NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

RESEARCH PROJECT
Protection of minority rights in relation with interplay of Article 29(2) &
Article 30

SUBMITTED BY:
ASISH MISHRA
ROLL NO: 564
SECOND SEMESTER
SECTION B

SUBMITTED TO:
DR. K SHYAMALA

India, the largest democracy in the world, also, arguably, has the most diverse population.
This makes the protection of rights of minorities of great importance, the rights become even
more important if they concern the domain of education because it is through education only
that one can inculcate the social and cultural values into the children of that particular
community. Now, if we draw a logical inference from this, it clearly suggests that minority
communities should have a right to set up and administer educational institutions with a view
to preserve their culture and to protect it from being marginalised by the majority
communities.
Art. 29(2) and 30(1) of the Indian Constitution guarantee such rights, but these innocuous
looking constitutional provisions have contributed thousands of pages to annals of Indian
Constitutional Law, this is because although it is uncontested that they are expressions of
fundamental rights of minorities, they have out rightly failed to strike a balance between the
rights of minorities and non-minorities.
The precise character of minority rights provided under the Constitution through mechanism
of article 29(2) and article 30 (1) has gone through various interpretations by the judiciary
which has resulted in these rights to be currently in a standard of confusion. The debate over
the said issue is such that even the decision of the Supreme Court in eleven judge bench of
T.M.A. Pai Foundation v. State of Karnataka 1 has been met with various discussions among
the courts in India. This project is an attempt to understand the trend of judicial thought with
regards to the rights of minorities in the administration of minority educational institutions.
Special protection of minorities derives legitimacy from the internationally recognised
vulnerability of identity-based groups caused by their non-dominance in terms of number and
power, which makes it difficult for them to achieve equality in the common national domain,
while preserving their distinct identity.
In the present project, the researcher has attempted to draw a critical legal analysis of the
existing position with regard to the scope of Articles 29(2) and 30(1), relying essentially on
the judicial precedents and the commentaries on constitutional provisions dealing with
minority educational institutions and hence the methodology followed is descriptive and
analytical whereby the current situation regarding the aforementioned has been described and
further analysed to make a critical evaluation.
1 (2002) 8 SCC 481

Research questions
1. The Researcher will be highlighting the contrasting position of law by discussing various
judgments relating to minority education rights with primary focus on the policy for
protection of interest of the minorities in educational institutions. The project shall also
endeavour to study whether the rights guaranteed under Article 29(2) is absolutely
independent or subject to coexistence with Article 30.
2. What is the scope of Article 30(1) with regard to State interference in the admission policy
of the minority educational institutions and that whether the right under Article 30(1)
regarding admission procedure is an absolute right or is subject to restrictions and State
control?

1. Interplay of Article 29(2) and 30(1)

The title of Article 29(2) though provides for the protection of the interests of minorities,
however, guarantees rights to all the citizens and not a particular category or section of
society as it postulates non-discrimination of citizens in granting admission into any
educational institutions maintained by state. Therefore, the article ensures that every citizen
be equally placed for the purposes of admission in any educational institution with regard to
religion, race, caste, language or any of them and none should be denied admissions on such
grounds as mentioned in the article.
On the other hand, Article 30(1) confers the right on minorities to establish and administer
educational institutions of their own choice. Admissions being a facet of administration,
minorities have liberty to admit students of their choice, to the extent that they may reserve
seats for the students of their own community, and provide for limited seats for students from
other communities, and thereby implicitly deny admissions to the students of that community.
Where such a minority educational institution is state aided, it comes into conflict with article
29(2), as the right of the citizens who are denied admissions is infringed and thereby the right
under 29(2) is infracted.

Article 29(2) has been held to be a special article and controlling provision when the question
relates to admission to colleges.2 As early as in State of Madras v. Champakam Dorairajan3,
Article 29(2) was invoked whereby the court held that that there cannot be communal
reservation in the educational institution receiving aid out of State funds. Hence Article
30(1) is subject to 29(2), and in case of state aided minority institutions, the right given under
30(1) is eroded. The court in In Re Kerala Education Bill4, which was the first landmark case
in a whole array of the jurisprudential discussion of the regulation of minority educational
institutions, held that the real significance or correlation of article 29(2) and 30(1) is that they
evidently contemplate a minority institution with sprinkling of outsiders in it. This was
reiterated in the case of P.A. Inamdar v. State of Maharashtra.5
In St. Stephens College v. University of Delhi,6 it was observed that the fact that Article
29(2) applies to minorities as well as non-minorities does not mean that it was intended to
nullify the special right guaranteed to minorities in Article 30(1) In TMA Pai, it was held by
the Supreme Court that grant-in-aid would not necessarily make an institution outside the
purview of article 29 (2) of the Constitution, however it cannot be said that the right provided
under the Constitution through article 30 (1) would be totally destroyed. This is the context
which showcases an interplay between both the articles of the Constitution i.e. article 29 (2)
and 30 (1). It is required and that both the articles have to be harmoniously constructed.
This can be accomplished by permitting admission of non-minority students to a moderate
extent based upon merit, even though the institution fundamentally admits students of its own
the minority group. However, what would constitute this reasonable or moderate extent is
not clearly stated by the court, for it held that it may not be prudent to fix any specific
percentage.7
2 Joseph Thomas v. State of Kerala AIR 1958 Ker 33.
3 (1951) 2 SCR 525.
4 (1959) 1 SCR 995
5 AIR 2005 SC 3226
6 1992(1) SCC 558.
7 St. Stephens College v. University of Delhi 1992(1) SCC 558.

If Article 29 and 30 are grouped together it will be wrong to restrict the rights of minority to
establish and administer educational institution concerned with language script and culture of
the minorities. The reasons are: Firstly, article 29 confers the fundamental rights on any
section of the citizen which will include the majority also where as article 30(1) confers all
rights on all minorities. Secondly, article 29(1) is concerned with language, script or culture,
whereas article 30(1) deals with minorities based on religion or language. Thirdly, article
29(1) is concern with the right to conserve language, script or culture, whereas article 30(1)
deals with right to establish and administer educational institutions of the minorities of their
choice. Fourthly, the conservation of language, script or culture under article 29(1) may be by
means wholly unconnected with educational institutions, and similarly establishment and
administer educational institutions by a minority under article 30(1) may be unconnected with
any motive to conserve language, script or culture. A minority may administer an institution
for religious education, which is wholly unconnected with any question of conserving
language, script or culture. It may be that article 29(1) and article 30(1) overlap, but the
former cannot limit the width of the latter.

2.1 Right to establish Educational Institution

Article 30(1) guarantees to all minorities based on religion or language the right to establish
and administer educational institution of their own choice. The word establish means to
bring into existence. It does not necessarily connote construction of the institution by the
minority.8 In A.M Patroni v. Asst. Educational Officer where a school previously run by some
other organization, was taken over by the church, which reorganized and managed it to cater
to and in conformity with the school as established by Roman Catholics. The school was held
to have been established by the Roman Catholics for the purpose of article 30(1). 9 The right
to establish under article 30(1) means the right to establish real institution which will
effectively serve the need of their community and the scholars who resort to them. 10 The
8 Kumar, Professor Narendra, constitutional Law of India ( Delhi, Published by
Pioneer Publications, Edition, 1997) p270
9 A.M Patroni v. Asst Educational Officer, AIR 1974 ker.197
10 Re Kerela education bill, AIR 1958 SC956

minority is not required to seek prior permission for the establishment of an educational
institution.11 However the mere fact that the school was founded by a person belonging to
particular religion did not make it a minority institution. Again, where funds, were obtained
from abroad for assisting in setting up and developing a school, which was established by a
minority in India, or that the management as is carried on at times by some persons who are
not born in India, cannot be a ground to deny to the school the protection of article 30(1).
Likewise, the fact that the school was successively having a non Christian headmaster does
not lead to conclusion that it was not established by the Christians.
The right to administer may be said to consist of the following rights:
i.
ii.
iii.
iv.
v.

To choose its managing or governing body;

To choose its teachers; and headmaster/principal.
Not to be compelled to refuse admission to students;
To use its properties and assets for the benefit of the institution;
To select its own medium of instruction12; hence, a legislation which would
penalize by disaffiliation from the university any institution which uses a language
as the medium of instruction other than the one prescribed by it, offends against
article 30(1)13

2.2 The Right under Article 30(1) Is Subject To State Control

Minorities or non-minorities, in exercise of their educational rights in the field of professional
education have an obligation and a duty to maintain requisite standards of professional
education. Even in matters of admission, the State has the power to issue guidelines for
qualifications and eligibility for merit to promote academic standards.14 Such regulations are

11 Socio Literati Advancement Society Bangalore v. State of Karnataka, AIR 1979

Karn.217
12 Basu Durga Das Shorter Constitution of India ( New Delhi, Published by
Wadhwa and Company, edition 13th) p350
13 D.A.V College v. State of Punjab, AIR 1971 SC1737
14 T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, at p.588.

a necessary limitation on the right under Article 30(1).15 In technical and professional
educational institutions, merit should almost be the utmost point so as to maintain the highest
standards. An individual knowledge and credence to merit is regarded as the wealth of the
nation for the promotion of States welfare and the State should step in to preserve this
wealth. It has been held in various judgments that the right to administer under Article 30(1)
does not include the right to mal-administer.16 Imposition of regulatory measures on minority
institutions have been upheld for securing proper functioning as an educational institution17
and enforcing general laws of the land, applicable to all persons.
The court while overruling St. Stephens case,18 on the ground that rigid percentage for the
admission of minority students cannot be stipulated, has held that it should be the discretion
of the authorities to issue a reasonable qualifying marks keeping in mind the characteristics of
the need of the minorities and preferable institutions. Therefore, the court has in effect
validated state intervention and deems it necessary.

2.3 Reservation of seats in favour of students of minority community

Does the right to establish and administer a minority institution of their own choice extend to
or includes the right to reserve seats for the students of minority community in a state funded
or aided institution? The matter first came before the Supreme Court in the case of Sheetansu
Srivastava v Principal, Allahabad Agriculture Institute19, where the institute denied admission
to the general student even though they secured high percentage of marks in the competitive
15 Usha Mehta v. State of Maharashtra, (2004) 6 SCC 264.
16 In Re: Kerala Education Bill 1957, (1959) 1 SCR 995; St. Stephens College v. University of
Delhi, (1992) 1 SCC 558.
17 Sidhrajbhai Sabhai v. State of Gujarat, AIR 1963 SC 540; Frank Anthony Public School
Employees Assocn. v. Union of India, (1986) 4 SCC 707.
18 (1992) 1 SCC 558.
19 Sheetanu Srivastava v Principal, Allahabad Agricultural Institute, AIR 1989 all
123

admission test held by the institute due to admission policy of reservation of 50 per cent of
seats for the church sponsored students from Uttar Pradesh and all over the country and the
reservation of the sets was challenged. The court held that such denial of admission to the
students who were higher in merit in the competitive test held for admission on the basis of
the admission policy of the institution ids liable to be quashed being violative of article 29(2)
of the constitution. The court reasoned that a minority may have religious right to impart
education so as to maintain its identity and culture but no religion preaches separatism. There
can be no reason in the claim that the government aided institutions should be permitted to
confines its educational activities to the student of their own community. Therefore both on
general approach and constitutional prohibition under article 29(2) the reservation policy of
the institution cannot stand.

CONCLUSION
It is a tough job to provide an equal platform among everyone, for a country like India. In
such a wide country, there is always inequality among various categories of it citizens i.e. in
particular the majority and the minority. In such a case, importance should be relied upon on
providing special rights so that these minorities may come up to the level of the majority
people and in consequence which results in their proper development. Such importance is
provided by the Constitution through article 30 (1) and establishment of the National
Commission for Minority Educational Institutions Act, 2004 which provides the minority
institution with autonomous power to administer their educational institutes. However, this is
with hiccups, being not a smooth ride.
The above analysis clearly manifests the judicial inconsistency in stating whether state
regulation is permissible or not. Both Pai and Inamdar refused to answer many questions on
the grounds that they did not require decision to arrive at a verdict, that they would be
decided by smaller benches, or simply that they were left to posterity. However, it is
submitted, that an exception ought to be carved out in situations such as this. There already
exists vast confusion over educational and minority rights. The Court since it has virtually
assumed oversight over the functioning of educational institutions ought to as parens patriae,
answer all possible questions, leaving no room for ambiguity. It is submitted that Islamic

Academy case had blatantly misquoted the judgment in Pai which was pointed out in
Inamdar; this reveals a lack of judicial discipline. Ironically, it is also declared that such
schemes would permit regulation of minority rights qua Art. 19(6) and Art. 30(1). The Court
seems to take back with one hand, what it has granted by the other, thereby opening the
floodgates of ambiguity.
The best course would have been to make minority institutions freely, though transparently,
exercise the right to preferentially admit students of their community on the basis of merit
without any ceiling; and minority institutions, both aided as well as unaided, basing their
practice so as to admit a fair number of non-community students with a view to promoting
pluralism and social justice, as they would expect a similar policy to be adopted by all other
institutions, so that all of them and not just minority institutions become melting pots, and
that is exactly what the Supreme Court and the parliament seem to be purporting to do.

BIBLIOGRAPHY
BOOKS
1. Durga Das Basu, Shorter Constitution of India, Y.V. Chandrachud, 13th ed. 2006,
p.355.
2. Kumar, Professor Narendra, constitutional Law of India ( Delhi, Published by
Pioneer Publications, Edition, 1997) p270
3. Akhilesh Patel, Concept of Minority and Minority Status under Indian
Constitution, Jurisonline, http://jurisonline.in/2011/04/concept-of%E2%80%98minority%E2%80%99-and-%E2%80%98minority-status%E2%80%99under-indian-constitution/

WEBSITES
1. http://www.jstor.org/
2. http://www.manupatrafast.in/
3. http://www.jurisonline.in/