“The Constitution has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, The People.”

-Joseph story

The whole debate in the Constituent Assembly on Article 23 of the Draft Constitution which later assumed the shape of the present Article 29 and 30, revolve round this issue: what rights could or should be conceded to minorities? Indian constitution draftsman believed that in order to be a welfare state various fundamental rights should be endowed to citizens as to develop a sense of equality and unity and right to education is the best developer of these principles. But the challenge of India’s plurality is enormous – eight major religions and myriad creeds, 800 languages of which 22 are ‘official’ languages, 8% of the population are indigenous peoples, a social mosaic of castes and sub castes and over 60 socio-cultural sub regions, so it’s quite difficult to provide equal status to minority. The reference to minorities was a reference to none other than Indian minorities existing in India. The original draft of the fundamental rights submitted to the Constituent assembly on April 16, 1947 by the Sub-Committee on Fundamental Rights did not contain any provision corresponding to article 30(1) and did not even refer to the word minority. The letter submitted by K.M. Munshi to the Minorities Sub-Committee on the same date when, along with some other rights, the rights now forming part of article 30(1) was proposed, made a reference on the term “national minorities” which was later substituted by the committee as ‘any section’. Article 29(1) confers on ‘any section of the citizens’ the fundamental rights to preserve their language, script or culture. Under Article 29(2), no citizen can be denied admission into school or college which receives state aid on the basis of religion, race, caste or language. Article 30(1) goes a step further and gives all minorities, whether linguistic or religious, the right to establish and administer educational institutions of their choice. Article 30(2) prohibits the central and state governments from discriminating against minority institutions while granting financial aid. Thus, minorities have the fundamental rights to establish their own schools and colleges. But the controversy that arose from time to time was the extent of autonomy that these institutions could enjoy. Could they have total freedom in recruiting staff, having their own curriculum and admitting students of their choice?

Kerala Education Bill Case
The article came up for interpretation before a seven judge Constitution Bench constituted to consider the reference made by the President under article 143 in In re Kerala Education Bill sponsored by the Communist Government of the state which was stoutly opposed by Christians and Muslims. Chief justice S.R. Das delivered the majority opinion. He spoke for six judges with the sole dissent by Justice Venkatarama Aiyar being confined to the question whether minority institutions were entitled also to recognition and state aid as part of the right guaranteed by article 30(1). C. J. Das held, inter alia: An institution, in order to be entitled to the protection, need not deny admission to members of other communities. Not necessarily an institution run by religious minority should impart only religious education or that one run by the linguistic minority should teach language only. Institution imparting general secular education is equally protected. The minority has a right to give “a thorough, good general education”. Grant of aid or recognition to such institution cannot be made dependent on their submitting to such stringent conditions as amount to surrendering their right to administer to them. However the right to administer does not include the right to misadministration reasonable regulations can be made. And while regulation prescribing the qualifications for teachers were held reasonable.

The conflict between the state and minority educational instituted as it continued, Supreme Court didn’t had to wait long and in 1974,Chief Justice A.N.Ray constituted a nine-judge Bench to consider this constitutional controversy in a writ petition filed by the Ahmadabad St. Xavier’s college society.

St Xavier’s Case

In Ahmadabad St. Xavier’s College Society v. State of Gujarat, the Society of Jesus, the petitioners, was running the St. Xavier’s College at Ahmadabad with the objective of providing higher education to Christian students. However, children of all classes and creeds were admitted to the college. The college was affiliated college under the Gujarat University Act, 1949. State legislations encroaching upon the right of minority educational institutions became frequent. That led to St. Xavier’s College challenging the legislation in the Supreme Court. The crux of the matter was the autonomy of the educational institutions and what were the limits of governmental interference, especially in the matter of appointment and dismissal of teachers and admission of students of the minority community. The petitioners challenged sections 33-A, 40, 41, 51-A and 52-A of the Gujarat University Act, 1972 which provided for university nominees in the governing and selection bodies of all colleges, conversion of all affiliated colleges to constituent colleges, approval of Vice Chancellor for disciplinary action against members of teaching staff, and reference of dispute between the staff and management to arbitration in which the umpire has to be Vice Chancellor’s nominee.

Nani Palkhivala, appeared for petitioners, argued that the rights conferred by Article 30(1) could neither be taken away nor abridged by the state on account of the injection in Article 13(2), state shall not make any law which takes away or abridges the right conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. He created a prism on the theme of autonomy of religious minorities, contending that any requirement of prior approval by the vice-chancellor or any other officer of the university authorized by him before awarding punishment in cases of disciplinary misconduct, and that too without any guidelines for the grant or refusal of such approval, would virtually deprive the management of any control whatsoever over its staff. Similar criticism was raised against the power of the university to appoint its own representative to the governing council.

“The completeness, the generosity, the thoroughness with which individual rights have been safeguarded in the section of our Constitution devoted to fundamental rights, the way in which these fundamental rights were placed under the power and jurisdiction of the Supreme Judicature and the spirit in which those provisions were passed by this House.”-Jerome D’Souza

The spirit behind article 30(1) is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general education to make them complete men and women of the country. Nani eloquently and movingly expounded the legal position to the nine-Judge bench. The majority judgment upholding the right of the minorities is a substantial contribution to our constitutional jurisprudence.

The Supreme Court has rightly pointed out,

“The whole object of conferring the right on the minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality.”

The expression “minority” has been derived from the Latin word ‘minor’ and the suffix ‘ity’ which means “small in number”. The word minority has not been defined in the Constitution. The Motilal Nehru Report (1928) showed a prominent desire to afford protection to minorities, but did not define the expression. The Sapru Report (1945) also proposed, inter alia, a Minorities Commission but did not define Minority. The U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities has described minority as non dominant groups having different religion or linguistic traditions than the majority population. J.A. Laponee in his book “The Protection to Minority” describes “Minority” as a group of persons having different race, language or religion from that of majority of inhabitants Article 30(1) uses the terms ‘linguistic’ or ‘religious’ minorities. The word ‘or’ means that a minority may either be linguistic or religious and that it does not have to be both – a religious minority as well as linguistic minority. It is sufficient of it is one or the other or both. The constitution uses the term ‘minority’ without defining it. In re The Kerala Education Bill, the Supreme Court opined that while it is easy to say that minority means a community which is numerically less than 50 per cent, the important question is 50 % of what? Should it be of the entire population of India, or of a state, or a part thereof?

“The essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavored or, for that matter, receive more favorable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions.”

The linguistic approach tries to construe the word “administer” so as to confine it to good administration. The right to administration does not include the right to maladministration an institution. This approach can be found in the judgment of the S.R. Das, C.J. in Kerala Education Bill. The approach of autonomy, so long as the autonomy of this institution is preserved, regulation of its working is permissible. Khanna J. The moral approach states that if the minorities asserts a right of administration, it is their duty to provide good administration. The constitutional-cum-linguistic approach what the constitution in article 13 prohibits is a law, which “abridges” a fundamental right. Regulatory measures do not abridge the fundamental rights guaranteed by article 30 and are therefore not hit by article 13. This approach was enunciated by Mathew J. The logical approach, legislative measures that do not directly impinge upon minority rights are permissible, not withstanding that their indirect impact may be adverse to those rights. The primary object is not interference with a fundamental right, than the fact that the secondary impact of the challenged law may be to impair a fundamental right, is immaterial by Mathew J.

In disposition to bestow egalitarianism and congruence among its citizens, variousarticles in our constitutions and acts are being embodied so, that these minorities can emulate majority. Among these articles article 30(1) and National Commission for Minority Educational Institutions Act, 2004 provides minorities to establish, administer educational institutes and to affiliate themselves to central universities. But various lacunas are being observed since the birth of these rights and acts. It has been observed that these articles and acts are unable to clear various facet like, is there any right to create educational institutes for minorities and if so under which provision? And in order to determine the existence of a religious or linguistic minority in relation to article 30, what is to be the unit, the State or the country as a whole? Thereby to what extent can the rights of aided private minority institutions to administer be regulated? Even National Commission for Minority Educational Institutions Act, 2004 defines a minority institute as “a college or institution (other than a university) established or maintained by a person or group of persons from amongst the minorities.” Per se St.Xavier’s case went on to become the law of the land and with the passage of time, this would also become the law for unaided private educational institutions of a non-minority character as the scope of Article 19(1)(g) was extended to confer the highest degree of autonomy on such institutions.

-By Devika Singh, VIPS