INTRODUCTION
The Constitution of India defines minorities as a group of people having “a distinct language, script or culture of its own.”1 They are recognized to be a group of people who are culturally, linguistically and scripturally different from the rest and are identifiable.2 It is for the upkeep of their uniqueness that the Constitution strives to protect and promote them. The above aspects of these group of people are sought to be conserved by allowing them to set up and maintain education institutes to promote their language, culture or script. The scope of the articles 29 and 30 have been interpreted to be absolute by the Supreme Court of India.3 The provisions of the articles 29 and 30 further the ideals of the Constitution as envisaged by the Preamble which sets upon itself as a cherished goal to assure to all the citizens the liberty of thought, expression, belief, faith and worship. To cement these ideals, the part III of our Constitution , through the fundamental rights under articles 14, 16, 19(1), 25, 26, 28(1). The Directive Principles of State Policies also enumerate certain rights of the minorities but are, however, not enforceable in the courts of law. Other articles as 330, 331, 334 and 336 on Schedule Castes and Tribes also refer to the minority groups of our country.4 The above articles also bring under their purview the issue of obtaining admissions into educational institutes maintained by the state or getting funds out of state funds on the grounds of race, religion, caste, language etc. The minority groups are also permitted under law to set up their own educational institutions. The minority would include citizens of India and not any foreigner.5 However, the content and the definition of the term minority has not been conclusively defined by even the Supreme Court of India.6
The ‘minority’ groups have their defining attributes (language, script and culture among others) so unique to them that it becomes imperative for the upkeep of same. The very fact of the Constitution guaranteeing them this right under the aegis of Fundamental Rights lends substance to the importance of the conservation of the interests of these groups of people. The framers of our Constitution foresaw the need to work for the benefit of such people so that alongside the mainstream of the nation, these groups can co -exist and with time flourish. The supreme court has defined the minorities as to be based on the grounds of religion also.7 That impliedly and logically would include the Anglo-Indians, Muslims amongst others. The Constitution therefore guarantees the communities which are in minority on the basis of language and religion, the fundamental right to conserve their language, script and culture.8
- VISITING THE GENESIS OF ‘Minority rights’:
a look at the position from the different perspectives
A. HISTORICAL BACKGROUND OF MINORITY RIGHTS IN INDIA
The concept of minorities has been a controversial aspect right from the time such provisions relating to them were mooted to be introduced in the Constitution of India. Maulana Abul Kalam Azad did not espouse the concept of minorities as he believed in the singularity of the Indian nation and polity.9This was at a time when the Constituent Assembly of which he was a member was debating the prospects of having concrete provisions for the minorities. The initial position of the Advisory Committee in the Constituent Assembly was to protect the minorities with respect to their language, script and culture. The terminological reference to the now identified class of minorities was ‘sections of citizens.’ The Motilal Nehru Commission or the Sapru Commission never tried to define the term minority. The UN Sub Commission on Prevention of Discrimination and Protection Minorities defines minorities as including those “non document groups” in a population which possess and wish to preserve stable ethnic, religious or linguistic traditions or characteristics markedly different from those of the population and they should be a number such that they are sufficient by themselves to preserve such traditions and traits apart from being loyal to the state where they reside in.
The International Covenant on Civil, Political and Social Rights (ICCPSR) in its Article 27 despite not explicitly defining the term minority provides that the states where such groups exist, the state must undertake to ensure that they are not denied the chance for the upkeep and promotion of their culture. Even the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities that was adopted by the United Nations General Assembly on 18th December, 1992 does not define minority groups.10 The National Minority Commission in section 2 (c) defines minorities as those communities which are notified by the central government; and which as per the central government notification includes Muslims, Christians, Sikhs, Buddhists and Parsis (Zoroastrians) as of 23rd October and it further goes on to clarify that any reference to the Hindus as that which would essentially include the Sikhs, Jains or Buddhists .
B. CONSTITUTION of india AND THE ‘MINORITY’ DEFINITION
The Constitution of India provides to all the citizens of the country a secular democracy which guarantees the absolute of freedom of religion to all as a Fundamental Right. The corollary of this right of freedom of religion are the attendant rights to foster their growth in the right perspective and in a healthy manner. It is from this standpoint that the rights of various minorities residing as the citizens of our country assumes significance. The minority groups have nowhere been terminologically defined by the framers of the Constitution any where in any of the articles of the of our nation. However the word finds a generous mention in various articles of the Constitution of India. The dictionaries define minorities as the people belonging to that group of people whose population comprises less than half the population of the nation and is distinct and different from the population of the rest of the nation.11
In the Kerala Education Bills case the Supreme Court had opined that the term minority must imply to refer to a community as being numerically less than fifty percent.12 It was in the TMA Pai Foundation v. State of Karnataka case13 that the Supreme Court laid down a comprehensive and balanced definition of the term minorities:
“Linguistic and religious minorities are covered by the expression ‘minority’ under Article 30 of the Constitution. Since reorganization of the states 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 of India. Thus, religious and linguistic minorities, who have been put at par in Article 30 , have to be considered State-wise.”
The government has established the National Commission for Minorities as per the National Commission for Minorities Act , 1992 so as to safeguard the rights of the minorities in India. Among the various functions of the commission, one is to evaluate the progress of development of minorities in India, ensure the proper functioning of the Constitutional safeguards enshrined in the Constitution, look into the complaints and grievances of people of these communities and seek to ensure measures to mitigate them and carry out research and analysis of minority issues. The National Commission for Minorities also has, as one of its functions, to make recommendations and submit reports to the Centre on issues related to the minority communities.14
Other than the Fundamental Rights , other schemes that the Indian Constitution has enacted are The Protection of Civil Rights Act, 1955, The National Commission for Scheduled Castes and Scheduled Tribes Act, 1990, The National Commission for Minorities Act, 1992, The National Commission for Backward Classes Act, 1993.15
C. POSTIVE DISCRIMINATION AND INDIA
The concept of positive discrimination runs parallel to the concept of affirmative action in the U.S.. The fourteenth amendment to the Indian Constitution much like the American counterpart lays down the principle of equality for the citizens of the nation and therein the seeds of positive discrimination have been laid down by the framers wherein the idea of ‘unequal treatment for the unequals’ has been implied. This has been done with a view to bring at par the disadvantaged minority class with the mainstream of the society. There are two preferential policies followed:
1. One at the national level for the minorities;
2. The other at the local state level
With the focus on the minority classes, the issue of creamy layer has again cropped up as an attendant evil of the policies.16 In the context of India, creamy layer issue arose in the Ashoka Thakur case.17 The above case discussed the Central Educational Institutions (Reservation in Admission) Act, 2006 and the Constitution (Ninety-third) Amendment Act, 2005 (Article 15(5) has been inserted as a consequence thereof).18 A brief discussion on this has been taken up in the later part of this paper.
D. AFFIRMATIVE ACTION AND THE U.S.
“We hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
- American Declaration of Independence, 1776
Right from the start the questions relating to the status of women and slaves and alter the Blacks were the biggest challenges that the American society was faced with. Despite the ‘universal’ character and the ‘inalienable rights’ being strongly pronounced by the American Constitution, the exclusion of women, slaves and blacks was too obvious .19 Affirmative action has been one of the more prominent responses to deal with the glaring inequalities in the American society at that point in time. Affirmative action has been defined and understood to the policy of taking “positive, specific steps to overcome the history and current practice of discrimination by having employers, schools and such institutions making a special effort to include people of colour and women in predominantly white and/ or male workforces, student bodies, and businesses receiving government contracts.”20
The 13th amendment to the American Constitution ratified on December 6, 1865 that abolished slavery as a legal institution. In response to this many states began to enact Black Codes. Subsequently, the 14th amendment passed in 1866 and ratified in 1868, was designed to protect the rights of the slaves and the first section known as the ‘equal protection code’ is a key to the cause of affirmative action.21 Though affirmative action has gained wider acceptance in the American society now after years of protest and demonstrations to garner support for the cause, however, challenges still remain in the American society especially when it comes to considering cases when the industry where it doesn’t have to concern itself with the government contracts in which case it is upto the discretion of the concerned party to recruit whomsoever he/ she deems fit for the job and not necessarily whom the government believes is justified in getting in for the post.22
III. tracing the Minority Rights under the provisions of the Constitution of India
‘None shall be turned away
From the shore of this vast sea of humanity
That is India ’
-Poems by Rabindranath Tagore23
The concept of positive discrimination runs parallel to the concept of affirmative action in the U.S. as has been discussed above already. The fourteenth amendment to the Indian Constitution much like the American counterpart lays down the principle of equality for the citizens of the nation and therein the seeds of positive discrimination have been laid down by the framers wherein the idea of ‘unequal treatment for the unequals’ has been implied. The “inspiring and nobly expressed preamble to our Constitution” showed that one of the cherished objects of our Constitution was to assure to all its citizens the liberty ”of thought, expression, belief, faith and worship. To instill in the people of the nation the ideals as envisaged by the Constitution of our country, the fundamental rights have been guaranteed under part III.24
The Article 14 lays down equality as one of the cardinal principles of the Constitution. While article 14 guarantees equality to all citizens, article 16 ensures equality of opportunity in all matters relating to public appointment. Article 19(1) deals with the freedom of speech and expression among other rights as the right to practice any profession or to carry out trade, commerce or business. Article 25 ensures the freedom of conscience and the right to freely profess and propagate religion subject to reasonable restrictions, of course. Similarly, Article 26 relates to the matters related to the field of religion. It guarantees the right of religious groups and denomination to manage their own affairs which can also include the right to acquire property and to administer it in accordance with the law. Specifically the Articles 29 and 30 are concerned with the educational aspect of the minorities which allows them to establish, maintain an d administer institutes t promote their “language, script and culture.” The provisions of the articles 29 and 30 further the ideals of the Constitution as envisaged by the Preamble which sets upon itself as a cherished goal to assure to all the citizens the liberty of thought, expression, belief, faith and worship.
Then the Directive Principles of State Policy appear in the Constitution which, though not enforceable in a court of law, still provide policy guidelines on the running of the nation to the government. They lay down guidelines for the country holistic progress inclusive of the minority groups.
Special rights were conferred by Articles 330, 331, 334 and 336 on Scheduled Castes and Tribes as well as the Anglo-Indian community with regard to representation in the parliament. 25
Other than the Fundamental Rights and the Directive Principles of State Policy, other schemes that the Indian Constitution has enacted are The Protection of Civil Rights Act, 1955, The National Commission for Scheduled Castes and Scheduled Tribes Act, 1990, The National Commission for Minorities Act, 1992, The National Commission for Backward Classes Act, 1993.26 The right that assumes a great pertinence for the upliftment of the minority groups in the right earnest and in a way that is envisaged by the Constitution. It
IV. the attitude of the Judiciary towards the cause of education rights of the Minority communities
A. legal position of EDUCATION RIGHTS OF minority GROUPS: analysis of the case laws
In the case of Bombay v. Bombay Education Society27 the Articels 29 and 30 (1) were considered. In the present case, the State of Bombay issued orders that no primary or secondary school should admit to the school using English as a medium of instruction any pupil from a non – English speaking background (English as the pupil’s mother tongue was an essential pre-requisite). This consequently restricted the scope of such schools to the Anglo-Indian and non- Asiatic community. This was challenged in the court of law. The Supreme Court held this to be the violation of fundamental rights under the above articles and that there was no scope for any differentiation under these articles.
In dealing with the In re Kerala Education Bill, 195728 after an analysis of the various sections of the Bill, it was held that the purpose of the fundamental rights was to provide special rights on a minority communities to conserve their language, script and culture by setting up of educational institutes so as to conserve the same. In summarizing the decision on the case, the Supreme Court laid down that an institute of education set up by the minorities whether after or before the commencement of the Constitution, are within the purview of Art. 30 (1), however, it could have members from the general community as well. In a way the right under Art. 30(1) was said to be absolute. But the absolute nature does not “preclude regulations in the true interests of efficiency of instruction, discipline, health, sanitation and morality, public order and the like….” 29
In the Azeesh Basha v. Union of India case30 dealing with the Aligarh Muslim University’s right to set up and administer education institutes, it was held by Wanchoo, C.J., university’s rights are incorporated by state power and was later ruled that the AMU was not a minority established institution and the state can very well convert the Muslim University to a University for students from other communities. It was a departure from the usually broad stance that the court had taken till then on such minority established institutes. In the S.K. Patro v. Bihar31, the court held that Art. 30 did not refer to citizenship while referring to the qualifications of the minorities to set up educational institutions as in this case a school had been set up in 1854 by local Christians with help from Church Missionary Society of London.
In the DAV College, Jullunder v. Punjab32, the Supreme Court held that the Arya Samajists being a part of the Hindu community, which in itself was a minority in Punjab, were entitled to the protection under the articles 29 and 30. In the St. Xavier’s33 case, it was held that the fundamental rights are meant to be real and effective basing the logic on a consistent series of Supreme Court decisions. It was stated “when the law gives anything to any one, it also gives all those things without which the thing itself would be unavailable.” Further, the scope of Article 30 (1) depends on the situation in which the right is asserted.
B. Recent judgements ON THE EDUCATION RIGHTS OF MINORITY GROUPS
The state of Maharashtra in its policy decision decided to make the study of the state language of Marathi as compulsory for all schools across the whole of Maharashtra. This led to the spiraling of languages to be taught in the schools to four which was strongly objected. This was challenged in the case ofUsha Mehta v. State of Maharashtra; 34 however, the Supreme Court held that the said policy rule was in no way violation of the fundamental rights and a state can take a “policy decision to teach its regional language compulsorily” across the schools of the state. It was also held that it was difficult to interpret the articles 29 and 30 to contain a negative connotation to not include the study of a regional language.
The St. Joseph’s case was the first to deal with the matter of interpretation of the article 30 (1-A). The application of the Land Acquisition Act, 1894 which is the general law relating to the matter of acquisition of property by minority run institutions. The law had be specifically amended so as to accommodate the needs relating to the property acquisition by the minority run institutions.
In the case of TMA Pai v. State of Karnataka35 where the validity of the St. Stephens case was questioned in relation to the right of the minorities to establish and administer (aided or unaided) educational institutions. In its decision, the Supreme Court interpreted the term ‘minority’ to include religious as well as linguistic considerations concerning a state for the purpose and not the whole of the nation. And the rights of the minorities to establish and administer their institutions was subject to reasonable interference by the state. This was premised on the logic of merit to be the supreme criteria for making admissions to these institutions run by the minorities and this was non- compromisable. The basic ratio of the St. Stephens case was held to be valid, it was however ruled that a rigid adherence to the criteria of 50% reservation cannot be held to be a water tight principle in cases of minority run institutions and such a decision would have to be circumstantial and would have to be essentially left to the authorities to determine the situation. Further the critical aspect of determining a fee structure by such unaided institutions was also raised. It was held that the imparting of education had charity connotations attached to it and while it was valid for the institutions to determine their fee structure, they were barred from charging capitation fees with a view to curb profit making. Similar line of judgement also arose in the Islamic Academy of Education v. State of Karnataka.36 The Modern school v. Union of India case further cemented the judgement against commercialization stemming out of fees charged by the unaided minority institutions leading to private gains.37
C. RECENT TRENDS PERTAINING TO EDUCATION RIGHTS OF MINORITIES: 93rd Amendment to the Constitution of India- insertion of the Article 15 (5)
The Legislature has reopened the long debated issue of reservations and minority education rights by introducing an Amendment to the Constitution of India. The Central Educational Institutions (Reservation in Admission) Act, 2006 and the Constitution (Ninety-third) Amendment Act, 2005 (consequent to which Article 15(5) has been inserted to the Constitution) have been instrumental to take this discussion forward. The main purpose of the same is to ensure reservations in the educational institutions of the country. It provides for the raise in the number of seats in the institutes so as to accommodate the candidates from SC, ST and the most controversial of the three, the OBC backgrounds.38 The 93rd Amendment to the Indian Constitution is stated as below:
"(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30."39 As is clearly mentioned in the Amendment, minorities - whether based on religion or language - are exempted from its purview, as they already enjoy a special right under Article 30(1) to establish and administer educational institutions of their choice. It will be unreasonable to impose reservation on these institutions in admissions, as it would violate Article 30(1).
Article 19(1)(g) guarantees all citizens the right to practice any profession or to carry on any occupation, trade or business. The right to run an educational institution of one's choice is recognized as a fundamental right under this Article. The exercise of this right is subject to reasonable restrictions in the interests of the sovereignty and integrity of India. Prior to the addition of Article 15(5), the exercise of fundamental right under Article 19(1)(g) could not have been restricted by any state-imposed quota for the weaker sections in admission to educational institutions. The Supreme Court, therefore, overruled reservations in private unaided educational institutions, as it found the entire quota regime as an unreasonable restriction in the exercise of a fundamental right under Article 19(1)(g) in the P.A. Inamdar case. 40
Article 15(4) 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." It can be said that the Article 15(4) was provided for as an exception to both Articles 15(1) and 29(2). Article 15(5) is in a way a “furtherance of what is guaranteed under Article 15(4)”, which was added to the Constitution by the 1st Amendment in 195141, following the Supreme Court's ruling declaring as void community-based reservations in the Champakam case. 42
Therefore, the above constitutional Amendment, though it excludes Article 30 from its purview, is still pertinent to the issue of minority rights of the nation as many of those whom this amendment seeks to address are covered under what the Constitution defines as minorities. However, as the paper does not predominantly focus on the issue of ‘creamy layer’ and reservations, a more detailed analysis of the above has not been taken up here.
V. CONCLUSION
“ So long as the Constitution stands as it is and is not altered, it is, we consider, the duty of this court to uphold the fundamental rights and thereby honour our sacred obligation to the minority communities who are of our own. Through out the ages endless inundations of men of diverse creeds, cultures and races……. have come to this ancient land from distant regions and climes. India has welcomed them all. They have met and gathered, given and taken and got mingled, merged and lost in one body. ”43
The above lines sum up the logic that the framers of the constitution of India had in their mind while dealing with the delicate issue of minority rights. The constitution focuses on the aspect of the rights of the minorities for it seeks to translate the lofty ideals of a society premised on equality and equity principles into concrete reality. The nation will never be able to progress without the all permeating reach of progress percolating across the levels of our social system and set up, right into the depths of the deepest pockets of unequal existence.
It is from this view point that the rights of minorities as guaranteed under the Constitution of India assume greater significance and relevance. The legitimate interest of the minority community has always been made out to be an issue which has invited unqualified criticism towards the entire concept and ideology of positive discrimination. For the society to progress and walk with the pace of time, we all, as the responsible citizens of India, must rise to the occasion and above the petty concerns of politics and power and work towards the assimilation of these minority groups into the mainstream of the society.44 It is in the light of these facts that the right of the minority groups to establish their own educational institutions should be judged.
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