Constitutional and Legislative Protection of Right to Education of Minorities in India

The problem of minorities is of not recent origin. It was implanted by the British by the formula of ―Divide and Rule Policy‖ .Everybody has experience of the partition of the country and the ―hide and seek game‖ of the British. The division of the country on the basic of religion and declaration of an Islamic State in Pakistan were the result of the long treacherous British rule. Loot, murder, plunder and wholesale destruction of opposite community at the time of partition of our nation were the scars on the body politic of India at the dawn of Independence.1 The protection of rights of the ethnic and religious minorities is the backbone of India's secular values. With a legacy of bringing all religions under its fold, India has always advocated the principle of equality. ―Education is the single most important instrument for social and economic transformation. A well educated population, adequately equipped with knowledge and skill is not only essential to support economic growth, but is also a precondition for growth to be inclusive

1 D.S Prakash Rao ―Protection of minorities rights: Need of the hour‖, Legal Journal quest for justice, Vol –II ,No -1 ,Academic year 2006- 07.pp-63-64

since it is the educated and skilled person who can stand to benefit most from the employment opportunities which growth will provide.‖2. The Ministry of Human Resource Development has focused on an inclusive agenda, with a vision of realizing India's human resource potential to its fullest, with equity and excellence. The Article 30 of the Indian constitution is one of the many provisions that ensure preservation of minority rights. Article 30 is classified under Part III of the Constitution of India throws light on the fundamental rights provided to the citizens of India irrespective of their caste, religion and sex. Article 30 promises the rights of minorities "to establish and administer educational institutions".

Article 30 (1) promises to all linguistic and religious minorities the ‗right to establish‘ and the ‗right to administer‘ educational institutions of their own choice. The right is provided by this clause on two types of minorities, namely, religious and linguistic minorities. The right vested in the above minorities

2 Para 10.1 of the Approach to the 12th Five Year Plan.

administer an institution means the right to effectively manage and conduct the affairs of the institution. The administration implies management and affairs of the institution. The management must be free of control and restrictions so that the founders of their community can frame the institution as they think fit in correspondence with their views and ideas of how the interest of the community in general and the institution will be delivered. Thus it gives choice to the minority community to establish such educational institutions as it will serve both purposes, that is, the purpose of protecting their religion, language or culture, and also the purpose of giving through general education to their children in their own language. Article 30 (2) restricts the State from making discrimination in the matter of providing help to any educational institution on the ground that it is managed by a religious minority or linguistic minority.

The Article 29 of the Constitution of India, 1950 deals with the concept of protection of the interest of minorities and Article 30 talks about the right to establish and administer educational institution of their choice. In general it can be said the scope of minority right in constitution is: 1. To preserve the language, script or culture 2. To establish the educational institution 3. To administer educational institution 4. To administer according to their choice So, it can be said that a minority can preserve language, script, culture through the educational institution. But the right to minority education doesn‘t indicate religious teaching but general secular education. Generally establish means coming into existence of an educational institution by the minority and administer means day to day administration of the institution. The power of administration has many sides like admission of the students, appointment of teachers, choice to determination of language of educational institution etc.

(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. (2) No citizens shall be denied admission into any educational institution maintained by the

(1) All minorities, whether based on religion or language shall have the right to establish and administer educational institution of their choice [(1A) In making any law providing for the compulsory acquisition of any property of and educational institution established and administered by a majority, referred to in clause (1) ,the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under the clause]3 (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 minority whether based on religion or language. The Article 46 of the Constitution of India states that, ―The State shall promote, with special care, the education and economic interests of the weaker sections of the people, and, in particular of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of social exploitation.‖ Articles 330, 332, 335, 338 to 342 and the entire Fifth and Sixth Schedules of the Constitution deal with the special provisions for implementation of the objectives which are set forth in Article 46. Beside these, Article 350A says ‗facilities for instruction in mother tongue at primary stage‖4 Article 350 B says ―special officer for linguistic minorities ―5 Now, it can be clearly said that a minority can preserve language, script, culture through the educational institution. But the right to minority education doesn‘t indicate religious teaching but general secular education. Generally establish means coming into existence of an educational institution by the minority and administer means day to day administration of the institution. The power of administration has many facets like admission of the students, appointment of teachers, choice to determination of language of educational institution etc. The observation of the Supreme Court in Re Kerala Education Bill6 that ‗the right conferred minorities to administer educational institution of their choice is not an absolute right‘

3 Ins: by the constitutional (Forty four Amendment Act ,1978, Sec 4 ( w.e.f 20/06/1999) 4 Article 350 A Constitution of India 5 Article 350 B Constitution of India 6 A.I.R 1958 S.C 956

into: (1) Recognised aided institution (2) Recognised unaided institution. (3) Unregonised institution The unaided minorities institution is also subject to regulation of the Government. The honorable Supreme Court of India by its judicial dictum has tried to interfere the ―letter and spirit ―of the constitutional provision regarding the minority right to education at this post modernism and global era keeping in view the recent socio –economical jurisprudential orientation and the new trend of unaided minority educational institution. To satisfy the new trend of liberalization, privatization and globalization the intelligent judiciary in T.M.A Pai Foundation case7 has overruled the view of Unnikrishan8 that the nationalization of education and surrending the process of selection to the State but T.M.A Pai Foundation9 allowed to educational intuition to generate a reasonable surplus to meet the cost of expansion and augmentation of facilities who would not amount to profit. In case of Islamic Academy10, the ratio of Pai Foundation11 that autonomy of unaided non-minority institution is an important facet of their right under Article 19 (1) (g) and in case minority under Article 19(1)(g) read with Article 30 of the constitution has been ignored. The guideline for reservation, admission procedure, fees structure, capitation for unaidedprivate institution both minority and non-minority in P.A. Inamdar vs State of Maharashtra12 can be summarized as follow: (1) Admission procedure: The court held that there is nothing wrong in having centralized entrance test being held for one group of institution imparting same or similar education. Admission to be made from the list of successful candidate without altering interse merit. It would benefit twin objects, first serving student free from exploitation and secondly, ensuring merit admission. (2) Reservation: In unaided private professional institution (both minority and non-minority), the Court held that the scheme for reservation of seats as state quota is violative of Article 30 and 19(1)(g) .Its affect the autonomy of such institution .However a limited reservation of 15 % may be made for

7 AIR 2003 SC 355 8 Unni Krishna ,J.P vs State of A.P , (1993) I SCC 645 9 AIR 1970 SC 259. 10 Islamic Academy vs State of Karnataka AIR 2003SC 3724 11 AIR 1970 SC 259. 12 AIR 2005 SC 3236

the discretion of management subject to two condition: First ,such seats should be utilized for benefit of N.R.I wards and secondly money collected should be utilized for the benefit of economically backwards students. (3) Fee Structure: It was held that every institution free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee directly or indirectly or in any form is charged. Fees structure can be regulated for preventing profiteering .The right to establish and administer an institution within the meaning of Article 30(1) of the constitution includes the right to fix reasonable fee structure. (4) Capitation: Charging of capitation fees is not to be permitted. ‗Profession‘ has to be distinguished from business or a mere ‗occupation‘

The Articles 29 and 30 of the Constitution of India, 1950 are grouped under the same heading ―Cultural and Educational rights‖. Both the articles protect and guarantee certain collective rights for the minorities to help them to 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. Together, they confer four distinct rights on minorities. These include the right of: (a) the citizen against denial of admission to any State-maintained or State-aided educational institution. (b) an educational institution against discrimination by State in the matter of State aid (on the ground that it is under the management of religious or linguistic minority; and (c) any section of citizens to conserve its own language, script or culture; (d) all religious and linguistic minorities to establish and administer educational іnstіtutіons of their choice;13 Article 29, especially clause (1) thereof, is more generally worded, whereas article 30 is focused on the right of minorities to (i) establish and (ii) administer educational institutions. Notwithstanding

13 Goyal K.N., ―Majorities Right to Establish and Administer Educational Institution‖, Journal of Indian Law Institute, Volume 38, Number 3, July – September 1996, p. 283.

Constitution incorporated article 30 in the Constitution with the obvious іntentіon of instilling confidence among minorities against any legislative or executive encroachment on their right to establish and administer educational іnstіtutіons. In the absence of such an explicit provision, it might have been possible for the State to control or regulate educational institutions, established by religious or linguistic minorities, by law enacted under clause (6) of article 19. 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 іnstіtutіons maintained by the State or receiving aіd out of State funds; on grounds only of religion, race, caste, language or any of them. Article 29(1) deals 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/she belongs.14 Article 30 (1) provides that all religious and linguistic minorities have the right to establіsh and administer educational іnstіtutіons of their choice. Article 30(2) prevents States from making any discrimination against any educational іnstіtutіon іn granting aіd on the ground that іt іs managed by a religious or lіnguіstіc minority.

The National Monitoring Committee for Minorities' Education (NMCME) has been reconstituted vie Ministry's Resolution No. 6-4/2010-MC (Pt.) dated 23.12.2011. The first meeting of the reconstituted Committee was held on March 5, 2012 at New Delhi. At this meeting, a decision was taken to constitute a Standing Committee of NMCME and five sub-Committees of NMCME as under:

► Mapping of Educational Requirements of Minorities - Region & District-wise

14 Molishree, ―Minority Educational Institution- A Critical analysis.‖ Visited on 25th October 2019 .http://socialjustice.nic:in/obes/minority.htm

► Girls' Education ► Promotion of Urdu Language and enhance compatibility amongst minorities through knowledge of English. The Government is also running the following Schemes for the improvement of Educational and Economic lot of the Minorities: ► Central Sponsored Scheme for Providing Quality Education in Madrasa (SPQEM) ► Scheme for Infrastructure Development Private Aided/Unaided Minority Institutes (IDMI) - (Elementary Secondary/Senior Secondary Schools) The following work is done for granting equal opportunities to the Minorities in the country:- ► Prime Minister's 15-Point Programme for Minorities' Welfare (Including Status Report) ► Major Initiatives for Educational Advancement of Minorities ► Government Decisions on Sachar Committee Recommendations (Including Monitoring of Action Taken) ► Findings of Research Conducted by NUEPA - Participation of Muslims in Higher Education

On a demand being made in that behalf the President may, if he is satisfied that a substantial proportion of the population of a State desire the use of any language spoken by them to be recognized by that State, direct that such language shall also be officially recognized throughout that State or any part thereof for such purpose as he may specify. Special provisions have also been made under Articles 350A and 350B to provide smaller communities educational opportunities in their mother tongue and to appoint a special officer for linguistic minorities.

Every person shall be entitled to submit a representation for the redressal of any grievance to any officer or authority of the Union or a State in any the case may be.

It shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups; and the President may issue such directions to any State as he considers necessary or proper for securing the provision of such facilities. These provisions are unique in their thoroughness and seek to accommodate the interest of linguistic minorities. When provisions under Articles 29 and 30 are considered along with other provisions in the Chapter of Fundamental Rights and elsewhere in the Constitution safeguarding the rights of religious, linguistic and racial minorities, it becomes clear that the sole purpose of these provisions is to give linguistic minorities, the right to preserve and develop their language and to facilitate teaching in mother tongue to their children in early ages.15 But the minority status of the language in an area does not have a bearing on the social and economic status of those who speak the minority language. In fact every State has speakers of minority languages though the percentage of speakers varies.

We have National Commissioner for Linguistic Minorities, an organization to monitor and implementation of Constitutional and Consensual safeguards for linguistic minorities. Safeguards provided to the linguistic minorities are of two kinds: 1. Those provided by the Constitution 2. Those arrived at by the consensus by Central and State Governments through series of meetings. 3. The combined scheme.

The National Commission for Minority Educational Institutions Act is the outcome of the UPA Government‘s manifesto that called for ‗National

15 Constitutional and Legislative provisions Regarding the Minorities – Justice Ranganath Misra Report, 2007, p. 36. 16 A Constitution Amendment Bill, viz. the Constitution (One Hundred and Third Amendment) Bill, 2004 has been introduced so as to add a new article, viz, Article 340A to constitute a National Commission for Minorities with a constitutional status. A Bill to repeal the National Commission for Minorities Act, 1992 has simultaneously been introduced.

Common Minimum Programme, in its Section on ―National Harmony, Welfare of Minorities,‖ it was mentioned that a commission for minority educational institutions would be established which will provide direct affiliation for minority professional institutions to Central Universities. The Government brought out an Ordinance in November 2004 establishing the Commission. Later a Bill was introduced in the Parliament in December 2004 and both Houses passed the Bill. The NCMEI Act was notified in January 2005.

was enacted to constitute a Commission charged with the responsibilities of advising the Central Government or any State Government on any matter relating to education of minorities that may be referred to it, looking into specific complaints regarding deprivation or violation of rights of minorities to establish and administer educational іnstіtutіons of their choice, deciding on any dispute relating to affiliation to a scheduled University and reporting its findings to the Central Government for implementation. The Act was extensively amended in 2006 (Act 18 of 2006), inter-alia, empowering the Commission to enquire suo moto or on a petition presented to it by any minority educational institution (or any persons on its behalf) into complaints regarding deprivation or violation of rights of mіnorіtіes to establish and administer an educational іnstіtutіon of its choice and any dispute relating to affіlіatіon to a University and report its finding to the appropriate Government for its implementation. The Act also provides that if any dispute arises between a minority educational institution and a University relating to its affiliation to such University, the decision of the Commission thereon shall be final.

National Minorities Development Financial Corporation was incorporated under the aegis of ―Ministry of Social Justice and Empowerment‖, Government of India on the 30th of September 1994 under the Section 25 of the Companies Act – 1956 with the main objective to promote economic development of the poorer section of Minorities. The people belonging to five communities i.e. Muslims, Christians, Sikhs, Buddhists & Parsis have been notified as minorities under the National Commission for Minorities Act, 1992. The prime mandate of NMDFC has been to provide concessional finance to the minorities living below double the poverty line for self-employment. NMDFC functions under the administrative control of

Article 26(1) of the Universal Declaration of Human Rights says that everyone has the right to education. Education shall be free, at least is the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basic of merit. Beside these sub clause 2 says that education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups and shall further the activities of the United Nations for maintenance of peace19. Furthermore clause 3 of this article20 says that parents have a prior right to choose the kind of education that shall be given to their children.

The International Covenant on Economic Social and Cultural Rights is also sound for education. Regarding the value of education it says: ―The State Parties to the Present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all people to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial ethnic or religious groups and further the activities of the United Nations for the maintenance of peace21‖: With a view to achieving full relation of right to education, the State Parties to the International Covenant on Economic, Social and Cultural Rights recognize that22:

17 Mahmood Tahir, ―Minority Matters‖, The Times of India, April 11, 2007. 18 Universal Declaration of Human Rights 19 Article 26(2) of the Universal Declaration of Human Rights 20 Article 26(3) of the Universal Declaration of Human Rights 21 Article 13(1) of the International Covenant on Economic, Social and Cultural Rights. 22 Ibid. Article 13(2)

Article 5 of the International Covenant on the Elimination of All Forms of Racial Discrimination guaranties the right of education to everyone without distinction as to the race, colour and national or ethnic origin.

The world human right documents say for example Universal Declaration of Human Rights and International Covenant on Economic Social and Cultural Rights Recorded the high esteemed cultural and educational rights of everyone but all over the world there is economic inequality among the citizen. International Covenant on Economic Social and Cultural Rights establishes the compulsory and free primary education to all but in India it has been seen that there are two kinds of education system-(1) general government school base education system and (2) English medium private base education system. The inclusion of caste in census 2011 is also a threat to the minority to retain their identity. The sociologist Imtiaz Ahmed, whose pioneering work demonstrated the pervasive consciousness caste among Muslim, feared that religious minorities would not be enumerated as having a caste, thus immediately denying them entry into any category on the basis of caste23. The inclusion of the minorities at the footing of SC, ST and OBC is also a direct threat to culture of the minority. Scheme for Providing Quality Education for minorities are: ► Scheme for Infrastructure Development of Private Aided/Unaided Minority Institutions (IDMI) ► Sarva Shiksha Abhiyan (SSA)

23 Vikhar Ahmed Sayeed, ―The Cast Factor‖ Frontline, Sep 10, 2010, vol-27, p-108.

► Extension of Mid-Day-Meals (MDM) Scheme to Madarsas/Maqtabs ► 'Saakshar Bharat' ► Rashtriya Madhyamik Shiksha Abhiyan (RMSA) ► Strengthening of the National Council for Promotion of Urdu Language (NCPUL) ► Establishment of the National Commission for Minority Educational Institutions (NCMEI) ► List of Minority Concentration Districts ► Sub-Mission on Polytechniques under the coordinated Action for skill development ► Girls Hostel Scheme ► Setting up model schools

1. Bakshi, P.M. (2003). The Constitution of India with selective comments. 5th Ed. Delhi: Universal Law Publishing Co. Pvt. 2. Basu, Das Durga (2004). Introduction to the Constitution of India. 19th Ed. Agra: Wadha & Company Law Publishers. 3. Constituent Assembly Debates Vol. III,IV ,V,VII 4. Inam, Mohammad (1992). Minorities and the Law. New Delhi: Indian Law Institute. (Edited Book ) 5. Jain, C. (2000). The Constitution of India Select Issues and Perceptions. New Delhi: Taxman Publication Pvt. Ltd. 6. Jain, Kagzi M.C. (2001). The Constitution of India (Vol. 2) 6th Ed. New Delhi: Indian Law House. 7. Jain, M.P. (2003). Indian Constitutional Law. 5th Ed. New Delhi: Wadha and Company Nagpur. 8. Malik, Surendra & Summet (2007). Supreme Court Educational Institutions Cases. 7th Ed. Lucknow: Eastern Book Company. 9. Pandey, J. N. (2009). Constitutional Law of India. 46th Ed. Allahabad: Central Law Agency. Constitution.. University of Bombay, 1981 11. Seervai, H.M. (1991). Constitutional Law of India (Vol. 2). 4th Ed. Delhi: Universal Law Publishing Co. Pvt. Ltd. 12. Shukla, V.N. (2006). Constitution of India. 10th Ed. New Delhi: First Foundation. 13. Subhash, C. Rashyap (1968). The Framing of India‘s Constitution. Delhi: Universal Publishing Co. Pvt. Ltd.

Research Scholar, Maharaja Vinayak Global University, Jaipur