ACADEMIC FREEDOM AND FREEDOM OF EXPRESSION IN EDUCATIONAL INSTITUTIONS

by | Feb 6, 2024

For her upcoming report to the Human Rights Council to be presented in June 2024, the United Nations Special Rapporteur on the right to education, Ms. Farida Shaheed, will consider academic freedom and freedom of expression in educational institutions. OxHRH has contributed to this report by surveying three jurisdictions: India, South Africa and Australia.

This report is authored by Prof. Sandra Fredman (Professor Laws of the British Commonwealth and USA), Dr. Aradhana Cherupara Vadekkethil (Lord and Lady McNair Early Career Fellow in Law), Almas Shaikh (DPhil Candidate), Chelsea Wallis (DPhil Candidate), Justin Winchester (DPhil Candidate) at the University of Oxford.

Executive Summary

In the three jurisdictions surveyed (Australia, India, and South Africa), only South Africa has an express constitutional provision on academic freedom. This can be limited under the constitutional limitation clause, and exclusions for propaganda for war, incitement to violence and hate speech. The Indian constitution includes a general right to freedom of speech and expression, and a nonjusticiable ‘fundamental duty’ to develop, inter alia, the ‘spirit of enquiry.’ Although there have been some progressive judicial dicta on academic freedom, the National Education Policy 2020 does not refer to academic freedom. Australia has no national human rights statute, but two states and one territory have human rights acts protecting freedom of opinion, expression, and the right to receive and impart information. Universities are, however, required to maintain an environment upholding freedom of intellectual inquiry.

All three jurisdictions face challenges to academic freedom. In Australia, job insecurity increases pressure to self-censor. In South Africa, decolonising education and academic freedom can conflict. In India, challenges are most acute, including restrictions on institutional autonomy; political appointments; harassment of dissenters, and fear, repression, and self-censorship. Challenges in all these countries are exacerbated by a lack of a clear understanding of academic freedom and effective protection.

In all three jurisdictions, police presence on university campuses is lawful. Only Australia has a Model Code on Freedom of Speech and Academic Freedom, adopted by all
Australian universities. Nevertheless, many universities remain poorly aligned with the substantive protection of academic freedom. A handful of South African universities have academic freedom committees or codes of conduct.

Experience of surveillance varies widely. While in Australia and South Africa, there are strict regulatory guidelines and no noticeable threat to academic freedom; in India, there are many instances, most severely in Kashmir, and India scores low on campus integrity. This is exacerbated by legal provisions allowing surveillance and criminalization of texts alleged to insult religion or encourage separatist feelings.

Read the full submission here: Contribution on Academic Freedom_Oxford Human Rights Hub

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