In this article, Ana Khan of Jamia Milia Islamia discusses Article 29 and 30 of the Indian Constitution.

Introduction

India is a dynamic constitutional democracy with a feature of accommodating pluralism in thought and language so as to preserve cohesiveness and unity in diversity. The meaning of diversity has different connotations such as geographical, religious, linguistic, racial and cultural. To say India is linguistically diverse is not an exaggeration or any subjective thing. According to the 8th Schedule of the Indian Constitution, it recognizes 22 languages, which are:

1. Assamese
2. Bengali
3. Bodo
4. Dogri
5. Gujarati
6. Hindi
7. Kannada
8. Kashmiri
9. Konkani
10. Maithili
11. Malayalam
12. Manipuri
13. Marathi
14. Nepali
15. Odia
16. Punjabi
17. Sanskrit
18. Santhali
19. Sindhi
20. Tamil
21. Telugu
22. Urdu

A linguistic or religious minority community can conserve its language and culture through educational institutions but “no citizen shall be denied admission into any educational institution maintained by the state or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them1”. Jamia Millia Islamia and Aligarh Muslim University are the prominent examples of minority educational institutions.

The Scope of Article 29 and 30 of the Constitution

These two articles confer four distinct rights.

1. The Right of citizens to conserve its language, script or culture [Art.29(1)]1– “Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same”
2. The Right of a citizen not to be denied admission into state maintained and state-aided institution on the ground only of religion, race, caste, or language [Art.29(2)2]-”No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them”
3. The Right of all the religious or linguistic minorities to establish and administer educational institutions of their own choice [Art.30(1)3]-“All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”
4. The Right of an educational institution not to be discriminated against in the matter of State aid on the ground that it is under the management of a minority [Art.30(2)4]-“The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”

To preserve language, script, and culture

Article 29(1) extends to all the citizens irrespective of the fact whether they are in majority or minority, the only condition being that such section must have a distinct language, script or culture of its own.

It is an absolute right for the minorities to preserve its language and culture through educational institutions and cannot be subject to reasonable restrictions in the interest of the general public.

Restrictions on the ground of religion, race, caste or language

Article 29(2) is an individual right given to citizen and not to any community. The present clause gives an aggrieved person, who has been denied admission on the ground of his religion. If a person has the academic qualifications but is refused admission only on the grounds of religion, race, caste, language or any of them, then there is a clear breach of the fundamental right under this section.5

Right to Establish and Administer Educational Institution

Article 30(1) is further divided into two parts, that is:

Right to establish

To claim the benefit under article 30(1) it is not necessary-

1. That the institution must seek to conserve the language, script or culture of the minority community; what is necessary is its establishment by the minority community, it may impart religious or secular education wholly unconnected with language, script, and culture.
2. That admission into such institution must be confined exclusively to members of the minority community, and not a single member of the majority community or other minority communities should have its advantage.6

Case Study of Aligarh Muslim University (AMU) {Azeez Basha v. Union of India}

In the case of Azeez Basha v. Union of India 7, the Supreme Court held that if an educational institution is not been established by the minority community then they have no right to administer it. The term “established” and “administered” have to be read in coordination. The University Grants Commission Act prohibits the formulation of “University” established by the educational institution unless and until it is governed by law.

1. Wanchoo clearly stated that the article cannot be read to mean that even if the minority institution had been established by any other authority (Act of Parliament), in this case, the religious minority cannot avail the services of the university because “establish” and “authority” are the terms which are complementary to each other.

In the case of Dr. Naresh Agarwal v. Union of India8, where 50% of the seats to be filled on the basis of entrance examination conducted by Aligarh Muslim University and the other 50% of the seats was reserved for Muslim Candidates. The petitioners in this case, who are Hindu by caste have been deprived of their right to participate in the process of admission against that 50%. The Allahabad High Court followed the judgment of Azeez Basha v. Union of India and held that AMU is not a minority institution and struck down the amendment which was made in the favor of Aligarh Muslim University.

Definition of Minority

The term ‘minority’ is not defined anywhere in the Constitution of India but the judges have interpreted the meaning in many different cases which are mentioned below:

• Re-Education Bill [9]

Supreme Court through J. S.R Das held that “minority” means a community which is numerically less than 50% of the total population.

A similar judgment was passed by the Kerala High Court in the case of A.M Patroni v. Kesavan10 in which it was held that “any religious or linguistic community which is less than 50% of the total population shall be considered as a “minority”.

• D.A.V College, Bathinda v. State of Punjab & Ors [11]

For the purpose of article 30(1) a community may constitute a minority based on language, even though they may not have a separate script; it would be enough if they have a separate spoken language.

Right to administer

The word “administer” under article 30(1) of the Constitution means the right to manage and conduct the affairs of the institution. It is open to a university to impose reasonable conditions upon a minority institution for maintaining the requisite educational standard and efficiency like-

1. Qualifications of teachers to be appointed in the institution;
2. Conditions of service e.g the age of superannuation of teachers;
3. Qualifications for entry of students;
4. Courses of study (subject to special subjects which the institution may seek to teach)
5. Hygiene and physical training of students.12

In State of Bombay v. Bombay Education Society13, it was held that “Where…..A minority like the Anglo Indian community, which is based, inter-alia, on religion and language has the fundamental right to conserve its language, script and culture under Article 29(1) and has the right to establish and administer educational institution of their choice under Article 30(1)5 surely then there must be implicit in the fundamental right, the right to impart instruction in their own institutions to children of their own community in then own language…….such being the fundamental right the police power of the state to determine the medium of instruction must yield to the fundamental right to the extent it is necessary to give effect to it and can not be permitted to run counter to it”

In St. Xavier’s College v. The State of Gujarat, the court held that the right to administer is the right to ‘conduct’ and ‘manage’ the affairs of the institution.

Admission Procedure in Minority Educational Institution

In St. Stephen’s College v. University of Delhi14, the preference is given to Christian students by St.Stephen’s College was challenged.

The Supreme Court by the majority of 1 to 4 held that the college is not bound to follow the university circulars as it will deprive the college of their minority character. The right to select students for admission is an important facet of administration. This power also can be regulated but the regulation must be reasonable and should be conducive to the minority institutions. The impugned directive of the university to select students on the uniform basis of marks secured in the qualifying examinations would deny the right to the college to admit students belonging to the Christian community. Unless some concession is provided to the Christian students15

The court decided the two categories for the selection process:

1. Category I – 50% of the seats reserved for the minority community.
2. Category II – remaining 50% are selected on the basis of merit.

But in T.M.A Pai Foundation v. State of Karnataka [16], it was held that “A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence”.

The court also overruled the decision in St. Stephen‟s case. The court has now granted the power to the state to fix quotas for minority students.

Role of National Commission for Minority Educational Institution – A boon for minority educational institution

The National Commission for Minority Educational Institution has the original jurisdiction to determine the minority status of any educational institution as held by the Hon’ble Supreme Court of India.

Justice Nariman, who authored the judgment, said the NCMEI Act grants the Commission to act upon all the queries relating to the status of a minority institution.

A power of cancellation was also vested in the NCMEI to cancel a certificate granted either by an authority or the NCMEI.17

Whether Jamia Millia Islamia is a minority institution?

On 22nd February 2011 National Commission for Minority Educational Institution (NCMEI) has declared Jamia Millia Islamia a religious minority institution and that the university will have the benefit of being a minority institution under article 29 and article 30 of the Constitution.

According to Section 2 (o) of the JMI Act says “University” means the educational institution known as “Jamia Millia Islamia” founded in 1920 during the Khilafat and Non-Co-operation movements in response to Gandhiji’s call for a boycott of all Government-sponsored educational institutions, which was subsequently registered in 1939 as Jamia Millia Islamia Society, and declared in 1962 as an institution deemed to be a University under section 3 of the University Grants Commission Act, 1956, and which is incorporated as a University under this Act.18

On 5th March 2018, an affidavit is filed by the incumbent Government in the Delhi High Court regarding the minority status of Jamia Millia Islamia where they cited the case of Azeez Basha v. Union of India to justify their stand, in which the apex court held that university incorporated under the act of parliament cannot be claimed as a minority institution.

The affidavit concludes that JMI is not a minority institution as it was set up by the Act of Parliament and funded by the central government and it was not set up by any minority sect.

Conclusion

Our constitution aims at “Unity in Diversity”. The minority status is not only dependant on the basis of religion but also on linguistic minorities. These provisions are inserted in the constitution so that minorities can also preserve and develop their culture.

In St. Xavier College v. State of Gujarat[19] that “the spirit behind the provision of the following article is conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutes, of their choice for the purpose of giving their child the best general education to make them complete man and women of the country.”

1. India Const. Art. 29 cl.1.

2.  India Const. Art. 29 cl. 2.
3. India Const. Art. 30 cl.1
4. 5. Durga Das Basu, Shorter Constitution of India, 346 (Wadhwa and Company Law Publishers, Nagpur,13th edition,2001).
5.  Durga Das Basu, Shorter Constitution of India, 349 (Wadhwa and Company Law Publishers, Nagpur,13th edition,2001).
6.  1968 AIR 662, 1968 SCR (1) 833.
7. 2005 (4) AWC 3745, 2005 (4) ESC 2489.
8. AIR 1958 SC 956.
9. AIR 1965 Ker 75.
10. 1971 AIR 1731, 1971 SCR 677.
11. Durga Das Basu, Shorter Constitution of India, 356 (Wadhwa and Company Law Publishers, Nagpur,13th edition,2001).
12.  1954 AIR 561, 1955 SCR 568.
13. (1992) 1 SCC 558.
14.  Dr. J.N Pandey, Constitutional Law of India,402(Central Law Agency, Allahabad,54th edition,2017)
15. AIR 2003 SC 355.
16.  Krishnadas Rajagopal, Supreme Court rules NCMEI has wide powers, The Hindu, (18th April,2018,22:36),https://www.thehindu.com/news/national/supreme-court-rules-ncmei-has-wide-powers/article23590265.ece
17. https://www.jmi.ac.in/upload/jamiadocs/JAMIA/ActStatutes.pdf.
18.  1974 AIR 1389, 1975 SCR (1) 173.