Both Articles 29 and 30 come under Part III of the Indian constitution under a heading called “Cultural and Educational rights”. Article 29 is titled “Protection of Interest of Minorities” and Article 30 “Right of minorities to establish and administer educational institutions”. Till date the court does not seem to have addressed one question. Why is it that we have such a provision ? A coherent rationale for differentiating the minority and Hindu institutions is yet to emerge. In this post, I argue it makes little sense to differentiate on the basis of religion when faced with matters of preservation of culture. We look at three important cases where the political class launched an assault on Sanskrit and it needed judicial intervention to survive.
Is there any link between 29(1) and 30(1) ?
A recap 29(1) says
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.
The spirit behind the whole regime of positive rights bestowed upon minorities in 30(1) is so that it can give life to the clause in 29(1). In plain words, the right to run convent schools allow the Christian minority to exercise the right in 29(1) which leads to conservation of their culture. There is an unmistakable trend today spearheaded by liberal activists and college owners that seeks to divorce the two. They put forth the idea that Art 30(1) and Art 29(1) are unrelated. The only thing that matters is 1) minority individuals control the institutions. There is some room for compromise with the state but in effect what they want is an unconditional positive right based only on their religious identity. I don’t think that stands up to scrutiny nor does the court in several cases. After all, the constitution does not bestow a positive right to minorities to establish other types of industry such as fast food franchises. Both minorities and Hindus can and do open Dominos outlets for example. For the rest of this post we are going to assume a linkage between 29(1) and 30(1).
Do Hindus (non-minority) have the right to preserve Sanskrit ?
The original argument in favour of Articles 29/30 was that in a Hindu majority India it was inconceivable that ancient cultures and literature needed any positive protection. No legislature would dare undermine the majority culture because that would lead to certain electoral defeat. Hindus could rely on political checks but the minorities did not have this protection. This necessitated a judicial check in the form of a statement of positive rights only for minorities. To be sure there are minority institutions like CMC Vellore and St Johns Bangalore that can be said to be truly serving their community in a very Christian environment. The framers could have envisioned a majoritarian or socialist state. One that could in theory outlaw their modes of teaching , altered their character, or simply nationalized them. So the minorities were given a judicial check and the majority relied on relatively weaker equality based provisions in the hope that the political system would favour them anyway.
The problem is of course that subsequent interventions resulted in fragmentation of Hindus so that the political check no longer worked. Factions sprang up overnight, riding on adhoc benefits, they were ready to toss the ancient scripts in exchange for temporal benefits.
Lets take a look at the incredible travails Sanskrit has gone through in three cases.
1994 – Santosh Kumar and Ors vs Ministry of Human Resources Development [Link]
In 1994 the Congress government under Narasimha Rao and the HRD Minister Arjun Singh removed Sanskrit as an optional subject in CBSE Class XII. The principal reason cited was that the CBSE Board did not have enough resources to teach Persian and Arabic. According to them that could only mean one thing. Offering Sanskrit as an elective and not offering Persian and Arabic was against secularism. The decision was therefore remove Sanskrit even as an elective. This was challenged and it made it to the Supreme Court which reinstated it. Read the judgment linked to note how far the government went to persuade the court. KTS Tulsi then additional Solicitor General representing the Govt said if they had to teach Sanskrit they also had to teach French, German, and Lepcha.
The desire to keep Sanskrit out does not stop here, as the submission also is that if Sanskrit comes, the Board shall have to bring in language like French and German. This is not all, as it is contended by the Addl. Solicitor General that the Board feels that arrangement may have then to be made for imparting education even in Lepcha, a language whose name many of the Indians might not have even heard.
AIR 1995 SC 293 Hansaria J P 4
The court came down really hard on the government and restored Sanskrit. It was a narrow escape for the most important linguistic key to unlocking the ancient texts of this land. The upside of this case was the court seemed to coverge to a position taken in an earlier judgment in State of Bombay vs Bombay Educational Society 1954. In that case, Barnes High School an Anglo Indian Christian school refused admission even to Indian Christians on account of their not having English as their mother tongue and due to their Asiatic descent. The court held that Art 29 protections applied to all sections including the majority community. I think this view has come to the fore now.
1997 – Bal Sewa Educational vs Tamil Nadu [Link]
Shanmugha College of Engineering is a famous college in Tamilnadu located near Thanjavur. In 1997, the trust that runs the college applied to be considered as a Linguistic Minority College on the basis that all the founders were well versed in Sanskrit and that development of Sanskrit was one of their goals. I think this is the only time an institution has asserted Art 30 rights on the basis of Sanskrit. An exceedingly interesting case if only to observe how the then DMK Karunanidhi government reacted. At first glance, the claim appears to be flaky. What can be the connection between Sanskrit and Instrumentation Engineering ? Look harder, there are dozens of Telugu linguistic minority colleges like Venkateswara College. What is the link between Telugu and Electrical Engineering ? So the entire regime is lacking an internal consistency. The Shanmugha administrators can surely be pardoned because as Tamil Hindus the advantages of minority status was too alluring. Worth a shot. The state government would of course have none of it and responded that – Sanskrit was a dead language and denied the status. The Madras HC observed.
Tamil Nadu, the antipathy towards Sanskrit was confined to a section trying to make political capital out of it, and that it was strongly organised and effectively expressed. Several Sanskrit lecturers and teachers represented to us that, when Sanskrit versus were sung in prayer or any Sanskrit feature was presented in public functions in the colleges and the schools, a section of the student population started jeering and booing. Such things, along with certain ad-ministrative measures coming one after another, have been slowly pushing Sanskrit to the wall in this part of the country. It is, indeed, an irony of fate that this should be the situation in a region to which the rest of India used to look up as a vertical asylum of Indian culture and traditional learning. The anxiety which the people here felt about the future of Sanskrit was clearly borne out by the fact that Madras sent the largest number of replies to our questionnaire.
Madras High Court Judgment MLJ 1998 (596) SS Subramani J pp 96
The court quashed the order and asked the government to reconsider. I dont know what happened after that to the college. I do know that Dr Murli Manohar Joshi’s initiatives as well as the court judgments in TMA Pai followed by clarifications in Islamic Academy and PA Inamdar removed a lot of shackles from private unaided institutions of even the non-minority communities. In light to the RTE act, I suppose you can expect quite a few claims of this sort to be made.
Once again, being a culture of the majority religion proved to be of zero help. The political check not only failed but even went to the extent of declaring the language as dead unworthy of anyone laying claim to it. This once again shows that the Art 29 protections are essential to the Hindus as well. In any case, the next year the BJP lead NDA government was voted into power and it was expected to provide some breathing room for Sanskrit. Time to move to the next case.
2002 – Aruna Roy and Ors vs Union of India [Link]
The NDA government under the HRD Minister Dr Murli Manohar Joshi gave much needed respect to the native cultural traditions of this land. The NCERT syllabus sought to include values embodied in ancient India such as Dharma, vedic mathematics and vedic astronomy. It is of utmost importance to note that none of these required the compulsory study of any religious rituals or religious scriptures. However, Aruna Roy, BG Verghese and other activists would have none of it. They went to court and were initially successful in obtaining a stay pending a hearing. Their objections were two fold, the first one was that CABE was not consulted. This was set aside as this was only an advisory body which had no statutory status (not set up by law or by any rules).
Their second and substantial criticism was that the impugned syllabus was anti-secular and that Sanskrit was being imposed along with a laundry list of objections.Everything with the word “Vedic” in it was challenged.
- Dont want vedic astrology : Wrong. The syllabus had vedic astronomy – which is a well recognized science.
- Dont want vedic maths : Wrong. Adverse reaction to word Vedic. Vedic maths is just techniques.
- Dont want Sanskrit : Wrong. It wasnt being imposed but optional. Refered to Santosh Kumar (see above case)
- Other items in list such as opposition to Hindu festival celebrations were disposed too.
The court which had stayed the syllabus found out that upon scrutiny the Aruna Roy group had no substance. It vacated the stay and allowed the syllabus to continue. There was gloom in the activist world that their latest attack on Hindu and Indian culture failed once again in the court. The thing to remember once again is this. The fact that Hindus as majority offered zero guarantees against raiders. Time and again they had to resort to judicial protection to ward to active political and activist pressure to bury it. This only makes the Bombay Society stance that even Hindus need positive rights under Art 29 even stronger.
To be continued..
1. Various SC Judgments
2. Fundamental rights and their enforcement. Udai Raj Rai, Prentice Hall India 2011 Edition
Territoriality will continue to be one of the most vexing problems for data regulation in 2018. One aspect of this debate relates to whether a U.S. judge can compel the disclosure of personal data located in Europe without using international treaty mechanisms. This issue is currently being considered by the United States Supreme Court in the case United States v. Microsoft. The case involves the question of whether a U.S. statute relating to search warrants can be interpreted as extending to a search for data located outside the United States; in this case, the data is located in Ireland. The U.S. Court of Appeals found that, in the absence of express wording in the statute relating to extraterritorial application, the statute should be interpreted as being limited to searches conducted within the territory of the United States. The Supreme Court is currently reviewing the case. In December, 2017, the European Commission filed an amicus brief urging the Supreme Court to give due consideration to the principles of international comity and territoriality when interpreting the U.S. statute.
According to the European Commission:
“any domestic law that creates cross-border obligations – whether enacted by the United States, the European Union, or another state – should be applied and interpreted in a manner that is mindful of the restrictions of international law and considerations of international comity. The European Union’s foundational treaties and case law enshrine the principles of ‘mutual regard to the spheres of jurisdiction’ of sovereign states and the need to interpret and apply EU legislation in a manner that is consistent with international law.”
The international law norms mentioned by the European Commission include territoriality and comity. The principle of territoriality means that police and courts have no legal authority outside the borders of their own country. The principle of international comity means that, when a court issues a decision having effects outside its own country, the court must take utmost account of the laws of the other affected nations, and wherever possible avoid conflicts with those laws. For international investigations involving data, the Commission points out that mutual legal assistance treaties (MLATs) “embody a carefully negotiated balance between the interests of different states that is designed to mitigate jurisdictional conflicts.” The European Commission said that MLATs permit international data searches to occur without violating international law or the European General Data Protection Regulation (GDPR).
Separately, Europe’s Article 29 Working Party issued a statement on data protection and privacy aspects of cross-border access to electronic evidence, warning that:
“the adoption of an instrument compelling organizations not subject to the jurisdiction of an EU Member State would conflict with the applicable law and jurisdiction of the country where the organization is established. The organization subject to a production request/order could indeed be facing a conflict of laws.”
The Article 29 Working Party concluded that extraterritorial data orders would constitute “an interference with the territorial sovereignty” and that MLAT procedures should be used.
On matters involving harmful content, the Council of Europe committee of experts on internet intermediaries issued in December draft guidelines urging “the development of common approaches and jurisdictional principles” to avoid conflicts of laws in international cases. The global nature of the internet makes it tempting for national courts to apply global remedies. Yet global remedies often conflict with the laws of other countries. The most well-known case on territoriality is the 2000 French Tribunal de grande instance decision involving Yahoo!’s online auction of Nazi memorabilia. The case had the potential of creating a conflict between French laws prohibiting hate speech and the U.S. First Amendment. Recognizing the geographic limits of its own power (principle of territoriality) and the risk of conflict with the laws of other sovereign nations (international comity), the French court in the Yahoo! case limited its blocking order to users on French territory. Since the Yahoo! decision, ISP blocking orders in Europe have generally been limited to users in the territory where the court has jurisdiction.
Given the global scope of cloud computing and digital services, international law principles are easily forgotten. The European Commission’s amicus brief is a useful reminder that international law principles form an integral part of both EU and U.S. law and need to be weighed in any case involving cross-border data disputes.