Article 29(2) of the Indian Constitution – The Genesis and Purport

A look at how Article 29(2) of the Indian Constitution took shape gives some great insights into the intention that the Authors of our Constitution had, in providing certain protection for the minorities.

This is of interest to us given how the sectarian laws in education are taking shape in India today.

RTE – being the most prominent of such laws.

Articles 29 and 30 of the Constitution were originally constructed and debated under Draft Article 23 of the Constituent Assembly. The original Article 23(2) was as below.

No minority whether based on religion, community or language shall be discriminated against in regard to the admission of any person belonging to such minority into any educational institution maintained by the State”

An amendment to this clause was introduced by Pandit Thakur Das Bhargava and he proposed that the following be substituted

“No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them”

This modified clause Article 23(2) subsequently became Article 29(2) and remains in almost the same form even today.

The key difference between the original clause and the amended clause is that it has been made applicable to any citizen of India, instead of the original target of just minorities. The Article guarantees that no citizen shall face discrimination based on religion, caste etc when getting into any educational institution.

When this amendment was introduced in the Constituent Assembly (on the 8th of December 1948), Pandit Bhargava gave an excellent speech and highlighted some key reasons why this clause must not be specific to minorities alone. The reasoning given in that speech is an indication of the line of thinking that our founding fathers had with respect to the treatment of minorities, their rights and duties.

Some key statements from the speech of Pandit Bhargava is produced below.

“Now if we read Clause (2) it would appear as if the minority had been given certain definite rights in this clause, whereas the national interests require that no majority also should be discriminated against in this matter”

Unfortunately, there is in some matters a tendency that the minorities as such possess and are given certain special rights which are denied to the majority

“It was the habit of our English masters that they wanted to create discriminations of this sort between the minority and the majority. Sometimes the minority said they were discriminated against and on other occasions the majority felt the same thing”

“This amendment brings the majority and the  minority on an equal status”

In educational matters, I cannot understand, from the national point of view, how any discrimination can be justified in favour of a minority or a majority

“Therefore, what this amendment seeks to do is that the majority and the minority are brought on the same level. There will be no discrimination between any member of the minority or majority in so far as admission to educational institutions are concerned

“So I should say that this is a charter of the liberties for the student-world of the minority and the majority communities equally”

(Even a cursory reading of the above leaves one in no doubt that the authors of our Constitution viewed both majority and minority on equal terms when it comes to opportunities in educational institutions)

When the various amendments proposed for Article 23 came up for adoption, the leader of the Constituent Assembly, Dr B R Ambedkar replied to the debates and accepted only 2 main modifications to the original draft article.

The amendment proposed by Pandit Bhargava was accepted by Dr B R Ambedkar. In fact it was accepted in toto!!

Here is the statement of Dr B R Ambedkar

Sir, of the amendments which have been moved to article 23, I can accept amendment No. 26 to amendment No. 687 by Pandit Thakur Dass Bhargava. I am also prepared to accept amendment No. 31 to amendment No. 690, also moved by Pandit Thakur Dass Bhargava.”

With this in mind, we can draw 2 conclusions

  1. The 93rd amendment to the Indian Constitution which inserts clause (5) to Article 15 of the Constitution giving immunity to minority institutions regarding admission to educational institutions goes orthogonal to the very intention of the makers of the Constitution with respect to Article 29(2) of the Constitution.
  2. The interpretation of the Supreme Court vide Pramati vs Union of India in declaring that the whole of the RTE Act will not apply to minority educational institutions, both aided and unaided, once again goes against the principles based on which the makers of our Constitution drafted and adopted Articles 29 and 30.

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