International Journal of Political Science, Law and International Relations (IJPSLIR) ISSN 2278–8832 Vol. 3, Issue 2, Jun 2013, 61-70 © TJPRC Pvt. Ltd.
NEED FOR EDUCATIONAL RIGHTS OF MINORITIES NIRU SHARAN Assistant Professor, Amity Law School, Amity University, Noida, Uttar Pradesh, India
ABSTRACT India, the largest democracy of the world is a land of religious, cultural and linguistic diversity. Correspondingly we have the division of population into a majority and several minorities on the basis of religious, cultural as well as on linguistic communities. The basic object of minority protection is to instill confidence in them, create a feeling that they will never be overrun by the majority and to homogenize the pluralities in a civil society and to integrate minorities fully and equally into the national life of the state characterized by the ethos and interest of majority. The term minority occurs only in Articles 29 and 30 of the Indian Constitution. Article 30 recognizes the right of a minority whether based on religion or language to establish and administer educational institutions of their choice and prohibits the state from discriminating against any educational institutions on the ground that it is under the management of a minority. Article 30(1) holds a very special place for the fact that through education alone minorities can conserve their language, script and cultural heritage. It is the most important factor for the development of man as well as of the society. Even the international law recognizes that education is general human right and also crucial part of minority rights. The concept of minority though not define by the Constitution occurs again in Article 29 of the constitution, where the right of any section of the citizen residing in the territory of India, „ to „conserve‟ its distinct language, script or Culture is protected. Moreover Article 25 to Article 28 of the Constitution protects the religious and cultural rights of the minorities. In Addition to these rights the articles of the Part III of the Constitution guaranteeing specified fundamental rights either to individual citizens or to all persons, whether citizens or not, strongly reinforces these protection. It seeks the protection of individual activities of members of group or sections of the population whether operating in isolation or in concert. They are often directed towards the promotion of these groups or their activities. Articles 29 and 30 of the constitution guarantees some specified and some unspecified rights to these groups of minorities. Right to establish and administer an educational institution of its choice is, for example, a specific right guaranteed to linguistic and religious minorities. Such institutions may be established and administered by any section of citizens having a distinct language, script or culture to conserve the same. The latter may also take reasonable steps to preserve the language, script or culture. But most importantly the reason for granting such rights is the fact that minority groups realize that it needs education for survival and development. If it wants to preserve its cultural identity it would tend to establish educational institutions where its members may have a congenial atmosphere conducive to the growth of its identity. The underlying philosophy of the constitution is that, no minority whether based on religion, community or language shall be deprived of its right or discriminated against in regard to the admission into state education institutions.
KEYWORDS: Minorities, Educational Rights, Article 29, Article30, Constitution
INTRODUCTION Each society is an amalgamation of distinct cultures and religious communities who cherish their identities and rightly wish to preserve them. Correspondingly one can notice the division of population into a majority and several minorities on the basis of religious as well as ethnic cultural communities. Though everyone should have the right to protect, preserve and practice their beliefs, the minorities often feel neglected and looked down upon. Therefore it is essential that for the protection of minority, their distinct religious and cultural identities are preserved. The basic object of such minority protection is to instill confidence in them, create a feeling that they will never be overrun by the majority and to homogenize the pluralities in a civil society and to integrate minorities fully and equally into the national life of the state characterized by the ethos and interest of majority. Jawaharlal Nehru has observed: The history shows that there can be no stable equilibrium in any country so long as an attempt is made to crush a minority or to force it to conform to the ways of the majority. The largest democracy of the world is also said to be the house of the most diverse societies in the world. It has people from all the major religions. Although the Hindus constitutes an overwhelming majority, but there is a considerable number of Muslims, Christians, Parsees, Buddhist and Jains religions too. The diversity in India is noticed on various fronts other than religion and culture such as language. Diversity is coupled with linguistic diversity4. In addition to that there are also a number of Scheduled tribes and certain unidentified communities which are internally heterogeneous5. All these make India a country which has not only religious but also linguistic and cultural diversity. The guardian of the state, the constitution provides certain fundamental tenets, chief among them being the rule of law, equality and special provisions for certain vulnerable groups. The Constitution of India envisages a secular. It visualizes a state offering justice, social economic and political to all the citizens. Freedom of Speech and Expression and the Right to Form Association and Union are guaranteed to all. The Indian Constitution made India a sovereign, socialist, secular, democratic, republic consisting of a representative government deriving its power from the people and exercising the same through representatives freely chosen by and who are responsible to the people. The Government is run by a majority party and political power is distributed between them. The rights guaranteed by the Constitution are available to all the citizens irrespective of distinction of any kind. But for the protection of minority so that they are not hampered by the majority, the constitution went a step further by adopting a separate group of articles to infuse confidence in the minority communities of this country6. The term minority occurs only in Articles 29 and 30 of the Constitution. Article 30 recognizes the right of a minority whether based on religion or language to establish and administer educational institutions of their choice and prohibits the state from discriminating against any educational institutions on the ground that it is under the management of a minority. The concept of minority though not define by the Constitution occurs again in Article 29 of the Constitution where the right of any section of the citizens residing in the territory of Indiaâ€&#x; to â€žconserveâ€&#x; its distinct language, script or culture is protected. Moreover Article 25 to Article 28 of the Constitution protects the religious and cultural of the minorities. _______________________________________________________________________________________________ 1
Gurpeet Mahajan, Identities and Right 2-11 (oxford University Press, London, 2001).
P. Jagmohan Reddy, Minorities and Constitution 3-24 (Bombay University Press, Bombay, 1981
Id. at 4.
Need for Educational Rights of Minorities
In Addition to these rights the articles of the Part III of the Constitution guaranteeing specified fundamental right either to individual citizens or to all persons, whether citizens or not, strongly reinforces these protection. It seeks the protection of individual activities of members of group or sections of the population whether operating in isolation or in concert. They are often directed towards the promotion of these groups or their activities. 7 Education and Minority Rights. Minority Education Institutions The problem of minorities is such that it has evoked enquiry not only in India but in almost all the democratic countries because a true democracy envisage a system where there is equality of opportunities for every community in all field and providing an opportunity of participation in the national reconstruction without losing their separate identity. Keeping this in mind, the constitution of India makes special provision for the interests of the minorities. Of all the special rights given to the minorities perhaps Article 30(1) hold a very special place for the fact that through education alone minorities can conserve their language, script and cultural heritage. It is the most important factor for the development of man as well as of the society. Even the international law recognizes that education is general human right and also crucial part of minority rights. The Constitution declares Article 30(1) to be fundamental right of the minorities in India, whether based on religion or language. In the original draft, this particular article was not included in the Fundamental Right category. It was only a duty imposed on the state and the said article prescribed a limitation prohibiting state from passing any law which could be called oppressive. The present article has been given the status of fundamental right. Explaining the reason for doing so, B.R. Ambedkar stated: The Present situation is that we have converted that into a fundamental right so that if the state made any law which is inconsistent with the provisions of the said article then that much of the law would be invalid.9 Education Rights of the Minorities: Why and What? Firstly it is important to note that there are two groups of minorities in India: ď‚ˇ
Those based on religious or language that are permanent or quasi-permanent minorities in relation to the rest of the people of India.
Those as are transient or quasi-transient minorities in relation to smaller segment or regions of the Indian population based on language, script or language. Articles 29 and 30 of the constitution guarantees some specified and some unspecified rights to these groups of
minorities. Right to establish and administer an educational institution of its choice is, for example, a specific right guaranteed to linguistic and religious minorities. Such institutions may be established and administered by any section of citizens having a distinct language, script or culture to conserve the same. The latter may also take reasonable steps to preserve the language, script or culture.
There are almost 1652 languages in India.
The Kuki community is an example of such heterogeneous community. It comprise of several different tribes.
Mohammed Imam(ed.), Minorities and the Law 314 (N.M.Tripathi Pvt. Ltd, Bombay, 1972).
Next it is of utmost importance to know the reason for giving the right to establish and administer educational institutions. The answer may not be universally applicable to all minorities in a situation.10 Christian missionaries may for example establish modern secular education institutions in non-christianity majority areas for the benefit of the latter. It may be a muslims, parsis, jains and Sikhs for establishing educational institutions for such benevolent motives. The constitution guarantees founders of such institutions all that can be reasonably claimed under freedom to manage and administer. The court from the very beginning have interpreted the right to administer minority institution in a very broad manner and have widened its scope. Only in some recent cases the court has realized that minority rights to autonomous institutions may be misused for profit motives, resulting in denial of rights to teaching and non-teaching staff of these institutions. But most importantly the reason for granting such rights is the fact that minority groups realize that it needs education for survival and development. If it wants to preserve its cultural identity it would tend to establish educational institutions where its members may have a congenial atmosphere conducive to the growth of its identity. This latter factor would tend to attract boys and girls from the community who would otherwise have not joined any other institutions of other dominant groups. This very rational scheme of survival of any distinct group demands that the primary freedom of choice guaranteed in article 30(1) should be mainly available in deciding the kind or type of education to be imparted and in selecting the target group that is students from its own community whose survival and development as a distinct group is supposed to have been the object of constitutional guarantee. The right under article 30 (1) is absolute and unlike article 19 does not admit of any restriction. This does not mean that this right is not subject to regulatory power of the state. The state may provide regulatory measures provided (1) they are not annihilative of the right itself, (2) are in public interest and in the interest and in the interest of the institution. But it is also important to note that the regulatory power should not be such that it would invade the fundamental right of the minorities given in article 30(1) of the constitution. Reflecting back on the origin of this article, it is of utmost importance to note that the Sub-Committee on Minorities constituted by the Constituent Assemble Advisory Committee on Fundamental Rights and Minorities on 24 February 1947 prepared an interim report which dealt with the question fundamental right from the viewpoint of minorities and was submitted on 19 April 1947. The report recommended for the following:
All citizens are entitled to use their mother tongue and the script thereof, and, to adopt study or use any other language and script of their choice.
Minorities in every unit shall be adequately protected in respect of their language and culture, and no government may enact any laws or regulations that may act oppressively or prejudicially in this respect.
No minority whether of religion, community or language shall be deprived of rights or discriminated against in regard to the admission into state educational institutions, nor shall any religious instruction be compulsorily imposed on them.
Ibid at 37.
A.K. Pandey, “Education Right of Minority in India”, 10 M.D.U. Law journal 183-187 (2005).
Need for Educational Rights of Minorities
All Minorities „whether of religion, community or language‟ shall be free in every unit to establish and administer educational institutions of their choice, and they shall be entitled to state aid in the same manner and measure as is given to similar state aided institutions.
Notwithstanding any custom, law decree or usage, presumption in terms of dedication, no Hindu on grounds of caste, birth or denomination shall be precluded from entering an educational institution dedicated or intended for the use of the Hindu community or any section thereof.
No disqualification will arise on account of sec in respect of public services or professions or admissions to educational institutions save and except that this shall not prevent the establishment of separate educational institutions for boys and girls. When this report came to be considered by the Advisory Committee in its meeting held on April 22, 1947, Alladi
Krishnaswami objected to clause (i), seeking to protect mother tongue was a matter nobody otherwise also could interfere with K.M. Munshi explaining the reason says that the clause was taken from the minorities rights in the Polish which was later incorporated in the Polish Constitution. He said that attempts were made in Europe and other places to prevent the minorities from using or studying their own language. This right had therefore come to be regarded as a classical right of minorities.11 In spite of Munshi‟s insistence, the clause was deleted. Clauses (II) and (III) were accepted with slight modifications. There was much discussion on Clause (IV) which provided for the right to establish and administer educational institutions and the right to state aid. One objection to the inclusion of this right was that such a right would perpetuate communal institutions and that the state should not give aid to such institutions.12 however the objection could not persuade the committee and the clause as slightly modified in its form was supported by a majority vote. Clauses (V) and (VI) deleted as redundant. Another suggestion which if accepted would have shaken the very foundations on which minority was to be demanded and to conceded was G.B. Pant‟s suggestion that the rights recommended by the subcommittee could be more properly incorporated as directive principles which would be kept in view by the legislation but would not be enforceable in the court of law. While Munshi opposed if they were made non-justifiable, Sardar ujjal singh and Ruthnaswami opposed the proposal on the ground that a change of these right from the status of fundamental rights to the state of moral precepts would not be acceptable to the minorities. The Advisory Committee ultimately came to recommend the following:
Minorities in every unit shall be protected in respect of their language and culture, and no laws or regulation may be enacted that operated oppressively or prejudicially in this respect.
No minority whether based on religion, community or language shall be discriminated in regard to the admission into state educational institutions, nor shall any religious instruction be compulsorily imposed on them. o
All minorities, whether based on religion, community or language, shall be free in any unit to establish and administer educational institutions of their choice.
The state shall not, while providing State aid to schools discriminate against schools under the management of minorities whether based on religion, community or language.13
7 Constitutional Assembly Debates at 923 (4 November 1948 to 8 January 1949).
Iqbal A. Ansari, Minority Educational Institution 121 (Institute of Objective Studies, New Delhi, 2002
Id. at 102.
When these recommendations came before the Constituent Assembly on May 1, 1947 for their acceptance, a suggestion came from a member, Mahvir Tyagi that the consideration of the whole problem should be postponed till it was known whether the country was to be partitioned and if so what treatment was to be meted out to the minorities in Pakistan or in any part of India which might organize themselves separately. To this, B.R. Ambedkar said that the minority rights were not relative. They were absolute and not subject to any consideration as to what Pakistan any other party might like to do with minorities within its own jurisdiction. However, sub-clause (2) was referred back and the Advisory Committee for clarifying its scope in respect of state-aided institutions. The Advisory committee deleted the word „nor shall any religious instruction be compulsorily imposed on them‟ for their reason that his had already been included in clause 16. 14 Several members wanted amendments when the re-drafted sub-clause (20 came up before the Assembly. Ahmad Ibrahim‟s suggestion was that the prohibition against discrimination should not be applied to state-aided educational institutions which were primarily established for the benefit of a particular community. Mohanlal Saxena, another member suggested that no aid should be granted to any educational institution which imparted religious unless the syllabus had the approval of the state. This amendment if granted would have greatly affected the autonomy of the institution receiving aid out of state funds. Mrs. Purnima Banerji suggested that within the purview of this clause, should be included state aided institutions so that it becomes obligatory on the institutions not to discriminate against any minority in matters of admission. All the three amendments were disapproved by the assembly on the ground that it was a simple nondiscriminatory clause and the extension of the Principle to state-aided institutions was a principle which could be decided by furniture legislation.15 Thus after much discussion article 23 of the draft Constitution read as following:
Any section of the citizen residing in the territory of India or any part thereof having distinct language, script or culture of its own shall have the right to conserve the same.
No minority whether based on religion, community or language, shall be discriminated against in regard to admission of any person belonging to such minority into any educational institution maintained by the State. o
All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that is under the management of a minority, whether based on religion or language.16
Thus the drafting Committee made a distinction between the right of any section of the citizens to conserve its language, script or cultural and the right of a minority based on religion or language to establish and administer educational institutions of its choice, for the Committee replaced the word „minority‟ with any section in the earliest part of the draft article 23 while it retained the word „minority‟ in the latter part, While giving an explanation to the said article Ambedkar explaned that ________________________________________________________________________________________________ 12
Ibid. this objection was brought about by Rajkumari Amrit Kaur and she got the support of Alladi Krishnaswami Aiyyer.
Id. at 103.
Id. at 104.
Need for Educational Rights of Minorities
It will be noted that the term minority was used therein not in the technical sense of the word „minority‟ as we have been accustomed to use it for the purpose of certain political safeguards, such as representations in the legislature, representations in the services and so on. The word is used not merely to indicate minority in the technical sense of the word, it is also used to cover minorities which are not minorities in the technical sense, but which are nonetheless minorities in the culture and linguistic sense.17 For instance for the purpose of this article 23, if a number of people from madras came and settled in Bombay for certain purposes they would be, although not a minority in the technical sense, cultural minorities. Similarly if a certain number of Maharastraian went from Maharastra and settled in Bengal, although they might not be minorities in technical sense, they will be cultural and linguistic minorities in Bengal. The article intends to give protection in the matter of culture, language and script only to a minority technically but also minority might be interpreted in the narrow sense of the term when the intention of this House…… was to use the word minority in much wider sense, so ast o give cultural protection to those who were technically not minorities but minorities nonetheless. 18 In the draft article two more articles of substantial nature were incorporated. By one amendment the words „ language, script and culture‟ were replaced by the word „ language, script or culture‟ in clause (1). The reason for the amendment was discussed by B.N Rao who pointed out that there were sections of people with a separate language and script but with no separate culture. There were also people also people who had separate culture but no separate language and script. To these he pointed out that the original clause (1) would no afford any protection. He exemplified by saying that the Muslims in Bengal did not differ from the Hindus there in language and script but had a distinct culture of their own, and the Andhras in Orissa had a script and language of their own but not a different culture from the majority of the inhabitants. The other amendment sought to prohibit discrimination against any minority in the matter of admission by the state aided institutions. When the draft article 23 came up for consideration before the Constituent Assembly, the Assembly witnessed a lot of debate of amendments were moved forward. One of the interesting provision suggested was the effect that any minority having a distinct language and script should be entitled to have primary education imparted to its children through the medium of that language and script.19 But the aforesaid amendments could not be materialized in the face of opposition from different quarters. Ballabh Pant emphasized that primary education was important and must be made universal. But as it involved huge expenditures and that the state had limited resources what was desirable was that as a first step was to introduce primary education to the large number of illiterates of the country. He said that if there has to be two or three sets of teachers (to teach different languages) the country would not be able to introduce universal primary education or compulsory primary education. Many other also expressed similar views that there were practical difficulties to accept primary education in mother-tongue as a justiciable right. _______________________________________________________________________________________________ 15
5 Constitutional Assembly Debates 396 -402 (14 1947 to 30 August 1947).
Select Documents, Vol. III, 525-26 as quoted in Iqbal Ansari, Minority Educational Institutions (Institute of objective studies, New Delhi, 2002) 17
Supra note 9 at 922.
Id. at 923
Ambedkar also said that although it is impart primary education in mother-tongue but it could not be made a fundamental right enforceable through the court of law.20 The draft committee subsequently in the revision state divided article 23 into two separated articles: Article 29 and Article 30. 29(1) Any section of the citizens residing in the territory of India or any part thereof having distinct language, script or culture of its own shall have the right to conserve the same. (2) No citizen shall be denied admission into any education institution maintained by the state or receiving aid out of state funds on ground only of religion, race, caste, language or any of them. 30(a) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (b) 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. Thus except for a few concession which the assembly admitted for anglo-indians, no other religious minority could secure any political rights. The concession to anglo-indians as finally incorporated in the constitution comprised of provisions authorizing the president not to nominate more that two members of the anglo-indian communit to the house of people if in its opinion that the community was not adequately represented, a similar provision for nomination in the state legislative assemblies, both for the period of 30 years only, a provision for reservation in the post of railways, customs, postal and telegraph services for ten years, the reservation was on the same basis as provided before 1947. Moreover there was a special provision of special education grants for ten years which was available to the community in 1948. The constituent assembly did not concede any political rights to any other minority. What it ultimately conceded turned out to be rights relating to education, language and culture, and came to be incorporated as articles 29 and 30. 21 Inter â€“ Relationship of Articles 29(29) and 30(1) The framers of the constitution never intended that Article 29(2) to act as restraint on the content of the right articles 30(I). The way in which Article 29(2) came to assume its final shape in the Constituent Assembly in an interesting story. Originally the present Article 29(2) was part of the integrated scheme devised to protect educational interests of religious and linguistic minorities. The simple object of what now constitutes Articles 29(2) was to protect minorities from being discriminated against in regard to admission into state educational institutions. The recommendation of the minorities Sub-Committee made on April 19, 1947 for being incorporated as fundamental rights in the Constitution contains a provision in clause in which read: No minority whether based on religion, community or language shall be deprived of its right or discriminated against in regard to the admission into state education institutions. The advisory committee approved this recommendation and incorporated it in the interim report. When it came in front of the assembly there was a lot of debate and discussion. Ambedkar referred the clause back to the advisory committee for clarifying its scope in respect of state-aided institutions about which no mention has been done in the said clause. When the assembly look up the re-drafted article for consideration, a member of the Assembly, Purnima Banerji moved an amendment seeking to prohibit state-aided institutions also from discriminating against minorities. Explaining the scope of clause 18(2), K. M. Munshi said that the scope is restricted to this that where the state has got an educational institution of its own, no minority shall be discriminated against. Now this does not recognize that the state cannot own an
Need for Educational Rights of Minorities
institution. Which excludes minorities. This minority right is intended to pretended to prevent majority control legislatures from favouring their own community to the exclusion of other communities. Several members sought to make amendments so broad-based as to prohibit all institutions, state or state-aided, from discriminating against any person belonging to minority or majority in matter of admission. Patel rejected all of them and said that he only wished to say that this is a simple non-discriminatory clause against the minorities in matter of admission to schools which are maintained by the state. Hence the clause 18 as adopted by the assembly became article 23 of the draft constitution with certain drafting changes. Till this stage the intention of the assembly was to protect „minorities‟ from being discriminated in mattes of admission. It was only when the draft article was brought before the assembly that a dramatic change took place in this position. Pandit Thakurdas Bhargava suddenly came forward with an amendment to redraft article 23(2) to read: No citizen shall be denied admission into any educational institution maintained wholly by the state or receiving aid out of state funds on ground only of religion, language or any of them. Explaining the amendment, he pointed out that the amendment was intended to (I) extend the right of admission to educational institutions to all citizens, whether they belong to the majority or the minority, and (2) to provide that not only state maintained institutions but also these receiving aid out of state funds would be prohibited from practicing discriminating in the matter of admission. The assembly accepted the amended and, with that, Bhargawa‟s explanation. What impelled the assembly to accept Bhargawa‟s amendment substituting the word „minority‟ by the „citizen‟ are not known as the assembly chose to assign none. what However is known is that the assembly‟s attention was not drawn to the apparent conflict Between what now are article 29(2) and article 30(1).The assembly paid no attention to this apparent conflict, can be offering two possible reasons: o
The Assembly, deliberately intended to take away indirectly what it intended to Concede to minorities directly by placing article 29(2) as an exception to article 30(1)
The assembly, in its estimation, did not find article 29(2) as being in conflict with article with article 30(1) and as such an exception to article to article 30(1)
The first possibility must be ruled out as the assembly could not be expected to desire an absurd result. Alternatively, it is only the second possibility, therefore, which can be relied upon to infer the framers intention that they did not mean article 29(2) to serve as exception of article 30(1). The following factors would appear to help strengthen this reliance:
Bhargawa‟s explanation for substitution of the word „minority‟ with the word Citizen in article 29(2) was no different form Ambedkar who substituted the word „Minority‟ by the words „any section of the citizens‟, making the benefit of article 29(1) available to other groups as well as, without, at the same time, sacrificing the real object to achieve which article 29(1) was being incorporated.
Supra not 9 at 893.
Directive principle of state policy of the constitution of India.
Supra note 9
A close reading of Bhargawa‟ s explanation of the amendment shows that he, like Ambedkar, did not wish to change article 30(1). What he wanted was to make available to the students of the majority community also a right which the Assembly was to concede to minorities, thus trying to broaden the scope of article 29(2) without touching the special right made available to minorities under article 30(1). Bhargava explained that the second change which this amendment seeks to make is in regard to the institutions which will be governed by this Provision of law. Previously only the educational institution maintained by the state were included. This includes other institutions which are aided by state funds. There are a large number of institutions and in future by this amendment the rights of the minority have been broadened and the rights of the majority has also been secured.
If the framers intended to make the prohibition under clause (2) of article 29 available against minority institutions by treating the same as the exception to the right under article 30(I), the most appropriate place for such inclusion was article (30) itself and not article 29. It is obvious that if the framers were sure that they were treating clause (2) of article 29 as an exception, nothing could have prevented them to tag the exception to article 30 which sought to incorporate the general rule. If the prohibition was intended to constitute an exception to article 30(I). the framers could have used such words as „subject to the provisions of article 29(2)‟ at the opening if article 30(2) or „notwithstanding anything contained in article 30(I)‟ at the opening of article 29(2). Since they have not done so, it becomes obvious that the intention of the framers was not to treat article 29(2) as
an exception to article 30.