Protection of Rights of Minorities under the Constitution: An Evaluation

Rights of Minorities under the Constitution

Written by Neetu Lather

Introduction

India is a secular country, which means that the government is to treat all religious communities equally. The right to ‘profess, propagate and practice’ their religion is with all religious communities. The rights of minorities are provided in the Indian constitution to ensure their protection. On 18th December every year Minorities Rights Day has celebrated.[1] The findings of the Census of India 2020 laid down that Indian has an approximate population of 1.32 billion people, Indians (79.8%) followed Hinduism, (14.2%) Islam, (2.3%) Christianity, (1.7%) Sikhism, (0.9%) other (like tribal religions), (0.7%) Buddhism and (0.4%) Jainism.

Minorities

‘Minority’ term means the smaller part, showing less than half of the whole. The term minority is used relatively to understand different group’s relationships with each other and how they are present within a democracy. In Indian Constitution, the rights provided to minorities are given but the term minority is not clearly defined.

The term ‘minority’ is used only twice in the Constitution and in keeping with this understanding the Constitution of India through its various provision recognises; religious, cultural, linguistic minorities and belonging to a minority following a script of their own. Thus, the government vests the power to ascertain who constitutes a minority. Presently 6 religious communities have been listed as minority communities: Muslims, Buddhists, Zoroastrians (Paris’s), Christians, Sikhs, and Jains.

There is a lot of ambiguity concerning the determination of minorities due to legal lacunae which prove to be a huge limitation. For identifying minorities, no guidelines are laid down in any provision. The court in many cases aims at defining what minorities mean. Due to this, the term minority is differently interpreted by courts resulting in a variance in rulings. [2]

In the Kerala Education Bill, 1957, and additionally in the Guru Nanak University case (1975), the SC laid down that a religious or linguistic minority would be determined concerning the legislation which was to be disputed and not the entire country. As if the state law is legislation under dispute, then the minorities’ will be determined concerning the state population.

Protection of rights of minorities under the constitution

The constitutional rights of minorities can be categorised as common domain and separate domain. ‘Common domain ‘rights are enjoyed by all the citizens of our country. ‘Separate domain’ rights are enjoyed by the minorities only and these rights protect the identity of the minorities.

Common Domain

  1. The Directive Principles of State Policy (DPSP) (Part IV of the Indian Constitution)
    • State’s obligation to try to get rid of inequalities in status, facilities and opportunities’ amongst individuals as well as groups of people engaged in different vocations’ or residing in different areas [Article 38 (2)];
    • State’s obligation to promote the interest, economic and educational of ‘the weaker sections people with special care (besides SC’s & ST’s) [Article 46];
  1. Fundamental Duties (Part IV A of the Indian Constitution)
  • In Article 51A minorities’ relevance is mentioned in Art51A (e) is the duty of citizens to encourage the feeling of common brotherhood and harmony amongst all the people of India; Art51A (f) duty of citizens to value and preserve the rich heritage of our culture.
    • The Fundamental Rights (Part III of the Indian Constitution)
    • ‘Equality before the law’ and ‘equal protection of the laws’ as of right to People(Article 14);
    • Prohibition of discrimination against citizens on grounds of religion, race, caste, sex, or place of birth [Article 15 (1) & (2)]; State’s authority to make special provisions for the improvement of any educationally and socially backward classes of citizens’ (besides  SCs and STs) [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)]; State’s authority to make any provision for the reservation in posts or appointments of any backward class of citizens which, according to the State is not properly represented in the services. [Article 16(4)].
    • In accordance with morality, public order, and other FRs, people’s right to freely profess, practice, and propagate religion and freedom of conscience [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, own and acquire movable and immovable property and administer it ‘under law’, and ‘manage its affairs in matters of religion’ [Article 26];
    • Prohibition on forcing any person to payment of taxes for promotion of any particular religion [Article 27];
    • People’s ‘freedom to visit at religious worship or religious instruction in educational institutions’ [Article 28].

Separate Domain

  1. The Fundamental Rights (Part III of the Indian Constitution)
  • 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, ‘on grounds only of race, caste, religion, language or any of them to any educational institution aided or maintained by the State funds [Article 29(2)];
  • Right of all religious and linguistic minorities to establish and administer educational institutions of their choice [Article 30(1)]; Right minorities have for compensation in case of compulsory acquisition [Article 30(1-A)](added by the 44th amendment); Minority-managed educational institutions freedom from discrimination in the case in which receiving states aid from the State [Article 30(2)];
  • Minority educational institutions can avail of financial aid from the state without discrimination. The right to administer educational institutions of their choice will be with a religious community if it’s established by them, but not otherwise. [3] A minority can claim the benefits of Art30 only if the person is residing in India. Thus, the ambit or scope of Art29 is wider than that of Art30 as laid down in the Constitution of India. [4]
  • Art30 (1) benefits can be claimed if the community shows two things namely, that it is a linguistic or religious minority and that the institution was established by it. The benefit of Article 30(1) can’t be claimed without fulfilling any of these conditions. [5] The object of giving the rights to minorities is to confirm equality between the majority and the minority under Article 30. If the minorities are not given such special protection then it is a denial of equality. [6]
  • Special provision relating to the language spoken by a section of the population of any State [Article 347];
  • Provision for a Special Officer for linguistic minorities and his duties [Article 350 B]; Provision for facilities for instruction in mother-tongue at primary stage [Article 350 A]; and
  • Sikh community’s right of ‘wearing and carrying kirpans’ [Article 25].

From time to time with unique and multiple challenges, it becomes a necessity to look into the special needs of the minority communities separately and accordingly provide provisions in the many national Five Year Plans for their welfare & development. Some of these efforts have been discussed herein: Minority Commission; The Sachar Committee; Rangnath Mishra commission; Minority Welfare Committees; national level Coordination Committee; the National Rural Employment Guarantee Act (Scheme), the PM RozgarYojana and the GrameenRozgarYojana.

The National Commission for Minorities Act, 1992 was amended in 2006 leading to the establishment of the Ministry of Minority Affairs; Prime Minister’s 15 Point Programme for the Welfare of Minorities introduced in June 2006, a notice of guidelines for implementation of Prime Minister’s New 15 Point Programme for the Welfare of Minorities was issued on 11 Feb 2021.[7]

The 15 Point Programme includes schemes, which are amenable to earmarking, are ICDS (Integrated Child Development Services Scheme) by providing services through the Anganwadi Centres (Ministry of Women & Child Development); Aajeevika (Ministry of Rural Development); Swarnajayanti Shahari Rojgar Yojana (SJSRY) (Ministry of Housing & Urban Poverty Alleviation); Upgradation of Industrial Training Institutes (ITIs) (Ministry of Labour & Employment); Sarva Shiksha Abhiyan (SSA); Kasturba Gandhi Balika Vidyalaya Scheme (KGBV) (Ministry of Human Resources Development);  and Bank credit under priority sector lending (Department of Financial Services);

Multi-sectoral Development Programme (MsDP) These are Merit-Cum -Means scholarship scheme, Pre and post-matric scholarship scheme, Maulana Azad National Fellowship, Free Coaching and Allied Scheme etc; Leadership Development of Minority Women Scheme,  has started the implementation of this scheme from the year 2012-13; National Minorities Development and Finance Corporation (NMDFC) provides for concessional loans to persons of minority communities for self-employment and income-generating activities, who’s family income is less than double the poverty line through NGOs and State Channelizing Agencies (SCAs).

Issues faced by minorities

Some issues are faced by minorities such as lack of the political will to implement provisions; Discrimination and prejudice; fear of marginalization and strive for the preservation of disparate social and cultural life; Need for protection when tension arises; Communal riots; Insecurity towards “secularism”; Lack of accountability in communal violence cases; Arbitrary arrests of minorities; The need for amendments in the rights already available;

Problems for Indigenous minorities who are not included in the list of minorities as these minorities cannot avail certain rights that are available to other minorities; Need to amend the National Commission for minorities with powers enabling it to deal with cases about violence against minorities as the commission’s powers are only restricted to summon witnesses, Owing to a large number of cases pending before courts it becomes rather difficult for them to deal with cases; Possible misuse of existing rights of minorities.

Conclusion

The purpose of rights granted to minorities is to diminish them and place them on a standard level same as 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.

But there is deprivation in the political will reinforcing of these constitutional values by strengthening and fortifying them, most political organizations politicize religious and communal issues to their advantage. Secularism and equality by themselves may be unable to stand as a foundational concept; so, there is a need for stronger political will to meet the challenges faced by these concepts.[8]

About the Author

Protection of Rights of Minorities under the Constitution: An Evaluation

Neetu Lather

Student at Vivekananda School of Law and Legal Studies, VIPS.

She has participated in various academic events including moot court Competitions and completed the Legal Drafting and Office Management Course at Vivekananda Institute of Professional Studies. Her areas of interest and research work are Constitutional Law, Competition Law, Criminal Law, Intellectual Property Rights and International law.


[1]Aishwarya Javalgekar, Minority Rights in India, ACADEMIA,(16Sep2021),

https://www.academia.edu/24454308/Minority_Rights_in_India_A_Summary

[2] Rachit Garg, Protection of rights of minorities under the Constitution: an evaluation,(17Sep 2021), https://blog.ipleaders.in/protection-rights-minorities-constitution-evaluation/

[3] S. Azeez Basha and Anr v. Union Of India (1968)

[4] S.K Patro v. State of Bihar AIR19689 Pat 394

[5] S.P Mittal v. Union of India 1983 SCR(1) 729

[6] Ahmedabad St. Xavier’s College v. State of Gujarat, AIR 1974 SC 1389

[7] GUIDELINES for implementation of Prime Minister’s New 15 Point Programme for the Welfare of Minorities,(17 Sep 2021), https://minorityaffairs.gov.in/sites/default/files/pm15points_eguide.pdf

[8]Saika Sabir, Constitutional rights of minorities,(17Sep2021), https://dom.karnataka.gov.in/storage/pdffiles/Sir%20Syed%20Ahmed%20Khan/CONSTITUTIONAL%20RIGHT%20OF%20MINORITIES%20-%20by%20Saika%20Sabir.pdf

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