Legal Service India - Granting Cultural and Education Rights to The Minority in India
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Granting Cultural and Education Rights to The Minority in India

Written by: Amit Kumar Jha - Pursusaning 5 Yr B.A. LL.B ( Hons) Course at Hidayatullah National Law University, Raipur( C.G.), Currently In Second Semester 1st Yr.
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India is a land of myriad ethnic, religious, caste and linguistic minorities affiliated to distinct belief systems, sub-cultures and regions. Integration of these diverse communities, some large enough to aspire to a regional homeland and others content to remain as part of the Indian state has been a central preoccupation of Indian governments since 1947.

It is important to understand the condition of the minority in the present and past scenario. Despite the several efforts by the government to improve the condition of the minority, constitutional guaranteed rights, different institution and commission established to monitor, failed. Minority faces discrimination, violence and atrocities. These cults have come into the light many times whether it is Gujarat riots where more than 2000 Muslims were killed, or following Indira Gandhi assassination led to the murder of 3000 Sikhs in Delhi. Atrocities against dalit in Bihar, Jharkhand, Maharastra Gujarat, and in north eastern part of the India is very common. We can see the results of this kind of ruthless discrimination in Maharastra in recent days. The purpose to guarantee these rights and to distinguish them from majority was not creating such discrimination but to make them able, to diffuse them with the majority. Even the foreigner residing in India and forming the well defined religious and linguistic minority also fall under the preview of this Article. ‘Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.’

Before moving ahead we have to ponder over some of the concepts which are important. First and foremost what is minority? Second what are the rights guaranteed to them? Who guarantee them these rights? For what purpose these rights are bestowed to them? Is it serving its requisite end?

Minority

The Constitution does not define the terms 'minority', nor does it lay down sufficient indicia to the test for determination of a group as minority. Neither Motilal Nehru(1928) nor The Sapru report has tried to define minority.

The U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities has defined minority as under:

1) The term 'minority' includes only those non-documents group of the population which possess and wish to preserve stable ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the population;

2) Such minorities should properly include the number of persons sufficient by themselves to preserve such traditions or characteristics; and
3) Such minorities should be loyal to the state of which they are nationals.

The first initial afford was in In Re Education bill by Supreme Court to define minority. Justice S.R. Das C.J., suggested the techniques of the arithmetic tabulation, held that the minority means a “community, which is numerically less than 50 percent” of the total population.

The definition refers to group of individual who are particularly smaller as the majority in a defined area. Definition however does not indicate as to what factor of distinction, subjective or objective are to be taken as the test for distinguishing a group from the rest. Thus, while considering 'minority', a numerically smaller group, as against the majority in a defined area, some place emphasis upon certain characteristics commonly possessed by the members constituting the minority and, to them, these characteristics serves as objective factors of distinction. In this sense the term used to cover "racial, religious or linguistic sections of the population within a State which differ in these respects from the majority of the population." Distinction can be made on different basis; types of minority can be racial, religious or linguistic minority. There have been different rights guaranteed to minorities by the constitution.

Minority Rights In India

The constitution of India guarantees different rights to the minority. These are cultural and educational rights which have been guaranteed under Article 29 and 30.

Article 29 Protection of interests of minorities

(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.

The application of this Article is upon person having a distinct language, script or culture of its own and it takes into the consideration two types of minority one linguistic and other religious minority. If they have the same can be protect it. This right includes the rights “to agitate for the protection of the language.” It also not subject to any reasonable restriction like other fundamental rights and hence it is an absolute right. Under Article 29(1) any school or university can promote education in regional language as far as it is done for minor and language of the minor.

In D.A.V school, Jullundur v. state of Punjab the above provision was challenged on the ground that the college administered by the religious minority i.e. Arya Samaj and affiliated university would be compelled to study the religious teaching of the Guru Nanak and this would mount to violation of the Article 29.Supreme court declined the view and said that the there is no mandate in the provision for compelling affiliated colleges either to study religious teaching of the Guru Nanak, or to adopt in any way the culture of the Sikh. If the university includes the teaching and life of the saint for the research and philosophical it can not be said that the affiliated colleges are being required to compulsorily study his life and teaching.

The provision meant that for the promotion of the majority language minority should not be stifle. If any body does it will be trespass on the rights of the sections of the citizens who have distinct language or script and which they have a right to conserve through their own educational institutions. So the minority institution affiliated to the Guru Nanak University to teach in the Punjabi language, or in any way impeding their rights to conserve their language, script or culture.
(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.

This Article is wide and unqualified. It confers a special right not on the minority but to the majority also for the admission in the state maintained or aided educational institution. If it would be only limited to the minority it would mean that majority has no right for the admission in the state maintained or aided educational institution. This it is very clear trough these provision that in any case no one can discriminate on the ground of the language, caste or religion. Whether it is state maintained education institute or private aided institution. Now it is important to know the application of the above Article. Dispute of its application was firstly arisen in State of Maharastra v. Champakam . Communal G.O. of the state of Madras allotted seats in medical and engineering college in the proportionately to the several communities. A Brahmin candidate who could not be admitted to the engineering college challenged the G.O. as being inconsistent with the Article 29(2).

Supreme Court held that the classification on the ground of the caste was inconsistent with the provision of the Article. Even though petitioner has got much higher marks than those who secured by non Brahmin who were admitted in the seats allotted to them, he could no admitted in any institution. The reason was that he was Brahmin. In another case Supreme Court denied the view that intake of students on the ground language is violating of the fundamental rights. In instant case Bombay Government by an order banned the admission of those whose language is not English to a school using English as a mode of instruction. Argument advanced by the state was that by doing it is trying to promote national language. Court said that the view is right but could not be upheld as it is violating of the fundamental rights. So there should not be any discrimination on ground of language in matter of admission which has been clearly stated by the Hon’ble Supreme Court of the India.

Dividing sates in two regions and then allocating seats for medical and engineering college in the state between these regions does not violate Article 29(2). Refusal of admission on grounds of not possessing requisite academic qualification or because any one was expelled for the indiscipline. Reservation for rural student passing class out of VIII was held bad decision in Suneel Jitley v. State of Haryana. Supreme Court said that basis of reservation was irrational. As student from the rural area can study in urban area still he would have been preferred. While a student of urban area could have been studied in rural area and could have became entitled for reservation. Also the education up to VIII standard does not make any difference to medical education. Hence there was no nexus between the classification and object sought to achieve.

Relation between Article 29(2) with article 15(1) and 15(4)

Article 15(1) prohibits discrimination on grounds of religion, race, sex, caste or place of birth. Still there is significant differences between these two articles, 15(1) protects all citizen against discrimination by the state where as Article 29(2) extends protection against the state, or any body who denies the right conferred. Article 15(1) is much broader than the 29(2) as it covers numerous conditions where as article 29(2) only deal with the protection against only one wrong namely denial of admission in state aided or maintained educational institute. Article 15(1) broader than 29(2), whenever second one is not applicable the first one is apply.

Article 15(4) was added by first amendment of the constitution. It was introduced for the advancement of the socially and educationally backward classes of citizen or of SC and ST. Rights guaranteed under Article 29(2) is limited by the Article 15(4) as it has provision of reservation in an educational institute for some section of the Indian citizen.

If state prescribe a some percentage of reservation in any educational institute for a certain section of the people under Article 15(4), but not increases more than the prescribed limited than reservation of the rest can not be set aside as it would be violating of the fundamental right under article 29(2). Any reservation of seats in an educational institute seats not justified under Article 15(4) cannot be valid.

Article 30. Right of minorities to establish and administer educational institutions.
(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (i), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

The benefit of Article 30(1) extends only to linguistic or religious minorities and not to any other section of the Indian citizens. Article here sate linguistic and religious minority. Here minority means that community which is less than 50 percent of the total population with the respects of the population of the state.
The words in the article administer and established in the Article 30(1) have to be read together. This means that the religious minority will have the right to establish the educational institution and can administer it only. If it established by the other community or by any other person then they cannot claim the right under this article. Like Aligarh Muslim university was established by the statutory provision and hence can be designated as minority educational institute.
The minority factor to attract Article. 30(1) is the establishment of the institution established by the minority concerned. The Supreme Court has observed in Azeez Basha . Article 30(1) postulates that the religious community will have the right to establish and administer education institute of their choice meaning thereby where religious minority establishes an education institution, it will have the right to administer institute of their choice provide that they have established them not otherwise. It has to be proved by producing satisfactory evidence that the institution was established by the minority claiming to administer it. The onus of the proof lies on one who asserts an institution is a minority institution. It is sole decision of the court to decide whether the institution is minor or not. Even the government has recognized it as minor institute.

In Yogendra Nath Singh v. State of uttar pradesh the Government recognized an institution as minor institution. This order was challenged in the high court through a writ petition. Looking into the antecedent history of the institution right from its inception , the court decide that the institution was not established as minority institution, and, therefore, it could not granted the minority status even though it presently it was managed by the minority community. Under this Article both the condition “established and managed” should be read together and absence of even one would unfit the institution for the status of the minority institution.

2) 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.

Article 30(2) bars the state, while granting aid to educational institution on the ground that it is under the management of a linguistic or a religious minority. Government aided educational institute should not be discriminated by the state on the ground that it is under the management of a minority, whether based on religion or language. Minority educational institute are entitled to get financial assistance much the same way as the educational institutions run by the majority community. This does not mean that the minority educational institution can claim state as a matter of right. But there should not be discrimination while providing financial assistance.

Purpose of Granting Cultural and Educational right

The Above rights have been granted by the Constitution with certain underlying purpose. Being India as a secular state to maintain it and let the minority to mix with the main stream society. And can also help in the development of the country. Other reason is that India is a country of diverse culture, and every body is equal. Hence they have the equal opportunity to preserve it. As Supreme Court in Ahmedabad St. Xavier College v. State of Gujarat pointed out 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.

The minorities have been given protection to preserve and strength the integrity of the country. The sphere general secular education will develop the commonness of boys and girls of India. This is the true spirit of liberty, equality and fraternity through medium of education. The minority will fell isolated and separated if they are not given these rights. General secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole. The rights to administer have been given to the minority, so that it can mould the institution as it thinks fit, and accordance with its idea how the interest of the community in general, and institution in particular, will be best served.

Conclusion
The Supreme Court has observed in In re Kerala education bill. ” the real import of the Article 29(2) and 30(1) seems to be that they clearly contemplate a minority institution with the sprinkling of outsiders admitted into it.” the idea has been reinforced in the ST. Stephen college case, Article 30(1) does not mean that the minority can establish an educational institution solely for the benefit of its own community people. The minority are not entitled to establish such institution for their exclusive benefit. The Court “every education institution irrespective of community to which it belongs is a melting pot in our national life and that it is essential that there should be a proper mix of the students of different communities in all education institutions. This means that a minority institution cannot refuse admission students of other minority and majority communities.

Our constitution believes that diversity is our strength. Therefore they guaranteed the right to minority to maintain their culture. The minority status is not only dependent on the religion but linguistic and religious minorities are also included in this provision. Minorities are groups that have common language or religion and in a particular part of the country or in the country as a whole, they are outnumbered by some other social section. Such communities have the right to conserve and develop these.

Now through these provision religious and linguistic minority an set up their own educational institutes. By doing so, they can preserve and develop their culture. The Government will not while granting aid to educational institutions, discriminate against any educational institution on the basis that it is under the management of minority community.

Minorities Rights:
In India minority generally consists of Christians (2.5%), Sikhs (2%), Jain (1%) and Muslims (12%), which is world’ third largest. In India majority consist of Hindus, their population includes more that 80% of India’ population.

Minority Rights - The Judicial Approach:
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.

Minority Rights - with special reference to Christian missionaries in India:
It is well known that the standard of Christian missionary educational institutions was by and large higher than the level of other institutions. Thanks to the dedication of Christian missionaries, aided generously by the British rulers, the education as well as literacy average of Christians is also higher than that of Hindus.'

The author can be reached at: amit22jha@legalserviceindia.com / Print This Article

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