21 Cultural Rights in the Indian Constitution and Case Law

Prof. Rehan Abeyratne

Introduction

India is a diverse country containing several sub-cultures, religions, ethnic groups and languages. Given this incredible diversity, the Constitution of India recognizes cultural rights in various forms and includes safeguards to protect minority languages as well as religious and cultural practices.

This chapter will introduce students to the constitutional framework protecting cultural rights in India. It will also look at important Supreme Court cases that have applied constitutional provisions to protect the rights of minority groups.

Learning Outcomes:

After completing this chapter, students should know and understand:

• Fundamental Rights in the Constitution protecting cultural rights.
• Directive Principles in the Constitution pertaining to cultural rights.
• Important Supreme Court judgments on cultural rights.

I. Cultural Rights in the Indian Constitution

India gained independence from the British in 1947, but it only adopted its republican Constitution in 1950 after more than two years of deliberation within its Constituent Assembly. There was much debate in the Assembly about which rights to make justiciable (i.e., enforceable by courts). Some members of the Assembly favored including provisions on social and economic justice as enforceable rights. K.M. Munshi drafted the “Rights of Workers” and “Social Rights,” which included the right to a living wage and protections for women and children. Dr. B.R. Ambedkar, the Chairman of the Drafting Committee, favored a social scheme to nationalize all major industries that would take effect ten years after the Constitution was adopted.

In the end, however, these views did not prevail. The Indian Constitution that was finally adopted includes provisions on social and economic justice, but they are framed as Directive Principles of State Policy (DPSPs) and not as justiciable rights. It divides “fundamental rights” (mostly civil and political rights) and the DPSPs. Fundamental rights were placed in Part III, while DPSPs were placed in Part IV. Articles 32 and 226 of the Constitution allow the Supreme Court and High Courts, respectively, to redress violations of fundamental rights. However, Article 37 makes clear that the DPSPs “shall not be enforceable by any court.” DPSPs are non-justiciable because they represent aspirational long-term goals of the state that will be gradually realized over time. The Constitution sought to give elected representatives the flexibility to purse these goals progressively and in light of resource constraints, without the courts interfering in their enforcement.

Cultural rights, however, do not neatly fit into these two categories. Unlike some economic and social rights, like the right to food, cultural rights are protected at the international level both within the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). This is because certain aspects of culture – such as protecting minority cultural practices – are viewed as civil rights, while other aspects – like promoting greater access to a community’s cultural life and scientific advancement – include positive state obligations and are therefore grouped with economic and social rights.

The framers of the Indian Constitution took a similar approach. Cultural rights are therefore located in both Parts III and Part IV of the Indian Constitution. Part III includes the following provisions as fundamental rights:

1. Article 29(1) of the Indian Constitution guarantees ‘any section of citizens’ with a distinct language, script or culture the right to conserve it. This article therefore guarantees minorities the right to protect and preserve their culture.
2. Article 29(2) protects the equality of citizens, as it guarantees protection against discrimination on the basis of religion, race, caste or language.
3. Article 30 allows permits cultural and language minorities to establish and administer their own educational institutions. This right therefore protects the right of minority groups to promote their cultures and languages.
4. Article 30(2) prohibits the government from denying minority educational institutions state funds or aid. In other words, it prohibits discrimination and ensures equal protection of groups in the field of education.
5. Part IV of the Constitution (Directive Principles of State Policy) also includes provisions pertaining to cultural life. Article 43 imposes a positive obligation on the state to ensure that all workers are able to fully enjoy social and cultural opportunities. This is similar to the provisions of the Universal Declaration of Human Rights (UDHR) that recognize the right to enjoy and participate in cultural life. Article 51A(f) imposes a duty on citizens of India to value and preserve the composite culture and heritage of the nation. The DPSPs therefore place responsibility on both individuals and the state to preserve and promote India’s cultural heritage.

II. Indian Case Law on Cultural Rights

The Indian judiciary has struggled to balance the cultural rights of minority groups with other rights. It has also struggled to identify minority groups that should receive constitutional protection and to define exactly which practices of those groups should to protect. This section will first examine cases pertaining to the establishment, affiliations and policies of universities with respect to minority groups. It will then discuss cases that define and limit minority religious practices.

A. Cultural Rights in Higher Education

In Dayanand Anglo Vedic College v. State of Punjab (1971), several colleges within the DAV institution filed writ petitions under Article 32 of the Indian Constitution challenging the constitutional validity of certain provisions of the Guru Nanak University Act 21, of 1969. These colleges claimed violations of Art. 14, 19(1)(c) and (f), 26, 29(1) and 30(1) of the Constitution.

The DAV colleges were established in the memory of Swamy Dayanand Saraswathi, the founder of the Arya Samaj. As a result, these institutions followed a strict religious programme in line with the teachings of its founder. The petitioners alleged that Arya Samaj was a separate religious sect, as it has its own philosophical conception of god, rituals, vedic culture, etc.

In order to mark the 500th birth anniversary of Guru Nanak, the State of Punjab established Guru Nanak University. The State also announced that all other universities in the surrounding area – including the DAV institutions – were to be affiliated with the Guru Nanak University. The objective of the Guru Nanak University was to propagate the Sikh religion and promote the Punjabi language. The DAV colleges therefore objected to being affiliated with this university, as its objectives went against their own objectives to promote the Arya Samaj religion, language and culture. Thus, the petitioners claimed that their rights as a minority group under Article 29(1) and 30(1) were violated.

In its judgment, the Supreme Court noted that Article 29(1) guarantees protection to all individuals, while 30(1) is limited to minorities. The Court emphasized the right of minorities to protect, promote, and conserve their culture under 30(1). In order to seek protection under Article 30(1), the Court held that it is sufficient for petitioners to prove their minority status on just one front, either as a religious minority or linguistic minority. The Court then established a standard of review to determine what constitutes a ‘minority’. It held that minorities would be defined based on the population of individual states, not the whole country. Therefore, in this case, the Court found that the Arya Samaj were a religious minority in the state of Punjab – Sikhs constitute the majority of the Punjab population, and Hindus form a minority. The Court also found that petitioners’ rights under Article 29(1) were constrained, as their freedom to protect and conserve their religion was unduly restricted. Overall, the Court held that the rights of the DAV institutions under 29(1) and 30(1) were violated, as they have a right to protect and conserve their traditions and culture. They could not be forced to affiliate with another institute whose purposes and objectives contradict their own.

In a recent case, the Right to Education Act (RTE Act) was challenged on grounds, inter alia, that it violated minority rights under the Constitution. In Society for Un-Aided Private Schools of Rajasthan Vs. Union of India (2012), 5 the Supreme Court was asked to determine if Section 12(1)(c) of the RTE Act is ultra vires of the Constitution insofar as it applies to unaided private schools and minority schools. The Court found that this provision, which requires private schools to reserve 25 percent of their seats for disadvantaged groups, was not a reasonable restriction, as they do not receive any government assistance. It also found that this restriction violated the right of minority groups under Article 30(1) to establish and administer their own educational institutions.

The Court therefore held that Section 2(n) of the Act, applying the right to education enshrined in Article 21-A of the Constitution to all schools, should not be read to include minority and private institutions. Section 12(1)(c) was also read down as far as it applied to these institutions.

This case was later referred to a Constitutional Bench of the Supreme Court, which recently released its decision. The Constitutional Bench upheld the Division Bench’s judgment in Society for Un-Aided Private Schools insofar as it held that the Act was ultra vires of the Constitution vis-à-vis minority schools under Article 30(1). The Court noted that the text of Article 30 (1) grants minority groups the right to establish and administer educational institutions “of their choice.” These latter three words, according to the Court, show that the right is framed in absolute terms, unlike Article 19, for instance, which allows for reasonable restrictions. Still, the Court found that regulations may lawfully be imposed as a condition for receiving a grant or recognition as long as those regulations satisfy the test of reasonableness.

The Court then looked to the purpose of Article 30. It found that the framers of the Indian Constitution thought it was the duty of government to allow minority groups to protect their culture, language and script by establishing their own educational institutions. It stated that if minority schools were required to reserve 25 percent of their seats for scheduled castes and tribes and other backward groups, it would change the character of these schools and defeat the purpose of Article 30. The Court therefore held that this provision of the RTE Act had to be read down because it violated the Constitution.

B. Cultural Rights of Religious Groups

Religious freedom receives robust protection in the Constitution of India. In addition to Articles 29 and 30, two other provisions protect religious freedom. Article 25 guarantees the freedom of religious belief and practice, while Article 26 allows religious groups to establish and maintain places of worship, as well as to manage their own affairs. The Supreme Court has issued a number of rulings on religious freedom under the Constitution. These judgments show that the Court has struggled to define which religious groups and practices should receive constitutional protection.

In Shastri Yagnapurashdasji v. Muldas Bhundardas Vaisya (“Satsang case”), the petitioners challenged a 1947 Bombay law that opened Hindu temples to untouchables. The petitioners were members of the Satsangi sect, who sought an exemption from this law by declaring that they were not Hindu. The Supreme Court dismissed their claim and, in doing so, set out to explain “what are the distinctive features of Hindu religion.” The Court examined the teachings and history of the Satsang sect and found that its tenets were identical to those of Hinduism and that its creator was simply one of many reformers of the Hindu religion, not the founder of a separate faith. The Court noted that while Hinduism is almost “impossible” to define, it should be thought of as a “way of life” that is tolerant, inclusive and universalist in nature. Later in the judgment, the Court articulated a more essentialist version of Hinduism, stating “The satsangi’s [petitioners’] apprehension about the pollution of the temple is founded on superstition, ignorance, and complete misunderstanding of the true teachings of Hinduism.” This statement seems to conflict with the Constitution’s mandate in Article 26 (b) that religious denominations have the right to manage their own affairs. Thus, ironically, the Court went from noting how difficult Hinduism was to define, to forcefully defending and imposing a certain definition of the religion on a group that claimed it was not Hindu.

In another line of cases, the Supreme Court developed what has become known as the “essential practices” test. This test was first articulated in Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (“Shirur Mutt” case). In this case, the Court established that while the Constitution protects the freedom to engage in acts of religious worship, it only protects those acts that are “essential” to a particular religion.

In Acharya Jagdhiswaranand Avadhuta v. Commisioner of Police, Calcutta (1984), a monk from the Ananda Marga cult filed a writ petition before the Supreme under Article 32 alleging violations of Articles 25 and 26 of the Constitution. Shri Ananda Murti created the Ananda Marga cult as a socio-spiritual organization. The objective of the cult was to promote service to humanity in different spheres. The petitioner contended that Ananda Marga had no dogmatic beliefs, but rather teaches yogic and spiritual science to every aspirant. The cult, according to the petitioner, simply helped further spiritual advancement that enables individuals to practice dharma. The petitioner and members of his cult use a dance called Tandava to greet their spiritual leader. This dance is performed with a skull, knife, and a trishul. The Commissioner of Police, Calcutta had prevented members of the cult from performing this dance in public places. The petitioner contended that this dance is an essential practice of the Ananda Marga religious denomination and therefore must be allowed in public. He asked the Court for a direction to the Commissioner of Police to allow the Ananda Marga cult to have meetings and processions in public places that would include performing the Tandava dance.

The Supreme Court had to determine in this case whether the Tandava dance was essential to the practice of this religious domination or cult. The petitioner conceded that the Tandava dance form was only incorporated into religious practice in 1966. In 1955, when the Ananda Marga cult was first established, the dance form was not considered to be a part of its culture. Therefore, the practice had existed only for 16 years when this case was brought before the Court. The Court emphasized the newness of this practice and further noted that, although the writings of Murthi referred to the Tandava dance, he did not give reasons for why it should be performed in public. Therefore, the Court held that while this dance might be a religious rite and practice, it was not an essential practice of the Ananda Marga religion or culture. The Court further noted that this dance form was repulsive to public taste and morality, and instigates fears in the minds of the public, particularly in children. Thus, the Court held a restriction prohibiting the performance of the dance in public on grounds of morality, fear, and public order were justified and dismissed the writ petition.

Summary

Cultural rights receive broad protection in the Indian Constitution. They are articulated in both Part III (Fundamental Rights) and Part IV (Directive Principles of State Policy). This is because while some cultural rights, like Articles 29 and 30, are framed negatively to protect minority groups from the state, other provisions impose positive obligations on citizens and the state to promote and preserve cultural values and heritage. Article 43, for instance, requires the state to ensure that all workers are able to fully enjoy social and cultural opportunities.

The Indian Supreme Court has been protective of minority groups in the field of education. In the DAV College and Society for Un-Aided Private Schools of Rajasthan cases, the Court held that government requirements that forced minority educational institutions to change their character was contrary to the text and purpose of Articles 29 and 30 of the Constitution. With respect to the cultural practices of religious groups, the Supreme Court has had difficulty in defining the sorts of groups and practices that warrant constitutional protection. For instance, in the Satsang case, the Court declared that a sect was part of Hinduism even though it claimed not to be. While the Court interpreted Hinduism broadly to include the Satsang sect, it also denigrated certain practices of this sect that in its view were not in keeping with the religion’s true meaning. In the Acharya Jagdhiswaranand Avadhutai case, the Court upheld a restriction on a minority religious cult, the Ananda Marga, which prevented this group from performing its rituals, including the Tandava dance, in public places. Once again, the Court inserted its own judgment as to what practices are essential to a religion and, as in the Satsang judgment, the Court also expressed negative views on moral and cultural values of the cult, which influenced its decision.

Reference

• Granville Austin, The Indian Constitution: Cornerstone of a Nation (New Delhi, Oxford University Press, 1996).
• Austin, The Indian Constitution, at 78.
• Pramati Educational & Cultural Trust v. Union of India Writ Petition No. 416 of 2012 (2014).
• This section draws from Rehan Abeyratne, “Contrasting Neighbors: Rethinking Judicial Independence in India and Sri Lanka” (working paper).