The position of Cultural and Educational Rights as fundamental rights in

India: An Analysis.

Constitutional law –I

Submitted by

Mranal sharma

SM0117030

II Year, IV Semester

National Law University and Judicial Academy, Assam

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Content

Table of Cases ………………………………………………………………….3

Table of Statutes …..…..........................................................................................3.

Introduction……………………………………………………………………….4

Objectives (s)………………………………………………………………………4

Scope and Limitations…………………………………………………………......4

Research Questions/ Hypothesis/Hypotheses………………………………...…....5

Research Methods applied to test the hypothesis/hypotheses………………..…….5

Cultural and educational rights under Article 29 and 30………………………..6

Educational right under Article 21 A….…………………………………………...9

Critical Analysis…………………………………………………………………….13

Conclusions………………………………………………………………………….14

Bibliography…............................................................................................................15

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TABLE OF CASES

1. Mohini Jain vs. State of Karnataka and others

2. Unnikrishnan, JP and others Vs. State of Andhra Pradesh and others
3. Association Managements of primary and Secondary Schools in Karnataka v the state
of Karnataka by its Secretary, Department of Education and Ors
4. State of Rajasthan v. Senior Higher Secondary School
5. Jagdev Singh v Pratap Singh Daulata,
6. State of Bombay v Bombay Education Society’s
7. State of Madras v Champakam’s

TABLE OF STATUTES

1. The Constitution of India

2. The Right of Children to Free and Compulsory Education Act 2009

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Introduction

India is a country of diversity with various groups of people with different types of culture
language, religious practices and different type of societal norms and conditions.

Education is a deep rooted procedure by which individuals adapt better approaches for activity
and thought. It empowers changes in conduct which go for improving the human conditions.
Education assumes a vital role in presenting the culture of country among the children. Both
culture and education are necessary for the better development of the country and the very same
was recognised by our forefather and therefore they incorporated these rights as fundamental
rights under various Article in part III of the Constitution of India

Right to education was made a fundamental right in 2002 however was completely was
implemented in 2009. In this project I would be aiming to look into detail the position of the
cultural and educational right as fundamental rights in India. Fundamental rights are considered
to be the most important rights of an individual in this project we will be seeing as to why the
cultural and educational rights of an individual have found a place among the fundamental
rights and then doing a critical analysis of the same to shed more light on the topic with a
special focus on Article 29 and 21A and article 30 up to some extent. We will also be looking
into the various judgements given by the apex court and high courts of India and try to
understand the Concept better by understanding its development in India.

Objective
1. To read in detail about cultural and educational rights in India.

2. To read in detail about the various factors responsible for implementation of such laws in
our country.

3. To read in detail and analyse various Article of part III of the Constitution of India relating
to cultural and educational rights.

Scope
This research paper aims to study the position of cultural and educational rights as fundamental
rights in India.

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Research Question
Q1. To understand the meaning and scope of Article 21A?
Q2. To know what are the different factors responsible for implementation of the various
educational and cultural rights related laws?
Q3. What are the legal provision in India regarding the cultural and educational law under
fundamental rights?
Q4. What is the position of education as a fundamental right in India?

Research Methods applied to test the hypothesis/hypotheses

This Research is based on Doctrinal method of Research, Secondary Sources like Statues,
Cases, Article, and Newspaper Articles have been used.

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Cultural and educational rights under Article 29 and 30

Under Article 29 clause 1 of the Constitution of India, 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. The right guaranteed under Art. 29(l) is available to
any section of citizens, whether they belong to the majority or minority, provided such section
has a distinct language, script or culture of its own. The right under Art.29 (1) is not subject to
any reasonable restriction and the right to conserve the language has been held by the Court to
also include the right to agitate for the protection of the language. 1

Article 29 of the constitution of India envisage and protects the cultural rights of the citizens
of India. Article 29 consists of 2 section
Article 29(1) deal with right of any section of the citizens residing in India to preserve their
language, script or culture. In order to invoke Article 29(1), all that is essential is that a section
of the citizens, residing in India should have a distinct language, script or culture of its own. If
so, then they will have the right to conserve the same.
Article 29(2) prohibits discrimination in matters of admission into educational institutions on
grounds only of religion, race, caste, language or any of them. This provision guarantees the
rights of individual irrespective of the community to which he belongs.

Article 29(1): Rights of citizens to preserve their language, script and culture
Article 29(1) is not subjected to any reasonable restrictions. The right conferred upon the
citizens to conserve their language, Script and culture is made absolute by the Constitution2
This right however is subject to restrictions contained in Articles 25 to 30. Promotion of the
majority language does not mean stifling of minority language and script. To do so will be to
trespass on the rights of those sections of the citizens which have distinct language or script
which they have right to conserve through their own educational institutions.

Article 29(2): Right of the citizen not to be denied admission into any State maintained
or State aided educational institution.

1
Jagdev Singh v Pratap Singh Daulata, AIR 1965 SC 183
2
Chapter V , relation between Article 29 and 30 , Shodhganga,
http://shodhganga.inflibnet.ac.in/bitstream/10603/38230/11/11_chapter%205.pdf Accessed on 21/02/2019

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The right guaranteed under this Article is not restricted to minorities but extends to all citizens
whether belonging to majority or minority.

In State of Bombay v Bombay Education Society’s3 Case the apex court held that:

That limiting this right only to minority groups will amount to holding that the citizens of the
majority group have no right to be admitted into an educational institution for the maintenance
of which they contribute by the way of taxes

In State of Madras v Champakam’s4 Case, for the first time the question of application of
Article 29(2) was challenged.

The communal Government Order of the State of Madras allotted seats in medical and
engineering colleges in the State proportionately to the several communities, viz, non-Brahmin
Hindus, Backward Hindus, Brahmins, Harijans, Anglo Indians, Christians, and Muslims. A
Brahmin candidate who could not be admitted to an engineering college challenged the
Government Order as being inconsistent to Article 29(2). The Supreme Court held that the
classification in the Government order was based on religion, race and caste which were
inconsistent with Article 29(2). Even though the petitioner had got much higher marks than
secured by many non-brahmins who were admitted in the seats allotted to them, he could not
be admitted into any institution. The only reason for the denial of admission to him was that he
was a Brahmin and not a non- Brahmin.5

Article 30:

While interpreting Article 30 of the Indian Constitution the question of relative degree of
autonomy and permitted area and extent of regulation of minority educational institutions has
been one important issue to be resolved by the judiciary during the past six decades.

Article 30(1) gives religious or linguistic minorities right to establish and right to administer
educational institutes of their own choice. This privilege is provided only to the minorities.
They may either be religious or linguistic, or both of them.

Article 30(2): Bars the State from discriminating while granting aid to educational institutions,
from discriminating against any educational institution on the ground that it is under the

3
AIR 1954 SC 561
4
AIR 1951 SC 226
5
Chapter V , relation between Article 29 and 30 , Shodhganga,
http://shodhganga.inflibnet.ac.in/bitstream/10603/38230/11/11_chapter%205.pdf Accessed on 22/02/2019

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management of linguistic or religious minority. Article 30(2) mandates that in granting aid to
educational institutions, the state shall not discriminate against any educational institution on
the ground that it is under the management of a minority, whether based on religion or
language. However minorities cannot claim as a matter of right.

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Educational right under Article 21A

India is home to 19% of the world's children that implies India has the world's biggest number
of adolescents just as youth which is generally beneficial, particularly when compared with
nations like China, which has adults in a large proportion. It is revile to state that, India also
has 33% of the world's illiterate population. India is a nation were in excess of 3 million
children are living in the city, in excess of 150 million children are bonded labours, one sixth
of girl child does not live to see her fifteenth birthday celebration and just half of children
approach education.6

Therefore to insure the advancement of the country as a whole there was a dire need to protect
the educational rights of the children as it was envisaged by the constitution makers in order to
accomplish the same the Indian Government passed The Constitution (86th Amendment)
Act,2002.

The Constitution (86th Amendment) Act,2002 has included another Article 21 A after Article
21 and has made education for all children of the age of 6 to 14 years a Fundamental Right. It
provides that

“The State shall provide free and compu lsory education to all the children of the
age of 6 to 14 years in such manner as the state may, by law determine”.

It is well known fact that the education is basic human right. For the success of
democratic system of government, education is one of the basic elements. An
educated citizen has to choose the representatives who form the government.
Education gives the individual the essence of Human dignity that creates him just
as it adds to the advancement of the nation. The framers of the constitution
understanding the significance of the education have imposed the duty under
Article 45 as one of the Directive Principle of the State Policy to give free and
necessary education to all children until they complete the age of 14 years within
10 years from the Commencement of the constitution. The article was to annul the
absence of education from the nation.

6
, ‘Right to Education a Fundamental Right(Article 21 A)’, Pranav Kaushal, Lex Assisto,
https://lexassisto.com/right-to-education-a-fundamental-right-article-21-a-pranav-kaushal/ Accessed on
21/03/2019

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It was expected that the elected governments of the country would honestly
implement the directives. But it is unfortunate that since the lapse of 71 years from
the independence they did not take any concrete steps to implement these
directives and 35% of the population of the country is still illiterate. The framers
perhaps were of the view that in the view of the financial conditions of new state
it was not feasible to make it as a fundamental right under Part III of the
constitution.

Article 21 A may be read with new substituted Article 45 and new clause (k)
inserted in Article 51 A of the constitution (86th Amendment Act 2002). While
the substituted Article 45 obligates the State “To endeavour to provide early
childhood care and education for all Children until they complete the age of 14
years, clause (k) inserted in Article 51 A imposes a fundamental duty on
parents/guardian “to provide opportunities for education to his child or, as the case
may be ward, between the age of six and fourteen years”.

Mohini Jain vs. State of Karnataka and others7: The observations of the court are
as follows

“The “right to education”, therefore, is concomitant to the fundamental rights enshrined under
Part III of the Constitution. The State is under a constitutional-mandate to provide educational
institutions at all levels for the benefit of the citizens. The educational institutions must function
to the best advantage of the citizens. Opportunity to acquire education cannot be confined to
the richer section of the society. The Court holds that every citizen has a ‘right to education’
under the Constitution. The State is under an obligation to establish educational institutions to
enable the citizens to enjoy the said right. The State may discharge its obligation through State-
owned or State-recognized educational institutions”

Unnikrishnan, JP and others Vs. State of Andhra Pradesh and others8:-

The Court observes right to education a fundamental right or not…

7
(1992) 3 SCC 666
8
1993 AIR 2178

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“In order to treat a right as a fundamental right it is not necessary that it should be expressly
stated as one in Part III of the Constitution. The provisions of Part III and IV are supplementary
and complementary to each other. Fundamental rights are but a means to achieve the goal
indicated in Part IV and must be constructed in the light of the directive principles. 150 Though
right to education is not stated expressly as a fundamental right, it is implicit in and flows from
the right to life guaranteed under Article 21 having regard to the broad and expansive
interpretation given by the Court. The right to education which flows from Article 21 is not an
absolute right. It must be constructed in the light of directive principles. A true democracy is
one where education is universal, where people understand what is good for them and the
nation and knows how to govern them.”

Subsequent to the unikrishnan, the Constitution (Eighty-sixth Amendment) Act, 2002

introduced Article 21A which made right to education a fundamental right. Keeping the
objective of Article 21A in mind the provisions have been liberally constructed allowing
Teachers9 and educational Institutions to obtain benefit thereunder.

Article 21A read with Article 19(1) (a) has been constructed as giving all children
the right to have primary education in medium of their choice 10 without the fear of
security and safety so that children have a right to receive education in a sound
and safe building 11 .

However even though Article 21 A was added to the con stitution in 2002 there was
no central or state legislation to implement the same in full force and make this
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law a reality. In 2008 in Ashoka kumar Thakur v UOI Supreme court directed
the parliament to set up a time limit within which the Ar ticle will be completely
implemented. Finally in 2009 The Right of Children to Free and Compulsory
Education Act 2009 was enacted by the parliament. The act provides for free and
compulsory education of children for children above the age of 6. It also provided
that all the schools aided unaided or private will now have to provide free and
compulsory education up to specified percentage of children admitted and no child

9
State of Rajasthan v. Senior Higher Secondary School,(2005) 10 SCC 346
10
Association Managements of primary and Secondary Schools in Karnataka v the state of Karnataka by its
Secretary, Department of Education and Ors. ILR 2008 KAR 2895
11
Avinash Mehrotra v. UOI, (2008) 6 SCC 1
12
(2008) 6 SCC 1

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or parent will be subjected to a screening test nor will they be char ged any
Capitation fee.

In keeping with the Article 51 A, the casts a duty on every parent and guardian to
admit their children to any elementary edu cation in neighbourhood school as is
given in section 10 of the act.

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CRITICAL ANALYSIS

Articles 29 and 30 of the Constitution are grouped under the heading "Cultural and Educational
rights". These both Articles protect and guarantee certain collective rights of citizens of India
to help them preserve their language, religion and culture. These rights also contribute to
preserve the rich diversity of the country and give minority a sense of security.

Article 29 (1) gives protection to any section of the citizens having distinct language, script or
culture by guaranteeing their right to conserve the same. Article 30(1) secures all minorities,
whether based on religion or language, the right to establish and administer educational
institution of their choice13

Another article in the constitution of India under part III is Article 21A which was added in
2002 by the Constitution (Eighty-Sixth Amendment) Act 2002, which provided for the
compulsory and free education for all the children above 6 year of age. However the complete
implementation of the same was done in year 2009.

In the constitution of India the fundamental rights are inalienable rights of an individual which
cannot be taken away and among them one of the most important article is Article 21 Right to
Life which cannot be taken away by anyone and under this Article the right to education was
kept this proves that the right to education is given a lot of importance.

Among the other things the cultural rights have also found their place among the fundamental
rights this shows that the makers of the Constitution of India were well aware of the importance
of cultural and educational rights of an individual and also recognised that protection of these
two rights of an individual is important for the development and Advancement of the Country
in future.

Article 30 is an attempt to protect both the cultural and educational rights of the citizens of
India however in discussing more deeply about the article would lead us astray from the theme
of the current project as Article 30 mainly talks about the rights of the minorities to establish
their own educational institutes and run them.

13
State of Bombay v Bombay Education Society

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CONCLUSION

The constitution the makers have incorporated the said rights in the Part III of the constitution
of India this shows that they hold a somewhat higher position that various other rights
incorporated in various parts of Constitution of India.

In the case of India Article 29 acts as a wall that protects and preserve and gives the right to
minorities to protect their script, language or culture from being lost. Also Supreme Court in
one of its judgement has widened the scope and Ambit of the Article and has said that not only
the minorities but all the Citizens of India have the right to protect and preserve their own
culture, language and script.

The fact that right to education occurs in as many as .three Articles in Part IV viz., Articles 41,
45 and 46 shows the importance attached to it by the founding fathers. Even some of the
Articles in Part III viz.., Articles 29 and 30 speak of education14.

India country like India where diversity can be found on every corner where people speak lots
of language and various dialects it becomes necessary to protect the cultural rights of an
Individual or Community from exploitation so that it does not get lost with the passage of time
therefore the provisions of Constitution of India serve as the perfect safeguard for the people
who want to protect their culture.

14
Right to education: the parameters and the paradoxes, Manduru Venkata Ramana, shodhganga,
https://sg.inflibnet.ac.in/handle/10603/8116 Accessed on 23/03/2019

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Bibliography

Articles

1. Right to education: the parameters and the paradoxes, Manduru Venkata Ramana,
shodhganga, https://sg.inflibnet.ac.in/handle/10603/8116
2. ‘Right to Education a Fundamental Right(Article 21 A)’, Pranav Kaushal, Lex Assisto,
https://lexassisto.com/right-to-education-a-fundamental-right-article-21-a-pranav-
kaushal/
3. Chapter V , relation between Article 29 and 30 , Shodhganga,
http://shodhganga.inflibnet.ac.in/bitstream/10603/38230/11/11_chapter%205.pdf
4. Ana khan, Article 29 and 30 of constitution of India, Pleaders,
https://blog.ipleaders.in/article-29-and-30/

Books

1. M.P. Jain, ‘INDIAN CONSTITUTIONAL LAW’, Lexis Nexis, 6th ed.

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