Ajit Kumar
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Protection of Interest of Minorities
Article 29 of the Constitution of India defines the protection of interest of minorities: -
1) Any section of the citizen residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have right to conserve the same.
2) No citizen shall be denied admission into any educational institution maintained by the State receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
Clause (1)
Clause (1) gives protection to every section of the citizens having distinct language, script or culture by guaranteeing their right to conserve the same. If such section desires to preserve their own language and culture, the state would not stand in their way. A minority community can effectively conserve its language, script or culture by and through educational institutions and therefore necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by article 30(1). But article 29(1), neither controls the scope of article 30(1) nor is controlled by that article. The scope of the two is different. Article 29(1) is not confined to minorities but extends to all sections of citizens. Similarly article 30(1) is not confined to those minorities, which have 'distinct language, script or culture' but extends to all religious and linguistic minorities. Further, article 30(1) gives only the right to establish and administer educational institutions of minorities' choice while article 29(1) gives a very general right 'to conserve' the language, script or culture. Thus, the right under article 30(1) need not be exercised for conserving language, script or culture.
Clause (2)
Clause (2) relates to admission into educational institutions, which are maintained or aided by state funds. No citizen shall be denied admission in such institutions on grounds only of religion, race, caste, language or any of them. Article 15 prohibits discrimination against citizen on ground of religion, etc. but the scope of two articles is different. Firstly, article 15(1) protects all citizens against the state where as the protection of article 29(2) extends to the state or anybody who denies the right conferred by it.
Secondly, article 15 protects all citizens against discrimination generally but article 29(2) is a protection against a particular species of wrong, namely, denial of admission into educational institutions maintained or aided by the state . Finally, the specific grounds on which discrimination is prohibited are not the same in two articles. 'Place of birth' and 'sex' do not occur in article 29(2), while 'language' is not mentioned in article 15.
The right to admission into an educational institution is a right, which is an individual citizen, has as a citizen and not as a member of a community or class of citizen. Hence a school run by a minority, if it is aided by state funds, cannot refuse admission to children belonging to other communities. But the minority community may reserve up to 50 percent of the seats for the members of its own community in an educational institution established and administered by it even if the institution is getting aid from the State. The state, however, cannot direct minority educational institutions to restrict admission to the members of their own communities. Article 29(2), however, does not confer a legal right on the members belonging to other communities to freely profess, practice and propagate their religion within the precincts of a college run by a minority community . Article 29(2) cannot be invoked where refusal of admission to a student is on the ground of his not possessing requisite qualifications or where a student is expelled from an institution for acts of indiscipline.
To overcome the conflict with article 15 as well as article 29 the Constitution (First Amendment) Act, 1951, added clause (4) to article 15 to the effect that nothing in article 15 and article 29(2) shall prevent state from making any special provision for the advancement of any socially and educationally backward classes of citizen or for the schedule caste and the schedule tribes. The state is empowered to reserve seats in state colleges for socially and educationally backward classes of citizen or for SC and ST.
Rights of Minority to Establish and Administer Educational Institutions
Article 30 of the Constitution of India defines Rights of Minority 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.
[1-A) In making any law providing for the compulsory acquisition of any property of an educational institution establish and administered by a minority, referred in clause (1), 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.]
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.
Clause (1)
Clause (1) gives rights to all minorities based on religion or language the right to establish and administer educational institution of their own choice. Article 29 and 30 are grouped together it will wrong to restrict the rights of minority to establish and administer educational institution concerned with language script and culture of the minorities. The reasons are: Firstly, article 29 confers the fundamental rights on any section of the citizen which will include the majority also where as article 30(1) confers all rights on all minorities. Secondly, article 29(1) is concerned with language, script or culture, whereas article 30(1) deals with minorities based on religion or language. Thirdly, article 29(1) is concern with the right to conserve language, script or culture, whereas article 30(1) deals with right to establish and administer educational institutions of the minorities of their choice. Fourthly, the conservation of language, script or culture under article 29(1) may be by means wholly unconnected with educational institutions, and similarly establishment and administer educational institutions by a minority under article 30(1) may be unconnected with any motive to conserve language, script or culture. A minority may administer an institution for religious education, which is wholly unconnected with any question of conserving language, script or culture. It may be that article 29(1) and article 30(1) overlap, but the former cannot limit the width of the latter. The scope of article 30 rests on the fact that right to establish and administer educational institution of their own choice is guaranteed only to linguistic or religious minorities, and no other section of citizens has such a right. Further article 30(1) gives the right to linguistic minorities irrespective of their religion. It is, therefore, not at all possible to exclude secular education from article 30.
The expression 'minority' in article 30 remains undefined though the court has observed that it refers to any community which is numerically less than 50 percent of the population of a particular state as a whole when a law in consideration of which the question of minority right is to be determined as a State law. A community, which is minority in specific area of the State though a majority in the state as a whole, would not be treated as minority for the purpose of this article. A minority could not also be determined in relation to entire population of the country. If it was a state law, the minorities must be recognized in relation of that state. But the fact that the expression minority an article 30(1) is used to distinct from 'Any section of citizen' in article 29(1) lends support to the view that article 30(1) deals with national minorities or minorities recognized in the context of entire nation. In that case, however, article 30(1) would become inapplicable to the national majority even if it is a minority in any particular state, e.g., Hindus in Punjab or Jammu and Kashmir. These are all minority protection laws in India.
Is there such thing exists in Pakistan ?
