INTRODUCTION

The Preamble of our Constitution aims at securing the ‘unity and integrity of the nation’.
Religious and cultural safeguards have been guaranteed by the Constitution to minority
communities in order to ensure them ‘justice, freedom of thought, expression, belief, faith and
worship’. Treating unequals as equal is as bad as treating equals as unequals. Our Constitution
provides for equality, for equality of opportunity to all but meting out equal treatment to those
who did not start off equally in the first place means treating unequals as equals. Minorities in
India have had to face adverse discrimination and, therefore, do not stand on equal footing with
others, which made the framers of the Constitution, through Artcile 29 and Article 30, accord
special rights to the people who form religious or linguistic minority in India. The idea of giving
some special right to the minorities is not to hurt a privileged section of the population but to
give to the minorities a sense of security. Special rights for minorities were designed not to
create inequalities but to bring about equality by ensuring the preservation of the minority
institutions and by guaranteeing autonomy in the matter of administration of these institutions.
The universally accepted reality is that education enlightens and empowers societies. Education
is an important marker of Human Development. It brings excellence, enriches the mind and
illuminates the sprit. Improvements in the functional and analytical ability of children and
youth through education open up opportunities leading to both individual and group
entitlements. Improvements in education are not only expected to enhance efficiency (and
therefore earnings) but also augment democratic participation, upgrade health and quality of
life. It is well accepted by the thinkers, philosophers and academicians that if JUSTICE,
LIBERTY, EQUALITY and FATERNITY, including social, economic and political justice,
the golden goals set out in the preamble to the constitution are to be achieved, the Indian polity
has to be educated and educated with excellence. Education is a national wealth which must be
distributed equally and widely, as far as possible, in the interest of creating an egalitarian
society, to enable the country to rise high and face global competition. In a democratic setup
education plays a vital role for cultural enrichment, social upliftment and social transformation.
Article 29 and 30 of the Indian Constitution lay down the provision relating to “Cultural and
Educational Rights of Minorities”. Article 29 and 30, which provide for the protection of
interests of minorities and Right to establish and administer educational institutions.
ACKNOWLEDGEMENTS

I would like to express my special thanks of gratitude to my teacher of Constitutional Law

Dr. Prabhat Saha who gave me golden opportunity to write this wonderful project on the
topic of “Right of Minority Educational Institution under Indian Constitution”, which also
helped me in doing a lot of research and I came to know about many new things, I am really
thankful to him.
Secondly , I would also like to thank my friends who helped me a lot in finalising this project
within the limited time frame.
The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project. All that I have done is only due to such supervision and assistance and I would not
forget to thank them.

-Shivam Mishra
MINORITY AND THEIR EDUCATIONAL
RIGHTS UNDER THE INDIAN CONSTITUTION

HISTORICAL BACKGROUND
On 16th April 1947, the draft of the Fundamental Rights along with the report of Sub-
Committee on Fundamental Rights was submitted to the Constituent Assembly. At that time
Article 30(1) wasn’t inserted in our Constitution. On this, Mr. K.M. Munshi proposed to give
some rights to the “minority based on religion”. The proposal of K.M. Munshi was accepted.
Later, Para 18 of the draft of the Fundamental Rights contained under Article 29 and 30 were
conferred on “minorities”.
The Drafting Committee, however, distinguished between the right of any citizen to save its
culture, script or language and the right of all the minorities based on religion or language to
establish and administer educational institution of their choice. Articles 29 and 30 relate to
rights of minority institutions and have been grouped as Cultural and Educational Rights.
According to the Article 30(1) of the Constitution of India, all the minorities whether based on
language or religion have to a right to establish and administer educational institution of their
choice. Such right is in complete consonance with the secular nature and directives contained
in our constitution. The state or any other statutory authority has no right to interfere in the
administrable matters of the institution though they can take some regulatory measures in order
to promote better educational standard and issue guidelines for the security of teachers or other
employees in the institution. The institution under Article 30(1) can’t deny affiliation to a
college or university till they don’t give a genuine reason for the same. Such provisions were
made to bring people at par with the majority community. As this right being a Fundamental
Right, any law in breach of it would be held void to that extent.

ARTICLE 29:- PROTECTION OF INTERESTS OF MINORITIES:-

1. Any section of the citizens residing in the territory of India or any part thereof having
a district 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:- RIGHTS 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 an
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 as would not restrict
or abrogate the right guaranteed under that clause.] (Clause 1A to Art. 30 was inserted by the
Constitution (Forty-fourth Amendment) Act, 1978).
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 a minority whether
based on religion or language.

The article confers basic two rights:

(1) right to establish an institution; and
(2) right to administer it.
The former means the right to create an institution, and the latter means the management of the
affairs of the institution must be free of external control.
In the case of Azeez Basha vs. Union of India1 , “a Constitutional Bench of the Supreme
Court has held that the expression “establish and administer” used in Article 30(1) was to be
read conjunctively that is to say, two requirements have to be fulfilled under Article 30(1),
namely, that the institution was established by the community and its administration was vested
in the community.”
In S.P. Mittal vs. Union of India2 , the Supreme Court had held that “in order to claim the
benefit of article 30(1), the community must show; (a) that it is a religious/linguistic minority,
(b) that the institution was established and administered by it.”

1
AIR 1968 SC 662
2
AIR 1983 SC 1
WHO IS MINORITY

Through the perusal of the constitution of India it is found that expression “minorities” has
been employed only at four places in the constitution of India. Head note of the article 29 uses
the word, minorities. Then again the expression minorities or minority has been employed in
head note of Article 30 and sub clause (1) & (2) of Article 30. It may be noted that the
expression “minorities” has been used in Article 30 on two sense one based on religion and
other based on language.
That expression “minority” needs to be discussed in details. The expression “minority” has
been derived form the Latin word “minor” and suffix “ity” which means “small in numbers”.
According to Encyclopedia Britannica minorities means “group held together by ties of
common decent, language or religious faith and feeling different in these respects from the
inhabitant of a given political entity.”
The U.N Sub –Commission on Prevention of Discrimination of Minorities has defined minority
as under:
1) The term “minority” includes only those non –documents group of the population which
possess and wish to preserve stable ethnic, religious or linguistic traditions or characteristic
markedly different from those of the rest of the population;
2) Such minorities should properly include the number of persons sufficient by themselves to
preserve such traditions or characteristic ;and
3) Such minorities should be loyal to the state of which they are nationals.

The first time the Supreme Court attempted to define ‘minority’ was in its advisory opinion on
the constitutionality of the Kerala Education Bill, 1957 with respect to its application to
minority schools in the State. While it did not go into the finer details of the issue, it held that
in the particular context, the term ‘minority’ would constitute groups comprising less than 50%
of the total population of the State.25 As this observation was not critical to the outcome, it
could not be considered a binding precedent. This view, nonetheless, was persisted with in
subsequent judgments of the Court. In Re Kerala Education Bill3, the Court observed that
Articles 29 and 30 contemplate a minority institution with a ‘sprinkling of outsiders’ and that
‘by admitting a non-member into it, the minority institution does not shed its character and
cease to be a minority institution.’ Significantly, the Court reinforced the link between
establishment of an educational institution and preservation of culture, language and script, for
‘it is by education that their culture can be inculcated into the impressionable minds of the
children of the community.’ This, the Court observed, may be served better by propagating it
among the non-members as well. Categorically, the Court held that ‘it is, therefore, that Article
30(1) confers on all minorities, whether based on religion or language, the right to establish
and administer educational institutions of their choice.’

3
Kerala Education Bill, 1957, re, AIR 1958 SC 956, 979:1959 SCR 995
Minority Educational Institutions

Minority educational institution means an institution established and administered by a

minority having the right to do so under clause of article 30 of the constitution. Following
conditions are laid down for grant of recognition to minority educational institutions:
Following conditions are laid down for grant of recognition to minority educational institution:
i. The aims and objectives of the educational agency incorporated in its bylaws should
be clearly specified that it is meant to primarily serve the interests of the minority
community to which it belongs.
ii. The minority educational institution shall not compel any of its religious activities.
iii. The minority educational institution shall observe general laws of the land relating
to educational institutions.
iv. The minority educational institution will not use its privilege as minority institution
for any pecuniary benefit.
v. The minority educational institution shall charge the fees as prescribed by
competent authority.
vi. The minority educational institution shall appoint teachers as per qualifications laid
down by the authority concerned but it will be advisable for them to select teachers
and other employees through employment exchange or open advertisement.
vii. In all academic, administrative and financial matters rules and regulations laid
down by respective statutory authorities from time to time shall be wholly
applicable to these institutions.
viii. The minority educational institution shall do nothing, which may come in the way
of communal and social harmony.
ix. Fifty percent of seats permitted to be filled up from minority communities shall be
equally distributed between free and payment seats.
Classification of Minorities Educational Institution

Aided schools or colleges – means a recognized school or college which is receiving aid in the
form of maintenance grant from the central government, administrator or local authority or any
other authority designated by the central government, administrator or a local authority.

Unaided schools or colleges – means a recognized school or college, which does not receive
any aid.

In terms of government regulations also, there is difference between aided and unaided
institutions4:
1) State can’t impose its reservation policy on minority and non-minority on unaided private
colleges including professional colleges.
2) Up to the level of undergraduate education, the minority unaided educational institution
enjoys total freedom.
3) However, different considerations would apply for graduate and postgraduate level of
education as also for technical and professional educational institution i.e. such education
cannot be imparted by any institution unless recognized or affiliated by any competent
authority created by law such as university, board, central or state government or alike.

Regulatory Bodies Involved

National Commission for Minority Educational Institution.

An ordinance was promulgated on 11 November 2004, to enable setting up of a National

Commission for minority educational institutions to advise the central government or any state
government on any question regarding the regarding the education of minorities, to look into
the complaints regarding violation of the rights of the minorities, to establish and administer
educational institution of their choice.

4
P.A. Inamdar and Others Vs State of Maharashtra and Others (Judgement)
Functions of the Commission

(a) Advised the Central Government or any State Government on any question relating to the
education of minorities that may be referred to it;
(b) Look into specific complaints regarding deprivation or violation of rights of minorities to
establish and administer educational institutions of their choice and any dispute relating
affiliation to a Scheduled University and report its findings to the Central Government for its
implementation; and
(c) To do such other acts and things as may be necessary, incidental or conducive to the
attainment of all or any of the objects of the Commission.
This commission also decides on all questions relating to the status of any institution as a
minority educational institution.

Government Regulations

It is necessary to analyse the Supreme Court pronouncements on regulations on reservation and

admissions in educational institutions.
In view of the 42nd amendment to the constitution, the subject of education was transferred to
the concurrent list from the state list under the 7th schedule of the constitution, the question of
who would be regarded as minority was required to be considered. It was urgent because the
earlier case law related to the pre amendment period, when education was in the state list.
The minority institutions are given a right to establish and administer the educational
institutions but they are not absolutely free from the regulations of the State, they are to be
controlled to keep a check on maladministration practices. This control is shown in the case St.
Stephens College v. University of Delhi5 where it is stated that the “State has the full authority
to intervene and make regulations which serves the interests of students and teacher. The
minority institution cannot claim immunity against the general pattern of education. And also
discrimination in admission of students cannot be done on the basis of community, the
admission should be made on the basis of merits irrespective of the other facts”.
Honorable Supreme Court in P.A. Inamdar vs. State of Maharashtra6 laid down the general
principles relating to establishment and administration of educational institution by minorities
that may be summarized as:
(i) The right of minorities to establish and administer educational institutions of their
choice is guaranteed under Article 30(1) subject to the regulatory power of the State
for maintaining and facilitating the excellence of educational standard. The quality

5
AIR 1992 SC 1630.
6
2005 (6) SCC 537
 of education imparted cannot be compromised which is expected out of educational
institutions.
(ii) The regulations made by the statutory authorities should not impinge upon the
minority character of the institution. The regulations must satisfy a dual test that it
is regulative of the educational character of the institution and is conducive to
making the institution an effective vehicle of education for the minority community
or other persons who resort to it.
(iii) All laws made by the State to regulate the administration of educational institutions,
and grant-in-aid, will apply to minority educational institutions also. But if any such
law or regulations interfere with the overall administrative control by the
management over the staff, or abridges/ dilutes in any other manner, the right to
establish and administer educational institutions, such law or regulations would be
inapplicable to minority institutions.
(iv) The general laws of the land relating to national interest, national security, social
welfare, public order, morality, health, sanitation, taxation etc. applicable to all, will
equally apply to minority educational institutions also.
(v) The fundamental right guaranteed under Article 30(1) is intended to be effective
and should not be cut down by any administrative exigency. No inconvenience or
difficulties, administrative and financial, can justify infringement of the
fundamental right.
(vi) Receipt of aid does not alter the nature or character of the minority educational
institution receiving aid. Article 30(1) clearly implies that any grant that is given by
the State to the minority educational institution cannot have such conditions
attached to it which will in any way dilute or abridge the rights of the minorities to
establish and administer educational institutions. But the State can lay down
reasonable conditions for obtaining grant-in-aid and for its proper utilization.
(vii) The State can regulate the service conditions of the employees of the minority
educational institutions to ensure quality of education. Any law intended to regulate
service conditions of employees of educational institutions will apply to minority
educational institutions also, provided that such law does not interfere with the
overall administrative control of the managements over the staff. The State can
introduce a mechanism for redressal of the grievances of the employees.
(viii) The right of minorities to establish and administer educational institutions of their
choice comprises the following rights:
(a) to choose its governing body in who the founders of the institution have faith
and confidence to conduct and manage the affairs of the institution. The freedom to
choose the persons to be nominated as members of the governing body has always
been recognized as a vital facet of the right to administer the educational institution.
The introduction of an outside authority, however high it may be, either directly or
through its nominees in the Managing Committee/ Governing Body of the minority
educational institution to conduct the affairs of the institution would be completely
destructive of the fundamental right guaranteed by Article 30(1) of the Constitution
and would reduce the management to a helpless entity having no real say in the
matter and thus destroy the very personality and individuality of the institution
which is fully protected by Article 30 of the Constitution.
 (b) to appoint teaching staff (Teachers/ Lecturers and Head Masters/ Principals)
also non-teaching staff; and to take action if there is dereliction of duty on the part
of any of its employees.

The latest exercise is the judgment of 11-member bench of Supreme Court on October 31st in
the T.M.A PAI Foundation vs. State of Karnataka7, which inter alia laid down that:
1) Religious and linguistic minorities under article 30 have to be considered state wise.
2) Article 30 (1) include the right to establish and administer even professional educational
institutions.
3) There would be minimal regulatory measures to ensure educational standards and to
maintain excellence of minority educational institutions.
4) That the procedure and method of admissions as well as selection of students must be fair
and transparent.
5) That minority educational institution should be able to raise reasonable surplus to meet the
cost of expansion and augmentation of facilities without resorting to capitation fee or
profiteering.
6) And that all citizens have the right to establish and administer educational under article 19(1)
g and 26, but the right is subject to the provisions of article 19 (6) and 26 a whereas the right
of minority educational institution stems from article 30(1).
The effect of the judgment by the 11-member bench is that a centralized counselling and single
window system will no longer do admissions, and the government for all types of colleges
would fix the fee structure. As government puts it, the following shall be applicable for
admissions to minority educational institutions.

Privileges offered to the Minority Educational Institutions

Privileges to minority institutions also stems from the judgment delivered from the Supreme
Court:
1) A minority educational institution would continue to be so whether the government declared
it as such or not (N.Ammad vs. Manager, emjay high school and others) .
2) Minority educational institutions do not have to reserve seats for SCs, ST’s or OBCs, as
required to be done by other educational institutions.

7
AIR 2003 SC 355
3) Minority educational institutions can reserve up to 50% of the seats for students of their own
community.
4) In term of control over employees, minority educational institutions have much greater
powers than other institutions. For instance, in the selection of teachers and principles the
minority educational institution can have a selection committee, which does not include the
university representative. Similarly, while in ordinary schools the headmasters normally have
to be appointed on the basis of seniority; minority managements can select a headmaster of
their choice.
5) National Commission for Minority Educational Institution amendment bill provides for the
right to establish a minority educational institution and also provides that wherever ‘no
objection certificate’ for establishing a minority educational institution is either not granted
within a period of 60 days or where a decision in this regard is not communicated within such
a period, the MEI would proceed with the establishment of the institution as if the ‘no objection
certificate’ has been granted to it.

Government Control:

The state Government cannot have an absolute right in administration of the institution. A
government can not only regulate to maintain quality education, welfare of students and staff.
It can also regulate norms for NOC, affiliation, recognition, syllabus, examination,
qualification of Principal/teachers. The unaided minority schools are given maximum
autonomy as compared to the autonomy granted for aided educational institutions.
In the case “In Re: Kerala Education Bill, 1958”, honorable court opined that “the right under
article 30(1) is not absolute. The state has the power to regulate the administration of the
institutions established by the minority communities”. It implies that the minority institutions
cannot be allowed to perform on their whims and fancies while establishing and administering
the educational institutions.

THE AHMEDABAD ST. XAVIER’S COLLEGE V. STATE OF GUJARAT & ANR8

The College was established to provide higher education to Christian students. However,
children belonging to different classes and creeds were admitted and the college was affiliated
by the Gujarat University Act, 1949. The crux was that that what limits were to be set to prevent
government interference, especially in cases of appointment and dismissal of teachers and
admissions of students of minority community? The court held that these provisions couldn’t
be applied to minority community. It also emphasized that the rights conferred on the religious

8
1974 AIR 1389, 1975 SCR (1) 173
and linguistic minorities to administer educational institutions of their choice is an absolute
right.Just as the regulatory measures are required to maintain the educational character and the
minority institutions, similarly these measures are important for maintaining sound and orderly
administration. Restriction on the right of administration imposed in the interest of general
public alone and not in the interest of and for the benefit of the minority institution concerned
will affect the autonomy of the administration.
ST. STEPHEN COLLEGE V. UNIVERSITY OF DELHI9
The college exempted to follow the Uniform admission procedure which was applicable to all
the colleges of the University of Delhi at the U.G. level. The court held that admission of
students is an important aspect of the administration and it can be regulated but only in a way
that it won’t affect the rights of minorities and is for the betterment and welfare of those who
resort to it. The court also said that the denial of the power to college to supplement its
admission procedure by interview and to induce it to admit students on the basis of the
qualifying marks obtained violates the Article 30(1).The matter was later referred to a larger
bench and it was held that a University or government cannot interfere in the admission process
of the unaided minority institutions so long as the process is transparent and according to the
merit. Also it was held that a reasonable percentage shall be maintained by the state in which
the minority institution is situated.
T.M.A.PAI FOUNDATION AND ORS. V. STATE OF KARNATAKA AND ORS.10
In the case the court held that minority institution can admit students of non-minority group to
fill their leftover seats each year as Article 29(2) of the Constitution doesn’t override Article
30(1). Granting of aid by the government cannot modify the character of minority institution,
including, its choice of students but fixing a percentage for admission of minority students
would infringe Article 30 as it would amount to cutting down of the right.Therefore the best
way to ensure compliance with Article 29(2) as well as Article 30(1) is to consider individual
cases where denial of admission of non-minority student in a minority educational institution
is alleged to be in violation of Article 29(2) and provide appropriate relief.

9
1992 SC 1630
10
AIR 2003 SC355
CONCLUSION

The article unfolds a disappointing picture of the rights promised to the minorities through
Article 30 and their implementation. The debates in the constituent assembly show rather a
tolerant than an encouraging approach of the state towards the minorities. The issue of Rights
of the Minority to establish and administer educational institutions has been dealt in various
ways but there has not been a great success overall. Since there is no specific definition of word
minority, it creates ambiguity as to determine which class constitutes minority. In other words,
the article giving the right to the minority does not define „minority‟ and thus it creates
confusion when such issues arise. The article 30 attempts to preserve and secure the rights of
religious or linguistic minority of India, but to what extent it has been able to conserve the right
of minority is still a question? Regulation by state are rather discriminatory in terms of aided
institutions than unaided one. Also minority institutions are not reaching the level of excellence
education which is expected of them. It is time for minority institutions to go through and
understand the RTE Act 2009, its amendments on July 19, 2012 so as to keep themselves
updated so that the objective of state to impart quality education to minorities is served.
 Contents
S.No Topic Page No.
Bibliography
 Table of Cases

S.No Case Citation

1. Azeez Basha vs. Union of India AIR 1968 SC 662

2. S.P. Mittal vs. Union of India AIR 1983 SC 1

3. Re Kerala Education Bill AIR 1958 SC 956, 979:1959

SCR 995
4. Stephens College v. University of Delhi 1992 SC 1630

5. P.A. Inamdar vs. State of Maharashtra 2005 (6) SCC 537

6. T.M.A PAI Foundation vs. State of Karnataka AIR 2003 SC 355

7. The Ahmedabad St. Xavies’s College vs. State of 1974 AIR 1389, 1975 SCR
Gujarat & anr (1) 173