Educational Rights According To The Makers Of Our Constitution

Over a number of articles, we have seen the various phases of development of Article 30 during the framing of our Constitution. In particular, we have looked at how the text of the Article, as it stands today, was derived heavily from a memorandum submitted by a group of minority leaders during the Second Round Table Conference of 1931. We have also seen how the members of the Constituent Assembly, especially Dr B R Ambedkar, interpreted the text and highlighted how the rights are always meant to be applicable for all communities.

In the present article, we shall see the Draft articles prepared by various members of the Constituent Assembly on the topic of ‘Educational Rights of Minorities’ that covers Article 30. The aim of this collation is to show how almost all members of the Constituent Assembly intended the rights to be protective in nature, as also meant it to be equal in terms of applicability. In other words, the rights under Article 30 were never meant to be as a privilege to only the minority communities.

The inputs of the Constituent Assembly members will be covered under three sections.

Draft Articles on Fundamental Rights

The cultural and educational rights of minorities fell under the category of Fundamental Rights and hence the responsibility of charting it out fell on the Fundamental Rights Committee (FRC) of the Constituent Assembly (CA). When the FRC started its work, it depended upon the Draft Articles prepared by four of its members to initiate the task. The four members were Professor K T Shah, K M Munshi, Dr B R Ambedkar and Harnam Singh.

Responses to the Questionnaire distributed by the Minorities Sub-Committee

Out of all the Fundamental Rights, those concerning the minorities were handed over to a sub-committee for finalization. In its meeting on the 28^th of February 1947, this sub-committee framed a short questionnaire and circulated it amongst all its members soliciting responses before the 31^st of March 1947. The questionnaire was as follows.

1. What should be the nature and scope of the safeguards for a minority in the new Constitution?
2. What should be the political safeguards of a minority: (a) in the Centre (b) in the Provinces?
3. What should be the economic safeguards of a minority: (a) in the Centre (b) in the Provinces?
4. What should be the religious, educational and cultural safeguards for a minority?
5. What machinery should be set up to ensure that safeguards are effective?
6. How is it proposed that the safeguards should be eliminated, in what time and under what circumstances?

Responses to all questions were not mandatory, nor was it necessary to respond in the above manner itself. However a number of the members did respond to the questions and a sub-set of them addressed question number 4 – which covered educational rights.

We shall also look at the responses to question number 4 given by the members. (Only those of the responses which addressed the issue of granting rights to run educational institutions have been included in this article. Few other responses, which do not directly address this topic, although related to educational rights, have not been reproduced).

Memorandum submitted by various groups and individuals

The Minorities Sub-Committee received representation from various individuals, both part of the CA and other individuals, and various groups interested in minority rights. Relevant sections of their inputs have also been collated in this article.

Document: A Note On Fundamental Rights by K T Shah, December 23, 1946

Section: Draft Clauses

18. The culture, language and script of specified religious or communal minorities, as well as of the different linguistic areas in the Union, or in any component part thereof, shall be duly protected, and safeguarded, without prejudice to any public encouragement or support being given for the development of a single national language for official or public intercourse throughout the Union as the official national medium of intercourse and expression in all public documents, before all public bodies, or tribunals, and for all public purposes.

Note: The theme of this draft Article, as clearly seen, is of a protective nature.

Document: K M Munshi’s Note and Draft Articles on Fundamental Rights, March 17, 1947

Section: Draft Articles, Article VI

3. Citizens belonging to national minorities in a State whether based on religion on language have equal rights with other citizens in forming, controlling and administering at their own expense, charitable, religious and social institutions, schools and other educational establishments with the free use of their language and practice of their religion.
4. No legislation providing State-aid for schools shall discriminate against schools under the management of minorities whether based on religion or language.

Note: Two salient features of these draft Articles are the emphasis on “equal” rights and the focus on non-discrimination against minorities.

Document: Dr B R Ambedkar’s debate in the Constituent Assembly, 8th of December 1948.

Section 1: Debate on amendments to Draft Article 23 moved by Pandit Thakurdas Bhargava

The first point that I would like to submit to the House as to why the Drafting Committee thought it necessary to alter the language of paragraph 18 of the Fundamental rights is this. On reading the paragraph contained in the original Fundamental Rights, it will be noticed 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 purposes of certain political safeguards, such as representation in the Legislature, representation in the services 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 cultural and linguistic sense. For instance, for the purposes of this article 23, if a certain number of people from Madras came and settled in Bombay for certain purposes, they would be, although not a minority in the technical sense, cultural minorities…..

The article intends to give protection in the matter of culture, language and script not only to a minority technically, but also to a minority in the wider sense of the terms as I have explained just now. 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, when it passed article 18, 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…

Note: Dr B R Ambedkar had prepared his own set of Draft Articles on Fundamental Rights. However, they did not contain any explicit Article related to educational rights of minorities.

Section 2: Proceedings of the Meetings of the Advisory Committee of the Constituent Assembly, April 21-22, 1947

Dr B R Ambedkar: “There are two propositions in this. The first is whether every minority, religious, communal or linguistic, should have the liberty to establish its own educational institutions. That is the first question. The second proposition is this: Whether if the State decides to give any grant, it should treat all such institutions equally. If these two propositions are kept in mind, I think we should be able to arrive at some formula….”

Note: Dr Ambedkar’s emphasis here too is on giving minorities liberty to establish institutions and also treating them equally, especially of course of matters of State aid.

Document: Harnam Singh’s Draft on Fundamental Rights, March 18, 1947

Section: Draft Articles

16. The State shall protect the culture, language and script of the various communities and linguistic areas in India
17. A minority school shall be established on the application of a national supported by the persons legally responsible for the education of at least 40 children of the minority provided that these children are nationals and that they belong to the same school district and that they are of the age at which education is compulsory and that their parents intend to send them to the said school. If at least 40 of these children belong to the same denomination or religion a minority school of the denominational and religious character desired shall be established on such applications.
18. Legislative or administrative measures providing state aid for schools shall not discriminate between schools under the management under different religious denominations.

Note: In these Draft Articles too, the focus on non-discrimination and therefore safeguards for minorities is clearly visible.

Document: Letter from K M Munshi circulated to the members of the Sub-Committee on Minorities, April 16, 1947

Section: Draft submitted as part of the letter

2. Citizens belonging to national minorities in a State whether based on religion on language have equal rights with other citizens in forming, controlling and administering at their own expense, charitable, religious and social institutions, schools and other educational establishments with the free use of their language and practice of their religion.

Note: In this note too, K M Munshi reiterated the importance of equal rights for all citizens.

Document: Reply to the Questionnaire circulated by the Minorities Sub-Committee, M Ruthnaswamy, March 31, 1947

Section: Question – “What should be the religious, educational and cultural safeguards for a minority?”

2. (i) grants-in-aid to schools and other educational institutions maintained by these religious communities and in which their religion is taught.
3. (iii) schools for minorities, where their religion and their culture would be cultivated, should be maintained by the government in areas where the majority of the population belongs to a cultural ore religious minority.

Note: M Ruthnaswamy insisted on the State running minority schools under its control.

Document: Reply to the Questionnaire circulated by the Minorities Sub-Committee, P K Salve, April 3, 1947

Section: Question – “What should be the religious, educational and cultural safeguards for a minority?”

4(b)(2) No discrimination on the grounds of religion, creed, caste or sex in the matter of admission to services in any educational institution of secular character (All communal education should be abolished).

Document: Memorandum on Minorities by Shyama Prasad Mookerjee, April 17, 1947

Section: Minority Rights

1(a) All minorities shall have equal right to establish, manage and control at their own expense charitable and religious institutions, and start educational schools and colleges with freedom to use their own language and to practise their own religion therein.

Note: S P Mookherjee makes it explicitly clear that all communities, including minorities, shall have equal rights.

Document: Memorandum on Minorities by Ujjal Singh and Harnam Singh, March/April, 1947

Section: Religious, educational and cultural safeguards

4(x) The maintenance of minority educational institutions shall be provided for according to the same principle as the maintenance of other State educational institutions.

4(xv) Religious minorities in the country shall have a right to establish autonomous institutions for the preservation and development of their national culture and to maintain special organizations for their welfare so far as it is not incompatible with the interests of the State, the organizations having power to levy the taxes for the maintenances of such institutions.

Note: Two things that stand out in this proposal are the emphasis on equal treatment and the over-riding of the autonomy granted if a greater national interest arises.

Summary

The contents of each of the above quoted documents clearly indicates that the founding fathers of our nation, the architects of our Constitution, had only equal rights and privileges in mind, when it came to granting rights to establishing and administering educational institutions. While this article reaffirms the same from excerpts of the Draft Articles, Responses and Minutes of the discussion meetings, we have already seen from previous posts how the same intention permeates even in the Constituent Assembly debates and also the text of the Article.

It is unfortunate that, over the past several decades, Article 30 has been interpreted very narrowly, thereby denying the majority community the rights that are granted to the non-majority. It is time this anomaly is corrected explicitly and a level playing field for all citizens, irrespective of their religion or community, is provided for.

References:

1. Constituent Assembly Debates, 8^th December 1948
2. The Framing of India’s Constitution, B Shiva Rao, Select Documents 2 – Universal Law Publishing