Cultural and Educational Rights as guaranteed by Indian Constitution

Under Articles 29 and 30, certain cultural and educational rights are guaranteed. Section (1) of Article 29 guarantees the right of any section of the citizens residing in any part of the country having a distinct language, script or cultures of its own, to conserve the same. Section (2) prohibits any discrimination based only on religion, race, caste, language or any of them in the matter of admission to State or State-aided educational institutions.

Section (1) of Article 30 provides that “all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice”. According to Section (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 a minority, whether based on religion or language.

These provisions are unique in their thoroughness. There is nothing comparable to these in the Bill of Rights of the American Constitution. When provisions under Articles 29 and 30 are considered along with other provisions in the chapter on Fundamental Rights and elsewhere in the Constitution safeguarding the rights of religious, linguistic and racial minorities it will become clear that the purpose of these provisions is to reassure the minorities that certain special interests of theirs which they cherish as fundamental to their life are safe under the Constitution.

These are in conformity with the right to religious freedom and an extension to certain specific aspects of that right, like the freedom to maintain separate educational institutions, etc., already referred to . One special feature of these provisions, however, is that the term “minority” has been given a wide connotation.

Here a minority is recognised as such not only on the basis of religion but also on language, script or culture. The importance of the provision will be evident in view of the existence of over a dozen well-developed languages as well as undeveloped ones within the territory of India.

Interpreting the scope of Article 29, the Bombay High Court held that it embodied two important principles:

“One is the right of the citizen to select any educational institution maintained by the State and receiving aid out of State funds. The State cannot tell a citizen, ‘you shall go to this school which I maintain and not to the other’. Here we find reproduced the right of the parent to control the education of the child.”

The scope of Article 29(2) came up for detailed interpretation before the Supreme Court in two cases, both of which were appeals from decisions of the Madras High Court, relating to admission to educational institutions maintained by the State. After analysing the facts in detail the Court said:

“It will be noticed that while clause (1) protects the language, script or culture of a sections of the citizens, clause (2) guarantees the fundamental right of an individual citizen. The right to get admission into any educational institution of the kind mentioned in clause (2) is a right which an individual citizen has as a citizen and not as a member of any community or class of citizens.

This right is not to be denied to the citizen on grounds only of religion, race, caste, language or any of them. If a citizen who seeks admission into any such educational institution has not the requisite academic qualifications and is denied admission on that ground, certainly he cannot be heard to complain of an infraction of his fundamental right under this Article.

But, on the other hand, if he has the academic qualifications but is refused admission only on grounds of religion, race, caste, language or any of them, then there is a clear breach of his fundamental right.”

On behalf of the State it was contended that Article 46 charged the State with promoting, with special care, the educational and special interests of the weaker sections of the people and, in particular, of the Scheduled Castes and Scheduled Tribes and with protecting them from social injustice and all forms of exploitation.

But the Court rejected this argument on the ground that this was a Directive Principle a non-justiciable right and it could not override a Fundamental Right which was justiciable. It was the duty of the Court to enforce a Fundamental Right.

With the passing of the Forty-second Amendment of the Constitution this argument of the Court has lost much of its force. According to the Amendment where there is a conflict between a Fundamental Right and Directive Principle, Parliament may by law give precedence to the Directive Principle.

Article 30

Article 30 is a charter of educational rights. It guarantees in absolute terms the right of linguistic and religious minorities to establish and administer educational institutions of their choice and, at the same time, claim grants-in-aid without any discrimination based upon religion or language.

The fact that the Constitution does not impose any express restriction in the scope of the enjoyment of this right, unlike most of the rights included in the chapter on Fundamental Rights, shows that the framers intended to make its scope unfettered. This does not, however, mean that the State cannot impose reasonable restrictions of a regulatory character for maintaining standards of education. This point has been made abundantly clear in judicial pronouncements.

The scope of Article 30 was interpreted at length by the Supreme Court in a Reference made to it by the President. The subject of the Reference was the constitutional validity of certain provisions of the Kerala Education Bill, 1957, which was submitted to the President for his assent.

The Bill has been the cause of agitation in the State of Kerala ever since its introduction in the State Assembly in 1957, and those who opposed it contended that it violated the fundamental rights guaranteed under the Constitution, especially those under Article 30. In a six to one decision, the Court held that clause 3(5) of the Bill was invalid. The clause read as follows:

“After the commencement of this Act, the establishment of a new school or the opening of a new class in any private school shall be subject to the provisions of this Act and the rules made there under and any school or higher class established or opened otherwise than in accordance with such provisions shall not be entitled to be recognised by the Government.”

Speaking for the majority on the content of Article 30(1), Chief Justice Das said that:

“What the Article said was that the religious and linguistic minorities should have the right to establish educational institutions of their choice.

“It did not say that minorities based on religion should establish educational institutions for teaching religion only, or that linguistic minorities should have the right to establish educational institutions for teaching their language only. What the Article said and meant was that the religious and linguistic minorities should have the right to establish educational institutions of their choice.

As such, minorities would ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education, educational institutions of their choice would necessarily include institutions imparting general secular education also.”

The Chief Justice said that the Article gave all minorities whether based on religion or language, two rights, namely, the right to establish and the right to administer educational institutions of their choice. The key to the understanding of the true meaning and implication of the Article under consideration was the words, “of their own choice”.

The educational institutions established or administered by the minorities in exercise of the rights conferred by Article 30(1), the Chief Justice said, might be classified into three categories : (1) those which did not seek either aid or recognition from the State; (2) those which wanted aid; and (3) those which wanted only recognition but not aid.

In regard to educational institutions in the first category, he held that by Clause 38 of the Bill, they were prima facie outside the purview of the Bill.

As regards the second category, the Chief Justice said that they had to subdivide it into two classes, namely: (1) those which were by the Constitution itself expressly made eligible for receiving grants; and (2) those which were not entitled to such grant, but nevertheless seek to get aid.

The Chief Justice observed that the Anglo-Indian education institutions established prior to 1948 used to receive grants from the Government of those days. Article 337 of the Constitution preserved this bounty for a period of ten years.

The Anglo-Indian educational institutions in Kerala had, before the passing of the Bill, been receiving grants from the Madras State and also the Travancore-Cochin State. After the formation of Kerala too the bounty continued.

In the circumstances, the amount received by the Anglo-Indian institutions as grant under Article 337 should be construed as aid within the meaning of the Bill and educational institutions in receipt of such grants payable under Article 337 should accordingly be regarded as aided schools.

Referring to the argument that no conditions could be imposed in regard to the administration of institutions run by minorities, the Chief Justice said the right to administer could not obviously include the right to maladminister.

It stood to reason that the constitutional right to administer an educational institution of their choice did not necessarily militate against the claim of the State to insist that in order to grant aid the State might prescribe reasonable regulations to ensure the excellence of the institutions to be aided.

In regard to educational institutions of minorities which sought only recognition, but not aid from the State, the Chief Justice said that without recognition, the educational institutions established or to be established by minority communities could not fulfill the real object of their choice.

The right to establish educational institutions of their choice should, therefore, mean the right to establish real institutions which would effectively serve the needs of their community and the scholars who attended such institutions. To deny recognition to educational institutions except on terms tantamount to the surrender of their constitutional right to administer educational institutions of their choice was in truth and effect to deprive them of their right under Article 30 (1).

“We the people of India,” the Chief Justice said, “had given unto ourselves the Constitution which is not for any particular community or section but for all. Its provisions are intended to protect all, minority as well as majority communities.

There can be no manner of doubt that our Constitution has guaranteed certain cherished rights of the minorities concerned their language, culture and religion. These concessions must have been made to them for good and valid reasons.”

“So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this Court to uphold the fundamental rights and thereby honour the sacred obligations to the minority communities who are of our own.

Throughout the age’s endless inundations of men of diverse creeds, cultures and races Aryans and non-Aryans, Dravidians and Chinese, Sythians, Huns, Pathans and Mughals have come to this ancient land from distant regions and climes. India has welcomed them all. They have met and gathered, given and taken and got mingled, merged and lost in one body.

India’s traditions have thus been epitomised in the noble lines: ‘None shall be turned away from the shores of this vast see of humanity that is India’ (Tagore). Indeed India has sent out to the world her message of goodwill enshrined and proclaimed in our national anthem. It is thus that the genius of India has been able to find universality in diversity by assimilating the best of all creeds and cultures.”

There were several other decisions of the Supreme Court since 1959 interpreting the scope of Article 29 and 30.

These decisions lead us to the following conclusions:

1. Articles 29 and 30 create two separate rights although it is possible that they may meet, in a given case.

2. Whether a particular community is a minority or not is to be judged on the basis of the entire population of the area to which the particular legislation applies.

3. A minority can effectively conserve its script, language and culture by and through the establishment and maintenance of educational institutions of its choice.

4. The language of Article 29 (2) is wide and unqualified and covers all citizens whether they belong to the majority or minority groups.

5. The right of getting admission to an educational institution is a right which an individual citizen has as a citizen and not as a member of a community or class of citizens. Hence this right cannot be denied to citizens on grounds only of religion, race, caste, language or any of them.

6. In the case of a minority based on religion or language, the right to impart instruction in their own institutions to the children of their community in their own language must be protected. In such a case, the power of the State to determine the medium of instruction must yield to the fundamental right of the minority to the extent it is necessary to give effect to the right.

7. The words establish and administer in Article 30 (1) must be read conjunctively and if done so the minority is entitled to the right to administer an educational institution provided the said institution has been established by the minority and not otherwise.

8. The protection implied in Articles 29 and 30 applies not only to educational institutions established after the commencement of the Constitution but also to those established before it.

The rights of the minorities however cannot be absolute. They must be subject to restrictions in the interest of education as well as in pursuance of socio-economic objectives embodied in the Constitution.

The purpose of these rights was not to create vested interests in separateness of minorities but to maintain their individuality as well as distinct identity of their language and culture. But the preservation of such distinctiveness should not result in the minorities remaining isolated from the mainstream of national life.

As the nation makes progress, the barriers that divide citizens into majority and minority compartments should gradually disappear and the tradition-bound, rigid society in India should become transformed into a composite, dynamic and progressive society cherishing common: national ideals and aspirations. Educational and cultural institutions should become the agents of such change rather than perpetuating narrow barriers between citizen and citizen.

Article 30 has been criticised, among other things, that the right to establish and administer? Educational institutions of their choice available to the minorities are denied to the majority community.

Also since the term minority has not been defined in the Constitution anywhere and there are advantages in belonging to the minority, groups within the majority Hindu Community have started claiming minority status.

The Arya Samaj in Punjab and the Ramakrishna Mission in Bengal arc prominent examples. They claim that they are not Hindus but represent independent minority religious groups. It is possible that such demands from other groups in future might make the religious minority problem more complex.

Article 29, enunciates the Fundamental Right of any section of citizens residing anywhere in India to conserve its distinct language, script or culture. No citizen can be denied admission to any educational institution maintained or aided by the state on grounds of language or religion.

Article 350-A inserted by the Seventh Amendment of 1953 provides for local authorities in every State endeavouring to extend adequate facilities for instruction in the mother tongue at the primary stage of education to children belonging to linguistic minority groups and for the President issuing necessary directions to any State in this connection.

The term ‘linguistic minority group’ has been interpreted by the Supreme Court to mean a group of people who are in a numerical minority in a State as a whole as distinguished from any particular area or region thereof (vide Kerala Education Bill – Supra).

Taking the rights guaranteed under religious, educational and cultural fields as a whole, it will be noted that these are couched in the most comprehensive language, and the maximum possible freedom is guaranteed to the minorities, religious and linguistic.

The special significance of these provisions is that while the impact of other rights in Part III of the Constitution is on the people of India as a whole, irrespective of religion, caste, race or language that of these rights is only on the minorities. The democratic basis of the Constitution would be lost if the minorities were not given adequate protection to preserve their religious beliefs, and institutions of education and culture.

The Constitution may then be branded as an instrument for the furtherance of the majority community and the language of the majority. Naturally, resentment against such a position would manifest all over the country, as religious minorities live in all States of India and linguistic minorities total not less than 800 million.

Moreover, such a position would have discredited the foundation of the national movement against foreign rule, in which every religious and linguistic minority in India was represented and solemn promises had been made by representatives of the majority community to safeguard the legitimate interests of the minorities against all forms of tyranny in a free India.