Cultural & Educational Rights – Articles 29 and 30
Cultural education is a reflection of the cultures and heritage of any society in the world. Every citizen and child is taught to learn their culture and to reflect same to the society.
The cultural and educational rights are provided to all citizens of the society to preserve their own culture and language. The Indian society is full of diversity with many cultures, scripts, languages, etc. So, our constitution makers believe that our strength is in diversity and we have to preserve and save this diversity.
The Cultural and Educational Rights are given under Articles 29 and 30. The right to protection of these rights like the right to protect language, script, culture is given by Fundamental Rights. Even states are prohibited to discriminate against any citizen in these rights provided in the Indian Constitution.
Protection of Interest of Minorities:
Article 29(1) provides that any citizens of India having a different language or culture have the right to protect and conserve it. Article 29(1) does not specify any religion, even though the heading of the Article mentions the protection of interest of minorities. Article 29(1) is not subject to any reasonable restrictions. The Constitution provides the absolute right to conserve it. It must be noted here that how will the citizens having a distinct language, script or culture conserve their interest is not mentioned in Article 29(1). The Constitution has left open the scope for them to decide the method employed to conserve language etc.
Article 29(2) provides the state can not prohibit any citizens from taking admission in any government educational institution or receiving aid or funds from the government on grounds mentioned under Article 15 of discrimination. The benefit of Article 29(2) is not confined only to minorities but extends to all citizens whether belonging to majority or minority. Article 29(2) does not create an absolute right for the citizens to be admitted into any educational institution maintained by the State or receiving aid out of state funds.
Interconnection of Article 15 and Article 29(2):
- Article 15 includes all kinds of discrimination while article 29 includes discrimination only with the respect to admission to educational institutions.
- In Article 15 language is not ground of restrictions while in article 29 place of birth and sex is not ground.
- Article 15 is against the state only while Article 29 is against the state and any other body.
Rights to Establish and Administer Educational Institutions by Minorities:
Article 30(1) provides that all minorities can establish and administer any of their choice of educational institutions & Article 30(2) provides that State shall not discriminate against educational institutions on the ground of minorities in granting aid to them.
Article 30(1) is provided only to linguistic or religious minorities and not to any other minorities, Linguistic or religious minorities have the following rights:
- Right to establish educational institutions.
- Minorities Right to administer educational institutions of their choice.
The idea of giving special rights to minorities is to give them a sense of security and a feeling of confidence. St. Xaviers College v. the State of Gujarat, SC held that the spirit behind Article 30(1) is the conscience of the nation that minorities (religious or linguistic) are not prohibited from establishing and administering educational institutions.
In T.M.A. Pai Foundation v. the State of Karnataka, Supreme Court held that the expression educational institutions’ means institutions that impart education, including education at all levels from primary to postgraduate as well as professional education.
Definition of Minorities:
Article 30(1) uses the word “linguistic’ or ‘religious’ minorities. The word ‘or’ indicates that a minority may be either linguistic or religious and that it does not have to be both. The term ‘minority’ has not been defined in the Constitution. In T.M.A. Pai Foundation v. the State of Karnataka, Supreme Court held that a minority has to be decided according to the State in which the educational institution is established. The minority is what numerically less than 50% is. This position is about ‘linguistic’ as well as ‘religious’ minorities. National Commission for Minority Educational Institutions Act, 2004 decides all questions relating to the status of any institution as a Minority Educational Institution. Any person who desires to establish a minority educational institution has to get a no-objection certificate [NOC] from the commission.
Establish and Administer:
The words establish and administer are related to each other. Minorities can claim the right to administer an educational institution only if it has established it. The right to administer an educational institution consists of the following four matters:
- Right to choose a managing or governing body.
- Right to choose teachers.
- Admission of students on their own choice must have reasonable restrictions on academic qualifications.
- Right to use the properties and assets for the benefit of the institution.
In S.P. Mittal v. Union of India, Supreme Court held that to claim the benefit of Article 30(1), the community must show:
- It is a religious and linguistic minority and
- The institution was established by it.
Without satisfying these two conditions, benefits under Article 30(1) cannot be claimed.
In S Azeez Basha v. Union of India, Supreme Court held that Aligarh Muslim University is not a minority institution. The court in clear terms spelt out that the minority will have the right to administer educational institutions of their choice provided they have established it and not otherwise.
Relationship between Article 29(1) and Article 30(1):
In St. Xaviers College v. the State of Gujarat, Supreme Court held that
- Article 29(1) confers right on any section of citizens, including minorities while Article 30(1) confers right only on religious or linguistic minorities.
- Article 29(1) deals with language, script, and culture, while Article 30(1) deals with minorities of language and religion.
- Article 29(1) deals with the right to conserve language while Article 30(1) deals with the right to administer educational institutions.
The Extent of Regulation by State:
Prima facie it appears that the freedom granted under Article 30(1) is absolute in nature. It has not been made subject to any reasonable restrictions. In this connection, Supreme Court on the Kerala Education Bill said that the right conferred on the religious and linguistic minorities to administer institutions of their choice is not an absolute right. In Frank Anthony Public School Employees Association v. Union of India, it was held that regulatory measures aimed at making minority institutions effective instruments for imparting education, without nullifying management’s right, are permissible. In St. Xaviers College v. the State of Gujarat, Supreme Court held that right to administer does not mean the right to maladminister. Regulatory measures such as syllabus, courses, curriculum, minimum qualifications of teachers, superannuation, health, etc. can be imposed. These regulations are there to promote educational standards and maintain uniformity.
As far as question affiliation of educational institutions is concerned, Supreme Court in T.M.A. Pai Foundation v. the State of Karnataka, and P.A. Inamdar v. the State of Maharashtra, held that considerations for granting recognition to a minority educational institution and casting accompanying regulations would be similar as applicable to a non-minority institution subject to two overriding conditions:-
- Recognition is not denied solely on the ground of educational institution being one belonging to minority and
- The regulation is neither aimed at nor has the effect of depriving the institution of its minority status.
In T.M.A. Pai Foundation v. the State of Karnataka, Supreme Court laid down the following:
- The state is to be regarded as a unit for determining linguistic as well as a religious minority.
- Institutes which receive aid from the State could be subject to government rules and regulations.
- In respect of unaided institutions, the only regulation that the government may put is regarding the qualifications and minimum conditions of eligibility of teachers and principals.
- Conditions of recognition and affiliation by or to a Board or University are to be complied with.
- An aided institution has to admit a reasonable number of non-minority students.
- Minority institutions may have their procedure and method of admission but the procedure must be fair and transparent.
In Islamic Academy of Education v. the State of Karnataka, Supreme Court held that educational institutions can have their fee structure but there must be no profiteering and capitation fee charged. Subsequently in P.A. Inamdar v. the State of Maharashtra, Supreme Court clarified the issues raised in T.M.A. Pai’s case and Islamic Academy’s case. Supreme Court held the following:
- Minority educational institutions may be classified into 3 categories, firstly, those who do not seek aid or recognition, secondly, those who want only aid and no recognition and thirdly, those who want recognition and no aid.
- Each minority institution is entitled to have its reasonable free structure.
- Unaided professional institutions will have full control in their administration, but the Right to administer does not mean the right to maladminister.
- Without interfering in matters of unaided institutions, the object of merit-based admissions can be secured by insisting on the management.
- Neither the policy of reservation be enforced by the State nor can any quota or percentage of admissions by the State in a minority or non-minority unaided educational institutions.