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Submissions on Behalf of Union of India
by Harish V. Salve
Solicitor-General of India

PART I
GENERAL SUBMISSIONS ON THE INTERPRETATION OF ARTICLES 25 TO 30

I. Interplay between Articles 25 to 30

(1) Although Articles 25 to 28 were placed under a separate heading "Right to Freedom of Religion" and Articles 29 to 30 were placed under the heading "Cultural and Educational Rights", all these articles together constitute a broad scheme of provisions dealing with religious freedoms, freedom of conscience, and the relationship of the State with these freedoms.

(2) There clearly is overlapping amongst the provisions — the most telling instance of which appears from a comparison of Article 26(a) with Article 30. The former confers upon every religious denomination (or any section of any religious denomination) the right inter alia, to establish and maintain institutions for charitable purpose. It cannot be gainsaid that this would include the right to establish an educational institution (which is a known kind of institution for charitable purposes). In fact, most of the education regulations require schools and colleges to be structured in such a manner that they would satisfy the description of being an institution for charitable purpose. This rule applies even to minority institutions — in one sense all the known minority institutions established by religious minorities would also fall within the protection of Article 26(a).

(3) Articles 29 and 30 focus upon two kinds of minorities — linguistic and religious. Thus the rights under Articles 29 and 30 would be available only to linguistic or religious minorities and not to religious denominations or sections of religious denominations that are not a "minority". Educational institutions established by other religious denominations would not get the benefit of Article 30 and educational institutions established by linguistic minority would not get the benefit of Article 26(a).

I. Freedom from State intervention — no positive obligation upon the State

(4) Although Articles 29 and 30 are termed as "rights", they are really in the nature of freedoms — in other words they confer upon the defined beneficiaries freedom from State intervention or control over the specified activities.

(5) Article 29(1) confers upon all sections of citizens residing in the territory of India and who have a distinct language or a common script or culture, the right to conserve the same. Any section of citizens who have such a language, script or culture would be free to take such steps as they consider necessary to conserve the same, and legislative or executive intrusion by the State designed to curtail this right would be unconstitutional.

(6) In the same sense, Article 30 mandates that linguistic/religious minorities have the freedom to establish educational institutions of their choice, and to administer such institutions they have established. Legislative intrusions designed to deprive minorities of these rights would be unconstitutional.

(7) These are therefore in the nature of negative injunctions against the State from unduly interfering — in the exercise of its legislative or executive powers — in the measures taken by those who are within the protection of these articles to conserve their language, script or culture, or to establish educational institutions.

(8) By its very nature, these rights, which are not available generally to all citizens of India, cannot be construed as casting upon the State, any obligation to make available resources or facilities to any of these beneficiary groups to enable them to fulfil their aspirations of taking measures to conserve their script, culture or language, or of establishing educational institutions of their choice.

(9) On the contrary, if the State does choose to make available resources of any kind for the purpose of enabling such beneficiary groups to fulfil their aspirations in relation to the freedoms guaranteed under these provisions, it must do so consistent with the rights of equality under Articles 14 and 15 of the Constitution and consistent with the constitutional mandate of secularism. Special measures — affirmative discrimination — is permissible only in favour of those referred to in Articles 15(2) and 15(4).

II. Content of the right

(10) The perception that in the absence of any qualifying words, the rights under Article 29 and Article 30 are absolute — particularly since the words found in Article 25 and Article 26 ("... subject to public order, morality and health ...") are absent in Articles 29 and 30 — is entirely erroneous.

(11) Constitutional rights are not construed in a pedantic fashion — the underlying constitutional concepts and consequences of competing interpretations are extremely important — at times decisive — in constitutional interpretation.

(12) Cultural and educational rights to minorities or sections of citizens are essentially political in character — it is to prevent undue legislative or executive intrusion in measures aimed at preservation of their own language and culture. This freedom was necessary to prevent an apprehension of forcible assimilation and extinction of identity on account of inequality in political power. The rights of this kind cannot obviously be "absolute" in the sense of conferring immunity from ordinary secular laws that are not directed towards interfering with these rights.

(13) There are two basic principles, which it is submitted, would be relevant in construing these provisions, viz.

(i) The rights conferred upon different sections of society — some individual rights and some of them as community rights — posit the existence of a civil society governed by the rule of law, and must therefore be construed in that context. Minority rights, in the ultimate analysis are meant to equalize the politically unequal class — not to create a privileged class of persons, or to exempt a section of society from the basic postulates of civil society governed by the rule of law.

(ii) These rights have to be harmonized with other constitutional provisions, particularly those conferring rights upon other individuals or groups, since the underlying premise of any of these rights is that they must be exercised in a manner consistent with the rights of others under the Constitution.

(14) It is submitted that on the first principle, these rights cannot be construed as impinging upon the power of the State to enact secular legislative measures which are imperative for civil society or laws directed to promote objectives in national interest.

(15) Conversely, no constitutional right can be construed so expansively so as to permit activities which would conceivably be opposed to national interest. Any legislative measure intended bona fide to secure a secular objective imperative in national interest cannot conceivably be one which is interdicted by the guarantee of such freedoms. The content of such a freedom ex hypothesi, cannot extend to inhibiting secular legislative measures designed to secure objectives imperative in national interest. Any law which is a colourable device designed not really in national interest but to defeat the rights of the minority would however be declared unconstitutional.

(16) For example, legislation prohibiting obscenity or pornography cannot obviously be condemned as being violative of Article 29 if it proscribes obscene books or plays etc., whereas publication of books, theatre and the film medium may generally be vital tools to promote the script, language or culture.

(17) Similarly, legislation prohibiting literature inconsistent with sovereignty of the nation cannot conceivably be considered as being inconsistent with the right guaranteed under Article 29 — anti-national literature can never be justified as a measure to conserve a language, script or a culture.

(18) Measures in national interest — for example, a compulsory law of conscription — cannot conceivably be considered as inconsistent with the freedom under Article 29, even if a beneficiary group were to contend that their culture does not permit military service. Laws made in the interest of public order (i.e. for closure of places of public entertainment) cannot be considered as being violative of right under Article 29 on the ground that it may prevent beneficiary groups from taking measures to promote their language, script or culture.

(19) The same, it is submitted, would be true of Article 30. The freedom to establish an educational institution must be construed as a freedom to establish an institution that imparts education consistent with societal norms, and promotes the interest of society in imparting education. Thus laws designed to attain a secular objective in national interest cannot, ex hypothesi be inconsistent with the right to establish and administer such educational institutions, since the existence of such institutions is itself, in the ultimate analysis dependent upon the existence of civil society governed by the rule of law.

(20) Thus, the right under Article 30 would not extend to teaching literature inconsistent with the sovereignty and integrity of India. Any legislative measures in the interest of public order, health or morality cannot also, ex hypothesi be inconsistent with such rights.

(21) The textual argument based upon the absence of the qualifying words of the kind found in Articles 25 and 26 is misconceived. It overlooks that the legislative intent of the founding fathers was to confer these freedoms so that they would be exercised in a manner consistent with civil society and to promote rather than imperil national interest. Therefore, the qualifying words were unnecessary — and in any event their absence has little significance. It this context, it is submitted as under:

(i) There is difference in the language of Articles 25 and 26 — yet it is obvious that this difference is of little significance. The qualifying words of Article 25 are "... subject to public order, morality and health and to the other provisions of this Part ...". The opening words of Article 26 are "... subject to public order, morality and health ...". The absence of the underlined phrase does not suggest that Article 26 is above the other rights under Part III. On the contrary, the right under Article 26(b) has been held1 subject to the power of the legislature to implement measures of social reform under Article 25(2)(b) of the Constitution — although the express language of Article 25(2) is "... nothing in this article shall affect the operation of any existing law ...".

(ii) The right to profess, practice and propagate religion conferred under Article 25 was qualified ex majore cautela, in the manner it was done. However, in the absence of those words also, it is clear that the interpretation of Article 25(1) would not be any different. Even if the words were absent, the article would never suggest conferment of a freedom to practise, profess and propagate religion in a manner inconsistent with the civil and constitutional rights of other citizens. Thus the right to practise and propagate a religion cannot invalidate a law that restricts the use of loudspeakers late in the night, or a law which restricts taking out processions on busy roads, or doing in public, acts which would be considered as dangerous or obscene. The right to propagate a religion would similarly not invalidate a law which makes it a criminal offence to criticise another religion in a manner so as to spread disaffection in society — and this would be so irrespective of whether the opening words of Article 25 were present or absent in the text of the provision.

(iii) Articles 26(c) and (d) read thus:

"(c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law."

Obviously, the absence of the words "... in accordance with law...." in clause (c) does not suggest that a religious denomination can aquire property in contravention of secular laws applicable to all citizens. In fact the absence of those words in clause (d) would also not have implied a right to administer property contrary to law. The only purport of those words is a difference in emphasis — laws designed specifically to prevent a religious denomination from owning property or acquiring property would be violative of Article 26(c). Laws regulating the administration of property would not be violative of Article 26(d) unless they are designedly destructive of the right to administer property owned by denomination.

(iv) Article 28(1) proscribes the imparting of religious instruction in all educational institutions maintained out of public funds. Obviously, if the institutions are of the kind referred to in Article 30, they would be subject to this restriction — which is obviously a restriction to preserve the secular nature of the Constitution. This is so even though Article 30 does not expressly refer to Article 28.

(v) Article 28(3) proscribes compulsory religious instruction or worship in any educational institution that inter alia receives aid from public funds — this again would apply to institutions referred to in Article 30 of the Constitution. It would be inconsistent with the secular nature of the Constitution to forcibly impart religious instruction, or compel participation in religious worship in an institution that is run on funds allocated from taxes collected from the general public.

IV. State aid and minority rights

(22) The Constitution of India seeks to establish a secular republic with equality of status and opportunity to all citizens. Laws relating to the grant of aid to any class of citizens including minority groups must be consistent with these principles.

(23) The Constitution of India does not seek to erect a complete wall of separation between religion and State. This is for the reason that:

(i) It permits legislative intervention by way of regulation or restriction of economic, financial, political or other secular activity associated with religious practice and permits social welfare and reform2

(ii) It tolerates imparting religious instruction in certain educational institutions which are administered (but not established) by the State.

(iii) It tolerates religious instruction in educational institutions recognised by the State or receiving aid out of State funds — while ensuring that such instruction or worship is not made compulsory.

(24) It is submitted that while demarcating the respective areas in which religious freedom would operate and in which legislation impinging upon religious freedom would be permitted, the emphasis is upon maintaining and fostering principles of secularism. Thus:

(1) Legislative intervention on secular matters associated with religion is permitted.

(2) State duty to foster social reform is placed above the constitutional inhibition against legislative intervention in matters of religion. In fact laws of social reform may be made even in relation to minority religions as Article 25(2)(b) is not limited to the Hindu religion.

(3) While State aid to institutions imparting religious instruction is not proscribed, it insists upon religious instruction/worship in institutions aided, or even merely recognised, by the State as being voluntary.

(25) The constitutional concept of secularism — as embodied in the establishment clause of the US Constitution has been construed as prohibiting State aid to institutions which provide religious instruction. The founding fathers of the Indian Constitution however did not desire to place an absolute restriction upon the State granting non-discriminatory aid to minority institutions. They, therefore, considered it necessary to expressly engraft the safeguard visualised by Article 29(2) — in other words State aid granted to all other institutions would be granted to minority institutions which did not practise impermissible discrimination.

(26) The State cannot make reservations on the basis of religion — it would be clearly violative of Articles 14 and 15 of the Constitution. It is a settled principle of constitutional law that what the State cannot do directly, it cannot permit indirectly. Aiding financially institutions that practise discrimination would clearly be violative of this principle. It is therefore axiomatic that any institution which is aided by the State should equally be compelled to adhere to this constitutional dharma of equality.

(27) Article 29(2) was inserted at a late stage in the drafting of the Constitution — presumably to restate this principle of non-discrimination and to avoid any misunderstanding of sub-article (2) of Article 30.

(28) If aid is generally granted by a State only to institutions which are under the management (directly or substantially) of the State, the grant of such aid to minority institutions which are administered by the minority themselves (while denying it to other educational institutions who do not agree to surrender control over their management to the State) would be discriminatory — since granting of preferences based on a religion or language would be violative of Articles 14 and 15. Therefore, it became necessary to insert sub-article (2) of Article 30 to ensure aid to minority institutions without requiring them to surrender their right to administer their institutions.

(29) The injunction against the State denying aid to minority institutions under sub-article (2) of Article 30 is confined to a denial solely on the ground that it is "... under the management of a minority ...". Other conditions however uniformly imposed upon other beneficiaries of such aid — as long as it does not involve the surrender of the right to management — could nonetheless be imposed and a breach of those conditions could certainly involve a denial of such aid.

(30) A State could therefore, consistent with Article 30, impose a condition that any institution receiving aid shall admit students strictly on merit, or make only such reservations which are constitutionally permissible and no more. The denial of aid on account of breach of any such condition would not be considered as being violative of sub-article (2) of Article 30.

(31) There is nothing in Article 30(2) which proscribes the imposition of any conditions in relation to aid, which are general in nature and uniformly applicable to all the beneficiaries of aid. For eg. if aid is granted for a particular purpose or object, conditions relevant thereto could always be imposed. So if aid is granted for training teachers on the understanding that at least half the seats will be reserved for government teachers, then such a condition would not in any manner be violative of Article 30. The observations in Sidhajbhai case3 to the contrary are, it is submitted, erroneous.

V. Conflict between Article 29(2) and Article 30(1)

(32) At the time the Constitution was enacted, a positive duty not to discriminate on the grounds, inter alia, of language or religion, was embodied in sub-article (2) of Article 29. The entire fasciculus of provisions contained in Article 25 to Article 30 are a delicate balance of secularism and equality with the rights of freedom of conscience and religion, and the safeguards of non-discrimination and protection against forcible assimilation against the minorities. Conflicts arise when any one of these articles is construed in vacuo, and not textually, contextually or historically, but on a priori notions of rights of minorities.

(33) The view expressed in St. Stephen's case4 that there is some conflict between Article 29(2) and Article 30(1) is erroneous, inter alia, for the following three reasons namely:

(i) it is based on the construction of Article 30(1) as an absolute right and in vacuo, and

(ii) it must necessarily be based on the unacceptable premise that a duty to give aid is implied in Article 30,

(iii) it assumes that prohibiting a practice which would constitute discrimination under the Constitution would be inconsistent with the right conferred under Article 30(1).

(34) If Article 30 is construed as a part of a package of rights — keeping in view the delicate balance between the rights of the community generally and the rights of minority groups as is apparent from Article 25(2), Article 26, Article 27, Articles 28(1) and (3) then there is no problem in construing all these in harmony. Admission of students is a facet of the right to administer institution — insisting upon the constitutional imperatives of non-discrimination in the matter of admission of students does not in any manner run counter to (much less is destructive of) the right under Article 30. Problems arise when Article 30(1) is construed on the basic premise that it is absolute and therefore any conditions attached to the grant of recognition or the grant of aid are constitutionally impermissible.

(35) The grant of aid is not a constitutional imperative — the denial of aid cannot, therefore in any case, be considered as defeating the constitutional right. The right guaranteed under sub-article (2) of Article 30 is that aid will not be denied on the ground that it is under the management of a minority. The only right to aid (in its larger sense) is in Article 337. The founding fathers could have incorporated the right to aid in Article 30, if they were so minded — it is submitted that this cannot be done by judicial interpretation of these kinds of freedoms.

(36) If no aid is granted to anyone, Article 30(1) would not justify a demand for aid. It cannot then be said that absence of aid — or even its denial — makes the right under Article 30(1) illusory. The legality of denial of aid (on breach of conditions imposed generally as a condition of such grant) can be assailed only on the touchstone of Article 30(2).

(37) If an abject surrender of the right to management as such is made a condition of aid, then the denial of aid would be violative of sub-article (2) of Article 30. However, conditions of aid which do not involve a surrender of the right to management would not be inconsistent with the constitutional guarantees — even if they indirectly impinge upon some facet of administration. If therefore aid is denied on a ground other than the ground that it is under the management of a minority, it would be perfectly lawful.

(38) The test of direct infraction of the right is whether the condition of aid is designed to defeat or substantially deny the right of management. However, if the object of the condition is some other matter of national importance (i.e. marshalling resources of the State for developing backward areas, or providing reservation for Scheduled Castes and Scheduled Tribes), then the fact that it incidentally encroaches upon the location of the institution or admission of students — which may be facets of management, would not make the condition violative of Article 30(2).

(39) In any view of the matter, the content of right of management — which is a facet of the right to administer — does not encompass the right to mismanage. The Constitution, which confers upon minorities the right to establish and administer educational institutions, also confers upon all citizens the right not to be discriminated against, inter alia, on the grounds of religion or language in institutions aided by the State. This was consciously inserted, after understanding its implications, upon minority institutions. Thus requiring minority institutions, as a condition of aid, to eschew discriminatory practices cannot be inconsistent with the right of management. If this is so, then the question of reading down Article 29(2) to avoid a "conflict" does not arise.

(40) The submission on behalf of the petitioners that reservation for students of their own community does not constitute discrimination only on the ground of religion or language is contrary to the settled law on the subject. In State of Madras v. Champakam Dorairajan5 the Supreme Court held: (SCR p. 532)

"It may well be that the intention of the Constitution was not to introduce at all communal considerations in matters of admission into any educational institution maintained by the State or receiving aid out of State funds."       (emphasis supplied)

Dealing with the contention that the admission was not denied only because the petitioner was a Brahmin, this Court held (at SCR p. 533)

"so far as those seats are concerned, the petitioners are denied admission into any of them not on any ground other than the sole ground of their being Brahmins and not being members of the community for whom those reservations have been made".       (emphasis supplied)

The government order which made the reservations was therefore held to be "... opposed to the Constitution and constitutes a clear violation of ... Article 29(2)".

(41) In the State of Bombay v. Bombay Education Society6 the Supreme Court held: (SCR pp. 579-80)

"The language of Article 29(2) is wide and unqualified and may well cover all citizens whether they belonged to the majority or minority group. ... the protection of Article 29(2) extends against the State or anybody who denies the right conferred by it. Further 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 of the specified kind. ... Article 29(2) confers a special right on citizens for admission into educational institutions maintained or aided by the State."       (emphasis supplied)

(42) Rejecting the argument that it is the object underlying denial of admission that is relevant, this Hon'ble Court held: (SCR p. 584)

"Whatever the object, the immediate ground and direct cause for the denial is that the mother tongue of the pupil is not English. Adapting the language of Lord Thankerton, it may be said that the laudable object of the impugned order does not obviate the prohibition of Article 29(2)...."

(43) The observations in this judgment on SCR p. 586 are in no manner inconsistent with the proposition that Article 29(2) is not in any manner inconsistent with Article 30(1), or that there is no need to "balance" the two. The second question before this Hon'ble Court was whether the impugned order infringed the constitutional right of the school. The contention urged on behalf of the State was that the right under Article 29(1) and under Article 30(1) did not imply that minorities could question the power of the State to make reasonable regulations including a requirement that they impart instruction in a particular language which is regarded as the national language. Repelling this, this Hon'ble Court held:

"Where, however, a minority like the Anglo-Indian community, which is based, inter alia, on religion and language, has the fundamental right to conserve its language, script and culture under Article 29(1) and has the right to establish and administer educational institutions of their choice under Article 30(1), surely then there must be implicit in such fundamental right the right to impart instruction in their own institutions to the children of their own community in their own language. To hold otherwise will be to deprive Article 29(1) and Article 30(1) of the greater part of their contents. Such being the fundamental right, the police power of the State to determine the medium of instruction must yield to this fundamental right...."

(44) It cannot be gainsaid that the primary purpose of conferring rights under Article 29 and Article 30 was to insulate the minorities from undue legislative and executive interference in their endeavour to preserve their language, their script and their culture. One way of doing this was by way of establishing educational institutions — which is the right guaranteed under Article 30. As long as the institution is not aided by the State, the founders can certainly use it as an instrument to impart education to members of their own community. The moment it becomes an aided institution, it must yield to the larger constitutional principle of non-discrimination in the matters of admission — that is the express and conscious intent of Article 29(2).

(45) Secondly, the contention of the petitioners that there can be a numerical correlation between the grant of aid and the extent of operation of Article 29(2) is untenable. The constitutional mandate of Article 29(2) — described as a charter of liberty conferred upon the students — cannot be measured to the quantity of aid furnished to institution. The framers of the Constitution were well aware of Article 337 when they drafted sub-article (2) of Article 29 — they did not however correlate the principle of non-discrimination to the quantity of aid.

(46) An institution which receives aid, by description is an institution which is quasi-public in character and therefore cannot, by the mandate of Article 29(2), discriminate against any citizen on impermissible grounds. When an objection to as to the consequences of Article 29(2) upon institutions which receive small amounts of aid was raised in the Constituent Assembly, the response was that it is open to such institutions to decline aid. It is submitted that any interpretation which dilutes this charter of liberty in favour of students — at a time when this Hon'ble Court has held that the right to primary education is a constitutional right of every citizen, and in the face of the fact that the resources of the State are limited, would undermine the great constitutional principle of equality underlying sub-article (2) of Article 29. Secondly, administering any such rule is bound to create a situation of excessive State entanglement in the affairs of minority institutions.

PART II
SPECIFIC ISSUES RAISED BY PETITIONERS

1. Legislative intervention and minority rights

1.1. It is submitted that the contention that any form of legislative intervention in the administration of schools established and administered by minorities would ex hypothesi be violative of Article 30, is misconceived.

1.2. The basic premise underlying this contention is that Article 30 is absolute in character. For reasons already stated hereinbefore, the so-called absolute language of Article 30 is not determinative of its true construction.

1.3. The legislatures of the Union and the States were expressly bestowed with the power to legislate in respect of education (Entry 25 List II) and higher education (now the power of the State stands transferred from List II to List III thereby enabling the Union concurrently to legislate in respect of education). There is no limitation in respect of this legislative power with respect to any particular kind of institution.

1.4. Undoubtedly, the legislature cannot enact a law which will prohibit linguistic or religious minorities from establishing and administering educational institutions of their choice altogether. Legislation designed to attain neutral secular purposes which incidentally impinge upon the right to manage or establish educational institutions are admittedly not violative of Article 30 (i.e. the zoning laws, town planning laws, public safety laws etc.).

1.5. Similarly, laws establishing universities and school education boards, and laws regulating the conduct of the affairs of such bodies do not impinge upon Article 30.

1.6. If a minority educational institution seeks recognition, it must comply with all the general rules and regulations which apply generally to all schools and institutions. The only additional protection, recognised by a judicial interpretation of Article 30, is the grant of recognition, cannot be used as a device by the State to make laws or rules which would denude the minorities of the right conferred under Article 30. In other words, on the principle that what cannot be done directly cannot equally be attained indirectly, and conditions attached to recognition which seek to deprive minority educational institutions of their right to establish or the right to administer institutions so established by them, would be violative of Article 30.

1.7. It is submitted that the right to administer an institution has many dimensions — it is not any and every interposition upon the right to administer which constitutes an infringement of Article 30. Laws which are designed to secure good management have been consistently held to be within the permissible area of legislation vis-a-vis minority institutions. Thus legislation to provide security of tenure to the teaching staff and to other employees, as well as legislation to ensure maintenance of standards by minority institutions have been held to be valid.

1.8. It is submitted that Kerala judgment7 as well as St. Xavier's judgment8 accepted in principle that laws of the kind referred to hereinabove are in no manner inconsistent with Article 30. In fact as was held by Chief Justice Das in Kerala judgment7 inroads are permitted but they should not be destructive. The law laid down in Kerala judgment7 was reaffirmed on this point in St. Xavier's judgment8 (SCR at pp. 194-5, 197, 234-5, 237, 243).

2. Unaided schools — tests to determine validity of legislation

2.1. In respect of schools that are unaided but which merely seek recognition, legislative intervention by way of conditions of recognition are permissible as long as they satisfy the tests indicated hereinabove. This has been further explained in the two-post St. Xavier's judgments — in Gandhi Faiz e Azam College9 (SCR at pp. 820-22) and in Frank Anthony10

2.2. It is submitted that the difference between unaided minority schools on the one hand, and unaided schools established by religious denominations Article 26(a) or schools established by any other member of the community on the other hand, is that conditions for recognition can be challenged, by the former on the ground that they destroy the right of the minority to establish or administer educational institutions of their choice and thereby seek to attain indirectly what cannot be done directly.

2.3. A regulation made applicable to an educational institution established by a religious denomination (as a charitable institution), can be also challenged as being excessive and unreasonable if it completely negates the right of such religious denomination under Article 26(a) to "establish and maintain institutions for ... charitable purposes". Similarly such a law could be challenged as being violative of Article 19(1)(g) — in which event it could be upheld only if it is considered to be a reasonable restriction and in public interest. It is therefore not correct to suggest that the right to establish educational institutions have been conferred on minorities alone, and denied to the rest. (Observations in Mother Provincial judgment11 SCR at p. 739 do not appear to be correct.)

2.4. Different articles in Part III of the Constitution safeguard different facets of the rights of citizens and classes and sections of citizens. When a law is challenged as being violative of a particular provision of the Constitution, then its validity has to be tested on the anvil of the content of the right which it is alleged to have violated. Therefore if it is challenged as being violative of Article 30, then the relevant question to ask would be, is such a law destructive of the rights of minorities (religious/linguistic) to establish or administer educational institutions of their choice. If it is challenged as being violative of Article 26(a), the relevant question to ask would be is the law destructive of the right of every religious denomination or section thereof to establish and maintain institutions inter alia for charitable purposes. If it is challenged as being violative of Article 19(1)(g), the relevant question to ask would be does it impinge upon the right of the citizen to carry out any occupation (inter alia by way of imparting education) and if it does, is it a reasonable law and enacted in public interest.

2.5. The tests laid down in Kerala judgment7 and reiterated in St. Xavier's judgment8 are essentially relevant to the challenges under Article 30 of the Constitution.

3. Aided institutions

3.1. A distinction has to be drawn between aided institutions and unaided institutions in that conditions which are generally applicable for the grant of aid would apply to the minority institutions as well. As has been submitted earlier, it is only conditions that are designed to deny to the minorities, the rights conferred under sub-article (2) of Article 30, which would be unconstitutional. In other words, it is only conditions which virtually result in denial of aid on the ground that the institution is under the management of a minority that would run counter to sub-article (2) of Article 30. Non-disciminatory conditions other than those mentioned above would be perfectly legitimate and valid qua minorities, if they are generally valid.

3.2. In this context it is submitted that the tests laid down by Mr Justice Khanna in St. Xavier's judgment88 (referred to by the petitioners as the dual test at p. 236 B-D of the Report) is undoubtedly a relevant test but cannot be considered to be the exclusive test to determine the validity of conditions that may be attached to aid. If it is indeed meant to be the sole test — then it would require reconsideration.

3.3. It cannot be gainsaid that conditions to ensure proper utilisation of the aid, or to ensure excellence of the aided institutions are permissible conditions and would not be violative of Article 30. However this does not imply that all other conditions would necessarily be violative of Article 30. For example, where the aid is granted subject to general conditions (i.e. reservations for Scheduled Castes, or requiring the establishment of educational institutions in underdeveloped areas), it cannot be suggested that a denial of aid for breach of such conditions would be violative of Article 30 — yet neither of these conditions is of the kind which would qualify under the dual test rule.

4. Character of minority institutions — sprinkling of students

4.1. The contention that the character of the minority institutions would be maintained only if there is a "sprinkling" of outsiders — thereby implying that despite the grant of aid, minority institutions would be entitled to make reservations in favour of their own linguistic or religious communities so as to maintain their minority character, flows from a misreading of the observations of Mr Justice Das in Kerala judgment7. Kerala judgment7 at more than one place holds that Article 29(2) would apply to minority institutions which seek aid from the State. Repelling the argument that admission of outsiders would change the character of institution, Mr Justice Das observed — en passant, that the existence of a sprinkling of outsiders would not deprive the minority institution of its character. This observation was obviously based on a premise that by and large members of the majority community would not, by the very nature of things, insist upon admission of their children in minority institutions. It is submitted that even at present, the demand for admission into minority schools — particularly linguistic minority schools, by members other than those belonging to the minority is really in relation to the few minority institutions which have attained excellence. The real problem has arisen in relation to professional colleges and institutions — and they were not in focus when the aforesaid observations came to be made.

4.2. Based upon the observations referred to above, it was sought to be contended in Father Proost case12 that the concept of educational institutions embodied in Article 30 must be understood as institutions imparting either religious or linguistic education inter alia because by their very character, minority institutions would comprise only members of the community, with a sprinkling of outsiders. Repelling this argument, this Hon'ble Court held that too much should not be read into those observations, and further clarified that minority institutions were not those meant to cater to the needs of the minorities themselves, but the emphasis is on the needs of the citizens or a section thereof.

4.3. It is therefore submitted that it is not an accepted proposition of law that by its very character a minority institution is one which caters to the minorities alone, and therefore reservation for minorities is imperative to maintain their character as such.

PART III
SUMMARY OF ANSWERS TO THE 11 QUESTIONS

Ques. 1

What is the meaning and content of the expression "minorities" in Article 30 of the Constitution of India?

Ans. 1

Article 30 recognises minorities based on language or religion. Since reorganisation of the Indian States has been on linguistic lines linguistic minorities would have to be considered Statewise. Thus, linguistic majority in a particular State could be a minority in every other State.

The legislative history of these provisions also shows that concept of a minority was considered vis-a-vis States. There would be no reason to differentiate concept of a "religious minority" from a "linguistic minority". In any event, this is hardly of any practical significance since the same communities are religious minority in most of the States.

Ques 2.

What is meant by the expression "religion" in Article 30(1)? Can the followers of a sect or denomination of a particular religion claim protection under Article 30(1) on the basis that they constitute a minority in the State even though the followers of that religion are in majority in that State?

Ans 2.

At the outset, it is submitted that there is no need for this larger Bench to examine the question of whether one or the other groups (eg. Jains or Brahmo Samaj) constitutes a religion. There is no conflict in the earlier judgments, nor any of them is shown to be so erroneous as to require reconsideration.

The tests to ascertain what constitutes "religion" are well settled by the judgment of the Supreme Court in Aurovelle case13, Anand Margi case14 and Ramakrishna Mission case15 clearly lay down the correct tests. The difference in language between Article 26 and Article 30 shows that the members of a sect cannot avail the benefit of Article 30. Members of religious sects (majority or minority) have been conferred with similar rights under Article 26.

Ques. 3(a)

What are the indicia for treating an educational institution as minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority?

Ans. 3(a)

In order that an educational institution be regarded as a minority educational institution it must be "established" and "administered" by a minority.

The inclusion of non-minority members in the governing body would not per se detract from the minority character of the institution. A qualitative test would have to be applied to the facts of the case to determine whether any institution is genuinely established and is being administered by members belonging to a religious or linguistic minority or whether there is just a facade to claim the benefits of Article 30.

Ques. 3(b)

To what extent can professional education be treated as a matter coming under minorities' rights under Article 30?

Ans. 3(b)

The status of professional education as being covered by Article 30 is doubtful in that it is the case of some of the State Governments that Article 30 does not cover professional institutions. The role of the Union in respect of professional institutions is limited essentially to matters impinging upon standards of education. The Union is, therefore, not strictly concerned with this question.

There is no judgment of the Supreme Court which has squarely considered the question of whether professional institutions would fall within Article 30 — although on account of the language used in Article 30 "educational institutions of their choice", it has been held that institutions imparting secular education would also fall within Article 30. Therefore, as the law now stands, it may be difficult to exclude professional educational institutions from the protection of Article 30.

Ques. 4

Whether the admission of students to minority educational institutions, whether aided or unaided, can be regulated by the State Government or by the university to which the institution is affiliated?

Ans. 4

The provisions of Article 30 do not exclude the State regulation either in matters of administration or in the matters of standards of education. The extent of regulation etc., are dealt with at length in Part I and Part II of the submissions. In sum, the regulations which are education-neutral and which are enacted to subserve general secular objects do not impinge upon Article 30. Other regulations which directly deal with the facets of administration of educational institutions are valid as long as they are not destructive of the rights under Article 30. In particular, regulations to prevent maladministration and to ensure transparency and fairness in the process of administration (including admission of students even in unaided institutions) would be valid.

Ques. 5(a)

Whether the minority's rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?

Ans. 5(a)

Subject to the answer in Question 4, the educational institutions have the right to evolve a method or procedure of selection and admission of students.

However, as indicated above, the method of selection has to be transparent and honest and may be made subject to the State regulation to ensure its fairness. Further, aided institutions would be subject to Article 30(2).

Ques. 5(b)

Whether the minority institutions' right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid?

Ans. 5(b)

Once the institution receives aid, the institution becomes subject to discipline of Article 29(2) and no citizen can be denied admission into such an institution only on grounds of religion, race, caste, language or any of them. The judgment in St. Stephen's case4 is erroneous and it is submitted, requires reconsideration. This is dealt with at length in Part I and Part II.

Ques. 5(c)

Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees etc., would interfere with the right of administration of minorities?

Ans. 5(c)

The reply to this question is as submitted in Answer 4.

Ques. 6(a)

Where can minority institution be operationally located? Where a religious or linguistic minority in State 'A' establishes an educational institution in the said State, can such educational institution grant preferential admission/reservations and other benefits to members of religious/linguistic groups from other States where they are non-minorities?

Ans. 6(a)

Same as in answer to Question 1. Consistent with the answer to Question 1, it is obvious that admission to a religious group where they are not in a minority would run counter to the stated object and purpose of Article 30. Thus, for example, if Tamil-speaking people establish an engineering college in Punjab, obviously they cannot make reservations in favour of Tamils from Tamil Nadu.

Ques. 6(b)

Whether it would be correct to say that only the members of that minority residing in State 'A' will be treated as the members of the minority vis-a-vis such institution?

Ans. 6(b)

Same as answer to Question 6(a).

Ques. 7

Whether the member of a linguistic non-minority in one State can establish a trust/society in another State and claim minority status in that State?

Ans. 7

It must follow from the answer to Question 1 that a person who is "non-minority" in one State but a "minoriy" in the other State would have the right to establish an institution in the other State and claim minority status.

Ques. 8

Whether the ratio laid down by this Court in St. Stephen's case4 (St. Stephen's College v. University of Delhi) is correct? If no, what order?

Ans. 8

St. Stephen's case4 is wrongly decided to the extent that it finds a conflict between Article 29(2) and Article 30. As submitted at length in Part I and Part II, there is no conflict between these two provisions. Thus, the basis and reason underlying its ratio, is flawed. This judgment has directly been posed for reconsideration and it is the stand of the Union that this judgment should be overruled.

Ques. 9

Whether the decision of this Court in Unni Krishnan, J.P. v. State of A.P.16 (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/modification and if yes, what?

Ans. 9

It is not for the Court to frame a scheme as to how educational institutions should be administered as was done in Unni Krishnan case16. Whether there should or should not be free seats or other seats, whether there should or should not be capitation fees are all matters of policy for the Government to frame by legislation.

Secondly, the proposition that there can be no autonomy whatsoever in the matter of education does not appear to be correct. Undoubtedly, private profits from education may, as a matter of State policy, be excluded by law. However, the right to establish and administer an educational institution clearly flows from Article 19(1)(g), which confers a right not only to carry on trade or business but also to pursue an occupation — and imparting education is certainly an occupation. Thus an educational institution would be a vehicle or device to effectuate this right.

This right is however subject to reasonable restrictions in public interest. The extent of regulation of such a right can only be by proper legislation and not by executive fiat.

Education is essentially a matter for State policy. It is one thing for the Court to examine and pronounce upon the constitutional validity of a State law prohibiting capitation fee — however the Court cannot, it is respectfully submitted, issue directions by way of a scheme to administer educational institutions.

Ques. 10

Whether the non-minorities have the right to establish and administer educational institutions under Articles 21 and 29(1) read with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions?

Ans. 10

The majority also has a common law right to establish and administer educational institutions — on the fundamental legal premise that any legitimate activity that is not prohibited by law is permissible.

The right to establish educational institution may also be, to an extent, founded on Article 19(1)(g).

It is also available to every religious denomination or any section of every religious denomination under Article 26.

Therefore, there is no reason to conclude that it is a minority only who have right to establish an institution.

Ques. 11

What is the meaning of the expression "education" and "educational institutions" in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution?

Ans. 11

The word "education" must have the same meaning and content in the Seventh Schedule as well as Article 30. Thus, if a State has the power to legislate in respect of education, the State being a secular State the word education in Article 30 is confined to secular education.

There is no reason why a wide interpretation should be given to the concept of educational institution in Article 30 whereas other provisions should be construed narrowly. The question as to whether the right to establish educational institution generally, as guaranteed in the Constitution, is already covered by the reply to Questions 9 and 10.

PART IV
HISTORICAL BACKDROP

1. Framing of the articles

1.1 Enclosed is a list of dates of the evolution of the draft articles which ultimately culminated in the framing of Articles 29 and 30. The historical backdrop shows that these articles — like minority rights in most written, secular Constitutions — were developed as a carefully considered trade-off between the rights of citizens generally, the principles of equality and secularism and special provisions to safeguard minorities against apprehensions of majoritarianism. The provisions were meant to assure the minorities that the majority rule would not result in enforced assimilation — and that the minorities would have appropriate constitutional protection to preserve their identity and culture.

1.2 The same theme appears throughout the debates in the Constituent Assembly. What is significant however is the debate which focuses upon the introduction of sub-article (2) of Article 29.

1.2.1. On 8-12-1948, Pandit Thakur Das Bhargava along with Shri T.T. Krishnamachari (a member of the Drafting Committee) introduced the amendment to sub-article (2) of Article 23, which finally was enacted as Article 29(2). He asserted that this provision was meant to be "... a charter of liberties for the student world of the minority and the majority communities equally...". (Extracts from Constituent Assembly Debates submitted by the Solicitor-General, p. 145.) He stated "... there will be no discrimination between any member of the minority or majority insofar as admissions to educational institutions are concerned...". (Ibid.)

1.2.2. Hon'ble Dr Ambedkar also echoed a similar sentiment while speaking on 7-12-1948. Shri H.V. Kamath sought a clarification as to the position about schools run by a community or a minority for its own pupils — responding to which Dr Ambedkar said

"... if my friend Mr Kamath will read the other article he will see that once an institution whether maintained by the community or not, gets a grant, the condition is that it shall keep the school open to all communities. That provision he has not read...".

1.2.3. In this context it is submitted that the contention that the speech of Dr Ambedkar was on 7-12-1948 whereas the amendment was moved only on 8-12-1948 is erroneous for the reason that the draft of sub-article (2) of draft Article 23 must have been tabled by 7-12-1948 (as the rules required tabling amendments at least two days in advance). Moreover, the fact that the amendment was moved by Shri T.T. Krishnamachari, a member of the Drafting Committee jointly with Pandit Thakur Das Bhargava clearly proves that the said amendment was in the contemplation of the Drafting Committee. Thus Dr Ambedkar (a member of the Drafting Committee) accepted the said amendment without any comment when it was finally carried — there was absolutely no reference to it in his speech made at the conclusion of the debate.

1.2.4. In an obvious reference to the progenitor of Article 30(2), Dr Ambedkar said

"... the State, of course, is free to give aid, is free not to give aid; the only limitation we have placed is this, that the State shall not debar the institution from claiming aid under its grant-in-aid code merely on the ground that it is run and maintained by a community and not maintained by a public body...".

PART V
INTERNATIONAL UNDERSTANDING OF MINORITY RIGHTS

1. It is submitted that minority rights conferred in a written Constitution have to be construed keeping in view the historical background, the contextual setting as well as the textual framework. Each Constitution has its own genius evolved in the light of the experience of that country, and to further their own aspirations.

2. However, a glimpse at the international approach to minority rights — particularly in the context of religious minorities — does not suggest (in fact, tends to contradict the suggestion) that these rights have been construed as having a positive content thereby implying upon the State a duty to provide resources or to undertake "affirmative discrimination" in favour of religious minorities.

3. United States of America

3.1. The US Constitution, far from obliging the State to undertake measures of affirmative discrimination in favour of religious minorities, prohibits any kind of State aid or assistance which would further any religious interest.

3.2. The scheme of the US Constitution, as explained in some of the earlier judgments, is that there is a "wall of separation" between the Church and the State. The earlier decisions of the US Supreme Court frowned upon any kind of State aid or assistance to sectarian or parochial schools.

3.3. In Brown v. Board of Education a far-reaching principle of equality in the matter of education was laid down by the US Supreme Court, holding that where the State undertakes to provide opportunities, it is a right which must be made available to all on equal terms. On this principle the Court held that the separate but equal doctrine was inherently unequal. (98 L Ed 873 at pp. 880-81.)

3.4. In relation to parochial institutions, in Everson v. Board of Education the US Supreme Court held that the State could not pass laws which aid one religion, aid all religions, or prefer one religion over the others. Recalling the words of the Jefferson, the Court held (at L Ed p. 723) that there was "a wall of separation between Church and State".

3.5. The high point of the restrictive view, which limited State aid to Church-related schools, was in Lemon v. Kurtzman (29 L Ed 2d 745). The concurring opinion of Justice Douglas (Justice Black concurring with him) is however relevant for the present (at L Ed p. 767), it holds that "once one of the States finances a private school, it is dutybound to make certain that the school stays within secular bounds and does not use the public funds to promote sectarian causes".

3.6. The restrictive tests of how far the State could extend non-discriminatory secular assistance to parochial schools without violating the establishment clause were somewhat watered down in later judgments (and they are not very relevant for the present) — the observations in Norwood v. Harrison (37 L Ed 2d 723) are however relevant insofar as they demonstrate the approach towards interpretation of special rights. In that judgment it was held that the Constitution may compel toleration of private discrimination in some circumstances (minority rights would, it is submitted, be an example of these), but that would not mean that it requires State support of such discrimination. It went on to hold in that a school that closes its doors to the defined group of students manifests that its educational processes are based on the belief that segregation is desirable — it cannot then seek material aid from the State.

3.7. The leading judgments which lay down the more moderate view (which is the current trend) are: Agostini (138 L Ed 2d 391), reiterated in Guy Mitchell (147 L Ed 2d 660). The latter judgment holds that the grant of secular aid does not violate the establishment clause on the principle of neutrality that it is offered to all persons alike without regard to their religion somewhat similar in principle to Article 30(2).

4. South Africa

4.1. The Constitutional Court of South Africa, in the case of Gauteng Provincial Legislature (annexed in the compilation of South African cases submitted by the Solicitor-General), interpreting a similar constitutional protection in favour of minorities discussed (in the opinion of Justice Sachs) the international perception of such rights, and arrived at the conclusion that it falls far short of imposing a firm duty on the State to promote separated development of minorities (as opposed to the duty of preventing discrimination against them, where there is a high level of responsibility). It comes nowhere near supporting a State duty to establish separate schools.

5. Canada

5.1. The Canadian Constitution expressly incorporates Section 93 which is a special provision for continuance of State aid to certain religious schools. This is based on historical reasons relating back to the very establishment of the Confederation, which have been explained in the Canadian judgments (these are in the volume of Canadian judgments filed by the Solicitor-General).

6. Europe

6.1. The latest document constituting the first legally binding multilateral instrument for protection of national minorities in general is the Framework Convention for the Protection of National Minorities, 1995. Article 13 of this Framework only recognizes the right of the minorities to set up and manage their own educational institutions. It does not impose any positive obligation on the State to support them.

1. Nathdwara temple case (Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, (1964) 1 SCR 561 Return to Text
2. Article 25(2) Return to Text
3. Sidhajbhai Sabhai v. State of Bombay, (1963) 3 SCR 837 Return to Text
4. St. Stephen's College v. University of Delhi, (1992) 1 SCC 558 Return to Text
5. 1951 SCR 525 Return to Text
6. (1955) 1 SCR 568 Return to Text
7. Kerala Education Bill, 1957, In re, 1959 SCR 995 Return to Text
8. Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717 Return to Text
9. Gandhi Faiz e Azam College v. University of Agra, (1975) 2 SCC 283 Return to Text
10. Frank Anthony Public School Employee's Assn. v. Union of India, (1986) 4 SCC 707 Return to Text
11. State of Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417 Return to Text
12. Rev. Father W. Proost v. State of Bihar, (1969) 2 SCR 73 Return to Text
13. S.P. Mittal v. Union of India, (1983) 1 SCC 51 Return to Text
14. Acharya Jagdishwaranand Avadhuta v. Commr. of Police, (1983) 4 SCC 522 Return to Text
15. Bramchari Sidheswar Shai v. State of W.B., (1995) 4 SCC 646 Return to Text
16. (1993) 1 SCC 645 Return to Text