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CONSTITUTION
CULTURAL AND EDUCATIONAL RIGHTS
(Article 29 and 30)

Submitted To: - Submitted By: - Dr.

Shruti Bedi AMAN BAJAJ

Bcom LLB (Hons)

237/15

SECTION D

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ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges I have ever faced. Though this project
has been presented by me but there are many people who remained in veil, who gave their all support and
helped me to complete this project.

First of all I am very grateful to my Subject Teacher Dr. Shruti Bedi, without the kind support of whom and
help the completion of project was a herculean task for me.

I am very thankful to the Librarian who provided me several books on this topic. I acknowledge my friends
who gave their valuable and meticulous advice which was very useful and could not be ignored in writing
the project. I also owe special thanks to my parents for their selfless help which was very useful in
preparing the project.

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TABLE OF CONTENTS
TABLE OF CONTENT
3
CASES 4
INTRODUCTION
5
ARTICLE 29 (1) 6

ARTICLE 29 (2) 7

ARTICLE 30 (1) 8

ARTICLE 30 (2) 12

DIFFERENCE 13

CONCLUSION 14

BIBILOGRAPHY 16

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TABLE OF CASES

Jagdev Singh Sidhanti v. partap Singh Dhauta..6

D. A.V College Jullunder v State of Punjab6

State of Madras v Champakam.7

State of Bombay v Bombay Education Society..8

Re the Kerala Education Bill9

T.M.A PAI FOUNDATON v. STATE OF KARNATAKA.9,10,11,13

Indulal Hiralal Shah v S. S Salgaonkar9

S. P. Mittal v Union of India10

St. Stephens college v. University of Delhi.10

Islamic Academy of Education v. State of Karnataka.11

Frank Anthony Public School Employees Association v. Union Of India12

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INTRODUCTION

Articles 29 and 30 of the Constitution are grouped under the heading "Cultural
and Educational rights". These both Articles protect and guarantee certain
collective rights for the minorities to help them preserve their language, religion
and culture. These rights also contribute to preserve the rich diversity of the
country and give minority a sense of security. Over the decades, the interplay
of these two Articles has been the cause of intense debate, Firstly, touching on
issues such as secularism and secondly, the degree of control over private
educational institutions maintained by the State or receiving aid out of State
funds; on grounds only of religion, race, caste, language or any of them. This
chapter begins with the discussion of rights guaranteed under Articles 29 and
30 of the Constitution of India. Further it discusses judicial approach relating
to each Sub Clause of Articles 29 and 30. Subsequently, the researcher has
discussed the judicial interpretation relating to the relation between Articles i.e.
29 and 30.

Article 29(1) deal with right of any section of the citizens residing in India to
preserve their language, script or culture. In order to invoke Article 29(1), all
that is essential is that a section of the citizens, residing in India should have a
distinct language, script or culture of its own. If so, then they will have the
right to conserve the same.

Article 29(2) prohibits discrimination in matters of

admission into educational institutions on grounds only of religion, race, caste,
language or any of them. This provision guarantees the rights of individual
irrespective of the community to which he belongs.

Article 30 (1) provides that

all religious and linguistic minorities have the right to establish and administer
educational institutions of their choice.

Article 30(2) prevents States from

making any discrimination against any educational institution in granting aid
on the ground that it is managed by a religious or linguistic minority.

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1.1 ARTICLE 29(1): RIGHTS OF CITIZENS TO PRESERVE THEIR

LANGUAGE, SCRIPT AND CULTURE.

Article 29(1) is not subjected to any reasonable restrictions. The right conferred upon the
citizens to conserve their language, Script and culture is made absolute by the Constitution.

In Jagdev Singh Sidhanti v. Partap Singh Dhauta1 the respondetnt a defated candidate
challenged the election of the appealent to the House of people on the ground that he had
committed corrupt practices during election campaign to promote communa eminity
between the Hidu and the Sikh communities prohibited by the Section 123(3) of the
Reepresentation of the people act, 1951. He gave two instances in support of his allegation
namely (i) that the appealent took help from the hindi agitation going on at that time an
propogated that the respondent was an enemy of the Arya Samaj and the Hindi language
and (ii) that the appellant used a religious symbol om Dhwaj belonging to Arya Samaj in
his election meetings

Rejecting the contentions Court observed:

Right to conserve the language of the citizens includes the right to

Agitate for the protection of the language. Political agitation for conservation of the
language of a section of citizens cannot, therefore be regarded as a corrupt practice within
the meaning of Section 123(3) of the Representation of the Peoples Act, 1951

The Court held that making promises by a candidate, to work for the conserve
action of the electorates language, did not amount to corrupt
practice. Unlike Article 19(1), Article 29(1) was not subjected to any reasonable
restriction. The right conferred upon the citizens to conserve their language, etc.,
the Court held, had been made absolute by the Constitution, Section 123(3) of the
Representation of the Peoples Act, 1951, must be read subject to Article 29(1) and
not to trespass upon Fundamental Right under Article 29(1).

In D. A.V College Jullunder v State of Punjabs2 case It was held that were a legal
provision required the Guru Nanak University to promote studies and research in Punjabi
language and literature, and to undertake measures for the development of Punjabi
language, literature did not infringe Article 29(1). Promotion of the majority language does
not mean stifling of minority language and script. To do so will be to trespass on the rights
of those sections of the citizens which have distinct language or script which they have
1 AIR 1956 SC 183

2 AIR 1971 SC 1737

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right to conserve through their own educational institutions. The provision in question
cannot, therefore be read as requiring the minority institutions affiliated to Guru Nanak
University to teach in Punjabi language, or in any may impeding their right to conserve
their language, script and culture.

The Supreme Court observation in the case was:

The provision, as we construe it, is for the promotion of Punjabi studies and research and
development of the Punjabi language, literature and culture which is far from saying that
the University can under that provision compel the affiliated colleges particularly those of
the minority to give instruction in the Punjabi language, or in any way impede the right to
conserve their languages, script and culture. The legal provisions of University that was
challenged on the ground that the colleges administered by other religious minorities, i.e.,
Arya Samaj, and affiliated to the University would be compelled to study the religious
teaching of Guru Nanak and such provisions amounted to violation of fundamental right
under Article 29(1). The Supreme Court rejected the argument saying that there is no
mandate in the provision compelling affiliated colleges either to study the religious
teachings of Guru Nanak, or to adopt in any way the culture of the Sikhs. If the University
makes provision for an academic and philosophical study and research on the life and
teachings of a saint, it cannot be said that the affiliated colleges are being required to
compulsorily study his Life and teachings.

1.2 ARTICLE 29(2): RIGHT OF THE CITIZEN NOT TO BE

DENIED ADMISSION INTO ANY STATE MAINTAINED OR STATE
AIDED EDUCATIONAL INSTITUTION.

The right guaranteed under this Article is not restricted to minorities but
extends to all citizens whether belonging to majority or minority. The right
being a fundamental right, cannot be interfered with by any instruction
rules or regulations.

In State of Madras v Champakams3 Case, for the first time the question of application of
Article 29(2) was challenged. The communal Government Order of the State of Madras

3 AIR 1951 SC 226

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allotted seats in medical and engineering colleges in the State proportionately to the several
communities, viz, non-Brahmin Hindus, Backward Hindus, Brahmins, Harijans, Anglo
Indians, Christians, and Muslims. A Brahmin candidate who could not be admitted to an
engineering college challenged the Government Order as being inconsistent to Article
29(2). The Supreme Court held that the classification in the Government order was based
on religion, race and caste which were inconsistent with Article 29(2).

Even though the petitioner had got much higher marks than secured by many non-Brahmins
who were admitted in the seats allotted to them, he could not be admitted into any
institution. The only reason for the denial of admission to him was that he was a Brahmin
and not a non- Brahmin.

In the State of Bombay v Bombay Education Society4, an order issued by the Bombay
Government banning admission of those whose language was not English to a school using
English as a medium of instruction, was declared invalid under section 29.

1.3. ARTICLE 30(1): RIGHTS OF MINORITIES TO ESTABLISH

AND ADMINISTER EDUCATIONAL INSTITUTIONS OF THEIR
CHOICE.

Article 30 (1) gives the linguistic or religious minorities the following two rights:

i) Right to establish, and

ii) Right to administer educational Institutions of their choice.

This benefit is extended to only linguistic and religious minorities and to no other section of
the Indian Citizens. The word or means that a minority may either is linguistic or religious
and that it does not have to be both- a religious minority as well as linguistic minority. It is
sufficient of it is one or the other or both. While interpreting Article 30 of the Indian
Constitution the question of relative degree of autonomy and permitted area and extent of

4 AIR 1954 SC 561

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regulation of minority educational institutions has been one important issue to be resolved
by the judiciary during the past six decades.

MINORITY
The term 'minority' is not defined in the Constitution. Literally, It means dominant group. It
is a relative term and is referred to, to represent the smaller of two numbers, sections or
groups5. Re the Kerala Education Bill6 the Supreme Court observed that while it was easy
to say that the minority meant a community which was numerically less than 50% the
important question was : 50%, of whatthe entire population of India or of a State or of a
part thereof ?
Without deciding the matter definitely, the Supreme Court observed that minority was to be
determined only in relation to particular legislation being challenged. If it was a State law a,
minority would be determined in relation to the population of the State. Where a law
passed by the State Legislature extends to the whole of the State minority for the purpose
of Articles 29 and 30 would be determined by reference to whole population of the state.

In re Kerala Education Bill case Supreme Court held that Article 30(1) covers
institutions imparting general secular education. The object of Article 30(1) is
to enable children of linguistic and religious minorities to go out in the world
fully equipped. Protection guaranteed to minority under Article 30 is to preserve education
will develop the commonness among the students of the country. This is in true spirit of
liberty, equality, and fraternity through the medium of education. The minorities will feel
isolated and separated if they are not given the protection under Article 30.

The words Establish and Administer in Article 30(1) have been read
conjunctively.
Therefore, a minority can claim a right to administer an educational institution only if it has
established by it but not otherwise. A religious minority cannot claim the right to administer
an educational institution establish by someone else, merely because, for some reason or
other, it had been administering the institution before Constitution came into force.

5 T.M.A PAI FOUNDATON v. STATE OF KARNATAKA, AIR 2003 SC 355

6 AIR 1958 SC 956

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The educational institution established by linguistic minority i.e. Gujarati,

where the medium of instruction was Gujarati and 80% of the teachers were
Gujarati speaking. The Court in Indulal Hiralal Shah v S. S Salgaonkar 7
characterized the institution as minority institution. Admitting non Gujarati
students did not affect the minority character of the institution.

In, S. P. Mittal v Union of India8 the Supreme Court laid down that in order
to claim the benefit of Article 30(1), the community must show a) that it is a
religious or linguistic minority, b) that the institution was established by it.
Without satisfying these two conditions it cannot claim the guaranteed rights
to administer it.

Professional Educational Institutions are also covered under Article 30.

The Apex Court in T.M.A Pai Foundation v. State of Karnataka9 has observed that the
expression education means and includes education at all levels from the primary school
level up to the post-graduate level. The expression educational institutions, the court said,
meant institutions that imparted education, where education was an understood
hereinabove Emphasizing o the words of their choice in Article 30(1), the court said that
those words indicated that even professional educational institutions would be covered by
Article 30.

Right of the minority institutions to regulate the admission in the

institution

In St. Stephens college v. University of Delhi10, the Delhi University issued circulars for
admissions to different courses.

7 AIR 1983 Bom 192

8 AIR 1983 SC 1

9 AIR 2003 SC 355

10 AIR 1992 SC 1630

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The court held that the Stephens college was not bound to follow the University circular as
it would deprive the college of its minority character. The right to select the students for the
admission was a part of the administration.
The court held that unless some concession was provided to Christian students they would
have no chance of getting into the college established by their community.

The right of religious and linguistic minorities to administer

educational institutions of their choice, though couched in absolute
terms, is not free from regulations
It is necessary that even the minority institutions must be subjected to some administrative
control without impairing their identity or independence as minority institutions. For the
application of this right, minority institutions are divided into three classes:

a) Institutions which neither seeks aid nor recognition from state;

b) Institutions that seek aid from the state; and

c) Institutions which seek recognition but not aid.

While the institutions which neither seek aid nor recognition from the State
cannot be subjected to any regulation except those emanating from the general
laws of the land such as labour, contract or tax laws. The institutions that seek
recognition only and not aid could be subjected to regulations or restrictions
pertaining to the academic standards and better administration of the institution in the
interest of that institution itself. Regulations and restriction for any other purpose are not
permissible.

In T.M.A Pai Foundation v. State of Karnataka11 after considering Article 30 along with
Article 28 and 2992) distinguished unaided intuitions from those receiving aid from state.
The court seems to be in the favour of freeing the unaided minority institutions from
possible interference from the relevant university or institutions from possible interference
from the relevant university or govt. by making it clear that the latter was forbidden from
meddling with the affairs of the former.

11 AIR 1983 SC 1

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Right to administer does not include right to charge capitation fees.

The Apex Court in Islamic Academy of Education v. State of Karnataka12 has directed the
constitution of a separate Committee in each State, to be headed by a retired Judge of the
High Court, to approve the fee structure of the institutions conducting medical and
engineering courses, keeping in mind the infrastructure and facilities available, the
investment made, salaries paid to the teachers and staff, future plans for expansion and/or
betterment of the institution, etc. The fee fixed by the Committee shall be binding for a
period of three years, at the end of which period, the institute would be at liberty to apply
for revision. However, collection of fees, in advance, for the entire course, i.e., for all the
years, has been held not permissible. The function of the committee is to prevent the
charging of a capitation fee and profiteering.

Right to administer does not include right to oppress or exploit the

teaching staff

In Frank Anthony Public School Employees Association v. Union Of India13

the Supreme Court .gave a new dynamic interpretation to the minorities to administer their
institutions guaranteed under Article 30(1). In this case the Delhi School Education Act,
1973, provided for better organisation and development of school education in Delhi.
Sections 8 to 11 of the Act dealt with the terms and conditions of service of employees of
recognised private schools. Section 10 provided that the scales of pay and allowances, etc.
of the employees of recognised private schools would be not less than those of the
employees of the Government Schools. But Section 12 of the Act made these provisions
inapplicable to "unaided minority schools".

The Supreme Court held Section 12 of the Act as discriminatory and hence violative of
Article 14 The Court while holding the provision of Sections 8 to 11 of the Delhi School
Education Act,1973 as regulatory in character declared that these provisions were not
violative of the rights of the minorities enshrined in Article 30(1)

12 AIR 2003 SC 3724

13 AIR 2003 SC 355

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1.4 ARTICLE 30(2): BARS THE STATE FROM

DISCRIMINATING IN GRANTING AID

Clause (2) of Article 30 provides: "The State shall not, in granting cud educational
institutions, discriminate against any educational institution ground that it is "under the
management of a minority, whether based on the 0Ti religion or language'. The object of
Clause (2) is to make the right secured by Clause al as a real right. But, the grant of aid has
not been held to be a constitutional imperative

In T.M.A. Pai Foundation v. State of Karnataka,-"- the Supreme Court has ruled that the
absence of aid does not make the right under Article 30(1) illusory. Article 30(2) only
means that a minority institution shall not be discriminated against when aid to educational
institutions is granted. Further, it has been held that the State may impose conditions while
giving aid to a minority institution. But, the conditions have to be uniformly applied,
whether it is a majority run institution or a minority run institution. Also, that the conditions
must have relevance to the proper utilisation of the aid. The implication of Article 30(2), the
Court said, "is that it recognises that the minority nature of the institution should continue,
notwithstanding, the grant of aid." It has been said that Article 30(2) is an additional right
conferred on minorities under Article 30(1). But, it would depend on the financial stability
and resources, as well as, discretion of the State Government, exercised upon subjective
satisfaction.

ARTICLE 30(1) AND ARTICLE 26(A) COMPARED

Firstly, while Article 26(a) secures the right to establish institutions to the majority as well
as minority communities, Article 30(1) secures that right to the minorities, religious as well
as linguistic.

Secondly, while Article 26(a) refers only to religious denominations, Article 30(1) contains
the right of religious as well as linguistic minorities.

Thirdly, while Article 26(a) says of the right of a religious denomination to maintain the
institution established by them, Article 30 (1) secures the right to a minority to administer
their institution.
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Fourthly, while the right secured by article 26 is subjected to public order, morality and
health, article 30 (1) does not specifically state that the right under Article 30(1) is
subjected to any such conditions. It has, however been held that the right under Article
30(1) is not so absolute as to above the law. It thus cannot be disputed that article 30(1) is
subject to the general laws and the laws made in the national interest.

CONCLUSION

It is settled in case of St. Xaviers College v State of Gujarat that Articles 29(1) and 30(1)
deal with distinct matters and may be considered supplementing each other so far as certain
cultural rights of minorities are concerned.

However, the relation between Article 30(1) and Article 29(2) is paradoxical
generating confusions like; can minority education institutions deny admission
to any student on the basis of religion or language? Whether in admission to
minority education institutions, preferences can be given to minority students,
overruling the criteria of merit?

In large number of cases the court has held that unaided minority institutions
have complete freedom to select their students. It held that all minority
institutions not receiving aid from the government are wholly out of the ambit
of Article 29(2)

The case of St Stephans College decided by a bench of five judges of the

Supreme Court is a landmark case as far as relation between Article 29(2) and
Article 30(1) is concerned. Tackling the issue of admission the Court advocated
the theory of melting pot and attempted to strike a balance between the two
Articles.

It stated, in the nation building with secular character sectarian schools or

colleges; segregated faculties or universities for imparting general secular
education are undesirable and they may undermine secular democracy. They
would be inconsistent with the central concept of secularism and equality
embedded in the Constitution.

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Every educational institution irrespective of the community to which it belongs is a

melting pot in our national life. The students and teachers are the critical ingredients. It is
there they develop respect for, and tolerance of, the cultures and beliefs of others. It is
essential therefore, that there should be proper mix of students of different communities in
all educational institutions.

In the light of all these principles and factors, and in view of the importance
which the Constitution attaches to protective measures to minorities under
Article 30 (1), the minority aided educational institutions are entitled to prefer
their community candidates to maintain the minority character of their
institutions subject to, of course, in conformity with the university standard.
The State may regulate the intake in this category with due regard to the need
of the community in the area which the institution is intended to serve. But in
no case such intake shall exceed 50 per cent of the annual admission. The
minority institutions shall make available at least 50 per cent of the annual
admission to members of communities other then the minority community.

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BIBLIOGRAPHY

BOOKS

Jain MP, Indian Constitutional Law (5th edition), Wadhwa Nagpur Publications, 2004 (reprint)
Pandey JN. Dr., The Constitutional Law of India (48th edition), Central Law Agency, 2011
Singh M.M., The Constitution of India, The World Press Private Ltd. Calcutta, 1975
Kumar Narender, Constitutional Law of India (reprint edition), Allahabad Law Agency, 2016
D.J. DE, The Constitution of India, Volume 2nd, 2005

WEBSITES

https://en.wikipedia.org/wiki/T_freedom-of-religion
https://indiankanoon.org/search/?formInput=bare%20acts
http://www.yourarticlelibrary.com/essay/freedom of religion-in-india-11-salient-features-of-
Freedom of religion/40371/
https://en.wikipedia.org/wiki/
https://en.wikipedia.org/wiki\Freeomofreligion

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