Saturday, 4 March 2017

Rajat Malhotra

Cultural and Educational Rights in Indian Constitution

cultural and educational right
Art. 29-30:

1) Introduction
2) Protection of interest of minorities.
3) Right of minority to establish educational institutions.
4) Regulation of minority educational institutions.
5) Supreme Court decision in TM.A. pre-foundation v. Karnataka.
6) Conclusion.

1) Introduction -

Art. 29 and 30 protect and guarantee certain cultural and educational rights to various cultural, religious and linguistic' minorities located in India. According to Art. 29(1), any section of citizens residing in any part of India having a distinct language, script or culture of its own has right 'to conserve the same' . This Constitutional provision therefore protects the language, script or culture of a section of the citizens. In order to invoke Art. 29(1) it is essential that a section of the citizens, residing in India should have a distinct language, script or culture of its own.

According to Art. 29(2) admissions are not to be denied to any citizen into any educational institution maintained by the State or receiving aid out of the State funds, on the ground only of religion, race, caste, language or any of them. This provision guarantees the rights of a citizen as an individual irrespective of the community to which he belongs.

2) Protection of interest of minorities

Art. 29 and 30 are intended to protect the minorities so as to enable to conserve their own language, script and culture and to prevent discrimination against minorities on the grounds of only of religion, race, language or any of them in educational institutional.

Art.29 and 30 if arranged properly deals with the following rights -

i) Right of minorities to conserve language, script or culture, Art.29 (1).

ii) Right of minorities to establish and administer educational institutions of their choice, Art.30(1).

iii) Right to compensation in case of acquisition of property of minority institution, Art. 30(1A).

iv) Right against discrimination in matters of granting aid to educational institutions, Art. 30(2).

v) Right of citizen against discrimination in matters of admission to educational institutions, Art, 29(2).

ART. 29 (1), RIGHT OF MINORITY TO CONSERVE LANGUAGE, SCRIPT OR CULTURE - This article guarantees to any section of citizens who have distinct language, script or culture of their own, a right to conserve the same. Even though the article suggests that only those sections of the citizen who are in minority can claim this right but S.C. in ST. Xavier's College v/s State of Gujrath, 1974 held that the word section of citizen in Art,29 includes minority as well as majority. Art. 29 gives protection not only-to minority-in-technical sense but also majority in a wide sense. How a particular comunity is to be decided its minority committee?
It was held in D.A.V. College, Jullundhar v. State of Punjab, 1971, that religious or linguistic minorities are to be determined in relation to particular legislation which is attacked. If the legislation in question is of state legislation, these minorities should be determined on the basis of population of the whole of the state and if Central legislation minority character may be determined on the basis of the population of the whole country. In this case it was held that Hindus in Punjab were in minority.

3) Right of minority to establish educational institutions -


Art. 30(1) guarantees that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. It is clear from the language that the right is of two folds. They can establish an institution of their choice and they also have right to administer it. The expression 'educational institution' may include a university. What distinguishes a university from other educational institutional is that a university grants degree of its own which other educational institution cannot do. The words 'establish' and 'administer' must be read consecutively and so read, the minorities will have right to administer educational institution of their choice provided they have established them, but not otherwise. Minorities will not have right to administer institution, which has been established by someone else. The word 'establish' means to bring into existence and therefore if minorities bring into existence an educational institution then they will have right to administer it.

In Azeez Basha v/s Union of India, 1968, validity of Aligarh Muslim University (Amendment) Act, 1951, and Aligarh Muslim University (Amendment) Act, 1965 was challenged on the ground that they violated rights of Muslim Minorities under Art.30 (1) to establish and administer educational institutions of their choice. Under The Aligarh Muslim University Act, 1920, Court was supreme governing body and its membership was confined to Muslim. The Act of 1951 deleted S.9, which provided for compulsory religious instructions and S.23 (1), which required that all members of the Court would be only Muslim, was also deleted. The Act of 1965 made certain changes as result of which Court ceased to be supreme governing body. Its powers were reduced and powers of Executive Council were correspondingly increased. It was contended that by these amending Acts Muslim Minorities were deprived of their right under Art.30 (1) to administer the University. It was held that Aligarh Muslim University was not established by Muslim Minority but by the Central Legislature in 1920 by passing Aligarh Muslim University Act, 1920. Since under Art.30 minorities have no right to administer the institution, which they have not established, there is no violation of Art.30 (1).

In D.A. V College, Jullundhar v/s State of Punjab,.1971, the University prescribed Punjabi language in Gurumukhy script as the exclusive medium of instruction and examination. D.A.V College was one of the colleges, which were compulsorily affiliated to Punjab University. The college was run by D.A.V. College Trust and Society registered under Societies Registration Act, as an association comprised of Arya Samajis who were held to be minority community in the State of Punjab.

Art.29 (1) and Art.30 (1): The two articles create separate rights though at certain Points they may overlap and in some respects one may supplement the other. The following points of distinction will understanding the true nature and scope of these articles.

1.. Art.29 (1) is wider than Art.30 (1) in that any section of citizens, not necessarily minorities in technical sense, can invoke the right guaranteed under Art.29 (1) but right guaranteed under Art.30 (1) is available to religious and linguistic minorities only.

2. Art.29 is concerned with language; script and culture whereas Art.30 (1) deals with minorities of the nation based on religion or language.

3. The purpose of the guarantee under Art.29 (1) is to enable any section of citizens to preserve their language, script or culture. The means by which the purpose is to be attained are not indicated. On the other hand purpose of Art.30 (1) is to enable religious and linguistic minorities to establish and administer educational institutions of their choice.

4. The provisions of Art.29 (1) and 30(1) have different dimensions in that conservation of language, script or culture contemplated by Art.29 (1) may be accomplished in various/ways apart- from establishment of educational institutions and administration of educational institutions under Art.30 (1) need not be solely with a view to preserve language script or culture.

Art. 30 (1) does not confer any right on non-resident foreigners: Unlike Art.29 the word "citizen is not to be found in Art.30 (1) or 30(2). The guarantee is to minorities. The expression "minority" here suggests 4 section of person residing in India. It is, therefore, necessary that the persons establishing educational institution must be residing in India but it is not necessary that they should also be citizens of India.

Art 30 (1A): Right to Compensation in case of acquisition of property: Art.30 (1A), which has been inserted by Constitution (44th Amendments) Act, 1978, provides that in making any law providing for comptilsory acquisition of any property referred of an educational institution established and administered by a minority referred to in. clause (1) of Art.30 the State shall ensure that the amount fixed or determined under such law is such as .would not restrict or abrogate right guaranteed by Art.30(1). Prior to Constitution (44th Amendment Act), 1978 this provision was in proviso to Art.31 (2), which has been repealed by Constitution (44th Amendment) Act, 1978.

Art. 30 (2): Right against. discrimination in matter of granting aid: Art. 30(2) says that State shall not in granting aid to educational institutions discriminate against any educational institution on the ground that it is managed by a linguistic or religious minority. The enactment of special provision by the Supreme Court in Sidhrajbhai v. State of Gujarat, 1963, that the right under Art.30 (1) is intended to be an effective right not to be cut down by so called regulatory measures.

The word "aid" in Articles 29(2) and 30(2) will include “grant” under Art. 337, which make special provision of grants for educational institutions of Anglo-Indian- Community. Apart from provision in Art. 337 -there is no Constitutional right to recognition or aid. State can attach reasonable condition to recognition or grant-in-aid but so as not to discriminate on the grounds that the institution is managed by a religious or linguistic minority.

Art. 29 (2): Right of citizens to admission in educationa1 institutions:
Art. 29(2) prohibits denial of admission to any educational institution, which is maintained by the State or which receives aid from the State funds, only on grounds of race, religion, caste or language. Thus, reservation of seats on ground of residence in any particular territory does not violate Art 19 (2). Under Art.29 (2) all citizens belonging to majority group have been given a general right to admission to State maintained or aided schools. If an institution maintained by a minority community receives aid from the State it cannot refuse admission to members of other communities.

Art. 29 (2) and Art.15:

Both articles prohibit discrimination on grounds of race, religion, caste etc . but the protection under the two Articles is different in following respects-

i) Art.15 confers a general right on all citizens not to be discriminated against on grounds only of religion, race, caste etc. whereas Art.29 (2) confers a special right on citizens for admission to educational institutions of the specific kind.

ii) Art.15 prohibits discrimination by the State but Art.29 (2) confers right of admission into all educational institutions maintained or aided by the State.

iii) The grounds on which discrimination is prohibited by two articles are not identical. Besides common grounds of race, religion and caste Art.15 prohibits discrimination on grounds of sex and place of birth also, which are not mentioned in Art.29. On the other hand, in Art.29 language is also one of the grounds on which discrimination is prohibited. This ground is not mentioned in Art.15.

iv) Art.15 permits State to make special provisions for women and children. No such special favour is be permissible under Art.29.

4) Regulation of minority educational institutions –

State's power to regulate minority institutions: Unlike Art.I9 freedom to establish and administer educational institutions by minorities guaranteed under Art.30 is absolute in terms. It is not made subject to any reasonable restrictions to which freedom mentioned in Art.19 may be subjected.

As observed by Matthew J. in St. Xavier College vs State of Gujarat, 1988, regular tax measures, economic regulations, social welfare legislation, wage and labour legislations and similar measures may have some effect on the right under Art.30 (1) but where the burden is same as borne by others engaged in different forms of activity the similar impact insufficient to constitute abridgement of right under Art.30 (1).

In Sidhrajbliai v/s State of Gujarat, 1963, the Supreme Court held that regulations which may lawfully be imposed either by legislative or executive action, as a condition of receiving grant or recognition must be directed to making the institution effective as educational institution. 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.

In D.A.V. College Jullundhtar v/s Stale of Punjab, certain provisions contained in university Statutes provided for compulsory constitution of a governing body for each educational institution consisting of not more than 20 persons approved by the Senate including two representatives of the University and the principal of the College and that appointments of all the staff were to be approved by the Vice-Chancellor. The provision was held unconstitutional for violation of Art.30 (1).

5) Supreme Court decision in T M.A. pre -foundation v. Karnataka, 2002 -

The Eleven-Judge Bench of Supreme Court delivered the.judgment on 31" October 2002. Majority judgment of six judges has following.important points –

i) The term 'minority' in Art. 30(1) covers linguistic and religious minorities.

ii) For the purpose of determining the 'minority' , the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, which have been placed at par in Art. 30, have to be considered State-wise.

iii) Art. 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions 'of their choice'. The use of the words 'of their choice' indicates that even professional educational institutions would be covered by Art. 30.

iv) The right conferred .on the minorities by Art. 30(1) is not absolute. It has to be read subject to Art. 29(2) and other fundamental rights. Minority educational institutions dais become divisible into two categories, viz. aided educational institutions and unaided educational institutions. The unaided institutions enjoy much greater autonomy than aided institutions.

v) Admission of students to unaided minority educational institutions cannot be regulated by the State or the concerned University, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards.

vi) An aided minority institution is entitled to admit students belonging to the minority group.

vii) Observance of merit among the minority students inter se could also be ensured.

viii) The minority institution may have its own procedure and method of admission as wet as selection of students, so far as the procedure is fair and transparent.

(ix) While giving aid to professional institutions, the aid-giving authority may prescribe the conditions on the basis of winch admissions 'will be granted by the aided colleges by virtue of merit.

(x) The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof.

(xi) The aid giving authority can as a condition of granting aid, put restraint on the freedom of administration and management of institution.

(xii) All citizens have right to establish and administer educational institutions under Art. 19(1)(g) and Art. 26(a).

(6) Conclusion –

The decision of Pai-Foundation case has overruled the decision of Unni Krishnan, which laid down a rigid fee structure for private educational institution to charge. This decision gave freedom to such institution to charge fees so long as it does amount to profiteering and capitation fee. This has been done so that development of institutions into centres of excellence is not hampered because of financial strains. Art. 29 and 30 protect and guarantee certain cultural and educational rights to various cultural, religious and linguistic minorities located in India.