This article is written by Diwakar Kumar, an intern under Legal Vidhiya.
INTRODUCTION:
The ability of people to express, preserve, and develop their cultural identity and traditions without hindrance or prejudice is a crucial component of the freedom of cultural rights.[1] It acknowledges the intrinsic worth of many cultural manifestations as well as the necessity of safeguarding and advancing cultural variety in order to promote intercultural communication, mutual understanding, and peaceful coexistence.[2]The Universal Declaration of Human Rights, which was ratified by the UN General Assembly in 1948, and other international human rights documents recognize cultural rights.[3] This statement affirms that everyone has the right to participate in cultural life, benefit from scientific advancement, and have their moral and material interests protected as a result of artistic productions.[4] To guarantee that all people and groups can freely express, preserve, and develop their cultural history and identity, cultural rights must be recognized and protected.
BACKGROUND:
Human rights must include cultural rights, which cover a wide range of habits, practices, and beliefs that reflect the cultural history of many communities.[5] Language, religion, art, music, literature, gastronomy, and other cultural manifestations are examples of cultural expressions. Cultural rights are closely linked to a person’s identity and sense of community, and they have a significant impact on how societies’ social, economic, and political structures are constructed.[6]
Cultural freedom has become increasingly important in the context of globalisation and the spread of Western culture. In the face of homogenization and assimilation, many communities around the world are struggling to maintain their cultural identity and heritage.[7] Western culture’s dominance and homogenization of cultural expressions have resulted in the erosion of cultural diversity and marginalisation of minority communities.[8] Furthermore, armed conflicts, political upheavals, and the destruction of cultural heritage have resulted in the loss of cultural identity and knowledge.[9] In this context, cultural rights must be recognized and protected to preserve and promote the richness and diversity of world cultures.
ISSUE OF TOPIC:
The conflict between cultural variety and globalisation is another matter of cultural rights. The spread of Western culture and values as a result of globalisation frequently leads to the domination of a small number of cultures over others and the extinction of traditional cultural expressions.[10] Concerns about cultural imperialism, the disappearance of cultural diversity, and the marginalisation of minority cultures have been sparked by this. In the modern world, it is critical to strike a balance between the advantages of globalisation and the need to safeguard cultural variety and guarantee the freedom of cultural expression for all cultures.
LAW AND JURISPRUDENCE:
Some international human rights instruments include provisions for the recognition and defence of cultural rights. For instance, the International Covenant on Civil and Political Rights (ICCPRArticle )’s 27 affirms that members of minority communities have the freedom to worship and profess their own faith as well as speak their own language.[11] The importance of cultural rights and the need to preserve and advance cultural diversity as a shared human legacy are both emphasized in the UNESCO Universal Declaration on Cultural Diversity (UDCD).[12]
Furthermore, the recognition and protection of cultural rights are greatly aided by regional and national regulations. Numerous nations have passed laws and policies protecting the indigenous, ethnic, and minority communities’ cultural heritage, languages, and traditions.[13] Provisions for the protection and advancement of traditional knowledge, cultural traditions, and linguistic rights may be included in these laws. The interpretation and application of cultural rights in certain circumstances have also been influenced by judicial rulings and jurisprudence, which offer guidance on how to balance conflicting rights and interests.
LEGAL PROVISIONS & CASE LAWS:
1. The Indian Constitution’s Articles 29 and 30 protect the cultural rights of the country’s linguistic and religious minorities. While Article 30 grants the right to create and run educational institutions of their choosing, Article 29 ensures the right to preserve the language, script, or culture of a minority group.
Relevant case law: State of Karnataka v. T.M.A. Pai Foundation, 2002, 8 SCC 481.[14] This significant judgment emphasised the autonomy of minority institutions in questions of admission, staff appointment, and fee determination, and reaffirmed the scope and extent of the ability to create and govern educational institutions under Article 30 of the Indian Constitution.
2. The Indian Constitution’s Articles 25 and 26 guarantee religious freedom, including the freedom to practice, propagate, and profess a religion, as well as the freedom of religious denominations or groups to conduct their own religious affairs.
Relevant case law: In S.P. Mittal v. Union of India (1983) 1 SCC 51.[15] The Supreme Court of India determined that reasonable restrictions may be imposed on cultural and religious rights protected by Articles 25 and 26 in the interest of public order, morality, and health.
3. Protection of Civil Rights Act, 1955: This law prohibits discrimination against Scheduled Castes and Scheduled Tribes and establishes fines for caste, religious, or racial-based offences.
Relevant case law: Appa Balu Ingale v. State of Karnataka (1993) 3 SCC 311.[16] The Supreme Court ruled in this case that the Protection of Civil Rights Act of 1955 made it illegal to discriminate against members of Scheduled Castes or Scheduled Tribes, including by denying them access to cultural rights.
4. The Right to Education Act, 2009: This law forbids discrimination based on caste, religion, or culture and gives children in India the right to free and compulsory education.
Relevant case law: The Supreme Court clarified in Pramati Educational and Cultural Trust v. Union of India (2014) 6 SCC 1.[17] The responsibilities of educational institutions under the Right to Education Act, 2009, including the outlawing of discrimination based on culture or religion.
OBSERVATION:
Despite obstacles and violations still occurring, cultural rights are acknowledged and protected by international and national legislation. Minority communities frequently experience prejudice, marginalisation, and challenges to their traditions and cultural heritage.[18] Cultural manifestations that defy accepted norms or are thought to be problematic may be subject to censure, limitations, or even extinction. The dynamics of cultural variety are being shaped by globalisation and cultural imperialism, which presents difficulties for the protection and advancement of cultural rights. It also calls for careful thought and balancing to resolve the conflict between cultural diversity and fundamental human rights including gender equality, the absence of discrimination, and the right to health and education.
SUGGESTIONS & SOLUTIONS:
Many recommendations and solutions can be taken into consideration in order to successfully handle the issues and enhance the freedom of cultural rights:
1. Encourage intercultural communication and understanding: Promoting communication, respect for one another, and understanding between various cultures can help lessen disputes and misunderstandings. Programs for cultural exchange, education, and awareness-raising can promote intercultural understanding and appreciation of various cultural expressions.
2. Respect for and protection of cultural diversity: Ensure that marginalised and minority communities have the freedom to express, maintain, and develop their unique cultural identities and history. This may entail actions like language protection, safeguarding of cultural heritage, and encouragement of customary ways of life.
3. Strike a balance between cultural rights and other human rights.
4. Enhance legal frameworks and enforcement mechanisms: Make ensuring that laws and policies at the national, regional, and international levels properly recognize and defend cultural rights and that there are systems in place for their enforcement and monitoring. This could entail making legal systems stronger, keeping an eye on compliance, and giving victims of violations of cultural rights access to the justice system.
5. Involve local communities in decision-making: Respect communities’ agency and involvement in decisions that impact their cultural rights. Communities’ rights can be safeguarded and honoured if they are consulted, involved, and consented to in decisions affecting their cultural heritage and practices.
6. Promote cultural interchange and diversity in media and the arts. Using this, you can combat cultural preconceptions.
MAXIMS IN LAW:
Two maxims of law that are relevant to the issue of freedom of cultural rights are “qui tacet consentire videtur” (silence gives consent) and “ubi jus, ibi remedium” (where there is a right, there is a remedy). These maxims emphasize the importance of speaking out against cultural rights violations and the need for effective legal remedies to protect and promote these rights.[19]
CONCLUSION:
The freedom of cultural rights is a complicated and varied problem that needs to be carefully taken into account. Some of these considerations include the cultural context, respect for human dignity, and universal human rights standards. By balancing cultural rights with other human rights, it is crucial to acknowledge and respect cultural diversity, and involve communities in decision-making processes. To effectively promote and safeguard the freedom of the arts and media in the modern world, it is crucial to strengthen legal frameworks, encourage variety in the media and arts, and uphold the universality and indivisible nature of human rights. We may try to build a society where cultural rights are honoured and human rights are upheld for all persons and communities, regardless of their cultural background, by pursuing a nuanced and balanced approach.
[1] United Nations General Assembly. (1948).Universal Declaration of Human Rights. Retrieved from https://www.un.org/en/universal-declaration-human-rights/
[2] United Nations General Assembly. (1966). International Covenant on Economic, Social and Cultural Rights. Retrieved from https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx
[3] United Nations General Assembly. (1966). International Covenant on Civil and Political Rights. Retrieved from https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
[4] United Nations General Assembly. (2005). Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Retrieved from https://en.unesco.org/creativity/convention
[5] United Nations General Assembly. (1989). Convention on the Rights of the Child. Retrieved from https://www.ohchr.org/en/professionalinterest/pages/crc.aspx
[6] United Nations General Assembly. (1965). International Convention on the Elimination of All Forms of Racial Discrimination. Retrieved from https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx
[7] United Nations General Assembly. (1979). Convention on the Elimination of All Forms of Discrimination Against Women. Retrieved from https://www.un.org/womenwatch/daw/cedaw/text/econvention.htm
[8] United Nations General Assembly. (2007). United Nations Declaration on the Rights of Indigenous Peoples. Retrieved from https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html
[9] United Nations. (n.d.). Universal Declaration on Cultural Diversity. Retrieved from https://en.unesco.org/creativity/sites/creativity/files/official_declaration_en.pdf
[10] UNESCO. (2001). Universal Declaration on Cultural Diversity. Retrieved from https://unesdoc.unesco.org/ark:/48223/pf0000122506
[11] United Nations. (n.d.). International Covenant on Civil and Political Rights. Retrieved from https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
[12] UNESCO. (2001). Universal Declaration on Cultural Diversity. Retrieved from https://unesdoc.unesco.org/ark:/48223/pf0000122506
[13] United Nations General Assembly. (2000). Resolution 55/2, United Nations Millennium Declaration. Retrieved from https://www.un.org/millennium/declaration/ares552e.pdf
[14] T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481(India)
[15] S.P. Mittal v. Union of India, (1983) 1 SCC 51 (India).
[16] State of Karnataka v. Appa Balu Ingale, (1993) 3 SCC 311 (India).
[17] Pramati Educational and Cultural Trust v. Union of India, (2014) 6 SCC 1 (India).
[18] United Nations Educational, Scientific and Cultural Organization. (2013). UNESCO Universal Declaration on Cultural Diversity: An Emerging Conceptual Foundation. Retrieved from https://unesdoc.unesco.org/ark:/48223/pf0000224509
[19] United Nations. (n.d.). Sustainable Development Goals. Retrieved from https://www.un.org/sustainabledevelopment/sustainable-development-goals/
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