A minority community can preserve its language, script or culture by and through educational institutions. Therefore, the right to establish and maintain institutions of their choice is necessary concomitant to the right to preserve, its distinctive language, script or culture.
According to Article 29 (2), no citizen is to be denied admission in any educational institution maintained by the State or receiving aid out of State fund on grounds only of religion, race, caste, language or any of them.
According to Article 15 (4) the State is not, however, prevented from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes.
Article 29 (2) guarantees the right of an individual citizen as a citizen irrespective of the community to which he belongs. Article 29 (2) is quite general and wide in terms and applies to all citizens whether they belong to majority or minority groups.
The State cannot direct such schools to restrict admission to the members of their own community. In State of Madras vs. Champakam Dorairajan, AIR 1951 S.C. 226, an order of Madras Government had fixed the proportion of students of each community that could be admitted into the State Medical and Engineering colleges.
This order was challenged on the ground that it denied admission to a person only on the ground of religion or caste. The petitioners in the case were denied admission only because they were Brahmins. The Supreme Court held the order invalid for being violative of Article 29 (2).
Another important case on the application of Article 29 (2) is State of Bombay v. Bombay Educational Society, AIR 1954 S.C. 561. In this case Supreme Court struck down the order of the Bombay Government banning admission of those where language was not English into schools having English as a medium of instruction because it denied admission solely on the ground of religion. The court said the order could not be valid even if the object for making it was the promotion or advancement of national language.
Right of Minorities to establish and Manage Educational Institutions:
Article 30 (1) guarantees to all linguistic and religious minorities the right to establish and administer educational institutions of their own choice. This right is conferred on a linguistic and a religious minority.
It is left to the choice of the minority to establish such educational institutions as will serve the purpose of conserving their religion, language or culture and also the purpose of giving a thorough, good and general education to their children.
A minority like the Anglo-Indian which is based, inter alia, on religion and language, has a right to import instruction in its own institution to the children of its own community in its own language. Such being the fundamental right, the power of the State “to determine the medium of instruction” must yield to it to the extent it is necessary to give effect to it and cannot be permitted to run counter to it.
In D.A.V. College, Bhatindav. State of Punjab, AIR 1971 S.C. 1731, the university declared that Punjabi would be the sole medium of instruction in the affiliated colleges. The court held that the right of the minority to establish and administer educational institutions of their choice includes the right to have a choice of medium of instructions also and the university circular was directly infringing upon the rights of minorities to have instructions in Hindi as their own language and, therefore, was violative of Articles 29 (1) and 30 (1) of the Constitution. The right under Article 30 (1) is available to both the pre-Constitution and post-Constitution Institutions.
In State of Bihar v. Syed Asad Raza, AIR 1997 S.C. 2425, it has been held that for creation of post in a minority institution for appointment, prior approval of Vice-Chancellor is not necessary and the persons so appointed would be entitled to grant in aid in view of Article 30(1) of the Constitution.
The fundamental right to establish and administer educational institution by minorities guaranteed under Article 30 (1) of the Constitution Is in absolute terms. It is not subject to any reasonable restrictions of the nature provided in Article 19 of the Constitution.
Any law or executive direction which seeks to infringe the substance of that right under Article 30 (1) of the Constitution would to that extent be void. Making regulations in the interest of efficiency of instructions, discipline, health and sanitation, morality, public order and the like, are not restrictions which may be imposed undoubtedly.
Such regulations are not restrictions on the substance of the right which are guaranteed to the linguistic and religious minorities. The object behind the aim is to secure the proper functioning of the institutions in educational matters.
Governmental Power to regulate Minority Institution
In All Saints High School v. Government of Andhra Pradesh, AIR 1980 S.C. 1904, the A.P. Educational Institutions Act, 1975, provided that no teacher employed in any private educational institution shall be dismissed, removed or reduced in rank without the prior approval of the competent authority.
The Supreme Court held that such provisions were regulatory and were not violative of Article 30 (1) of the Constitution as they did not deny the management the right to proceed against the erring teacher. It only regulated that the suspended teacher must be given opportunity for hearing.
In Y. Theclamma vs. Union of India, (1987) 2 S.C.C. 516, the Supreme Court has held the provision to take prior approval of Director of Education in case of suspension of a teacher of minority institution is not arbitrary as it did not interfere the right of management to take disciplinary action.
The Supreme Court has held in A.P. Christian Medical Educational Society v. Govt. of Andhra Pradesh. (1986) 2 S.C.C. 667, that where a minority institution is established not for imparting education to the children of their community but for commercial purposes, the protection of Article 30 of the Constitution will not be available to such institution.
In Sidhraj Bhai vs. State of Gujarat. AIR 1963 S.C. 540, the Supreme Court held that Regulations can be made to prevent the housing of an educational institution in unhealthy surroundings or for preventing the setting up and continuation of an institution without qualified teachers.
The right guaranteed under Article 30 (1) Is subject to Article 29 (2) which lays down that no citizen shall be denied admission into any educational institution maintained or aided by the State on the grounds only of religion, race, caste, language or any of them.
So such an institution cannot refuse admission to a member of any other community. It will not cease to be a minority institution merely by admitting members of other communities.
The Constitution (44th Amendment Act, 1978) has inserted a new clause (1-A) to Article 30 which provides that in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority referred to 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 this clause.
Clause (2) of Article 30 of the Constitution prohibits the State from making discrimination in the matter of grant of aid to any educational institution on the ground that it is managed by a religious or linguistic minority.