Fundamental Duties

Fundamental Duties

The new part which consists of only one Art. 51-A was added to the

constitution by the 42nd Amendment, 1976. This Article for the first time

specifies a code of ten fundamental duties for citizens. Art. 51-A says that it

shall be the duty of every citizen of India:

(a) To abide by constitution and respect its ideals and institutions, the National

Flag and National Anthem;

(b) To cherish and follow the noble ideals which inspired our national struggle

for freedom;

(c) To uphold and protect and sovereignty, unity and integrity of India;

(d) To defend the country and render national service when called upon to do

so;

(e) To promote harmony and the spirit of common brotherhood amongst all the

people of India transcending religious, linguistic and regional or sectional

diversities; to renounce practices derogatory to the dignity of women;

(f) To value and preserve the right heritage of our composite nature;

(g) To protect and improve the natural environment including forests, lakes,

rivers and wild life, and to have compassion for living creature;

(h) To develop the scientific temper, humanism and the spirit of inquiry and

reform;

(i) To safeguard public property and to abjure violence;

(j) To strive towards excellence in all spheres of individual and collective

activity so that the nation constantly rises to higher levels of endeavour and

achievements.

The constitution (86th amendment) Act, 2002 has added a new clause (k) to Art.

51-A which provides “who is parent or guardian to provide opportunities for

education to his child or as the case be, ward between the age of six and

fourteen years”.

Needs for Fundamental Duties:- Rights and duties are correlative. The

Fundamental Duties are, therefore, indeed to serve as a constant reminder to

every citizen that while the Constitution specifically conferred on them certain

Fundamental Rights, it also requires citizens to observe certain basic norms of

democratic conduct and democratic behaviour. It was claimed by the ruling

party the congress, that what the framers failed to do was being done now. The

omission is being rectified by providing a chapter on citizen’s duties. It was

argued that in India people lay emphasis only on rights and not on duties.

It is submitted that this view is wrong. The performance of one’s duties even in

partial disregard of one’s rights and privileges has been traditional in this

country. Since time immemorial the emphasis in Indian society in accordance

with the dictates of the ancient scriptures has been on the individual’s

“Kartavya”, this is,performance of one’s duties towards society, the country and

especially towards one’s parents. The Gita and Ramayana enjoin people to

perform their duties without caring for their rights or fruits.

These traditional duties have been given constitutional sanction. “If one takes

care to see, he will discover in the constitution not only his rights but also his

duties. A look at the constitution will also thus answer the complaint of some

persons that constitution has conferred rights on the individual but has not set

out the duties of the individuals towards the society. The Preamble of the

Constitution secures to all the citizens: “liberty of thought, expression, belief,

faith and worship.” These are fundamental rights of the citizens. The rest of the

Preamble emphasises only the duties, “justice, socio economic and political”. In

addition to this, the fundamental rights guaranteed by the Constitution are not

absolute rights. The state is empowered to impose reasonable restriction and

curtail these rights in the interest of society. Restitutions may sometimes

amount to prohibition.

Enforcement of Duties:-the duties incorporated in the constitution by the 42nd

Amendment are statutory duties and shall be enforceable by law. Parliament, by

law, will provide penalties to be imposed for failure to fulfil those duties and

obligations. The success of this provision would, however, depend much upon

the manner in which and the person against whom these duties would be

enforced.

For the proper enforcement of duties, it is necessary that it should be known to

all. Most of the people of this country are illiterate and not politically conscious

what they owe to society and country. Homes, universities, officers and their

places of work should all be made centres for imparting in the performance of

their obligations.

In M.C.Mehtavs Union of India: (1983) 1 SCC 471, the SC has held that

u/Art. 51-A(g) it is the duty of the central government to introduce compulsory

teaching of lessons at least for one hour in a week on protection and

improvement of natural environment in all the educational institutions of the

country. It directed the central government to get textbooks written on that

subject and distribute them on the educational institutions free of cost. In order

to rouse amongst the people, the consciousness of cleanliness of environment, it

suggested the desirability of organising, keep the city clean week, keep the

town clean, keep the village clean week, in every city, town and village

throughout India atleast once in a year.

Fundamental Duties- An aid to interpretation of Constitutional provisions

In AIIMS Students Union vs AIIMS: AIR 2001 SC 3262, speaking about the

importance of fundamental duties enshrined in Art. 51-A while striking down

the institutional reservation of 33% in AIIMS coupled with 50% reservation

discipline wise as violative of Art. 14 of the Constitution, the SC said they are

equally important like fundamental rights but it cannot overlook as “duties” in

para IV A is prefixed by the same word “fundamental” which was prefixed by

the founding fathers of the Constitution to “right” in para III.

In Aruna Roy vs Union Of India: AIR 2002 SC 3176, the validity of national

Curriculum framework for school education was challenged on the ground that

it was violative of Art.28 of the constitution and anti-secular. It provides

imparting of value development education relating to basic of all religions. The

court held, that the NCFSF does not mention of imparting “religious

instructions” as prohibited u/Art. 28.

Accordingly the court held that such education is neither violative of Art. 28 of

the Constitution nor is against the concept of secularism.

2. Parliamentary Privileges

The privileges of the parliament and its members are such conventions and

practices which evolved in England as a consequence of the constant struggle

which the Commons had to put against the Crown, the Country and the Lords.

These have been described by the English Authorities in constitution as the

important part of the law and custom of the parliament of English. In English,

conventions have developed adequately and whenever we in India, fail to find a

solution of a problem arising in our Parliament in this respect, we have a look at

the conventions in England for that purposes. So far, the conventions have not

developed to that extent and adequate provisions have also not been made in

this regard in the constitution itself.

According to May, the parliamentary privileges are defined as, “some of the

peculiar rights enjoyed by each house collectively as a constituent part of the

parliament and by the members of each house individually without which they

could at discharge their functions and which exceed those possessed by other

bodies or individuals”

Parliamentary Privileges or the legislative privileges connote certain rights

occurring to each house of Parliament collectively and also to members

individuality without which it would not be possible to maintain either

independence of action or the dignity and efficiency of a sovereign legislature.

Art 105 and 194 of the constitution of India related to the privileges, powers

and immunities of Parliament and its members and the state legislature and their

members respectively.

Privileges are attached not only to House collectively but even to individual

members of the House, the reason being that no house can function effectively

unless its members functions effectively and without any interference from any

quarter. Privileges are conferred on a House so that it may vindicate its

authority, prestige and power and protect its members from any molestation or

obstruction in the performance of their functions as members of their House.

Privileges of a legislature exist mainly for its protection and maintenance of its

independence and dignity.

The privileges of a House have two aspects – (i) external and (ii) internal.

They refrain anybody from outside the House to interfere with its working. This

means that the freedom of speech and action of outsiders are limited to some

extent. The privileges also restrain the members from doing something which

may amount to an abuse of their position.

The Indian Constitution – makers appreciated the need to confer certain

privileges to the legislature in India. The Constitutions does not however,

exhaustively enumerate the legislative privileges. It specifically defines only a

few privileges but the rest of the privileges – of the legislatures in India shall be

those which were enjoyed by the House of Commons on the date of

constitution. The ideas was to confer on the legislatures in India very broad

privileges, as broad as widest privileges as compared to any other legislatures in

the world.

The relevant provisions in the Constitution defining legislative privileges are

Art. 105 and 194. Art. 105 relates to parliament while Art. 194 relates to the

state legislatures. Both these provisions are couched practically in similar

language and therefore, any discussion on Art. 105 will apply mutates to Art.

194. Art. 105 as it stood prior to the Constitution ( 42nd amendment) Act, 1976,

ran as follows:

(i) Subject to the provisions of this Constitution and rules, and standing

(ii) No member of parliament shall be liable to any proceedings in any court

(iii) In other respects, the powers privileges and immunities of each House of

(iv) The provisions of clause (1), (2) and (3) shall apply in relation to person

orders regulating the procedure of parliament, there shall be freedom of

speech in Parliament.

in respect of any things said or any vote given by him in parliament or

any committee thereof, and no person shall be so liable in respect of the

publication by or under the authority of either House of Parliament any

report, papers, votes or proceedings.

Parliament and of the members and the committees of each House, shall

be such as many from time to time be defined by Parliament by Law, and

until so defined, shall be those of the House of Commons of the

Parliament, of the United Kingdom, and of its members and committees,

at the commencement of this Constitution.

who by virtue of this Constitution have the right to speak in and

otherwise to take part in the proceedings of, a House of Parliament or any

committee therefore as they apply in relation to members of Parliament.

3. Parliamentary privileges and fundamental rights

There has been some confusion on the question whether the fundamental rights

control in any way the privileges which the house enjoy u/Art. 105 (3) and which

is to prevail in case of a conflict between such a privilege and fundamental rights.

In GunupativsNafisul Hassan: AIR 1954 SC 836,  the SC ordered the release of

the editor of “Bitz”, arrested on a charge of contempt of the House under the

speaker’s warrant, on the ground that he had not been produced before a legislature

within 24 hrs of his arrest as required by Art. 22(2) of the Constitution. This

created the impression that the fundamental rights would control parliamentary

privileges. In the Searchlight case i.e., M.S.M. Sharma vsSinha: AIR 1959 SC

395, the SC held by majority that the privileges enjoyed by a House of Parliament

u/Art. 105(3) were not subject to Art. 19(1)(a) and therefore, a House was entitled

to prohibition contravenes the fundamental rights of speech and expression u/Art.

19(1).Gunupati was held not binding as it was not a considered opinion on the

subject. The court observed that Art. 105(3) was not declared to be “subject to the

constitution”, and therefore, it was as supreme as provision of the constitution

including the fundamental right. Any inconsistency between Art. 105(3) which was

of a special nature.Though the court in searchlight was concerned specifically with

the question of applicability of Art. 19(1)(a) to the area of legislative privileges, an

impression got around, because of certain observations made by the court and the

way in which court treated the earlier case of Gunupati that, perhaps all

fundamental rights were so applicable. Reconsidering the question of mutual

relationship between the fundamental rights and legislative privileges in Keshav

Singhcase: AIR 1965 SC 745, the SC held that the searchlight case excluded only

Art. 19(1)(a) and not other fundamental rights, from controlling parliamentary

privileges. It held that Art. 21 would apply to parliamentary privileges and a person

would be free to come to the court for a writ of habeas corpus on the ground that

he had been deprived of his personal liberty not in accordance with law but for

capricious or mala fide reason. The court open the question whether any other

fundamental right would apply to legislative privileges as it was not pertinent to

the issue in hand later disposing of the keshav Singh case (Keshavsinghvs Speaker

Legislative Assembly: AIR 1965 All. 349), the Allahabad HC held that when the

legislature acted under the rules framed by it laying down the procedure for

enforcing its powers to commit for contempt, that would be compliance of Art. 231

requiring procedure to be laid down by law for deprivation of personal liberty. It

was also held that Art. 22(2)has no application when a person has been adjudged

guilty of contempt of the House and has been detained in pursuance of such an

adjudication. Thus, the position appears to be that it is wrong to suppose that no

fundamental right, applies to the area of legislative privileges. Some fundamental

rights like Art. 19(1)(a) do apply. Perhaps Art.21 do apply, while the position with

regard to others, e.g. Art. 22(1) & 22(2) is not clear. There is, however, no doubt

that if parliament were to act, would not be free from controlling effect of the

fundamental right. Such provisions of the law as contravene fundamental rights

would be invalid (G. SubraManiumvs Speaker Legilative Assembly: AIR 1969

Mad. 10).

4. Directive Principles of State Policy

Introduction:-part IV of the constitution contains, certain principles called

Directive Principle, which are fundamental in the governance of the country and

the state is under duty to apply these principles in making law, although they are

not enforceable by court. This novel feature of the constitution is borrowed from

the constitution of Ireland, which had copied it from the Spanish Constitution.

Ivor Jennings calls it was the “Philosophy of Fabian Socialism”. According to

G.N. Joshi, the part IV of the constitution, containing, DPSP, “constitutes a very

comprehensive political, social & economic programme for a modern Democratic

State.”

At one time it was thought that the state was mainly concerned with the

maintenance of law and order and the protection of life, liberty and property of the

subject. Such a restrictive role of the state is no longer a valid concept, today we

are living in an era of a welfare state, which has to promote the prosperity and

well-being of the people. The Directive Principles lay down certain economic and

social policies to be pursued by the various governments in India; they impose

certain obligation on the state to take positive action in certain directions in order

to promote the welfare of the people and achieve economic democracy.

Underlying object behind the Directive Principle:-the Directive Principles aare the

ideals, which the Union and the State Governments must keep in mind while they

formulate policy or pass a law. They lay down certain social, economic and

political principles, suitable to peculiar conditions prevailing in India.

Classification of the Directives:- The Directives may be classified in to the

following groups:

(A) Social and Economic Charter

1. Social order based on justice: Art. 38(1) provides that the state shall

strive to promote the welfare of the people by securing and protecting a

social, economic and political justice.

Art. 38(2) further elaborated the state’s duty inserted by the 44th

Amendment. 44th Amendment provides that the state shall, in particular,

strive to minimise inequalities in income and endeavour to

eliminateinequalities in status, facilities and opportunities, not only

amongst individuals but also amongst groups of people residing in

different area or engaged in different vocations. The new clause aims at

equality in all spheres of life. It would enable the state to have a national

policy on wages and eliminate inequalities in various spheres of life.

2. Principles of policy, to be followed by the state for securing economic

justice: Art. 39 directs the state to secure:

(a) Equal right of men and women to adequate means of livelihood.

(b)  Distribution of ownership and control of the material resources of the

(c)  To ensure that the economic system should not result in concentration

(d)  Equal pay for equal work for both men and women.

(e)  To protect health and strength of workers and tender age of children

community to the common good.

of wealth and means of production to the common detriment.

(f) That children are given opportunities and facilities to develop in a

and to ensure that they are not forced by economic necessity to enter

avocations unsuited to their age or strength.

healthy manner and in conditions of freedom and dignity and that

childhood and youth are protected against exploitation and against

moral and material abandonment.

Clause (f) was modified by the Constitution (42nd Amendment) Act,

1976, with a view to emphasis the constructive role of the state with

regard to the children. Distributive justice is common aim of Art. 38 &

39. They propose to promote equality in wider import and create

circumstances to avoid injustice at the social and economic levels. In

M.C.Mehtavs State of Tamil Nadu: (1991) 1 SCC 283,it has been held

that in view of Art. 39 the employment of children within the match

factories directly connected with the manufacturing process of matches

and fireworks cannot be allowed as it is hazardous. Children can,

however, be employed in the process of packing but it should be done in

area away from the place of manufacturing to avoid exposure to

accidents.

In an another landmark judgment in M.C.MehtavsStae of Tamil Nadu:

AIR 1997 SC 699, known as (child labour abolition case) a three judges

bench of the SC has held that children below the age of 14 cannot be

employed in any hazardous industry, or mines or other work.

Equal pay for equalwork: Pursuant to Art. 39(d) Parliament has enacted

the Equal Remuneration Act, 1976. The directive contained Art. 39(d)

and the Act passed thereto can be judicially enforceable, by the court. In

Randhir Singh vs UOI: AIR 1982 SC 879, the SC has held that the

principle of “Equal pay for equal work though not a fundamental right” is

certainly a constitutional goal and, therefore, capable of enforcement

through constitutional remedies u/Art. 32 of the constitution. The

doctrine of equal pay for equal work is equally applicable to persons

employed on daily wages basis. They are also entitled to the same wages

as other permanent employees in the department employed to do the

identical work.

In State of Haryana vsRajpal Sharma, AIR 1997 SC 449, it has been

held that the teachers employed in privately managed aided schools in

State of Haryana are entitled to the Salary and dearness allowance as is

paid to teachers employed in Government schools.

(B) Social Security Charter

1. Equal justice and free legal aid Art. 39A

2. Right to work, education and public assistance

in certain cases. Art. 41

Resultantly the SC declared in Mohini Jain case

that the right to education be equated with a fundamental

right and it should be read to the Art. 21, because

the right to life means a dignified life which has

no meaning without education.

3. Just and human conditions of work Art. 42

4. Living wage for workers Art. 43

5. Participation of workers in management Art. 43A

6. Provision for early childhood care and education Art. 45

7. Promotion of educational and economic interest Art. 46

8. Duty of the stage to raise the level of nutrition Art. 47

of industries.

to children below the age of six years

of SCs and STs and other  weaker section

and the standard of living and improvement of

public health.

In HussainaraKhatoonvs State of Bihar: AIR 1979 SC 1369, the SC held that

right to free legal right is essential ingredient of “reasonable fair & just” procedure

and implicit in guarantee of Art. 21. This is the constitutional right of every

accused person who is unable to engage lawyer due to poverty. The state is under

mandate to provide a lawyer to an accused person if the circumstances of the case

and needs of justice so require, provided, of course, the accused person does not

object to the provision of such lawyer.

In a notable judgment in State of Maharashtra vsManubhaiBagajiVashi: (1995) 5

SCC 730, the SC has held that Art 21 read with Art. 39-A casts a duty on the state

to afford grants in aid to recognised private law colleges, similar to other facilities,

which qualify for receipt of the grant. The aforesaid duty cast on the state cannot

be whittled down in any manner, either by pleading paucity of funds or otherwise.

The right to free legal aid and speedy trial are guaranteed fundamental rights u/Art.

21. Art. 39-A provides “equal justice” and “free legal aid”. The state shall secure

that the operation of the system promotes justice.

( C) Community Welfare Charter

1. Uniform Civil Code: Art. 44 requires the state to secure for the citizens a

uniform civil code throughout the territory of India.

In a historic judgment in SarlaMudgalvs UOI: (1995) 3 SCC 635, SC has

directed the Prime Minister NarsimhaRao to take fresh look at Art. 44 of the

Constitution which enjoins the state to secure a uniform civil code which,

accordingly to the court is imperative for both protection of the oppressed

and promotion of national unity and integrity. The court directed the Union

Government through the Secretary to Ministry of Law and Justice, to file an

affidavit by August 1995 indicating the steps taken and efforts made, by the

government, towards securing a uniform civil code for the citizens of India.

The above direction was given by the court while dealing with case where

the question for consideration was whether a Hindu husband under Hindu

Law, after conversation to Islam, without dissolving the first marriage, can

solemnise a second marriage. The court has held that such a marriage will be

illegal and the husband can be prosecuted for bigamy u/s. 494 of IPC. Court

further held that a Hindu Marriage continues to exist even after one of the

spouse converted to Islam. There is no automatic dissolution of Hindu

Marriage. It can on be dissolved by a decree of divorce on any of the

grounds mentioned in section 13of the Hindu Marriage Act. Accordingly,

the court held that the second marriage of Hindu after his conversion to

Islam was void in terms of section 494 IPC and the husband was liable to be

prosecuted for bigamy.

As regards the question of “Uniform Civil Code” the Division bench(Kuldip

Singh And R.M. Sahai, JJ.) in their separate but concurrent judgements said

that since 1950 a number of Governments have come and gone but they have

failed to make any efforts towards implementing the constitutional mandate

u/Art. 44 of the constitution. Consequently, the problem today is that many

Hindus have changed their religion and have converted to Islam only for the

purpose of escaping the consequence of bigamy. This is so because Muslim

law permits more than one wife and to the extent of four. Kuldip Singh, J.,

said that Art. 44 is based on the concept that there is no necessary

connection between religion and personal law in a civilized society.

Marriage, succession and like matters are of a secular nature and therefore,

they can be guaranteed by law. No religion permits deliberate distortion, the

judges declared. Much apprehension prevails about bigamy in Islam itself.

In many Islamic countries as in Syria, Tunisia, Morocco, Pakistan, Iran and

other Islamic countries have codified their personal law to check its abuse.

This judgment of the court has aroused the hope that one of the greatest evil

of Indian Society will be removed. But unfortunately the court, while

hearing an appeal filed by one of the accused in the above case, clarified that

its direction was only an obiter dicta and not legally binding on the

government. This clarification was given by Mr. Justice Kuldip Singh who

had directed the government to take immediate steps for implementing the

mandate of Art. 44 of the constitution. Even before the clarification of the

court the Prime Minister had told to the Muslim Ulemas of Rampur, U.P.

that his government would not implement the constitutional mandate u/Art.

44 of the constitution.

2. Organisation of agriculture and animal husbandry: Art. 48 directs the

state to take steps to organise agriculture and animal husbandry on modern

and scientific lines. In particular, it should take steps for preserving and

improving the breeds, and prohibiting the slaughter of cows and calves and

other milk and draught cattle.

3. Protection and improvement of forests and wild life: Art. 48-A requires

the state to take steps to protect and improve the environment and to

safeguard the forests and wild life of the country. In M.C. Mehta (II) vs

UOI: (1988) 1 SCC 471, the SC, relying on Art. 48-A gave directions to the

central and the state governments and various local bodies and Boards under

the various statutes to take appropriate steps for the prevention and control

of pollution of water.

4. Protection of monuments and places and objects of national

importance: Art. 49 requires the state to protect every monument or place

or object of artistic or historic interest (declared by law or under law made

by parliament) to be of national importance from spoliation, disfigurement,

destruction, removal, disposal or export. Pursuant to this, parliament has

enacted the Ancient and Historical Monuments and Archaeological Sites and

Remains (Declaration of National Importance) Act, 1951.

5. Separation of Judiciary from Executive: Art. 50 requires the state to take

steps to separate the Judiciary from the Executive in the public services of

the state. To promote the rule of law, this is very essential.

6. Promotion of International peace and security: Art. 51 provides that the

state should strive to (a) promote international peace and security; (b)

maintain just and honourable relations between nations; (c) foster respect for

international law and treaty obligations in the dealings of organised peoples

with one another; and (d) encourage settlement of international disputes by

arbitration.

The Protection of Human Rights Act, 1993: Pursuant to the direction

enshrined in Art. 51 of the constitution and International Commitments,

Parliament has passed the Protection of Human Rights Act, 1993. The Act

provides for the setting of a National Human Rights Commission and

Human Rights courts to meet the growing concern for human rights in the

country and abroad. Similar commission may be set up in the state also.

7. Organisation of village Panchayats Art. 40: The object of this Article is to

introduce democracy at the grass root level.

Implementation of the Directive Principles

As we know, the Directive Principles do not enjoy judicial sanctions as is

the case with fundamental rights. Thus, the implementation of these

principles depends upon the sweet will and available resources of the state.

However, since these principles aim at the establishment of a welfare state of

India, the successive governments have adopted measures to implement

them through separate legislative measures.

The constitution has been amended, successively (eg. 1st, 4th, 17th, 24th, 25th,

42nd. 44th amendments) to modify those fundamental rights by reason of

whose existence the state was experiencing difficulty in effective agrarian,

economic and social reforms which are envisaged by the directive principles.

The unspectacular implementation of the directive principles is mainly on

account of the resource crush and lack of political will or foresight. Poverty,

eradication, education, betterment of the backward classes conditions are a

few areas where the directives have particularly failed to show results.

Though implementation has been far from satisfactory, the state is showing

genuine will to implement the directive principles. In electoral politics, no

government may with impunity, ignore welfare-politics with regard to public

health, education, economic equality, position of women, children and

backward classes. In totality the directive principles operate well in the

planning process, but still have not been fully translated into action. It

cannot be denied that various governments have put in some efforts in this

direction.

The directive in Art. 39(b) has influenced legislators to fix land ceilings,

remove intermediaries such as zamindar, abolish hereditary proprietors, etc.

and made the tiller of the soil real owners of the land. The enactment of the

Hindu Succession Act (1950) have been important steps to implement the

directive principles of Uniform Civil Code.

In order to raise the standard of the poor particularly in rural areas as

prescribed in Art. 47, the government of India has launched various schemes

such as community development programme of 1952, IRDP, Drought Prone

Area Programme, Desert Development Programme and National Rural

Employment Guarantee Programme.

Difference/Relationship between DPSP and Fundamental Rights

The relationship or difference between DPSP and fundamental rights are as

follows:

1. The directive principles cannot be enforced by the courts; they are

declaratory while fundamental rights are enforced by the courts; they are

mandatory.

2. The directive principles and instrument of institutions of the government

while the fundamental rights are limitation upon the state actions.

3. The directive principles contains positive commands to the state to

promote a social and welfare state while the fundamental rights contain

negative injunctions to the state no to do various things.

4. The directive principles set the guidelines, for achieving socialistic goals

through democratic methods while the fundamental rights guarantees

some basic rights to individuals.

5. The directive principles are required to be implemented by legislation;

while fundamental rights are not required to be implemented by

legislation.

6. 25ht amendment 1971 added Art. 31-C in the constitution; which

provided that a law for implementing directives contained in Art. 39(b)

and (c) could not be struck down on the ground that it contravened rights

conferred by Art. 14, 19 or 31.

7. 42nd amendment, 1976 widened the scope of Art. 31-C so as to cover all

directive principles. Thus it gave precedence to all the directive principles

over the fundamental right contained u/Art. 14, 19 or 31. However, this

portion of 42nd amendment was struck down by SC in Minerva Millsvs

UOI.  Thus, it is inoperative now.

The leading cases on the relationship between the fundamental rights and the

DPSP are as follows:

1. State of Madras vsChampakamDorairajan, AIR 1951 SC 228: in this

case the order of Madras government was challenged; which fixed quotas

for admission to medical and engineering colleges for different

communities. The government contended that the order was passed u/Art.

46 of the constitution.

The court held that, “the DPSP have to conform and run as subsidiary to

the chapter of fundamental rights”, because the latter are enforceable in

the principles cannot override the fundamental rights. The court held that

the order of Madras Court was valid.

2. In RE Kerala Education Bill, AIR 1957 SC 956, the court observed

that though the directive principles cannot override the fundamental

rights, nevertheless in determining the scope and ambit of rights the court

may adopt the principles of harmonious construction and should attempt

to give effect to both as much as possible.

3. Keshava Nanda Bharativs State of Kerala, AIR 1973 SC 1461: In this

case, insertion of Art. 31-C was questioned. The SC by 7-6 majority

overruled the Golaknath’s case which denied parliament the power to

amend fundamental rights of citizens. The court observed that the

fundamental rights and the DPSP are meant to supplement one another. It

can well be said that the directives prescribed the goal to be attained and

fundamental rights laid down the means by which the goal is to be

achieved.

Supporting the amendments Mathew J. explain the importance of the

DPSP, thus:

“I think there are right which are inherent in human beings

because they are human beings whether you call them natural

rights or by some other application is immaterial. As the

preamble indicates, it was to secure the basic human rights like

liberty and equality that the people gave into themselves the

constitution and these basic rights are essential features of the

constitution; the constitution was also enacted by the people to

secure justice – political, social and economic. Therefore, the

moral rights embodied in part IV of the constitution are equally

an essential feature of it, the only difference being that the moral

rights embodied in part IV are not enforceable as against the

state be a citizen in a court of law in case state fails to

implement its duty, but nevertheless they are fundamental in the

governance of the country and all the organs of the state

including the judiciary, are bound to enforce those directives.

The fundamental rights themselves have no fixed content most of

them are mere empty vessels into which each generation must

pour its content in the light of its experience. Restriction,

abridgement, curtailment and even abrogation of these rights in

circumstances not visualized by the constitution-makers might

become necessary.”

Delivering the leading majority judgment Sikri C.J. said, “ the

expression amendment of constitution” in Art. 368 means any change

in any of the provisions of constitution within the broad contours of

the preamble and the constitution to carry out the objectives in the

preamble and the directive principles, applied to fundamental rights

also. It would mean that while fundamental rights cannot be

abrogated, reasonable abridgement of fundamental rights can be

affected in the public interest.

The Chief Justice said, “if this meaning is to be given, it would

enable parliament to adjust fundamental rights in order to secure what

the directive principles direct to be accomplished, while maintaining

the freedom and dignity of every citizen.

4. Minerva Millsvs UOI, AIR 1980 SC 1789: In this case, Art. 31-C as

amended by 42nd amendment was challenged on the ground that it

destroys the “basic features” of the constitution. The SC struck down

Art. 31-C as amendment by 42nd amendment as unconstitutional.

The majority observed that the constitution is founded on the bed rock

of the balance between part III and IV. To give absolute primacy to

one over the other is to disturb the harmony of the constitution, which

is the essential feature of the basic structure. The goals set out in Part

IV have to be achieved without the abrogation of the means provided

by part III.

5. State of Tamil Nadu vs Abu KavurBai, AIR 1984 SC 626: In this

case the SC held that although the directive principles are not

enforceable yet the court should make a real attempt at harmonizing

and reconciling the directive principles and the fundamental rights

and any collision between the two should be avoided as far as

possible.

6. BandhuaMuktiMorchavs UOI, AIR 1984 SC 802: In this case, the

SC has held that although the directive principles are enforceable by

the court and the courts cannot direct the legislature or executive to

enforce them, once a legislation in pursuance of them has been

7. Unni Krishna vs State of A.P., [1993 (1) SCC 645]: In this case, the

passed, the courts can order the state to enforce the law, particularly

when no-enforcement of law leads to denial of a fundamental right.

SC held that the fundamental rights and directive principles are

supplementary and complementary to each other and the provisions in

part III should be interpreted having regard to the preamble and

directive principles.

5. Rights of the Minorities

There are many theocratic countries where equal rights are not extended toall of

its citizens. They have categorized citizens according to their believes. The

rights are also attached differently, we must thank the fathers of our constitution

who envisioned equal rights to all citizens and added special rights to Religious

and Linguistic Minorities. The Indian constitution guarantees equal rights to all

its citizens, violation of which by the State or Central Government can be

challenged in the High Court or Supreme Court as per the Article 32 of the

Constitution, such cases are taken up with utmost urgency. Article 14 of the

constitution states that, ‘the State shall not deny to any pers on equality before

the law or the equal protection of the laws within territory of India.’

It gives equal status to all citizens in freedom and dignity. It further makes clear

in Article 15, ‘the state shall not discriminate against any citizen on grounds

only of religion, race, caste, sex, place of birth, or any of them, and it offers,

‘equal access to public facilities.’ The 93rd amendment added a new clause -

Clause 5 - to Article 15. This enables the enactment of laws, makingspecial

provisions for the socially and educationally backward classes, theScheduled

Castes and the Scheduled Tribes in educational institutions including private

educational institutions, except in minority institutions.

It is good to understand the Directive Principles and Fundamental Rights.

‘Fundamental rights are legally enforceable and guaranteed rights but directive

principles are not enforceable in any court of law. But under article 31-C, a DP

may be framed as law even if it abridges fundamental rights.  The 42nd

amendment act allowed DPs to usurp FPs.’ Therefore the reservation policy is a

directive principle and it can be formulated as per the requirements. It makes

clear that the policy on reservation is a directive principle to help asocially

week entity to become better.

The constitution positively undermined the division of opportunities on the

basis of birth to any particular entity. It provides equal opportunities in

employments which is made clear in Article 16 ‘there shall be equality of

opportunity for all citizens in matters relating to employment or appointment to

any office under the state’. It also spells out in clear terms that, ‘no citizen shall

on grounds only of religion, race, caste, sex, descent, place of birth, resident or

any of them be ineligible for or discriminated against in any respect of any

employment or office under the State.’ It is also to be noted that the constitution

provides an additional provision to the government to enact laws to make sure

that no section of thesociety is left out. The Article 16(4) point out that

‘Nothing in this article shall prevent the State from making any provision for

the reservation of posts in favour of any backward class of citizens, which in

the opinion of state is not adequately represented in the services under the

state’. The constitution has not defined in clear terms what does it mean by

backwardness and how do we determine the backwardness. It has definitely

raised questions.

Education is seen as the only means to progress for an individual and society at

large. So the Article 29 states that ‘no citizen shall be denied admission into

any educational institution maintained by the State or receiving aid out of the

State funds on ground only of religion, race, caste, language, or any of them.’ It

gives a feeling that unaided educational institutions does not bind by this

Article. But opportunity is equally distributed to all.

The constitution of India is very clear in terms of Minority rights. The Indian

Constitution very well protects the minorities and it provides opportunity to

develop to its fullness. The recent communal clashesand accusations on

Minorities raises a question that whether the constitutionalrights are exercised

well? There is no political will or leadership to pursue the cause of the Minority

Community.

The Constitution nowhere defines the terms 'minority', nor does it lay down

sufficient indicia to the test for determination of a group as minority.

Confronted, perhaps, with the fact that the concept of minority, lie its problem,

was intercalate, the framers made no efforts to bring it within the confines of a

formulation. Even in the face of doubts being expressed over the advisability of

leaving vague justiciable rights to undefined minorities, the members of the

Constituent Assembly made no attempt to define the term while article 23 of

the Draft Constitution, corresponding to present articles 29 and 30, was being

debated, and, presumably left it to the wisdom of the courts to supply the

omission.

However, as the following would show, the opinions of the courts on the first

question appear to be the result of a half-hearted attempt, and, only indicate the

futility of depending on them in any search for an answer to the second

question.

What is a Minority? The word minority has not been defined in the

Constitution. The Motilal Nehru Report (1928) showed a prominent desire to

afford protection to minorities, but did not define the expression. The Sapru

Report (1945) also proposed, inter alia, a Minorities Commission but did not

define Minority. The U.N. Sub-Commission on Prevention of Discrimination

and Protection of Minorities has defined minority as under:

1) The term 'minority' includes only those non-documents group of the

population which possess and wish to preserve stable ethnic, religious or

linguistic traditions or characteristics markedly different from those of the rest

of the population;

2) Such minorities should properly include the number of persons sufficient by

themselves to preserve such traditions or characteristics; and

3) Such minorities should be loyal to the state of which they are nationals.

The initial courtroom attempt to answer the first question was made in In re

Education Bill where the Supreme Court, through S.R. Das C.J., suggesting the

techniques of arithmetic tabulation, held that the minority means a "community,

which is numerically less than 50 percent" of the total population. This

statistical criterion prevail with the Kerela High Court also which, in

A.M.Patroni v. Kesavan , defined minority to mean the same thing as it meant

to the Supreme Court.

The 'definition' refers to group of individual who are particularly smaller as the

majority in a defined area. It however does not indicate as to what factor of

distinction, subjective or objective are to be taken as the test for distinguishing

a group from the rest. Thus, while considering 'minority', a numerically smaller

group, as against the majority in a defined area, some place emphasis upon

certain characteristics commonly possessed by the members constituting the

minority and, to them, these characteristics serves as objective factors of

distinction. In this sense the term used to cover "racial, religious or linguistic

sections of the population within a State which differ in these respects from the

majority of the population."

Minority in other sense also means, a group constituting a minority group have

a feeling of belonging to one common unit, a sense of akinness or community,

which distinguishes from those belonging to the majority of the inhabitants.

They are "group held together by ties of common descent, language or religious

faith and feeling themselves different in these respects from the majority of the

inhabitants of the given political entity." There are also those who define

minority in terms of relationship between the dominant groups and minority. To

them it is much more important "to understand the genesis of the relationship

between dominant group and minority then it is to know the marks by the

possession of which people is identified as member of either." Rose defined

minority as a "group of people differentiated from others in the same society by

race, nationality, religion, or language - who both think of themselves as a

differentiated group and are though of by others as a differentiated group with

negative connotation."

Thus most of the definitions explained above place emphasis either upon

certain common characteristics present among the members of the groups

which serve as the marks of distinction and such objective test, and it is only in

some cases that the factor of relationship between the dominant and non

dominant group is regarded as the main determinant of minority status which,

in turn, at least some cases, renders relative numbers in and out of the group

concerned as irrelevant for definitional purpose.

A 'consciousness' of the difference with the majority on the basis of certain

characteristics is, therefore, considered as a distinguishing mark, and as such a

subjective element. thus, the definition which lays emphasis upon certain

subjective factors such as 'feeling' or 'consciousness' provide a test which is too

vague and uncertain, and more psychological in nature than real. Every

situation may not necessarily involve the assumption that the group in order to

deserve the title of 'minority' must be distinguishable from the majority by the

presence of the feeling or consciousness of its being different from the majority.

A group distinguishable from others by the possession of certain objective

characteristics, such as language, may not have a feeling or consciousness of its

distinct status of being counting as minority. The most acceptable definitions,

given by the Human Rights Commission, is not beyond the reach of argument.

That definition appears to be confined to those non dominant groups only

which, apart from having certain objective characteristics that are distinctively

of their own, wish to preserve the distinctive identities and are not willing to be

assimilated with the rest of the population.

No definition comes out to be comprehensive to cover all the varied situations,

illustrates the difficulty experienced in assigning limits to concept of minority.

This must remain the possible explainable reason why courts have not ventured

to formulate a general definition.

Indeed, as far as the limited purpose of article 30 is concerned, such a venture

would have been rather unnecessary too. For, religion and language being the

criteria indicated in article 30, a pre-condition for the latter acceptability, the

Constitution itself tends to confine the tasks of the courts to the ascertainment

whether the group claiming constitutional protection is the group identifiable by

the characteristics of religion or language and is numerically non dominant. The

courts have therefore, only to be sure for themselves that the basis of claim to

protection is ether religion or language.

Interpreting the words, "based on religion" in article 30, the Delhi High Court

rightly pointed out that the words would mean that "the only or the principal

basis pf the 'minority' must be their adherence to one of the many

religions…and that the other features of the minority are subordinate to the

main feature, namely, its separateness because of the religion." A similar

interpretation can also be placed on the words 'based on language'. That being

so, it can be concluded that for the purpose of article 30, a majority means a

non-dominant collectively distinguishable from the majority of population by

the objective factors of religion or language or language or a combination of

Constituent Assembly Debate:The whole debate in the Constituent Assembly

on article 23 of the Draft Constitution which later assumed the shape of the

present article 29 and 30, revolve round this issue: what rights could or should

be conceded to minorities? The reference to minorities was a reference to none

other than Indian minorities existing in India. The original draft of the

fundamental rights submitted to the Constituent assembly on April 16, 1947 by

the Sub-Committee on Fundamental Rights did not contain any provision

corresponding to article 30(1) and did not even refer to the word minority. The

letter submitted by K.M. Munshi to the Minorities Sub-Committee on the same

date when, along with some other rights, the rights now forming part of article

30(1) was proposed, made a reference on the term "national minorities".

The Drafting committee, however, sought, to make a distinction between the

rights of any section of the citizen to conserve its language, script or culture and

the right of the minorities based on religion or language to establish and

administer educational institutions of their choice and for this the committee

omitted the word 'minority' in the earlier part of the draft article 23

corresponding to article 29, while it retained the word in the latter part of the

draft article 23 which now forms part of the article 30(1).

Ambedkar sought to explain the reason the reason for substitution in the Draft

Constitution of the word minority by the words "any section" observing:

It will be noted that the term minority was used therein not in the technical

sense of the word 'minority' as we have been accustomed to use it for the

purpose of certain political safeguards, such as representation in the

Legislature, representation in the service and so on. The word is used not

merely to indicate the minority in the technical sense of the word, it is also used

to cover minorities which are not minorities in the technical sense, but which

are nonetheless minorities in the culture and linguistic sense. That is the reason

why we dropped the word "minority" because we felt that the word might be

interpreted in the narrow sense of the term when the intention of this

House….was to use the word 'Minority' in a much wider sense so as to give

cultural protection to those who were technically not minorities but minorities

nonetheless.

Ambedkar's explanation that the right was available not only to minorities in

the 'technical sense' but also to minorities in the 'wider sense' has an obvious

reference only to that part of Draft article 23 which now forms part of article

29(1) and not to that which is now clause (1) of article 30. His expiation,

therefore, may be taken to be an attempt to broaden the scope of clause (1) of

article 29 only so as to include within the term 'minority' other minority groups

also, as contemplated and illustrated by him, and thus to confine article 30(1) to

those minorities which he described as minorities in the technical sense, were

politically recognized and the most prominent amongst them were represented

in the Constituent Assembly also.

The whole problem, as far as this part of constitution is concerned, that engaged

considerable time and efforts of the framers was to achieve a consensus an a

constitutional arrangement, between the numerically dominant majority

considered as such on the national scene and the minorities referred to above- a

solution which could give the minorities a feeling of security against

discrimination, and security against interference with those characteristics

which had divided them apart from the majority. And, it is too obvious to be

noted that, at no stage was any section of this majority ever treated as 'minority'.

If these assumptions as accepted as truly reflecting the intention of those who

drafted and incorporate these provision in the constitutional document, with a

wishful hope that they were rendering a constitutional solution to the problem

of Indian minorities, it may be argued that where a minority is the historical or

national context and its claim is based on religion it must be defined and

ascertain in terms of the population of the whole country, irrespective of its

being in numerical majority in any particular state; and, where a group in not a

minority considered as such in the national context, but is still definable as

'minority' under Ambedkar's stretched meaning of the term, it may be

ascertained with reference to the population of the state concerned. The

argument is correct, it is submitted, if the provision in the question are viewed

against the historical prospective in which they were adopted, and are construed

to carry into effect the true spirit and intention of the constitution.

Protection of Interest of Minorities:Article 29 of the Constitution of India

defines the protection of interest of minorities: -

1) Any section of the citizen residing in the territory of India or any part thereof

having a distinct language, script or culture of its own shall have right to

conserve the same.

2) No citizen shall be denied admission into any educational institution

maintained by the State receiving aid out of State funds on grounds only of

religion, race, caste, language or any of them.

Clause (1) gives protection to every section of the citizens having distinct

language, script or culture by guaranteeing their right to conserve the same. If

such section desires to preserve their own language and culture, the state would

not stand in their way. A minority community can effectively conserve its

language, script or culture by and through educational institutions and therefore

necessary concomitant to the right to conserve its distinctive language, script or

culture and that is what is conferred on all minorities by article 30(1). But

article 29(1), neither controls the scope of article 30(1) nor is controlled by that

article. The scope of the two is different. Article 29(1) is not confined to

minorities but extends to all sections of citizens. Similarly article 30(1) is not

confined to those minorities, which have 'distinct language, script or culture' but

extends to all religious and linguistic minorities. Further, article 30(1) gives

only the right to establish and administer educational institutions of minorities'

choice while article 29(1) gives a very general right 'to conserve' the language,

script or culture. Thus, the right under article 30(1) need not be exercised for

conserving language, script or culture.

Clause (2) relates to admission into educational institutions, which are

maintained or aided by state funds. No citizen shall be denied admission in such

institutions on grounds only of religion, race, caste, language or any of them.

Article 15 prohibits discrimination against citizen on ground of religion, etc.

but the scope of two articles is different. Firstly, article 15(1) protects all

citizens against the state where as the protection of article 29(2) extends to the

state or anybody who denies the right conferred by it.

Secondly, 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 maintained or aided by the

state. Finally, the specific grounds on which discrimination is prohibited are not

the same in two articles. 'Place of birth' and 'sex' do not occur in article 29(2),

while 'language' is not mentioned in article 15.

The right to admission into an educational institution is a right, which is an

individual citizen, has as a citizen and not as a member of a community or class

of citizen. Hence a school run by a minority, if it is aided by state funds, cannot

refuse admission to children belonging to other communities. But the minority

community may reserve up to 50% of the seats for the members of its own

community in an educational institution established and administered by it even

if the institution is getting aid from the State. The state, however, cannot direct

minority educational institutions to restrict admission to the members of their

own communities. Article 29(2), however, does not confer a legal right on the

members belonging to other communities to freely profess, practice and

propagate their religion within the precincts of a college run by a minority

community. Article 29(2) cannot be invoked where refusal of admission to a

student is on the ground of his not possessing requisite qualifications or where a

student is expelled from an institution for acts of indiscipline.

To overcome the conflict with article 15 as well as article 29 the Constitution

(First Amendment) Act, 1951, added clause (4) to article 15 to the effect that

nothing in article 15 and article 29(2) shall prevent state from making any

special provision for the advancement of any socially and educationally

backward classes of citizen or for the schedule caste and the schedule tribes.

The state is empowered to reserve seats in state colleges for socially and

educationally backward classes of citizen or for SC and ST.

Rights of Minority to Establish and Administer Educational Institutions:Article

30 of the Constitution of India defines Rights of Minority to Establish and

Administer Educational Institutions: -

1) All minorities, whether based on religion or language, shall have the right to

establish and administer educational institutions of their choice.

[1-A) In making any law providing for the compulsory acquisition of any

property of an educational institution establish and administered by a minority,

referred 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 that clause.]

2) The State shall not, in granting aid to educational institutions, discriminate

against any educational institution on the ground that it is under the

management of a minority, whether based on religion or language.

Clause (1) gives rights to all minorities based on religion or language the right

to establish and administer educational institution of their own choice. Article

29 and 30 are grouped together it will wrong to restrict the rights of minority to

establish and administer educational institution concerned with language script

and culture of the minorities. The reasons are: Firstly, article 29 confers the

fundamental rights on any section of the citizen which will include the majority

also where as article 30(1) confers all rights on all minorities. Secondly, article

29(1) is concerned with language, script or culture, whereas article 30(1) deals

with minorities based on religion or language. Thirdly, article 29(1) is concern

with the right to conserve language, script or culture, whereas article 30(1)

deals with right to establish and administer educational institutions of the

minorities of their choice. Fourthly, the conservation of language, script or

culture under article 29(1) may be by means wholly unconnected with

educational institutions, and similarly establishment and administer educational

institutions by a minority under article 30(1) may be unconnected with any

motive to conserve language, script or culture. A minority may administer an

institution for religious education, which is wholly unconnected with any

question of conserving language, script or culture. It may be that article 29(1)

and article 30(1) overlap, but the former cannot limit the width of the latter. The

scope of article 30 rests on the fact that right to establish and administer

educational institution of their own choice is guaranteed only to linguistic or

religious minorities, and no other section of citizens has such a right. Further

article 30(1) gives the right to linguistic minorities irrespective of their religion.

It is, therefore, not at all possible to exclude secular education from article 30.

The expression 'minority' in article 30 remains undefined though the court has

observed that it refers to any community which is numerically less than 50% of

the population of a particular state as a whole when a law in consideration of

which the question of minority right is to be determined as a State law. A

community, which is minority in specific area of the State though a majority in

the state as a whole, would not be treated as minority for the purpose of this

article. A minority could not also be determined in relation to entire population

of the country. If it was a state law, the minorities must be recognized in

relation of that state. But the fact that the expression minority an article 30(1) is

used to distinct from 'Any section of citizen' in article 29(1) lends support to the

view that article 30(1) deals with national minorities or minorities recognized in

the context of entire nation. In that case, however, article 30(1) would become

inapplicable to the national majority even if it is a minority in any particular

state, e.g., Hindus in Punjab or Jammu and Kashmir.

Although article 30(1) does not speak of citizens, the minority competent to

claim the protection of that article must be a minority of person residing in

India. 'The minority under article 30 must necessarily mean those who farm a

distinct and identifiable group of citizen in India'. Article 30(1) does not confer

upon foreigners not residents in India the right to set up educational institutions

of their choice. The right conferred on minorities is to establish educational

institutions of their choice. It does not say that minority based on religion

should establish educational institutions for teaching of their own language

alone. The article leave it to their choice to establish such educational

institutions as will serve both the purpose, namely, the purpose of conserving

their religion, language, or culture, and also the purpose of giving a thorough

general education to their children. Minorities are, however, not entitled to have

educational institutions exclusively for their benefit.

In D. A. V. College v. State Of Punjab, it was observed that, a linguistic

minority for the purpose of art. 30(1) is one which must at least have a separate

spoken language. It is not necessary that that language should also have a

distinct script for those who speak it to be a linguistic minority. Religious or

linguistic minorities should be determined only in relation to the particular

legislation which is sought to be impugned, namely that if it is the State

Legislature these minorities have to be determined in relation to the population

of the State. AryaSamajis have a distinct script of their own, namely Devnagri

therefore they are entitled to invoke the right guaranteed under art. 29(1)

because they are a section of citizens having a distinct script and under art.30(1)

because of their being a religious minority. Sub-sections (2) and (3) of s. 4 do

not in our view offend by themselves any of the rights of the petitioners either

under art. 29(1) or art.30(1) of the Constitution. Nowhere there is a mandate for

compelling Colleges affiliated to it either to study the religious teachings of

Guru Nanak or to adopt in any way the culture of the Sikhs.

Thus religious or linguistic minorities should be determined only in relation to

the particular legislation which is sought to be impugned, namely that if it is the

State Legislature these minorities is to be determined in relation to the

population of the State.

It was held that, religious instruction is that which is imparted for inculcating

the tenets, the rituals, the observances, ceremonies and modes of worship of a

particular sect or denomination. To provide for academic study of life and

teaching or the philosophy and culture of any great saint of India in relation to

or the impact on the Indian and world civilizations cannot be considered as

making provision for religious instructions. The State of Punjab is created as a

unilingual State with Punjabi as its language and if provision is made for study

of Punjabi language that does not furnish a ground for discrimination nor can

the provision for study of the life and teachings of Guru Nanak afford any cause

for complaint on grounds of violation of art. 14 of the Constitution. The right to

form association implies that several individuals get together and form

voluntarily an association with a common aim, legitimate purpose and having a

community of interest. The right extends inter alia to the formation of an

association or Union. Section 5 of the impugned Act does not effect the right of

D.A.V. College Trust and Society to form an association. Therefore, there is no

infringement of art. 19(1)(c).

The right conferred on minorities is to establish educational institutions of their

choice. It does not say that minority based on religion should establish

educational institutions for teaching of their own language alone. The article

leave it to their choice to establish such educational institutions as will serve

both the purpose, namely, the purpose of conserving their religion, language, or

culture, and also the purpose of giving a thorough general education to their

children. Minorities are, however, not entitled to have educational institutions

exclusively for their benefit.

Clause (2) is only a phase of non-discrimination clause of the constitution and

does not derogate provisions made in clause (1). The clause is expressed in

negative terms: the state is therefore enjoined not to discriminate in granting aid

to educational institutions on the ground that the management of the institutions

is in the hands of minority, religious or linguistic. The clause does not mean

that the state is competent otherwise to discriminate so as to impose restrictions

upon the substance of rights to establish and administer educational institutions

by minorities. The rights established by article 30 (1) is intended to be a real

right for the protection of the minorities in the matter of setting up of education

institution of their choice.

Kerla Education Bill CaseThe article first came up for interpretation before a

seven judge Constitution Bench constituted to consider the reference made by

the President under article 143 in In re Kerla Education Bill sponsored by the

Communist Government of the state which was stoutly opposed by Christians

and Muslims. Chief justice S.R. Das delivered the majority opinion. He spoke

for six judges- the sole dissent by justiceVenkataramaAiyar being confined to

the question whether minority institutions were entitled also to recognition and

state aid as part of the right guaranteed by article 30(1). C. J. Das held, inter

a) An institution, in order to be entitled to the protection, need not deny

admission to members of other communities.

b) It is not necessary that an institution run by religious minority should impart

only religious education or that one run by the linguistic minority should teach

language only. Institution imparting general secular education is equally

protected. The minority has a right to give "a thorough, good general

education".

c) Grant of aid or recognition to such institution cannot be made dependent on

their submitting to such stringent conditions as amount to surrendering their

right to administer to them. However the right to administer does not include

the right to misadministration reasonable regulations can be made.

d) Regulation prescribing the qualifications for teachers was held reasonable.

Those relating to protection and security of teachers and to reservation in favor

of backward classes which covered government schools and aided schools

alike, were "perilously near violating that right", but "at present advised" were

held to be permissible regulations. Provision centralizing recruitment of

teachers through State Public Service Commission and taking over the

collection of fees etc. were held to be destructive of rights of minorities to

manage the institutions.

Clauses of the Bill, which authorized the taking over of management in the

event of specified failings, in effect, annihilated the minorities' right to

administer educational institutions of their choice.

Minority Rights flow from Articles 14,15,19(1)(2) 21, & 26 (a). Thus while it is

true that it is only the minorities whose right to establish and administer

educational institutions is mentioned n article 30(i) it dos not follow the same is

denied to the majority communities. It was considered necessary like a special

mentioned for the right of minorities by way of extra assurance to it is not

correct to say that minorities were considered backward and needed

concessions though article 30(i) to bring them up. The object was to make that

they will not be discriminated against. It was not intended to pamper as favored

communities. It should follow therefore form articles 14 and 15 majority

communities have right to similar treatment at the hands of the in the matter of

recognition affiliation government aid or non displacement management in

respect of educational institutions established by majority as accorded to

minority institutions of course condition can and to be imposed in regard to aid,

affiliation and recognition in order to ensure standard of teaching but the same

have to be uniformly onerous and not be so drastic as to involve surrender by

the community or founder or management of its right to establish and

administer the institution.

The thesis that the majority in a system of adult franchise hardly needs any

action it can look after itself and protect its interests any measure wanted by

majority can without much difficulty be brought on the statute book because

majority can bet that done by giving a mandate to the elected representatives

only the minorities who need protection is with the utmost respect to the

anguished judge to naive to command acceptance. Modern parliamentary

democracy are run on a party system which in India the more so in the post

mandal is built largely on the basis of caste and communal co9nbination

Government are returned to power not on the basis of issues or mandates.

Managements functional institution do not work for a vote bank while their

teachers do that. Religions majority namely Hindus are not a homogeneous

monolith. It is a much-divided society. There are caster and sub caste division

and the same court defence to the legislative and executive wisdom on article

has no made things easier electoral arithmetic has led to all sorts of and

combination.

Apart from articles 15 and 15(I) this right to establish and administer

educational institutions also flows as seen above form articles 19(i) (g) and

26(a), which make no distinction between majority and minority communities.

The right of students to education as a fundamental right under article 21, also

simples that they as well as their parents have the right to choice of institutions

in which they would like the former to be educated. Every community has a

right to found and administer educational and other charitable institutional and

to run them according subject perceptions of what is best of the community and

for the institution subject of perceptions of what is best for the community and

for the distinction for religion or language minority or majority.

The only consequence of this will be that provisions relating to displacing of

managements through statutory schemes of administration or through take over

of institutions and appointment of authorized controllers and also those

divesting the management of the powers of appointment and discipline

pertaining to teachers will have to be treated as unconstitutional in so far as

they relate to majority institutions too to the same extent as they have been

treated vis-à-vis minority institutions and it will not be such a bad thing from

the educational angle either the ground reality is that just as nationalization of

many private industries on ground of mismanagement by industrialists has

proved counter productive. so also has the taking over of the management

institutions. The cause for interference in each case was the acts of

mismanagement and dissipation on the party of private mil owners or school

college managers. But the bureaucrats displacing them have by and large not

felt any commitment to the industry institution at all and have succumbed to

political pressures with the result that things have only worsened instead of

improving. That is why they are now being re-privatized it is only though de

politicization of control over the institutions that the management can be better

and more evenly disciplined. Deprivation of management of their power in

regard to appointment and discipline of teachers has likewise led to a steep fall

in discipline and standard. Many teachers do not care to listen even to their

principal or head of department what to say of the management. Absenteeism

indulgence in private tuitions and running of coaching schools are the order of

the day. Of course regulatory provision to the same extent not more noels as

have been accepted to be necessary for the protection of teacher of minority

institutions would in any case continue in relation to teachers of majority

institutions also. The trend the work over is now for less and less of

government. If misadministration can be prevented in the case of minority

institutions without emasculating the management the same should be minority

institution too. As per Ray C.J. in St. Xavier's and per Jag Mohan Reddy J. all

institution irrespective of any denominational distinction should be places of

workshop of learning for students

Conclusion: The courts, however, seem to have been persuaded by practical

compulsion rather than be swayed away by a feeling of faithfulness to the spirit.

Their course of opinion seems to have been determined by some of the

followings:

i. That provisions in question seeks to protect minorities against state action,

which term includes laws and also under them, executive actions.

ii. That ours being a federal democratic system, political and legislative

processes operate not only from the national center of power but also from the

iii. That these states are autonomous in their respective legislative spheres-and

laws are passed by majority votes.

iv. That minorities, considered as much on the national level, do constitute

numerical majority in some states.

v. That these majorities may, by their laws, deny the protection to the non-

dominant group which the Constitution so emphatically seeks to secure.

vi. That these majorities may, by their numerically strength, overshadowed the

distinct shadow the distinct characteristics and individuality of the non-

dominant groups, and the latter may have to live under a psychological fear of

being discriminated and overwhelmed.

vii. That it was this fear in some sections of some minorities at least, which had

pervaded the politics the politics of pre-partition India, and that it was on this

premise that minority rights were demanded and conceded in Constitution

Assembly.

viii. That it is this fear, which still continues to be the core component of the

minority component.

ix. That the assurance to protection for minorities can tell its true meaning only

when a non-dominant group in a state is define and ascertain as 'minority'

where the law in question is a state law, eve though the group happens to be a

part of the 'majority', considered a majority in the context of the whole country.

x. That the same reason that became the basis for article 29 and 30 to find a

place in the category of justiciable Fundamental Rights must be valid in this

situation also.