PART III: Cultural and Educational Rights

Right to Freedom of Religion : rights guaranteed to even aliens

Article 28. Freedom as to attendance at religious instruction or religious worship in
certain educational institutions.—
• Article 28 distinguishes between four types of educational institutions:
(a) Institutions wholly maintained/administered by the State.
(b) Institutions receiving aid from the State
(c) Institutions recognised by the State.
(d) Institutions administered by the State but established under any endowment or
trust, charitable trust.

• In (a), religious instruction is completely prohibited

• while in (d), religious instruction is permitted and may be compelled.
• In (c) and (b), religious instruction is permitted on a voluntary basis cannot be
compelled.
• Secularism: State should be hostile to religion? Neutral
• A person ceases to be secular if a person is a devout Hindu or Muslim?
• Not override art-25-28 or 351
• Not neutral: to use religion for political purpose
• If state does this – Art 356
• Basic feature of the constitution.
• The anti-conversion law in Odisha refers to the "Odisha Freedom of
Religion Act, 1967" (also known as the Odisha Anti-Conversion Law)
• Madhya Pradesh Freedom of Religion Act, 2021,
• Several states in India, including Uttar Pradesh, Madhya Pradesh,
Himachal Pradesh, Gujarat, and Odisha, have implemented anti-
conversion laws- ARP
• Cultural and Educational Rights

Article 29. 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.
- Article 29 grants protection to both religious minorities as well as
linguistic minorities.
- However, the Supreme Court held that the scope of this article is not
necessarily restricted to minorities only, as it is commonly assumed to be.
• Article 30 grants the following rights to minorities, whether religious or
linguistic:
(a) All minorities shall have the right to establish and administer educational
institutions of their choice.
(b) The compensation amount fixed by the State for the compulsory acquisition
of any property of a minority educational institution shall not restrict or
abrogate the right guaranteed to them.
This provision was added by the 44th Amendment Act of 1978 to protect the
right of minorities in this regard. The Act deleted the right to property as a
Fundamental Right (Article 31).
Article 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 an 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.]
(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.
St Stephens College vs University of Delhi 1992 (50 percent of seat)
TMA Pai Versus State of Karnataka 2003 ( May Professional education)
• The protection under Article 30 is confined only to minorities (religious or
linguistic) and does not extend to any section of citizens (as under Article
29).
• However, the term ‘minority’ has not been defined anywhere in the
Constitution.
• The right under Article 30 also includes the right of a minority to impart
education to its children in its own language.
• Minority educational institutions are of three types:
(a) institutions that seek recognition as well as aid from the State;
(b) institutions that seek only recognition from the State and not aid; and
(c) institutions that neither seek recognition nor aid from the State.
• A mere declaration of fundamental rights in the Constitution is
meaningless, useless and worthless without providing an effective
machinery for their enforcement, if and when they are violated.
• Article 32 confers the right to remedies for the enforcement of the
fundamental rights of an aggrieved citizen.
• The right to get the Fundamental Rights protected is in itself a
fundamental right. This makes the fundamental rights real.
• It is the very soul of the Constitution and the very heart of it’. -Ambedkar
• The Supreme Court has ruled that Article 32 is a basic feature of the
Constitution.
Right to Constitutional Remedies
Article 32. Remedies for enforcement of rights conferred by this Part.—
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred
by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law
empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable
by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution. 2 32A. [Constitutional validity of State laws not to be considered in proceedings under article
32.].—Omitted by the Constitution (Forty-third Amendment) Act, 1977, s. 3 (w.e.f. 13-4-1978). 3 [33. Power of
Parliament to modify the rights conferred by this Part in their application to Forces, etc.—Parliament may, by
law, determine to what extent any of the rights conferred by this Part shall, in their application to,— (a) the
members of the Armed Forces; or (b) the members of the Forces charged with the maintenance of public order;
or (c) persons employed in any bureau or other organisation established by the State for purposes of
intelligence or counter intelligence; or (d) person employed in, or in connection with, the telecommunication
systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be
restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline
among them.]
• The right to move the Supreme Court shall not be suspended except as
otherwise provided for by the Constitution. Thus the Constitution
provides that the President can suspend the right to move any court for
the enforcement of the fundamental rights during a national
emergency (Article 359).
• It is thus clear that the Supreme Court has been constituted as the
defender and guarantor of the fundamental rights of the citizens. It has
been vested with the ‘original’ and ‘wide’ powers for that purpose.
• Original, because an aggrieved citizen can directly go to the Supreme
Court, not necessarily by way of appeal. Wide, because its power is not
restricted to issuing of orders or directions but also writs of all kinds.
• Only the Fundamental Rights guaranteed by the Constitution can be
enforced under Article 32 and not any other right like non-fundamental
constitutional rights, statutory rights, customary rights and so on
• A remedy under Article 32 is in itself a Fundamental Right and hence,
the Supreme Court may not refuse to exercise its writ jurisdiction.
• On the other hand, a remedy under Article 226 is discretionary and
hence, a high court may refuse to exercise its writ jurisdiction.
• Article 32 does not merely confer power on the Supreme Court as
Article 226 does on a high court to issue writs for the enforcement of
fundamental rights or other rights as part of its general jurisdiction.
• The Supreme Court is thus constituted as a defender and guarantor of
the fundamental rights.