Introduction
In this article we will discuss the importance of culture in constitutionalism and how it has created influence in the Constitution. At first, we have to deeply understand the definition of Constitutionalism and Culture. These two factors are interrelated with each other and these are crucial for forming a democratic and sovereign State. In a democratic State, Rule of Law is an essential part. For creation of such a State, various social, political, economic factors are required.
Definition of Constitutionalism
Constitutionalism has various meanings but generally it means limited government[1]. But in fact, it is a vast concept consisting complex ideas, attitudes and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law. Constitutionalism generally refers to Rule of Law in the society which means law is supreme and it applies equally to each and every person and it is necessary that every citizen should abide by this rule, though there are some exceptions.
Definition of Culture
Culture has been defined in many terms in different dictionaries. Generally, ‘Culture’ means concepts, habits, skills, art, manner, tradition etc., Different scholars, sociologists define it in different ways. It may have a bunch of interpretations varying from person to person, state to state. But what is important is that if we think about these interpretations, we can see culture has played an important role in forming constitution. A traditional as well as conservative society has strict rules and harsher penalties for violating laws, on the other hand, comparatively less conservative and civilized society has a relaxed set of rules and laws for the citizens.
According to Max Weber, “In interpreting action, the sociologists must take account of the fundamentally important fact that the collective concepts which we employ in our thinking, whether in legal or other specialist context or in everyday life, represent something: what they represent is something which in part actually exists and has a normative force in the minds of real men (not only judges and officials but also the general public) whose actions take account of it. Because of this, they are of great, often absolutely vital, importance in giving a casual explanation of the way in which the actions of real human beings proceed[2].”
Here the term “collective concepts” refers to shared beliefs about certain objects in the society which is an integral element of society. A constitutional state is impossible without these collective thoughts. The basis of the Indian Constitution is tolerance which we can clearly see in the constitution relating to the provisions of cultural and educational rights.
Rights Relating to Culture and Education
In the Indian Constitution, culture has been kept secured to protect the interests of the citizens. Part III (Article 12 to 35) of the Indian Constitution consists fundamental rights of the citizens. Among these rights we will discuss the Articles related to culture and education. These rights safeguard the rights of linguistic, cultural and religious minorities.
Article 29
This article protects the interests of minority groups.
Neither the term ‘Minorities’ is defined in the Constitution nor any group is mentioned explicitly as ‘Minority’. But in our Constitution, there are mentioned about two types of minorities, namely, Religious Minorities and Linguistic Minorities.
According to the National Commission for Minorities Act, 1992, Muslims, Sikhs, Christians, Buddhists and Parsis were recognized as Minorities. Jains were also added therein after.
According to the 38th report of National Commission of Linguistic Minority, in each state there is a language which is spoken by the majority of residents of the State. All others who do not speak that particular language, belong to Linguistic Minority.
In the case of T.M.A. Pai Foundation v. State of Karnataka[3], the Court held that minorities have to be considered state-wise which means a community or group of people who are considered as minorities in the country, can be majorities in a state. It differs from state to state.
Article 29(1): It provides all the citizens residing in India having a different culture, language, and script, the right to conserve and practice their culture and language. There are no reasonable restrictions regarding this right and it is absolute.
But the Supreme Court held that as Article 29 safeguards about any section of the citizens, so Article 29(1) applies to minorities as well as majorities.
The Bombay High Court in Usha Mehta v. State of Maharashtra[4], relied on the ‘three-language formula’ and held that, “It is difficult to read Article 29 and 30 in such a way that they contain the negative right to exclude the learning of regional language. Ipso facto it is not possible to accept the proposition that the people living in a particular State cannot be asked to study the regional language.”
Article 29(2): The State shall not deny admission into institutes maintained by it or those that receive aids from it to any person based on race, religion, caste, language, etc. This right is enjoyed individually.
The Supreme Court held that the right to conserve language includes the right to agitate for the protection of the language. Hence, the political speeches or promises made for the conservation of the language of a section of the citizens does not amount to corrupt practice under the Representation of the Peoples Act, 1951.
In State of Bombay v. Bombay Education Society[5], an order issued by the Bombay Government banning admission of those whose language was not English to a school using English as a medium of instruction, was declared invalid under Article 29(2).
Article 30
Rights of minorities to establish and administer educational institutions.
Article 30(1): All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
In the landmark case of St. Xavier’s College v. State of Gujarat[6], the Supreme Court held the following four distinctions between Article 29(1) and 30(1):
- Article 29(1) gives right to all citizens having a distinct language, script, or culture to preserve the same. Whereas, Article 30(1) gives right to minorities to establish and administer educational institutions.
- Article 29(1) provides right to all the citizens but Article 30(1) provides right to the minorities.
- Article 29(1) deals only with language, script and culture. Whereas, the latter one deals with language and religion.
- Article 29(1) is concerned with the right to conserve language, script and culture. Article 30(1) is concerned with the rights of establishment and management of educational institutions of their own choice to minorities.
In this landmark case, some sections of Gujarat University Act imposed several restrictions that affected its managerial rights of the college. The Supreme Court held that the provisions that effectively take control of the management of an educational institution are not applicable to minority institutions.
In Yogendra Nath Singh v. State of Uttar Pradesh[7], the Government recognized an institution as a minority institution. The order was challenged in the High Court through a writ petition. Analyzing the antecedent history of institution right from its inception, the Court held that the institution was not established as a minority institution and therefore, it could not be granted minority status even though presently it was being managed by the minority community[8]. According to Article 30(1), the requirements of establishment and management have to be fulfilled and in the absence of one, an institution cannot be granted minority status.
Article 30(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.
Article 30(1A) was inserted through 44th Amendment Act, 1987 and as Right to Property was removed from Fundamental Rights and added to Constitutional Rights, Article 30(1A) was needed because it is also related to property too.
Article 30(2): The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is the management of a minority, whether based on religion or language.
The Supreme Court through the judgement of Chief Justice S.R. Das in the Kerala Education Bill[9] has efficiently highlighted the cultural traditions of India as follows:
“So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this Court to uphold the fundamental rights thereby honour our sacred obligation to the minority communities who are of our own. Throughout the ages endless inundations of men of diverse creeds, cultures, and races-Aryans and non-Aryans, Dravidians and Chinese, Scythians, Huns, Pathans, and Mughals have come to this ancient land from distant regions and climes. India has welcomed them all. They have met and gathered, given and taken, and got mingles, merged and lost in one body.” Further it was stated that, “No one shall be turned away from the shores of this vast area of humanity- That is India.”
Article 49
This article provides protection of monuments and places and objects of national importance. According to this Article, “It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoilation, disfigurement, destruction, removal, disposal or export, as the case may be.”
The Supreme Court prevented the “Taj Heritage Corridor Project” one of the main purposes of which was to divert the River Yamuna and to reclaim 75 acres of land between Agra Fort and the Taj Mahal, from using the reclaimed land for constructing food plazas, shops and amusement activities[10] regarding to the duties mentioned under Article 49.
Conclusion
Hence, we can clearly see that the Indian Constitution itself consists the liberal and tolerant nature of different cultures. The culture, tradition, ethics, thoughts and values of a society containing different cultures form the foundation of the laws governing it as well as bring changes in the legislation relating to laws of culture. Hence, culture and law are correlated to each other in forming a democratic state.
References:
[1] http://ccrtindia.gov.in/readingroom/nscd/ch/ch9.php
[2] https://www.legalbites.in/role-of-culture-in-constitutionalism/
[3] T.M.A. Pai Foundation & Ors v. State of Karnataka & Ors, 2002
[4] Usha Mehta v. State of Maharashtra, (2004) 6 SCC 264, at page 279
[5] State of Bombay v. Bombay Education Society, AIR 1954 SC 561
[6] The Ahmedabad St. Xavier’s College v. State of Gujarat & Anr, 1974 AIR 1389
[7] Yogendra Nath Singh v. State of Uttar Pradesh, AIR 1999 All 356
[8] M.P. Jain, Indian Constitutional Law (Eighth Edition,2018)
[9] The Kerala Education Bill v. Unknown, 1959 1 SCR 995
[10] MC Mehta v UOI, AIR 2007 SC 1087
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