ARTICLES 29 AND 30 - CULTURAL AND EDUCATIONAL RIGHTS
The Legal Lock
INRODUCTION
Article 29(1) of the Constitution of India gives protection to every section of Indian citizens residing in Indian Territory having a distinct language, script or culture by guaranteeing their right to conserve the same. As held by Shah, J. in Jagdev Singh Sidhanti v. Pratap Singh Daulta (AIR 1965 SC 183), the right to conserve with respect to Article 29(1) includes the right to agitate for the same. Unlike Article 19(1), Article 29(1) is not subject to reasonable restrictions. The right under Article 29(1) is absolute. Therein, the validity of the election of the appellant, under Representation of Peoples Act was in question. It was alleged that the appellant had taken the help of the Hindi agitation to woe the voters, and also that he used the "Om Dhwaj" a religious symbol, in his election meetings. The Supreme Court upheld the election.
Article 29(2) of the Constitution of India prohibits the denial of admission into educational institutions maintained by the State or receiving aid out of State fund, on grounds only of religion, race, caste, language, or any of them. Notably, Article 15 of the Constitution of India also prohibits discrimination on grounds of religion etc.
However, Article 15(1) of the Constitution of India and Article 29(2) of the Constitution of India are different in their scope:
∙ Article 15 deals with all kinds of discrimination whereas, Article 29 deals with discrimination only with respect to admission to educational institutions.
∙ ‘Language’ is not a ground under Article 15 whereas, ‘place of birth’ and ‘sex’ is not a ground under Article 29.
∙ Article 15 is applicable against the state only whereas, Article 29 is applicable against the state and any other body.
SCOPE OF ARTICLE 29 AND ARTICLE 30
The scope of Articles 30(1) and 29(1) is not the same. Else any section and not only religious and linguistic minorities can establish educational institutions. On the other hand if Article 29(1) is read into Article 30(1), then the scope of Article 30(1) will be limited only to conservation of language, script or culture. This will be a violation of the language of Article 30(1) as it would
make Article 30(1) redundant.
The purpose of Article 30 is to ensure that there will be equality between the majority and minority sections and it cannot be, consequently, limited only to religious instructions. This would defeat the very purpose of Article 30. As held in in Re Kerala Education Bill, 1957 (AIR 1958 SC 950) the object of Article 30 is to enable children of minorities to go out in the world fully equipped and this can be done by imparting general secular education to them at par with the other institutions. The right to freely profess, practice and propagate their religion has been given to the citizens by Article 25. Article 30, therefore, includes 'secular education'. The same was reiterated in Re. Father Prost v. State of Bihar (AIR 1969 SC 465) as follows: “The two articles create two separate rights though it is possible that the rights might meet in a given case... The general secular education would generate a feeling of commonness among the children of the minorities with the other children of the country.... This is the true spirit of liberty, equality and fraternity through the medium of education.”
Also, Article 30(1) uses the words “of their own choice”. This makes it pretty clear that the scope of Article 30 (1) is with respect to the choice made by religious and linguistic minorities and not with respect to religious and linguistic education. The same view was reiterated by K. Jagannath Shetty, J. speaking for the majority in St. Stephen's College v. University of Delhi (AIR 1992 SC 1630).
Implication of 'only' in Article 29(2) of the Constitution of India:
In State of Bombay v. Bombay Education Society (AIR 1954 SC 561), a government circular directed English medium schools to admit only Anglo Indians and citizens of non-Asiatic descent
in English language classes on the ground of promotion of national language. It was held that the direct cause of the order was denial of admission to all pupils whose mother tongue was not English. However laudable the object is, the order was violative of Article 29(2) as the discrimination was made 'only' on ground of 'language'. However, Article 29(2) does not confer a legal right on the members of other committees to freely profess, practice and propagate their religion within the precincts of a college run by a minority community.
Article 29(1) as compared with Article 30(1):
∙ Article 29 (1) extends to all sections of citizens and not only those sections who have a distinct language, culture or script whereas, Article 30(1) extends only to religious and linguistic minorities.
∙ Article 29 (1) confers general right to conserve their distinct language, culture or script whereas, Article 30(2) only confers the right to establish' and 'administer' educational institutions.
ISSUES REGARDING ARTICLES 29 AND 30
1. ARE ARTICLES 29(1) AND 30(1) MUTUALLY EXCLUSIVE:
This question was dealt with in St. Xavier's College v. State of Gujarat (AIR 1979 SC 1389), Ray, C.J., speaking for himself and Palekar, J. and delivering the majority judgment, observed:
“Articles 29 and 30 are grouped under the heading ‘cultural and educational rights’. The distinct rights conferred by Articles 29 and 30 are:
∙ Right of any resident citizen to conserve his script language or culture.
∙ The right of all linguistic or religious minorities to establish and administer educational institutions of their choice.
∙ The right of an educational institution not to be discriminated against in matters of granting aid by the State on the ground that it is under the management of a linguistic or religious minority.
∙ Right of a citizen not to be denied admission into any State maintained or State aided educational institution on the ground of religion, caste, race or language.”
Comparison of Article 29(1) and Article 30(1):
∙ Article 29(1) - Fundamental right on any section of citizen - will include the majority section also.
Article 30(1) - Fundamental right only on minorities, that too, linguistic or religious.
∙ Article 29(1) - Only language, culture or script can be conserved.
Article 30(1) - No such limitations.
∙ Article 29(1) - Right to conserve script, language or culture.
Article 30(1) - Right to establish and administer educational institutions.
∙ Article 29 (1) - The conservation in Article 29(1) can be by means wholly unconnected with educational institutions.
Article 30(1) - Educational institutions under Article 30(1) may be wholly unconnected with conservation of language, script or culture.
2. WHETHER MINORITY INSTITUTIONS HAVE FUNDAMENTAL RIGHT TO AFFILIATION:
This question was also dealt with in St. Xavier's College v State of Gujarat (AIR 1979 SC 1389), and it was observed that the primary purpose of affiliation is that the students reading in the minority institutions will have qualifications in the shape of degrees necessary for a useful career in life. Denial of the same would amount to make the fundamental right under Article 30 ineffective. The Court also held that the University while granting affiliation can impose regulations on the institutions with respect to quality of education, syllabi, health and hygiene of students, laboratory, library etc.
These regulations, as held in State of Kerala v Rev. Mother Provincial (AIR 1970 SC 2079) are very necessary and important in the interest of the minority institutions as well as the country and the people. However, such conditions precedent which takes away their right to administer and rob them of the right under Article 30 cannot be imposed.
3. AMBIT AND SCOPE OF ‘ADMINISTER’ IN ARTICLE 30: The right guaranteed to religious and linguistic minorities by Article 30 (1) is two-fold: 1) To establish educational institutions of their own choice.
2) To administer that institution.
Though couched in absolute terms, the right guaranteed in Article 30 is not absolute in the sense that certain regulatory measures can be imposed. The key words are "of their own choice". These words indicate that the extent of the right is to be determined, not with reference to any concept of State necessity and general societal interest but with reference to the educational institutions themselves, i.e. with reference to the goal of making the institutions effective vehicles of education for the minority community or other persons who resort to them. Thus, regulatory measures designed towards achieving that goal can be imposed as these would in no way infringe the right under Article 30(1); rather they would help making the right move effective in the light of its purpose.
As observed by Shah, J. in Re Kerala Education Bill Case (1958 SC), “Right to administer does not mean right to mal-administer." No doubt the institution has got the right to manage its own affairs; this right does not also confer upon it the right to fall from the general levels of standard in education, or to be indifferent towards the health and hygiene of the students or the quality of teachers.”
Some Landmark cases pertaining to this issue are briefly discussed as follows:
1. In Re Kerala Education Bill 1957 (AIR 1958 SC 958):
Certain sections of the above Bill of the State Government prescribed:
∙ Qualifications to be possessed by persons to be appointed as teachers. ∙ Procedure for selection of teachers.
∙ Conditions of service of teachers of aided schools to afford security of tenure. ∙ Prior sanction of university official before removal, suspension, dismissal etc. of the teachers.”
It was held by S.R. Das, C.J. that:
▪ “Fundamental rights guaranteed by Article 30(1) cannot be surrendered wholly or partly and the authorities cannot make the grant of aid conditional upon the surrender of a part of the fundamental rights. At the same time the grant of aid by the Government is a necessity else the educational institutions will have to be closed down.
▪ The states may prescribe reasonable regulation to ensure the excellence of the institution to be aided. The conditions can be related to recruitment of competent teachers, healthy surrounding, adequate standards of teaching etc.
▪ Certain sections of the Kerala Education Bill which prescribed for parity of pay of teachers with those of other schools, the qualifications for persons to be recruited as teachers etc. were held to be reasonable. Whereas certain clauses which made it mandatory for the
management to obtain prior sanction of the authorized officer for dismissing, removing. suspension, reduction in rank of a teacher were held to be unreasonable and making senior inroads on the right of administration.”
2. Rev. Sidhrajbhai Sabhai v. State of Bombay –
The abovementioned view was reiterated and it was held that like Article 19, Article 30(1) is not subject to reasonable restrictions. However, certain regulations may lawfully be imposed by the state for granting aid to the extent that they do not rob the minority institution of its essential right to administer.
The two tests formulated were:
∙ test of reasonableness,
∙ the test that it is regulative of the educational aspect of the institution and endeavors to make the institution an effective mode of education.
3. State of Kerala v. Rev. Mother Provincial –
Administration means 'management of the affairs' and standards of education do not come within its domain. Certain sections of the Kerala Universities Act prescribing essential permissions of the Vice Chancellor before suspending, dismissal, removal etc., of teachers, were held to be unconstitutional as they robbed the management of disciplinary powers which is an essential attribute of administration.
4. Ahmedabad St. Xavier's College Society v. State of Gujarat –
Therein a section of the Gujarat Universities Act, 1949 provided that no member of the teaching and non-teaching staff of an affiliated college shall be dismissed, removed, reduced in rank except with the approval of Vice Chancellor. Another section provided that any disputes between the staff and management of the college was to be referred to
arbitration consisting of a member each nominated by the management, the staff and the Vice Chancellor (Umpire). Ray, C.J., speaking for the court held these two provisions to be violative of Article 30(1). Khanna, J. who concurred, held that the above sections were otherwise valid; what was objectionable was the blanket power given to the Vice Chancellor to veto the disciplinary action and the right given to the Vice Chancellor to nominate an Umpire, who practically would have the final say. Mathew, J. speaking for himself and Chandrachud, J. endorsed the above view of Khanna, J. and held that regulations to be permissible have to be judged from the point of view of their purpose and not state necessity.
Certain permissible measures enlisted were:
∙ Taxation laws
∙ Transfer of Property
∙ Sanitation
∙ Regular payment of salaries to staff before a particular date
∙ Provision for audit of account
∙ Prevention of anti-national activities
∙ Qualification of teachers etc. (Khanna, J.)
5. All Saints High School v Government of Andhra Pradesh –
The sections involved were:
∙ No dismissal, removal, reduction in rank of teachers without prior approval of a competent authority was held invalid as it infringed the right (of private schools) to disciplinary action.
∙ No teacher shall be placed under suspension except when an enquiry into the gross misconduct of such teacher was contemplated was held to be valid.
∙ Provision for appeal against dismissal etc. was held to be invalid.
∙ Pay and allowance of a teacher to be paid before a due date was held to be valid.
∙ Prior approval of competent authority needed for retrenchment of teachers due to Government order etc. was held to be valid.
6. Frank Anthony Public School Employees Association v. Union of India – The uniqueness of the case lies in that it was for the first time that a law expressly stated that certain provisions are not to apply to private schools and the employees (and not the management) contended that it should. In this case the provisions were challenged on the ground that they were discriminatory and hence violative of Article 14. Whereas the State contended that they were more than mere regulatory measure and if allowed to be applicable to minority institutions they would make serious inroads upon their fundamental right under Article 30(1).
The Delhi School Education Act was passed for providing better organization and development of school education in Delhi. Sections 8 to 11 deal with "terms and conditions of service of employees of recognized private schools". Section 10 of the Act requires that the scales of pay and other conditions of service of the employees of a recognized private school shall not be less than those of the employees of the Government schools of Delhi. But Section 12 of the Act makes these beneficial provisions of Sections 8 to 11 inapplicable to unaided minority schools. The Frank Anthony Schools Employees. Association sought a declaration from the Court that Section 12 which made the beneficial provisions of the Act inapplicable to their school was unconstitutional as being violative of Articles 14, 21 and 23 of the Constitution. The management of the School contended that these provisions of the Act were inapplicable to minority institutions since they interfere with the right of management vested in the minorities under Article 30(1). It was said that the payment of salary was the part of the right of management to appoint members of staff.
The Supreme Court held that the provisions of Sections 8 to 11 (except Section 8 (2) of the Delhi School Education Act were regulatory in nature, aimed at the excellence of the education institutions and were not violative of rights of the respondent under Article 30(1). The excellence of education institutions would directly depend upon the excellence
of the teaching staff, and in turn, that would depend on the quality and the contentment of the teachers. Conditions of service pertaining to minimum qualifications of teacher, their salaries, allowances and other conditions of service which ensure security, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and pupils cannot be said to be violative of Article 30(1). The management of a minority school cannot be permitted under the guise of Article 30(1),
to oppress or exploit its employees which would bound to lead to discontent and deterioration of standard education imparted in the institution and affecting adversely the object of making the institution an effective vehicle of education for minority community or other persons who resort it.
Accordingly, it was held that Section 12 of the Act which made the beneficial provision inapplicable to unaided minority schools was discriminatory and violative of Article 14 and directed the Delhi Administration to enforce the beneficial provisions of Sections 8 to 12 [except Section 8(2)] in the case of Frank Anthony Public School.
7. St. Stephen's College v University of Delhi (AIR 1992 SC 1630) -
Facts: Therein the validity of the admission programme and the preference given to the Christian students was challenged as violative of Delhi University Circulars for admission to B.A. and B.Com. Courses. The validity of preference given to the Christian students by the Allahabad Agricultural Institute was also challenged. Three questions were formulated:
1) Is St. Stephen's College a minority institution?
2) Being a minority institution, is it bound by the university circulars directing that the college shall admit students on the basis of merit of the percentage of marks secured by the students in the qualifying examination?
3) Whether St. Stephen's College and Allahabad Agricultural Institute are entitled to accord preference to students of their own community? This last question, the court observed, was a new question not discussed in any of the earlier cases.
As to the First Question, the Supreme Court held:
∙ 'Establish' and 'administer' go together.
∙ Minority in question is a 'resident' of India.
∙ As held in A.P. Christian Society Case (1986), there must exist some positive index to enable the educational institutions to be identified with religious or linguistic minorities. ∙ In the present case, the college was indisputably established by a religious minority ‘The Christians’ and as the Delhi University Act and the Constitution of the College and practice show, the college has not lost its minority character by merely getting affiliated to the Delhi University.
As to the Second Question, the Supreme Court held:
“Regulations pertaining to educational standards etc. can be imposed but the right to select students for admission is a part of admission. The Court after examining the manner, nature, scope of the special interview for admission and held that it did not violate the principles laid down in earlier cases viz. supplementary test, maximum of 15% of total marks etc. Accordingly, the Court held that the special procedure for admissions in the college could not be regulated by the University. Moreover, the method of admission contemplated by the University circulars would deny the Christian students their right to admission.
As to the Third Question, the Supreme Court held:
The issue involved was the citizen's entitlement as part of his personal liberty not to be discriminated against on ground of religion as against the minority's right in their own educational institution. The Supreme Court found it impossible to admit that the minorities contemplated in Article 30(1) can establish and administer educational institutions solely for the benefit of their community people. The absence of "for their own community" at the end of Article 30(1) goes on to prove this. The same was held by the Supreme Court in In Re Kerala Education Bill 1957 (AIR 1958 SC 958. At the same time, it was true; the Court held that discrimination between candidates on ground of religion was apparently violative of Article 29(2).
Article 29(2) prohibits denial of admission into educational institutions maintained or aided by State funds only on ground of religion, race, caste, language or any of them. This prohibition
applies to minorities as well as non-minorities and is an essential tenet of the concept ofsecularism. 'Any of them' further emphasizes the prohibition. This non-discrimination is the starting point for minorities not their only goal. The preservation of their separate entity as a group is also a constitutional goal under Article 30(1).
The Court distinguished the present case from the In Re Kerala Education Bill Case wherein it had been held that Article 30(1) is subject to Article 29(2). This observation, the court held, was a mere passing reference and the court in that case was not confronted with the present situation: "Whether minorities can reserve seats for their own community candidates at the cost of the opportunity to other candidates".
As Khanna, J. had observed in Ahmedabad St. Xavier's College Society v. State of Gujarat, it must be ensured that nothing is done to deprive the minorities of a sense of belongingness and a feeling of security. Article 30(1) was incorporated to secure to minorities a fair deal in the name of religion only and they cannot be treated in a neutral way. Thus reservations are also permissible to the minorities.
In order to balance the two apparently conflicting mandates of the constitution, the Court brought in the doctrine of balancing of interests.
CONCLUSION
We have attempted to comprehend not only who the government regards as a minority through this essay, but also the reasoning behind the government's recent revisions to the reservation regulations for minority universities. Important concerns like "who can be considered a minority" and "whether affiliation is a Fundamental Right" have been subjected to a laborious process that we have witnessed. We appear to have a long way to go in the area of cultural and educational minority rights, even if it is evident that our judiciary has worked extensively in this area.