Safeguards for Linguistic Minorities

The States Reorganisation Commission, 1956 (SRC, 1956) felt the provision under Article 350 to submit a representation in any of the languages used in the Union or in the States was not enough to protect the interests of the linguistic minorities and recommended for safeguards for linguistic minorities to learn their mother tongues and to use in the administration. Learning through mother tongue was more important to preserve and develop these minority languages. Accordingly, Article 350A was added to the Constitution through the Constitution (Seventh Amendment) Act, 1956. Subsequently, a Scheme of Safeguards was evolved at all India level from time to time at various fora like the Education Ministers’ Conference, 1949; Government of India Memorandum, 1956; Southern Zonal Council Decisions, 1959; Chief Ministers’ Conference, 1961 and Meeting of the Committee of Vice-Chairmen of Zonal Councils, 1961 to protect and promote the minority languages through a consensual mechanism. It has been observed that even after several decades most of the States/UTs have not notified the safeguards provided for linguistic minorities. It is, therefore, the States/UTs are urged to notify the safeguards provided for linguistic minorities in their respective States.

Article 26(a) and (b) of the Constitution

“26. The right to establish and maintain educational institutions may also be sourced to Article 26(a), which grants, in positive terms, the right to every religious denomination or any section thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality and health. Education is a recognised head of charity. Therefore, religious denominations or sections thereof, which do not fall within the special categories carved out in Article 29(1) and 30(1), have the right to establish and maintain religious and educational institutions.”

In Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr., (1963) 3 SCR 837, the Court again considered the matter and observed that educational institutions cater to the needs of the citizens or section thereof. Regulation made in the real interests of efficiency of instruction, discipline, health, sanitation, morality, public order, and the like may undoubtedly be imposed. Such regulations are not restrictive on the substance of the right, which is guaranteed, they secure the proper functioning of the institution in the matter of education. It was also observed that regulation must satisfy a dual test ­ the test of reasonableness and that it is regulative of the educational character of the institution and is conducive to making the institution a capable vehicle of education for the minority community or other persons who resort to it. In Rev. Father W. Proost and Ors. v. State of Bihar and Ors., AIR 1969 SC 465, the Court observed thus:

“8. In our opinion, the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter article is a general protection which is given to minorities to conserve their language, script, or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve language, script, or culture, and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30(1) since no such limitation is expressed and none can be implied. The two articles create two separate rights, although it is possible that they may meet in a given case.”
22. In Ahmedabad St. Xavier’s College Society and Anr. v. State of Gujarat and Anr., (1974) 1 SCC 717, a college was run by the minority.

A Bench of 9­Judges of this Court considered the question whether Sections 40 and 41 of the Gujarat University Act, 1949 violated Section 30, which provided all colleges within the University area would be governed by the statutes of the University which may provide for minimum educational qualifications for teachers and tutorial staff.

The University may approve the appointments of teachers to coordinate and regulate the facilities provided and expenditure incurred. The Court opined that regulation which serves the interests of the teachers are of paramount importance in good administration, education should be a great cohesive force in developing integrity of the nation, thus:

“19. The entire controversy centres round the extent of the right of the religious and linguistic minorities to administer their educational institutions. The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims, and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.
20. The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly, regulatory measures are necessary for ensuring orderly, efficient, and sound administration. Das, C.J., in the Kerala Education Bill case (supra) 1959 SCR 995: AIR 1958 SC 956, summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to mal­administer.

1. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important. The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks, and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. The right to administer is to be tempered with regulatory measures to facilitate smooth administration. The best administration will reveal no trace or colour of minority. A minority institution should shine in exemplary eclectism in the administration of the institution. The best compliment that can be paid to a minority institution is that it does not rest on or proclaim its minority character.

In Secretary, Malankara Syrian Catholic College v. T. Jose and Ors., (2007) 1 SCC 386, Court considered T.M.A. Pai Foundation (supra), and held that all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also, but dilution of right under Article 30 is not permissible. The right under Article 30 is not above the law. The regulations or conditions concerning the welfare of the students and teachers should be made applicable to provide a proper academic atmosphere.

The rights under Articles 19(1)(g) and 30 read with Articles 25, 26 and 29(1) of the Constitution of India do not come in the way of securing transparency and recognition of merits in the matter of admissions. It is open to regulating the course of study, qualifications for ensuring educational standards. It is open to imposing reasonable restrictions in the national and public interest.

The rights under Article 19(1)(g) are not absolute and are subject to reasonable restriction in the interest of the student’s community to promote merit, recognition of excellence, and to curb the malpractices.

Uniform Entrance Test qualifies the test of proportionality and is reasonable. The same is intended to check several maladies which crept into medical education, to prevent capitation fee by admitting students which are lower in merit and to prevent exploitation, profiteering, and commercialisation of education. The institution has to be a capable vehicle of education. The minority institutions are equally bound to comply with the conditions imposed under the relevant Acts and Regulations to enjoy affiliation and recognition, which apply to all institutions. In case they have to impart education, they are bound to comply with the conditions which are equally applicable to all. The regulations are necessary, and they are not divisive or disintegrative. Such regulatory measures enable institutions to administer them efficiently. There is no right given to maladminister the education derogatory to the national interest. The quality of medical education is imperative to sub­serve the national interest, and the merit cannot be compromised. The Government has the right for providing regulatory measures that are in the national interest, more so in view of Article 19(6) of the Constitution of India.

1. The rights of the religious or linguistic minorities under Article 30 are not in conflict with other parts of the Constitution. Balancing the rights is constitutional intendment in the national and more enormous public interest. Regulatory measures cannot be said to be exceeding the concept of limited governance. The regulatory measures in question are for the improvement of the public health and is a step, in furtherance of the directive principles enshrined in Articles 47 and 51(A)(j) and enable the individual by providing full opportunity in pursuance of his objective to excel in his pursuit. The rights to administer an institution under Article 30 of the Constitution are not above the law and other Constitutional provisions. Reasonable regulatory measures can be provided without violating such rights available under Article 30 of the Constitution to administer an institution. Professional educational institutions constitute a class by themselves. Specific measures to make the administration of such institutions transparent can be imposed. The rights available under Article 30 are not violated by provisions carved out in Section 10D of the MCI Act and the Dentists Act and Regulations framed by MCI/DCI. The regulatory measures are intended for the proper functioning of institutions and to ensure that the standard of education is maintained and does not fall low under the guise of an exclusive right of management to the extent of maladministration. The regulatory measures by prescribing NEET is to bring the education within the realm of charity which character it has lost. It intends to weed out evils from the system and various malpractices which decayed the system. The regulatory measures in no way interfere with the rights to administer the institution by the religious or linguistic minorities.