“To all the minorities in India we give the assurance that they will receive fair and just treatment and there will be no discrimination in any form against them. The religion, their culture and their language are safe and they will enjoy all the right and privileges of citizenship…” [1]
Dr. Rajendra Prasad
“Minorities” one of the most debatable topic in India ever since. Many questions arises in everyone’s mind when we talk about minorities, some of the question are who are minorities, why should we give special preferences to them, why to treat them differently despite of having “right to equality” in our constitution?
India is a country with huge diversity having eight major religions and over 800 languages. In a country where large number of population follows one religion that is Hindu, in other hands there is a population consists of people from other religion also such as Sikh, Muslims, parsi etc. it was deemed fit by the constitution makers to provide some of the basic rights other than the fundamental rights to these communities so as to provide them equality and treat them equally with the Hindu population.
These provisions was incorporated in India as to convince and ensure the minority communities whether it is based on language or religion that there interest is safeguarded in the nation. As the government in power that time that is the congress party was always considered to be party of the upper caste so the ones in minority was afraid that after independence they will suffer in this country, considering this in mind the constitution maker incorporated different provisions in the form of fundamental rights (Article 25-30) and in directive principles of state policies (Article 330-339 and 350).
While going through these provisions of The Indian Constitution it should be noted that as these rights are ensured under fundamental rights it’s higher than the other ordinary laws and consequently, every legal provision or executive action must conform to the mandates implied in them.
CONCEPT OF MINORITY
‘Minority’ as a concept was never defined precisely anywhere in Indian constitution. Although mentioning the cultural attributes of religion and language, the Constitution does not provide details on the geographical and numerical specification of the concept[2]. Along with it is also not mentioned that which religion and what language should come under the purview of Minority. Dr. Ambedkar in constituent assembly debate on article 23 quoted that:
“The word is used not merely to indicate the minority in the technical sense of the word, it is also used to cover minorities which are not minorities in the technical sense, but which are nonetheless minorities in the cultural and linguistic sense.”
In year 1958 Supreme Court in case of ‘In Re the Kerala Education Bill, 1957’[3]came with a technique for arithmetical tabulation of less than 50 per cent of population for identifying a minority. This population was to be determined in accordance to the applicability of the law in question. This means if we need to calculate minority group nationwide then we have to look after national figures, while on the other hand in states we have to consider the state figures.
In year 2002 Supreme Court in the case of ‘TMA pai v state of Karnataka’[4] has specified the geographical entity of state for consideration of the status of minority for Article 30.
Quoting from the judgment-
“Since reorganisation of the states in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the state and not the whole of India. Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be considered state wise.”
ELUCIDATING MONORITIES
The term minority as used in the United Nations Human Rights System usually refers to national or ethnic, religious and linguistic minorities, pursuant to the United Nations Minorities Declaration.[5] All States have one or more minority groups within their national territories, characterized by their own national, ethnic, linguistic or religious identity, which differs from that of the majority population.[6]
According to a definition offered in 1977 by Francesco Capotorti, Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities[7], they are:
- Are less in number to the rest of the population of a state[8]
- Are in a non-dominant position[9]
- Reside in the state, being either nationals or a group with close long-standing ties to the state;
- Possess ethnic, religious, or linguistic characteristics differing from those of the rest of the population[10] and
- Show, if only implicitly, a sense of solidarity directed towards preserving their distinctive collective identity.[11]
The expression ‘religion minority’ means ‘that the only and principal basis of the minority must be adherence to one of the many religions and not a sect or part of the religion.[12] Jains and Sikhs have been held to be minorities based on religion and ‘linguistic minority’ for the purpose of Art. 30(1) is one which must have separate spoken language and that language need not have a distinct script.[13]
In year 1992 the union government was in favour that there should be some commissions that will look after the development of the minorities in the union and state and also make recommendation for effective implementation safeguards for the protection of the interests of Minorities. Therefore the union government came with National commission for minorities in year 1992 act declared Muslims, Christians, Sikhs, Buddhists and Parsis. While in year 2014 the government gave minority status to ‘Jain’ community also.
PROVISONS UNDER INDIAN CONSTITUTION
Indian constitution provides some separate rights to minorities as fundamental rights (25-30) and directive principles also. Though this paper will mainly focuses on Article 30 of the Indian constitution which ensures and gives Minority community which are based on language or religion to establish their own educational institutions.
Article 30[14] reads as follows:
Right of minorities to establish and administer educational institutions:
(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause
(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.
Throwing some lights on each clauses of Article 30, firstly Article 30(1) gives the right to Minorities based on language or religion to establish and administer educational institution of their choice, in the case of Islamic Academy of education v. state of Karnataka[15] the Supreme Court considered Article 30(1) and quoted:
“As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality-being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate, against such minorities with regard to the establishment and administration of educational institutions vis-a-vis other educational institutions.”
Also in the same case the Supreme Court stated that the concept of equality should be must necessarily apply to enjoyment of such rights. Therefore no law should be made that will discriminate between the educational institutions set up by minorities with other educational institutions.
To quote from judgment:
“…Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination.”
After going through the Article 30, a question arises that what is the scope of the word establish or what does it means? Does it means that the minorities can take the initiative to establish educational institutions or the name of such institution should be related or oriented to the minorities or the institutions should be for the benefits of minorities.
In the case of State of Kerala vs. Mother Provincial[16] the supreme court interpreted the word and I quote:
“The first right is the initial right to establish institutions of the minority’s choice. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds”[17]
So the interpretation of the Supreme Court clearly favours that the establishment of educational institutions means setting up of such institutions by a minority community. But it should also be noted that mere establishment of such institutions by a single individual will not come under the purview of the minority status. This was held in the case of Rajershi Memorial Basic Training School AIR 1973 Kerala 88[18]
It is also not a necessary condition that the educational institutions will only come under the purview of the minority status when it is set up with the aim of preserving the culture of such minority group.
In the case of Bramchari Sidheswari v. State of West Bengal[19] the appellant contended before the Supreme Court that the Ram Krishna Mission established by Swami Vivekanda to propagate the Vedanta values as expounded by Ram Krishna is a minority religion and should be given permission to establish their own educational institution for promoting the values and culture of such group. The Supreme Court held that the aforementioned group is not a minority religion separate and distinct from Hindu religion, but a religious sect or denomination of Hindu religion and therefore not entitled to claim the fundamental right under article 30(1).
SCOPE OF GOVERNMENT DOMINANCE
There should be a constant dialogue between the government and institutions for proper functioning of the institutions and for better policy making for such institutions. But in many instances it was said that the government should not put their nose in the functioning of such institutions and it will amount to violation of their fundamental right enshrined in Article 30 of The Indian Constitution. Quoting from the judgment given by the Supreme Court in the case of TMA PAI v. State of Karnataka[20]
“…it was submitted that the state should not have a right to interfere or lay down conditions with regard to the administration of… institutions. In particular, objection was taken to the nominations by the state on the governing bodies of the private institutions, as well as to provisions with regard to the manner of admitting students, the fixing of the fee structure and recruitment of teachers through state channels”
In general sense the minority run educational institutes imparting the formal education comes under the formal education system of India. Therefore the rules and regulations prescribed by the government for other private institutions are applicable to the minority institutions unless otherwise stated.
It should also be noted that the scope of article 30 is such that it also cover rights to recognition and affiliation, which includes rights to receive financial aid fiom the state; to select management bodies, staff, and students; and, to select content of education.[21] But by interpretation of Supreme Court Judgments we can come to the conclusion that these rights are not absolute. Justice Reddy explains the position od such rights and I Quote[22]
“The only purpose that the fundamental right under Article 30(1) would serve would in that case be that minorities may establish their institutions, lay down their own syllabi, provide instructions in the subjects of their choice, conduct examinations and award degrees or diplomas. Such institutions have the right to seek recognition to their degrees and diplomas and ask for aid where aid is given to other educational institutions giving a like education on the basis of the excellence achieved by them.”
Control by the government over such minority institutions is necessary for maintaining quality education and safeguarding the rights of the employees of such institutions. State also have right to take regulatory measure for the security of academic and non-academic staff of such institutions. On the other hand in the case of Arya Samaj Shillong v. State of Meghalaya,[23] the high court of Guwahati gave the decision and I quote:
“The Arya Samaj Hindi Kanya Vidyalaya School in Meghalaya is a minority institution and therefore the State has not power to change the constitution of the Managing Committee of the school. Arya Samaj in Meghalaya is both linguistic as well as religious minority. It has a distinct entity.”
Hence, it was held that the notification directing the school to follow instructions the change of the constitution of Managing Committee was unconstitutional and invalid.
Now talking about article 30(2)[24] of the Indian constitution which reads as follows:
“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(2) ensures that the state while granting aid to educational institutions should not discriminate such educational institutions on the ground that it is under the management of linguistic or religion minority. But Article 30(2) does not confer any rights to educational institution maintained by minority to claim aid from the state, but only entitle such institution to get financial assistance from state as it is given to other educational institutions.
CRITICS OF ARTICLE 30:
Article 30 is combination of pros and cons in one hand it gives special protection and privileges to minorities of the country; on the other hand it comes with some pros also. Some of the disadvantages include that the government have to grant such status and give affiliation to those minorities who are seeking affiliation. If the government not gives affiliation to such seekers then there will be three members committee consists of all the members from the minority community will give the final and binding decision. This three members committee is known as the National Commission for Minority Education Institution. Its main function includes adjudicatory function, recommendatory powers and advisory function.
During the regime of UPA government who came with National common minimum programme some of the central universities were given direct affiliation. It should also be noted that during UPA government the BJP led states was heavily discriminated and harassed many minority educational institutions. This discrimination was the result of the BJP opposition to the constitutional provisions under article 30. “It is because of the discrimination meted out to the minority institutes in BJP-ruled state like Gujarat and Madhya Pradesh that the UPA incorporated the said objective in its NCMP. Unfortunately, instead of protecting the minority communities’ right to set up educational institutes of their choice and thus cater to the interests of the whole communities, the bill seeks to protect the interests of a select few. The latter are the very vested interests who run minority educational institutes on self-financing basis, without taking into account many relevant and genuine concerns raised by many concerned academics and sections over the past several years.”[25]
Different jurist have their own understanding and opinion about the secular nature of the Indian Constitution. Some jurist is in a view that the secularity of Indian state is compromised by not letting the dalit or lower caste people to enter into temples or such sacred places, on the other hand some jurist are in view that these provisions are such that in a way it compromises with the secularity of India state.
CONCLUSION:
The view of constitution makers while giving such provisions under The Indian Constitution was not only to preserve the culture of such minority groups but to impart better education for the children coming from such background and to maintain secularity of the Indian state. It was imparted to treat each and every one equally as ensured in Article 14 of The Indian Constitution, whether it is a minority or majority group. Throughout the paper the researcher showcased what was the vision of the constitution makers and what the provision under article 30 talks about. The paper also tried to unfold the present condition of such provisions. It can be seen that the language of Article 30 is vague which is for daily interpretation by the court which is subsequently resulted in conflict between the state and minority groups.
It should also be noted that the institution should not deny admission of any student who meets the eligibility criterion, but in the other hand the 50:50 ratio also thwart the spirit of Article 30 as it affects the number of students enrolled from minority community. Eventually it will directly affect those students of these minority groups coming from backward socio economic and education background as they will not be in a condition to take admission in any other institutions and in these education institutions also. Moreover the cases and the judgment are evident that the system has failed and the intervention of the state in these institutions made them more political.
It can be concluded that in the present world there is less of use and more misuse of these provisions and the government uses such provisions for vote bank politics and for their own benefits. Moreover some people from the minority community also using these provisions for business purpose in corporation with the government. Desai[26] mentioned the misemploy of Article 30 and states
“Due to the benefits which may be derived by claiming minority status, a number of unworthy claimants have been scampering for this status. For instance, in 1993, the Bombay High Court, on a technicality, held that in Minority Degree Colleges affiliated to University of Bombay reservation in posts was not permissible. Within two months about 30 colleges applied for minority status in order to avoid reservation.”
[1] Retrieved on http://www.academia.edu/2483502/Cultural_and_Educational_Rights_of_Minorities_A_Human_Right_and_Constitutional_Law_Perspective
[2] Ranu Jain, Economic and Political Weekly,Vol. 40, No. 24 (Jun. 11-17, 2005), Available at, http://www.jstor.org/stable/4416749
[3] MANU, In Re the Kerala Education Bill, 1957, AIR 1958 SC 956
[5] Retrieved on http://www.ohchr.org/EN/Issues/Minorities/Pages/internationallaw.aspx
[6] Ibid5
[7] Retrieved on http://www.ohchr.org/Documents/Publications/MinorityRights_en.pdf.
[8] Ibid 7
[9] Ibid 7
[10] Ibid7
[11] Ibid 7
[12] Retrieved on http://twocircles.net/legal_circle/educational_rights_minorities_kamaluddin_khan.html
[13] Ibid 12
[14] Sankaranarayanan gopal, The Constitution of India (EBC publishing 2014) p.49
[15]Indian Kanoon, Islamic Academy of education v. state of Karnataka,
[16] Indian kanoon, State of Kerala v Mother Provincial, sc 2082, AIR 1970
[17] Ibid Note No. 1
[18] Ibid Note No.1
[19] SK. JAHANGIR ALI ,EDUCATIONAL RIGHTS OF MINORITIES: A CONSTITUTIONAL PERSPECTIVE, Available at, http://shodh.inflibnet.ac.in/bitstream/123456789/1031/1/synopsis.pdf
[20] Ibid Note No. 3
[21] Ibid Note No. 1
[22] Ibid Note No. 1
[23] Ibid Note No. 9
[24] Ibid Note No. 4
[25] Anonymous, Minorities right to establish and administer educational institutions.. a critique, Available at, http://www.legalserviceindia.com/article/l93-minorities-rights.html
[26] Ibid Note No. 1
Author: Parag Rai & Komal Rastogi, Students, Institute of Law, Nirma University.
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