Status of Minority Institutions

PG DIPLOMA IN BUSINESS
LAWS
SARAVANAN P K
ROLL NO.: 163
Table of Contents: Page No.
Introduction 3
Indian Nationalism, Secularism and Minorities 3
Who is a Minority? 3
AMU case and understanding the right to Establish and Administer 4
Linguistic minorities 4
RTE and Minority Institutions 5
Granting of Minority Status 5
Conclusion 5
Citations 6
Referred Books 6
Articles 7
Cases:
1. Kerala Education Bill case (AIR 1958 SC 956)
2. D.A.V. College, Jullundur v. State of Punjab ( AIR 1971 SC 1737)
3. T.M.A. Pai Foundation vs. State of Karnataka (2002 8 SCC 481)
4. S. Azeez Basha And Anr vs Union Of India 1968 AIR 662
5. Yogendra Nath Singh And Another vs State Of U.P. And Others 1999 (2) AWC 1563, (1999) 2
UPLBEC 131
6. The State Of Bombay vs Bombay Education Society 1954 AIR 561
7. GENERAL SECRETARY LINGUISTIC MINORITIES PROTECTION COMMITTEE VS. STATE
OF KARNATAKA
AIR 1989 Kar 226
8. Usha Mehta vs State of Maharashtra 6 SCC 264
9. K R Ramaswamy vs State AIR 2008 Mad 25
Introduction:

The following paper focuses on the topic, 'Status of Minority Institutions'. the introduction will be
constructed on the base of understanding of Indian Nationalism and then, the focus will be shifted to
protection of rights of minorities under constitution. The various interpretations, definitions, issues
with minority institutions will be dealt. In the end,

Indian Nationalism, Secularism and Minorities:

Indian nationalism in the words of Historian Mukul Kesavan, 'Noah's ark of nationalism'[1] as it had
not been exclusionary. It was not based on the western idea of a nation-state.In the words of Shashi
Tharoor 'If America is a melting pot, then... India is a thali -- a collection of sumptuous dishes in
different bowls.'[2] The Indian state has allowed various cultures, religions, languages to co-exist and
it was not a melting pot where dominant culture subsumed other cultures. Gandhi in his treatise
'Hind swaraj' went a step further saying that 'Even Englishmen can be Indians.'[3] Not withstanding
the haunting memories of partition, the makers of constitution had ensured India remained as a
secular state through the making of remarkable Constitution.
Though the constitution remained secular in the spirit, it avoided the mention of the word
secularism. In the opinion of historian Ian Copland, the reasoning was unlike protestant states which
has thought religion is a private business, and tried to stayed away from it calling the idea as
'Enlightened Secularism'.[4] India being a multi-cultural, multi-religious, multi-linguistic country has
actively regulated religious activities and henceforth, avoided the mention of the word Secularism
though it was undone by a constitutional amendment. So, the state maintained according to Rajeev
Bhargava maintained a 'principled distance' on questions of secularism.[5]
From the assumption of Congress leadership by Gandhi, the provincial councils were reorganised
on a linguistic basis and meetings of provincial party meetings were conducted in the regional
language of that particular province. During constituent assembly debates, aspirations of various
linguistic groups were accommodated to an extent in the Constitution which Historian Granville
Austin calls as an 'half-hearted compromise'.[6] Article 26 of the constitution conferred 'the right to
establish and maintain institutions for religious and charitable purposes.' The makers of constitution
accommodated aspirations of both linguistic and religious minorities through Articles 29 and 30.
Article 30(1) of the Constitution of India gives linguistic and religious minorities a fundamental right to
establish and administer educational institutions of their choice. Article 30 (2) explicitly barred the
state from discriminating any institution administered by minorities. The provision also lays down that
the State shall not discriminate the same.

Who is a Minority?:
Supreme court in the Kerala Education Bill case (AIR 1958 SC 956) said that, 'Minority for the
purpose of Articles 29 and 30 of the constitution of India would be determined by reference to the
entire population of the state.' In D.A.V. College, Jullundur v. State of Punjab AIR 1971 SC 1737
Supreme court exempted D.A.V. Students from reading teachings of Guru Nanak as it is a minority
institution in the State of Punjab. Supreme Court went on to reject the contention of the Punjab
government as Hindus constitute majority of the nation, Dayanand Anglo Vedic College can't be
treated as a minority institution. As Hindus constituted a minority in the Sikhs dominated state of
Punjab, D.A.V. College in the state of Punjab was recognised as a minority institution. The court
reiterated the stand in T.M.A. Pai Foundation vs. State of Karnataka (2002) 8 SCC 481 'that a
minority, whether linguistic or religious, is determinable only by reference to demography of the
State.'

AMU case and Understanding the right to ‘Establish and Administer’:

Mohammadean Anglo Oriental college was started by Sir. Syed Ahmed Khan with an aim to impart
modern education to Muslims. After his death, in the year 1920 through an Indian Legislative council
act[7] British Government transferred the college and its belongings and brought it under Aligarh
Muslim University. Muslims had then collected 30 lakh rupees and handed over to the Government.
In the S. Azeez Basha And Anr vs Union Of India Supreme court held that AMU can’t be regarded
as a minority institution as it was established by an act of Parliament. Thus, it has read provisions
establish and administer together. Interestingly, in that case AMU was not a litigant.
The parliament through an act in 1981 declared that AMU was established by Muslims and
henceforth, it would be a minority institution. The Allahabad high court overturned this decision in
2005. The Supreme court has stayed the judgement of High court. While the previous UPA
government argued that AMU is a minority institution, the present government has decided to
withdraw the petition.
In Yogendra Nath Singh And Another vs State Of U.P. And Others the High Court has opined that
even though the state has recognised the organisation as a minority institution. Tracing back the
history of establishment of the institution, the Court has found that the institution was not established
as a minority institution. Though it was administered by minorities on the date of litigation, that
doesn’t qualify it as a minority institution. So, as the two cases show, for a institution to be qualified
as a minority institution it should both be established and administered by minorities.

Linguistic minorities:
The question of establishment of educational institutions by linguistic minorities had various facets.
On the question of the establishing and administering educational institutions by linguistic minorities
the Supreme Court has said in State of Bombay vs Bombay Education Society that they are free to
control administration, syllabus, medium of instruction. The Supreme Court has read articles 29 (1)
and 30 (1) together to confer these rights to linguistic minorities.
The courts had to grapple with the question of whether the states can decide upon the languages to
be taught in linguistic minority institutions. In earlier case of General Secretary Linguistic Minorities
Protection Committee Vs State of Karnataka, where various linguistic minorities appealed against
the Karnataka Government’s order of making Kannada as the sole language in secondary
education. The courts in earlier judgments has provided exemption from learning official state
language of the state in which the minority institution is located. In this case, the high court while
recognising the rights of minorities under article 30 (1) has also added that laws of state can regulate
the same. Though this judgement paved the way for making kannada as a language to be learnt in
secondary education, the subsequent judgments has allowed states to make the language of state
as ‘a’ mandatory language of learning from fifth standard, then it was extended to the whole of
primary education itself in cases of Usha Mehta vs State of Maharashtra , K R Ramaswamy Vs
State [8] respectively. The courts has also ensured that the introduction of learning of the official
language of the particular state is done in a phased manner
The courts have also ensured that the medium of instruction for a particular student is not to be
dictated by the state. The mother language of the student can be determined by the parents, not the
state. Henceforth, it struck down order of Karnataka Government which tried to make Kannada alone
as the medium of instruction. It clarified that article 350A of the constitution can’t be used to deny
the right to choose the mother tongue granted through fundamental right 19 (1) (a) of the
constitution.

RTE and Minority Institutions:

RTE act has mandated 25% of the total seats of educational institutions to economically
disadvantaged sections of the society. The Supreme court on the question whether the law is
applicable to minority institutions has clarified that the act is not applicable to minority institutions
both aided and unaided in Pramati Education and Cultural Trust v. Union of India. The Mumbai High
Court has recently gave a similar judgement, but, it asked the government to ensure the standards in
these institutions. This reflects the Supreme Court's observation that Minority institutions can be
administered, but, not to be mal-administered.

Granting of Minority Status:

National Commission for Minority Educational Institutions (NCMEI) was established by an act of
Parliament to certify minority religious institutions. It focuses on the two criteria which we discussed
in the early paragraphs. The certification of linguistic minorities doesn't fall under the scope of this
body. Article 350B enables the creation of a National commissioner for Linguistic minorities. The
authority's role is highly recommendatory in nature. So, it is argued that linguistic minorities should
also be brought under the scope of a body with elaborate and well defined powers to avoid arbitrary
decision making of the state in according minority status.

Conclusion:

In summary, the Indian constitutional experiment has learnt from the mistakes of Partition and
accommodated aspirations of linguistic and religious minorities. The medium and mother language
of education has always been a contentious issue. The accordance of minority status to institutions
like AMU, JMI has obtained political overtones which could have been avoided. There are
passionate arguments to bring minority institutions under the purview of RTE to enable more
equitable distribution of education. The recent attempts of Tamilnadu, Kerala to make their official
languages as a 'mandatory subject' throughout the school education in a phased manner shows how
the supreme court judgments has influenced the political-cultural milieu of the nation. The minority
institutions are at the confluence of culture, education, language, religion, politics. So, it remains one
of the most intriguing aspects of Indian Constitutional Experiment.

Citations:
1. Page 31, Mukul Kesavan, Secular Common Sense, Penguin India, 2001.
2. Page 62, Shashi Tharoor,The Elephant, the Tiger, and the Cell Phone, Penguin India, 2007
3. Chapter 14, Mahatma Gandhi,Hind Swaraj or Indian Home Rule, 1909.
4. Page 230, Ian Copland et al, A History of State and Religion in India (Routledge Studies in South
Asian History), 2012
5. Vol. 52, Issue No. 8, 25 Feb, 2017, Rajeev Bhargava, EPW
6. Page 230, Granville Austin, The Indian Constitution: Cornerstone of A Nation: Cornerstone of A
Nation (Classic Reissue), OUP, 1999
7. Page 193, Sujit Choudhary et al, The Oxford Handbook of the Indian Constitution (Oxford
Handbooks), 2016

Bibliography:

Referred books:
1. Mukul Kesavan, Secular Common Sense, Penguin India, 2001.
2. Shashi Tharoor,The Elephant, the Tiger, and the Cell Phone, Penguin India, 2007.
3. Granville Austin,
The Indian Constitution: Cornerstone of A Nation: Cornerstone of A Nation (Classic Reissue), OUP,
1999

4. Ian Copland et al, A History of State and Religion in India (Routledge Studies in South Asian
History), 2012
5. Mahatma Gandhi,Hind Swaraj or Indian Home Rule, 1909.
6. Sujit Choudhary et al, The Oxford Handbook of the Indian Constitution (Oxford Handbooks), 2016

Websites:
1. http://www.epw.in/journal/2017/8/perspectives/nehru-against-nehruvians.html
2. http://www.legalserviceindia.com/article/l93-minorities-rights.html
3. http://www.legalserviceindia.com/article/l211-Granting-Cultural-And-Education-Rights-To-The-
Minority-In-India.html
4. indianexpress.com/article/explained/simply-put-minority-status-for-amu-jamia-millia-islamia/
5.https://thewire.in/21254/the-minority-institution-tag-is-very-ambiguous-and-this-must-be-corrected/
6.http://www.deccanchronicle.com/140507/nation-current-affairs/article/kannada-not-mandatory-
primary-school-supreme-court
7. http://www.livelaw.in/minority-institutions-excluded-rte-ambit-sc-notice-centre/
8. http://www.asianage.com/india/all-india/230317/bombay-hc-rte-not-applicable-to-minority-
institutions.html
9. http://www.amu.ac.in/rsection/9528.pdf

Cases:
1. Kerala Education Bill case (AIR 1958 SC 956)
2. D.A.V. College, Jullundur v. State of Punjab ( AIR 1971 SC 1737)
3. T.M.A. Pai Foundation vs. State of Karnataka (2002 8 SCC 481)
4. S. Azeez Basha And Anr vs Union Of India 1968 AIR 662
5. Yogendra Nath Singh And Another vs State Of U.P. And Others 1999 (2) AWC 1563, (1999) 2
UPLBEC 131
6. The State Of Bombay vs Bombay Education Society 1954 AIR 561
7. General Secretary Linguistic Minorities Protection Committee VS. State Of Karnataka. AIR 1989
Kar 226
8. Usha Mehta vs State of Maharashtra 6 SCC 264
9. K R Ramaswamy vs State AIR 2008 Mad 25