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Concept of Liberty
Personal Liberty
What is Individualism ?
Legal Aspect
Minority Rights
Conclusion & Judicial Approach

Liberty is the concept of ideological and political philosophy that identifies the condition to
which an individual has the right to behave according to one's own personal responsibility

and free will. The conception of liberty is impacted by ideals concerning the social contract
as well as arguments that are concerned with the state of nature. The term Liberty is as
modern as its meaning. It is Spanish in origin, from the name of political party; the Liberales
that early in nineteenth century advocated constitutional government for Spain. Later Liberal
was a term taken over in other countries to designate a government, a party, a policy, an
opinion that favored freedom as opposed to authoritarianism. As a philosophy the concept of
liberty does not falls into the category of closed system of thought, with fixed, unchanging
dogmas. Rather may it be characterized as an attitude of mind toward life and lifes problems
that stresses the values of freedom for individuals, for minorities, and the nations. Liberty
according to L.T. Hobhouse
is the belief that society can safely be founded on this self-directing power of personality.
The rule of liberty is just the application of the rational method. It is the opening of the door
to the appeal of reason, of imagination, of social feeling; and except through the response this
appeal there is no assured progress of society
According to the French political philosopher Montesquieu, the political liberty of
the subject is a tranquility of mind arising from the opinion each person has of his safety. In
order to have this liberty, it is the requisite the government be so constituted as one man need
not be afraid of another
.Liberty is a beautiful word in any language. Its connotations have always been appealing,
noble, and high-minded. It is hard to find philosophers who inveigh against it, and even
harder to find politicians who advocate its suppression- except perhaps as a temporary thing
and for what they claim is a greater good. The adjective liberal imputes loftiness of view,
concern with things of the spirit a respect of human decency. Its definition ran the gamut
fromone who wants someone else to support him, to think for him. To protect him from
those who would impose on him responsibilities, to one who acts as though he believes that
man is made in the image of god and that the nature, the development and the rise of that
god-likeness are his first duty and only wholly worthy employment.1

1 Concept of Liberty : its emergence & evolution, scribd , ( July 20, 2015, 10.PM ) ,

Liberty in the sense of spiritual liberation from the cycle of birth and death was a key idea in
Indian thought. The liberty of the individual in civil or political society was foreign to
classical Indian political thought. The equivalent to the idea of civil rights can be found in the
ancient literature of Smritis, but it differed significantly from the Western idea in that the
former was considered to belong exclusively to the upper classes (especially the order of the
The idea of liberty came to the fore of Indian political thinking with the encounter with the
modern West, epitomized by the intellectual contributions of Mahatma Gandhi (18691948)
and Manabandra Nath Roy (18871954). Gandhi's idea of liberty was framed in the idea
of swaraj, a multifaced concept of the utmost importance in his thought. Swaraj, literally
meaning "self-rule," was also used by Gandhi to signify national independence and the
political, economic and spiritual freedom of the individual. As was the case with the
"modern" Islam, national independence was closely related to the idea of liberty, meaning
collective freedom from alien rule. Gandhi, however, did not conceptualize it negatively.
National independence, framed in the idea of swaraj, was not merely freedom from foreign
rule but also self-government. Gandhi's commitment to political freedom turned him into a
defender of rights, and yet he refused to base the peace and security of collective life on
rights. He always placed individual duty (dharma) and social and moral interdependence
above rights because, for him, rights were the consequence of the fulfillment of duties.
Gandhi considered his celebrated satyagraha (passive resistance) as the performance of his
duties and hence also as a method of securing rights by personal suffering. Gandhi's
conception of liberty also entailed an economic dimension: it denoted freedom from poverty.
He attacked the contemporary reality of poverty by practicing voluntary poverty in order to
demonstrate solidarity with the poor, while he criticized technology-oriented industrialization
for its imperialistic exploitation of the masses. Although Gandhi located liberty in a political
and economic context, his notion of liberty was also spiritual: self-rule through the practice of
virtues toward self-realization. Gandhi's novelty lies in the fact that to the notion of spiritual
freedom, which was derived from the classical Indian tradition, he added political, economic,
and social dimensions. This perspective derived from Gandhi's internal dialogue between the
Western Utopian thought represented by Henry David Thoreau (18171862), John Ruskin
(18191920), Ralph Waldo Emerson (18031882), and Leo Tolstoy (18281910) and the
classical Indian thought manifested in the Hindu devotional work the Bhagavad Gita.2
2 ia.html

the freedom of the individual to do as he pleases limited only by the authority of politically
organized society to regulate his action to secure the public health, safety, or morals or of
other recognized social interests
By its liberty, the human person transcends the stars and all the world of nature, Jacques
Maritain once wrote. No one has reflected more deeply on the phenomenology of the human
person than Karol Wojtyla John Paul II. The person, in his view, is an originating source of
creative action in the world. The human person is able to reflect on his or her own past, find it
wanting, repent, and change direction. He or she is able to reflect on possible courses of
action in the future, to deliberate among them, and to choose to commit to and take
responsibility for one among those courses.
Only the human person is free to choose which among his or her many impulses to follow. An
animals freedom is to do what simple instinct impels. A humans freedom is to discern a
higher, more complex, and more demanding rationality in the field of action. A human person
is free to become a gentle master of all his or her instincts, so as to choose appropriately
among them. He or she is free, in short, to do what a person ought to do.
In our time, alas, many people have come to think of human liberty as the ability to flow with
their instincts, let go of restraint, and do what they feel like doing. Such people like to invoke
animal images of their dream of liberty: They are born free like a lioness on the African
plains or free as a bird. They look on animal nature as innocent and unrestrained, separated
from social customs, traditions, mores, and moral rules imposed from outside the animals
own instincts, urgings, and longings. Woody Allen very neatly expressed this sort of
impulsiveness when he said, The heart wants what the heart wants.
But is this not a paradoxical claim? Some people claim to be compelled to follow instinct.
They claim to have lost the liberty to persuade their hearts, lost all will to resist, lost all
ability to do anything other than what the heart wants. We all know that pull of the heart. But
true liberty demands that we open ourselves to other pulls and other persuasions, while
listening to the calming voice of wisdom. Experience teaches us, in this way, that human

liberty is not constituted by bondage to impulse, even to prolonged and seemingly irresistible
impulse. Such bondage describes the liberty of wild animals, but it does not describe the
liberty available only to the fully developed human animal the free person.
Another way of describing this difference is to say that animal freedom is given to us with
our instincts. But human freedom must be wrested from our instincts cultivated, learned by
practice, gained slowly by trial and error. For the most part, human freedom is taught to us by
spiritual guides, by favourite teachers, by historical narratives, and by the moral example of
our parents or loved ones. Animal freedom, with its contradictory impulses, often generates
war within the breast. Human freedom derives slowly as we learn to find, within a large
number of instincts, the most fruitful inner order that brings not only peace, but also wisdom.
It is not easy, for instance, to learn how to reflect, to gain the inner calm necessary to
deliberate, and to find the courage to choose the more difficult path, the more demanding
way. To achieve this inner order and (relative) harmony, we need, as it were, bodyguards of
the soul: certain firm habits that protect various capabilities of the self.
Let me elaborate. Liberty consists in an act of self-government by which we restrain our
desires by temperance and self-control and curb our fears by courage, steadfastness, and
steadiness. We do so in order to reflect soberly, deliberate well, and choose dispassionately
and justly based on the merits of the case under consideration. Moreover, we seek to act in
such a way that others can count on our commitment and our long-term purpose. Such
practices of self-government are found in a recurrent and habitual way only in persons of
considerable character.
It is the great fortune of the United States that our first president, George Washington, was
understood by all who knew him to be the prototype of this sort of liberty. He was a man of
character and a man one could count on. He was decisive and self-starting a leader who, by
his very virtues, was worthy of the admiration and affection of his countrymen. He was a
model for the liberty the nation promised to all who wished to earn it.
Liberty of this sort does not come from either the positive or the negative actions of the state.
Rather, the Constitution of the American republic deliberately allows this liberty scope and
clearly depends on its widespread realization. The liberty of self-government must be

acquired one person at a time. This personal task is rendered easier when the surrounding
public ethos not only teaches it, encourages it, and proffers many examples of it, but also
proffers examples of the self-destruction wrought by its absence. In this sense, personal
liberty is much favoured or much impeded depending on the social ecology of liberty. In any
case, the American conception of liberty is one of ordered liberty a liberty of self-mastery,
self-discipline, and self-government.
Personal liberty is not well described as unencumbered liberty or rugged individualism,
as libertinism or hedonism or egoism, or as letting go or going with the flow.
Personal liberty is not the liberty of doing whatever one wishes. It is the liberty to reflect on
what one ought to do and the liberty to choose to take responsibility for doing it. Here in
America, it is the liberty our forebears taught us. John Paul II, speaking of America, referred
to this countrys historic contribution of the social ideal of ordered liberty.
This is the liberty to which certain liberals in nineteenth-century France looked when they
suggested the design for the Statue of Liberty. They meant this statue to stand in contrast with
the image of 1789: the prostitute on the altar of the Cathedral of Notre Dame. They decided
on a woman as the symbol of liberty (they were, after all, French), but not the loose courtesan
of Paris. This Liberty is a sober, serious woman, with one arm raised to hold aloft the torch of
light and reason and her other arm cradling a tablet representing the book of the law.

The United States of America has given many bad lessons to the world, and as a nation and a
culture it has many tragic flaws. But one good thing it has brought into the world is the
reborn ideal of ordered liberty: the ideal of republican civic virtue and the idea of freedom as
the capacity of women and men, whatever may befall them, to do as they ought. American
history has brought us many stories of courage and self-control.
Personal liberty, then, is not an intuitive, but a learned concept a socially learned concept. It is
not so much a personal achievement (although it is that, too; ones mother or father cannot
stand in ones place) as it is a social achievement a cultural achievement. It requires an entire
cultural ecology to support it, strengthen it, encourage it, and teach it. Accordingly, its
embodiment appears more frequently in some cultures than in others, and more strongly in
some generations than in others. Personal liberty is a fragile achievement, and a single

generation can decide to turn out the lights, surrender, and walk away from it.
It is by this fragile and precious liberty that (in the words of Jacques Maritain) the human
person transcends the stars and all the world of nature.
As I said at the start, I have tried, in these three short essays, to find the often lost precision in
the terms social justice , the common good , and personal liberty and to do so in ways that
transcend left and right. 3
An individual is a person or any specific object in a collection. In the 15th century and earlier,
and also today within the fields of [[statistics]] and [[metaphysics]], individual means
"indivisible", typically describing any numerically singular thing, but sometimes meaning "a
person." Individuality is the state or quality of being an individual; a person separate from
other persons and possessing his or her own needs, goals, and desires.4
Individualism is the idea that the individuals life belongs to him and that he has an
inalienable right to live it as he sees fit, to act on his own judgment, to keep and use the
product of his effort, and to pursue the values of his choosing. Its the idea that the individual
is sovereign, an end in himself, and the fundamental unit of moral concern. This is the ideal
that the American Founders set forth and sought to establish when they drafted the
Declaration and the Constitution and created a country in which the individuals rights to life,
liberty, property, and the pursuit of happiness were to be recognized and protected.
Collectivism is the idea that the individuals life belongs not to him but to the group or
society of which he is merely a part, that he has no rights, and that he must sacrifice his
values and goals for the groups greater good. According to collectivism, the group or
society is the basic unit of moral concern, and the individual is of value only insofar as he
serves the group. As one advocate of this idea puts it: Man has no rights except those which
society permits him to enjoy. From the day of his birth until the day of his death society
3 THREE PRECISIONS : PERSONAL LIBERTY, First Things , (July 20, 2015, 1.00 PM) , comments
4INDIVIDUALISM, Wikipedia , (July 26, 2015, 5.00 PM),

allows him to enjoy certain so-called rights and deprives him of others; not . . . because
society desires especially to favor or oppress the individual, but because its own preservation,
welfare, and happiness are the prime considerations.1
Individualism or collectivismwhich of these ideas is correct? Which has the facts on its
Individualism does, and we can see this at every level of philosophic inquiry: from
metaphysics, the branch of philosophy concerned with the fundamental nature of reality; to
epistemology, the branch concerned with the nature and means of knowledge; to ethics, the
branch concerned with the nature of value and proper human action; to politics, the branch
concerned with a proper social system.5
Individualism is the one side versus its opposite, collectivism, that is the degree to which
individuals are integrated into groups. On the individualist side we find societies in which the
ties between individuals are loose: everyone is expected to look after him/herself and his/her
immediate family. On the collectivist side, we find societies in which people from birth
onwards are integrated into strong, cohesive in-groups, often extended families (with uncles,
aunts and grandparents) which continue protecting them in exchange for unquestioning
loyalty.For example, Germany can be considered as individualistic with a relatively high
score (67) on the scale of Hofstede compared to a country like Guatemala where they have
strong collectivism (6 on the scale).
In Germany people stress on personal achievements and individual rights. Germans expect
from each other to fulfil their own needs. Group work is important, but everybody has the
right of his own opinion an expected to reflect those. In an individual country like Germany
people tend to have more loose relationships than countries where there is a collectivism
where people have large extended families.The United States can clearly been seen as
individualistic (scoring a 91). The American dream is clearly a representation of this. This
is the Americans hope for a better quality of life and a higher standard of living than their

5 INDIVIDUALISM VS. COLLECTIVISM: OUR FUTURE, OUR CHOICE , The Objective Standard , (July 25 , 2015 , 5.00 PM) ,

parents. This belief is that anyone, regardless of their status can pull up their boot straps
and raise themselves from poverty.6
These medieval tendencies came to fruition during the sixteenth and seventeenth centuries, so
that individualism in the modern world deserves to be understood as a culmination of far
earlier intellectual trends. The Reformation brought not only a challenge in practice to the
unity of the Christian Church but also a transformation of important theological categories.
Martin Luther (14831546) insisted on the unique presence of God alone in the conscience of
believers, with the implication that the faithful Christian is responsible directly and
immediately to God. The consequence of this teachingwhile perhaps recognized only
fleetingly by Luther and his followerswas that salvation did not depend on submission to
the authority of the priesthood or the church. Nor did it fall to the secular power, to which
pertained the control of bodies and behaviour, to discipline the souls of subjects. Thus,
whether intentionally or not, Luther opened the door to claims of public respect for liberty of
conscience and eventually individual freedom of worship.
In the seventeenth century, the individualism implicit in confessional pluralism would
become more pronounced. For instance, Baruch Spinoza (16321677) claimed a broad
application for the right to liberty of thought and belief without interference from a sovereign
power's (or a church's) determination of the truth or falsity of one's ideas. Pierre Bayle (1647
1706) asserted that all forms of persecution (innocuous as well as harsh) of religious diversity
encourage hypocrisy and erode social order. An erring conscience, if it be held in good faith,
deserves as much protection as a correct onea principle that Bayle extended even to
John Locke (16321704) proposed liberty of individual conscience as justified in the case of
most Christian (and perhaps some non-Christian) rites. For Locke, the role of the magistrate
should be confined to the maintenance of public tranquility and the defense of individual
rights rather than the care of the soul. Hence, Locke's Letter concerning Toleration (1690)
defended a vision of the church as a purely voluntary association that a believer was free,
according to conscience, to enter or leave at will. Locke crystallized a key Reformation shift:
6 INDIVIDUALISM, Clearly Cultural , (July 22, 2015, 2.00 PM) ,

the idea that one's religious confession is a matter of individual choice rather than
institutional imposition.7
The evolving acceptance of individualism paralleled changes in other European cultural,
social, and political practices and attitudes. The invention of the printing press and movable
type in the mid-fifteenth century immeasurably enhanced the ability of individuals to spread
their ideas and made it possible for a larger public to access the written word. Demands were
heard for freedom of the press (literally and figuratively) from censorship by clerical and
secular authorities alike. While republican values that promoted civic virtue over personal
choice retained a hold on public discourse, political liberty in geographically extensive
regimes with monarchic institutions tended to be conceived in terms of individual freedom
rather than civic populism. Hence, it is at this time and place that the origins of the bundle of
individualist doctrines known as liberalism are found.8
The Constitution of India provides Fundamental Rights under Chapter III
These rights are guaranteed by the constitution. One of these rights is provided under article
21 which reads as follows:Article 21. Protection Of Life And Personal Liberty: No person shall be deprived of his life or
personal liberty except according to procedure established by law.
Though the phraseology of Article 21 starts with negative word but the word No has been
used in relation to the word deprived. The object of the fundamental right under Article 21 is
to prevent encroachment upon personal liberty and deprivation of life except according to
procedure established by law. It clearly means that this fundamental right has been provided
against state only. If an act of private individual amounts to encroachment upon the personal
liberty or deprivation of life of other person. Such violation would not fall under the
parameters set for the Article 21. in such a case the remedy for aggrieved person would be
either under Article 226 of the constitution or under general law. But, where an act of private
7 Encyclopedia , (July 23, 2015, 10.00 PM) ,
8 Vincent Depaigne, INDIVIDUALISM ,HUMAN RIGHTS AND IDENTITY , (July 28,2015, 6.00 PM)

individual supported by the state infringes the personal liberty or life of another person, the
act will certainly come under the ambit of Article 21. Article 21 of the Constitution deals with
prevention of encroachment upon personal liberty or deprivation of life of a person.
The state cannot be defined in a restricted sense. It includes Government Departments,
Legislature, Administration, Local Authorities exercising statutory powers and so on so forth,
but it does not include non-statutory or private bodies having no statutory powers. For
example: company, autonomous body and others. Therefore, the fundamental right
guaranteed under Article 21 relates only to the acts of State or acts under the authority of the
State which are not according to procedure established by law. The main object of Article 21
is that before a person is deprived of his life or personal liberty by the State, the procedure
established by law must be strictly followed. Right to Life means the right to lead
meaningful, complete and dignified life. It does not have restricted meaning. It is something
more than surviving or animal existence. The meaning of the word life cannot be narrowed
down and it will be available not only to every citizen of the country . As far as Personal
Liberty is concerned , it means freedom from physical restraint of the person by personal
incarceration or otherwise and it includes all the varieties of rights other than those provided
under Article 19 of the Constitution. Procedure established by Law means the law enacted by
the State. Deprived has also wide range of meaning under the Constitution. These ingredients
are the soul of this provision. The fundamental right under Article 21 is one of the most
important rights provided under the Constitution which has been described as heart of
fundamental rights by the Apex Court.
Who are the persons of inherence of the rights under Article 30 of the Indian Constitution?
This right secures to religious and linguistic minorities a right to establish and administer
educational institutions of their choice. Whenever, therefore, a group seeks its protection by
challenging a law or executive action before a court, the foremost question that the court must
dispose of a preliminary step is whether the group seeking protection is in fact a minority
definable in terms of the article. The probe would require an enquiry into two questions, (i)
What is a minority? (ii) How is minority to be ascertained in a given situation

The Constitution nowhere defines the terms 'minority', nor does it lay down sufficient indicia
to the test for determination of a group as minority. Confronted, perhaps, with the fact that the
concept of minority, lie its problem, was intercalate, the framers made no efforts to bring it
within the confines of a formulation. Even in the face of doubts being expressed over the
advisability of leaving vague justiciable rights to undefined minorities, the members of the
Constituent Assembly made no attempt to define the term while article 23 of the Draft
Constitution, corresponding to present articles 29 and 30, was being debated, and,
presumably left it to the wisdom of the courts to supply the omission.
The word minority has not been defined in the Constitution. The Motilal Nehru Report
(1928) showed a prominent desire to afford protection to minorities, but did not define the
expression. The Sapru Report (1945) also proposed, inter alia, a Minorities Commission but
did not define Minority. The U.N. Sub-Commission on Prevention of Discrimination and
Protection 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 characteristics
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 characteristics; and
3) Such minorities should be loyal to the state of which they are nationals.
The initial courtroom attempt to answer the first question was made in In re Education Bill
where the Supreme Court, through S.R. Das C.J., suggesting the techniques of arithmetic
tabulation, held that the minority means a "community, which is numerically less than 50
percent" of the total population. This statistical criterion prevail with the Kerela High Court
also which, in A.M.Patroni v. Kesavan , defined minority to mean the same thing as it meant
to the Supreme Court.
The 'definition' refers to group of individual who are particularly smaller as the majority in a
defined area. It however does not indicate as to what factor of distinction, subjective or
objective are to be taken as the test for distinguishing a group from the rest. Thus, while
considering 'minority', a numerically smaller group, as against the majority in a defined area,
some place emphasis upon certain characteristics commonly possessed by the members

constituting the minority and, to them, these characteristics serves as objective factors of
distinction. In this sense the term used to cover "racial, religious or linguistic sections of the
population within a State which differ in these respects from the majority of the population."
Minority in other sense also means, a group constituting a minority group have a feeling of
belonging to one common unit, a sense of akinness or community, which distinguishes from
those belonging to the majority of the inhabitants. They are "group held together by ties of
common descent, language or religious faith and feeling themselves different in these
respects from the majority of the inhabitants of the given political entity." There are also
those who define minority in terms of relationship between the dominant groups and
minority. To them it is much more important "to understand the genesis of the relationship
between dominant group and minority then it is to know the marks by the possession of
which people is identified as member of either." Rose defined minority as a "group of people
differentiated from others in the same society by race, nationality, religion, or language - who
both think of themselves as a differentiated group and are though of by others as a
differentiated group with negative connotation."9
Minority Rights flow from Articles 14,15,19(1)(2) 21, & 26 (a
Thus while it is true that it is only the minorities whose right to establish and administer
educational institutions is mentioned n article 30(i) it dos not follow the same is denied to the
majority communities. It was considered necessary like a special mentioned for the right of
minorities by way of extra assurance to it is not correct to say that minorities were considered
backward and needed concessions though article 30(i) to bring them up. The object was to
make that they will not be discriminated against. It was not intended to pamper as favored
communities. It should follow therefore form articles 14 and 15 majority communities have
right to similar treatment at the hands of the in the matter of recognition affiliation
government aid or non displacement management in respect of educational institutions
established by majority as accorded to minority institutions of course condition can and to be
imposed in regard to aid, affiliation and recognition in order to ensure standard of teaching
but the same have to be uniformly onerous and not be so drastic as to involve surrender by

9 Minority Rights:The Judicial Approach , legal services , ( July 20, 2015 , 10.00 PM) ,

the community or founder or management of its right to establish and administer the
The thesis that the majority in a system of adult franchise hardly needs any action it can look
after itself and protect its interests any measure wanted by majority can without much
difficulty be brought on the statute book because majority can bet that done by giving a
mandate to the elected representatives only the minorities who need protection is with the
utmost respect to the anguished judge to naive to command acceptance. Modern
parliamentary democracy are run on a party system which in India the more so in the post
mandal is built largely on the basis of caste and communal co9nbination Government are
returned to power not on the basis of issues or mandates. Managements functional institution
do not for a vote bank wile their teachers do the. Religions majority namely Hindus are not a
homogeneous monolith. It is a much-divided society. There are caster and sub caste division
and the same court defense to the legislative and executive wisdom on article has no made
things easier electoral arithmetic has led to all sorts of and combination.
Apart from articles 15 and 15(I) this right to establish and administer educational institutions
also flows as seen above form articles 19(i) (g) and 26(a), which make no distinction between
majority and minority communities. The right of students to education as a fundamental right
under article 21, also simples that they as well as their parents have the right to choice of
institutions in which they would like the former to be educated. Every community has a right
to found and administer educational and other charitable institutional and to run them
according subject perceptions of what is best of the community and for the institution subject
of perceptions of what is best for the community and for the distinction for religion or
language minority or majority.
The only consequence of this will be that provisions relating to displacing of managements
through statutory schemes of administration or through take over of institutions and
appointment of authorized controllers and also those divesting the management of the powers
of appointment and discipline pertaining to teachers will have to be treated as
unconstitutional in so far as they relate to majority institutions too to the same extent as they
have been treated vis--vis minority institutions and it will not be such a bad thing from the
educational angle either the ground reality is that just as nationalization of many private
industries on ground of mismanagement by industrialists has proved counter productive. so
also has the taking over of the management institutions. The cause. for interference in each

case was the acts of mismanagement and dissipation on the party of private mil owners or
school college managers. But the bureaucrats displacing them have by and large not felt any
commitment to the industry institution at all and have succumbed to political pressures with
the result that things have only worsened instead of improving. That is why they are now
being re-privatized it is only though de politicization of control over the institutions that the
management can be better and more evenly disciplined. Deprivation of management of their
power in regard to appointment and discipline of teachers has likewise led to a steep fall in
discipline and standard. Many teachers do not care to listen even to their principal or head of
department what to say of the management. Absenteeism indulgence in private tuitions and
running of coaching schools are the order of the day. Of course regulatory provision to the
same extent not more noels as have been accepted to be necessary for the protection of
teacher of minority institutions would in any case continue in relation to teachers of majority
institutions also. The trend the work over is now for less and less of government. If
misadministration can be prevented in the case of minority institutions without emasculating
the management the same should be minority institution too. As per Ray C.J. in St. Xavier's
and per Jag Mohan Reddy J. all institution irrespective of any denominational distinction
should be places of workshop of learning for students
The courts, however, seem to have been persuaded by practical compulsion rather than be
swayed away by a feeling of faithfulness to the spirit. Their course of opinion seems to have
been determined by some of the followings:
i. That provisions in question seeks to protect minorities against state action, which term
includes laws and also under them, executive actions.
ii. That ours being a federal democratic system, political and legislative processes operate not
only from the national center of power but also from the states.
iii. That these states are autonomous in their respective legislative spheres-and laws are
passed by majority votes.
iv. That minorities, considered as much on the national level, do constitute numerical
majority in some states.

v. That these majorities may, by their laws, deny the protection to the non-dominant group
which the Constitution so emphatically seeks to secure.
vi. That these majorities may, by their numerically strength, overshadowed the distinct
shadow the distinct characteristics and individuality of the non-dominant groups, and the
latter may have to live under a psychological fear of being discriminated and overwhelmed.
vii. That it was this fear in some sections of some minorities at least, which had pervaded the
politics the politics of pre-partition India, and that it was on this premise that minority rights
were demanded and conceded in Constitution Assembly.
viii. That it is this fear, which still continues to be the core component of the minority
ix. That the assurance to protection for minorities can tell its true meaning only when a nondominant group in a state is define and ascertain as 'minority' where the law in question is a
state law, eve though the group happens to be a part of the 'majority', considered a majority in
the context of the whole country.
x. That the same reason that became the basis for article 29 and 30 to find a place in the
category of justiciable Fundamental Rights must be valid in this situation also
In S.P Mittal v. Union of India[14], the Supreme Court has stated : In order to claim the
benefit of Article 30(1), the community must show: (a) that it is religious/linguistic minority,
(b) that the institution was established by it. Without satisfying these two conditions it cannot
claim the guaranteed rights to administer it.
In Andhra Pradesh Christian Medical Association v. Government of Andhra Pradesh[15], it
was held by the court that the institution in question was not a minority institution. The court
classified that the protection of Article 30(1) is not available if the institution is a mere cloak
or pretension and the real motive is business adventure.
A society consisting of minority members, or even a single member of a minority community,
may establish an institution. The position has been clarified by the Supreme Court inState of
Kerala v. Mother Provincial[16]. The court stated that : It matters not if a single
philanthropic individual with his own mean, founds the institution or the community at large

contributes the funds. The position in law is the same and the intension in either case must be
to found an institution for the benefit of a minority community by a member of that
In Ahemdabad St. Stephens College v. Government of Gujarat[17], it was observed by the
court that : Every educational institution irrespective of community to which it belongs is a
melting pot in our national life and that it is essential that there should be a proper mix of
students of different communities in all educational institutions. This means that a minority
institution cannot refuse admission to students of other minority and majority communities.