rights of minorities to establish and administer ... · rights of minorities to establish and...

Indian Journal of Politics 2017, Vol. 51, Nos. 1-2

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Rights of Minorities to Establish and AdministerEducational Institutions in India: Some

Constitutional Reflections

Abdulrahim P. Vijapur1*

Haris Jamil2**

Abstract

Minority rights have been accepted into the cannons of both theinternational human rights law and the constitutional laws in most of thepost-colonial nation States. Minorities world over – religious, linguisticand ethnic –have been constitutionally recognised as groups needingspecial protection and safeguards from the majoritarian attitudes orpolicies of discrimination towards their legitimate interests. IndianConstitutional law is one of the best in the world to provide a detailedcatalogue of human rights to which every individual, including thosebelonging to religious and linguistic minorities, is entitled to enjoywithout any discrimination. Besides this, every minority group enjoysreligious, linguistic, cultural and educational rights. This paper dealswith the rights of minorities to establish and administer educationalinstitutions under the Constitution of India. It explores the ConstituentAssembly debates and text of the Indian Constitution on Article 30, whichgrants minorities to establish their own educational institutions. Further,

* Professor of Political Science at Aligarh Muslim University, Aligarh

** Doctoral student at South Asian University, New Delhi

Rights of Minorities to Establish and…

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the paper looks into the various Supreme Court decisions on the subjectin order to better understand the jurisprudence of this fundamental right.The debate in the Constituent Assembly was full of containment as thedraft articles on the minority educational institutions were criticised asbeing group rights and were argued as being against the concept ofdemocracy, justice, and secularism. Also, it was feared by some that itmight underpin the national unity. This is one of the reasons behindambiguous nature of this provision. The biggest loophole of thisprovision is that it does not define the term “minority”. Despite theseproblems,the paper argues that Article 30 offers an important space tothe minorities to shape their educational situation in accordance to theirdesires and should be encouraged as it helps the State in dealing withculture-specific factors behind their educational backwardness.

Introduction

Contribution of minorities in various areas of life is essential for thedevelopment of a truly inclusive society. It is through effectiveparticipation that a person belonging to national or ethnic, religious andlinguistic minorities articulates and protects his/her identity. Minorityrights have been accepted into the cannon of international human rightsregime by the world community over a period of time through variousgeneral and specific documents.

The International Covenant on Civil and Political Rights (hereafterICCPR)1 protects a great number of rights, many of which are similar torights often called as “civil rights” or “civil liberties” in domestic law.The ICCPR is the only global treaty that includes a provision specificallyreferring to minority rights.2 Article 27 provides that States in whichethnic, religious, or linguistic minorities exist, persons belonging to suchminorities shall not be denied the right, in community with the othermembers of their group, to enjoy their own culture, to profess andpractice their own religion, or to use their own language.

The UN Declaration on the Rights of Persons Belonging to National orEthnic, Religious and Linguistic Minorities,3 proclaimed by the GeneralAssembly in 1992, exhibits similar tendencies. According to itsPreamble, the 1992 Declaration was “inspired by the provisions of article27” of the Covenant.4 Similarly, there are many other internationalinstruments which seek to protect the rights of minorities.5

India is known for its social, cultural and religious diversity and becauseof its multi- cultural, multi- ethnic, multi- religious and multi- linguisticsociety minority rights protection have greater visibility and relevance.

Indian Constitution provides protection to minorities under variousprovisions which are both specific and general in nature.


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It is often contended that equality clause and other fundamental rightsapply to majority and minority community alike in a democracy, so theadditional protection of minority rights is not needed. Supreme Court ofIndia has answered these assertions in the following words:

...the minority do not stand to gain much more from the general Bill ofFundamental Rights which is available only to the individuals. Theminorities require positive safeguard to preserve their minority interestswhich are also termed as group rights. The safeguards and group rightshave been part of our constitution making.6

Moreover the Hon’ble Courts have, from time to time, reminded that theequality clause is applicable only for the equals and not for unequal.

This paper deals with the rights of minorities to establish and administereducational institutions under the Constitution. The paper explores theconstituent assembly debates and text of the Indian Constitution onArticle 30. Further, paper looks into the various Supreme Court decisionson the subject in order to better understand the jurisprudence of thisfundamental right.

‘Minority’ in Constituent Assembly DebatesThe question of minorities in the Constituent Assembly Debates(hereafter CAD)7 was surrounded by the claims of the three differentcommunities who had already been safeguarded in one form or the otherby the Britishers and by Princely States in the colonial India. It isinteresting to note that representative of most of the groups claimedspecial provisions emphasizing that the group was a minority communityof some kind.8

Minority safeguards were opposed during the CAD on the ground oftheir implications on national unity, secularism, democracy and equalityand justice.9

Rochna Bajpai, who has worked extensively on the question of minorityrights in Constituent Assembly Debates observes that some in theassembly believed that , minority safeguards weakened national unity byrisking the political integrity of the nation, by hindering the developmentof a common national identity, and by undermining the creation of amodern, secular democratic citizenship. Characteristically of nationalistdoctrines, minority groups were perceived to be a `part’ of the `organicwhole’ that was the nation, and were advised not to be selfish and shortsighted and put their `narrow’, `petty’ group concerns above the `larger’,`common’ national interest.10

While replying to the disagreements made over the provision ofaffirmative action in favour of minorities, Dr. B. R. Ambedkar said:


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To diehards who have developed a kind of fanaticism against minorityprotection I would like to say two things. One is that minorities are anexplosive force which, if it erupts, can blow up the whole fabric of thestate. The history of Europe bears ample and appalling testimony to thisfact. The other is that the minorities in India have agreed to place theirexistence in the hands of the majority. In the history of negotiations forpreventing the partition of the Ireland, Redmond said to Carson “ask forany safeguard you like for the Protestant minority but let us have aUnited Ireland.” Carson’s reply was “Damn your safeguards, we don’twant to be ruled by you.” No minority in India has taken this stand. Theyhave loyally accepted the rule of the majority, which is basically acommunal majority and not a political majority. It is for the majority torealize its duty not to discriminate against minorities. Whether theminorities will continue or will vanish must depend upon this habit of themajority. The moment the majority loses the habit of discriminatingagainst the minority, the minorities can have no ground to exist. Theywill vanish.11

Constituent Assembly set up an Advisory Committee under thechairmanship of Sardar Patel on the subject of Fundamental Rightsincluding rights of minorities. The minority subcommittee under thechairmanship of Mr. H. C. Mookherjee prepared an interim report whichrecommended that12

1. All citizens are entitled to use their mother tongue and the scriptthereof, and to adopt study or use any other language and script oftheir choice.

2. Minorities in every unit shall be adequately protected in respect oftheir language and culture, and no government may enact any lawsor regulations that may act oppressively or prejudicially in thisregard.

3. No minority, whether of religion, community or language shall bedeprived of its rights or discriminated against in regard to theadmission into state educational institutions, nor shall any religiousinstruction be compulsorily imposed upon them.

4. Notwithstanding any custom, law, decree or usage, presumption orterms of dedication, no Hindu on grounds of caste, birth ordenomination shall be precluded from entering in educationalinstitutions dedicated or intended for the use of the Hinducommunity or any action thereof, and

5. No disqualification shall arise on account of sex in respect of publicservices or professions or admissions to educational institutions save


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and except that this shall not prevent the establishment of separateeducational institutions for boys and girls.

The Advisory Committee accepted the recommendations partially andrecommended the following clause to the Constituent Assembly:13

1. Minorities in every unit shall be protected in respect of theirlanguage, script and culture, and no laws or, regulations may beenacted that may operate oppressively or prejudicially in this respect.

2. No minority whether based on religion, community or language shallbe discriminated against with regard to admission into stateeducational institutions, nor shall any religious instruction becompulsorily imposed on such minority.

3. (a) All minorities whether based on religion, community or languageshall be free in any unit to establish and administer educationalinstitutions of their choice.

(b) The State shall not, while providing state aid to schools, discriminateagainst schools under the management of minorities whether basedon religion, community, or language.

The question as to “what rights could or should be conceded tominorities?” was discussed in the Constituent Assembly on 7th October,1948, and 7th and 8th December, 1948 while debating Article 23 of theDraft Constitution which later assumed the shape of the present Article29 and 30.

The clause was incorporated as clause 24 with some drafting changes inthe Draft Constitution prepared by the Constitutional Advisor. TheDrafting Committee revised the text of clause 24 twice, the mostsignificant change being the re-drafting of sub-clause (1). The clausefinally took the shape as Article 23 of the Draft Constitution. TheDrafting Committee, at the revision stage divided Article 23 into twoseparate Articles - Article 29 and 30 as contained now in the existingconstitution.14The Drafting committee, however, sought to make adistinction between the rights of any section of the citizen to conserve itslanguage, script or culture and the right of the minorities based onreligion or language to establish and administer educational institutionsof their choice and for this the committee omitted the word 'minority' inthe earlier part of the draft article 23 corresponding to article 29, while itretained the word in the latter part of the draft article 23 which nowforms part of the article 30(1).

Ambedkar sought to explain the reason for substitution in the DraftConstitution of the word minority by the words "any section" observing:


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It will be noted that the term minority was used therein not in thetechnical sense of the word 'minority' as we have been accustomed to useit for the purpose of certain political safeguards, such as representation inthe Legislature, representation in the service and so on. The word is usednot merely to indicate the minority in the technical sense of the word, itis also used to cover minorities which are not minorities in the technicalsense, but which are nonetheless minorities in the culture and linguisticsense. That is the reason why we dropped the word "minority" becausewe felt that the word might be interpreted in the narrow sense of the termwhen the intention of this House….was to use the word 'Minority' in amuch wider sense so as to give cultural protection to those who weretechnically not minorities but minorities nonetheless.15

Ambedkar's explanation that the right was available not only tominorities in the 'technical sense' but also to minorities in the 'widersense' has an obvious reference only to that part of Draft article 23 whichnow forms part of article 29(1) and not to that which is now clause (1) ofarticle 30. Therefore, a general reading of the Ambedkar’s explanation ofDraft article 23 shows the broadness and scope of Article 29 (1).

It is also pertinent to note that the term ‘minority’ is mentioned only intwo Articles, 29 and 30. Here too the use of the term is not fordefinitional purposes. In one of the Articles it is used only in the sub-heading of the Article and not in the text of the Article. More so, Article366 of the Constitution, which is exclusively utilized to give the meaningof words and terms used in the text of the Constitution, does not definethe term ‘minority’.

In addition to this, there are other privileges granted to minorities withinthe text of the Constitution.16

Minority Rights to Establish and Administer EducationalInstitutions under Article 30

As mentioned above, Article 30 of the Constitution of India provides forthe rights of minorities to establish and administer educationalinstitutions.

For easy reference, Article 30 is stated below,

Right of minorities to establish and administer educational institutions:

(1)All minorities, whether based on religion or language, shallhave the right to establish and administer educational institutionsof their choice.


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[(1A) In making any law providing for the compulsoryacquisition of any property of an educational institutionestablished and administered by a minority, referred to in clause(1), the state shall ensure that the amount fixed by or determinedunder such law for the acquisition of such property is such aswould not restrict or abrogate the right guaranteed under thatclause.]

(2) The state shall not, in granting aid to educational institutions,discriminate against any educational institution on the groundthat it is under the management of a minority, whether based onreligion or language.

The chief aim of providing this right is to give them an opportunity tocarry on their culture and religious values in the same manner as it hasbeen done. The minority evidently desire that education should beimparted to the children of their community in an atmosphere amiable tothe growth of their culture.17 It is in the true spirit of liberty, equality, andfraternity that minorities are given protection under Article 30 toestablish and administer any institution of their own choice, againstwhich they will feel isolated, separate and discriminated.18

The biggest hurdle in the process of implementing this right depends onthe definition of the term ‘minorities’. This term has not been definedanywhere under the Constitution. However, Supreme Court hasinterpreted this provision on several occasions. The next sections willlook into the concept of the term ‘minority’ as understood in the contextof Article 30.

Who Is A Minority?

The expression ‘minority’ has been used in Article 29 and 30 of theConstitution, but it has not been described anywhere. On the issue ofscope of this term ‘minority’, B. R. Ambedkar, noted in the ConstituentAssembly that:

It will be noted that the term minority was used therein not in thetechnical sense of the word ‘minority’ as we have been accustomed touse it for the purposes of certain political safeguards……The articleintends to give protection in the matter of culture, language and script notonly to a minority technically, but also to a minority in the wider sense ofthe terms… .19

For the determination of minority under Article 30, Hon’ble SupremeCourt in Re Kerala Education Bill, 195720 Supreme Court suggestedtechnique of arithmetical tabulation of less than 50% of population foridentifying a minority. Court also held that this population was to bedetermined in accordance to the applicability of the law in question. So,


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for example, if an Act is applicable nationwide then the minority groupwould be decided on the national figures and in the case of the Act beingapplicable in a State, the minority group would be decided on the Statefigures.

However, it is pertinent to point out that ‘minority’ in Article 30(1) isused as distinct from “any sections of citizens” in Article 29(1) givessupport to the argument that Article 30(1) deals with minoritiesrecognised in the context of entire nations.21

11 judge bench of Supreme Court in T.M.A. Pai Foundation v. State ofKarnataka,22pronounced that in view of the past precedents as well as thefact that States have been organised on linguistics lines minority statusshall be determined on the basis of State and not whole of India: Thisapplies both to linguistic as well as religious minorities.

Vulnerability of a religion or a language must be an essential criterion inthe determination of minority under that Article.23 As far as language isconcerned, Supreme Court in D A V College, Jullundur v. State ofPunjab24 observed that, a linguistic minority for the purpose of Article30(1) is one which must at least have a separate spoken language. It isnot necessary that that language should also have a distinct script forthose who speak it.

With regard to religion, unfortunately, the 11 judge bench in the TMAPai case did not speak, leaving some space (for divergent interpretations)in this regard. However, religious denominations like RamakrishnaMission has been held to be a part of Hindu religion and not a minorityreligion entitled to the protection of Article 30(1).25“Minorities based onreligion” in Article 30(1) should mean only what we call in commonphraseology the various religious communities like Christians, Hindus,Muslims, Sikhs, Buddhists, etc. and cannot be meant to include religiousdenominations or sects.26

Inter-relation between Articles 30 And 29

The issue of interrelationship between Article 29 and 30 has been thesubject of discussion in many Supreme Court judgments,27 the mostimportant one being the case of St. Xaviers College v. State ofGujarat.28On the interrelationship between Article 30(1) and 29 (1)29

Court held that, “article 30(1) covers institutions imparting generalsecular education. The object of Article 30 is to enable children ofminorities to go out in the world fully equipped. It will be wrong to readArticle 30 (1) as restricting the right of the minorities to establish andadminister educational institutions of their choice only to cases wheresuch institutions are concerned with the language, script or culture of theminorities.”TheCourt further added that, “articles29 and 30 create two


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separate rights though it is possible that the rights might meet in a givencase.”30

Article 29(1) does not deal with education as such while Article 30 (1)deals only with the establishment and administration of educationalinstitutions and it need not be exercised for conserving language, scriptor culture. Thus, the conservation of language, script or culture underArticle 29 (1) may be by means wholly unconnected with educationalinstitutions. Article 29 (1) is not confined to minorities but extends to allsections of citizens and the scope of Article 30 (1) extends to all religiousand linguistic minorities. As M P Singh puts it, Article 29 (1), neithercontrols the scope of Article 30 (1) nor is controlled by that article.31

The interrelationship between Article 29(2)32 and 30 (1) has been subjectof controversy in a plethora of cases.33 Some author’s call thisrelationship as paradoxical generating confusions like; can minorityeducation institutions deny admission to any student on the basis ofreligion or language? Whether in admission to minority educationinstitutions, preferences can be given to minority students, overruling thecriteria of merit?34

The Supreme Court looking into these issues in St. Stephen’s Collegecase opined that,

[E]very educational institution irrespective of community to which itbelongs is a 'melting-pot' in our national life. The students and teachersare the critical ingredients. It is there they developed respect for, andtolerance of, the cultures and beliefs of others. It is essential therefore,that there should be proper mix of students of different communities inall educational institutions.35

The Court further held that the minority institutions shall make availableat least 50% of the annual admission to members of communities otherthan the minority community.

It is submitted that this approach of the Hon’ble Supreme Court is not inline with the Constitutional provisions. Realising this, the Court in TMAPai case36 opined that, rigid percentage cannot be stipulated. The Courtwas of the opinion that the authorities can stipulate reasonablepercentage in accordance to the type of institution, population andeducational needs of the minorities.

Basically, it could be concluded that Courts have attempted to strike abalance between these two articles when confronted with the question ofinterrelationship.


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Conditions for Establishing and Administering an Institution

Article 30 (1) provides fundamental right to religious and linguisticminorities to establish and administer educational institutions of theirchoice. The word ‘establish’ means “to bring into existence”.37 TheCourt has regularly opined that the words ‘establish’ and ’administer’ asmentioned in Article 30 must be read conjunctively so that minoritieswill have right to administer educational institutions of their own choiceprovided they have established it. In other words, the right claimed by aminority community to administer the educational institution dependsupon the proof of establishment of the institution. The proof ofestablishment of the institution is thus a condition precedent for claimingthe right to administer the institution.38

However, some authors have reservation on such interpretation.39 M.Desai in his book notes that:

...the word ‘and’ used in Article 30(1) of the Constitution should havebeen interpreted in a disjunctive and not in a conjunctive sense. There isneed to adopt ‘purposive’ rather than ‘literal’ interpretation of theConstitution…The rationale behind Article 30(1) is to give protection tominorities to run educational institution of their choice. Why should itmatter that the educational institution presently run by the minority forthe benefit of the minority was established, may be a century back, bypersons not belonging to a minority community?... The intent of theArticle seems to be that not only does a minority have the right to run anexisting institution but also to establish educational institutions and viceversa. This appears to be the only logic consistent with the historicalbackground of minority rights. Be that as it may, the settled position inlaw is that a minority cannot administer an institution which it has notestablished.40

Another significant issue which needs to be looked into is with regard tothe nature of educational institutions. In India all the institutions thataward degrees need to be established by or under a statute of theParliament or a State legislature. Even if the institution has beenestablished by the demands of a particular minority, still it does not getthe minority status if it has not been established by them. This debatewas further diluted by the Hon’ble Supreme Court in the case of S. AzeezBasha v. Union of India,41 wherein it was observed that the ambit and thescope of Article 30 is very wide and can also include a University. Evenif the minority group has been administering the institution from pre-constitution era, which was established by someone else, still this cannotbe claimed as a matter of right to administer the same institution.42


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The case of Aligarh Muslim University is very interesting case in thisregard. The reservation in respect of 50% of the total seats for Muslimsin AMU was challenged in Dr. Naresh Agarwal v. Union of India.43 Thesingle judge bench of Allahabad High Court, after examining therelevant provisions and precedents, framed the issue as‘whether theAligarh University was established by a Muslim minority; and if it wasso established, the minority would certainly have the right to administerit?’

The Court reasoned that Aligarh Muslim University was formed byvirtue of 1920 Act and must therefore be held to have been establishedby the Central Legislature which by passing the 1920 Act incorporated it.Court further added that M.A.O. College and the Muslim UniversityAssociation and the Muslim University Foundation Committee wereinstitutions established by the Muslim minority and two of them wereadministered by Societies registered under the Societies Registration Act,1860 but the university was established under the Aligarh MuslimUniversity Act, 1920 and it could not have been brought into existenceotherwise. Court held that it would not be possible for the Muslimminority to establish University of the kind whose degrees were bound tobe recognised by Government and therefore it must be held that theAligarh University was brought into existence by the Central Legislatureand the Government of India. This single judge ruling has beenchallenged in the Supreme Court, which will take up the matter in nearfuture.

In the case of S.P. Mittal v. Union of India,44 the Hon’ble Supreme Courtobserved that “in order to claim the benefits of Article 30(1), thecommunity must show that

That it is a religious or linguistic minority,

That the institution was established by it.

Without satisfying these conditions, the community cannot claim theguaranteed rights to administer them.”

In other words, whenever there is a dispute related to the minority statusof any institution, the best way to determine it is by lifting the corporateveil.

The rights provided under Article 19 (1) (f) – right of citizens to carry onan occupation, trade and business – and 30 are of different nature, theright under 19 is not absolute as it is subject to reasonable restrictions,whereas the rights under article 30 are not subject to any restriction andare almost absolute in nature.45 The reason for it not being absolute innature is that it can be restricted in circumstances where the benefit ofthe student or the quality of the educational institution is at stake. The


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state is empowered to impose restrictions which do not affect thesubstantial rights, but which further improves the institutional excellenceand proper functioning in all the fields.46

Government of India has come out with guidelines for determination ofminority status, recognition, affiliation and related matters in respect ofminority educational institutions under the Constitution of India and aNational Commission for the Minority Educational Institution (NCMEI)has also been established under National Commission for MinorityEducational Institutions Act, 2004. In February 2011, the NCMEI hadpassed order to recognise Jamia Millia Islamia(JMI) as a minorityeducational institution. Various student and teacher associations fromJMI had filed a petition before the Delhi High Court for the same beforethe NCMEI after a government’s direction in 2006to all centraluniversities to include 27% reservation for OBCs. On 7 August 2017,IndianExpress reported that the NDA Government, headed by NarendraModi’s BJP, would file an affidavit in theongoing case in the Courtsaying that the Central government would be withdrawing its support forminority status to JMI. In fact, this would be a reversal of UPA-IIadministration’s support for JMI to be considered a minority institutionin 2011, and is likely to have an impact on cases related to theinstitution’s status before the Delhi High Court and Supreme Court. Thisis for the first time that the government’s position has changed with thechange of government in the Centre in 2014.

Education of their Choice

The key to the understanding of the true meaning and implication ofarticle 30 are the words “of their own choice”. This aspect was looked indetail by the Court in Re Kerala Education Bill case.47 The importance ofthe term “of their own choice” was explained by S R Das, Chief Justicein the following words:

The key to the understanding of the true meaning and implication of thearticle under consideration are the words “of their own choice”. It is saidthat the dominant word is “choice” and the content of that article is aswide as the choice of the particular minority community may make it.

He further opined that,

there is no limitation placed on the subjects to be taught in sucheducational institutions. As such minorities will ordinarily desire thattheir children should be brought up properly and efficiently and beeligible for higher university education and go out in the world fullyequipped with such intellectual attainments as will make them fit ...educational institutions of their choice will necessarily includeinstitutions imparting general secular education also.


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Article 30 leaves it to the choice of minorities to establish sucheducational institutions as will serve both the purposes, namely, thepurpose of conserving their religion, language or culture, and also thepurpose of giving a thorough general education to their children.

On similar lines, it has been held by a Full Bench of the Karnataka HighCourt in Associated Managements of Primary and Secondary Schools inKarnataka v. State of Karnataka and Ors.,48that the words of “their ownchoice” which qualify “educational institutions” shows the vastdiscretion and option which minorities have in selecting the type of theinstitution which they want to establish.

However, the Court has repeatedly noted that rights provided under thisarticle does not militate against claims of the state to insist that ingranting aid the State may not prescribe reasonable regulations to ensurethe excellence of the institutions.49 The next segment of this paper dealswith extent to which a minority educational institution could beregulated.

Scope of Governmental Control

Ambiguous nature of Article 30 has brought a plethora of issues beforethe courts. It is because of this ambiguity that much of the law onminority educational institutions has been a product not of centralisedlegislation but the Court’s ruling in different cases.

It is also to be noted that the guidelines for the recognition of minorityeducational institutions50 prepared by the National Commission onMinority Educational Institutions is based largely on, and refersexplicitly to, the judgments of the Supreme Court.

This segment of the paper seeks to look into the jurisprudence ofgovernmental control over minority educational institutions as developedby the interpretation of the court.

TMA Pai Foundation case is considered as the most important decisionon the question of minority educational institutions. The 11 judgespronounced this judgment after reviewing all the previous decisions onthe issue.51

It was expected that the authoritative pronouncement by a bench of suchstrength would draw a final curtain on these controversies. However,even after this pronouncement some of the important issues remainedunsettled which were further clarified by IslamicAcademy of Education& anr. v State of Karnataka & ors.52andP. A. Inamdar & ors. V. State ofMaharashtra & ors.53

Apex Court in TMA Pai Foundation case formed 11 questions. For thepurpose of our discussion, question number 4, 5(a), 5(b) and 5 (c) are


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relevant where the Court dealt with the question of governmentregulations.

On the question of regulation of admission to minority educationalinstitutions, whether aided or unaided by the state or affiliatinguniversity,54the majority pronounced that admission of students tounaided minority educational institutions, viz., schools and undergraduatecolleges where the scope for merit-based selection is practically nil,cannot be regulated by the concerned State or University, except forproviding the qualifications and minimum conditions of eligibility in theinterest of academic standards.55

The Court further clarified that the right to admit students being anessential facet of the right to administer educational institutions of theirchoice, as contemplated under Article 30 of the Constitution, the stategovernment or the university may not be entitled to interfere with thatright, so long as the admission to the unaided educational institutions ison a transparent basis and the merit is adequately taken care of.However, it added, the right to administer, not being absolute, therecould be regulatory measures for ensuring educational standards andmaintaining excellence thereof, and it is more so in the matter ofadmissions to professional institutions.

It was further held that a minority institution does not cease to be so; themoment grant-in-aid is received by the institution. An aided minorityeducational institution, therefore, would be entitled to have the right ofadmission of students belonging to the minority group and at the sametime, would be required to admit a reasonable extent of non-minoritystudents, so that the rights under Article 30(1) are not substantiallyimpaired and further the citizens' rights under Article 29(2) are notinfringed.56

As regards non-minority students, court held, who are eligible to seekadmission for the remaining seats, admission should normally be on thebasis of the common entrance test held by the state agency followed bycounselling wherever it exists.57

On the question of admission, it was held that a minority institution mayhave its own procedure and method of admission as well as selection ofstudents, but such a procedure must be fair and transparent, and theselection of students in professional and higher education colleges shouldbe on the basis of merit. The procedure adopted or selection made shouldnot be tantamount to mal administration.58

It was further pronounced by the Court that while giving aid toprofessional institutions, it would be permissible for the authority givingaid to prescribe by rules or regulations, the conditions on the basis of


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which admission will be granted to different aided colleges by virtue ofmerit, coupled with the reservation policy of the state qua non-minoritystudents.59

With regard to the statutory regulation of the administration of theminority institutions it was held that the regulatory measure of controlshould be minimal and the conditions of recognition as well as theconditions of affiliation to an university or board have to be compliedwith, but in the matter of day-to-day management, like the appointmentof staff, teaching and non-teaching, and administrative control over them,the management should have the freedom and there should not be anyexternal controlling agency.60

The Court also pronounced that fees to be charged by unaidedinstitutions cannot be regulated but no institution should chargecapitation fee.61

Islamic Academy case62 clarifying TMA Pai judgment held that, inunaided professional institutions, there will be full autonomy. However,the principle of merit cannot be sacrificed. The Court further made itclear that without interfering with the autonomy of unaided institutions,the object of merit based admissions can be secured by insisting on it as acondition to the grant of recognition and subject to the recognition ofmerit; the management can be given certain discretion in admittingstudents.

The Court while dealing with the issue of admission held that themanagement can have quota for admitting students at its discretion butsubject to satisfying the test of merit based admissions, which can beachieved by allowing management to pick up students of their ownchoice from out of those who have passed the common entrance testconducted by a centralized mechanism.63

Bench in Islamic Academy case directed setting up of two committees ineach State: one committee "to give effect to the judgment in TMA PaiFoundation" and to approve the fee structure or to propose some otherfee which can be charged by minority institutions, and the othercommittee to oversee the tests to be conducted by the association ofinstitutions.

The above two judgments were further clarified in P. A. Inamdar v. Stateof Maharashtra.64

With regard to reservation, the Court was of the view that neither thepolicy of reservation can be enforced by the State nor any quota orpercentage of admissions can be carved out to be appropriated by theState in a minority or non-minority unaided educational institution.However, it was noted that a limited reservation of 15% may be made for


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NRI depending on the discretion of management subject to the conditionthat such seats should be utilised for NRI wards and the money collectedfrom such seats should be utilised for the benefit of economicallybackward students, whom, on well- defined criteria, the educationalinstitution may admit on subsidized payment of their fee.65

With regard to admission procedure, the Court explicitly made it clearthat to admit students being one of the components of "right to establishand administer an institution", the State cannot interfere therewith. Up tothe level of undergraduate education, the minority unaided educationalinstitutions enjoy total freedom in this regard.

The Court further held that different considerations would apply forgraduate and post-graduate level of education, as also for technical andprofessional educational institutions. Such education cannot be impartedby any institution unless recognized by or affiliated with any competentauthority created by law, such as a University, Board, Central or StateGovernment or the like. Excellence in education and maintenance ofhigh standards at this level are a must. To fulfil these objectives, theState can and rather must, in national interest, step in.66

The Court while clarifying TMA Pai Foundation case held that minorityunaided institutions can legitimately claim unfettered fundamental rightto choose the students to be allowed admissions and the proceduretherefore subject to its being fair, transparent and non- exploitative. Thesame principle applies to non-minority unaided institutions. Further, italso held that all institutions imparting same or similar professionaleducation can join together for holding a common entrance test satisfyingthe above said triple tests. The State can also provide a procedure ofholding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal-administration. The admissionprocedure adopted by private institution or group of institutions, if it failsto satisfy all or any of the triple of being fair, transparent and non-exploitative, can be taken over by the State substituting its ownprocedure.

With regard to the fee structure, the Court observed that every institutionis free to devise its own fee structure but the same can be regulated in theinterest of preventing profiteering. In other words, no capitation fee canbe charged. The Court observed that the right to fix reasonable fee iscovered within the right to “establish and administer” an institution.

On the issue of the formation of committees, the Court clarified that thetwo committees for monitoring admission procedure and determining feestructure in the judgment of Islamic Academy are permissive asregulatory measures aimed at protecting the interest of the student


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community. It further observed that the legal provisions made by theState Legislatures or the scheme evolved by the Court for monitoringadmission procedure and fee fixation do not violate the right ofminorities under Article 30(1) or the right of minorities and non-minorities under Article 19(1)(g). They are reasonable restrictions in theinterest of minority institutions permissible under Article 30(1) and in theinterest of general public under Article 19(6) – right of the State toimpose reasonable limitations to enjoy Article 19 rights – of theConstitution.67

TMA Pai case, as clarified, firstly by Islamic Academy case and then byP AInamdar case is the law of the land on Article 30.These judgmentsseek to clarify the doubts which persisted since the drafting of theconstitution. The Supreme Court has tried to strike a balance between therights of the minorities to establish and administer educationalinstitutions on the one hand, with the constitutional guarantee of non-discrimination of non-minority communities, on the other. Though themajority judgment of TMA Pai did not agree completely with the 50%reservation of seats to the students belonging to minority community, aslaid down in the ruling of St. Stephen’s, had mandated that the Stateshould prescribe the ceiling on the quota for other community membershaving regard to the nature of education, population, and the educationalneeds of the area in which the institution is located.68

The dissenting judgments of the two judges, Justice Quadri and JusticeRuma Pal, in TMA Pai are very instructive. Justice Quadri, in a strongdissent, held that the right of minority institutions to admit individuals ofminority communities is not in any way affected by the receipt of Stateaid. He reasoned that unlike other fundamental rights such as Articles 19,25,, or 26, no such limitations have been incorporated in Article 30 (1).Consequently, the injunction in Article 29 (2) cannot be made applicableto minority educational institutions under Article 30 (1). Placing theword ‘only’ in Article 29 (2), Justice Quadri asserted that if the denial ofadmission to non-minority members is based on protecting the rights ofminority institutions, it would not be in violation of Article 29 (2), sinceit is based on the need to protect rights of minorities under Article 30 (1).The constitutional requirements of equality and secularism recognise therights of minority institutions to admit students of their choice, as well asthe right of minority community students to seek admission in suchinstitutions over others. He also emphasised that unlike Article 337 thereis no in Article 30 to suggest that the receipt of grant-in-aid would resultin making available the percentage of seats in the institutions to non-minority students. Any other view would convert the right in Article 30(1) into a ‘promise of unreality’.69 Justice Ruma Pal also delivered animportant dissenting judgment, holding that a minority institution does


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not waive its right by seeking aid, and the absence of any restriction inArticle 30 demonstrates the same. If Article 29 applied to minorityinstitutions under Article 30 (1), it would largely ‘wipe out’ the right andthere would be no difference between minority educational institutionsand other educational institutions. She, however, carved out an exceptionthat Article 29 would apply if a minority institution is admitting studentsof other communities, and in such a scenario it will have to admitstudents without discrimination.70

Closing Thoughts

We began by exploring the debate on minority rights in the ConstituentAssembly and the drafting of the Constitutional provisions. We furtherdiscussed the issues relating to the minority educational institutions andalso highlighted the Supreme Court’s decisions on the subject.

It is submitted that debate in the Constituent Assembly was full ofcontainment. Draft articles on the minority educational institutions werecriticised as being group rights and were argued as being against theconcept of democracy, justice, secularism. It was feared by some that itmight underpin the national unity. This is one of the reasons behindambiguous nature of this provision. The biggest loophole of thisprovision is that it does not define the term “minority”.

TMA Pai case, clarified by Islamic Academy case and P. A.Inamdar casehas provided substantive clarity to this provision. Analysing thesejudgments from a positive point of view it can be safely concluded that ifminority educational institutions are not seeking any aid from theGovernment they are totally free from any control except the demands ofnatural justice and transparency. If they receive Government aid, thejudgment asks the Government to exercise only the minimum regulationsnecessary to maintain standards and to provide some representation fornon-minority students.

However, there are many grey areas left. Interpretation andimplementation of these judgments is an area of prime concern. Since,these judgments have extended the limits of governmental control; Statecan now interfere more directly in the administration of the minorityeducational institutions than earlier. Further, quota politics might bemisused by the government to fulfil their political aspirations. The issueof defining minority by the State government might lead to a number ofproblems. There is a fear that if the State government does not exerciseutmost care and sensitivity in this matter, they could seriously underminethe rights of the minorities to establish and administer their owneducational institutions as guaranteed by Article 30 of theConstitution.There is also a certain amount of vagueness with regard to


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the application of Article 29 (2) against aided minority educationalinstitutions.

It is clear from the judgments that Supreme Court, on the one hand, doesnot want to curb the guarantees given by the Constitution to minorities;and on the other hand, it is reluctant to give up the non-discriminationdoctrine of Article 29(2) whenever public funds are utilised to supporteducational institutions.

Article 30 offers an important space to the minorities to shape theireducational situation in accordance to their desires and should beencouraged as it helps the State in dealing with culture-specific factorsbehind their educational backwardness.

Endnotes

1 999 UNTS 171 and 1057 UNTS 407 / [1980] ATS 23 / 6 ILM 368 (1967)(hereinafter referred as ICCPR)2Abdulrahim P. Vijapur, “International Protection of Minority Rights”,InternationalStudies, Vol. 43 (4), 2006, p. 374.3 UN General Assembly, Declaration on the Rights of Persons Belonging toNational or Ethnic, Religious and Linguistic Minorities, 18 December1992, A/RES/47/1354 The preamble to the UN Declaration on the Rights of Persons Belonging toNational or Ethnic, Religious and Linguistic Minorities, 1992 reads as:“minorities possess rights to enjoy their own culture, to practice their ownreligion, and to use their own language; to participate in cultural, religious,social, economic and public life; to participate in decisions on the national and,where appropriate, regional level; and to associate with other members of theirgroup and with persons belonging to other minorities”.5 Some other UN instruments that extend minority rights protection include the1951 Convention on the Prevention and Punishment of the Crime of Genocide,78 U.N.T.S. 277; the 1960 UNESCO Convention Against Discrimination inEducation, 429 U.N.T.S. 93; and the 1989 Convention on the Rights of theChild, 1577 U.N.T.S. 43. See also the 1993 Vienna Declaration and Programmeof Action, A/CONF.157/23 (12 July 1993).6 St. Stephan’s College v. University of Delhi, AIR 1992 SC 1630 [italicsadded].7 Hereinafter referred as ‘CAD’8See, CAD, vol. III, pg. 296; CAD, vol. I, p. 107; CAD, vol. I, p. 139; CAD, vol.V, p. 202; CAD, vol. V, p. 202.9See, CAD, Vol. I. Pg. 114; Also see, Rochna Bajpai, “Constituent AssemblyDebates and Minority Rights”, Vol. 35, No. 21/22, EconomicandPolitical (May27- June 2, 2000).


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10Ibid. Rochna Bajpai, “Constituent Assembly Debates and MinorityRights”.Minorities were referred to as 'disfigurements’ cancerous',' poisonous'for the body politic. Minority safeguards in such utterances were referred tovariously as 'privileges', 'concessions' and 'crutches'. For discussion onminorities refer to, CAD, vols. I, VII and XI.11 CAD, Vol. VII, 4th Nov, 1948 [italics added].12See, B. Shiva Rao, The Framing of India’s Constitution: Select Documents(New Delhi: Indian Institute of Public Administration, vol. II.,1966) at p. 20913 Ibid at p. 291-29214 See, Ajit Bhattacharjee, Social Justice and the Constitution (Shimla: IndianInstitute of Advanced Studies, 1997) at p.125. Also see, Majeed Akhtar, Nationand Minorities: India’s Plural Society and its Constituents (New Delhi:Kanishka publishers, 2002) at p. 66.15 CAD, Vol. VII, p.922-923. [italics added]16 See, Articles 331, 334, 336, and 337.17 Jagdish Swaroop, Constitution of India (New Delhi: Wadhwa Book Company,2006) at p. 1319.18 Ahmedabad St. Xavier’s College Society v. State of Gujarat, AIR 1974 SC1389, 139519 Supra note 14 [italics added]20 AIR 1958 SC 95621 Supra note 17 at 139422 (2002) 8 SCC 481. This view has been accepted in P. A. Inamdar v. State ofMaharashtra, (2005) 6 SCC 537.23 M. P. Singh, V N Shukla’s Constitution of India, 11th edn. (New Delhi:Eastern Book Company, 2008) at p. 263-264.24 AIR 1971 SC 173725 Bramchari Sidheswar Shai v. State of W.B., AIR 1995 SC 208926 A.S.E Trust v. Director, Education, Delhi Administration, AIR 1976 Del. 20727See, In Re Kerala Education Bill, 1957, AIR 1958 SC 956; W. Proost v. Stateof Bihar, AIR 1968 SC 475; Sidhrajbhai v. State of Bombay, AIR 1963 SC 540.28 AIR 1974 SC 138929 Article 29 (1) reads as: “ Any section of the citizens residing in the territory ofIndia or any part thereof having distinct language, script or culture of its ownshall have the right to conserve the same.”30 It is pertinent to note here that Article 29 (1) is a general protection given tosections of citizens to conserve their language, script or culture. Article 30 is aspecial right to minorities to establish and administer educational institutions oftheir choice.31 Supra note 22 at p. 25832 Article 29 (2) reads as: “No citizen shall be denied admission into anyeducational institution maintained by the state or receiving aid out of state fundson grounds only of religion, race, caste, language or any of them.”33 Sidhrajbhai v. State of Gujarat, AIR 1963 SC 540; Sheetansu Srivastava v.Principal, Allahabad Agricultural Institute, Naini, Allahabad and another, AIR1989 All 117; St. Stephen’s College v. University of Delhi, 1992 AIR 1630


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34 Ranu Jain, “Minority Rights in Education: Reflection on Article 30 of theIndian Constitution” Economic and Political Weekly [June 11, 2005], p. 2430,2435.35 St. Stephen’s College v. University of Delhi, 1992 AIR 1630, 1659[italicsadded]36 (2002) 8 SCC 48137 Supra note 22 at 26338 See, St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558; TMA PaiFoundation v. State of Karnataka, (2002) 8 SCC 481.39 Desai, M, Minority Educational Institutions and Law (Akshar Prakashan,Mumbai, 1996) at 79-80. See also, Ranu Jain, “Minority Rights in Education:Reflection on Article 30 of the Indian Constitution” Economic and PoliticalWeekly [June 11, 2005], p. 2430, 2432.40 M Desai, Minority Educational Institutions and Law (Akshar Prakashan,Mumbai, 1996) at p. 8041 AIR 1968 SC 662.42 Frank Authority P.S.E. Association v. Union of India, AIR 1987 SC 311; Seealso Yogendra Nath Singh v. State of Uttar Pradesh, AIR 1999 All 356.43 2005 (4) AWC 3745. It is to be noted that in Azeez Basha v. Union of India,AIR 1986 SC 662, the Supreme Court held that since Aligarh MuslimUniversity was established by the legislature by an act of Parliament, theMuslim community could not claim the right to administer it. In other words,court said that the Muhammedan Anglo-Indian College had lost its identity byits conversion into the AMU.44 AIR 1983 SC 145 Rev. Sidhajbhai, Sabhai v. State of Gujarat, AIR 1963 SC 54046 In Re Kerala Education Bill, 1959 1 SCR 995 at p. 105347 Ibid48 2008 K.L.J 149 The Roman Catholic Society of the brothers of the Sacred Heart of Jesus andOrs. v. The Government of Tamil Nadu, represented by its Commissioner andSecretary, Education Department and Ors.,(1991) 2 MLJ 440. Also see, ReKerala Education Bill, AIR 1958 SC 956.50 Guidelines for the recognition of minority educational institutions prepared byNational Commission on Minority Educational Institutions could be accessed athttp://ncmei.gov.in/writereaddata/filelinks/c296efcb_Guidelines.pdf [last visitedon 26th September, 2016].51 Until TMA Pai Foundation case, there were four cases the field of education.They were Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645, St.Stephen's College v. University of Delhi (1992)1 SCC 558, Ahmedabad St.Xavier's College Society v. State of Gujarat, (1974)1 SCC 717 and In Re:Kerala Education Bill, 1957, (1958) SCR 995.52 (2003) 6 SCC 69753 AIR 2005 SC 323654 (2002) 8 SCC 481 [Answers to eleven question, Q. no. 4; Kirpal, CJI]55 Ibid


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56 Ibid. What would constitute ‘reasonable extent’ was not measured. However,it was held that it would vary from the types of institution, the courses ofeducation for which admission is being sought and other factors like educationalneeds. The concerned State Government has to notify the percentage of the non-minority students to be admitted in the light of the above observations.Observance of inter se merit amongst the applicants belonging to the minoritygroup could be ensured. In the case of aided professional institutions, it can alsobe stipulated that passing of the common entrance test held by the state agencyis necessary to seek admission.57 Ibid58 (2002) 8 SCC 481 [Answers to eleven question, Q. no. 5(a); Kirpal, CJI].Court was also of the opinion that even an unaided minority institution ought notto ignore the merit of the students for admission, while exercising its right toadmit students to the colleges aforesaid, as in that event, the institution will failto achieve excellence.59 (2002) 8 SCC 481 [Answers to eleven question, Q. no. 5(b); Kirpal, CJI]60 (2002) 8 SCC 481 [Answers to eleven question, Q. no. 5(c); Kirpal,CJI].Court also opined that the regulations can be framed governing serviceconditions for teaching and other staff for whom aid is provided by the State,without interfering with the overall administrative control of the managementover the staff.61 Ibid62 (2003) 6 SCC, p. 69763 The Court was of the opinion that such common entrance test can beconducted by the State or by an association of similarly placed institutions in theState. Court also stressed on the need to have a common entrance test to avoidgreat hardship and incurring of huge cost by the hapless students in appearingfor individual tests of various colleges.64 AIR 2005 SC 3236. Court framed four questions in this case. The firstquestion dealt with the appropriation of quota and enforcement of reservationpolicy; Second question looked into the issue of admission procedure; thirdquestions dealt with question of fee while the last questions dealt with thecommittees formed pursuant to Islamic Academy case. A copy of the judgmentcould be accessed at: http://judis.nic.in/supremecourt/imgs.aspx [last accessedon 28th January, 2017]65 Ibid. Court opined that minority institutions are free to admit students of theirown choice including students of non-minority community as also members oftheir own community from other States, both to a limited extent only and not ina manner and to such an extent that their minority educational institution statusis lost.66Ibid67 Ibid. However, the Court noted, that the committees, should be more sensitiveand should act rationally and reasonably with due regard for realities. Theyshould also refrain from generalizing fee structures and, where needed, shouldgo into accounts, schemes, plans and budgets of an individual institution for thepurpose of finding out what would be an ideal and reasonable fee structure forthat institution.


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68TMA Pai (2002) 8 SCC,p. 151.69Cited in K. Vivek Reddy, “Minority Educational Institutions”, in SujitChoudhry, Madhav Khosla and Pratap Bhanu Mehta (eds.),TheOxfordHandbookoftheIndianConstitution (Oxford University Press, NewDelhi, 2016), pp.940-41.70Ibid., p.941