The Role of State Constitutions in Protecting ... - International IDEA

All minorities, whether based on religion or language, shall have the fundamental
right to establish and administer education institutions of their choice [Art.
30(1)]. While Art. 29(1) enables them to run their own educational institution,
so that the State cannot compel them to attend any other institutions, not to their
liking. By the 1978 amendment, favorable treatment has been accorded to such
minority educational institutions in the matter of compensation for compulsory
acquisition of property by the State. By reason of the appeal of Art. 31, all persons
have lost their constitutional right to compensation for acquisition of their
property by the State. However, educational institutions established by a minority
community lie entrenched in this behalf. Their property cannot be acquired by
the state without payment of such compensation as would safeguard their right to
exist, as is guaranteed by Art. 30 (1A).
The State shall not, discriminate in granting aid to educational institutions on the
ground that it is under the management of a minority, whether based on religion
or language [Art. 30 (2)].
The ambit of the above educational safeguards of all minority communities,
whether religious, linguistic, or otherwise, can be understood only if we notice the
propositions evolved by the Supreme Court of the above guarantees:
(a) Every minority community has the right not only to establish its own
educational institutions, but also to impart instruction to the children of
its own community in its own language.
(b) Even though Hindi is the national language of India and Art. 351
provides a special directive upon the State to promote the spread of
Hindi, nevertheless, the object cannot be achieved by any means, which
contravenes the rights guaranteed by Art. 29 0r 30.
(c) In making primary education compulsory [Art. 45], the State cannot
compel that such education must take place only in the schools owned,
aided or recognized by the State so as to defeat the guarantee that a
person belonging to a linguistic minority has the right to attend
institutions run by the community, to the exclusion of any other school.
(d) Even though there is no constitutional right to receive State aid, if the
State does in fact grant aid to educational institutions, it cannot impose
such conditions upon the right to receive such aid as would virtually
deprive the members of a religious or linguistic community of their right
under Art. 30 (1). While the State has the right to impose reasonable
conditions, it cannot impose such conditions as will substantially deprive
the minority community of its rights guaranteed by Art. 30 (1).
Surrender of fundamental rights cannot be exacted as the price of aid
doled out by the state. Thus, the State cannot prescribe that if an
institution, including one entitled to the protection of Art. 30 (1), seek
to receive state aid, it must subject itself to the condition that the State
may take over the management of the institution or to acquire it on its
subjective satisfaction as of certain matters, – for such condition would
completely destroy the right of the community to administer the
institution.
25