Cultural And Educational Rights Of Minorities Under The Constitution Of India
By: Dr. (Mrs.) Priyadarshni M. Gangte
Culture and Education are prerequisite for progress and developments. In a democratic set up, fruits of democracy can not be realized without ensuring the benefit of education and an opportunity for the conservation of culture to each individual including a minority. It is the duty of a government to honour the sacred obligation to the minority communities.
The problem of minority has existed for a long time it acquired special importance since the early days of the British Rule in India. Particularly, the so-called system protection of minorities was started by them. After the commencement of the constitutional host of rights are conferred to minorities by the constitutional provisions. The Constitution provides not only basic rights to the minorities but such rights conserved their religion, language and culture. Arts. 29 and 30 of the Constitution provides cultural and education rights to minorities.
The Cultural and the Educational rights of the minorities incorporated in the Constitution of India (Durga Das Basu : Shorter Constitution of India, Prentice Hall of India Private Limited, Delhi 1989 (10th Edn.); pp.210-211), basically are the balancingly approach to harness a healthy and prosperous life status for all, including the minorities. The concept of ‚ÄúMajority‚Äô and ‚ÄėMinority‚Äô is a national essence. The problem of minorities is of universal phenomenon. However the nature of the problem of minorities are different according to their own interest and place. A member of national and international treaties and agreements have been concluded for the protection of minorities at a different interval of history. The recognition of rights and duties for all irrespective of religion, race, caste or language will be possible in a democratic system. Prof. Humayun Kabir, in his book, ‚ÄúMinorities in a Democracy observed that, ‚Äúthere can be no question of minorities except in democracy, unless there is a democracy, the problem would not rise in the form at all. It is true that the efficiency of democracy lies in giving fair treatment of minorities. In a democratic set-up, fruits of democracy cannot be realized without ensuring the benefits and an opportunity of the conservation of culture to each individual including a minority.‚ÄĚ
Background and Setting of Constitutional Provision:
The historical background of the problems of minorities in India can be traced easily since the advent of the British in India. Before the British period, there was no any highlighted problem in a particular group concerning race, religion, caste or culture. There was a communal harmony and mutual understanding among the Indian people. When the British Rule entered into India, then only minority‚Äôs problems created and arose all over India. Foreign ruler exploited the multiplicity of the Indian people in the name of religion, race and caste. They broke the solidarity of the natives. When Prof. Theodore Beck, was appointed as the principal of the then Anglo- Oriental College of Muslims at Aligarh from 1883-1899 (R.C. Majumdar, H.C. Raychaudhuri, Kalinkar Dutta : An advanced History of India, Macmillan India Limited, Madras,1978 (4th Edn.); p.885), created a gulf between Hindu and the Muslim which could not be bridged till today. In this context, Prof. Coupland summarized that, ‚ÄúIt marked the turning of the tide end of the decline and the beginning of the recovery.‚ÄĚ
In the words of Jawahar Lal Nehru, ‚ÄúNearly all our major problems of today have grown-up during the British and as a dire result of British policy‚ÄĚ. During the period of Indian people lost their brotherhood and minority problem existed and the constitutional protection was realized by the minorities. In 1906, Muslim League was formed and Muslim claimed for separate electorate. And the introduction of Minto-Morley Reform made the same to build up political consciousness and among other minority groups, such Indian Christian, untouchables and Anglo-Indian too.
Consequently, the government of Indian Act 1919 and 1935 provided separate electorate of Muslims, Sikhs, Indian Christians, Anglo-Indian and other groups. It helped to develop political consciousness among minorities and that had helped the upper and educated class Muslims gave rise to growth of militancy among them. The Hindu bias of nationalist movement added fuel to fire. The problem of minorities in India was one of the problems caused by the transfer of power by the British Rulers during the struggle for independence due to the cause of feelings in security, intensified by political and economical competition.
The Indian National Congress framed the need for the guarantee of fundamental rights for the first time in the constitution were passed including the Commonwealth Bill, 1925, well known as Mrs. Beasant‚Äôs Commonwealth of India Bill, 1925. The Commonwealth Bill, 1925 stressed the needs of conscience, free expression of opinion, free assembly, right to education, free profession and practice of religion. After that, Nehru‚Äôs Report was framed in 10 August, 1928 which was opposed by the Muslims and an alternative of 14 points of M.A. Jinnah was made, which gave an ineffective to the said Report. The Nehru‚Äôs Report could not apply due to Simon Commission in 1928.
The Karachi Resolution, 1931, took major steps in development of constitutional rights for the Indian people. After a long run in 1944, a Committee was
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Cultural And Educational Rights Of Minorities Under The Constitution Of India
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formed under the Chairmanship of Shri Tej Bahadur Sapru to attempt to solve the Communal questions of minorities. But, unfortunately it was criticized by different people from different point of view.
Lastly, when the Constituent Assembly was set up, the Draft Constitution of India as settled by the Drafting Committee, headed by Dr. B.R. Ambedkar, submitted to the President of the Constituent Assembly on February 21, 1949. The Draft Constitution was divided into parts. Art. 292 to 301 (Part.IV) was only concerned with the minorities. These provisions were in addition to safeguards given to the minorities in Part-III of the Draft Constitution by means of Fundamental. The cultural and educational rights were constitutionally protected. Not only the minorities are based on religion or race recognised but their language, script and culture have also recognised and protected and provisions for the same are provided under Art 29 and 30 of the Constitution of India under the title of ‚ÄúThe Rights of the Cultural and Educational Minorities‚ÄĚ.
Scope of expression :
Minority : The expression, ‚ÄėMinority‚Äô compound of Latin word, ‚Äėminor‚Äô and the suffix ‚Äėity‚Äô means inter alia, the smaller in number. J.A. Laponce in his book, ‚ÄėThe Protection of Minority‚Äô, has given two definitions of the expression, ‚Äėminority‚Äô. The first one is a group of whose race, language or religion is different from that of a majority. The second definition is ‚ÄėA minority is a group that thinks of self as a minority‚Äô.
In 1979, the permanent court of International Justice, interpreted the concept of minority while submitting the report of ethnic, religious and linguistic minorities was drawn solely with the application of Art.27 of the International Covenant on Civil and Political Rights as follows :-
A group of numerically inferior to the rest of the population of a state a non dominant position whose members being nationals of the state possess ethnic religious or linguistic characteristic differencing from those of the rest of the population and show if only implicitly, a sense of solidarity directed towards preserving their culture, traditions, religions or languages.
The framers of the Indian Constitution were not reluctant to define ‚Äėminority‚Äô, therefore, without identifying minority group no one would be beneficiaries of the constitutional enforcement. The term, minority has not been defined through the problem of minorities came in light prominently in the draft of the constitution which being discussed in the Constituent Assembly on 16th Nov., 1947 to avoid the use of the term ‚ÄėMinority‚Äô. Hence the Assembly chooses to avoid any further elaborate and left to the wisdom of the courts to apply the omission. The framers of the Constitution while protecting the right of the minorities under Art. 30 of the Constitution have nowhere defined what is meant by the term ‚Äėminority‚Äô. The Supreme Court had conferred with this problem in re Kerala Education Bill, 1957 case, wherein certain provisions of the Kerala Education Bill, 1957, concerning the way of a certain community to establish and maintain institution of its choice were in question.
Art 29 and 30 of the Constitution emphasizes on the numerical minority and persons must numerically be a minority in the particular region in which the determination of minority the geographical area is to be considered as has been held in D.A.V. College, Jullunder Vs State of Punjab. It means the community must be less than 50% to be a minority but it is only a partial answer to the minority problem. The Supreme Court had found itself faced with the minority which the people from one linguistic area where it migrate to another. Under Art 30, minorities must necessarily mean those who from a distinct and identifiable group of Indian citizens. There must exist some positive index to enable the educational institution to be identified with religious or linguistic difficult of specifying the geographic unit with reference to which the population of a minority could be calculated and weighed against the total population. Thus, there is no single definition or meaning of the term ‚ÄėMinority‚Äô as acceptable to all.
Minority‚Äôs Rights under Art 29 and their dimension : The cultural and education Rights of the minorities are guaranteed under the Arts 29 and 30 of the Constitution. Art 29 includes two different sub-sections for the protection of minorities. Art 29(1) protects the distinct language, script, culture. It deals ‚Äď
(a) a section of citizen who resides in India or any part thereof;
(b) a distinct language, script or culture which must be their own; and
(c) who have right to conserve those aforesaid language, script or culture.
Therefore, the right to establish and maintain educational institution of its choice is a necessary commitant to the right of such community to conserve its distinctive language, script or culture and that is what has been assured to religions and linguistic minorities by Art 30(1) of the Constitution.
Art 29(2) guarantees the right to an individual citizen not to be decriminalized against only on the ground of religion, race, caste, language or anyone of them in the matter of admission in any educational constitution. To claim the protection of clause (1) of the Art 29 of the Constitution, it must be proved by the claimants which is already discussed before Art 29(2) guarantees the right of a citizen as an individual irrespective of community to which he/she belongs.
Linguistic Minorities may have a distinctive language or distinct script or book in practice. In D.A.V. College, Jullunder case there was a question of whether an Arya Samaji Hindu in Punjab were a linguistic minority. P. Jaganmohon Reddy; Justice of the Supreme Court stated that ‚ÄúFor the purpose of Art 29(1) even though it may not be necessary to enquiry neither all the Hindus of Punjab as also the Aryas Samajis Speak Hindi as also spoken language nonetheless there can be no doubt that the script of the Arya Samaji to be a minority with a distinct script of their own was justified. Although they spoke the Punjabi language, but used Devanagari script instead of Gurmukhi. J. Reddy in his conclusion says that the Arya Samajis were a minority with a distinct script but not a minority with a distinct language.
Minority‚Äôs Rights under Art 30 and their dimension : The Constitution of India has made certain special provisions for the protection of minorities residing in any part of India, script culture provided in Art 29(1) through educational institution established by Art 30(1) of the Constitution.
Art 30(1) says that all minorities whether based on religion or language should have the right to establish and administer educational institution of their choice. This right is protected by Art 30(2) which prohibits the state in granting aid to educational institution from discriminating against any educational institution on the ground that it is under the management of a minority whether based on religion or language. This right is however, subject to clause (2) of Art 29 according to which no citizen shall be deemed to admission into any educational institutions maintained by the state or receiving aid out of the state funds or grounds only of religion, race, caste, language or any of them. Art 29 applies only to citizen but Art 30 applies both citizens and non-citizens e.g. institution.
The rights to establish and administer educational institution which is guaranteed by Art 30(1) is in substance, a right to safeguard the language, script or culture of the minority concerned. It is conceivable that a linguistic or religious minority may start educational institution of its choice solely or mainly with the object of preserving its own language, script or culture. So language as it is apparent that the object of the educational institution founded by religious or linguistic minority is to preserve and develop their own language, script or culture, they are entitled to the protection guaranteed by the Art 30(1). Two years before the Supreme Court in the Director, L.F. Hospital, Angamaly Vs State of Kerala held that the Christian community in Kerala they have the rights to establish and administer. A school of Nursing is an educational institution. Art.30 confers a right to establish and managed the institution in accordance with their vision and purpose. The right to administer cannot be separated from the right to establish. Because of either of the two is taken away the remaining one would become meaningless. Both the rights are implicit in the right under Art 29. Education is necessary adjunct to the conservation of culture and language. Therefore, the word establish and administer in Art 30(1) must be read conjunctively and so it comes clear.
The existence of minority is universal. India has accommodated minorities, race, religion, language and so on. So, there is no one‚Äôs culture or script is all over the country. Likewise, religion, race or caste is also not in one position. Due to this, minority and majority has created.
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