Cultural and Educational Rights: International Perspective PDF

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India has a wide range of communities, cultures, religions, scripts, and languages. Diversity in culture, religion, language, and so on necessitates that each group with a distinct culture, script, or language be given the opportunity to conserve and protect their culture and language. While draftin...

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Cultural and Educational Rights: International Perspective

India has a wide range of communities, cultures, religions, scripts, and languages. Diversity in culture, religion, language, and so on necessitates that each group with a distinct culture, script, or language be given the opportunity to conserve and protect their culture and language. While drafting our Constitution, the founding fathers were conscious of the need for a secular constitution in which each group could preserve its culture, language, and script. As a result, in Articles 29-30 of Part III of the Indian Constitution, Cultural and Educational Rights were included. The addition of Articles 29 and 30, which confer fundamental rights on minorities to establish and administer educational institutions, and empowering citizens with distinct languages, scripts, or cultures to preserve them, were intended to achieve equality and instill confidence in minorities.

Cultural and Educational Rights: Indian Position When the Indian Constitution was being drafted, the founding fathers of the Indian Constitution had the United Nations Declaration on Human Rights in front of them, and an attempt was made to codify various human rights listed in the UDHR in the Indian constitution. Because India is awash in linguistic, cultural, and religious minorities, it was also necessary to provide for minorities' rights, and the constitution framers, in keeping with international practises, provided for minorities' rights by empowering them to preserve their language and culture. A community, whether minority or majority, can preserve its language and culture by establishing educational institutions; thus, the Indian Constitution empowers minorities to establish and manage educational institutions of their choice. Provisions were thus incorporated into Part III of the Indian Constitution in Articles 29 and 30.

Rights under Article 29 Clause (1) of Article 29 guarantees that any group of citizens residing in any part of India's territory who have a distinct script, language, or culture have the right to preserve it. Clause (2) of Article 29 protects all citizens, including minorities, from discrimination in admission to state-maintained or state-aided educational institutions based solely on religion, race, caste, or any combination of these factors. The perusal of the preceding provision reveals that, while the marginal note to Article 29 refers to the protection of minorities' interests, the body of Article 29 confers the right to preserve language, script, or culture on any section of the citizens residing in India, regardless of whether they belong to the majority or minority community. According to the Article, if a cultural minority wishes to preserve its language, script, and culture, it has a fundamental right to do so, and the State shall not impose any other local culture or restrictions on it. The right conferred by Article 29(1) has been declared an absolute right1 and cannot be subjected to the reasonable constraints embodied in Article 19. (6). The right to preserve a language includes, as a necessary corollary, the right to advocate for the preservation of that language. Whereas clause (1) protects the rights of a subset of citizens, clause (2) grants a citizen the right not to be denied admission to any State-owned or State-aided educational institution solely on the basis of religion, race, caste, language, or any combination of these factors. It should be noted that Article 15(4) states that the state has the authority to make reservations for the advancement of any socially and educationally backward classes of citizens, as well as for schedule castes and schedule tribes. Article 15(4) is an enabling provision that functions as an exception to Article 29(2), whereas Article 29(2) is a substantive fundamental right to admission to State-owned or -aided educational

institutions. However, any such reservation mode under Article 15(4) must be reasonable and must not detract from the institution's minority status.

Meaning of the term ‘Minorities’ Article 30 mentions minorities, but the term "minorities" is not defined in the Constitution, though it is defined in statutes. The National Commission for Minorities Act of 1993 defines the term as follows: "Minority" means a community notified as such by the Central Government for the purposes of this Act. Under the Act, the Central Government designated five communities as minority communities for the purposes of central legislation: Muslims, Sikhs, Bhudhists, Parsis, and Christians. The union government designated another community, the Jains, as a minority community in 2014. The National Commission for Minority Educational Institutions Act of 2004 adopted the 1993 Act's definition. These definitions, however, do not specify the criteria for classifying minorities. As a result, in order to determine the meaning of the term "minority," we must consult a number of Supreme Court decisions. The question was answered in a seven-judge bench decision in The Kerala Education Bill case, which still stands, in which the Supreme Court stated that "minority" is a term that is not defined in the Constitution, and in the absence of any precise definition, "a minority" means a community that is numerically less than 50%. The Supreme Court's decision in T.M.A. Pai Foundation cleared up a lot of confusion by stating that the criteria for determining minority shall be the state's population. Taking a cue from the provisions of the State Reorganisation Act, the Supreme Court ruled that because India has been divided into different linguistic States based on the language of the majority of people in that region, the State, rather than the entire country, must be used to determine linguistic minority under Article 30. The same standard has been applied to religious minorities. As a result, the term minorities refers to those communities that make up less than half of a state's population.

Minority Educational Institutions Article 30 of the Indian Constitution grants minorities the right to establish educational institutions of their choice and provides them with protection. It does not, however, define the term "minority educational institutions." According to the National Commission for Minority Educational Institutions Act of 2004, the term refers to a college or institution (other than a university) established or maintained by a person or group of people from the minority community. Minority Educational Institutions are defined as institutions 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, 2004. Article 30 protections for minority educational institutions (1). The Court, on the other hand, declared that the Government, the affiliating University, and the Courts are competent to investigate whether the institution's claim is genuine or not. The court stated that in order to become a minority educational institution and enjoy the benefits and protections afforded to such institutions, the institution must be a minority educational institution in truth and reality. The state government issued a resolution on July 4, 2008, in Dayanand Anglo Vedic (DAV) College Trust and Management Society v. State of Maharashtra, prescribing the procedure for granting minority status. The Resolution stated that individuals residing in the state of Maharashtra whose mother tongue was not Marathi were eligible to apply for recognition as a linguistic minority educational institution. The Resolution stipulated that a minimum of two-thirds of the management committee must be drawn from the state's minority communities. The Apex Court, in endorsing its decision in A.P. Christians Medical Educational Society, ruled that in order to claim minority religious/linguistic status for an institution in any State, the authorities must first be satisfied that the

institution was established by persons who are minority in such State, and that the administration of the said minority institution is also vested in such persons. The Court acknowledged that, for the purpose of verification, the court and the government can go behind the institution's claims. As previously stated, the minority educational institution should be for the benefit of minorities in the state in which it is established. However, it should not be forgotten that each community in India may be in religious or linguistic minority in one or more states, and as a result, it is possible that a community in minority in one state establishes an educational institution in that state and admits students from another state where they are not in minority. In such a case, it should be noted that, under the decision in the Kerala Education Bill17 case, a "sprinkling of outsiders" is permitted, but it must be reasonable and proportionate to the minority status in the state of establishment. Currently, the National Commission for Minority Educational Institutions issues a certificate indicating that the institution is a minority educational institution after verifying who founded the institution and whether the person or persons are members of a notified minority community. Once granted, the certificate can be revoked if the enactment's conditions are not met.

Scope of Article 30(1) Article 30(1) confers the right to "establish and administer educational institutions," and the phrase "establish and administer" should be read conjunctively rather than disjunctively. To claim Article 30 protection, it must be demonstrated that there is a religious or linguistic minority and that this minority has established an educational institution. 18 Only if these two conditions are met can the protection of Article 30(1) be claimed in administering such an institution. 19 The scope of Article 30(1) was debated before the Supreme Court in the Kerala Education Bill case. The court stated that no restrictions or stipulations can be imposed on what is taught in such educational

institutions. The institutions can provide an education that will allow their children to reach their full potential and be eligible for higher education. The Apex Court agreed with the above observations in the T.M.A. Pai Foundation. The preceding account demonstrates that the scope of 30(1) is not limited to teaching religion or the language of a minority community; the institution may choose to impart any general or professional education it desires. The phrase "of their own choosing" has a wide range of meanings. The institution may provide religious or secular education as it sees fit. Furthermore, admission to such institutions does not have to be limited to members of the minority community; they can have a sprinkling of outsiders who do not detract from the institution's minority character. Furthermore, it is not required that the institution strive to preserve the minority's language, script, or culture.

Relationship between Article 29 and 30 It is necessary to consider the relationship between Articles 29 and 30. The scope of Articles 29 and 30 differs. Article 29 does not apply only to minorities, but to all citizens. Article 30(1) is unaffected by Article 29. (1). Article 30 is concerned with minorities who have a distinct language, culture, or script, but its scope is broad. Article 30(1) grants minorities the right to establish and manage educational institutions of their choice. It is not necessary to establish educational institutions to enjoy the rights conferred by Article 29(1), and the right can be exercised in other ways as well. According to an examination of these provisions, Article 29(2) prohibits discrimination in admission on the basis of religion, race, caste, or other characteristics in State-owned or State-aided educational institutions, whereas Article 30(1) grants minorities the right to administer educational institutions, which includes, as previously stated, the right to admit students of their choice. It should be noted that, while a cursory reading of Article 30 would imply that it is not subject to any limitations/restrictions, reasonable restrictions

to regulate such educational institutions that do not take away the right to administer such educational institutions are permissible.

Regulation of Minority Educational Institutions In terms of the extent of regulation and governmental control over minority educational institutions' educational rights, these institutions can be divided into three categories24 for determining the extent of regulation or control over them, namely (I) those who do not require any recognition/affiliation or assistance (ii) those who require recognition/affiliation but do not require government assistance (iii) those in need of government assistance In terms of the first category of minority educational institutions, they are free to exercise their right to administer educational institutions without interference from the state. However, in the case of the second category of minority educational institutions, educational rights granted to minorities can be regulated and are subject to reasonable restrictions in the form of prescribing educational standards, qualifications, and minimum eligibility conditions at the time of affiliation. It should be noted, however, that the right to administer does not include the right to misadminister. However, governmental control must be kept to a minimum, and the right to admit students of one's own choosing, which is an integral part of administration, should not be interfered with as long as admission is made on a transparent basis and inter se merit is adequately considered. In the case of the third category of institutions, once they receive government assistance, they retain their identity as minority educational institutions; however, they fall under the purview of Article 29. (2). To comply with the mandate of Article 29(2) of the Constitution, these institutions must admit a "sprinkling of outsiders." 26 It cannot, however, be specified how many students from non-minority groups must be admitted by such institutions. The government can set such percentages based on the institution's

level, whether primary, secondary, college, or professional institute, as well as the population and educational needs of the area. 27 Inter se merit, on the other hand, must be ensured. In Pramati Educational and Cultural Trust v. Union of India28, the extent to which the government regulates/controls an educational institution receiving government aid was again called into question. The Supreme Court's Constitutional Bench was asked to rule on the constitutionality of Section 12(1)(b) read with Section 2(n)(iii) of the Right to Education Act, 2009 in light of Article 30(1) of the Indian Constitution. According to the RTE Act, an aided educational school must provide free and compulsory education to a certain percentage of society's weaker members. Minority-aided schools were subject to the same conditions, and they were required by law to provide free and compulsory education to disadvantaged sections of society, regardless of whether they belonged to that minority community or not. Similarly, section 12(1)(c) of the Act, read with section 2(n)(iv), provided a similar condition in the case of unaided schools, whether minority or non-minority. The Supreme Court ruled that the provisions of the RTE Act, 2009 that apply to minority schools are unconstitutional. The Court observed that making the contested provisions applicable to minority institutions would nullify the protection afforded by Article 30. (1). The challenge in Sindhi Education Society and Anr. v. The Chief Secretary, Govt. of NCT of Delhi29 was to the constitutionality of Rule 64(1)(b) of the Delhi School Education Rules, 1973, which required all educational institutions receiving aid to provide an undertaking that they would make reservations in teacher appointments for Scheduled Castes and Scheduled Tribes. The Supreme Court ruled that the above rule was unconstitutional insofar as it relates to minority educational institutions making appointments reservations. In State of Karnataka v. Associated Management of (Government Recognized-UnaidedEnglish Medium) Primary and Secondary Schools 30, the Supreme Court's Constitutional Bench considered, among other things, whether the State can compel linguistic minorities

to use their mother tongue as the only medium of instruction in primary schools under the directive embodied in Article 350A31. The court answered the question in the negative, holding that the State cannot compel minority educational institutions to use their mother tongue as the only medium of instruction because this would be a violation of the right guaranteed by Article 30. (1). The Court ruled that imposing such terms as a condition for recognition would be a violation of Articles 30(1) and 19(1) of the Convention on the Rights of the Child (g). Though Article 30 (1) is not expressly subject to the restrictions in Article 19(6), a review of various Supreme Court decisions, particularly St. Xavier College32, Sidhrajbhai Sabhai33, T.M.A. Pai Foundation34, and T.M.A. Pai clarificatory judgments pronounced in Islamic Academy35 and P.A. Inamdar36 cases, suggests that the right is subject to various reasonable restrictions for the betterment of the institution and its students. It should be noted, however, that under the guise of regulation, unbridled and uncanalized powers cannot be conferred on regulatory authorities in order to remove protections provided by Article 30. Unreasonable restrictions disguised as regulations constitute a violation of Article 30 and would thus be declared unconstitutional. The judiciary has been alerting to such unnecessary and unreasonable infringements on the rights guaranteed by Article 30 and has rejected such attempts....