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Article 29 and 30 of the Constitution of India

By anakhan - July 20, 2018

In this article, Ana Khan of Jamia Milia Islamia discusses Article 29 and 30 of the Indian
Constitution.

Introduction
India is a dynamic constitutional democracy with a feature of accommodating pluralism in
thought and language so as to preserve cohesiveness and unity in diversity. The meaning of
diversity has different connotations such as geographical, religious, linguistic, racial and
cultural. To say India is linguistically diverse is not an exaggeration or any subjective thing.
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According to the 8th Schedule of the Indian Constitution, it recognizes 22 languages, which
are:

1. Assamese
2. Bengali
3. Bodo
4. Dogri
5. Gujarati
6. Hindi
7. Kannada
8. Kashmiri
9. Konkani
10. Maithili
11. Malayalam
12. Manipuri
13. Marathi
14. Nepali
15. Odia
16. Punjabi
17. Sanskrit
18. Santhali
19. Sindhi
20. Tamil
21. Telugu
22. Urdu

A linguistic or religious minority community can conserve its language and culture through
educational institutions but “no citizen shall be denied admission into any educational
institution maintained by the state or receiving aid out of state funds on grounds only of
religion, race, caste, language or any of them1”. Jamia Millia Islamia and Aligarh Muslim
University are the prominent examples of minority educational institutions.

The Scope of Article 29 and 30 of the Constitution

These two articles confer four distinct rights.

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1. The Right of citizens to conserve its language, script or culture [Art.29(1)]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. The Right of a citizen not to be denied admission into state maintained and state-aided institution on the
ground only of religion, race, caste, or language [Art.29(2)2]-”No citizen shall be denied admission into any
educational institution maintained by the State or receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them”
3. The Right of all the religious or linguistic minorities to establish and administer educational institutions of
their own choice [Art.30(1)3]-“All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.”
4. The Right of an educational institution not to be discriminated against in the matter of State aid on the
ground that it is under the management of a minority [Art.30(2)4]-“The state shall not, in granting aid to
educational institutions, discriminate against any educational institution on the ground that it is under the
management of a minority, whether based on religion or language.”

To preserve language, script, and culture

Article 29(1) extends to all the citizens irrespective of the fact whether they are in majority or
minority, the only condition being that such section must have a distinct language, script or
culture of its own.

It is an absolute right for the minorities to preserve its language and culture through
educational institutions and cannot be subject to reasonable restrictions in the interest of the
general public.

Restrictions on the ground of religion, race, caste or

language
Article 29(2) is an individual right given to citizen and not to any community. The present
clause gives an aggrieved person, who has been denied admission on the ground of his
religion. If a person has the academic qualifications but is refused admission only on the
grounds of religion, race, caste, language or any of them, then there is a clear breach of the
fundamental right under this section.5

Right to Establish and Administer Educational Institution

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Article 30(1) is further divided into two parts, that is:

Right to establish

To claim the benefit under article 30(1) it is not necessary-

1. That the institution must seek to conserve the language, script or culture of the minority community;
what is necessary is its establishment by the minority community, it may impart religious or secular
education wholly unconnected with language, script, and culture.
2. That admission into such institution must be con ned exclusively to members of the minority community,
and not a single member of the majority community or other minority communities should have its
advantage.6

Case Study of Aligarh Muslim University (AMU) {Azeez Basha v. Union of

India}

In the case of Azeez Basha v. Union of India 7, the Supreme Court held that if an
educational institution is not been established by the minority community then they have no
right to administer it. The term “established” and “administered” have to be read in
coordination. The University Grants Commission Act prohibits the formulation of “University”
established by the educational institution unless and until it is governed by law.

1. Wanchoo clearly stated that the article cannot be read to mean that even if the minority institution had
been established by any other authority (Act of Parliament), in this case, the religious minority cannot
avail the services of the university because “establish” and “authority” are the terms which are
complementary to each other.

In the case of Dr. Naresh Agarwal v. Union of India8, where 50% of the seats to be filled
on the basis of entrance examination conducted by Aligarh Muslim University and the other
50% of the seats was reserved for Muslim Candidates. The petitioners in this case, who are
Hindu by caste have been deprived of their right to participate in the process of admission
against that 50%. The Allahabad High Court followed the judgment of Azeez Basha v. Union
of India and held that AMU is not a minority institution and struck down the amendment
which was made in the favor of Aligarh Muslim University.

De nition of Minority
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The term ‘minority’ is not defined anywhere in the Constitution of India but the judges have
interpreted the meaning in many different cases which are mentioned below:

Re-Education Bill [9]

Supreme Court through J. S.R Das held that “minority” means a community which is
numerically less than 50% of the total population.

A similar judgment was passed by the Kerala High Court in the case of A.M Patroni v.
Kesavan10 in which it was held that “any religious or linguistic community which is less than
50% of the total population shall be considered as a “minority”.

D.A.V College, Bathinda v. State of Punjab & Ors [11]

For the purpose of article 30(1) a community may constitute a minority based on language,
even though they may not have a separate script; it would be enough if they have a separate
spoken language.

Right to administer

The word “administer” under article 30(1) of the Constitution means the right to manage and
conduct the affairs of the institution. It is open to a university to impose reasonable conditions
upon a minority institution for maintaining the requisite educational standard and efficiency
like-

1. Quali cations of teachers to be appointed in the institution;

2. Conditions of service e.g the age of superannuation of teachers;
3. Quali cations for entry of students;
4. Courses of study (subject to special subjects which the institution may seek to teach)
5. Hygiene and physical training of students.12

In State of Bombay v. Bombay Education Society13, it was held that “Where…..A minority
like the Anglo Indian community, which is based, inter-alia, on religion and language has the
fundamental right to conserve its language, script and culture under Article 29(1) and has the
right to establish and administer educational institution of their choice under Article 30(1)5
surely then there must be implicit in the fundamental right, the right to impart instruction in
their own institutions to children of their own community in then own language…….such being
Questions
the fundamental right the police power of the state to determine thefor writers?
medium of instruction
must yield to the fundamental right to the extent it is necessary to give effect to it and can not
be permitted to run counter to it”

In St. Xavier’s College v. The State of Gujarat, the court held that the right to administer
is the right to ‘conduct’ and ‘manage’ the affairs of the institution.

Admission Procedure in Minority Educational Institution

In St. Stephen’s College v. University of Delhi14, the preference is given to Christian
students by St.Stephen’s College was challenged.

The Supreme Court by the majority of 1 to 4 held that the college is not bound to follow the
university circulars as it will deprive the college of their minority character. The right to select
students for admission is an important facet of administration. This power also can be
regulated but the regulation must be reasonable and should be conducive to the minority
institutions. The impugned directive of the university to select students on the uniform basis of
marks secured in the qualifying examinations would deny the right to the college to admit
students belonging to the Christian community. Unless some concession is provided to the
Christian students15

The court decided the two categories for the selection process:

1. Category I – 50% of the seats reserved for the minority community.

2. Category II – remaining 50% are selected on the basis of merit.

But in T.M.A Pai Foundation v. State of Karnataka [16], it was held that “A minority
institution may have its own procedure and method of admission as well as selection of
students, but such a procedure must be fair and transparent, and the selection of students in
professional and higher education colleges should be on the basis of merit. The procedure
adopted or selection made should not tantamount to maladministration. Even an unaided
minority institution ought not to ignore the merit of the students to the colleges aforesaid, as
in that event, the institution will fail to achieve excellence”.

The court also overruled the decision in St. Stephen‟s case. The court has now granted the
power to the state to fix quotas for minority students.

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Role of National Commission for Minority Educational
Institution – A boon for minority educational institution
The National Commission for Minority Educational Institution has the original jurisdiction to
determine the minority status of any educational institution as held by the Hon’ble Supreme
Court of India.

Justice Nariman, who authored the judgment, said the NCMEI Act grants the Commission to
act upon all the queries relating to the status of a minority institution.

A power of cancellation was also vested in the NCMEI to cancel a certificate granted either by
an authority or the NCMEI.17

Whether Jamia Millia Islamia is a minority institution?

On 22nd February 2011 National Commission for Minority Educational Institution (NCMEI) has
declared Jamia Millia Islamia a religious minority institution and that the university will have
the benefit of being a minority institution under article 29 and article 30 of the Constitution.

According to Section 2 (o) of the JMI Act says “University” means the educational institution
known as “Jamia Millia Islamia” founded in 1920 during the Khilafat and Non-Co-operation
movements in response to Gandhiji’s call for a boycott of all Government-sponsored
educational institutions, which was subsequently registered in 1939 as Jamia Millia Islamia
Society, and declared in 1962 as an institution deemed to be a University under section 3 of
the University Grants Commission Act, 1956, and which is incorporated as a University under
this Act.18

On 5th March 2018, an affidavit is filed by the incumbent Government in the Delhi High Court
regarding the minority status of Jamia Millia Islamia where they cited the case of Azeez
Basha v. Union of India to justify their stand, in which the apex court held that university
incorporated under the act of parliament cannot be claimed as a minority institution.

The affidavit concludes that JMI is not a minority institution as it was set up by the Act of
Parliament and funded by the central government and it was not set up by any minority sect.

Conclusion Questions for writers?

Our constitution aims at “Unity in Diversity”. The minority status is not only dependant on the
basis of religion but also on linguistic minorities. These provisions are inserted in the
constitution so that minorities can also preserve and develop their culture.

In St. Xavier College v. State of Gujarat[19] that “the spirit behind the provision of the
following article is conscience of the nation that the minorities, religious as well as linguistic,
are not prohibited from establishing and administering educational institutes, of their choice
for the purpose of giving their child the best general education to make them complete man
and women of the country.”

1. India Const. Art. 29 cl.1.

2. India Const. Art. 29 cl. 2.

3. India Const. Art. 30 cl.1
4. 5. Durga Das Basu, Shorter Constitution of India, 346 (Wadhwa and Company Law Publishers,
Nagpur,13th edition,2001).
5. Durga Das Basu, Shorter Constitution of India, 349 (Wadhwa and Company Law Publishers, Nagpur,13th
edition,2001).
6. 1968 AIR 662, 1968 SCR (1) 833.
7. 2005 (4) AWC 3745, 2005 (4) ESC 2489.
8. AIR 1958 SC 956.
9. AIR 1965 Ker 75.
10. 1971 AIR 1731, 1971 SCR 677.
11. Durga Das Basu, Shorter Constitution of India, 356 (Wadhwa and Company Law Publishers, Nagpur,13th
edition,2001).
12. 1954 AIR 561, 1955 SCR 568.
13. (1992) 1 SCC 558.
14. Dr. J.N Pandey, Constitutional Law of India,402(Central Law Agency, Allahabad,54th edition,2017)
15. AIR 2003 SC 355.
16. Krishnadas Rajagopal, Supreme Court rules NCMEI has wide powers, The Hindu, (18th
April,2018,22:36),https://www.thehindu.com/news/national/supreme-court-rules-ncmei-has-wide-
powers/article23590265.ece
17. https://www.jmi.ac.in/upload/jamiadocs/JAMIA/ActStatutes.pdf.
18. 1974 AIR 1389, 1975 SCR (1) 173.

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