NEED FOR EDUCATIONAL RIGHTS OF MINORITIES: AMENDMENTS

Several members sought to make amendments so broad-based as to prohibit all institutions, state or state-aided, from discriminating against any person belonging to minority or majority in matter of admission. Patel rejected all of them and said that he only wished to say that this is a simple non-discriminatory clause against the minorities in matter of admission to schools which are maintained by the state. Hence the clause 18 as adopted by the assembly became article 23 of the draft constitution with certain drafting changes. Till this stage the intention of the assembly was to protect ‘minorities’ from being discriminated in mattes of admission. It was only when the draft article was brought before the assembly that a dramatic change took place in this position.

Pandit Thakurdas Bhargava suddenly came forward with an amendment to redraft article 23(2) to read:

No citizen shall be denied admission into any educational institution maintained wholly by the state or receiving aid out of state funds on ground only of religion, language or any of them.

Explaining the amendment, he pointed out that the amendment was intended to (I) extend the right of admission to educational institutions to all citizens, whether they belong to the majority or the minority, and (2) to provide that not only state maintained institutions but also these receiving aid out of state funds would be prohibited from practicing discriminating in the matter of admission. The assembly accepted the amended and, with that, Bhargawa’s explanation. What impelled the assembly to accept Bhargawa’s amendment substituting the word ‘minority’ by the ‘citizen’ are not known as the assembly chose to assign none. what However is known is that the assembly’s attention was not drawn to the apparent conflict Between what now are article 29(2) and article 30(1).The assembly paid no attention to this apparent conflict, can be offering two possible reasons:

o The Assembly, deliberately intended to take away indirectly what it intended to Concede to minorities directly by placing article 29(2) as an exception to article 30(1)

o The assembly, in its estimation, did not find article 29(2) as being in conflict with article with article 30(1) and as such an exception to article to article 30(1)

The first possibility must be ruled out as the assembly could not be expected to desire an absurd result. Alternatively, it is only the second possibility, therefore, which can be relied upon to infer the framers intention that they did not mean article 29(2) to serve as exception of article 30(1). The following factors would appear to help strengthen this reliance:

• Bhargawa’s explanation for substitution of the word ‘minority’ with the word Citizen in article 29(2) was no different form Ambedkar who substituted the word ‘Minority’ by the words ‘any section of the citizens’, making the benefit of article 29(1) available to other groups as well as, without, at the same time, sacrificing the real object to achieve which article 29(1) was being incorporated.

A close reading of Bhargawa’ s explanation of the amendment shows that he, like Ambedkar, did not wish to change article 30(1). What he wanted was to make available to the students of the majority community also a right which the Assembly was to concede to minorities, thus trying to broaden the scope of article 29(2) without touching the special right made available to minorities under article 30(1). Bhargava explained that the second change which this amendment seeks to make is in regard to the institutions which will be governed by this Provision of law. Previously only the educational institution maintained by the state were included. This includes other institutions which are aided by state funds.

There are a large number of institutions and in future by this amendment the rights of the minority have been broadened and the rights of the majority has also been secured.

• If the framers intended to make the prohibition under clause (2) of article 29 available against minority institutions by treating the same as the exception to the right under article 30(I), the most appropriate place for such inclusion was article (30) itself and not article 29. It is obvious that if the framers were sure that they were treating clause (2) of article 29 as an exception, nothing could have prevented them to tag the exception to article 30 which sought to incorporate the general rule. If the prohibition was intended to constitute an exception to article 30(I). the framers could have used such words as ‘subject to the provisions of article 29(2)’ at the opening if article 30(2) or ‘notwithstanding anything contained in article 30(I)’ at the opening of article 29(2).

Since they have not done so, it becomes obvious that the intention of the framers was not to treat article 29(2) as an exception to article 30.