This article is written by Srijita Adak, from IFIM Law School, Bangalore.
People sharing culture, a language, a system of beliefs and traditions are called an ethnic group. In the 19th century, some of the ethnic groups came together and proclaimed their nation-states over the territories they live on. Some ethnic groups inhabiting the same territories are quite different and didn’t want to change their language, religion or tradition or to unify the nation that had been formed and some groups were forced to change their nationalities due to shifting state borders. These groups may be culturally different for the mainstream society but they want to preserve their identity. They are a set of people who are less in number and evidently distinct and unique from the majority.
In India, we have multiple religions, cultures, traditions and heritage. There are 8 Major religious belief systems with their distinct heritage and culture. From Kashmir to Kanyakumari there are 22 official languages with more than 800 dialects available. In a tight-knit democratic society like India, minority groups are respected for being different and although they enjoy minority rights in community with others belonging to a minority group is an individual choice.
Minority word comes from the Latin word ‘Minor’ and joins with the ‘ity’ suffix to make meaning of ‘small in number’. According to the United Nations, ‘Any group or community which is socially, politically and economically non-dominant and inferior in the population are minorities.’ The constitution of India has not defined the word ‘minority’ anywhere.
Historical background behind the protection of minority rights under the Constitution
In the past, the invasions in Ancient and Medieval India generated minority communities like Muslims, Anglo- Indians, Christians etc. India became a conglomeration of Minorities because of migration of communities fearing religious persecution like Parsis, Divide and rule policy of British colonial power etc. The objective resolution moved by Pandit Jawaharlal Nehru in the Constituent Assembly on 13th December 1946, unanimously adopted by Constituent Assembly on 22nd January 1947 where it was decided that a safeguard mechanism will be adopted for minority communities, depressed backward classes and tribal areas of the nation.
The Constitutional drafting committee had formulated various provisions and laws in 1948, under the name of “Special Provisions Relating to Minorities” in part XIV and numbered in 292-301 article. The provisions for special rights of minorities were modified substantially and finally, no special rights except cultural and educational were concerned to minorities. The constitution which was adopted by the Constituent Assembly of India in November 1949 and came into force on 26th January, 1950 with no reservation of seats in the Legislative bodies and public services for religious minorities as originally planned. The religious minorities from the purview of group-preference requirements were excluded because the Constituent Assembly held that control to such protections was reliable only for the development of backward and not to conserve the distinct cultural personalities.
Minorities faced various problems such as problems of getting protection, problems of communal tensions and riots, the problem of lack of representation in civil service and politics and the problem of separatism. Other problems are failure to stick to secularism, problems relating to the introduction of a common civil code.
Minority rights in India protect people from being discriminated against on grounds of their ethnic cultural, linguistic or religious identity. Individuals belonging to minorities must be able to learn and use their language, use their own names, preserve and freely express their identity. Minority rights, therefore, guarantee equality before the law, protection of basic freedom, non-discrimination and protection against violence on the grounds of identity, participation in political and public life, possibilities for cooperation with other communities and organisations within states and across borders. Rights of Minorities are the inherent part of human rights. They promote tolerance and respect for diversity. Their aim is to ensure that minorities and majorities live peacefully together and support each other in building a better future.
Articles under Constitution of India relating to the protection of minority rights
According to Article 14 of the Indian constitution, we need to prohibit unequal treatment and we should demand such laws which can afford equal treatment. Article 14(1) states Equality Before Law which states that if anyone irrespective of the Prime Minister or a common man does an act which is not legally justified then law treats everyone the same and gives the same responsibilities. The example of this is the Lady Justice who is blind-folded that means everyone is at the same pedestrian before the law.
There are 2 Articles under cultural and educational rights In the Indian Constitution – Article 29 and Article 30. Article 29 of the Constitution states the protection of interests for minorities. Its clause (1) states that any group living within the jurisdiction of India is entitled to preserve and promote its own language, script or literature and culture. Clause (2) of it prohibits denial of admission to educational institutions which are aided by the state on the ground of race, caste, religion or language protection.
This provision protects the rights of citizens irrespective of his/her belonging community. Article 30 is one of the very important to the minorities of India. Article 30(1) gives a provision to the minority communities to establish and administer an educational institute of their choice for protection of their culture and heritage. Sub clause 30(1A) of it has strengthened the minority educational institutions in case of compulsory acquisition. The state has to keep in mind that the amount which is needed for the acquisition of the property should not restrict the right guaranteed by the clause (1). According to Article 30(2), the government should not discriminate against any educational institution run by any minority group regardless of religion or the language, while giving aid.
Opposed to the traditional view Article 29’s scope is wider than Article 30 because Article 30 deals with only 2 kinds of minority that are religious and linguistic and Article 29 deals with any citizen of Indian citizens including the majority. Article 29 can only be applied to the citizens of India while Article 30 can be applied for both citizens as well as non-citizens of India. The Supreme Court has ruled in S.K. Patro v. State of Bihar, that a minority community can only claim the privileges under Article 30 must be a minority person who is residing in India. Foreigners who are not resident or nor a citizen in Indian do not come within the scope of Article 30.
Important case laws
- DAV College, Bathinda v. State of Punjab traces on the rights of minority groups to the use of their own languages in schools. The university ordered that Punjabi would be the one and only medium of instruction in affiliated colleges. The court held that the right provided to minorities under Article 30 guarantees them to establish and administer educational institutions of their own choice. Which also includes the right of giving instructions in their own language and the University curricular was directly violating their right to have instructions in Hindi as their own language and therefore infringing Article 30(1). A University should have the suggestion authority to benchmark qualifications of their academic staffs but the selection and recruitment process of staff remains in the hands of the minority educational institutions themself.
- In Ravneet Kaur v. Christian Medical College, the court held that a private institution which is not receiving aid from the State cannot discriminate against a person for admission on grounds of religion.
- In the State of Madras v. Champakam, the question of Article 29(2) was challenged for the first time. The SC held that the classification to the Govt. the order was based on race, religion and caste which were inconsistent to Article 29(2).
- Re: Kerala Education Bill was providing certain laws which were securing salaries, condition of the services of the teachers who teach in the educational institution. The provisions were being equally applied to minority institutions which were established under Article 30. The minority educational institution was claiming that the bills which are regulating the matters of the salaries, appointment and basic qualification are violating their administrating power the way they want. The Supreme Court held that in the name of minority rights they cannot exploit the teachers, they have to treat them in a good manner because when the bill is providing there should be minimum salary, qualification, the State is ensuring the protection of those people who are working in those institutions.
- In the Managing Board of the Milli Takimi Mission Bihar & Ors. v. State of Bihar & Ors., the Supreme Court held that running a minority institution is a fundamental right and as important as other rights presented to the citizens of the nation. Refusal to give affiliation or recognition by the statutory authority without just and adequate grounds is an infringement of the right ensured under Article 30(1) of the constitution.
Reservation in favour of minority community
Guard of rights of the religious and ethnic minorities is the mainstay of India’s secular values. Article 30 of the Indian constitution is one of the many provisions that promote reservation of minority rights. Article 30 promises the rights of minorities “to establish and administer educational institutions” which helps the Govt. to establish policies regarding the aid to minority educational institutions.
Important case laws related to this are-
- In St. Stephen’s college v. University of Delhi, the preference given to Christian students’ college was challenged. Here, it is decided that in the selection procedure half of the seats will be reserved for the minority community and the rest half will be on merit.
- But this judgement was overruled by TMA Pai Foundation case. The Supreme Court held that the unaided institutions since they do not receive any aid from the state out of the state fund are not subject to the admission procedure established by the state. It meant that they can follow their own admission procedure including their own admission test provided the admission is based on merit, an open and transparent system. Similarly, they are not bound by the fee structure provided by the state, provided do not collect any capitation fees. The court has granted the power to the state to fix quotas for minority students. This case drew distinction between aided and unaided governmental regulation on private institutions.
- In P.A. Inamdar v. State of Maharashtra, the Supreme Court held that the policy of reservation to admit students is not applicable to minority institutions. The state has no power to reserve seats in educational institutions. The admission process can be based on an admission test or merit.
- In Azeez Basha v. Union of India (Aligarh Muslim University Case), the Supreme Court held that an educational institution, not been formulated by the minority community then they have no right to direct it. AMU is not a minority institution as established by Act of Parliament. The term ‘established’ and ‘administered’ have to be read in consideration. Status of minority to AMU struck down in Dr. Naresh Agarwal v. UOI case.
Miscellaneous articles in Indian Constitution
Some articles in the Indian Constitution which openly or silently speak about the rights and privileges of minorities in India.
Article 38 ensures that the state to secure a social order for the promotion of welfare of people permeated by justice- social, economic and political and to minimise inequalities in income, status, facilities and opportunities.
Article 39 states free legal assistance and equal justice of various dimensions. It directs the state to secure livelihood for all the citizens, equitable distribution of material properties for the common good. It also gives provision for the prevention of concentration of wealth, equal pay for equal work and for giving opportunities, facilities to the children for the development.
Article 46 is about Gandhian principles. It provides that the state may take necessary action to promote educational and economic advancement of the weaker sections of the people and to protect them from social injustice and exploitation.
Article 347 provides power to the President to officially recognize a language, which is being spoken by the substantial population.
Articles 331, 333, 334, 336 and 337 have the special provisions of guaranteeing representation of Anglo Indians in Union and State legislatures.
Article 350(B) gives provision for appointing a Special Officer for linguistic minorities.
A history of clashes, an active fertile ground for communal violence and difference-making it vulnerable for minorities on different grounds and opportunities in India. Thus, there is a need to preserve their identity and safeguards to the minority rights on social, economic and political fronts. The Constitution of India provides many ways through which the minorities protect their rights. Also, it offers special rights and freedoms to the minority community to conserve its democratic character. But in reality, minorities give birth to various problems.
For instance, India has declared itself as a secular country. So, the spirit of our constitution is secular. All political parties in India claim to be secular but in practice, none follows it. In India, the political parties play a major role in politicising a religious issue for vote banks. Though there are many problems like this the solution has to be faced with understanding. Still, the court is not able to define minority and have been for interpretation of court according to the circumstances. Art. 30 & Art. 29 are pretty wide in scope and they need to give complete choice to the minority section to establish and administer any institution as per their understanding.
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