MINORITIES RIGHTS TO ESTABLISH

EDUCATIONAL INSTITUTIONS

ASSIGNMENT
CONSTITUTIONAL LAW -I
LAW 151
SUBMITTED BY:- SUBMITTED TO:-

RAJA KUMAR MS. POONAM KUMARI

B.A.LL.B (H)2nd SEM. School of Law and Governance

ENROLLMENT NO. CUSB1613125039 CUSB, GAYA CAMPUS (823001)

CENTRAL UNIVERSITY OF SOUTH BIHAR, GAYA (823001)

SCHOOL OF LAW AND GOVERNANACE

SUMMER SESSION

(JANUARY-MAY 2017)

Submission date 11th April, 2017

 ACKNOWLEDGMENT
It gives me immense pleasure in presenting this project-work. Any project
completed or done in isolation is not possible. This project, although prepared by
me, is a culmination of efforts of many people.

Firstly, I would like to thank my Constitutional Law teacher, Ms. POONAM

KUMARI (Associate professor, School of law& Governance) for her valuable
suggestions in making of this project.

Further to that, I would also like to express my gratitude towards our seniors who
were a lot of help for the completion of this project.

The contributions made by my classmates are definitely worth mentioning.

I would like to express my gratitude towards the library staff for their help and
assistance in completing this project.

Last, but far from the least, I would like express my gratitude towards my parents
for the obvious reasons.

With the above background, it is hoped that this study shall contribute towards a
better understanding of Minorities right to establish educational institutions in
Constitutional Law -1

Raja Kumar
MONORITIES RIGHTS TO ESTABLISH EDUCATIONAL INTITUTIONS

INDEX

RESEARCH METHODOLOGY

SCOPE OF THE PROJECT

INTRODUCTION

CHAPTERISATION

CONCLUSION

REFERENCES

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Research Methodology.

Subject Constitutional Law-1

Topic Minority Right to Establish Educational Institutions under
Article 30 of the India Constitution.
For the purpose of research, the doctrinal method of research has been followed. The
researcher has relied upon primary and secondary sources. Various books written by
renowned author has been examined and references of the same have been
mentioned. This project paper also comprises of contents gathered through online
research. Research has been done keeping in mind the frequently asked questions
arising out of the topics.

SCOPE OF THE PROJECT.

My project topic is Minorities Right to establish Educational Institutions which
comes under Article 30 of the Indian Constitution. The topic deals with the
educational right to the minorities in India, as India is a country of Hindu majority
and the other religions are minor here, as per the Indian constitution under Art. 30
guarantees the rights of minorities to establish ad administer educational
institutions. Clause (1) of Art.30 provides the right to all minorities to establish and
administer educational institutions of their own choice. It is essential that the rights
available to minorities are protected in regard to institutions established and
administered by them.
It is doubtful whether the fundamental right under Art.30 (1) can be bartered away
or surrendered by any voluntarily act that can be waived. The past members of the
community cannot surrender the right of the future members nor do the future
members derive the right under this article by succession or inheritance.
 Education is what survives when what has been
learned has been forgotten
INTRODUCTION
India has a long been known as a very spiritual, religious heavy area of the world.
In India religions are a way of life. It is an integral part of the entire people India.
India is one of the most religious diverse nation in whole world with one the most
deeply religious societies and cultures. Religion plays a central and definite role in
the life of the country and its most of the people. The faith of more than 80% of the
people is Hinduism considered the worlds oldest religious and philosophical
system. Islam is practiced by 13% of all Indian. Other religions such as Buddhism
Sikhism, Christianity and Jainism are the minor religion in India. In India minority
generally consist of Sikhs (2%), Christianity (2.5%), Jain (1%) and Muslims
(12%), which is the worlds third largest. And the concept of religion is coming
since the Vedic period and till the independence of India.

As our nation India was the ruled by the British more than two centuries. They
made their own rules and regulations to rule over Indians of all the community.
They treat the Indians very brutally. They have only a major policy i.e. Divide and
Rule policy. The people of India was very disappoint with this policy, they had
decided to get freedom of these policies and from the Britishers any how. And after
a great effort of our freedom fighters we got independence on 15th August,1947.
But unfortunately here Britishers at the last play the heinous policy of Divide
and Rule. They had made a line Radcliffe Line on the map and separate a
Nation in two different part, one of the part is now India and other one is Pakistan.
And during the partition many people were died.

After the independence the leaders of country made a unique legal document i.e.
the Constitution of India which came into force on 26th November, 1950. This
unique document made with certain rights and duties related to the citizens of
India. They made with this unique document making all equal in the eye of law.
No one is above the law. Law is supreme and equal for all the citizens of India.

The framers of the Indian Constitution constitute it in a proper manner and it keeps
and gives the people rights, equal opportunities equality in the society and so on.
As we know our country has very vast and diverse people, cultures, customs, etc.
After the partition Gandhi Ji wanted establish India as secular Nation, so it happens
and now in India there are many other communities, religions are found here and
also they follow the same rule and enjoy the equality in the society. Due to the less
number in population as mentioned below some communities and religions are
called minority. And making these minorities equal the government and the
framers of the constitution made certain laws to feel these communities equal in
the society and in every corner of India. In regarding to the minority education and
establishing educational institution government having some issue but now it is
solved , the Indian Constitution gives them right to education and also right to
establish their educational institutions under Article 30. Regarding to the minority
education for the first time Shri K.M. Munshi, one of the members of the
Constituent Assembly while intervening in the debate in the Constituent Assembly
with regard to the kind of religious education to be given in governmental aided
institution stated thus: "if the proposed amendment is accepted, the matter has to be
taken to Supreme Court and eleven worthy Judges have to decide whether the kind
of education given is of a particular religion or in the nature of elementary
philosophy of comparative religion. Then, after having decided that, the second
point which the learned Judges will have to direct their attention to will be whether
this elementary philosophy is calculated to broaden the minds of the pupils or to
narrow their minds. Then they will have to decide upon the scope of every word,
this being a justifiable right which has to be adjudicated upon by them. I have no
doubt members of my profession will be very glad to throw considerable light on
what is and is not a justifiable right of this nature (A Member: For a fee). Yes, for
very good fee too. It may be noted that at the time when the Constituent Assembly
was framing the Constitution of India the strength of Judges of Supreme Court was
not contemplated as eleven Judges. It appears what Shri Munshi stated was
prophetic or a mere co-incidence. Today eleven Judges of the Supreme Court have
assembled to decide the question of rights of the minorities to establish and
administer the Educational Institution of their choice.
 CHAPERTISAITION.

1. What is minority actually?1

In general : the expression minority has been derived from the Latin term minor
and the suffix ity means small in number. According to Encyclopaedia Britannica
minorities means a group community held together by ties of common descent
language or religious faith and feeling different in the respect of inhabitants of a
given political entity.

In the year book on Human Rights UN publication 1950, said that minority has
been described as non-dominant group having different religion or linguistic
traditions than the majority population.

Article 30 uses the term linguistic and religious minorities are covered under by the
expression minority under this article. Since recognition of the state in India has
been on the linguistic lines therefore for the purpose of determining the minority,
the unit will be the state and not the whole India. T.M.A. Pai Foundation v State of
Karnataka.2

The word minority is not defined in the Constitution but literally it means non-
dominating group. It is a relative term and is referred to, to represent the smaller
of two numbers, section or group are called majority. 3

The expression minority has been used under article 29 and 30of the constitution
but it has nowhere been defined. The Preamble to the constitution proclaims to
guarantee to every citizen liberty of though, expression, belief, faith and worship.
Group of articles 25 to 30 guarantee protection of religious, cultural, and
educational rights to both majority and minority communities. It appears that
keeping in view the constitutional guarantees for protection of cultural,
educational, and religious rights to all citizens of India.

1
2
3 T.M.A Pai Foundation v State OF Karnataka (2002)8,SCC 481,(para 244)
2. Minority Educational Institutionestablishment and administration.

The general principles relating to the establishment and administration of

educational institution by minorities by their choice are following.

(i) To choose its governing body in who founders of the institution have
faith and confidence to conduct and manage the affairs of the institution.
(ii) To appoint teaching (teachers, headmasters) as non- teaching staff, and
take an action if there is dereliction of duty on the part of any of its
employees.
(iii) To admit the eligible students of their choice and to set up a reasonable
fee structure.
(iv) To use its properties and assets for the benefit of the institution.

Establishing and administering educational institution:

The Aligarh Muslim University in Aligarh, Uttar Pradesh, established by a statute.
It could not be said that it is established by the Muslim Community. No degree
granting institution can be established in India without a statute. Accordingly the
value if a statute regulatory administrative arrangement in the university could not
be adjudged under Article 30(1).
The matter of the fact that the attraction towards Article 30(1) is the establishment
of the institution by the minority concerned, as the Supreme Court observed in
Aziz Basha v Union of India 4 Article 30 postulates that the religious community
will have the right to establish and administer the educational institutional of their
choice means thereby that where a religious minority establishes an educational
institutions. It will have the right to administer that the this article in our opinion
clearly shows that the minority will have the right to administer their educational
institution of their choice provided they have establish but not otherwise. This
Article cannot read to mean even if the educational institution has been established
by somebody else, any religious minority would have the right to administer it
because for the some reason to the other it might have been administering it before
the constitution has come into force.

4 AIR 1968, SC 662

3. Private unaided Educational Institution -- their rights,

Private unaided institutions are permitted to have a profit but not permitted to
profiteer. They have also been given autonomy subject to reasonable restrictions in
the interest of the minority institutions permissible under Article 30(1) and in the
interest of general public under article 19(6) of the constitution of India unaided
Private School of Delhi v Director of the Education.5

4. Professional Education and minorities rights,

Article 30(1) gives religious and linguistic minorities the right to establish
and administer educational institutions of their choice. The use of the
words of their choice indicates that even professional educational
institutions would be covered under Art. (30) T.M.A Pai Foundation v
State of Karnataka.

5. Admission of Students to Minority Institutions.

Admission to such unaided where the scope for merit-based selection is

practically nil, or cannot be regulated by state or university concerned,
except for providing the qualifications and minimum conditions of
eligibility. An unaided minority institution would be entitled to have the
right of admission of the students belonging to the minority group and to a
reasonable extent students of non-minority group, so the rights under
Art.30(1) are not substantially unpaired and the citizens rights under
Art.29(2) are not infringed. T.M.A Pai Foundation v State of Karnataka6

5 (2009),10) SCC 1(para 68)

6 (2002)8 SCC 481 (para 161)

 6. Extent of rights of minorities in the matter of admission and selection of
students.

The procedure for the admission must be fair and transparent, and the selection of
the students in the professional and higher educational colleges should be on the
basis of merit.

7. Procedure and the Method of the Admission -- whether affected by receipt

of the State Aid.

It would be permissible for the authority giving aid to the prescribe by rules or
regulations, the condition on the basis of which admission will be granted to
different aided colleges by virtue of merit, coupled with the reservation policy of
the State qua non-minority students.

8. Article 30(1): Object to be achieved.

there are mainly two object is seems under Art.30(1) in the interest of the
minorities are [a]to enable such minority to conserve its religion and language and
[2] to give a thorough, good, general education .

Article 30(1) is intended to instil confidence in minorities against any executive or

legislative encroachment on their right to establish and administer educational
institution of their choice. This article confers no right but offers protection of
minorities. But for this Article an educational institution even though based on
religion or languages could have been controlled or regulated by law enacted under
Article 19(6).

9. Protection of Minority Educational Institution by State.

Aid and affiliation or recognition, both of the State brings in some amount of
regulation as a condition of receiving grantor recognition. The scope of the
regulation is (1) the regulation is reasonable and rational, (2) it is regulative of the
essentials character of the institution and is conductive to making the institution an
effective vehicle of education for the minority community, (3) it is directed
towards maintaining excellence of education and efficiency of administration so as
to prevent it from falling in standards. Once an educational institution is granted or
aspires for recognition the State, may grant aid or accompanied by certain
restrictions or conditions.

If aid or recognition is asked for State may prescribe reasonable regulations to

ensure the excellence of the educational institution, an institution must have a
particular amount of funds or properties or number of students or standards of the
educational and so on.

10. Institutions runs and administered by a minority community.

A three -Judge Bench in Bal Patil v Union of India 7 it was noticed that Arts 25 to
30 were engrafted against the background of the partition of the country somas to
allay the apprehension and fears in the Minds of the Muslims and other religious
communities by providing to them a special guarantee and protection of their
religious, cultural and educational rights.

In the State of Uttar Pradesh, the Jains are recognised as the minority community,
as such they have a right to establish and administer their own institution. But only
because an institution is managed by a person belonging to a particular religion. A
minority is determined by reference to the demography of a State. - Committee of
Management, Kanya Jr. High School v Sachiv, U.P, Shikhsa Parishad8

11. No Community can claim its Interest to be Above National Interest.

This right under Art.30 (1) cannot be such as to override the national interest or to
prevent the Government from framing regulation in that behalf. So no right can be
absolute. Whether a minority or a non minority, no community can claim its
interest to be above the national interest. Any regulation is framed in the national
interest must necessarily apply to all educational institutions, whether the
institution run by majority and minority. P.A. Inamdar v State of Maharashtra9

7 (2005)6 SCC 690

8 (2006)8 SC 336
9 (2005)
12. Five constituents enumerated for administering an institution

The right to establish and administer an institution, the phrase as employed in

Article 30(1) of the Constitution, comprises the following rights these are:

a) To admit student
b) To setup reasonable fee structure
c) To constitute a governing body
d) To appoint staff
e) To take action if there is dereliction of duty on the part of any othe
employees P.A. Inamdar v State of Maharashtra 10

13. Right under Art. 30 related to the Rights of Non-Minorities.

The right conferred on the minorities under Art.30 is only to ensure equality with
the majority not intended to place the minorities in a more advantageous position
related to the majority. There is no any reverse discrimination in favour of
minorities. The general laws of the land relating to national interest, national
security, social welfare, public order etc applicable to all will equally apply to
minority institutions also. Secondary Malankara Syrian Catholic College v T.
Jose11

14. Permissible extent of Regulation by State in respect of Minority

educational institution.

The extent of regulation by the State, permissible in respect of employees of

minority educational institutions receiving the aid from the State is the following.

A. the minimum qualification, experience and other criteria bearing in merit for
making appointments
B. the service conditions of employees without interfering with the overall
administrative control by the grievances over the staffs

10 .Supra
11 (2007)1 SCC 386
15. Protection of Minority Educational Institution: Minority Educational
Institution Unaided:

A minority educational institution can may not chose to take any aid from the State
and may also not seek any recognition of affiliation. Such institutions may get the
protection under Art.30(1) and can exercising these rights to their hearts
contents unhampered by any restriction excepting those which are in national
interest and national integrity aimed at preventing exploitation of students of
teachings community .

LEADING CASE LAWS RELATED TO THE SUBJECT.

1. T.M.A PAI v STATE OF KARNATAKA (AIR 2002,8, SCC 481)

2. P.A INAMDAR v STATE OF MAHARASHTRA (AIR 2005,6, SCC 537)
3. AZEEZ BASHA v UNION OF INDIA (AIR 1968 SC 662)

CONCLUSION:-

From the topic minority right to establish educational institutions under the
Article 30 of Indian Constitution gives them right to establish educational
institution of their choice to gave people of their community a good education. As
India is a country of diverse religion, culture, norms and some other minorities
community and they want to give their generations education of their own choice.
In the case of T.M.A Pai Foundation v State of Karnataka the court is unable to
decide about the authority competent to decide the minority status under Article
30. And the other side the National Commission for the Minority Educational
Institutional Act 200412, enables the commission to set up the Article 30 to decide
all the questions related to the status of minority educational institution ,and
section10 of Minority Educational Institution Act,200413 enables that any person
desiring to establish a Minority Educational Institution to approach the competent
authority for Grant of No Objection Certificate for the said purpose.

10. The Minority Educational Institutional Act, 2004

13 Supra,10
REFERENCES

1. M.P Jain, Indian Constitutional Law, Lexis Nexis, 7th edition, New
Delhi, India
2. Dr. Durga Das Basu, Constitutional Law of India
3. The Minority Educational Institution Act, 2004
4. http://wikipedia.rights of minorities.org

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