Articles 29 and 30: Minorities

And article 30 is not confined to religious minorities. Linguistic minorities hold it equally, and the article says so.

The relationship between 29(2) and 30(1), which is the hard part

The tension is real and is worth stating plainly.

Article 30(1) lets a minority establish and administer an institution of its choice, which suggests it may admit its own community.

Article 29(2) says no citizen shall be denied admission to an institution receiving State aid on grounds only of religion, race, caste or language.

The resolution turns on aid. An unaided minority institution is outside article 29(2) and may fill its seats in accordance with its minority character. An aided minority institution is within article 29(2), so it cannot refuse a citizen admission on a listed ground, though it may reserve a reasonable proportion of seats for its own community consistently with its character.

Article 15(5) then enters, permitting the State to make special provision for backward classes in admissions to private institutions, other than minority institutions under article 30(1), which is the express constitutional carve-out.

Why these articles are on a human rights paper

They are the Constitution's group rights, and they sit awkwardly beside a Part III otherwise built on individual claims.

They are the answer to a real problem: a majority acting entirely through neutral, individually equal rules can extinguish a minority language or culture within two generations without ever discriminating against any individual.

And they show the Indian conception of equality, which accepts that formal equal treatment is not always equal treatment, the same premise that carries articles 15(3) to (6) and 16(4).

The international correspondence

Article 27 of the Civil and Political Covenant: in States where ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Article 26 of the Universal Declaration gives parents a prior right to choose the kind of education given to their children.

Article 2 of the Convention on the Rights of the Child forbids discrimination on grounds including language, and article 30 protects the right of a child of a minority or indigenous origin to enjoy their own culture, profess and practise their own religion, and use their own language.

The Indian articles go further than article 27 of the Covenant, because article 27 is framed negatively as a right not to be denied, while article 30 confers a positive right to establish and administer institutions, backed by article 30(2)'s guarantee of non-discrimination in aid. That is a fair point in India's favour in a Module IV answer.

Worked example

A question on minority rights or on the group rights in the Constitution.

Give article 29(1) and stress that it says any section of the citizens, so it is not confined to minorities despite the marginal note.

Give 29(2) and compare its grounds with article 15(1), noting language in one and sex and place of birth in the other.

Give article 30 with its four features, especially the absence of a restriction clause and the conjunctive establish and administer.

Give the 29(2) against 30(1) tension and resolve it on aid.

Note the article 15(5) carve-out.

Close on article 27 of the Covenant and say that article 30 goes further, because it is positive where article 27 is negative.

What it does NOT mean

It does not mean article 29 is a minority right. Clause (1) belongs to any section of citizens; only the marginal note says minorities.

It does not mean article 30 is absolute. The State may regulate for educational standards without destroying the minority character.

And it does not mean a minority institution may exclude everyone else. If it takes State aid, article 29(2) applies to it.

Quick revision

• 29(1): any section of the citizens with a distinct language, script or culture has the right to conserve it. Not confined to minorities, whatever the marginal note says.
• 29(2): no citizen denied admission to an institution maintained by the State or receiving aid on grounds only of religion, race, caste, language. Compare article 15(1): language is here and not there; sex and place of birth are there and not here.
• 30(1): all minorities, whether based on religion or language, may establish and administer educational institutions of their choice. No restriction clause. Establish and administer is conjunctive. Minority is judged at State level.
• 30(1A): compulsory acquisition, the amount fixed must not abrogate the right. 30(2): no discrimination in aid on the ground of minority management.
• The 29(2) against 30(1) tension resolves on AID: an unaided minority institution is outside 29(2); an aided one is within it.
• Article 15(5) expressly excepts minority institutions under article 30(1).
• Correspondence: article 27 of the Covenant, framed negatively; article 26 of the Declaration; articles 2 and 30 of the Convention on the Rights of the Child. Article 30 goes further than article 27.

Test yourself

1. Who holds article 29, and how do its two clauses differ? Clause (1) belongs to any section of the citizens residing in the territory of India or any part of it having a distinct language, script or culture of its own, and gives them the right to conserve it. The words are any section of the citizens, so it is not a minority right: a majority community with a distinct language, script or culture holds it too. The marginal note describes the article as protecting the interests of minorities, and the marginal note does not control the text. It is also a group-facing right, the interest protected being the conservation of a shared language, script or culture.

Clause (2) is different in kind. It is an individual right, held by any citizen, not to be denied admission into an educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Its grounds are worth comparing with article 15(1), because the lists are not the same: language appears in article 29(2) and not in article 15(1), while sex and place of birth appear in article 15(1) and not in article 29(2). And its reach is limited by funding: a wholly private institution that is neither maintained by the State nor aided out of State funds falls outside it entirely.

2. Set out article 30, and explain how its tension with article 29(2) is resolved. Article 30(1) provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Clause (1A) requires that, where a law provides for the compulsory acquisition of the property of such an institution, the amount fixed by or determined under that law must not be such as would restrict or abrogate the right. Clause (2) forbids the State, in granting aid, to discriminate against any educational institution on the ground that it is under the management of a minority. Four features matter: the article carries no restriction clause on its face, so the extent of permissible regulation has had to be worked out by construction; establish and administer is conjunctive, so a minority must have established the institution to claim the right to administer it; minority status is judged at the State level for a State law, since composition varies; and the article covers linguistic as well as religious minorities in terms.

The tension with article 29(2) is that article 30(1) suggests a minority institution may admit its own community, while article 29(2) forbids denying a citizen admission to an aided institution on grounds of religion or language. The resolution turns on aid. An unaided minority institution is outside article 29(2) altogether and may fill its seats consistently with its minority character. An aided minority institution is within article 29(2) and cannot refuse a citizen admission on a listed ground, though it may reserve a reasonable proportion of seats for its own community so as to preserve the character the article protects. Article 15(5) then supplies an express carve-out, permitting the State to make special provision for backward classes in admissions to private institutions other than minority institutions referred to in article 30(1).

3. How do these articles compare with the international standards? Article 27 of the Civil and Political Covenant is the closest counterpart: in States where ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. Article 26 of the Universal Declaration gives parents a prior right to choose the kind of education given to their children. Article 2 of the Convention on the Rights of the Child forbids discrimination on grounds including language, and article 30 of that Convention protects the right of a child of minority or indigenous origin to enjoy their own culture, to profess and practise their own religion, and to use their own language.

The Indian provisions go further than article 27 in an important respect, and this is a fair point to make in India's favour. Article 27 is framed negatively, as a right not to be denied, which imposes an obligation of non-interference rather than of provision. Article 30(1) confers a positive right to establish and administer educational institutions, and article 30(2) backs it by forbidding discrimination in the grant of aid on the ground of minority management. So where the Covenant guarantees that a minority may be left alone to use its language, the Constitution guarantees that it may build and run the institutions through which the language is transmitted, and that the State may not withhold aid because it does so.