Cultural Pluralism

The cases

Culture is conserved through institutions, and the leading case is about a college. In The Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717; AIR 1974 SC 1389. Facts. The Gujarat University Act 1949, as amended, required affiliated colleges to accept university control over the appointment and dismissal of staff, over the medium of instruction, and over admissions and discipline; a Jesuit society running a college challenged the provisions under articles 29 and 30. Held. By a Bench of nine judges, that the right under article 30(1) to establish and administer educational institutions of a minority's choice includes the right to choose its governing body, its teachers and its students, subject to reasonable regulation in the interest of educational standards; that regulations which serve the interest of the institution and of academic excellence are permissible, while those which take away the right of administration are not; and that several of the provisions could not be applied to minority institutions. Why it matters here is that it fixes the difference between REGULATION, which is permitted, and DISPLACEMENT, which is not, and that difference governs every cultural and minority institution question.

And teaching about cultures is not the same as teaching a religion. In Aruna Roy v. Union of India, AIR 2002 SC 3176; (2002) 7 SCC 368. Facts. A petition under article 32 challenged the National Curriculum Framework for School Education published by the National Council of Educational Research and Training, mainly on the ground that it introduced religious instruction into State schools contrary to article 28, and separately for want of consultation with the Central Advisory Board of Education. Held. The petition was dismissed. Non-consultation was no ground, the Board not being statutory. On the substance, the study of religions for the purpose of value education is distinct from religious instruction in a particular religion, which alone article 28(1) forbids in a wholly State-funded institution; and the Court reasoned in part from the fundamental duties in article 51A(e) on harmony and common brotherhood and 51A(f) on the composite culture. Why it matters here is that it is the case that permits a plural society to teach itself about its own composition.

A worked example

A State proposes that all government schools shall follow a single syllabus in art, music and literature drawn from the culture of the State's largest community, and that no school receiving State aid may teach any other cultural tradition during school hours. Is this constitutional?

The single syllabus in government schools is largely permissible. A State runs its own schools and may prescribe a curriculum; article 29(1) does not require the State to teach every culture.

The bar on teaching any other tradition is not. For an aided institution established by a section with a distinct culture, that provision would prevent conservation of the very thing article 29(1) protects, and for a minority institution it would displace the administration protected by article 30(1) as St. Xavier's describes it.

And the aid condition is caught by a further rule. In re The Kerala Education Bill, 1957 holds that while there is no right to aid, the State may not grant aid on a condition that amounts to surrender of the article 30(1) right, because a legislature cannot indirectly take away what it could not take away directly.

Now vary it constructively. A State that prescribed a common core syllabus and left space for an institution to teach its own tradition would be regulating rather than displacing, and on St. Xavier's that is permissible.

The example gives the whole test. Ask whether the measure regulates the institution or replaces its administration, and whether an aid condition asks for the surrender of a right.

Distinctions

What it does NOT mean

It does not mean article 29(1) is a minority right. It protects any section of citizens, and this is the single most common error in answering on it.

It does not mean a culture may be conserved against its own members. The right is against the State, and a member who wishes to leave the culture is protected by articles 19, 21 and 25.

It does not mean the State must fund cultural conservation. Article 29(1) is a right to conserve, not a claim to resources, and In re The Kerala Education Bill, 1957 is express that there is no fundamental right to aid.

And it does not mean article 29(2) is a limitation on article 29(1). They protect different people: clause (1) protects a group's culture, clause (2) protects an individual against exclusion from a State or State-aided institution on grounds only of religion, race, caste or language.

Quick revision

Article 29(1): any section of citizens residing in India or any part of it having a distinct language, script or culture of its own has the right to conserve it. Not confined to minorities; any ONE of language, script or culture suffices; the right is to conserve rather than to develop or propagate. Article 29(2): no denial of admission to a State-maintained or State-aided institution on grounds only of religion, race, caste or language. Article 49: the State's obligation to protect monuments and objects of artistic or historic interest declared of national importance. Article 51A(f): the fundamental duty to value and preserve the rich heritage of our composite culture. St. Xavier's College, nine judges: article 30(1) includes the choice of governing body, teachers and students, subject to regulation in the interest of educational standards; regulation is permitted, displacement of administration is not. Aruna Roy: the study of religions for value education is not the religious instruction article 28(1) forbids, and the fundamental duties support it.

Test yourself

1. Who may invoke article 29(1)? Any section of the citizens residing in India or any part of it having a distinct language, script or culture of its own. It is not confined to minorities.

2. What does "conserve" permit and what does it not? It permits a group to keep and maintain its language, script or culture, chiefly through institutions that teach it. It is not a right to State funding, and it is not a right to propagate the culture at the State's expense.

3. State the test in St. Xavier's College. That article 30(1) includes the right to choose the governing body, the teachers and the students, subject to reasonable regulation in the interest of educational standards; regulations serving the institution and academic excellence are permissible, those taking away the right of administration are not.

4. How do clauses (1) and (2) of article 29 relate? They protect different subjects. Clause (1) protects a group's right to conserve its culture; clause (2) protects an individual against denial of admission to a State-maintained or State-aided institution on grounds only of religion, race, caste or language.

5. May the State attach conditions to aid for a cultural institution? It may attach conditions relating to standards and accountability, but In re The Kerala Education Bill, 1957 holds it may not condition aid on the surrender of the article 30(1) right, because a legislature cannot indirectly take away what it cannot take away directly.

6. What did Aruna Roy permit, and on what reasoning? The study of religions for the purpose of value education in State schools, distinguishing it from religious instruction in a particular religion which article 28(1) forbids, and reasoning in part from the fundamental duties on harmony and on the composite culture in article 51A(e) and (f).