Topic: MINORITY RIGHTS

Mukul Jain

1. ABSTRACT
The literal meaning of Minority as per the Oxford Dictionary is “The smaller number or part,
especially a number or part representing less than half of the whole.” Efforts by non-dominant
groups to preserve their cultural, religious or ethnic differences emerged with the creation of
nation States in the eighteenth and nineteenth centuries. The recognition and protection of
minority rights under international law began with the League of Nations through the adoption of
several “minority treaties”. The term “minority” itself is not defined in the Indian Constitution.
India is a mass of diversities including large varieties of people with different religion, caste,
culture, language, race, caste, standard of living, tribes, food habits, and so on. This numeral
difference in the strength of believers of various religions is a fertile ground for communal
violence and riots. Minorities around the world are also often the victims of armed conflicts and
internal strife. India has an inglorious history and legacy of many communal clashes and ferocity.
Persons belonging to national or ethnic, religious and linguistic minorities are also often victims
of multiple discrimination and they may lack access to, among other things, adequate housing,
land and property, and even a nationality. The framers of the Indian Constitution were extremely
cautious to provide for special privileges and rights for the minority community. In this context,
this piece of paper of intends to throw some light on various provisions of Indian constitution
and Law on Minority Rights and Policies to safeguard and protect their interests.
Keywords: Minority, Minority Rights, Indian Constitution, Ethnic Community, Protection of
Minorities.

2. INTRODUCTION
Minority groups are vulnerable groups in any society and require protection and safeguards. The
minority communities deserve the attention of the legislature and the judiciary in providing
safeguards for the protection of their human rights in preserving their language, culture,
ethnicity, etc. Article 27 of the International Covenant on Civil and Political Rights and
subsequent jurisprudence provide the main elements of a definition of the term minority i.e., ‘an
ethnic, religious or linguistic group, fewer in number than the rest of the population. A minority
is a group with linguistic, ethnic, or cultural characteristics, which distinguish it from the
majority. Secondly, a minority is a group which usually not only seeks to maintain its identity but
also tries to give stronger expression to that identity.’ The Constitution of India does not define
the word ‘Minority’, It refers to the Linguistic and Religious Minorities. The rights of the
minorities have been enshrined in various articles of the Constitution of India. The Supreme
Court of India in TMA PAI Foundation vs. State of Karnataka has ruled that the definition of
Minorities shall be in relation to a particular State/Union Territory. It prescribed that: “Linguistic
and religious minorities are covered by the expression “minority” under Article 30 of the
Constitution. Since reorganization of the States in India has been on linguistic lines, therefore,
for the purpose of determining the minority, the unit will be the State and not the whole of
India.”
Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be
considered State-wise. This implies that the Punjabis though they constitute minorities at the
National level and are not minorities in the State of Punjab, but they shall be considered
minorities in the State of Andhra Pradesh. Similarly, Hindus who is a majority community would
be a numerical minority in Punjab. Prof Zoya Hassan in her Article Defining Minorities feels that
defining minorities at State level would limit the notion of minorities, entailing as it does the
adoption of an essentially statistical concept of minorities. The characteristics that make the
minority groups distinctive and vulnerable are language, religion, culture, and gender etc., The
Minority communities shall be determined in relation to their power equations with the majority
community. The rights of Minorities have been recognized internationally. United Nations
Declaration on Minorities 1992, under Article 1 defines minorities as a small group of people
having national, ethnic, cultural, religious or linguistic identity, and provides that States should
protect their existence. Human rights are universal and are applicable to all human beings,
including members of the minority communities. Since the inception of the 20 century the voices
for the rights of minority have gained greater resonance and relevance all over the world.

3. LITERATURE REVIEW
3.1 RESEARCH OBJECTIVES
The purpose of this research is to put together rights of minorities as per Indian Constitution,
reports on minorities and Initiatives by Indian Government for Protection of minority.

3.2 RESEARCH QUESTIONS

· What are the minority rights as per Indian Constitution, reports on minorities and Initiatives by
Indian Government for Protection of minority.
· What are the problems and suggestions are suggested in the implementation of this minority
rights.

3.3 RESEARCH GAP

Problems are highlighted and suggestions are suggested in the implementation of this minority
rights.

4. RESEARCH METHODOLOGY
The purpose of this research is to put together rights of minorities as per Indian Constitution,
reports on minorities and Initiatives by Indian Government for Protection of minority.
Suggestions are also captured for the gaps in implementation of the rights.

5. RESEARCH
INDIAN CONSTITUTION AND MINORITY RIGHTS

The framers of Indian constitution were cautious to draft a constitution for the country that
quench the thirst for national unity while accommodating the individual aspirations and demands
of individual communities1.Indeed the Constitution of India does not offer any distinct and
exclusive rights to minorities barring some rights concerning their language, culture and
education.2 This does not mean that the Constituent Assembly and Constitution of India were
blindfolded to the upliftment process of the socially backward and historically discriminated and

1
Minority Rights in the Constitution of India by Vineeth Thomas.
2
Articles 29 and 30 of the Indian Constitution.
deprived sections of the society. It has incorporated various provisions and amendments for
amelioration of the weaker sections of society.3

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.

Common Domain

Part III of the Constitution

 Article 14: Right to ‘equality before the law’ and ‘equal protection of the laws’4
As per this provision, every citizen of the country will have equal access and protection
of law. No one will be seen a bit higher than the other in legal jurisprudence.

 Article 15(4): 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 Tribes5
This article gave constitutional authorisation to the government machineries to make any
special provisions for the advancement of the backward sections of the society.

 Article 25: People’s freedom of conscience and right to freely profess, practice and
propagate religion6 – subject to public order, morality, and other Fundamental Rights
This right gives the freedom to an individual to follow, practice and spread religion of
individual choice.7 State cannot impose or curb any particular religious convention or
tradition.8 This gives a kind of immunity to minorities from the attacks of majority
religions of the country.
3
Articles 15 (4) (5) and 16 (4) provides special provisions like reservation for weaker sections.
4
Article 14 of the Indian Constitution.
5
Article 15 of the Indian Constitution.
6
Article 25 of the Indian Constitution.
7
RatilalPanachand Gandhi v. State of Bombay, AIR 1954 SC 388: 1954 SCR 1055.
8
Punjabrao v. D.P. Meshram, AIR 1965 SC 1179: (1965) 1 SCR 849.
  Article 26: 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’9
These rights protect and guarantee the collective rights of a religion. This will give safety
and protection to the communal rights and privileges of minority religions

 Article 27: Prohibition against compelling any person to pay taxes for promotion of
any.particular.religion’10
This ensures that state is not spending the public money for the welfare of a particular
religion at the cost of many including minority religions. When a government is formed
who is having affiliation to majority religion, chances of minority religions, beings
secluded and side-lined are higher. But the provisions of article 27 is a block to this kind
of biased tendencies.

 Article 28: People’s ‘freedom as to attendance at religious instruction or religious

worship in educational institutions’ wholly maintained, recognized, or aided by the
State.11
This article ensures that no fully/partially state funded educational institution compel
anyone to follow religious instructions. This will also protect the minorities from any
attempt of the majority religious educational institution to compulsorily follow their
religious instructions.

Part IV of the Constitution

Directive Principles of State Policy, though not legally binding upon the State, is the duty of the
State to apply these principles in making laws”. This Directive Principles of State Policy,
includes the following provisions having significant implications for the Minorities:

9
Article 26 of the Indian Constitution.
10
Article 27 of the Indian Constitution.
11
Article 28 of the Indian Constitution.
  Article 38: The State shall strive to promote the welfare of the people by securing and
protecting as effectively as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the national life.12
Here by reminding state to ensure various dimensions of justice, the rights of minorities
are also being secured.

 Article 39: Ensures free legal assistance and equal justice of various dimensions.13
This will give a warranted support for the rights of the minorities.

 Article 46: Appeals State to take necessary measures and actions that promote with
educational and economic advancement of the weaker sections of the people.
Keeping this in mind, government has introduced many policies like reservation,
scholarships, loans, skills in the constitution of India for the weaker sections of the
society including the minorities.

 Article 49: Provides that the state shall protect the monuments and places and objects of
national importance.14
This will help to shield and preserve the historical monuments of the minorities in the
country from the risks of spoliation, defacement, demolition, deletion, discarding or
export.

 Article 51: Demands state to adhere and follow to international treaties and laws. 15 Many
of these treaties at international level, including that of UN, pinpoint towards an
inclusive, socially just and equal society by respecting individual liberty.

12
Article 38 of the Indian Constitution.
13
Article 39 of the Indian Constitution.
14
Article 49 of the Indian Constitution
15
Article 51 of the Indian Constitution
 Separate Domain
 Article 29: Right of ‘any section of the citizens’ to ‘conserve’ its ‘distinct language,
script or culture.16This is one of such article which explicitly and exclusively deals about
the minorities of the country. These articles provide a helping hand for the minorities to
defend and safeguard their distinct language, culture and script.

 Article 30: Right of all Religious and Linguistic Minorities to establish and administer
educational institutions of their choice.17This article gives the right to the minorities to
start and manage educational institution and prevent state from showing discrimination
while granting aid to educational institution.

 Article 347: Special provision relating to the language spoken by a section of the
population of any State.18This can act as a defence for the languages of minority people

 Article 350 A: Provision for facilities for instruction in mother-tongue at primary

stage.19The 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.

REPORTS ON MINORITY RIGHTS

Backward Classes Commission, 1953

Backward Classes Commission was established to list down the groups or communities in India
to be treated as socially and educationally backward classes in addition to the ones specified as
Scheduled Castes and Scheduled Tribes (SCs and STs) under Articles 341 and 342 of the
Constitution, and to make recommendations regarding the steps to be taken by the government in
order to alleviate the position of these groups. According to Commission’s report, which was

16
Article 29 of the Indian Constitution
17
Article 30 of the Indian Constitution
18
Article 347 of the Indian Constitution
19
Article 350A of the Indian Constitution.
submitted in 1953, backward classes was generally defined as the communities in the lower end
of Hindu hierarchy. However, the report also included communities form scheduled castes who
had converted to Christianity, but were unable to transcend the caste system under
Other Backward Classes (OBC). Dalit communities in Sikhs were included in Scheduled Castes.
Muslims were not mentioned anywhere in this report.

Committee on Religious and Moral Instruction, 1959

The Committee on Religious and Moral Instruction was appointed by the Ministry of Education
to study the issue of religious and moral instruction in educational institutions. The commission
recommends that a basic education of all religions, religious leaders and philosophies to be made
a part of the school curriculum, for a comparative and sympathetic study of religions, and their
underlying philosophies and ethical codes.

This recommendation is made not only for government schools and colleges, but minority
institutions as well. The aim is to generate a greater understanding and tolerance towards other
religions and religious groups.20

INITIATIVES BY INDIAN GOVERNMENT FOR PROTECTION OF

MINORITY

The fact that minorities in the country are confronted with diverse challenges, the Indian Policy
makers ensured to look into their special needs and provide for their welfare and developments.
Some of these efforts have been discussed herein:

 Minority Commission: The Minorities Commission A.k.a. National Commission for

Minorities Act, 1992 was formulated to protect the interests of the minorities by the
Government of India in January, 1978. Section 2(C) of the Act, notified five religious
communities, namely, Muslims, Christians, Sikhs, Buddhists and Parsis as minority
communities in India. Later, in the Sixth Five Year Plan (1980-85) it was recognized that
the minorities were a distinct socioeconomic group and hence special provisions were

20
Minority Rights in India-A summary by Aishwarya Javalgekar.
 made for them through the Minimum Needs Programme 21. The Act was further amended
in 2004 and 2006. The final amendment in 2006 led to the establishment of the Ministry
of Minority Affairs as the apex body for the central government's regulatory and
developmental programmes for the minority communities in India. The ministry provides
scholarships to students from minority communities.22

 The Sachar Committee: Due to lack of reliable information with respect to Social,
Economic, and educational status of Muslims in India, a Prime Minister’s High Level
Committee was formed. This Committee was successful in highlighting the poor socio-
economic status of the Indian Muslims in comparison to the general population. Several
recommendations were made by the Sachar Committee to improve the status of Muslims
on the basis of which various policies were formulated.23

 Rangnath Mishra commission on minorities: In October 2004, The Justice Ranganath

Mishra Commission was appointed to study various aspects of religious and linguistic
minorities. Several recommendations were made to provide reservations for the Muslims,
SC’s and OBC’s in government jobs.24

 The Prime Minister’s 15 Point Programme: This programme was adopted in June
2006 for the welfare of the minorities. Aim of this programme is to ensure that the
benefits of various government schemes for the underprivileged reach the disadvantaged
sections of the minority communities.25

 Multi-sectoral Development Programme: A Pre-Matric, Post-Matric, Merit-Cum

Scholarship scheme was launched in the rural and semi-rural areas. Purpose of this
programme is to improve the socio-economic and basic amenity facilities for improving
the quality of life of the people and reduce imbalances in the Minority Concentration
Districts (MCDs).26
21
Massey J., Minorities and Religious Freedom in a Democracy, Centre for Dalit Subalter Studies (Manohar, 2003).
22
National Commission for Minorities,Ministry of Minority Affairs, Government of India.
23
Constitutional Rights Of Minorities: A Critical Analysis by Saika Sabir.
24
Ibid.
25
Prime Minister’s New 15 Point Programme for the Welfare of Minorities, amended guidelines.
26
Multi-Sectoral Development Programme, Ministry of Minority Affairs.
6. SUGGESTION AND CONCLUSION

6.1 SUGGESTION

The government of India should:

1. Increase training opportunities on human rights and religious freedom standards and
practices for the members of its legislature, police, and the judiciary.
2. The recommendations made by the National Commission for Minorities are radical and
based on the contemporary scenario. However, these recommendations are not taken into
consideration while remedying the legislature of the nation. As a result, the amendment in
the legislature happens at a much slower pace. An example of this is the inclusion of
Jains as a minority, which was recommended by the commission in 1993, but was
officially announced only in 2014, i.e. 21 years later.
3. Operationalize the term “minority” in its federal laws and comply with the United
Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious,
and Linguistic Minorities. The lack of clarity in definitions and terminology leads to a
variance in Supreme Court’s - rulings on similar matters. Every case begins with an
attempt by the Bench of judges to interpret and define the term ‘minority’ based on
definitions provided by international organizations and in previous cases. The
interpretation of the term determines the judgement in such cases
4. Adopt the International Convention on the Elimination of All Forms of Racial
Discrimination.
5. Implement the recommendations of the Commission for Religious and Linguistic
Minorities (2007).
6. There are two categories of religious minorities within the country. Each of these
categories has its own benefits and disadvantages. The religions in the first category, such
as Islam and Christianity, have distinct identities and have their own set of personal laws.
However, they are considered ‘outsiders’ and appear to be discriminated against in anti-
conversion and reservation laws. The religions in the second category, like Jainism,
Sikhism and Buddhism are believed to have emerged in India, and do not bear the brunt
 of discriminatory provisions. However, they are often (legally) considered to be subsets
of Hindu religion, creating confusion regarding their status as a minority.
7. The provisions provided work as short-term remedies, but do not provide long-term
solutions towards the safeguarding of rights of minority communities. The provision of
different (personal) laws for Muslims and Christians versus every other religion leads to
further alienation of those religions as outsiders.

6.2 CONCLUSION

Even though the term minority is not defined per say in the Indian Constitution or the
International law, it is safe to say that there are several rights and privileges available to
safeguard their interests. It can also be said that the Indian Constitution is a treasure where
minorities can find artless and provisions for their upliftment. The main focus of the law is to
create confidence in the mind of minority community that they are protected by the law and also
they are treated equally with the majority. Notably, there would be no any kind of discrimination
among the citizens. Following from the abovementioned, the Indian Constitution provides for
many ways through which the minorities safeguard their rights some of which are the ideals
enshrined in the ‘Fundamental Rights’, ‘Directive Principles of State Policy’ and various other
articles and provisions.

One can argue that from the Articles 29 and 30 (Specific provisions for the minority community)
of the Constitution, the religious and linguistic minorities should be determined State-wise on the
basis of the numeric proportions of various communities in each State’.Though, it is equally true
to say that religious minorities should not be classified on the baisis of religion that violates the
true spirit of Indian constitution, that is 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. Therefore, it is crystal clear that, Indian Constitution and
other legislations have a significant role and are important source of guaranteeing the rights and
privileges of the minorities.
 7. BIBLIOGRAPHY

1. www.indiankanoon.org

2. timesnownews.com

3. m.jagranjosh.com

4. enotes.com

5. lawyerservice.in