This article is written by Aastha Verma, pursuing B.A.LL.B from Kalinga University, Raipur, Chhattisgarh. The article covers the rights of minorities under Article 30 of the Indian Constitution and the role of the government in the minority community.
Article 30 of the Indian Constitution
The word minority is not defined anywhere in the Indian Constitution. It is derived from the Latin word ‘minor’ and suffix ‘ity’ which means in small numbers. Article 30 is defined under Part III of the Indian Constitution which defines the fundamental rights of the citizens irrespective of religion, race, caste, and sex. This is also known as the ‘Charter of educational rights’. Article 30 upholds the rights of minority communities to establish and administer the educational institution of their choice. It ensures the rights of minorities which should be preserved. Indian society is a mixture of various communities and its diversity is its strength. Our Constitution guarantees these rights to the minority community so that the diversity of the country is preserved and propagates their culture. This provision safeguards the rights of the minority community by the principle of equality for all under Article 14 of the Constitution. It also empowers the minority community to give education to the children in their language.
There was a debate in the Constituent Assembly to restrict the minorities to a linguistic basis only and argue that India is a secular state and it should not be categorised based on religion. Another member of the assembly proposed that it is the fundamental right of the citizens to receive primary education in their own language and script subject to the minority population. The Constituent Assembly rejected the proposal and divided the minority into two parts –
- Religious Minorities – Religious minorities are decided by the numerical strength of the community. In India, Hindus are in majority and it’s important for the government to save the rights of the minorities. As India is a multi-religious country, Section 2(c) of the National Commission of Minorities Act,1992, six communities are declared to be the minority. They are – Muslims, Christians, Buddhists, Sikhs, Jains, and Parsis. It is established to protect the rights and interests of the minority community.
- Linguistic Minorities – Group of people whose mother language is different from that of the majority group is considered as linguistic minorities. The Indian Constitution protects the rights of these minorities by the principle of equality for all. Article 350A of the Indian Constitution imposes an obligation on the State to provide enough facilities to translate the language into the mother language at the primary level of education.
In the case T.M.A.Pai Foundation v. State of Karnataka (2002) the Supreme Court laid down the guidelines related to Article 29 and 30 of the Constitution. The religious and linguistic minorities shall be determined state-wise and not nationally. Regulation around the proper functioning, well-being of students and teachers can be imposed by the government. The government can impose standard regulations, they should not destroy the minority character of the institution and the interference of the government should be very limited in the minority educational institution.
There are three types of minority educational institutions –
- Institutions that demand recognition and aid from the State.
- Institutions that demand recognition from the State and not aid.
- Institutions that neither demand recognition nor aid from the State.
The institutions which demand recognition from the State and are aided or not from the State are bound to follow the rules of the State and these regulations are related to the employment of teaching staff, discipline, academic standards, and sanitation, etc. And the institutions that neither demand recognition nor aid from the State are free to administer their rules but have to follow the general laws like labour law, contract, industrial law, etc. Furthermore, these institutions have to follow the eligibility criteria prescribed by the state. They are free to appoint teachers only by the rational procedure.
Supreme Court’s decision on Article 30
The judgment delivered in case Secretary of Malankara Syrian Catholic College v, T. jose & ors.(2006) the Honourable Supreme Court held that under Article 30 of the Constitution the right conferred to minorities is to ensure equality with the majority that does not mean to give the advantageous position to the minorities and the general laws will apply to all the educational institutions. Also, there is an issue raised that Article 30A prohibits the teaching of Bhagvat Geeta, Vedas, Puranas, etc. The Court held that Article 30A is not there in the Indian Constitution.
Protection of minorities – why is it important for the Indian government
The Indian government has adopted laws and policies which are discriminating against the rights of minorities. During the communal violence in Delhi, there were a total of 53 people killed out of which 40 were Muslims. Instead of conducting an investigation, the BJP leaders incited violence and targeted activists and protest organizers.
In November 2020, when Sikhs were protesting against the farm bills, the government responded to the protest and investigated their alleged affiliation. On February 8, the Prime Minister spoke in the Parliament for the peaceful protest of the farmers calling an international criticism of the increasing authoritarianism in India.
In December 2019, the government passed a Citizenship Amendment Act, 2019 that discriminates against the Muslim religion while granting citizenship. The government revoked the constitutional autonomy granted to the only Muslim majority state and imposed restrictions in violation of people’s basic rights. The leaders and supporters protest against Muslims for conspiring against the national interests.
Rohingya Muslim refugees of Myanmar are at risk of their lives and security and the Indian government has threatened and repatriated them. States use law against cow slaughters to prosecute Muslim cattle traders and spread rumours that they killed cows for beef. Many states have passed anti-conversion laws which are used against Muslim men who marry Hindu women.
The action of the government has created a communal hatred in the society and led to fear and mistrust of authorities among the minority community. So, the government has to roll back the discriminatory laws, policies, and ensure justice for abuse against the minorities.
When can the State interfere in the rights conferred by Article 30
Every institution requires a regular check for the management of the institution so that nobody can misuse the power given to them. The government tries to check the academic status and maintain the standard required for the institution. They have the power to take action if there is a misuse of the power and can control the teachers or employees working in the institution. They can also make them follow the rules and regulations of the institution. The State is responsible to look at these institutes for the effective functioning of the rules and regulations. The State has the authority to make directive policies and can take action for the welfare of the organizations. But it was held that the government cannot impose restrictions on the functioning of the institution as it is a violation of the rights of the minority communities. And after a complete decision, it was laid down that the government forms set rules and regulations for private organizations and the same will be applied to these minority institutes as well.
The extent of Article 30 also comprises the right to take help from the State in terms of money and finance, right to choose management bodies, staff, and employees. Further included, these rights are not perfect or complete. The motive behind Article 30(1) is to bring the minority institution into existence, make their own terms and conditions, and carry out exams and provide degrees and diplomas.
Minority institutions under Article 30(1)
In January 2017, the Supreme Court bench held that minority educational institutes have the absolute right to appoint qualified principals in terms of work experience and not alone in terms of seniority. Whether the appointment is reasonable or not and to check whether there is a violation of the right of an individual candidate is done by the High Court under Article 226 of the Indian Constitution by exercising the power of judicial review.
The dual test criterion
In Rev. Sidharjbhai (1963), a bench of the Supreme Court observed that a minority institution shall be valid only when it satisfies the dual test which makes the minority institution more effective for the minority education. In the case of Kerala Education Bill Case (1957), the dominant word under Article 30 is ‘choice’. Thus, every minority can make a choice in respect of relation with the government and under reasonable restrictions can prescribe the minimum qualification. The qualification and experiences will be applicable the same as that of the University Grant Commission (UGC) but the government won’t be able to impose the selection of teachers of their own choice.
Educational rights of the minorities
The minority communities are entitled to establish their own educational institution but the right should not be absolute. The Centre has told the Supreme Court that the rights of minorities should not be absolute as it blocks the state laws which are enacted to achieve secular objectives and included that if Article 30 is absolute then the government will not be able to interfere even if the institution is teaching secession or armed revolution. Nobody has the right to do something which is against the public policies just to profess his religion. Under Article 19(6) of the Constitution, it was stated that the government has the right to impose reasonable restrictions on it. Also, the minority institutes that are fully funded by the state lose the right to administer it in spite of the rights given under Article 30. Article 29(1) and 30(1) of the Indian Constitution facilitate the minority rights to establish and manage their own educational institution. The only difference is Article 29(1) tries to define who are minority communities. In the case of St. Xaviers College V. the State of Gujarat, (1974) it was stated that both the Articles are not mutually exclusive. The Indian Constitution provides cultural and educational rights to the minority communities so that they are able to preserve their distinct culture, language, and scripts.
The 44th Constitutional Amendment of 1978 removed the right to property as a fundamental right but ensured that it would not affect the rights of the minority community to establish the educational institution of their own choice. Under Article 32 of the Indian Constitution, they have the right to establish the institute of their own choice as well as to operate independently but have a formal collaborative agreement with the State.
Protection of rights of religion and linguistic minorities is the backbone of secular values. Article 30 ensures the rights of the minority communities in educational institutions and prohibits discrimination against them. This Article provides the fundamental rights to minorities irrespective of caste, religion, and sex. The Constitution guarantees the rights to the minority so that the diversity of the country is preserved and provides avenues for all groups including the marginalized to protect and preserve their culture. The minorities are divided into two groups. Religious minorities are defined as per the National Commission of Minorities Act, 1992, and linguistic minorities are groups of individuals whose mother tongue is different from that of the majority. In the case of T.M.A. Pai Foundation v. State of Karnataka, the Supreme Court held the guidelines for these minority communities and held that minorities will be decided according to the state-wise population and not by nationality. The government has the right to impose reasonable restrictions on these institutions for the effective functioning of the rules and regulations of the institution. Many times the government discriminates against the minority community so they have to roll back the discriminatory law and ensure justice to them, as it is creating a communal imbalance in the society.
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