The first provision protects the right of a group while the second provision guarantees the right of a citizen as an individual irrespective of the community to which he belongs.
Article 29 grants protection to both religious minorities as well as linguistic minorities. However, the Supreme Court held that the scope of this article is not necessarily restricted to minorities only, as it is commonly assumed to be. This is because of the use of words ‘section of citizens’ in the Article that include minorities as well as majority.
The Supreme Court also held that the right to conserve the language includes the right to agitate for the protection of the language. Hence, the political speeches or promises made for the conservation of the language of a section of the citizens does not amount to corrupt practice under the Representation of the People Act, 1951.
2. Right of Minorities to Establish and Administer Educational Institutions
Article 30 grants the following rights to minorities, whether religious or linguistic:
(a) All minorities shall have the right to establish and administer educational institutions of their choice.
(b) The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them. This provision was added by the 44th Amendment Act of 1978 to protect the right of minorities in this regard. The Act deleted the right to property as a Fundamental Right (Article 31).
(c) In granting aid, the State shall not discriminate against any educational institution managed by a minority.
Thus, the protection under Article 30 is confined only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Article 29). However, the term ‘minority’ has not been defined anywhere in the Constitution.
The right under Article 30 also includes the right of a minority to impart education to its children in its own language.
Minority educational institutions are of three types:
(a) institutions that seek recognition as well as aid from the State;
(b) institutions that seek only recognition from the State and not aid; and
(c) institutions that neither seek recognition nor aid from the State.
The institutions of first and second type are subject to the regulatory power of the state with regard to syllabus prescription, academic standards, discipline, sanitation, employment of teaching staff and so on. The institutions of third type are free to administer their affairs but subject to operation of general laws like contract law, labour law, industrial law, tax law, economic regulations, and so on.
In a judgement delivered in the Secretary of Malankara Syrian Catholic College case14a (2007), the Supreme Court has summarized the general principles relating to establishment and administration of minority educational institutions in the following way :
1. The right of minorities to establish and administer educational institutions of their choice comprises the following rights :
(i) To choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;
(ii) To appoint teaching staff (teachers/lecturers and head- masters/principals) as also non-teaching staff; and to take action if there is dereliction of duty on the part of any of its employees;
(iii) To admit eligible students of their choice and to set up a reasonable fee structure; and
(iv) To use its properties and assets for the benefit of the institution.
2. The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation etc., applicable to all, will equally apply to minority institutions also.
3. The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).
4. Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.
5. Extention of aid by the State, does not alter the nature and character of the minority educational institutions. The conditions can be imposed by the State to ensure proper utilization of the aid, without however diluting or abridging the right under Article 30(1).