In this blog post, Rishabh Pandey, a student of Guru Gobind Singh Indraprastha University, New Delhi and pursuing the Company Secretary Course by ICSI analyses and describes laws related to minority protection in India.

India has always embraced diversity, becoming a vast ocean of cultures, religions, ethnicities, beliefs and practices. With such diversity, it becomes necessary to give each community their due, without inciting any conflicts. This plethora of diversity in our democratic nation makes the minority communities at times vulnerable, calling for sturdy laws to protect their rights. Moreover, it becomes the duty of the state to ensure that human rights are available to all citizens, irrespective of caste, colour, or creed.[1] The Constitution of India strives to achieve a harmony between all the communities by ensuring “justice, social, economic or political” to all citizens and declaring itself to be a secular state.[2] While certain laws are applicable to all Indian citizens, there are personal laws that apply to certain communities only, preserving their customs and beliefs.  Minority rights protection in India has always been in limelight with political parties garnering votes of various communities through triggering their emotions upon their minority status.

The term “minority”, in general context, is used to refer to non-Hindu communities in India, though there are various other implications of this term.[3] Minorities can be classified according to their religion as well as language spoken, caste, tribal status and so forth.[4] But the minority communities as recognised by the government of India are – Muslims, Christians, Sikhs, Buddhists, Zoroastrians and Jains as under Section 2(c) of the National Commission for Minorities (NCM) Act, 1992.[5] But the term “minority” has neither been defined in the act nor the Constitution, and there is no widely accepted definition of the term globally. Population and religion have been the factors which have decided the scope of the minority status in India.[6]

Minority Rights Under The Indian Constitution

Under the Constitution of India, there are various provisions to safeguard the rights of minorities.[7] Preamble of the Constitution declares India to be a secular state.[8] Article 15 prohibits any sort of discrimination on the grounds of race, religion, caste, sex, descent, place of birth or residence.[9] Article 16 also prohibits any sort of discrimination when it comes to public employment, on the basis of religion, caste, language, race and so on.[10] This guarantees equal employment opportunities to all the Indian citizens in case of government offices.

The right to profess, practice and propagate any religion has been guaranteed to every person as a fundamental right under Article 25 of the Indian Constitution. This article allows the minority communities to follow their beliefs and practices without any hindrance as long as it does not hamper public order, morality and health of any person.[11] But the State can regulate the secular activities related to religious practices such as financial, political, economic activities.[12] Article 26 gives the freedom to the religious denominations or any such sections to manage their own religious affairs including managing institutions for religious and charitable purposes; owning, acquiring and administering movable and immovable property.[13] Again, this right is subject to public order, morality and health. Article 27 prohibits any compulsion on citizens to pay taxes, proceeds of which are to be appropriated in promotion of any particular religion.[14] Article 28 prohibits state funded educational institutions from providing religious instructions unless there is a requirement in the terms of the endowment or trust, by which the institution has been established, regarding imparting such religious instruction.[15] It also gives the person attending any educational institution the right to not participate in any religious instruction imparted by the institute.[16]

Article 29 of the Constitution provides the citizens with the right to conserve their language, script and culture; as well as guarantees that they would not be denied admission into any educational institution based on their race, language, religion or caste.[17] This right is provided to any section of the society, whether it has been recognised as a minority by the State or not.[18]

Article 30 is pivotal to the protection of minority rights in India. It provides the minorities the right to establish and administer educational institutions and the State has been prohibited from any discrimination in matters of granting aids to such institutions.[19] But these educational institutions can be regulated by the State. Although this article uses the term “minorities”, it has not been given any definition by the Indian Constitution. The judiciary has tried to dwell upon this matter in various cases.

In the judgment of In re Kerala Education Bill[20], the Supreme Court held that the meaning of the term minority can be construed to a “community which is less than 50% of the total population” in a defined area.[21] In D.A.V. College v. State of Punjab[22], it was held that Hindus even though they are majority in the nation, can be treated as a minority in State of Punjab for the purpose of conserving their language under Article 29 of the Constitution. Hence, religious or linguistic minority status should be construed in relation to the legislation which is sought to be impugned, in case of state legislature, according to the state population.[23] In A.S.E. Trust v. Director, Education, Delhi Administration, it was held that only those religions such as Muslims, Christians, Jains, Buddhists, Sikhs etc., which have kept their identities separated from the majority, i.e., Hindus, can only be considered to be “minority” based on religion.[24] Not every section of the Hindu religion can be considered to be minority.

TMA Pai foundation Case also upheld that the minority status of any community has to be decided based on state population.[25] It also established that Article 30(1) confers both linguistic and religious minorities the right to establish and administer educational institutions of their choice, albeit the right to administer is not absolute. The Judges also held that aided minority institutions need to admit a certain number of non-minority students so as to maintain a balance between minorities’ right under Article 30(1) and citizen’s rights against discrimination under Article 29(2).

The National Commission for Minority Educational Institution Act, 2004, amended in 2006 and 2010, was promulgated with an objective to safeguard the minorities’ educational rights as mentioned in Article 30(1).

Minority Protection Through Enforcement Of Personal Laws

Before the colonial rule in India, Personal laws were widely applied in India, including Hindu laws, Muslim Laws, and Jewish Laws.[26] The British also used the policy of non-interference with these personal laws.[27] In the contemporary India also, the matters related to marriage, divorce, succession and family affairs are mostly governed by the personal laws specific to the certain communities.

Marriage and divorce of the people from the Christian community are governed by Indian Christian Marriage Act, 1872 and Section 10 of the Indian Divorce Act, 1869, respectively.[28] Matrimonial aspects of the Parsis (Zoroastrians) are dealt by the Parsi Marriage and Divorce Act, 1936 which was amended in 1988 and 2001. The Hindu Marriage Act applies to the Buddhist, Sikhs and Jains and every other community which is not Muslim, Christian, Parsi or Jew.[29] In case of Muslim community, the marriages, divorces and adoption are governed as per the Mohammedan Law. The Jews follow their own customs which are uncodified and also follow the general laws applicable to all communities in general.

The Muslim community in India is governed by the Classic Muslim law as well as various legislations including –  the Shariat Application Act, the Dissolution of Muslim Marriages Act, the Massalman Wakf Validating Act, the Wakf Act, the Muslim Women (Protection of Rights on Divorce) Act.[30]

A major debate has been going on in the country regarding the enactment of Uniform Civil Code which will abolish all the personal laws and bring uniformity in the nation. The judgement of Mohammad Ahmed Khan v. Shah Bano Begum[31] came to be seen as major bone of contention between various Muslim Organizations and other sects advocating for women’s rights. In this case, it was held that Section 125 of the Criminal Procedure Code will supersede the Muslim Law. Due to fervent protests, the government passed the Muslim Women (Protection of Rights on Divorce) Bill, preventing Muslim Women from obtaining any relief under Section 125 of the Criminal Procedure Code.[32]

National Commission for Minorities

The National Commission for Minorities was established by the National Commission for Minorities Act, 1992 to protect minority rights in the country. The commission consists of one chairperson and six members representing the six minor communities – Muslims, Sikhs, Buddhists, Christians, Parsis and Jains. The Commission performs various functions including evaluating the development of minority communities under Union and States, ensuring the safeguard of minority rights as per the Constitutional laws and other legislations, conducting studies and researches on the matters related to minorities and suggesting measures to Government on these aspects.

The commission also acts grievance redress forum for persons belonging to minority communities. The commission calls for reports from concerned authorities after taking cognizance of complaints. These reports are studied and then recommendations are made by the commission. These recommendations are not legally binding upon the authorities but State takes them seriously and implements them. This Commission functions as a civil court in the matters concerning summoning of witnesses, discovery and production of documents; it receives evidence of affidavits, requisitions public records and copies, issues commission for examination of witnesses and documents, and any other prescribed matter in manner same as the civil courts.

Apart from these, the linguistic minorities can take up their grievances to the Commissioner for Linguistic Minorities that was established in 1957 to comply Article 350 B of the Constitution. The office of Commissioner submits annual report to the government.

Conclusion

India might be called a “melting pot” of cultures, but there are times when the pot gets too hot and starts brimming with the danger of communal riots. From Gujarat riots in 2002 to the Muzzafarnagar riots in 2013, India seems to have somewhat stagnated when it comes to communal tension. Though the law provides adequate measures for the protection of the minority rights, but the minority communities still face a lot of difficulty in climbing the ladders of success and development as there is no proper enforcement and implementation of these laws. Nevertheless, looking at the population of this great nation, it is not surprising that there are conflicts within the communities. But, what is surprising is the fact that India, being diverse at each and every step, has brought together so many different communities and the minorities have not lost their voice in conundrum.

The secularism of the nation needs to be protected and the rights of minority should not pale beside the rights of majority. Protection of minority can be achieved through proper enforcement of the laws related to minority communities, keeping the spirit of democracy alive as well as balancing it with Individual’s rights. The minorities, linguistic or religious, can resort to the various constitutional and legislative provisions available to them to protect their rights in an efficient manner.

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References:

[1] M.K. Sinha, Implementation of Basic Human Rights, Manak Publications(1999), P.100-182.

[2] Vijay Jaiswal, Rights of Minorities in Indian Constitution, ImportantIndia, available at http://www.importantindia.com/2182/rights-of-minorities-in-indian-constitution/

[3] Raju M.P., Minority Rights Myth or Reality, Media House(2002).

[4] M.N. Srinivas, Caste in Modern India and Other Essays, Asia Publishing House(1962).

[5] Profile of National Commission for Minorities, Government of India, available at http://ncm.nic.in/Profile_of_NCM.html.

[6] Annual Report(2015-2016), Ministry of Social Justice and Empowerment Government of India, available at http://socialjustice.nic.in/writereaddata/UploadFile/SOCIAL%20JUSTICE%20ENGLISH%2015_16.pdf

[7] Manoj Kumar Sinha, Minority Rights:A Case Study of India, International Journal on Minority and Group Rights, Vol. 12, Pg. 355-374.  

[8] Preamble, Constitution of India.

[9] Article 15, Constitution of India.

[10] Article 16, Constitution of India.

[11] Article 25, Constitution of India.

[12] Ibid.

[13] Article 26, Constitution of India.

[14] Article 27, Constitution of India.

[15] Article 28, Constitution of India.

[16] Ibid.

[17] Article 29, Constitution of India.

[18] Vijay Jaiswal, Rights of Minorities in Indian Constitution, ImportantIndia, available at http://www.importantindia.com/2182/rights-of-minorities-in-indian-constitution/

[19] Article 30, Constitution of India.

[20] Re Kerala Education Bill, 1957, 1959 SCR 595.

[21] Supra note 7.

[22] 1971 AIR 1737.

[23] Varun Shivhare, Minority Rights – The Judicial Approach, Legal Services India, available at http://www.legalservicesindia.com/articles/judi.htm.

[24] AIR 1976 Del 207.

[25] AIR 2003 SC 355.

[26] Christa Rautenbach, Phenomenon of Personal Laws in India: Some Lessons for South Africa, The Comparative and International Law Journal of Southrn Africa, Vol.39( July 2006), Pg. 241-264.

[27] Ibid.

[28] Infra note 27.

[29] Hindu Marriage Act, 1955.

[30] Personal Law, National Portal Content Management Team, available at http://www.archive.india.gov.in/citizen/lawnorder.php?id=16.

[31] AIR 1995 SC 1537.

[32] Supra note 7.