This article is written by Anusha Misra, from NALSAR University of Law. This article evaluates the “rights” conferred to minorities under the Constitution of India.
Table of Contents
Introduction
India is a multi-ethnic, multi-religious and multi-cultural country. The findings of the Census of India 2011 laid down that out of 1028 million population, 827 million Indians (80.5%) followed Hinduism, 138 million (13.4%) Islam, 24 million (2.3%) Christianity, 19 million (1.9%) Sikhism, 8 million (0.80%) Buddhism and 4 million (0.4%) Jainism. In addition to that, around 6 million people have started following other religions and beliefs like tribal religions.
India is surrounded by countries that espouse a particular religion. Pakistan and Bangladesh identify Islam as their country’s religion, Nepal is a Hindu state and Sri Lanka confers special status to Buddhism. India on the other hand is a secular country. This means that the government is to treat all religious communities equally. All religious communities have the right to ‘profess, propagate and practice’ their religion. India’s plurality with regards to culture, ethnicity and religion is an integral part of the country. Secularism is essentially the bulwark of a democratic country like India. Minorities Rights Day is celebrated on 18th December. The Constitution provides rights to minorities to ensure their protection. Before dwelling in these Constitutional rights one must understand what constitutes a minority.
The term ‘minority’ is used only twice in the Constitution and refers to religious, linguistic and ethnic minorities. Thus, the power to determine who constitutes a minority is vested in the hands of the government. At the moment 6 religious communities; Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains have been listed as minority communities. India also recognises linguistic minorities. The states have the power to determine who constitutes a linguistic minority.
The term minority in its literal sense denotes the smaller part, representing less than half of the whole. It has not been rigidly defined in the Constitution of India. The minority is used as a term relatively to understand the relationship between different groups and how they occur within a democracy. However, the Supreme Court in many cases aims at defining what minority means within the ambit of Article 30. Often there are misconceptions about minority rights. Minority rights do not confer privileges on minorities but acknowledge the fact that they are vulnerable and need upliftment.
There is a lot of ambiguity concerning the determination of minorities due to legal lacunae. There are no guidelines laid down concerning identifying minorities. Thus, it is for the courts to resolve this issue.
In the Kerala Education Bill, 1957, and again in the Guru Nanak University case (1975), the Supreme Court ruled that a religious or linguistic minority would not be determined about the entire country, but about the legislation which was to be disputed. This means that if the legislation under dispute was a state law, the minorities would be determined concerning the state population.
The ambiguity of the definition of minority proves to be a huge limitation. This leads to different courts interpreting the term minority differently leading to a variance in rulings.
Indian minorities and their rights provided under the Constitution
There arises a need for rights being provided to minorities to ensure stability in a democratic country like India. Article 14 of the Indian Constitution lays down the principle of equality before the law. This article prevents any form of unequal treatment and cannot be neglected when looking into rights provided to minorities under the Constitution of India. While Article 14 confers the equality principle it does not take into account the application of equality amongst unequals. Thus, constitutional provisions that aim at uplifting minorities are required.
Article 29 and Article 30 of the Indian Constitution about the cultural and educational rights of minorities. Article 29 of the Constitution lays down the protection of the interests of minorities. This Article takes into consideration two types of minorities namely linguistic and religious minorities. Under Article 29(1) minorities are empowered to preserve and promote their language, literature and culture. Under Clause (2) of Article 29, no citizen shall be denied admission to educational institutions aided by the State based on race, caste, religion or language. This was reiterated in Ravneet Kaur v. Christian Medical College (1997).
Article 30(1) of the Indian Constitution confers the right to establish and administer educational institutions to minorities. The term minority here denotes a community that constitutes less than 50% of the population of the state. Under the 44th amendment, Article 30(1-A) was incorporated in the Constitution of India. This sub-clause established the right minorities have for compensation in case of compulsory acquisition. According to Article 30(2), the government-aided educational institutions should not be discriminated against by the states on the ground that it is under the management of a minority. Minority educational institutions can avail of financial aid from the state and this must be based on the premise that there will be no discrimination while providing financial assistance.
It has been observed by the Supreme Court in S. Azeez Basha and Anr v. Union Of India (1968) that a religious community will have the right to administer educational institutions of their choice provided they have established them, but not otherwise.
In S.K Patro v. State of Bihar (1968), it was held that a minority can claim the benefits of Article 30 of the Indian Constitution only if the person is residing in India. Thus, the ambit or scope of Article 29 is wider than that of Article 30 as laid down in the Constitution of India.
In S.P Mittal v. Union of India (1982), the Supreme Court has stated: To claim the benefit of Article 30(1), the community must show two things namely, that it is a religious or linguistic minority and that the institution was established by it. Without fulfilling any of these conditions one cannot claim the benefit of Article 30(1).
The issues minorities have been facing since independence
Since time immemorial minorities have been subjected to various problems as mentioned below:
Discrimination and prejudice
Discrimination against minorities stems from denying them opportunities available to other communities. Due to a lack of educational qualifications, minorities often feel discriminated against. Prejudices against minorities play a significant role in shaping peoples’ perspectives against the particular minority community. Prejudices against minorities lead to tensions between different communities thereby often leading to violent clashes.
Preservation of disparate social and cultural life
Owing to the diversity in India, minority communities fear marginalization and strive for the preservation of their social and cultural life. Despite constitutional provisions being provided to ensure the preservation, there is no guarantee for the preservation of the social and cultural life of minorities.
Need for protection
In case of tensions arising, minorities seek protection. However, the State often fails to provide so due to issues such as a rise in cost and difficulty in protecting all. Thus, the need for security and safety is often felt for a person belonging to a minority community.
Communal riots
Minorities often feel like they are being neglected thus making it a challenge for the government to restore their faith in them. This inevitably leads to tensions due to which the interests of minorities are often threatened.
Insecurity towards “secularism”
In the name of Secularism, most political organizations politicize religious and communal issues to their advantage. Thus, the true essence of secularism and what it stands for is lost. This creates a general sense of insecurity and suspicion for minorities.
Lack of accountability in communal violence cases
Owing to the rise in majoritarianism, those who are guilty of instigating violence or are involved in communal violence are often exempted from crime only because they belong to the non-minority community.
Arbitrary arrests of minorities
Minorities especially Muslims are subject to unlawful arrests and detentions in terrorism cases. This is highly problematic as it plays a role in creating prejudices against minorities and also acts against the principle of equality.
The need for amendments in the rights already available
The Ministry of Minority Affairs and the Ministry of Home Affairs deal with issues about minorities in India. However, there is no specific protection for minorities espoused in the Constitution of India. Thus, there arises a need to amend the Constitution of India to include a provision concerning indigenous protection of minorities from violence.
Another concern is concerning indigenous minorities who are not included in the list of minorities created by the National Commission for Minorities. Thus, this becomes highly problematic when taking into account the fact that these minorities cannot avail certain rights that are available to other minorities. There is a need for standardisation as to who constitutes a minority to bring uniformity and to ensure equality.
National Commission for Minorities Act, 1992 led to the establishment of the National Commission of Minorities (NCM) to protect the existence of all minorities in India. The Commission is responsible for evaluating the progress of minorities, monitoring the safeguards provided to them in the Constitution and addressing complaints of discrimination against them. In 2006, the National Commission for Minorities Act, 1992 was amended leading to the establishment of the Ministry of Minority Affairs. The Ministry of Minority Affairs acts as an apex body and oversees the central government’s regulatory and developmental programmes for the minority communities in India.
The National Commission of minorities is endowed with the powers of a civil court. The commission can summon witnesses; however, its powers are only restricted to that. Owing to a large number of cases pending before courts it becomes rather difficult for them to deal with cases about violence against minorities. Thus, the Indian Constitution needs to be amended to confer the National Commission for minorities with powers enabling it to deal with cases about violence against minorities.
Possible misuse of existing rights of minorities
Government control practically amounts to nothing when dealing with matters about the functioning of minority institutions. This is because the government cannot interfere in the administration and management of the minority institutions due to the autonomy granted to them under Article 30 of the Constitution. Institutions that are not managed by persons belonging to minority communities are subjected to government intervention and cannot function properly like the minority-run institutions. The government cannot intervene with the functioning of minority-run institutions even when malpractices take place. The constitutional provisions aimed at providing the minorities with an equal footing with the majorities. However, these provisions are now amounting to be a source of discrimination and inequality for non-minority communities.
With regards to the functioning of minority institutions, government intervention is limited, but there needs to be a provision enabling the government to intervene when a necessity arises and to prevent the misuse of this right. Minority institutions are to abide by some basic instructions to maintain the standards of education. However, the government cannot intervene in malpractices such as charging exorbitant fees. There arises a need for government control over minority-run institutions to ensure proper administration of these institutions.
Conclusion
The purpose of rights conferred to minorities is to alleviate them and place them on a pedestal on par with the majority. If the State can ensure these rights to the minority communities then this would ensure equality without threatening the autonomy of the minorities.
References
- https://www.academia.edu/24454308/Minority_Rights_in_India_A_Summary
- https://vikaspedia.in/social-welfare/minority-welfare-1/overview-of-minority-communities-in-india
- http://www.legalserviceindia.com/article/l93-minorities-rights.html
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