Article 30 consists of three clauses-
Clause (1) states that all minorities whether based on religion or language, shall have a right to establish and administer educational institutions of their choice. Clause (1)(a) deals with the provision for compulsory acquisition of any property for an educational institution established and administered by a minority.
Clause (2) of Article 30 provides that 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 interpretation of the words ‘establish’ and ‘administer’
In Aligarh Muslim University v. Naresh Agarwal (2024), the two crucial expressions arose for consideration and interpretation before the court, were ‘establish’ and ‘administer’ used in clause (1) of Article 30.
These two words and expressions have to be interpreted in the context of clause (1) to Article 30 which confers a guarantee and protection to minority communities based on religion or language.
a. The purpose of Article 30(1)
A brief reference to the drafting history of the provision will help us discern the purpose of the provision. On 19 April 1947, the Minorities Sub-Committee (which was appointed to examine and propose changes to the draft clauses of the fundamental rights Committee) submitted the interim report to the Chairperson of the Advisory Committee on Minorities and Fundamental Rights.
The Minorities Sub-Committee recommended, inter alia, the inclusion of a constitutional provision that stipulated that all minorities, whether based on religion, community or language shall be free to establish and administer educational institutions of their choice. However, when the first Draft of the Constitution was submitted by the Drafting Committee to the President of the Constituent Assembly, the provision guaranteed a right to establish and administer educational institutions.
This change in the language of the provision is crucial to understanding the scope of the provision. The provision guaranteed a purely negative group right to religious and linguistic minorities against the State with the use of the words “shall be free”, that is, the right to ensure that the State does not discriminate against minorities who wish to establish and administer educational institutions.
However, upon the use of the phrase ‘right’, the possibility of interpreting the provision as a guarantee of a positive right arose. It cannot be disputed that Article 30(1) guarantees the minority educational institutions, the right to not be discriminated. In fact, Article 30(2) is a facet of the principle of non-discrimination of minorities. The Article provides that the State shall not discriminate in granting aid to educational institutions or discriminate on the ground that it is under the management of a religious or linguistic minority. The question is whether the use of ‘right’ in Article 30(1) also guarantees a ‘special right’ in addition to the right to non-discrimination.
Ahmedabad St. Xavier’s College Society v. State of Gujarat
While there is no doubt that Article 30 protects the rights of minorities, Supreme Courts has in numerous judgments conceptualised varied reasons for the constitutional guarantee. In Ahmedabad St. Xavier’s College Society v. State of Gujarat[1], a nine-Judge Bench discussed the objective of the provision in detail. Chief Justice Ray writing for himself and Justice Palekar observed that Article 30 ensures equality between the majority and the minority, which would be denied in the absence of a special provision.
Justice HR Khanna cast the purpose of the provision in terms of substantive equality and observed that Article 30 guarantees ‘special rights’ to give minorities a ‘sense of security’. The learned Judge observed that the real effect of the provision was to “ensure the preservation of the minority institutions by guaranteeing the minorities autonomy […] in administration.”
Justice Mathew, writing for himself and Justice YV Chandrachud, also traced the purpose to the guarantee to substantive equality for minorities. The learned Judge observed that it will be impossible to protect the group identity of minorities and prevent the assimilation of identities in the absence of a provision guaranteeing substantive equality.
The case in question involved the abolition of all private schools, a measure challenged primarily by the minority. The Court emphasized that the rationale for the protection of minorities aimed at preserving their unique attributes. To achieve this objective, it deemed two aspects crucial. Firstly, it stressed the importance of ensuring that members of minority groups enjoy complete equality with other nationals of the state. Secondly, it emphasized the necessity of providing minority groups with appropriate means for preserving their racial peculiarities, traditions and national characteristics.
Distinct and diverse languages and religions have inherent value. It is also indisputable that cultures are often entangled with language and religion. The Constitution recognises that people who practise such religions or speak such languages who find themselves in the minority must not be at a disadvantage because of their numbers.
That being said, the purpose of Article 30 is not solely to enable religious minorities to impart religious instruction. Article 30 extends to secular education as well. That minorities may wish to impart secular and religious instruction side by side may be one aspect of the matter. Another equally relevant aspect is that minorities may wish to impart secular education in a manner that is conducive to the practice of their religion or harmonious with it, even if religious instruction does not form part of the curriculum. In this way, the right of linguistic and religious minorities to equality is protected.
The nine-Judge Bench in St. Xavier’s (supra) held that Article 30(1) is in pursuance of the anti-discrimination and substantive equality facets of the equality doctrine.
TMA Pai Foundation v. State of Karnataka
In TMA Pai Foundation v. State of Karnataka, Chief Justice Kirpal writing for the majority of the eleven-Judge Bench observed that a law that discriminates based on whether the institution is established by a minority or a majority is unconstitutional for violation of Article 30. The Chief Justice observed that, however, the provision should not lead to reverse discrimination.
This observation on a cursory view seems to indicate that the Court has taken a volte-face by shifting from a special rights/substantive equality approach of the provision to an anti-discrimination/formal equality reading of the provision. However, a closer examination reveals that the observations of the majority in TMA Pai (supra) were in line with the precedents that viewed the provision as a guarantee of a ‘special right’. This is evident from the interpretation of the interrelationship between Article 29(2) and Article 30.
One of the issues in that case was whether Article 29(2) which provides that no person shall be denied admission in State aided educational institution only on the grounds of religion, race, caste, language or any of them is applicable to minority education institutions. The opinion of the majority held that the denial of admission to non-minorities in minority institutions to a “reasonable extent” is not violative of Article 29(2) since it “preserves the minority character of the institution”.
Thus, Article 30, beyond preventing the State from discriminating against religious and linguistic minorities who wish to establish educational institutions also guarantees a ‘special protection’.
b. The ‘special protection’ guaranteed by Article 30(1)
This purpose of Article 30 was further expanded in PA Inamdar v. State of Maharashtra[2], where a seven-Judge Bench observed that the provision is better understood as a ‘protection’ and/ or a ‘privilege’ of the minority rather than an abstract right.
What is the special guarantee that Article 30 provides educational institutions established by religious and linguistic minorities which is not otherwise available to non-minorities?
Until the judgment of the eleven-Judge Bench in TMA Pai (supra), the right to establish and administer educational institutions was interpreted as a right that was exclusively available to religious and linguistic minorities by virtue of Article 30. In TMA Pai (supra), the right of every citizen to establish and administer educational institutions was traced to Article 19(1)(g), which guarantees the freedom to practise any profession, or to carry on any occupation, trade or business.
The eleven-Judge Bench also traced the right of ‘every’ religious denomination (of both the majority and the minority) to establish and administer educational institutions to Article 26(a) which guarantees the right to establish and maintain institutions for religious and ‘charitable’ purposes. Charitable purposes was interpreted to include education.
The rights guaranteed by Articles 19(1)(g) and 26(a) can be reasonably restricted on the grounds in Articles 19(6) and 26 respectively. An educational institution established and administered by any citizen can be regulated on the grounds stipulated in Article 19(6) which includes the ground of professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade, business.
An educational institution established by a religious denomination (without any element of profit) can be regulated on grounds of public order, morality and health. As opposed to these two provisions, Article 30 does not circumscribe the right on any grounds. Supreme Courts has, however, consistently emphasised that the right guaranteed by Article 30 is not absolute.
In Rev. Sidhajbhai Sabhai v. State of Bombay[3], a Constitution Bench observed that Article 30 is absolute and cannot be restricted on any grounds such as in Article 19. However, in the very next sentence Supreme Courts observed that the right can be restricted on the grounds of efficiency of instruction, discipline, health, sanitation, morality and public order.
It must be noticed that these grounds resemble the grounds for restraint prescribed in Articles 19(6) and 26. The inconsistency of the observations in Rev. Sidhajbahi (supra) was set right in State of Kerala v. Very Rev. Mother Provincial[4]. The six-Judge Bench differentiated between restrictions on the autonomy of a minority institution and the standard of education.
The former is impermissible in view of the protection under Article 30(1). The latter was traced to the regulation of the profession which is covered by Article 19(6). Thus, regulation of a minority educational institution is permissible on the grounds in Article 19(6). However, the regulation must not infringe the minority character of the educational institution. Article 30(1) is absolute in that sense.
Justice Khanna’s concurring opinion in St. Xavier’s (supra) also highlighted this point. The learned Judge observed that reasonable restrictions can be imposed to ensure that a minority educational institution is an institution of excellence. The examples given by the Judge included ensuring regular payment of salaries and audit of accounts.
The distinction between regulation which affects the minority character and a regulation in pursuance of ‘national interest’ was also drawn by the opinion of the majority in TMA Pai (supra). National interest was interpreted to include public safety, national security and national integrity, preventing the exploitation of students or the teaching community, and application of general laws such as laws on taxation, sanitation and social welfare.
The principle that can be inferred from the above precedents is that regulations that may be justified on the grounds stipulated in Articles 19(6) and 26 may fall foul of Article 30 if they infringe the ‘minority character’ of the institution. This is the ‘special right’ or ‘protection’ which the Constitution guarantees minority education institutions.
The right to administer was considered in some depth in St. Xavier’s (supra) by Chief Justice AN Ray and Justice HR Khanna. Justice Khanna emphasised that the right to administer an institution is to effectively manage and conduct the affairs of the institution. The learned Judge held that it means shaping the institution in congruence with their vision and ideas for best serving the interests of both the community and the institution.
Chief Justice AN Ray, on the other hand, observed that the right to administer has four components:
(a) the right to choose its managing or governing body;
(b) the right to choose the teachers;
(c) the right not to be compelled to refuse admission to students; and
(d) the right to use its properties and assets for the benefit of its own institutions.
The right to administer as guaranteed under Article 30(1) ensures autonomy in administration and the right of choice which may not otherwise be available to a non-minority institution. The right to administration, however, does not grant a carte blanche to flout or disregard the regulations and controls established by statute, which are essential for protecting the larger public interest and maintaining educational standards.
Thus, the right to administer is not impaired by factors such as rules and regulations prescribing the proper utilization of State funds, qualifications of the teachers, their remuneration and benefits, eligibility criteria for admission of students, attendance requirements and the threshold to pass the exams conducted by the board/university to which the college or school is affiliated. What is barred is the interference in the internal management and overall control of the institution.
At the same time, Non-minority individuals can be teachers or even hold the position of the academic or institution head. To hold otherwise, would amount to interference with the choice, as envisaged by Article 30(1). This proposition was clearly elucidated by the seven-Judge Bench in PA Inamdar v. State of Maharashtra which was formed to cull out the ratio decidendi of the eleven – Judge Bench in TMA Pai (supra). The degree of interference of the State in the administration of an educational institution differs based on whether the institution receives aid or recognition from the Government or whether the institution was established by a minority.
In PA Inamdar (supra), Supreme Courts discussed the extent of State interference in an(i) unaided and unrecognised/unaffiliated minority institution; (ii) unaided minority institution seeking recognition; and (iii) aided minority institution.
In the case of the first class, the seven-Judge Bench held that the minority ‘can exercise the right to heart’s content’. Institutions that fall within the first class could even fill all the seats with students from their community.
With respect to the second class, Supreme Courts held that the State cannot interfere in the day to day administration, including the essential ingredients of management, admission of students, recruiting staff and charging of fees.
Supreme Courts held that the regulation must be reasonable and for the purpose of ensuring that the institution is effective for the minority and others who resort to it. For institutions that fall within the third class, the State can only regulate the proper utilisation of the grant without diluting the minority status of the educational institution.
Thus, the position that emerges is that:
(i) the regulations must be relevant to the purpose of granting recognition (in the case of a State-recognised institutions) and aid (in the case of Government aided institutions); and
(ii) the effect of the regulation must not infringe the minority character of the institution.
From the discussion above, the following principles emerge:
a. The purpose of Article 30(1) is to ensure that the State does not discriminate against religious and linguistic minorities which seek to establish and administer educational institutions (“the non-discrimination” purpose); and
b. The purpose of Article 30(1) is also to guarantee a ‘special right’ to religious and linguistic minorities that have established educational institutions. This special right is the guarantee of limited State regulation in the administration of the institution.
The State must grant the minority institution sufficient autonomy to enable it to protect the essentials of its minority character. The regulation of the State must be relevant to the purpose of granting recognition or aid, as the case may be. This special or additional protection is guaranteed to ensure the protection of the cultural fabric of religious and linguistic minorities.
Reference
Aligarh Muslims University v. Naresh Agarwal (2024)
[1] (1974) 1 SCC 717
[2] (2005) 6 SCC 537
[3] 1962 (3) SCR 837
[4] (1970) 2 SCC 417