A BRIEF ON ARTICLE 29 & 30 OF INDIAN CONSTITUTION

Article 29 of the Constitution of India defines the protection of interest of minorities: –

1) Any section of the citizen 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 citizen shall be denied admission into any educational institution maintained by the State  receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. 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 the 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

ISSUES:-

1) WHAT ARE THE PROTECTION OFINTEREST OF MINORITIES?

2) HOW TO OVERCOME THE CONFLICT WITH ART 15 AS WELL AS ART 29?

3) WHAT IS THE FIRST CASE OF INTERPRETATION IN THIS ART BEFORE A 7 JUDGE CONSTITUTION BENCH?

4) WHAT IS DONE IN THE CONSTITUENT ASSEMBLY DEBATE ABOUT MINORITIES?

5) WHETHER ANY DISTINCTION BETWEEN MAJORITY COMMUNITIES AND MINORITYCOMMUNITIES UNDER ART 14, 15, 19 & 21?

ISSUE 1): WHAT IS THE PROTECTION OF INTERESTS OF MINORITIES?

If we talk about the provisions for protection of interests or rights of minority, Article 29 and 30 of The Constitution of India states certain rights which the minority community is entitled to get. Now, the question arises that who is minority? A minority community is that community which is determined by the demographic condition of states or, in an easy language, it depends upon the percentage of their population in different states. It is noteworthy that the percentage of their composition depends upon different states and not on the basis of whole of India. It is said in the Constitution of India that “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.[1]” It is also mentioned in The Constitution of India that “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.[2]

The protection of interest of minorities can be explained by the following sub points as mentioned:-

  1. ARTICLE 29

This Article expels the meaning of protection of interest of minorities and states that no citizen can be barred to get admission in any of the educational institution which is maintained and aided by the state on the grounds such as religion, race, caste, language or any of them. But if a person is refused to get admission on the ground that the person does not have requisite qualifications[3] or he or she has been refused to get admission on the grounds of his indiscipline[4] then, he or she will not get the prerogative of this article.[5] So, it is clear that there will be no discrimination on the admission in any of the State aided institution and if the person is denied then it would be violation of the article of the Constitution of India and will turn against its provisions.

  • ARTICLE 30 (1)

Article 30 (1) of The Constitution of India talks about two rights of the minority community and that is, first, right to establish education institution of their own choice and, secondly, right to administer those educational institution. The former ONE means right to bring into existence and the latter means right to effectively manage and conduct the affairs of the institution.[6] Not only this, the said article also tells the type of minority which is religious minority and linguistic minorities. In the case of D. A. V. college, Bhatinda v. State of Punjab[7], it was observed by the Honorable Supreme Court that right of minority to establish and administer educational institutions of their choice includes right to have a choice of medium instructions also.[8] In another case of St. Xaviers College v. State of Gujarat[9], it was observed by the honorable court that the management must be free of control so that there is no burden upon the founder of the community to mould the instructions as they deemed fit.[10] This helps the community in way of killing two birds with one stone as the minority communities are able to protect their culture and language as well as the purpose of giving education to their children as per their own culture.[11]

  • ARTICLE 30 (2)

This article protects the interest of minority community in a way by asking the state not to discriminate in providing its aid to any educational institution on the basis that it is managed by the minority of any kind whether linguistic or religion based. In the case of State of Bihar v. Syed Asad Raza,[12] the Supreme Court also put the same view by observing that the State has a duty not to discriminate any educational institution for providing aid on the grounds of religion or on linguistic basis. Hence, it is clear that the minority community has given the prerogative regarding their interest in the establishment of their institutions. If in case any state tries to discriminate the institution of any religious minority community then it will directly an infringement of the articles of The Indian Constitution.  In the case of S K Patro v. State of Bihar,[13] it was observed that the minority community can only claim the privileges under Article 30 must be an Indian Citizen and not any foreigner.[14]

ISSUE 2: HOW TO OVERCOME THE CONFLICT WITH ARTICLE 15 AS WELL AS ARTICLE29?

When any legislation is made, it is assumed that the law makers will make a draft which does not contradicts one another and if it contradicts, it will not be enforced. In the same way, Article 15 and 29 of The Constitution of India does not have any conflict and to avoid any of the confusion an amendment was made, namely, the first and the ninety-third amendments, two clauses were added in Article 15 in order to make its interpretation more clear. According to it, “Nothing in this Article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”[15]

In simple words, it means that the State can make provisions in order to promote the socially and educationally backward classes so that their interests can be protected. So it is clear that it does not contradict Article 29 as Article 29 also states the provisions to protect the interest of minority.

It is noteworthy that Article 15 does not comes in conflict with article 29 as article 15 is required so as to provide any valid preference where it is required by the backward classes of society but it does not means any preferential treatment which is wrong or which is provided to them against any public policy. These both articles of the Constitution never comes in contradiction as they both talk about protection of rights of minority community and backward classes of society and the involvement of state in protecting their status.

Another thing to note here is that in both the articles, State plays a major role in the protection of the status of minority community either by making special provision for their advancement or by providing them the aid and funds so that they can protect and maintain their educational institution. So, in crux it can be said that these both articles plays the role of two sides of a coin and does not comes in contradiction with one another.

ISSUE 3: WHAT IS THE FIRST CASE OF INTERPRETATION IN THIS ARTICLE BEFORE A 7 JUDGE CONSTITUTION  BENCH?

If we talk about the first case that interpreted article 29 and 30, it was given by a 7 judges of constitutional bench. The case is of IN RE KERAL EDUCATIONAL BILL CASE, 1957.[16]

BENCH:

Justice Das C. J., Justice Bhagwati, Justice B. P. Sinha, Justice Jafer Imam, Justice S. K. Das, Justice J. L. Kapur JJ[17], Justice V. Aiyar.

SUMMARY OF THE FACTS:

The summary of the case is as follows that a bill was passed by the State Legislative Assembly by the State of Kerala on 2nd September 1957 and the same was sent by the then Governor of Kerala for the President’s assent with the power vested by the President under Article 143 (1), the bill was sent to the honorable Supreme Court of India with certain questions regarding the bill.[18]

JUDGMENT OF THE CASE:

There were certain questions raised in front of the honorable Supreme Court and the constitutional bench gave answers of every question. The judgment is as follows[19]:-

It was observed by the court that Article 29 and 30 of Indian Constitution talks only about minority section of society and is not related to all the sections of society.

The Supreme Court observed that the minority community is that community which is less than 50% of the total population and as the bill extends to the State of Kerala only, it will ne estimated by the entire population of Kerala only.

It was observed by the court that the ambit of this article is wide enough to cover both pre and post constitutional institution mentioned.

Article 30 of the Indian Constitution talks about 2 minority rights, that is, right to establish an education institution of their own choice and the other is the right to administer those educational.

Another thing observed by the honorable Supreme Court was that the right under Article 30 clause 1 is for both linguistic and religion, plus, there is no restriction on the choice of subject to be taught in that institution.

ISSUE 4: WHAT IS DONE IN THE CONSTITUENT ASSEMBLY DEBATE ABOUT  MINORITIES?

Debate Summary for Article 29

Prior to the enactment of Article 29, the provisions for protection of interests of minority was drafted under Article 23.Article 23 of drafted Constitution, 1948, by Constitutional Assembly, specifies that

  • any section of the citizens residing in the territory of India or any part thereof having a distinct language, script and culture of its own shall have the right to conserve the same.[20]
  • No minority whether based on religion, community or language shall be discriminated against in regards to admission of any person belonging to such minority into any educational institution maintained by the State.[21]

But there were several debates took place on 7th and 8th December, 1948 upon amending the drafted article and the assembly also aimed in cultural and educational rights to minorities. Members of the assembly took different concepts and presented their views like amending clause 1 of the drafted article and including the right to develop their own culture. But this suggestion was rejected as a culture is never static but dynamic.[22] Another proposal that was given was that the draft article should limit itself only for linguistic community. It was submitted that if the rights were provided to religious community then it will promote communalism. This proposal was accepted and hence, it widened the scope of draft article and took the shape of Article 29 of The Indian Constitution.[23]

Debate Summary for Article 30

If we talk about Article 30 before the Constitution was drafted, it was under Article 23 (A) which has the following:-

  • The entire minority section whether based on religion, community or languageshall have the right to establish and administer educational institutions of their choice.[24]
  • The state shall not, in granting aid to Educational institutions discrimination,

against any educational institution on the ground that it is under the management of minority, whether based on religion, community or language.[25]

This draft article was initially sub clause 3 of draft article 23 but on a proposal it was separated and formed the shape of draft article 23 (A). There were several debates that took place and many of the proposals were rejected also. However, this draft article was accepted on 8th December, 1948.[26]

ISSUE 5: WHETHER ANY DISTINCTION BETWEEN MAJORITY COMMUNITIES AND MINORITY COMMUNITIES UNDER ART 14, 15,19 & 21

If we talk about the Constitution of India, it has provided equality amongst all the citizens and tried all the possible measures to bring equality in the nation by several articles. But one cannot ignore the fact that Article 29 and 30 talks about the right for minority section of the society. This provision has been included only in order to protect the interest of weaker sections of the society as the stronger section, that is,  the majority section of the society are themselves in the strong position.

As it is well said that those who are strong need not require any special attention because they themselves are well but those who are weak need to be looked upon so that they are not disrespected. So, by keeping this in mind, the Constitution of India has provided two articles especially in the favor of minority being the 1st guardian of the nation. Bat, this did not meant that in providing the rights to minorities, the constitution overlooked the majority section. There are certain articles in constitution which took concern of majority section of the society also and did not distinct between majority and minority community. These articles are as follows-

  1. Article 14

This article talks about the golden rule, that is, equality before law. As per Dr. Jennings, equality before law means “that among equal the law should be equal and should be equally administered, that like should be treated alike. The right to sue and be sued, to prosecute and be prosecuted for the same kind of action should be same for all citizens of full age and understanding without distinctions of race, religion, wealth, social status or political influence.[27]” Not only this, in the case of Rubinder Singh v. Union of India[28], it was observed that the essence of rule of law means that no person should be handled with harsh, uncivilized or any discriminatory kind of treatment.In this way, we can say that Article 14 of the Constitution of India tells that each and every person irrespective of their race, caste or religion, focuses on the equal treatment of its citizens and to provide equality to every citizen. It does not create any difference between minority or majority community of the society.

  • ARTICLE 15

As per this article, no person shall be discriminated on the grounds like race, religion,sex, caste or place of his or her birth. Or we can say that the word “discrimination” used in the above article means to make an adverse difference or to differentiate between unlike or unfavorable from others.[29]

If we talk about clause 1 of Article 15, it clearly states that State is under an obligation not to discriminate its citizens on the grounds such as religion, race, caste, sex or place of birth. So, it is very much clear from this very first clause itself that this does not contradicts Article 29 and 30 as it elucidates that there exists no different between minority and majority community and this is the reason why the constitution of India is considered as the guardian as it treats each and every citizen equally. After thefirst Amendment, a clause was inserted into the Constitution which states “Nothing in this Article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”[30] It clearly states that the State can make any special provision for those section of society which is–

  • Socially or economically backward classes, and;
  • Scheduled Caste and Scheduled Tribes.

The provisions made in this clause is only an enabling provision and does not impose any obligation on the state but is merely a discretion to act if necessary by way of making special provision.[31] The principle behind this article is that a preferential treatment can be given validly where socially and economically backward classes needed it.[32]

Hence, it is clear that Article 15 of The Constitution of India does not differentiate between the minority and majority section of the society and put them on the equal footings without discriminating them.

  • ARTICLE 19

If we see towards the Constitution of India, the preamble talks about two major things, that is, “we the people of India”and “Equality of status and of opportunity”and these two things states that no one, whether majority or minority, is being discriminated on any of the grounds. Article 19 talks about personal liberty and provides five fundamental rights and freedom namely:-

  • Freedom to speech and express
  • Freedom of assembly
  • Freedom to form association
  • Freedom of movement
  • Freedom to reside and shelter
  • Freedom of profession, occupation, trade or business.

These rights are available only to the citizens of India and these are the fundamental right which a citizen has. These rights do not discriminate against minority and majority community as it is provided to “all the citizens”and not only either to minorities or majority community. As one cannot discriminate between two groups of society either in forming any assemble or in forming association. One cannot discriminate in enjoying his or her right to continue his or her business or profession or trade. So, this article also states that there is no difference between minority and majority community of the society. They both are same in the eyes of law and both are given same immunities under law.

D. ARTICLE 21

If we talk about article 21, it talks about the protection of life and personal liberty which everyone is entitled to have and the same has been said by the Constitution that no person shall be deprived of his life or personal Liberty except procedure establish by Law.”[33]Here also, words like “minority community” or “majority community”is not used so, it is clear that the article is same for all the citizens of the society. Every community has the right to establish their own institution but none of the community has been seen with different concepts rather all are same. Now it is upon the discretion of the people to show their choice for any of the institution but it does not meant that the law obliges them for the same. Law is made to direct the people and to protect their interests and it is upon the discretion of people to choose the best to work upon their community. The law especially the Constitution of India never makes s any provision which is differentiated amongst the communities of the society rather it always tried to unite every community so that they join their hands for the country.

CREDITS: Divya Soni, S. S. Jain Subodh Law College


[1]India Const. art 29, cl. 1

[2] India Const. art 29, cl. 2

[3]Ramesh Chandra v. Principal B. B. I college, AIR 1953 All 90

[4]Nageshwara Rao v. Principal, Medical College, AIR 1962 AP 212

[5] Dr. J. N. Pandey, Constitutional Law of India 402 (Dr. SurendraSahai Srivastava 55th ed. 2018)

[6] Dr. J. N. Pandey, Constitutional Law of India 403 (Dr. SurendraSahai Srivastava 55th ed. 2018)

[7] AIR 1971 SC 1731

[8] Supra note 6 at 3

[9]AIR 1975 SC 1389

[10]Supra note 6 at 3

[11]In re Kerala Education Bill, AIR 1958 SC 956

[12]AIR 1997 SC 2425

[13]1970 AIR 259

[14]https://blog.ipleaders.in/minority-rights-constitution-india/

[15] India Const. art 15, cl. 4

[16] 1959 1 SCR 995

[17]Riya Rupani, In Re: Kerala Education Bill 1957: Case Analysis, Our Legal World (May 7, 2020), https://www.ourlegalworld.com/re-kerala-education-bill-1957-case-analysis/

[18]Pratham, In re Kerala education bill, 1957- case summary, Legal World (May 5, 2020), https://fitinlaw.wordpress.com/2020/05/05/in-re-kerala-education-bill-1957-case-summary/

[19]Ibid.

[20] Drafted India Const. art 23, cl. 1, https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2029

[21]Drafted India Const. art 23, cl. 2, https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2029

[22] https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2029

[23] Ibid.

[24]Drafted India Const. art 23 cl. 3(a), https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2029

[25]Drafted India Const. art 23 cl. 3(b), https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2029

[26] https://www.constitutionofindia.net/constitution_of_india/fundamental_rights/articles/Article%2029

[27] Dr. J. N. Pandey, Constitutional Law of India 84 (Dr. SurendraSahai Srivastava 55th ed. 2018)

[28]AIR 1983 SC 65

[29]ShriniwasAiyerv. SarawathiAmmal, AIR 1952 Mad. 193

[30] India Const. art 15, cl. 4

[31]Balajiv. State of Mysore, AIR 1973 SC 649, Dr. J. N. Pandey, Constitutional Law of India 145 (Dr. SurendraSahai Srivastava 55th ed. 2018)

[32] Dr. J. N. Pandey, Constitutional Law of India 145 (Dr. SurendraSahai Srivastava 55th ed. 2018)

[33] India Const. art 21

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s