Article 29-30

Insertion of Articles 29 and 30, conferring fundamental rights on minorities to establish and
administer educational institutions and empowering section of citizens having distinct
language, script or culture to conserve the same, were aimed at bringing about equality and to
instill a sense of confidence among the minorities.

Article 29:

(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) 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

Article 30: Right of minorities to establish and administer educational institutions

(1) All minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition of any property of
any educational institution established and administered by a minority, referred to in
clause (1), the State shall ensure that the amount fixed by or determined under such
law for the acquisition of such property is such as would not restrict or abrogate the
right guaranteed under that clause.

(2) 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 minority, whether
based on religion or language.

The Kerala Education Bill case,1958, held that “a minority” means a community which is
numerically less than 50 per cent. The Supreme Court decision in T.M.A. Pai
Foundation,2003, settled that the criteria for determining minority shall be the population of
the state. Thus, the term minorities refer to those communities who are numerically less than
50% in a State on the basis of state population.
In SP Mittal v Union of India, AIR 1983 and Azeez Basha v Union of India, 1968 : In
order to claim the protection of Article 30, it must be proved that there is a religious or
linguistic minority and that such minority has established an educational institution. It was
held that if these twin conditions are satisfied only then the protection of Article 30(1) can be
claimed in administering such institution.

In Azeez Basha v Union of India, 1968 ,Supreme Court held that if an educational
institution (AMU) is not been established by the minority community but through a
legislation,then they have no right to administer it under Article 30.

.(Kerala education Bill, 1958 it was held that : a)An institution, in order to be entitled to
the protection, need not deny admission to members of other communities.

b) It is not necessary that 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".

c) 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.

d) Regulation prescribing the qualifications for teachers was held reasonable. Those
relating to protection and security of teachers and to reservation in favor of backward
classes which covered government schools and aided schools alike, were "perilously
near violating that right", but "at present advised" were held to be permissible
regulations. Provision centralizing recruitment of teachers through State Public Service
Commission and taking over the collection of fees etc. were held to be destructive of
rights of minorities to manage the institutions.). However, it can not be laid down as to
how much percentage of students from non-minority have to be admitted by such institutions.
Such percentages can be fixed by the government depending upon the level of the institution,
whether it be primary, secondary, college, professional institute, the population and the
educational needs of the area.(PA Inamdar case)However, inter se merit must be ensured.

The above observations were endorsed by the Apex Court in T.M.A. Pai Foundation. The
above account reflects that the scope of 30(1) is not confined to teaching of religion or of the
language of minority community only, the institution may choose to impart such general or
professional education as it wishes. The expression “of their own choice” is of wide
amplitude. The institution may impart religious or secular education as per its own choice.
Further, it is not necessary that admission to such institution should be confined to members
of minority community only, they may have sprinkling of outsiders which does not take away
the minority character of the institution. Further, it is not necessary that the institution shall
aim at conserving language, script or culture of the minority.))

In the case of St Xavier’s College v State of Gujarat, 1974, Supreme Court has stated that
“the establishment of a minority institution is not only ineffective but also unreal unless such
institution is affiliated to a university for purpose of conferment of degrees on students. In the
absence of recognition, Minority educational institutions cannot effectively achieve their
chosen object of imparting general secular education, which, under Art.30 (1), they are
entitled to do.”. But the power to affiliate cannot be used by the university - i. To Interfere
with the day-to-day administration of the institution; or the right of management belonging to
the minority community; ii. To Interfere with aims, ideals and objects to be achieved by the
institution; iii. To Require that all appointments or dismissal by the governing body must be
subject to the approval of the university.

In St. Stephen’s College v. University of Delhi,1992, the preference given to Christian

students by St.Stephen’s College was challenged. The Supreme Court by the majority of 1 to
4 held that a) the college is not bound to follow the university circulars as it will deprive the
college of their minority character( means State or university cannot provide that admission
to minority institutes should be on merit). The right to select students for admission is an
important facet of administration. b) 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 students.

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.

T.M.A Pai Foundation v. State of Karnataka [2003], Supreme Court explained that in case
of unaided minority educational institutions the regulatory measures of control should be
minimal. An unaided institution must have greater autonomy than an aided institution.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. They can also separate fee structure but should not charge capitation fee.
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 (not necessarily 50-50%) varying from
case to case depending on minority population, their educational status etc.

In the case of P.A. Inamdar v. State of Maharashtra,2005 court declared that neither
the policy of reservation can be enforced by the state nor any quota or percentage of
admission can be carved out to be appropriated by the state in a minority or non-
minority unaided educational institution. So far as appropriation of quota by the State
and enforcement of its reservation policy is concerned, there is not much of difference
between non-minority and minority unaided educational institutions. The state cannot
insist on private and minority unaided educational institutions which do not receive any
aid from state to implement states policy on reservation for granting admission on lesser
percentage of marks, i.e. on any criterion except merit. Unaided institutions, as they are
not deriving any aid from State funds, can have their own admissions if fair,
transparent, and non-exploitative and based on merit.

In Sindhi Education Society and Anr. v. The Chief Secretary, Govt. of NCT of Delhi
2010 , the challenge was regarding the constitutionality of Rule 64(1)(b) of Delhi School
Education Rules, 1973 which required all educational institutions receiving aid to furnish
an undertaking that they would make reservation in the appointments of teachers for
the Scheduled Castes and Scheduled Tribes. The Supreme Court held that the above
rule, so far it relates to minority educational institutions to make reservation in
appointments, was unconstitutional.

The extent of regulation/control by the government in case of an educational institution

receiving aid from the government again came up for scrutiny in Pramati Educational and
Cultural Trust v. Union of India 2014. The Constitutional Bench of the Supreme Court was
confronted with the validity of Section 12(1)(b) read with section 2(n)(iii) of the Right to
Education Act, 2009 vis-à-vis Article 30(1) of the Constitution of India. The provision
contained in RTE Act contemplated that an aided educational school shall have to provide
free and compulsory education to a percentage of weaker sections of society. The
minority aided schools were also subject to the same condition and they were put under a
legal obligation to provide free and compulsory education to disadvantaged sections of
society whether they belong to that minority community or not. Similarly section 12(1)(c) of
the Act read with section 2(n)(iv) provided similar condition in case of unaided schools
whether minority institution or otherwise. The Supreme Court held that the provisions of
the RTE Act, 2009 in so far as they apply to minority schools are ultra vires the
Constitution. The Court observed that if the impugned provisions were made applicable
to minority institutions, it would abrogate the protection given under Article 30(1).

Right to administer educational institution of minorities choice includes,

 right to choose its managing or governing body;

 right to choose its teachers;
 right to admit students of their choice; -the right to use its assets and properties for
the benefit of its own institution; (St. Xaviers College Society v State of Gujarat, AIR
1974)
 right to choose medium of instruction of its own choice;( In D.A.V. College v. State
of Punjab1971, Supreme Court made it clear, neither the university nor the state
can provide for imparting education in a medium of instruction in a language
and script which stifles the language and script of any section of any citizens.
Such a course will trespass on the rights of those sections of citizen which have
distinct language and script and which they have right to conserve through
educational institution of their own. However the state can provide for the study of
the state language as a compulsory second language.)
 right to have reasonable fee structure subject to the limitation that there can be no
profiteering and no capitation fee can be charged directly or indirectly; - right to take
action if there is dereliction of duty by any of its employees, (PA Inamdar v State of
Maharashtra, AIR 2005)

In Sidhrajbhai v. State of Gujarat,1963, the petitioners were the management of the Mary
memorial training college at Ahmedabad, established by Christian minority. The Gujarat
government issued an order reserving 80 percent seats in the training colleges for the
nominees of the government. The order further provided that refusal to admit the candidates
nominated by the government would result in withholding recognition and the stoppage of
grants-in-aid to such institution. The Supreme Court held the order violative of the
fundamental right of the minority guaranteed under article 30(1). The court said that state
regulation should be reasonable. These, in order to be valid, must be regulative of educational
character

Difference b/w Article 29 and 30

 Article 29 is not confined to minorities( like Article 30) but extend to all sections of
citizens.
 Article 30(1) confers the right to establish and administer educational institutions of
minorities choice. For enjoyment of rights conferred under Article 29(1), it is not
necessary to establish educational institutions and the right can be exercised otherwise
also.
 Article 29(2) bars discrimination in admission on the grounds only of religion, race,
caste etc in State owned or State aided educational institutions whereas Article 30(1)
confers right on minorities to administer educational institutions which includes, as
stated above, right to admit students of their choice
 Article 29(1) is absolute right but bare reading of Article 30 would suggest that it is
not subject to any limitations/restrictions yet reasonable restrictions to regulate such
institutions which do not take away the right to administer such educational
institutions are permissible. Though Article30 (1) is not specifically subject to the
restrictions in Article 19(6) but the perusal of various decisions of supreme court in
particular St. Xavier college, Sidhrajbhai Sabhai , T.M.A. Pai Foundation and T.M.A.
Pai clarificatory judgments pronounced in Islamic Academy and P.A. Inamdar cases
suggest that the right is subject to various reasonable restrictions for the betterment, of
the institution and the students of that institution viz. But unreasonable restrictions
under the guise of regulations tantamount to infraction of Article 30 and would thus
be declared as unconstitutional. Judiciary has been alive to such unnecessary and
unreasonable encroachment on the rights guaranteed under Article 30 and has struck
down such efforts.
  Article 29(1) neither controls nor is controlled by Article 30(1). The scope of both the
Articles is different. It is not necessary that religious or linguistic minority shall
establish educational institution to preserve its culture and language. Similarly, it is
not necessary that minority educational institution shall impart only religious or
linguistic education only. The expression “of their own choice‟ appearing in Article
30(1) is of wide amplitude meaning that minority educational institutions are free to
impart general secular education of their own choice.

To conclude:

 Under Art 30(1)(a), MEI enjoy right to education as a Fundamental Right. In case the
property is taken over by state, due compensation to be provided to establish
institutions elsewhere
 Under Article 15(5), MEIs are not considered for reservation
 Under Right to Education Act, MEI not required to provide admission to children in
the age group of 6-14 years upto 25% of enrolment reserved for economically
backward section of society
 In St Stephens vs Delhi University case, 1992, SC ruled that MEIs can have 50%
seats reserved for minorities
 In TMA Pai & others vs State of Karnataka & others 2002 case, SC ruled that MEIs
can have separate admission process which is fair, transparent and merit based. They
can also separate fee structure but should not charge capitation fee. Government can
regulate to an extent even unaided minority institutes.
 P A Inamdar that neither the policy of reservation can be enforced by the state in a
minority or non-minority unaided educational institution
 In Pramati case the Supreme Court held that the provisions of the RTE Act, 2009 in
so far as they apply to minority schools(be it aided or unaided) are ultra vires the
Constitution.