Article 29: The Right to Conserve

Set the two side by side and the asymmetry is on the page. Clause (1) speaks of a section. Clause (2) speaks of a citizen. Neither uses the word "minority" at all.

Clause (1), broken down

"Any section of the citizens." Not "any minority". A section is a body of people, of any size, that can be identified. A group that is a majority in its State can claim clause (1) if it has something distinct to conserve. This is the single most examined point in the article and the one most often stated wrongly.

"Residing in the territory of India or any part thereof." Two things follow. The claimants must be citizens, so the article is not available to foreigners running an institution here. And they need not be spread across India; a section in one district qualifies.

"Having a distinct language, script or culture of its own." Three separate qualifications, and any one is enough. A language need not have a script of its own: in the D.A.V. College litigation the Court accepted that people speaking a language with no script are still a linguistic minority, and that report has not been read here, so it is named without a citation. "Culture" is undefined and is wider than either of the others.

"Shall have the right to conserve the same." To conserve is to keep in being. The right is protective, not acquisitive: it does not oblige the State to fund the conservation. But the Court has held that a distinct language, script or culture "can best be conserved by and through educational institutions", which is the bridge from article 29(1) to article 30(1).

Clause (2), broken down

"No citizen shall be denied admission." An individual right, enforceable by the candidate refused, not by a community.

"Into any educational institution maintained by the State or receiving aid out of State funds." Two classes only. A wholly private, unaided institution is outside clause (2) altogether. The moment it takes aid, it comes in.

"On grounds only of religion, race, caste, language or any of them." Four grounds, and the word carrying the weight is "only". Refusal for a reason other than those grounds is untouched by the clause, and the eleven-judge Bench has since held that the word "is of considerable significance and has been used for some avowed purpose".

Two comparisons repay a minute. First, the list is not the list in article 15(1), which forbids discrimination on grounds only of religion, race, caste, sex or place of birth. Article 29(2) adds language and drops sex and place of birth. Second, unlike article 15, article 29(2) carries no enabling clause of its own permitting special provision for backward classes; that is why the amendments discussed in [After the Eleven-Judge Answer] had to be made to article 15 rather than to article 29.

The asymmetry, stated plainly

Neither clause requires the claimant to be a minority. Article 30(1), which comes next, does. That single difference is why the two articles are not interchangeable, and why an answer that treats "articles 29 and 30" as one guarantee loses marks.

The case on clause (1) and the sprinkling of outsiders

Facts. In Re The Kerala Education Bill, 1957, (1959) 1 SCR 995, decided 22 May 1958, was a Presidential reference under article 143(1) on a Kerala Bill imposing wide control over aided and recognised schools. One argument put to the Court was that article 30(1) protects an institution only while it is confined to its own community, so that a minority school which took State aid, and was therefore obliged by article 29(2) to admit others, would stop being a minority school.

Held. That argument was rejected. "The real import of Art. 29(2) and Art. 30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution." The Court added that the object of conserving a minority's language, script and culture "may be better served by propagating the same amongst non-members". On the reach of article 30(1) itself, the Court held the right is not limited to institutions teaching religion or the group's language: it covers "institutions imparting general secular education also", the key words being "of their choice".

Why it matters. It is the earliest reconciliation of the two clauses, and it decides the practical question a school actually faces. Aid does not destroy minority character. The alternative reading, which the Court set out and refused, was that a minority institution taking aid would be entitled to no aid as a minority institution at all, which is a self-defeating construction.

The case on clause (2)

Facts. St. Stephen's College v. University of Delhi, 1992 AIR 1630, 1992 (1) SCC 558, decided 6 December 1991 by five judges. The College, affiliated to Delhi University, ran its own admission scheme: a cut-off percentage per subject, a list of candidates called for interview in a fixed ratio to seats, and a relaxation of up to ten per cent in the cut-off for Christian applicants. The University issued two circulars in June 1980 requiring admission purely on marks in the qualifying examination, with no interview. The College petitioned under article 32; the Students' Union and others petitioned to make it obey. Connected appeals concerned the Allahabad Agricultural Institute, whose reservation for Church-sponsored Christian students the Allahabad High Court had declared contrary to article 29(2).

Held. Three questions were framed: whether the College is a minority institution, whether it is bound by the circulars, and whether preference for its own community offends article 29(2). The copy of the report held here runs to paragraph 55, so the answers to the third question are taken from the eleven-judge Bench's own account of the case. On what is in our copy, the Court held that administration under article 30(1) "must be free from control so that the founder or their nominees can mould the institution as they think fit", but that "the standard of education are not a part of the management as such", and minority institutions "cannot decline to follow the general pattern of education under the guise of exclusive right of management". As recorded in T.M.A. Pai, the Court held the College to be a minority institution, upheld its admission procedure by four to one, and held that an aided minority institution may preferably admit its own community candidates, the intake in that category "not to be more than 50% in any case". Its proposition on the two articles was that "the fact that Article 29(2) applies to minorities as well as non-minorities does not mean that it was intended to nullify the special right guaranteed to minorities in Article 30(1)".

Why it matters. It is the case that had to decide what happens when the individual right in clause (2) meets the group right in article 30(1), and its answer was a numerical compromise. The compromise did not survive: the eleven-judge Bench accepted the basic ratio and rejected the rigid fifty per cent, holding that the percentage must vary with the type of institution and the educational needs of the area.

A worked example

Mary applies to an aided college run by a Muslim minority trust in Mumbai. She is refused. Ask the questions in order.

Step one, is the institution within article 29(2)? Only if it is maintained by the State or receives aid out of State funds. It is aided, so yes. Had it been wholly unaided, clause (2) would not apply at all.

Step two, on what ground was she refused? If the college says her marks were below the cut-off, clause (2) is not engaged, because the ground is not one of the four.

Step three, if the ground was that she is not a Muslim? Then the refusal is on the ground of religion, and clause (2) is prima facie violated.

Step four, is there an answer? Yes, and it is article 30(1). On St. Stephen's and T.M.A. Pai, admitting minority candidates preferentially to preserve the institution's character is not a denial "only" on the ground of religion. But the preference is capped: the college must admit non-minority citizens to a reasonable extent fixed by reference to the level of the institution and the needs of the area.

Step five, could Mary have used article 29(1)? No. Clause (1) is about conserving a language, script or culture; it gives nobody a right of admission anywhere.

What it does NOT mean

Article 29(1) is not a minority right. The heading says "minorities" and the text says "any section of the citizens". Where a heading and the operative words differ, the words govern.

Article 29(2) does not protect only minorities. It protects every citizen, which is why a member of the majority community refused admission by a minority college can invoke it, and why the clash with article 30(1) arises at all.

Article 29(2) is not the same as article 15(1). The grounds differ: article 29(2) includes language and omits sex and place of birth.

Article 29(2) does not reach an unaided private institution. It is confined to institutions maintained by the State or receiving aid out of State funds.

Quick revision

• Article 29 sits under "Cultural and Educational Rights" and is headed "Protection of interests of minorities". Only clause (2) mentions no minority, and neither clause uses the word.
• Clause (1): any section of citizens with a distinct language, script or culture may conserve it. Minority status is not required.
• Clause (2): no citizen shall be denied admission to a State-maintained or State-aided institution on grounds only of religion, race, caste, language or any of them.
• "Only" is the operative word in clause (2), and the eleven-judge Bench has said so.
• Article 29(2) grounds differ from article 15(1): language is added, sex and place of birth are absent.
• Kerala Education Bill: articles 29(2) and 30(1) "contemplate a minority institution with a sprinkling of outsiders"; aid does not destroy minority character.
• St. Stephen's: the College is a minority institution, its own admission procedure was upheld, and preference for its own community was allowed up to fifty per cent. The rigid percentage was later rejected.
• A distinct culture is best conserved through educational institutions, which is how article 29(1) leads into article 30(1).

Test yourself

1. Quote article 29(1) and article 29(2) and identify every difference in the persons each protects.

2. Why is the heading to article 29 a poor guide to its content?

3. What work does the word "only" do in article 29(2)?

4. Compare the grounds in article 29(2) with those in article 15(1). What is added and what is missing?

5. What did the Kerala Education Bill opinion mean by "a sprinkling of outsiders", and what argument was it answering?

6. An unaided private college refuses admission on grounds of caste. Can article 29(2) be invoked? Give reasons.