Article 30 Of Constitution Was Framed As No Reservation Could Be Given To Religious Minorities: Kapil Sibal Argues Before Constitution Bench

On the second day of the arguments before the Constitution Bench of the Supreme Court hearing matter pertaining to the minority status of the Aligarh Muslim University (AMU), Senior Advocate Kapil Sibal appearing for a Petitioner (Old Boys Association), argued that since the minority community could not have been empowered through reservation, there was no other way to give an opportunity to those left out, except through Article 30.

Article 30 of the Constitution provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. The Constitution Bench hearing the matter comprises Chief Justice DY Chandrachud, Justice Sanjiv Khanna, Justice Surya Kant, Justice JB Pardiwala, Justice Dipankar Datta, Justice Manoj Misra and Justice Satish Chandra Sharma.

Sibal started his arguments yesterday by speaking about Article 30, “There are all kinds of minorities. There are Hindu Minorites, there are Muslim minorities, Christian Minorities. But when it came to Scheduled Caste and Scheduled Tribe, I am talking about education, a special provision for reservation for them was made in the Constitution itself. Then came the amendment to Article 15, and that reservation was extended to the backward community. So, we have reservations in the educational institutions for Scheduled Castes, Scheduled Tribes, for backward communities. No reservation could have been given to the Muslim community, or the Christian community or the Sikh community because it would be violative of Articles 15 and 14 and 16”, he submitted.

“So, in the context of the framework of the constitution there was no other way to give an opportunity to those left out, to allow for education”, Sibal submitted further.

The Bench then intervened to say that the reference is not on that issue. "Article 30 has its various connotations. There is impact of Article 30, which is entirely different from what we are deciding today. We are deciding only a limited question- what is meant by establish and administer in Article 30. We are not dealing with what is the effect if an institution is declared to be a minority institution. Because that has been the subject matter of a lot of debates....", Justice Sanjeev Khana said.

"I am just giving a background as to why Article 30 came into being", Sibal clarified.

Chief Justice DY Chandrachud then said, "What you are saying is that the beneficial provisions which were carved out, say for SCs, STs and socially and educational backward classes, could not have been given to the minorities because there would have been the bar of Article 15(1). No discrimination on the grounds of religion".

"That's right. There is a rationale", Sibal responded in agreement.

"What is the special provision that was drafted by the Constitution makers- Article 30. That is why Article 30 has been called, in a sense, an Article of faith. We must put ourselves back in 1949-1950. The idea was to give a sense of confidence to the religious and linguistic minorities that they would be safe in the country....", the CJI remarked further.

"That's right", Sibal said and added, "It is in this context that Article 30 is in the Constitution. I am just giving your lordships the broad constitutional framework".

Later, during the course of his arguments, Sibal argued, “We are even below Scheduled Castes in terms of education and the only thing to empower them is education. However, in the university, the higher studies courses like MD and MS, Engineering it is the majority that occupy the seats and not the minority, because they have not been empowered since school. The only place they are usually found is in theology, religion because the majority community does not want to be a part of the same. And, thus the only way to empower is through this university”.