12 Cultural and Educational Rights

Dr. Manoj Sharma

1.Introduction

India is home to diverse communities, cultures, religions, scripts and languages. Diversity in culture, religion, language etc. requires that each group having distinct culture, script or language should be afforded opportunity to conserve and protect their culture and language. While drafting our Constitution, founding fathers of Constitution were conscious of the need of having a secular constitution wherein each group can conserve its culture, language and script. Therefore, Cultural and Educational Rights were included in Part III of the Indian Constitution in Articles 29-Insertion of Articles 29 and 30, conferring fundamental rights on minorities to establish and administer educational institutions and empowering section of citizens having distinct language, script or culture to conserve the same, were aimed at bringing about equality and to instill a sense of confidence among the minorities.

2. Learning Outcome

In this paper, the learner is to be acquainted with the educational and cultural rights guaranteed under the Indian Constitution and the various nuances of right. For the sake of convenience, the discussion has been divided into the following rubrics:

Cultrual and Educational Rights : International Perspective

Cultural and Educational Rights : Indian Position o Rights under Article 29

Rights conferred under Article 30

Meaning of the term „Minorities‟

Minority Educational Institutions o Scope of Article 30(1)

Right to „establish and administer‟ educational institutions o Relationship between Article 29 and 30

Regulation of Minority Educational Institutions

Summary and Conclusions

3. Cultural and Educational Rights : International Perspective

Various international documents embody cultural and educational rights. A brief account is given in Text Box1.

Text Box 1

Article 27 of the United Nations Declaration on Human Rights provides

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 27 of International Covenant on Civil and Political Rights lay down as under:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Article 15 of International Covenant on Economic, Social and Cultural Rights provides:

(1) The States Parties to the present Covenant recognize the right of everyone:

a. To take part in cultural life;

b. To enjoy the benefits of scientific progress and its applications;

c. To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

(2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

(3) The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

(4) The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

Article 2 of Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities provides :

Persons belonging to national or ethnic, religious and linguistic minorities (hereinafter referred to as persons belonging to minorities) have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.

In addition, Article 26 of Universal Declaration on Human Rights and Article 13 of International Covenant on Civil and Political Rights provide for educational rights to one and all without discrimination.

The foregoing account reveals that at international level efforts have been made to provide for educational and cultural rights to the minorities so that they can protect and preserve their culture and language. The international law moots for educational rights to all communities without discrimination.

4.1 Cultural and Educational Rights : Indian Position

At the time when the Constitution of India was being drafted, founding fathers of the Indian Constitution had before them United Nations Declaration on Human Rights and accordingly, an attempt was made to codify various human rights listed in UDHR in the Indian constitution. India being abound in linguistic, cultural and religious minorities, it was also imperative to provide for protection of minorities‟ rights and the constitution framers, in tune with international practices, provided for protection of minorities by empowering them to conserve their language and culture. A community, whether minority or majority, can conserve its language and culture by establishing educational institutions and therefore, the Constitution of India empowers the minorities to establish and administer educational institutions of their own choice. Provisions were thus embodied in Part III of the Constitution of India in Articles 29 and 30.

4. Rights under Article 29

Article 29 of the Constitution of India provides for protection of interests of minorities

4. Rights under Article 29

Article 29 of the Constitution of India provides for protection of interests of minorities

Text Box 2

Protection of interests of minorities

(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

(2) 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.

Clause (1) of Article 29 guarantees that any section of citizens residing in any part of the territory of India, having distinct script, language or culture have a right to conserve the same. Clause (2) of Article 29 provides safeguards to all citizens including minorities against discrimination in the matter of admission to State maintained or State aided educational institutions on the grounds only of religion, race, caste or any of them. Perusal of the above provision shows that though the marginal note to Article 29 refers to protection of interest of minorities, yet the body of Article 29 confers right to conserve language, script or culture on any section of the citizens residing in India irrespective of the fact whether they belong to majority community or minority community.

The Article implies that if there is cultural minority who wishes to conserves its language, script and culture, it shall have fundamental right to do the same and the State shall not impose any other local culture or restrictions upon it. The right conferred by Article 29(1) has been held to be an absolute right1 and it cannot be subjected to reasonable restrictions embodied in Article 19(6). Right to conserve language includes, as a necessary concomitant, right to agitate for the protection of that language.2

Whereas clause (1) protects rights of section of citizens, clause (2) confers an individual right on a citizen not to be denied admission in any State owned or State aided educational institutional on the ground only of religion, race, caste, language or any of them.

It must be noted here that Article 15(4) provides that the State is entitled to make provision for reservation for the advancement of any socially and educationally backward classes of citizens or for schedule castes and schedule tribes. Article 15(4) is an enabling provision and is in the nature of an exception to Article 29(2) whereas Article 29(2) is a substantive fundamental right to admission in State owned or State aided education institutions. However, any such reservation mode under Article 15(4) should be reasonable and should not take away the minority character of the institution.

5. Rights under Article 30

Article 30 of the Constitution of India guarantee Right to minorities to establish and administer educational institutions (Text Box 3)

Text Box 3

30. Right of minorities to establish and administer educational institutions

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition of any property of any educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.3

The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of minority, whether based on religion or language

Right of minorities to establish and administer educational institutions

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of minority, whether based on religion or language.

Article 30 is analogous to Article 42(3) of the Constitution of Eire, 1937 and Section 93 of British North America Act, 1867. Article 30(1) confers „right to establish and administer educational institutions‟ on religious as well as linguistic minorities. Clause (2) prohibits discrimination in giving grant in aid to educational institution on the ground that an institution is under the management of the minority. Before proceeding to deliberate upon the rights conferred by Article 30 and the scope of such rights it would be expedient to discuss the meaning of term „minorities‟

Meaning of the term ‘Minorities’

Article 30 refers to Minorities but the term „minorities‟ has not been defined in the Constitution5, though the term has been defined in statutes. National Commission for Minorities Act, 1993 defines the term as under„Minority‟, for the purposes of this Act, means a community notified as such by the Central Government.6

Under the Act, the Central Government notified five communities as minority communities viz. Muslims, Sikhs, Bhudhists, Parsis and Christians7 for the purposes of central legislations. In 2014, the union government notified another community i.e.Jains as minority community. 8 National Commission for Minority Educational Institutions Act, 2004 adopted the definition of the 1993 Act.9

These definitions, however, does not spell out the criteria for determination of minorities. Therefore, in order to cull out the meaning of the term „minority‟ we have to refer to various pronouncements of the Apex Court.

The question was answered in seven judge bench decision in The Kerala Education Bill case10 and which decision still holds good, wherein Supreme Court commented that „minority‟ is a term which is not defined in the Constitution, and in the absence of any precise definition it must be held that “a minority” means a community which is numerically less than 50 per cent. The Supreme Court decision in T.M.A. Pai Foundation11 settled much air by affirming that the criteria for determining minority shall be the population of the state. The Apex Court taking clue from the provisions of the State Reorganisation Act held that in view of India having been divided into different linguistic States, carved out on the basis of the language of the majority of persons of that region, it is the State, and not the whole of India, that shall have to be taken as the unit for determining linguistic minority vis-a-vis Article 30. The same test has been held to be applicable to religious minorities. Thus, the term minorities refer to those communities who are numerically less than 50% in a State on the basis of state population.

7. Minority Educational Institutions

The Constitution of India confers right on the minorities to establish educational institutions of their choice and gives them protections in Article 30. However, it does not define the term „minority educational institutions‟.

The National Commission for Minority Educational Institutions Act, 2004 defines the term to means a college or institution (other than a University) established or maintained by a person or group of persons from amongst the minorities12.

Central Educational Institutions (Reservation in Admission) Act, 2006 defines „Minority Educational Institutions‟ to mean an institution established and administered by minorities under clause(1) of Article 30 of the Constitution and so declared by an Act of Parliament or by the Central Government or declared as a Minority Educational Institution under the National Commission for Minority Educational Institutions Act, 200413.

In A.P. Christians Medical Educational Society v. Government of Andhra Pradeshi14, it was observed that even a single member of minority community can establish a minority educational institution and claim protections under Article 30(1). The Court, however, declared that the Government, the affiliating University and the Courts are competent to go behind the claim of the institution and investigate whether the claim is genuine or not. The court observed that in order to become a minority educational institution and to enjoy the privileges and protections allowed to a minority educational institution, the institution must be a minority educational institution in truth and reality.

In Dayanand Anglo Vedic (DAV) College Trust and Management Society v. State of Maharashtra 15 , the state government issued a resolution dated 04th July 2008 prescribing the procedure for granting minority status. The Resolution provided that the persons residing in State of Maharashtra whose mother tongue was other than Marathi shall be eligible to submit an application for being recognized as linguistic minority educational institution. The Resolution contained a condition that minimum of 2/3rd of the management committee shall be from the concerned minority community of the State. The Apex Court endorsing its decision in A.P. Christians Medical Educational Society 16 ruled that in order to claim minority religious/linguistic status for an institution in any State, the authorities must be satisfied firstly that the institution has been established by the persons who are minority in such State and that the administration of the said minority institution is also vested in those persons who are minority in such State. The Court recognized that for the purpose of verification, the court and the government can go behind to verify the claims of the institution.

As explained, the minority educational institution should be for the welfare of the minorities in that State where it is established. However, it must not be lost sight of that each community in India may be in minority, religious or linguistic, in one or more states and consequently it is possible that a community which is in minority in one state establishes an educational institution in that state and admits students of that community from another state where they are not in minority. In such a case, it must be noted that by virtue of the decision in Kerala Education Bill17 case, a „sprinkling of outsiders‟ is allowed but that should be reasonable and should be commensurate with minority status in the State of establishment.

At present the certificate that the institution belongs to the category of minority educational institution is given by the National Commission for Minority Educational Institutions after verifying the fact as to who established the institution and whether the person/persons belong to notified minority community. The certificate once granted can be cancelled if the conditions laid down in the enactment are not complied with.

8. Scope of Article 30(1)

The right conferred by Article 30(1) is to „establish and administer‟ educational institutions and the phrase „establish and administer‟ shall be read conjunctively and not disjunctively. In order to claim the protection of Article 30, it must be proved that there is a religious or linguistic minority and that such minority has established an educational institution.18 If these twin conditions are satisfied only then the protection of Article 30(1) can be claimed in administering such institution. 19 The scope of Article 30(1) came up for discussion before the Apex Court in Kerala Education Bill20 case. The court observed that no limitations or stipulations can be laid down as to what should be taught in such educational institutions. The institutions can provide an education which may help their children to grow to their fullest potentialities and enable them to be eligible for higher education.

The above observations were endorsed by the Apex Court in T.M.A. Pai Foundation. The above account reflects that the scope of 30(1) is not confined to teaching of religion or of the language of minority community only, the institution may choose to impart such general or professional education as it wishes. The expression “of their own choice” is of wide amplitude. The institution may impart religious or secular education as per its own choice. Further, it is not necessary that admission to such institution should be confined to members of minority community only, they may have sprinkling of outsiders which does not take away the minority character of the institution. Further, it is not necessary that the institution shall aim at conserving language, script or culture of the minority.

Right to administer educational institution of minorities‟ choice includes,

right to choose its managing or governing body;

right to choose its teachers;

right to admit students of their choice;

the right to use its assets and properties for the benefit of its own institution; 21

right to choose medium of instruction of its own choice;22

right to have reasonable fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly;

right to take action if there is dereliction of duty by any of its employees23

Relationship between Article 29 and 30

The relationship between Articles 29 and 30 requires consideration. Scope of Articles 29 and 30 is different. Article 29 is not confined to minorities but extend to all sections of citizens. Article 30(1) is not controlled by Article 29(1). Article 30 though dealing with those minorities which have a distinct language, culture or script but its scope is not narrow. Article 30(1) confers the right to establish and administer educational institutions of minorities choice. For enjoyment of rights conferred under Article 29(1), it is not necessary to establish educational institutions and the right can be exercised otherwise also.

Analysis of these provisions suggests that Article 29(2) bars discrimination in admission on the grounds only of religion, race, caste etc in State owned or State aided educational institutions whereas Article 30(1) confers right on minorities to administer educational institutions which includes, as stated above, right to admit students of their choice. It must be noted that though bare reading of Article 30 would suggest that it is not subject to any limitations/restrictions yet reasonable restrictions to regulate such institutions which do not take away the right to administer such educational institutions are permissible.

Regulation of Minority Educational Institutions

So far as the extent of regulation and governmental control over the educational rights exercised by minority educational institutions is concerned, these institutions can be divided into three categories24 for determining the extent of regulation or control over them viz.

(i) those who do not need any recognition/affiliation or aid

(ii) those who need recognition/affiliation but do not need any aid from the government

(iii) those who need aid from government

So far as first category of minority educational institutions are concerned they can exercise their right to administer educational institutions unhindered and the State can not interfere into their domain. However, in case of second category of minority educational institutions, educational rights granted to minorities can be regulated and are subject to reasonable restrictions in the nature of prescribing educational standards, qualifications and minimum conditions of eligibility at the time of granting affiliation. It must, however, be remembered that right to administer does not include right to mal-administer. The governmental control, however, has to be minimal and the right to admit students of own choice being an integral part of the administration should not interfered with so long as the admission is on transparent basis and the inter se merit is adequately taken care of.25

In case of third category of institutions, the moment they receive aid from the government, they do not lose their character as minority educational institution, however, they come within the domain of Article 29(2). These institutions need to admit a „sprinkling of outsiders‟ to comply with the mandate of Article 29(2) of the Constitution.26 However, it can not be laid down as to how much percentage of students from non-minority have to be admitted by such institutions. Such percentages can be fixed by the government depending upon the level of the institution, whether it be primary, secondary, college, professional institute, the population and the educational needs of the area.27 However, inter se merit must be ensured.

The extent of regulation/control by the government in case of an educational institution receiving aid from the government again came up for scrutiny in Pramati Educational and Cultural Trust v. Union of India28. The Constitutional Bench of the Supreme Court was confronted with the validity of Section 12(1)(b) read with section 2(n)(iii) of the Right to Education Act, 2009 vis-à-vis Article 30(1) of the Constitution of India. The provision contained in RTE Act contemplated that an aided educational school shall have to provide free and compulsory education to a percentage of weaker sections of society. The minority aided schools were also subject to the same condition and they were put under a legal obligation to provide free and compulsory education to disadvantaged sections of society whether they belong to that minority community or not. Similarly section 12(1)(c) of the Act read with section 2(n)(iv) provided similar condition in case of unaided schools whether minority institution or otherwise. The Supreme Court held that the provisions of the RTE Act, 2009 in so far as they apply to minority schools are ultra vires the Constitution. The Court observed that if the impugned provisions were made applicable to minority institutions, it would abrogate the protection given under Article 30(1).

In Sindhi Education Society and Anr. v. The Chief Secretary, Govt. of NCT of Delhi29, the challenge was regarding the constitutionality of Rule 64(1)(b) of Delhi School Education Rules, 1973 which required all educational institutions receiving aid to furnish an undertaking that they would make reservation in the appointments of teachers for the Scheduled Castes and Scheduled Tribes. The Supreme Court held that the above rule, so far it relates to minority educational institutions to make reservation in appointments, was unconstitutional.

In State of Karnataka v. Associated Management of (Government Recognised-Unaided-English Medium) Primary and Secondary Schools 30 , the Constitutional Bench of the Supreme Court was faced, inter alia, with the question that whether the State can compel linguistic minorities to adopt their mother tongue as the only medium of instruction in primary schools owing to the directive embodied in Article 350A31. The court answered the question in the negative and held that the State can not compel the minority educational institutions to choose its mother tongue as the only medium of instruction as it would be violative of the right guaranteed under Article 30(1). The Court held that imposing such terms as condition for recognition would be violative of Articles 30(1) and 19(1)(g).

Though Article30 (1) is not specifically subject to the restrictions in Article 19(6) but the perusal of various decisions of supreme court in particular St. Xavier college32 , Sidhrajbhai Sabhai33 , T.M.A. Pai Foundation34 and T.M.A. Pai clarificatory judgments pronounced in Islamic Academy35 and P.A. Inamdar 36 cases suggest that the right is subject to various reasonable restrictions for the betterment, of the institution and the students of that institution viz.

It must however be borne in mind that under the garb of regulation, unbridled and uncanalised powers cannot be conferred on the regulatory authorities so as to take away protections available under Article 30. Unreasonable restrictions under the guise of regulations tantamount to infraction of Article 30 and would thus be declared as unconstitutional. Judiciary has been alive to such unnecessary and unreasonable encroachment on the rights guaranteed under Article 30 and has struck down such efforts.

11. Conclusions and Summary

The foregoing account reveals that the Constitution of India, in tune with international obligations, confers special rights on religious and linguistic minorities to establish and administer educational institutions of their own choice. Though right to establish educational institutions could be specifically claimed under Article 19(1) (g) by one and all including minority and majority, yet the founding fathers of the Constitution conferred special rights and protections to the linguistic and religious minorities. It must be borne in mind that right conferred by Article 19(1) (g) is subject to reasonable restrictions contained in Article 19(6), however, rights under Article 29 and 30 are not subject to Article 19(6).

Some of the propositions emerging from the discussion can be summed up as under:

1) Any section of citizen having distinct language, script or culture have fundamental right to conserve the language, script or culture. The right is conferred to group of citizens.

2) An individual can not be denied admission in any State owned or State aided educational institutions on the grounds only of religion, caste, language etc. However, in case of a minority educational institution receiving aid from the State, mere receiving of aid does not take away the minority character of the institution but it does dilute the minority character to an extent obliging the institution to have sprinkling of non-minority students. No such percentage can be fixed as to how much non-minority students shall be required to be admitted by such minority educational institutions receiving aid from the State.

3) The question as to who is minority shall be determined with reference to population of the State and as such a community which is in majority in one state may be in minority in another state.

4) Even a single member of the minority community can establish minority educational institution and claim the protections given in Article 30.

5) In order to claim protections under Article 30(1), it must be proved That the institution is established by minority in that state That the institution is administered by minority in that state That the institution primarily caters to the need of minority of that state though it is permitted to admit students from other states to some extent.

6) Article 29(1) neither controls nor is controlled by Article 30(1). The scope of both the Articles is different. It is not necessary that religious or linguistic minority shall establish educational institution to preserve its culture and language. Similarly, it is not necessary that minority educational institution shall impart only religious or linguistic education only. The expression „of their own choice‟ appearing in Article

30(1) is of wide amplitude meaning that minority educational institutions are free to impart general secular education of their own choice.

7) That right to establish and administer educational institutions includes

Right to admit students of their choice subject however to maintenance of transparency and inter se merit

Right to choose its teachers subject to the fulfillment of eligibility criteria for maintaining excellence in education, in case of affiliated institutions

Right to chose medium of instruction of their own choice

Right to use its assets and properties for the benefit of its own institution

Right to have reasonable fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly

Right to take action if there is dereliction of duty by any of its employees etc.

8) Unaided and unaffiliated minority educational institutions can claim the right to establish and administer educational institutions of their own choice unhindered and the State can not interfere in their administration subject however to the general law of the land pertaining to taxation, health, morality etc.

9) Minority educational institutions requiring affiliation from University or Board shall have to fulfill the eligibility criteria pertaining to maintenance of excellence in education etc.

10) Aided minority educational institutions does not lose their status as such but their autonomy is eroded to an extent and they have to surrender a part of their protection and they have to admit some percentage of non-minority students to comply with the mandate of Article 29(2)

11) Minority educational institutions have a right not to be discriminated in the matter of grants.

Web Links

Dinesh Kumar, Protection of Cultural Rights under the Indian Constitution, available at http://heinonline.org/HOL/Print?collection=journals&handle=hein.journals/isudijo9&id=760
http://www.preservearticles.com/2011111216893/cultural-and-educational-rights-as-guaranteed-by-indian-constitution.html
Socio Legal Study of Cultural and Educational Rights of Minorities https://books.google.co.in/books?id=np4DykpwurEC&pg=PA310&lpg=PA310&dq=educational+and+cultural+rights+in+india&source=bl&ots=RclWaBmN6&sig=u91zMM1xpvRKDDWSj3rI_cSgWRw&hl=en&sa=X&ei=7sKTVOfACsLXmAX3_oHwAg&ved=0CDAQ6AEwBTgU#v=onepage&q=educational%20and%20cultural% 20rights%20in%20india&f=false