In this blog post, Saurabh Kumar, from KIIT University, Bhubaneswar discusses the concept of minority rights and how the Indian Constitution protects the rights of these minorities. 

Introduction

In a multicultural society, for the preservation of distinct cultural traits and patterns, exclusive rights may be recognised as fundamental for religious denominations and cultural and linguistic minorities. Such special rights may include educational rights. Religious, cultural or linguistic organisations provide a forum to co-ordinate the demands of individual members. These collective rights can be better exercised only by the use of freedom of speech, expression, assembly, association, and religion and right to property. Protection against effacement of identity is made possible more by an active assertion of their distinct characteristics through the use of freedom rather than by mere artificial insulation by the state. Insofar as members of these minority communities are concerned, the guarantee of conservation of cultural and educational rights extends several advantages to them including means of livelihood.

Amidst fundamental rights, cultural rights occupy a unique place as they enable both cultural pluralism and compositeness of culture. The social and political fabric of a nation, instead of reflecting a sum total of collective intolerances of various culture-specific communities, would be tending to unite their insight for co-existence and tolerance in the backdrop of a guarantee of cultural and educational rights.[1] The UN Declaration of Minority Rights 1993 believes that constant promotion and realization of the rights of ethnic, religious and linguistic minorities as an integral part of the development of society as a whole, and within a democratic framework based on the rule of law, would contribute to the strengthening of friendship and cooperation among peoples and states.[2]

The Indian cultural tradition of protecting the insular minorities against exclusion ‘from the shores of a vast sea of humanity’[3], ultimately culminated in the constitutional guarantee of collective right. The principled approach so emerged is one of equal opportunity for conservation of culture and protection of linguistic and religious minorities against coerced assimilation in the educational front. The cherished aim was to hold India’s many peoples, languages, culture and religion into an atmosphere of tolerance and intellectual growth.

 

Who are ‘Minorities’

Although the term ‘minorities’ is not defined in the Constitution, from the Constituent Assembly Debates, it can be gathered that the Constitution Makers used it to connote numerically vulnerable group in the power equation of State population. In the background of territoriality of dominant linguistic groups with an interspersing of other numerically less linguistic groups within the State territory, the concept of numerical test with reference to religion in State like Punjab, Jammu and Kashmir and Nagaland makes Sikhism, Islam and Christianity, the majority religions in those States respectively.[4] It is submitted, as the state action in the sphere of lower and general education flows from the member of a federal organisation, the numerical test is objective and rationally distinguishes between the dominant and the vulnerable groups. It also conforms to the UN definition of minority, which looks to the minority as a distinctly vulnerable group and to its rights as collective rights. Ever since In re, Kerala Education Bill[5], the Supreme Court has been applying the numerical test, which poses the question whether the population of a linguistic or religious community claiming the minority status is below 50 per cent of the State population. Accordingly, in D.A.V. College, Bhatinda,[6]Hindu religion was regarded as a minority religion in Punjab. The expression ‘All minorities’ suggest the implied existence of equality amidst minorities about their entitlement under Article 30(1). Hence, a government rule which provides for separation between girls school and boys school and compels the girls of one minority community to study in a school of another community in the same vicinage instead of studying in its own MEI is unconstitutional vis-à-vis minorities, as held in Mark Netto.[7]

In TMA Pai Foundation,[8] the Eleven Judges Bench of the Supreme Court confirmed the position that the minority status of a community is to be decided with reference to the State population. RUMA PAL, J. expressed the sole dissent on this point on the ground that since education is presently a legislative subject coming under Concurrent List, the matter must be determined in relation to the source and territorial application of the particular legislation against which protection is to be claimed.[9]

For the Constitution Makers, initially, the sources of inspiration for a guarantee of the minority language educational right were the Nehru Committee Report and a resolution of Government of India 1948.[10] The relevant part of the Nehru Committee Report stated, “Adequate provision shall be made by the state for imparting public instruction in primary schools to the children of members of minorities through the medium of their own language and in such script, as is in vogue among them”[11]. The Resolution of Government of India stated, “The principle that a child should be instructed in the early stages of its education through the medium of the mother tongue has been accepted by the Government”[12].

 

Right to Freedom of Religion

Article 25 reads – Freedom of conscience and free profession, practice and propagation of religion-

• Subject to public order, morality, and health and to other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
• Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law –
  • regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
  • providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

This Article provides every person the right to the freedom of conscience and the right freely to profess, practice and propagate religion. Freedom of conscience connotes a person’s right to entertain beliefs and doctrines concerning matters, which are regarded by him to be conducive to his spiritual well-being.[13] The right is not only to entertain such religious beliefs as may be approved by his judgment or conscience but also to exhibit his sentiments in overt acts as are enjoined by his religion. To profess a religion means the right to declare freely and openly one’s faith.[14]

A person may propagate freely his religious views for the edification of others. It is immaterial whether the propagation is made by a person in his individual capacity or on behalf of a church or institution.[15] The right to religion includes the right to seek a declaration that the Church is episcopal.[16]

 

Freedom to manage religious affairs

Article 26 reads – Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-

1. to establish and maintain institutions for religious and charitable purposes;
2. to manage its own affairs in matters of religion;
3. to own and acquire movable and immovable property; and
4. to administer such property in accordance with law.

Article 26(a) as the basis for an educational right, the Supreme Court in Brahmachari Siddeshwar[17], ruled that religious denominations could establish institutions for charitable purpose subject to limitations prescribed under Article 26(1). But it did not decide whether it provided protection to educational institutions established and maintained by religious denomination for general education. The TMA Pai Foundation judgment made a significant contribution in this sphere by holding, “The right to establish and maintain educational institutions may also be sourced to Article 26(a), which grants, in positive terms, the right to every religious denomination of any section thereof to establish and maintain institutions for religious and charitable purposes, subject to public order, morality, and health. Education is recognized as the head of charity. Therefore, religious denominations or sections thereof, which do not fall within the special categories carved out in Article 29(1) and 30(1), have the right to establish and maintain religious and educational institutions”.[18] This enables the religious denominations of majority religious community also to set up any educational institution.

 

Freedom as to payment of taxes for promotion of any particular religion

Article 27 reads – No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

In Suresh Chandra Chiman Lal Shah v. Union of India[19], the court held that commemoration of distinguished persons, who had contributed to India’s cultural heritage, was done with a view to focusing attention on their ideals, to kindle in our younger generation an awareness of our heritage and to promote international understanding, and that the celebrations involved no religious rites or ceremonies hence no infringement of Article 27.

Also in the case of K. Reghunath v.State[20], expenditure from the State fund for the reconstruction, among others, of the religious and educational places damaged during communal riots was upheld notwithstanding the fact that the damaged places belonged to any one religion. Acquisition of land for construction of a temple has also been upheld.[21]

 

Cultural and Educational Rights

Article 29 reads – Protection of interests of minorities-

• 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.
• No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 30 reads – Right of minorities to establish and administer educational institutions-

• All minorities, whether based on religion or language, shall have the right to set up and administer educational institutions of their choice.
• 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.[22]
• The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

The right of any section of citizens, under Article 29(1) having distinct language, script or culture of their own to conserve the same entitles them to establish and maintain an educational institution for this purpose. The right of religious and linguistic minorities to establish and administer educational institutions of their choice under Article 30(1) also provides a basis and opportunity for education. Although TMA Pai Foundation has expanded the scope for establishing educational institutions especially by liberal interpretation of Articles 19(1)(g) and 26(a), groups of people neither belonging to religious denomination nor to an occupation of teachers nor even coming under Articles 29 and 30 seem to be left out.

 

Facilities for instruction in mother-tongue at primary stage[23]

Article 350A reads – It shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups; and the President may issue such directions to any State as he considers necessary or proper for securing the provision of such facilities.

The learning and communicative processes involved in the conservation of culture, language, and script are animated by the constitutional policy of mother tongue instruction contemplated in Article 350A. According to Article 350A, “It shall be endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups, and the President may issue such direction to any State as he considers necessary or proper for securing the provision of such facilities.”

Although Article 350A is a special directive to the State, its function of strengthening the rights under Article 29(1) suggests receiving instruction in the mother-tongue at the primary stage of education. As observed by MOHAN, J. in English Medium Students Parents Association v. State of Karnataka, [24]“ where the tender minds of children are subject to an alien medium the learning process becomes unnatural. It inflicts a cruel strain on the children which makes the entire transaction mechanical. The basic knowledge can be gathered through the mother tongue. The introduction of a foreign language tends to threaten to atrophy the development of mother tongue.”

 

Special Officer for linguistic minorities[25]

Article 350B reads –

• There shall be a Special Officer for linguistic minorities to be appointed by the President.
• It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under the Constitution and report to the President upon these issues at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned.

 

Right to education

It is universally accepted that education empowers the people for the full development of human personality, strengthens the respect of human rights, and helps to overcome exploitations and the traditional inequalities of caste, class, and gender. Learning liberates from ignorance, superstition, and prejudice that blind the vision of truth.[26] According to Dr S. Radhakrishnan, the process of education is the slow conquering of the darkness of faults in our inward being. “To lead us from darkness to light, to be free us from every kind of domination except that of reason, is the aim of education”.[27] It is a preparation for living in a better way in future with an ability to participate successfully in the modern economy and society.[28] As viewed by B.N. KIRPAL, J. it is the single most powerful tool for the upliftment and progress of the society.[29] Education is empowerment for socio-economic mobility, an instrument for reducing socio-economic inequalities, and an equipment to trigger growth and development. The linkage of the right to educational to the right to dignified life, equality, freedom and cultural and minority right has made it highly intricate and the extent of regulations relating to it from different perspectives, quite complex.

The right to education has a relation of mutual assistance with other positive rights of life and with various liberties. As viewed by B.N. KIRPAL, CJI. In TMA Pai Foundation Case, “India is a land of a diversity of different castes, communities, languages, religions and culture. Although these people enjoy complete political freedom, a vast part of the multitude is illiterate and lives below the poverty line. The single most powerful tool for the upliftment and progress of such diverse communities is education.”[30]

 

Conservation of Distinct Language and Culture

Conservation of language and culture is a complex and continuous process of manifestation and transmission of cultural traits and nurturing of creative abilities. As stated by K.T. Shah in the Constituent Assembly, “whether we think of the arts, the learning, the sciences, the religion or philosophy, culture includes them all, and much else besides. As such, it is progressive and should be regarded as being capable of constant growth as any living organism”.[31] Culture, as a sense of ultimate value possessed by a particular society, and expressed in its collective institutions, endeavours and dispositions, designates a way of life, and deeply influences human behaviour.[32] Eminent thinkers and writers have regarded attainment of perfection in, or through culture as a desirable social practice.[33] Irrespective of the controversial questions, whether it is the state or the concerned cultural community that should monitor the process and direction of refinement, or what shall be the parameters for such reforms, the immense help that the expressional and other freedoms render towards enlightened cultural reforms or at least avoidance of cultural fault lines is significant.[34] Unlike conservation of material resources, which relies on strategies of non-user and lesser user, conservation of language and religion is done by more and more application. Since the life of thought is very much inherent in the life of language symbols of that thought, language serves as a cultural grid to receive and respond to human experiences.[35] Its essence is communication. Therefore, the assistance that Article 29(1) right gathers from freedom of speech, expression, assembly, association, religion and the right to establish and administer educational institutions of their choice is greatly wide and significant. It is because of such relations that in countries like America where cultural and language rights are not constitutionally enumerated, invoking of due process clause or of First Amendment is resorted to.[36] Sometimes equal protection clause is also rewardfully employed.[37]

 

Conclusion

Though minorities are those whose are numerically less based on their language and culture, it is evident from the above arguments that the Indian Constitution provides certain rights to the minorities residing in several parts of Indian territories. The Constitution of India has not defined the term ‘minority’, but had provided them with all the opportunities needed for their survival in the form of fundamental rights. Since India is a secular country, it is important to maintain the integrity of nation by maintaining a status of equality as because of its rich cultural values and tolerance. Besides this, there are also certain fundamental duties under Article 51A given in Part IV-A of the Constitution of India for every citizen.

The main focus of the law is to create confidence in the mind of such minorities that they are protected by the law of the Constitution and also they are treated equally on par with the majority so that there would be no any kind of discrimination among the citizens.

 

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References:

[1] About aspects of cultural pluralism, see Amartya Sen, Secularism and its Discontents, in Kowshik Basu and Sanjay Subrahmanyam (ed.), Unravelling the Nation (Penguin Books 1996), at p. 43; Anisuzzman, Cultural Pluralism (Calcutta: The Asiatic Society 1993), p. 7; S. Abid Hussain, The National Cultural of India, 3^rd Ed, 6^th Rept. (New Delhi: National Book Trust 1996), at p. 11.

[2]6^th para of Preamble, Resolution No. 47, General Assembly, dated 3^rd Feb 1993. Also see, Janusz Symonides, Cultural Rights’ in Janusz Symonides (ed.), Human Right: Concept and Standards (Aldershot: Ashgate Darthmouth, UNESCO Publishing 2000), p. 175 at 178.

[3]Poem by Rabindranath Tagore as referred by Das, CJ in In re, Kerala Education Bill, AIR 1958 SC 956; 1959 SCR 995.

[4]See DAV College v. the State of Punjab, AIR 1971 SC 1731; (1971) 2 SCC 261. Also see a note issued by Minority Commission, New Delhi, on 7 June 1998 to this effect.

[5]AIR 1958 SC 956; 1959 SCR 995.

[6]AIR 1971 SC 1731.

[7]Mark Netto v. State of Kerala, AIR 1979 SC 83; (1979) 1 SCC 23.

[8]TMA Pai Foundation v. State of Kerala, AIR 2003 SC 355; 2002 (8) SCALE 1.

[9]Ibid, at 91,92 (paras 252-259).

[10]Vol. VII, C.A.D., pp. 900-901.

[11]Ibid.

[12]Ibid.

[13]Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388: 1954 SCR 1055.

[14]Punjabrao v. D.P. Meshram, AIR 1965 SC 1179: (1965) 1 SCR 849.

[15]Supra 15.

[16]P.M.A. Metropolitan v. Moran Mar Marhaoma, 1995 supp (4) SCC 286: AIR 1995 SC 2001.

[17]Brahmachari Siddeshwar v. State of West Bengal, AIR 1994 SC 13: (1993) 4 SCC 286.

[18]2002 (8) SCALE 1 p. 17 (para 26).

[19]AIR 1975 Del 168. See also, Bira Kishore Mohanty v. State of Orissa, AIR 1975 Ori 8.

[20]AIR 1974 Ker 48.

[21]Papanna v. State of Karnataka, AIR 1983 Kant 94.

[22]Ins. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 4 (w.e.f. 20-6-1979).

[23]Ins. by the Constitution (Seventh Amendment) Act, 1956, s. 21.

[24] 1993 (4) SCALE 627 at 633.

[25]Ins. by the Constitution (Seventh Amendment) Act, 1956, s. 21.

[26]Citing from Sanskrit text, per MOHAN, J. in J.P. Unnikrishnan v. State of AP AIR 1993 SC 2178.

[27]Report of the University Education Commission 1948 cited in TMA Pai Foundation v. State of Karnataka (2002) 4 LR 1; 2002(8) SCALE 1; AIR 2003 SC 355.

[28]Brown v. Board of Education, 98 L Ed US 347 (1954); 98 L Ed 873; 347 US 483 (1954).

[29]TMA Pai Foundation v. State of Karnataka, (2002) 4 LR 1; 2002(8) SCALE 1 at 2.

[30] 2002 (8) SCALE 12 (para 1).

[31] Vol. VII, C.A.D., p. 896.

[32] Abid Hussain, The National Culture of India, 3^rd Ed, 6^th Rept. (New Delhi: National Book Trust 1996), p. 3; Rasheeduddin Khan, The Problematique: The Heritage of Composite Culture as an Input in the Process of Building a New National Identity in Tasheeduddin Khan (ed), Composite Culture of India and National Integration (New Delhi: IIAS and Allied Publishers 1987), p. 24. see, Janusz Symonides, Cultural Rights’ in Janusz Symonides (ed.), Human Right: Concept and Standards (Aldershot: Ashgate Darthmouth, UNESCO Publishing 2000), pp. 179-80.

[33] Matthew Arnold, Culture, and Anarchy, (ed), J. Dover Wilson (Cambridge: University Press 1971),p. 48; V.K. Gokak, India and World Culture (New Delhi: Sahitya Academy 1994), p. 9; M.K. Gandhi, Harijan 5-12-1936; Hindu Dharma, p. 30.

[34] Veena Das, Cultural Rights and the Definition of Community in Oliver Mendesohn and Upendra Baxi (ed.), The Rights of Subordinated Peoples (Delhi: Oxford University Press 1996), 117 at 122; Robert Unger, Knowledge and Politics (New York: Free Press 1985), pp. 339-40.

[35]Reek Dickerson, The Fundamentals of Legal Drafting, (Boston: Little, Brown & o. 1965), pp. 10-11.

[36]Meyer v. Nebraska, 262 US 390; 67 L Ed 1042 (1923); Pierce v. Society of Sisters, 268 US 510; 69 L Ed 1070 (1925).

[37]Lau v. Nichols, 414 US 563; 39 L Ed 2d 1 (1974).