Time To Change Our Anti-Majority, Pro-Minority Education Laws
Swarajya looks at the educational laws of 20 countries, some Islamic, and finds no sanction for discrimination against any group based on religion or race
In a series of posts earlier, we have looked in detail at the anomalies in the Indian Constitution with respect to granting of rights for establishing educational institutions. Such a right under Article 30 exists only for religious and linguistic minorities, and not for the majority community.
In the previous articles, the history, evolution and implications of Article 30 have been looked at elaborately. This article will examine the provisions provided in the constitutions of various countries that grant equal rights and opportunities to ‘all’ its citizens for establishing educational institutions.
There are a few countries which do provide specific rights for their minorities (ethnic communities) to establish educational institutions. However, along with these provisions, as we shall see later, the rights of the majority have been well protected.
The ‘Basic Law’ for the Federal Republic of Germany has a dedicated article for its school system. This Article 7 gives explicit rights to its citizens for establishing private schools.
Article 7 (4) The right to establish private schools shall be guaranteed. Private schools that serve as alternatives to state schoolsshall require the approval of the state and shall be subject to the laws of the Länder. Such approval shall be given when private schools are not inferior to the state schools in terms of their educational aims, their facilities or the professional training of their teaching staff and when segregation of pupils according to the means of their parents will not be encouraged thereby. Approval shall be withheld if the economic and legal position of the teaching staff is not adequately assured.
It is clear that this right is uniformly available to all the citizens and is not bound by any conditions. Article 3 of the same document underlines this point by declaring that no citizen will be favoured or discriminated against based on any special attribute.
Article 3 (3) No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith or religious or political opinions. No person shall be disfavoured because of disability.
Section 27 of the Spanish Constitution talks about the rights of its citizens relating to education. There is a specific provision that grants rights to establish educational institutions.
Section 26 (6). The right of individuals and legal entities to set up educational centres is recognised, provided they respect constitutional principles.
We see that the right is not bound by any considerations based on religion, language or any other parameter. Just to reconfirm, we can also look at Section 14 of the Constitution that debars any discrimination based on such parameters.
Section 14 says Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex,religion, opinion or any other personal or social condition or circumstance.
South Africa has had a history of racial discrimination (apartheid) and, therefore, the need to ensure equal rights for all its citizens, especially ensuring that native communities do not suffer any disadvantages, was paramount. With that context in mind, let us look at its Constitution for the provision relating to establishing educational institutions.
Section 29 (3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that — (a) do not discriminate on the basis of race; (b) are registered with the state; and (c) maintain standards that are not inferior to standards at comparable public educational institutions.
Notice the operative word ‘Everyone’ in the article. All sections of its citizens have been given equal rights.
The South African Education Policy Act further reinforces this constitutional principle that reads:
Directive principles of national education policy 4. The policy contemplated in section 3 shall be directed toward – (a) the advancement and protection of the fundamental rights of every person guaranteed in terms of Chapter 2 of the Constitution, and in terms of international conventions ratified by Parliament, and in particular the right –…….(vii) of every person to establish, where practicable, education institutions based on a common language, culture or religion, as long as there is no discrimination on the ground of race;
South Africa, therefore, does not provide any special favours to any community or individual over establishing educational institutions.
In Jordan, Islam is the state religion. It, therefore, becomes especially interesting to look at their constitutional provisions governing private schools.
Article 19. Congregations shall have the right to establish and maintain their own schools for the education of their own members provided that they comply with the general provisions of the law and be subject to the control of the government in matters relating to their curricula and orientation.
There is no distinction between communities when it comes to this right. Let us look at Article 6 (i) of the Constitution that reinforces our understanding of equality granted under Article 19.
Article 6 (i) Jordanians shall be equal before the law.There shall be no discrimination between them as regards to their rights and duties on grounds of race, language or religion.
Both with regard to rights and duties, Jordan’s Constitution does not discriminate based on religion or language. Hence, the right under Article 19 is truly available to all its citizens.
Section 16 of Singapore’s Constitution provides rights to its citizens on various aspects relating to education. This section guarantees equal rights to all its citizens for establishing institutions of their choice, including religious educational institutions.
16 — (1) Without prejudice to the generality of Article 12,there shall be no discrimination against any citizen of Singapore on the grounds only of religion, race, descent or place of birth — (a) in the administration of any educational institution maintained by a public authority,and, in particular, the admission of pupils or students or the payment of fees;or (b) in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and whether within or outside Singapore). (2) Every religious group has the right to establish and maintain institutions for the education of children and provide therein instruction in its own religion, and there shall be no discrimination on the ground only of religion in any law relating to such institutions or in the administration of any such law.
The elucidation of the article renders it unnecessary to elaborate any further on Singapore’s outlook towards equality in this domain.
Section 29 of Brazil’s Constitution provides the right to establish private schools. It says:
Article 209. Teaching is open to private enterprise, provided that the following conditions are met: 1. – compliance with the general rules of national education; 2 – authorization and evaluation of quality by the Government
No favour is curried out to any section of its citizens, nor is any community deprived of this right.
Article 42, Section 4 of the Irish Constitution provides the right to establish private educational institutions. No special provisions favour any community, nor is the right denied to any class.
Article 42 (4). The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it,provide other educational facilities or institutions with due regard, however,for the rights of parents, especially in the matter of religious and moral formation.
The provisions under the Irish Constitution that deal with religion make it further clear that no religious community shall be favoured or discriminated against in any matter.
Article 44 (2) Sub-section (3). The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.Sub-section (4). Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.
Article 43 of the Portuguese Constitution provides the right to teach. This is guaranteed to all its citizens, without any discrimination.
Article 43: Freedom to learn and to teach 1. The freedom to learn and to teach shall be guaranteed. 2. The state shall not lay down educational and cultural programmes in accordance with any philosophical,aesthetic, political, ideological or religious directives. 3. Public education shall not be denominational. 4. The right to create private and cooperative schools shall be guaranteed
The Constitution’s provisions relating to equality and non-discrimination make it further clear that no community shall be deprived of any right or duty.
Article 13 (2) No one shall be privileged, favoured, prejudiced, deprived of any right or exempted from any duty on the basis of ancestry, sex, race, language, place of origin, religion, political or ideological beliefs, education, economic situation, social circumstances or sexual orientation.
Article 16 of the Greek Constitution provides the right to run private educational institutions and without any discrimination.
Article 16 (8). The conditions and terms for granting a license for the establishment and operation of schools not owned by the State,the supervision of such and the professional status of teaching personnel there in shall be specified by law. Article 13 (1). Freedom of religious conscience is inviolable. The enjoyment of civil rights and liberties does not depend on the individual’s religious beliefs.
Article 13(1) makes it abundantly clear that the right under Article 16(8) does not depend upon any religious affiliation.
The Constitution of Chile uses interesting methods to highlight that the right to open educational institutions is especially free from any favour or bias.
Article 19 (11). The freedom of education includes the right to open, organize and maintain educational institutions. Freedom of education has no other limitations than those imposed by morals, good customs, public order and national security.
The Constitution of Egypt has a simple provision that guarantees autonomy for its educational institutions. The provision is free from any clause restricting it to a few communities or depriving the same to others.
Article 21. The state guarantees the independence of universities, scientific and linguistic academies. It commits to providing university education in accordance with global quality criteria, and to developing free university education in state universities and institutes as per the law.
Article 33 of the Italian Constitution provides a non-discriminatory right to its citizens to run their own educational institutions. The article, in fact, makes it clear that all such institutions shall be given “full liberty”.
Article 33. Entities and private persons have the right to establish schools and institutions of education, at no cost to the State. The law, when setting out the rights and obligations for the non-state schools which request parity, shall ensure that these schools enjoy full liberty and offer their pupils an education and qualifications of the same standards as those afforded to pupils in state schools.
In fact, Article 3 of the Constitution imposes additional responsibility on the state to ensure all impediments to the absolute equality of all citizens are removed and all are treated equally in the political, economic and social organisations of the country.
ART 3. All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political,economic and social organisation of the country.
Jamaica provides equal opportunity for all religious communities to provide religious, or “any education”, to all its citizens. Article 17 of its Constitution grants such a right.
Article 17 (3) Every religious body or denomination shall have the right to provide religious instruction for persons of that body or denomination in the course of any education provided by that body or denomination whether or not that body or denomination is in receipt of any government subsidy, grant or other form of financial assistance designed to meet, in whole or in part, the cost of such course of education.
The Constitution of Kazakhstan makes it clear that the state shall impose “uniform” standards that must be complied by “any” educational institution. In other words, all types of private educational institutions are subjected to the same rules and standards.
Article 303. The citizens shall have the right to pay and receive an education in private educational establishments on the basis and terms established by law. 4. The state shall set uniform compulsory standards in education. The activity of any educational establishment must comply with these standards.
Malaysia is an excellent case study for the current exercise. The state religion of Malaysia is Islam. It also has minorities based on ethnicity in addition to religious diversity. Yet, the Constitution of Malaysia provides a remarkable example of the state guaranteeing equality in establishing educational institutions. Article 12 of the Constitution says:
12. Rights in respect of education: Without prejudice to thegenerality of Article 8, there shall be no discrimination against any citizenon the grounds only of religion, race, descent or place of birth -a) in the administration of any educationalinstitution maintained by a public authority, and, in particular, the admissionof pupils or students or the payment of fees; or b) in providing out of the funds of a publicauthority financial aid for the maintenance or education of pupils or studentsin any educational institution(whether or not maintained by a public authorityand whether within or outside the Federation. 2. Every religious group has theright to establish and maintain institutions for the education of children inits own religion, and there shall be no discrimination on the ground only ofreligion in any law relating to such institutions or in the administration ofany such law; but it shall be lawful for the Federation or a State to establishor maintain or assist in establishing or maintaining Islamic institutions orprovide or assist in providing instruction in the religion of Islam and incursuch expenditure as may be necessary for the purpose.
In spite of being an Islamic state, Malaysia grants equal rights to all religious groups in this matter.
The Constitution of Mexico too provides equal rights to all its citizens in setting up educational institutions and the only requirement is for the private entities to comply with the laws of the land.
Article 3 (VI) Private entities may provide all kinds of education. In accordance with the law, the State shall have powers to grant and cancel of official accreditation to studies done at private institutions. In the case of pre-school, elementary and secondary education, as well as teacher training college, private schools must:(a) Provide education in accordance with the same purposes and criteria established in paragraph second and section II,as well as to comply with the syllabus mentioned in section III; and (b) Obtain a previous and explicit authorization from the authorities, under the terms provided by the Law
The Constitution of Netherlands provides non-discriminatory rights to all its citizens in this matter.
ARTICLE 23 (4). The authorities shall ensure that primary education is provided in a sufficient number of public-authority schools in every municipality. Deviations from this provision may be permitted under rules to be established by Act of Parliament on condition that there is opportunity to receive the said form of education, whether in a public-authority school or otherwise. 5. The standards required of schools financed either in part or in full from public funds shall be regulated by Act of Parliament, with due regard, in the case of private schools, to the freedom to provide education according to religious or other belief. 6. The requirements for primary education shall be such that the standards both of private schools fully financed from public funds and of public-authority schools are fully guaranteed. The relevant provisions shall respect in particular the freedom of private schools to choose their teaching aids and to appoint teachers as they see fit.
The Constitution of Poland is an interesting example. In light of the history of the previous century, the protection of ethnic minorities is a big concern for the state. Its Constitution, therefore, has an explicit provision to guarantee protection and rights, including educational, to the minorities.
Article 35 (2) National and ethnic minorities shall have the right to establish educational and cultural institutions, institutions designed to protect religious identity, as well as to participate in the resolution of matters connected with their cultural identity.
However, what is interesting is that the same rights are guaranteed to the non-minorities under a separate article, and equal rights have been explicitly declared.
ARTICLE 703. Parents shall have the right to choose schools other than public for their children. Citizens and institutions shall have the right to establish primary and secondary schools and institutions of higher education and educational development institutions. The conditions for establishing and operating non-public schools, the participation of public authorities in their financing, as well as the principles of educational supervision of such schools and educational development institutions, shall be specified by statute.
In the Romanian Constitution, the issue of rights and their relative position between minorities and non-minorities has been addressed at a higher level that applies to all forms of culture, including education. It provides an overarching framework within which it becomes impossible to discriminate against or favour any particular segment of society. Article 6 of the Romanian Constitution reflects this essence.
Article 6. The Right To Identity. The state recognizes and guarantees for members of the national minorities the right to preserve,develop, and express their ethnic, cultural, linguistic, and religious identity. 2. The protective measures taken by the state to preserve, develop,and express the identity of the members of the national minorities shall be in accordance with the principles of equality and non-discrimination in relation to the other Romanian citizens.
The Constitution, while recognising the need of the minorities to preserve their culture and, therefore, the need to give them explicit rights also makes it very clear that the same shall not turn into reverse discrimination against other citizens.
Slovakia, too, has found it necessary to address the concerns of its ethnic and other minorities through the Constitution. Like some of the other eastern European countries, Slovakia too grants rights to such minorities. However, it makes it explicitly clear that any such right or protection shall not jeopardise the rights of any of the non-minorities.
ARTICLE 341. The comprehensive development of citizens belonging to national minorities or ethnic groups in the Slovak Republic is guaranteed,particularly the right to develop their own culture together with other members of the minority or ethnic group, the right to disseminate and receive information in their mother tongue, the right to associate in national minority associations, and the right to establish and maintain educational and cultural institutions. Details shall be laid down by law. 2. In addition to the right to master the state language, citizens belonging to national minorities, or ethnic groups, also have, under conditions defined by law, a guaranteed: a) right to education in their own language, b) right to use their language in official communications, c) right to participate in the decisions on affairs concerning national minorities and ethnic groups. 3. The exercise of the rights of citizens belonging to national minorities and ethnic groups that are guaranteed in this Constitution may not lead to jeopardising of the sovereignty and territorial integrity of the Slovak Republic, and to discrimination against its other inhabitants.
Therefore, in Slovakia, no law can manifest in a way where a section of citizens are discriminated against in the process of granting rights to the minorities. A good balance and practical equality has thus been achieved.
We have looked at the constitutions of 20 different countries in this article. All of them talk explicitly about granting rights to their citizens to establish and administer educational institutions. However, not a single one of them grant it ‘solely’ to one section or group of citizens. The rights, inevitably in every case, are equally applicable to ‘all’ citizens.
India, on the other hand, offers such rights to only religious and linguistic minorities. On the other hand, through its myriad education laws and regulations, the state ensures that the educational institutions run by the non-minorities remain under the tough control of the state.
The current reading of Article 30(1) of the Indian Constitution is as follows:
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
The need of the hour is to change the above worded article into one that grants equal rights to all communities, in the following manner:
30. Right of citizens to establish and administer educational institutions (1) All citizens shall have the right to establish and administer educational institutions of their choice.
Only when such an amendment to the Constitution is brought to effect can we truly claim to be a non-discriminatory state that is governed by the rule-of-law.
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