Minorities Cultural and Educational Rights Article 12 In

Minorities Cultural and Educational Rights

Article 12. In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India

1. Re Kerala Education Bill 2. Ahmedabad St Xavier’s College Society v State of Gujarat, 3. TMA PAI FOUNDATION • PA Inamdar v State of Maharashtra (93 rd Amendment Act 2005 ). • Ashoka Kumar Thakur v Union of India.

Important Keywords • Article 26(a) , Article 29 , Article 30 , Article 19 (1)(g), Article 14 , Article 15(5) 14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

• 29. (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) 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.

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

(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.

• 19. (1) All citizens shall have the right— g) to practise any profession, or to carry on any occupation, trade or business. Nothing prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right

Article 26 • 26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right— • (a) to establish and maintain institutions for religious and charitable purposes; • (b) to manage its own affairs in matters of religion; • (c) to own and acquire movable and immovable property; and • (d) to administer such property in accordance with law

Article 30 Two Important Points 1. Article 30 is one of the few exceptions to the Indian Constitution’s focus on individual rights. 2. Article 30 is not the only right in the Constitution that deals with the rights of educational institutions. Educational Institution - Article 26(a) , 29 , 19

Nature of Article 30

Nature of Article 30 educational institutions under Article 30(1) as an exclusive right, not available to other groups. ( Special Rights ) Vs. [T]he essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions (Anti Discrimination principle ).

Supreme Court Verdict

1. Re Kerala Education Bill 2. Ahmedabad St Xavier’s College Society v State of Gujarat, 11 Result - Article 30(1) – educational institutions under Article 30(1) as an exclusive right, not available to other groups

• TMA Pai Foundation v State of Karnataka. Completely Changing the legal landscape for educational institutions.

Why this case is So Important : even non-minorities have the right to establish and administer educational institutions. traced this right - Article 19(1)(g) and Article 26, by asserting that education was a charitable activity.

About Minorities Result : [T]he essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No interpretation of Article 30 should create ‘further divide between citizen and citizen’.

• PA Inamdar v State of Maharashtra (Follow TMA Pai Foundation ). State-mandated quotas cannot be imposed in unaided educational institutions, whether minority or non-minority, and that admissions had to be made on merit.

Article 15 of the Indian Constitution • To undo the effect of this ruling, Parliament enacted the Constitution (Ninety-third) Amendment Act 2005. This introduced Article 15(5) (an exemption was carved out for minority educational institutions).

• (1) The State shall not discriminate against anyizen on grounds only of religion, race, caste, sex, place of birth or any of them. • (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

• (a) access to shops, public restaurants, hotels and places of public entertainment; or • (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

• 3) Nothing in this article shall prevent the State from making any special provision for women and children. • [(4) 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. ]

Article 15(5) • [(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. ]

• Ashoka Kumar Thakur v Union of India. upheld the exclusion of minority educational institutions from Article 15(5) by asserting that ‘minority institutions have been given a separate treatment in view of Article 30 of the Constitution’.

Minority Rights Special Rights or Just Anti. Discriminatory Principle

Common Man Arguments • Article 30(1) – Special Rights – Four Justification a. The Historical Justification b. The Textual Justification c. The Anti-Majoritarian Justification d. The Equality Justification

a. The Historical Justification minorities giving up their claim for separate electorates and reservations of seats in the legislature, the right under Article 30(1) was exclusively conferred on minority educational institutions. Articles 330 to 333 – Check Articles

• 300. Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People. • 331. Representation of the Anglo-Indian community in the House of the People. • 332. Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States. • 333. Representation of the Anglo-Indian community in the Legislative Assemblies of the States.

Workspace The Textual Justification Article 30(1) is categorical—‘all minorities whether based on religion or language shall have the right to establish and administer educational institutions of their choice’.

The use of the phrase ‘all minorities’ has to be contrasted with other rights conferred on all citizens or persons, as in Articles 14 or 19. So , Article 30(1) prefers Specials Rights For Minorities

Same Textual Reading (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.

Another Big Problem • Non-religious and non-linguistic minorities would then only have a right to establish an educational institution for religious and Cultural Culeducation, under Article 26 and Article 29, but would be deprived of establishing an educational institution for secular education. Violation of Right To Equality

c. The Anti-Majoritarian Justification Constitution should have only conferred fundamental rights on the minority on the assumption that the majority could have secured their liberties and freedom through the legislative process.

If this premise is accepted, the Constitution should have only conferred fundamental rights on the minority on the assumption that the majority could have secured their liberties and freedom through the legislative process.

• Interpreting Article 30(1) as a special right for minorities had deeper repercussions This created two sets of issues, which was entirely avoidable. • First, who is a minority? • Secondly, should the determination of minority status be made at a national level or at the State level? (Recent Issues)

• On the first issue, several groups that had their roots in Hinduism claimed they were a minority, in order to enjoy the right to establish and administer an educational institution. • Ex – Ramakrishna Mission Case

Source of Right To Education institution

Prior to 2001, the Supreme Court in Unni Krishnan v State of Andhra Pradesh held that education was fundamentally a ‘charitable activity’, that the Constitution did not recognise any right to run an educational institution, and that the role of private educational institutions was only to supplement the efforts of the State in providing education to the people.

• The constitutional position was rectified in 2001, when TMA Pai held that the right to establish and administer an educational institution was traced to the right of citizens to carry on an occupation, trade, or business under Article 19(1)(g) and the right of religious denominations to establish charitable institutions under Article 26(a).

• By tracing the right to administer educational institution under Article 19(1)(g), the Supreme Court placed a shopping establishment and educational institution on the same pedestal. Secondly, by placing the right of educational institutions within Article 19(1)(g), the Supreme Court exposed the said right to possible extinction.

Prior to the TMA Pai ruling : • The Court held that the constitutional right to administer given to minority educational institutions did not include the right to ‘maladminister’. • The Supreme Court consciously avoided the test of public interest as it would enlarge the power of the State, and observed that Article 30(1), unlike Article 19(1)(g), does not enable reasonable restrictions in public interest.

• 19. (1) All citizens shall have the right— g) to practise any profession, or to carry on any occupation, trade or business. Nothing prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right