Article 29 & 30

Article 29

Protection of interests of minorities

It states 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. Article 29 (1)

To claim this right, following conditions must be satisfied:

1. The right can be claimed by any section of citizens. Thus, right belonged to citizen, not to the others.
2. Section of citizens must be residing in territory of India.
3. Section of citizens must have distinct language, script, or culture of its own.

• In D.A.V. College, Jullundur v. State of Punjab,' the Supreme Court held that the setting up of the Guru Nanak Dev University at Amritsar to promote and to undertake measures for the development of Punjabi language and culture did not infringe Article 29(1). Promotion of the majority language did not mean stifling of the minority language or script. 
• 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. Article 29 (2)
  • Article 29(2) prohibits denial of admission into educational institution maintained or aided by the State, on the ground only of religion, race, co or language or any of them. It is, therefore, not attracted in cases where the admission is denied on a ground other than those specified therein. P example, where seats in the educational institutions s are reserved by the State Government based on residence or domicile or sex or on the basis of the need of the inhabitants of that State, there would be no violation of Article 29 (2)
  • Article 29(2) cannot be invoked for seeking admission into educational institutions getting (no grants-in-aid from the State.

Difference between Article 29 (2) and Article 15(1)

• While Article 15(1) prohibits discrimination on the ground of religion, race, caste, sex or place of birth, Article 29(2) prohibits denial of admission to educational institutions aided or maintained by the State on the ground of religion, race, caste or language.
• Article 15(1) extends against the State, while Article 29(2) extends against the State as well as others, i.e., educational institutions maintained by the State or those belonging to private persons but getting grants-in-aid from the State.
• Article 15(1) protects all citizens against discrimination generally, while Article 29(2) is a protection against particular species of wrongs, namely, denial of admission to educational institution aided or maintained by the State.
• Article 15(1) is more general and wider in its operation than Article 29(2). It would apply and cover the area when Article 29(2) is not applicable. For example, the refusal to admit someone in an educational institution on the ground of sex or place of birth does not offend Article 29(2) but would be invalid under Article 15(1).

Article 30

Article 30(1) guarantees to all linguistic and religious minorities the ‘right to establish’ and the ‘right to administer’ educational institutions of their choice. 

Objective: To give the minorities a sense of security and a feeling of confidence not merely guaranteeing the right to profess, practise and propagate religion to religious minorities and the right to conserve the language, script and culture to linguistic minorities.

The right is conferred by this clause on two types of minorities- religious and linguistic minorities. 

Minority:

• In Kerala Education Bill case, the Supreme Court observed that while it was easy to say the minority meant a community which was numerically less than 50% important question was: 50% of what-the entire population of India of a State or of a part? Without deciding the matter definitely, the Supreme Court observed minority was to be determined only in relation to the particular legislation which was being challenged. If it was a state law, a minority would be determined in relation to the population of the State. Where a law passed by the State Legislature, minority for the purpose of Articles 29 and 30 would be determined by reference to the entire population of that State.
• T.M.A. Pai Foundation v. State of Karnataka: It has been held that since the reorganization of the States in India has been on linguistic lines, thus for the purpose of determining the minority", the unit will be the State and not the whole of India.
• The insertion of new Entry 25 relating to 'Education' in List III the Seventh Schedule by the Constitution (42nd Amendment) Act, 19 enables Parliament to legislate in relation to "education", with respect whole of India or group of States or even with respect to a particular State. It is for the National commission for Minorities to determine the minority status of a community.

Article 30(1) confers two rights on the minorities-

4. Right to establish an educational institution.
5. Right to administer an institution so established.

Right to establish an educational institution:

• The Apex Court in T.M.A. Pai Foundation vs. State of Karnataka has observed that the expression "education" means and includes s at all levels from the primary school level up to the post-graduate expression educational institutions", the Court said, meant institutions imparted education, where "education" was as understood hereinabove. Emphasizing on the words "of their choice" in Article 30(1), the Court said that these words indicated that even professional educational institution would be covered under article 30. It is well settled that the right, to establish the institution under Article 30 (1) can be claimed by persons who are residents of such State where it is established, and such persons constitute minority in that state.
• Minority Educational institution are of two types:

1. Unaided Minority Institutions: Court in TMA Pai vs State of Karnataka favours of freeing the unaided minority institutions from possible interference from the relevant University or the Government, by making it clear that the latter was forbidden from meddling with the affairs of the former. However, the Court conceded that institutions would have to maintain academic standards, which could ensure through prescribing qualifications for teachers and min eligibility for students. Though, the procedure for admission of students to unaided minority institutions could not be regulated at all by a Sta University, but it must be transparent, and merit based.
2. Aided Minority Institutions: The minority educational institutions receiving Government aid would not lose their minority character, but they would come under the purview State regulation. In their case Articles 28 and 29(2) come into play." In T.M.A. Pai Foundation v. State of Karnataka, ruled that a minority institution did not cease to be a minority educational institution, the moment it received government aid. Though, it would be required to admit reasonable extent of non-minority students, that would not substantially impair the rights under Article 30(1).

Right to administer an institution so established.

• The right to administer the educational institution has been held to mean the right to effectively manage and conduct the affairs of the institution That, the management of the affairs of the institution must be free of external control, so that the founders or their nominees, can mould the institution as they think fit and in accordance with their ideas, of how best the interest of the community in general and the institution in particular, will be served.
• Though, the right conferred by Article 30(1), strictly, may not be subject reasonable restrictions, it is as well that the right is not absolute. The majority of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka, held that any regulation framed in the national interest or for the welfare of the students and teachers, must necessarily apply to all institutions, whether run by the majority or the minority.
• The right conferred by this Article had been held subject to laws of the and pertaining to health, morality, and standards of education.

Facets of Article 30 (1)

1. Right to choose Principal: 
2. Right to take Disciplinary action:
3. Right to select students for admission: The right to regulate admission of dents to educational institutions so established, is an essential facet of the right to administer the institution. Therefore, any regulation which interferes with this right would be violative of Article 30(1), unless it is imposed for making the institution an effective vehicle of education for the minority community or other persons, who resort to it.

• St. Stephen's College vs. University of Delhi: A Circular issued by the University required that admission to B.A. Courses in all Colleges affiliated to D University, would be based on the merit of percentage of marks secured students in the qualifying examination. The Supreme Court by majority of 4 to 1 ruled that the St. Stephen College was not bound to follow the University Circular as it would deprive the College of its minority character. The Court also, held that the minority aided educational institutions might reserve 50%per cent seats for their community candidates and they should make available at least 50 per cent seats to other community candidates to be filled purely on the basis of merit. However, the minority educational institutions cannot adopt their own method of selection to fill 50 per cent seats belonging their community students.
• P.A Inamdar case: Follow the principle of Triple test while selection: Fairness, Transparency and non-exploitation of students.

4. Right to impart religious instruction: The Calcutta High Court in Association of Teachers of A. I. School v. Association of Aids of A.I. School, held that it could not be disputed that the right of a religious minority to impart religious instructions in their educational institution formed part of the right to administer the institution. But this right is curtailed by Article 28(3) and that the right should be read subject to implied limitations under Articles 29(2), 15(4) and 28(3). It would thus mean that the moment the minority institution receives Government aid, Articles 28(3) and 29(2) would come into play.

Distinctions between Article 29(1) and 30(1)

• While Article 29(1) confers right on any section of the citizens which will include the majority section, Article 30(1) confers the right only on minorities based on religion or language.
• While Article 29(1) is concerned with only three subjects, i.e, language, script or culture, Article 30(1) deals with minorities based on language or religion.
• While Article 29(1) is concerned with the right to conserve language, script or culture, Article 30(1) deals with the right of minorities to establish and administer educational institutions of their choice.
• While Article 29(1) does not deal with education as such, Article 30(1) deals only with educational institutions.

Article 30(1) and Article 26(a)- Compared: It may be noted that both Articles 30(1) and 26(a) secure the right to establish educational institutions. To this extent, they overlap. However, they fer in the following respect:

• Firstly, while Article 26(a) secures the right to establish institutions to the majority as well as minority communities, Article 30(1) secures that right to the minorities, religious as well as linguistic. 
• Secondly, while Article 26(a) prefers only to religious denominations, Article 30(1) contains the right of religious as well as linguistic minorities.
• Thirdly, while Article 26(a) says of the right of a religious denomination to maintain the institution/established by them, Article 30(1) secures the right to a minority to administer their institution.
• Fourthly, while the right secured by Article 26(a) is subjected to public order, morality and health, Article 30(1) does not specifically state that the right under Article 30(1) is subjected to any such conditions. It has, however, been held that the right under Article 30(1) is not so absolute as to be above the law. It, thus, cannot be disputed that Article 301) is subject to the general laws and the laws made in the national interest.

Saving of certain Laws: (Article 31A, 31 B, 31C)

The Sub-heading "Saving of Certain Laws" was inserted after Article 31 by the Constitution (Forty-second) Amendment Act, 1976. Under Sub-heading fall Articles 31-A, 31-B and 31-C, which provide immunity certain laws from challenge on the ground of violation of the fundamental rights conferred by Article 14 or 19. 

Saving of Laws Providing for Acquisition of Estate (Article 31A)

The object of the introduction of Article 31-A was to validate the acquisition of zamindaries or the abolition of the Permanent Settlement without interference from the Courts. It was aimed at removing social and economic disparities in the agriculture sector. It was to make the constitutional ideal of equal justice a living truth.

• Article 31A(1)(a): Saves laws, providing for "the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights. The object of Article 31-A is to facilitate agrarian reforms. Hence, the protection is not applicable to a law which seeks to modify the right of the owner without any reference to agrarian reforms. 
• Article 31A(1)(b): Article 31-A protects a law providing for the taking over the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property. 
• Article 31A(1)(c)(d): Protects a law providing for the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations The object is to facilitate the elimination of unhealthy competition between rival concerns where such action is needed in the public interest. Sub-clause (d) of Clause (1) of Article 31-A protects laws providing public. the extinguishment or modification of any rights of managing a secretaries and treasurers, managing directors, directors or managers corporations or of any voting rights of shareholders thereof. The object behind Sub-clauses (c) and (d) of Article 31A (1) was explained in Daman Singh vs. State of Punjab : The reforms in company law like the progressive elimination of the managing agency system, provision for the compulsory amalgamation of two or more companies in the national interest, the transfer of an undertaking from one company to another etc., required to be placed above challenge. The word "corporation" in Article 31-A (1) (c) has been held to including cooperative societies registered under the Cooperative Societies Act.
• Article 31A(1)(e): saves laws providing for the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or mineral or mineral oil or the premature termination or cancellation of any such agreement, lease or licence”.

Validation of certain Acts and Regulations (Article 31 B)

It states that the acts which are present in the ninth schedule and are inconsistent with the provisions laid down by the constitution or resist any decree or order will be left on the competent legislature to amend, revoke or to let it be in force. Anything contained in this Article does not undermine any provision contained in Article 31A.

It protects the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of contravention of any of the fundamental rights.

• The scope of Article 31B is wider than Article 31A as it immunises any law included in the Ninth Schedule from the Fundamental Rights (unlike article 31A that protects only five categories).
• However, the Supreme Court in its judgement in the I.R. Coelho case (2007) ruled that even laws under the Ninth Schedule would be open to scrutiny if they violated Fundamental Rights or the basic structure of the Constitution.

The Supreme Court first propounded the doctrine of ‘basic structure’ of the constitution in the Kesavananda Bharati on April 24, 1973.

Saving of laws giving effect to certain directive principles Article 31 C

This Article was added by the Constitution (25th Amendment) Act, 1971. It states that, “Notwithstanding anything contained in Article 13, no law giving effect to the policy of the state towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.”

History behind Article 31C

This article was inserted by the 25th Constitutional Amendment to get over the difficulties placed by judicial decisions in the way of giving effect to the Directive Principles in Part IV. It provided immunity from any challenge on the grounds of violation of Article 14, 19 and 31 any law enacted for implementing the directives in clause (b) and (c) of Article 39. In the 25th amendment it was further provided that such law made to give effect to the policy under Article 39(b) and (c), would not be open to judicial review.

However, this second part was struck down in Kesavananda Bharati v State of Kerala , but the rest of the Article was held valid. After this amendment 42nd Constitutional Amendment Act was passed by the Parliament which replaced Article 39(b)-(c) by all Directives contained in Part IV of the Constitution. The part which was held unconstitutional in the Kesavananda Case was not omitted from the official text of the Constitution, since later cases seem to restrict the scope of judicial review of the statutory declaration only to the narrow question whether there is a reasonable nexus between the act passed and the objects of the directive it seeks to implement. But in the Minerva mills v Union of India , it was held that extending the immunity of Article 31C to all the Directives of Part IV by the 42nd amendment was unconstitutional, thus, Article 31C is confined to its pre 1976 position, which has not been overruled by any larger bench yet.

Decisions given by court on the constitutionality of Article 31C

The validity of the 25th Constitutional Amendment was questioned in Kesavananda Bharati v State of Kerala, Sikri C.J. held that since Parliament cannot under article 368 abrogate fundamental rights; equally it cannot enable the legislature to abrogate them. Therefore, article 31C must be declared unconstitutional. The second part of Article 31C was held unconstitutional on the ground that it ousted the jurisdiction of the Courts which is a basic feature of the constitution, and which cannot be done away with an amendment under Article 368.

Minerva Mills Ltd. v. Union of India , The extended version of article 31C was struck down by the Supreme Court. The Court ruled that the extension of the shield of article 31C to all the Directive Principles was beyond the amending power of Parliament under article 368 because by giving primacy to all Directive Principles over the Fundamental Rights in articles 14 and 19, the basic or essential features of the constitution viz., judicial review has been destroyed.

I.R. Coelho v. State of Tamil Nadu , the Supreme Court held that any law which infringes basic structure of the Constitution can be struck down. Parliament has power to amend Part III so as to abridge or take away fundamental rights, but that power is subject to the limitation of basic structure doctrine. There should be a balance between fundamental rights and Directive Principles of State Policy.

Conditions for applicability of Article 31C

There are two conditions which must be fulfilled for the application of Article 31-C

• A law for giving effect to the policy of the state to implement a Directive Principle in Article 39(b) or (c).
• The Legislature made a declaration to that effect.

But the question of whether the act is intended to secure the object contained in Article 39(b)-(c) does not depend upon the declaration made by the legislature but upon the contents of the act as found by the court.