Constitutional Provisions
Constitutional rights and safeguards provided to the minorities in India
1. Constitutional safeguards for religious and linguistic minorities of India
Though the Constitution of India does not define the word ‘Minority’ and only refers to ‘Minorities’ and speaks of those ‘based on religion or language’, the rights of the minorities have been spelt out in the Constitution in detail.
2. ‘Common Domain’ and ‘Separate Domain’ of rights of minorities provided in the Constitution
The Constitution provides two sets of rights of minorities which can be placed in ‘common domain’ and ‘separate domain’. The rights which fall in the ‘common domain’ are those which are applicable to all the citizens of our country. The rights which fall in the ‘separate domain’ are those which are applicable to the minorities only and these are reserved to protect their identity. The distinction between ‘common domain’ and ‘separate domain’ and their combination have been well kept and protected in the Constitution. The Preamble to the Constitution declares the State to be ‘Secular’ and this is a special relevance for the Religious Minorities. Equally relevant for them, especially, is the declaration of the Constitution in its Preamble that all citizens of India are to be secured ‘liberty of thought, expression, belief, faith and worship and ‘equality of status and of opportunity.’
2.1 ‘Common Domain’, the Directive Principles of State Policy – Part IV of the Constitution
The Constitution has made provisions for the Fundamental Rights in Part III, which the State has to comply with and these are also judicially enforceable. There is another set of non-justiciable rights stated in Part IV, which are connected with social and economic rights of the people. These rights are known as ‘Directive Principles of State Policy’, which legally are not binding upon the State, but are “fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”. (Article 37). Part IV of the Constitution of India, containing non-justiciable Directive Principles of State Policy, includes the following provisions having significant implications for the Minorities :-
obligation of the State ‘to endeavour to eliminate inequalities in status, facilities and opportunities’ amongst individuals and groups of people residing in different areas or engaged in different vocations;[Article 38 (2) ]
obligation of State ‘to promote with special care’ the educational and economic interests of ‘the weaker sections of the people’ (besides Scheduled Castes and Scheduled Tribes); [Article 46] and
2.2 ‘Common Domain’, the Fundamental Duties – Part IVA of the Constitution
Part IVA of the Constitution, relating to Fundamental Duties as provided in Article 51 A applies in full to all citizens, including those belonging to Minorities. Article 51A which is of special relevance for the Minorities stipulates as under :-
citizens’ duty to promote harmony and the spirit of common brotherhood amongst all the people of India ‘transcending religious, linguistic and regional or sectional diversities; and
citizens’ duty to value and preserve the rich heritage of our composite culture.’
2.3 ‘Common Domain’, the Fundamental Rights – Part III of the Constitution
The Constitution has provided a definite space for both the ‘domains’ i.e. ‘common’ as well as ‘separate’. In Part III of the Constitution, which deals with the Fundamental Rights is divided into two parts viz. (a) the rights which fall in the ‘common domain’ and (b) the rights which go to the ‘separate domain’. In the ‘common domain’, the following fundamental rights and freedoms are covered:
people’s right to ‘equality before the law’ and ‘equal protection of the laws’; [Article 14]
prohibition of discrimination against citizens on grounds of religion, race, caste, sex or place of birth; [Article 15 (1) & (2)]
authority of State to make ‘any special provision for the advancement of any socially and educationally backward classes of citizens’ (besides the Scheduled Castes and Scheduled Tribes); [Article 15 (4)]
citizens’ right to ‘equality of opportunity’ in matters relating to employment or appointment to any office under the State – and prohibition in this regard of discrimination on grounds of religion, race, caste, sex or place of birth; [Article 16(1)&(2)]
authority of State to make ‘any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State; [Article 16(4)]
people’s freedom of conscience and right to freely profess, practice and propagate religion – subject to public order, morality and other Fundamental Rights; [Article 25(1)]
right of ‘every religious denomination or any section thereof – subject to public order, morality and health – to establish and maintain institutions for religious and charitable purposes, ‘manage its own affairs in matters of religion’, and own and acquire movable immovable property and administer it ‘in accordance with law’; [Article 26]
prohibition against compelling any person to pay taxes for promotion of any particular religion’; [Article 27]
people’s ‘freedom as to attendance at religious instruction or religious worship in educational institutions’ wholly maintained, recognized, or aided by the State.[Article 28]
2.4 ‘Separate Domain’ of Minority Rights
The Minority Rights provided in the Constitution which fall in the category of ‘Separate Domain’ are as under:-
right of ‘any section of the citizens’ to ‘conserve’ its ‘distinct language, script or culture’; [Article 29(1)]
restriction on denial of admission to any citizen, to any educational institution maintained or aided by the State, ‘on grounds only of religion, race, caste, language or any of them’; [Article 29(2)]
right of all Religious and Linguistic Minorities to establish and administer educational institutions of their choice;[Article 30(1)]
freedom of Minority-managed educational institutions from discrimination in the matter of receiving aid from the State;[Article30(2)]
special provision relating to the language spoken by a section of the population of any State;[Article 347]
provision for facilities for instruction in mother-tongue at primary stage;[Article 350 A]
provision for a Special Officer for Linguistic Minorities and his duties; and [Article 350 B]
Sikh community’s right of ‘wearing and carrying of kirpans; [Explanation 1 below Article 25]
3. India’s multi-culturalism interwoven in the Constitution
The various Articles of the Constitution providing rights to the minorities, clearly and firmly point out to only one direction: that of a multi-religious, multi-cultural, multi-lingual and multi-racial Indian society, interwoven into an innate unity by the common thread of national integration and communal harmony. By the yardstick adopted by the framers of the Constitution and crystallized into its provisions the Indian Nation is not just a conglomeration of individual inhabitants of this State; it comprises of two distinct categories of constituents. The two-tier commonwealth of Indian Nation includes, on one hand, every citizen of India individually and, on the other hand, the multitude of religious, linguistic, cultural and ethnic groups among its citizens. The Indian Nation is an enormous coparcenary in which the individual citizens are also members of their own respective branches taking the form of religious, cultural, linguistic and ethnic groups. And all these groups, like all individuals, have the same Fundamental Rights to enjoy and the same Fundamental Duties to discharge.
4. Protection of weaker sections in Indian pluralistic society
The social pluralism of India, as fortified by the unique Constitutional concept of secularism, raises the need for the protection and development of all sorts of weaker sections of the Indian citizenry – whether this ‘weakness’ is based on numbers or on social, economic or educational status of any particular group. The Constitution, therefore, speaks of Religious and Linguistic Minorities, Scheduled Castes, Scheduled Tribes and Backward Classes and makes – or leaves room for making – for them special provisions of various nature and varying import.
Rights of Minorities in Indian Constitution
On August 29, 2013 By Vijay Jaiswal
Category: Indian Constitution
Rights of Minorities in Indian Constitution
The Indian Constitution ensures “justice, social, economic and political” to all citizens. The Indian Constitution has adopted measures for the protection of the rights of the religious and ethnic minorities and of the socially and economically disadvantaged classes such as the scheduled castes and scheduled tribes.
The Indian constitution enshrines various provisions for the protection of the rights and interest of the minorities.
Firstly, India declares herself a secular state. No particular religion or the religion of the overwhelming majority, has been made the religion of the state.
Secondly, Article 29 give the religious and linguistic minorities right to establish and manage educational institutions of their own. The minorities have been given the unrestricted rights to promote and preserve their own culture. Indeed, India is a country of diverse cultural groups and She is keen to preserve her cultural diversity. Thus for example, even though, Hindi is made the official language of India, primary education everywhere is given in the mother tongue. It may be noted that there are over 20 official languages in India.
Thirdly, Article 29 expressly forbids discrimination on grounds of race, religion, caste, language, in admission to educational institutions run by the state or receiving aids from the state. This means that the doors of all educational institutions run by government or receiving funds from the state are open to all groups of Indians. Linguistic, religious or ethnic minority students cannot be denied admission to such educational institutions.
Article 30 is vital to the protection and preservation of rights of the minorities. The minorities have been given the right to establish and administer educational institutions of their choice. The state also cannot discriminate against educational institutions established and managed by the minorities in matters of granting aids. Such educational institutions however must receive state recognition. The state educational authorities have the right to regulate such educational institutions because the “right to manage does not include the right to mismanage.”
Article 16 guarantees that in matters of public employment, no discrimination shall be made on grounds of race, religion, caste or language etc. This means that in matters of public employment, all Indians are placed on a footing of equality. Every citizen of India will get equal employment opportunity in government offices.
Finally, Article 25 of the Indian constitution guarantees freedom of religion to every individual. This article of the Indian constitution ensures that the members of the religious minority community have the unhindered right to follow their own religion. The state regulates the practice of a religion only when and to the extent it disturbs public peace. The minority not only has the right to follow their own religion, they also have the right to propagate it. But the state certainly does and should regulate conversion through force or temptation. Forcible conversion is forbidden because it transgresses the individual’s freedom of conscience.
On the whole, the minorities of all kinds have very secure rights in India which must be a matter of envy to the minorities elsewhere.
» TODAY'S PAPER » OPINION
July 14, 2007
Defining India’s minorities
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Zoya Hasan
A meaningful conception of minorities would include sections of people who, on account of their non-dominant position in the country as a whole, are targets of discrimination and therefore deserving of special consideration.
The Constitution (103rd Amendment) Bill, 2004 to grant constitutional status to the National Commission for Minorities envisages a change in the way minorities are specified. The Cabinet has reportedly approved a proposal (May 2007) to define minorities State-wise in line with several Supreme Court judgments, most notably that in T.M.A. Pai. For the purpose of this legislation, minority will be specified as such in relation to a particular State/Union Territory by a presidential notification issued after consultation with the State Government; this will be in addition to the five minorities (Muslims, Christians, Sikhs, Buddhists, and Parsis) referred to in the NCM Act, 1992. The new approach is not consistent with the understanding developed in the Constituent Assembly on the protection of minorities and the constitutional compact between the State and minority groups.
Although the Constitution does not define a minority or provide details relating to the geographical and numerical specification of the concept, it is clear that the constitutional scheme envisages this to be determined at the national level. Periodic judicial interventions and categorisation has had major repercussions. Over the years, judicial pronouncements have sought to give a restricted meaning to minority rights by limiting them to education and defining minorities at the State level in terms of protection under Article 30 which provides religious minorities the right to set up educational institutions of their choice. The legitimation of a restrictive conception of minority rights can also be noticed, in this context, in the Central Government’s proposal to adopt a State-specific notion of minorities.
Supreme Court principle
In the 2002 judgment, in T.M.A. Pai Foundation & Others vs. the State of Karnataka and Ors, the Supreme Court deliberated on the various contentions that the Centre, State, or a particular region within a State may be considered as the basic unit for protection of the right of minorities to set up minority educational institutions, and whether a minority in a State would lose its minority status if within a particular region of the State it happened to be in a majority. The Court has set out the principle that minority status should be determined in relation to the population of the State and not to India as a whole. It ruled that as the reorganisation of the States in India had been effected on linguistic lines, for the purpose of determining a minority, the unit would be the State and not the whole of India. Thus, religious and linguistic minorities, who have been placed on a par in Article 30, have to be considered in terms of the State concerned. Not surprisingly, this issue surfaced again in Bal Patil(2004) and Srivastava (2007); these two judgments have further complicated the question of definition of minorities, as both these judgments relate, for the most part, to definitional issues. Bal Patilquestioned the identity of Sikhs as a religious minority while Srivastava ruled that Muslims, by virtue of their numbers, cannot be considered a minority in Uttar Pradesh.
The principal rationale for State-specific minorities rests on the idea that the linguistic reorganisation of States necessitates that they be treated as the basic unit for determination of minorities. As both linguistic and religious minorities are covered under Article 30, both sets of minorities have to be State-specific. The linguistic reorganisation of States meant that, for the purpose of Article 30, linguistic minorities had to be determined in relation to the State because their language was not one of the official languages; other minorities are those whose mother tongue is an official language but who live outside the State(s) where the language is official.
In this sense, the linguistic reorganisation of States has a definite bearing on linguistic minorities because protection under Article 30 is available not only to the linguistic minorities sharing the major languages of the States, but also to speakers of the numerous languages that are not represented by any particular State on its own.
As regards religious minorities, linguistic reorganisation should not really matter in the exercise of their right to set up educational institutions of their choice or seek admission in such institutions or the exercise of other minority rights. In comparison to linguistic minorities, for whom the official language matters, there is no congruence between religious identity and State boundaries. For protection under Article 30, linguistic minorities make claims upon the States rather than the Centre, but this need not be so for religious minorities who are dispersed throughout India and whose identity is not linked to specific State(s). In this context, defining minorities at the State level would limit the notion of minorities, entailing as it does the adoption of an essentially statistical conception of minorities. Thus, a religious group, which is numerically smaller than the rest of the population of the State to which it belongs, would be entitled to be termed a minority in that State even though the group may be numerically in a majority in India as a whole and hence not lacking in power or voice in the decision-making structures. This will doubtless add to the list of minorities and extend the benefits of minority entitlements to these groups, even as it will deny the same benefits to groups that are minorities in accordance with nationally and internationally accepted definitions of minorities.
Scope for distortions
Such a State-specific conception of minorities will result in distortions in minority rights. If this rationale is extended, Hindus in Punjab who are a numerical minority there though they are a majority in relation to India as a whole will be entitled to minority protection there as indeed they would be in Jammu and Kashmir, Nagaland, Meghalaya, Mizoram, and Lakshadweep. To take another example, failing the statistical test, Sikhs in Punjab and Christians in the above States will be held to be a majority and consequently deprived of constitutionally sanctioned minority rights. In Punjab, the minority Hindus will be able to set up educational institutions of their choice and apparently Hindus from other States will be eligible for admission to these institutions unless admission is to be limited to minorities domiciled in the State.
By the same logic, Christian students will be ineligible for admission in minority educational institutions, such as St. Stephens College or Loyola College, as they will not have a domicile minority status there. In other words, eligibility for admissions to minority educational institutions will be limited to minorities domiciled in the States, and what is more, some minority community applicants will not be able to avail themselves of minority quotas outside their State(s) because they are not a minority in their own States.
At the heart of the current controversy is confusion about which groups qualify as minorities and regarding the nature of the unit of determination under this rubric. However, internationally, some agreement exists. Commonly cited characteristics that make groups distinctive and expose them to discrimination include religion, language, culture, and gender. There is also a unanimous opinion that the term ‘minority’ refers to a power relationship. In this, the size of a group may bear some relation to the degree of power it wields, but presumably because other factors are also involved in the equation, the relationship of group size is not all that significant.
Contrary to this widely accepted perception of minorities, the Government’s new proposal for State-specific minorities is driven by a statistical or numerical approach. The size of the group is not what should concern our policy-makers or those committed to eradication of inequity, prejudice, and discrimination. This is because numbers per se merely quantify and describe the proportion of a group in a population; they do not tell us anything about whether a particular minority group is powerful or powerless, advantaged or disadvantaged, represented or under-represented. A more meaningful conception of minority status would include sections of people who, on account of their non-dominant position in the country as a whole (not a specific State), and because of their religion, language, caste or gender, are targets of discrimination and therefore deserving of special consideration. The statistical approach disregards the crucial qualitative condition of vulnerability and disadvantage.
The numerical proportion of a population of a particular community in a State, distinguishable on religious grounds, cannot entitle it automatically to minority rights.
The temptation to treat minority educational rights as similar to other minority rights has limited the concept of minority rights to the ambit of Article 30 and to the operational details of administering minority educational institutions at the State level. Aside from matters that fall under the purview of Article 30 protection, on most other substantive issues of equity, identity, and security, religious minorities frequently lean on the Centre in the hope that it is less likely to fall under the sway of narrow sectarian concerns and will be guided by a constitutional vision and philosophy rooted in ideas of fairness, justice, and equity. In the circumstances, defining and confining the category ‘minority’ to States is not the best way forward; it would be far more helpful to recognise the comprehensive character of minority rights, in consonance with the demands of substantive equality, to include them by revisiting the concept of affirmative action. This would be in step with the slew of policies and measures currently under consideration to address the economic, social, and educational deprivation that minorities experience.
(Zoya Hasan is a Professor at Jawaharlal Nehru University.)
