school level up to the postgraduate level as also
professional education. The minorities have been given protection under Art. 30 in order to
preserve and strengthen the integrity and unity of the country. The sphere of general secular
education will develop the commonness of boys and girls in India.

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

Article 30(1) uses the term linguistic or religious minorities. The word ‘or’ means that a
minority may either is linguistic or religious and that it does not have to be both- a religious
minority as well as linguistic minority. A linguistic minority is one which has separate
spoken language. It is not necessary that that language should also have a separate script of
their own, but nonetheless, people speaking such a language will constitute a linguistic
minority to claim protection of Article 30(1).6

A linguistic Minority for the purposes of Article 30(1) is one which has a separate language.
The Constitution uses the term ‘minority’ without defining it. The ruling in the Kerala
Educational Bill has been reiterated by the Supreme Court in the Guru Nanak University
case.

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

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(iii) Right to establish and administer educational institutions-
The words ‘administer’ and ‘establish’ in Article 30 (1) have to be read conjunctively.
Therefore a minority can claim a right to administer an educational institution only if
it has been established by it but not otherwise.A religious minority cannot claim the
right to administer an educational institution established by it only and not by
someone else.
Article 30(1) postulate that the religious community will have the right to establish
and administer educational institutions of their choice meaning thereby that where a
religious establishes an educational institution, it will have the right to administer that.

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

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

case7 on minority educational institutions by an 11-member Constitution Bench of the
Supreme Court represents a watershed in the Court’s thinking. The Supreme Court seems to
be in favour of freeing minority educational institutions from Government control excepting
to maintain academic standards through prescribing qualifications for teachers and minimum
eligibility for students. Its judgement can be summarized as follows: -

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

unaided minority educational institutions cannot be regulated at all by a State or University if
the procedure is transparent and merit-based. The right to admit students is part of the right to
administer educational institutions.

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

reasonable extent of non-minority students so that therights under Article 30(1) are
substantially maintained while the citizens' rights under Article 29(2) are not infringed. What
would be a reasonable extent would vary depending upon the types of institutions, the
courses of education for which admission is being sought, the educational needs of the
minorities and similar factors. This (percentage of non-minority students) is for the State
Government concerned to determine and notify. In the case of aided professional institutions
it can also be stipulated that passing of the common entrance test held by the State agency is
necessary to seek admission unless specifically exempted otherwise.

7
(2002) 8 SCC 481

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(3) Regarding the procedure and method of admission of students minority educational
institutions totally free of Government/University control, provided the method employed is
fair, transparent and merit-based. In the case of aided institutions the Government or the
University can even ask for due consideration to be given to the weaker sections of society in
the admission process.

(4) While the court recognises the charitable nature and service goals of education, it allows
the authorities full freedom to collect fees and charges they find appropriate in unaided
educational institutions, the only caveat being that they should not appear to be charging
capitation fee for profiteering.

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

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

(6) Any regulation framed in the national interest must necessarily apply to all educational
institutions, whether run by the majority or the minority.

In the famous case of five bench judges of S.Aneez Basha v. Union of India, AIR 1968 SC
662 it was observed that the Aligarh Muslim University was established by a statute. It could
not be therefore said to have been established by the Muslim community. No degree granting
institution can be established in India without statute. Accordingly the validity of statute
regulating administrative arrangements in the University could not be adjudged under Article
30(1).

ACQUISITION OF PROPERTY OF A MINORITY EDUCATIONAL

INSTITUTION

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The Constitution 44th Amendment enacted in 1978 added Article 30 (1A) to the Constitution
which seeks to protect the minority rights. Article 30 (1A) became necessary because Article
31 was being abrogated from the Constitution.

The state has a right to acquire property belonging to a minority institution. This provision
seeks to protect minority rights somewhat in this regard but the actual implications of Article
30 (1A) are not clear. In Society of St. Joseph’s College v. Union of India AIR 2002 SC 195
the Court has pointed out that Article 30(1A) has been introduced in the Constitution because
Parliament in its constituent capacity apprehended that minority educational institutions could
be compelled to close down or curtail their activities by the expedient of acquiring their
property and paying them inadequate amounts as compensation.

RELATION BETWEEN ARTICLE 29 AND 30

There is a close affinity between both the articles. A minority community can best
conserve its language, script or culture through educational institutions, for it is through
education that the language and culture of a minority can be inculcated into the minds of
the children of the community. The right to establish and maintain educational institutions
of its choice by a minority is therefore, concomitant to its right to conserve its distinctive
language, script or culture and that is what is envisaged by Article 30(1).
In W. Proost v. State of Bihar 8 the Supreme Court ruled that Article 29 and 30 create two
separate rights and that the width of the Article 30(1) cannot be cut down by introducing
in its considerations on which Article 29(1) is based. The advantage of Article 30 is
available to all the minority educational institutions and not only to those whose object is
to conserve or promote the language of the minority.9
In Sidharajbhai v. State of Gujarat, Shah J. refused to accept that all regulatory measures
which were not wholly destructive or annihilate of minority rights were valid so long as
they sub served the public interest. Emphatically propounding a new, but delicately
balanced, approach, he insisted that any “Regulation must satisfy a dual test- the test of
reasonableness, and the test that it is regulative of the educational character of the
institution and is conductive to making the institution an effective vehicle of education for
the minority community or other persons who resort to it.” If this salutary decision had
8
AIR 1969 SC 465
9
Indulal Hiralal Shah v. S.S.Salgaonkar, AIR 1983 Bom 192.

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 been followed in letter and spirit, the later jurisprudence of the Court in this area would
have been much clearer and more palatable to the cause of protecting minority rights.

REGULATION OF MINORITY EDUCATIONAL INSTITUTIONS

The regulation basically includes the government grant or recognition for the means of
establishing effective institution with certain conditions, where the actual selection of the
teachers must remain in the hands of the administration of the institution.

Government Grant and Recognition- At present the situation is such that an educational
institution cannot possibly hope to survive and function effectively, without government
grant nor can it confer degrees without affiliation to a University. The students of
unrecognised institutions can neither get admission in institutions of higher learning nor
can they enter public service.
 In re Kerala Education Bill, the Supreme Court opined that while it was easy to say
that minority meant a community which was numerically less than 50%, the important
question was 50% of what – the entire population of India, or of a State, or a district, a
town, a municipality or its wards. A community may be in a majority in a State but in a
minority in the whole of India. The Court did not however decide this point definitively.
However, it has come to be accepted that ‘minority’ is to be determined only in relation to
the particular legislation, which is being challenged. Thus, if a State law extending to the
whole of the State in question, the minority must be determined with reference to the
entire State population. In such a case, any community, linguistic or religious, which is
numerically less than 50% of entire State population, will be a minority for the purposes
of Article 30(1). It is within the realm of possibility that the population of a state may be
so fragmented that no linguistic or religious group may by itself constitute 50% of the
total state population. In such a situation, every group will fall within the umbrella of
Article 30(1) without there being a majority group in the state against which minorities
need to claim protection.

In re Kerala Education Bill, 1957, Supreme Court held that right to administer cannot
obviously include the right to maladministration. The constitutional right to administer an
educational institution of their choice does not necessary militate against the claim of the

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state to insist that in order to grant aid the state may prescribe reasonable regulation to ensure
the excellence of the institutions to be aided.

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

condition of receiving grant or of recognition must be directed to making the institution while
retaining its character as a minority institution effective as an educational institution. The idea
of giving some special rights to minorities is not to have a kind of privileged or pampered
section of the population but to give to the minorities a sense of security and feeling of
confidence.

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

without qualified teachers or which does not maintain any fair standard of teaching cannot
claim to be recognised.10Regulations can also be made providing for inspection or injury in
respect of school buildings, labs, etc. and the mode and manner of inspection and inquiry and
furnishing returns, statics and that information to the competent authority by the school
management.

Composition of Managing Bodies- Under the Kerala University Act, 1969, governing
body was to be constituted for each private college consisting of 11 members of whom 6
were to be nominated by the body which established or maintained that college. The
statutes made by a University required that an affiliated college should have a regularly
constituted governing body consisting of not more than 20 persons approved by the
Senate including among others, two representatives of the University and the principal of
the college as an ex officio member.

Appointment Of Teachers – The Gujarat University Act prescribed that for selection of the
Principal and the teachers of a college, there should be a college selection committee having a
representative appointed by the Vice- Chancellor. The Supreme Court held that the provision
could not apply to minority colleges as there was no guidance in the Act as to what type of
persons could be nominated as the representative of the Vice Chancellor.11

10
Sidhrajbhai v. State of Gujrat, AIR 1963 SC 540
11
St. Stephe’s College v. University of Delhi, 152 (2008) DLT 228.

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Salary of Teachers- The Supreme Court has observed that an excellence of the instruction
provided in an institution depends directly on the quality and contentment of the teaching
staff. Minority institutions cannot exploit the teaching community.12

Admissions of Students – The right of the minority institution to admit students of its own
community is a necessary concomitant right which flows from the right to establish and
administer educational institutions in Article 30 (1).

(i) Fees- There is also the question of fees chargeable by the unaided minority
institution from its students. It is clear that unaided minority institutions cannot be
made to charge the same fees as an unaided institution. The reason is that the
unaided institution has to meet the cost of imparting education from their own
resources and the main source can only be the fees collected from the students.
Commercialisation of education is not permitted.13
(ii) Medium of Institution- The right of minority to establish and administer
educational institutions of its choice also carries with it the right to impart
instruction in its children bin its own language.14

LEGAL FRAMEWORK FOR THE PROTECTION OF RELIGIOUS

MINORITIES

With a view to evaluating progress and development of minorities, monitoring the working
of safeguards provided to them under the Constitution and laws, etc, the central government
had constituted a non-statutory Minorities Commission in 1978. In 1992 the National
Commission for Minorities Act was enacted to provide for constitution of a statutory
commission along with some major functions.

OTHER CONSTITUTIONAL SAFEGUARDS FOR MINORITIES

The other measures of protection and safeguard provided by the Constitution in Part III or
elsewhere having a bearing on the status and rights of minorities are:

12
P.A.Inamdar v. State of Maharashtra , (2005) 6 SCC 537
13
Thomas Shingare v. State of Maharashtra , AIR 2002 SC 463
14
Sate of Bombay v. Bombay Educational Society, AIR 2005 SC 3226

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(i) Freedom of conscience and free profession, practice and propagation of religion (Article
25)
(ii) Freedom to manage religious affairs (Article 26)
(iii) Freedom as to payment of taxes for promotion of any particular religion (Article 27)
(iv) Freedom as to attendance at religious instruction or religious worship in certain
educational institutions (Article 28)
(v) Special provision relating to language spoken by a section of the population of a state
(Article 347)
(vi) Language to be used in representations for redress of grievances (Article 350)
(vii) Facilities for instruction in mother tongue at primary stage (Article 350A);
(viii) Special officer for linguistic minorities (Article 350B).

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BIBLIOGRAPHY

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

2) Prof. G.C.V. Subba Rao, Indian Constitutional Law, 10th Edition, S.Gogia &
Company Hyderabad
3) Dr. J.N.Pandey, Constitutional Law of India,51st Edition, Central Law Agency

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