MINORITY RIGHTS IN INDIAN CONSTITUTION

INTRODUCTION

“No democracy can long survive which does not accept as fundamental to its very existence the recognition of the rights of minorities”.

These lines of sir. Franklin D. Roosevelt clearly portrays the importance of protection of the rights of minorities in a democracy. Long years back, due to the fear of adversity of religious persecution the minorities like Muslims, Christians, and Anglo- Indians etc. fled to India seeking an asylum. Later, India became an amalgamation of all these ethnic and religious diversities. But at the same time, the intolerance of diversity in culture had led to shedding of lots of blood and lives. So, as a result of the suggestion put forward by Pt. Jawahar Lal Nehru, the constituent assembly on 22nd January 1947 adopted the safeguard mechanism for the minorities, depressed backward classes and tribal areas of the country.

Even though many rights and provisions were formulated under the “Special Provisions Relating to Minorities” in article 292-301 of part XIV of the constitution but it got restricted to cultural and educational rights. The constitution got implemented under the rationale of constituent assembly of promoting development of backward classes but not to reserve the cultural personalities. This led to the lack of representation of religious minorities in politics; civil services etc. later the preamble was amended under 42nd amendment 1976 by including the word secular in constitution thus it led to the addition of certain constitutional provisions for minorities. But even though we states India to be secular, there is a sense of crisis that the minorities face in the country. In a democratic country like India, if the minorities are provided with proper rights and regulations and if they are able to have a proper access towards their rights it depicts the acceptance of diversity and thus makes the word “democracy” more meaningful.

DEFINITION  OF MINORITY

The word “minority” is not defined in Indian constitution. However the constitution under article 30(1) refers minorities as linguistic and religious minorities. In the Kerala education Bill, Supreme Court stated that: “it is easy to say that minority means a community which is numerically less than 50 per cent, the important question is 50 per cent of what? Should it be of the entire population of India, or of a state, or a part thereof? It is possible that a community may be in majority in a state but in a minority in the whole of India. A community may be concentrated in a part of a state and may be thus be in majority there, though it may be in minority in the state as a whole. If a part of a state is to be taken, then the question is where to draw the line and what is to be taken into consideration a district, town, a municipality or its wards”.

CONSTITUTIONAL AND LEGAL PROVISIONS RELATED TO MINORITIES

India, the second most populous country in the world embraces huge number of individuals belonging to different religion, language and culture.  Here 19% of the population of the country is constituted by their religious minorities like: Muslims, Christians, Sikhs, Buddhists, Jains and Zoroastrians. The rights on religious freedom are explicitly expressed in Indian constitution under articles 25- 28. It’s not only under the provision of religious freedom but also under the other fundamental rights as well the rights of minorities are interpreted. They are:

ARTICLE  15

  • Article 15 (1) prohibits the state from the discrimination against any citizen on the grounds of religion, caste, race, place of birth and sex.
  • Article 15 (2)  states that no citizen shall be subjected to any disability, restriction, or condition regarding the access to shops, public restaurants, hotels and place of public entertainment or the use of  wells, tanks, bathing Ghats, roads and places of public resort, maintained wholly or partially out of State funds or dedicated to the use of the general public.

As these sub clauses referred above defines the core meaning of article 15, the article 15 (3), 15(4), 15(5), 15(6) laid down the exemptions provided for 15(1) and 15(2).

  • Article 15 (3) states that the State can make special provision for women and children. It is under this provision that courts have upheld the validity of legislation or executive orders discriminating in favour of women.
  • Article 15 (4) states that the state can make provisions for the advancements of   social and educationally backward citizens, scheduled caste and scheduled tribes.
  • Article 15 (5) was inserted in Indian constitution under the 93rd amendment act, 2005 which enables the state to make provisions for the progress of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.  
  • Article 15(6) was inserted in the constitution under 103rd amendment act, 2019. It states that nothing in the article  or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making, (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. Of the total seats in each category.

Article 15 prohibits discrimination against any citizens on the basis of caste, sex, religion, place of birth etc. this article was amended by 93rd  amendment, 2005 for providing reservations to SC, STs and backward classes in private unaided educational institutions.

ARTICLE 17

Under this article, untouchability is abolished and practising it in any form is punishable. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with the law.

ARTICLE 25

This article refers to the freedom of conscience and free profession, practice and propagation of religion. The sub clause (1) of this article states that: “subject to public order, morality and health and to other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice ad propagate a religion”.

ARTICLE 26

The article states about the freedom to manage religious affairs subject to public order, morality and health, every religious denomination or any section thereof  shall have the right:

  • To establish and maintain institutions for religious and charitable purposes;
  • To manage its own affairs on the matters of the religion;
  • To own and acquire movable and immovable property;
  • To administer such property in accordance with law.

ARTICLE  27

The article confers on freedom as to payment of taxes for the promotion of any religion. No person shall be compelled to  pay any taxes, the proceeds of which are specifically  appropriated in the payment of  expenses for the promotion or maintenance of any particular religion or religious denomination.

ARTICLE 28

Under the article it is stated that the freedom as to the attendance at religious instruction or religious worship in certain educational institutions.

These articles from article 25-28 states about religious rights of every individual who is a citizen of India. But these articles are quite relevant in this era where religious persecutions towards minorities takes place.

ARTICLE 29

It refers that every citizens residing in any part of the country, belonging to any sections,, having distinct language, script or culture have the right to preserve it. Unlike the article 25-28, this article provides protection for both the linguistic and religious minorities. And the word “ sections” used in the article states that the law is also applicable for the majority as well.

ARTICLE  30

This article states that the minorities shall have the right to establish and administer educational institutes of their choice. Unlike article 29, this article is only applicable to linguistic or religious minorities.

ARTICLE 350-B

This article was inserted for the appointment of special officer for minorities by the president to investigate and carry out activities related to safeguarding the rights of linguistic minorities.

CASE LAWS

  1. ST. Xavier’s college vs. state of Gujarat [1]: in this case supreme court had stated that the spirit behind the article 30 (1) is the conscience of nation that the minorities, religious as well as linguistic are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general education to make them complete women and men of the country.
  • S.P. Mittal vs. Union of India[2]: in this case, the supreme court had stated that :

In order to claim the benefit of article 30(1), the community must show:

  • That it is religious or linguistic minorities.
  • That the institutions are established by it.
  • Andhra Pradesh Christian medical association vs. government of Andhra Pradesh [3]: it was held by the court that the institution in question was not a minority institution. The court classified that the protection of article 30(1) is not available if the institution is a mere cloak or pretension and the real motive is business adventure.

SOCIO- ECONOMIC PROBLEMS FACED BY  MINORITIES IN INDIA

Whether it be religious or linguistic, the major issues that are faced by all sections of minorities are similar.  If we are taking the case of human nature, we are quite hostile towards the aspects that disturb our uniform pattern of life. Whatever it be, we seem to get intimidated and reluctant to adapt or co- exist with the arrival of differences in our surroundings. It really requires a huge amount of time to get adapted to it. Just like that, in case of minorities, they face a huge struggle of identity due to this reluctance in accepting diversities by majorities. Most of the time, due to the difference in cultural, social and economic background the minorities are forced to adjust with the means of majority. And again it’s a common human nature to exert power over weaker by the stronger. A minority being less in number compared to the majority group of people develops a sense of insecurity regarding their existence, property and wellbeing. These issues of identity and security are common to both religious and linguistic minorities.  But there are certain issues that certain religious minorities face in India. In India, despite being a secular country, religion is still a complex issue.  There are a lot of changes that had taken place during the course of past few decades. Minorities now enjoy equal rights on par with the majority group in India. The reservation facilities are provided for minorities, representations at political level are also available, the discrimination at religious centres are now abrogated under law and both our president and prime minister are now hailing from the minority communities. But still there are lots of people who aren’t accessible to these rights. There are lots of persecutions on the basis of caste and religions that still take place.  The major reason behind all the issues are our intolerance or unacceptance to adapt or co- exists with the situation.

CONCLUSION

In a vast country like India which is made up of diverse cultures, backgrounds, religions, identities etc. it really requires to maintain a sense of equality among its citizen to provide a meaning to the term democracy. The core reason behind all these discrimination are based on the nature of unacceptance of diversities. We tend to commit heinous crimes to eradicate the population which chooses a different set of traditions to follow. But these intolerance can lead India to get collapsed from being a secular country to communal. And India is known to the world by the term “diversity”. It is beautiful when the people irrespective of their differences are co-existing.

END NOTES

  1. 1975 SCIR (1) 173.
  2. 1983 SCR (1) 729.
  3. 1986 SCR (2) 749.
  4. https://indiankanoon.org/
  5. CONSTITUTIONAL LAW OF INDIA: J.N PANDEY
  6. https://blog.ipleaders.in/minority-rights-constitution-india/

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This article is written by, Nourien Nizar, Government law college, Ernakulum, Kerala.

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