A Perusal Of Minority Rights In India

 The author of this blog is Niharika Kumari, student of 3^rd year, BBA LLB (H) from Chanakya National Law University, Patna

Introduction 

The Constitution of India was adopted and passed on 26^th November, 1949 by the constituent assembly and later enforced on 26 January 1950 which is nearly 71 years ago. The Indian constitution grants fundamental rights specially to the Minorities in India but the term “Minority” itself is not defined in Constitution. Section 2(c) of the National Commission of Minorities Act, 1992, defines minority as a community notified as such by the Central Government[i] and it includes Muslims, Sikhs, Christians, Buddhists, Jain and Zorastrians (Parsis)[ii]. However, according to UNHRC “A Minority is a national or ethnic, religious or linguistic group, fewer in number than the rest of the population, whose members share a common identity.[iii].”

Constitutional Provisions

Articles 29 to 31 of Part III of the Constitution describes the Cultural and Educational Rights which are legally enforceable by Law.

Article 29(1) guarantees the Right of ‘any section of the citizens’ to ‘conserve’ its ‘distinct language, script or culture’ and Clause (2) of it prohibits denial of admission to educational institutions which are aided by the state on the ground of race, caste, religion or language protection[iv]. In the case of State of Madras v. Champakam[v], the question of Article 29(2) was challenged as Madras government by an order fixed the proportion of student based on caste and religion and later on the Supreme Court (as hereinafter referred as SC) held this to be inconsistent.  In another case of TMA Pai Foundation v. State of Karnataka [vi], SC held that the State Governments cannot regulate unaided institution’s admission.

Article 30(1) recognises two types of minorities: Religious and Linguistic, and grant them the right to establish and administer educational institution[vii]. In the case of S.P Mittal v. UOI[viii], where the validity of the Auroville Act, 1980 was challenged, the Court held that Article 30(1) can only be claimed by a community when they are a religious and linguistic minority and the institution was established by them.  In DAV College, Bathinda v. State of Punjab [ix], The court held that Article 30 also includes the right of giving instructions in their own language within a minority educational institute. In Azeez Basha v. Union of India[x], the SC held that an educational institution, which is not established by the minority community gives them no right to direct it, as the minority status of AMU had already struck down in Dr. Naresh Agarwal v. UOI[xi] case.  Article 30(2) further prohibits the State in granting aid to discriminate against any educational instate under the ground of management by minority[xii].

In addition, Articles 19(1)(g) and 26(a) make no distinction between majority and minority communities helping minorities to combat against discrimination. Article 347 provides power to the President to officially recognize a language, which belongs to a substantial population. Articles 331, 333, 334, 336, and 337 recognises the special provisions which guarantee the representation of Anglo Indians in Union and State legislatures. Article 350(B) gives provision for appointing a Special Officer for linguistic minorities.

The dual test criterion 

In Rev. Sidharjbhai[xiii] case, a six-judge bench of the SC held that every government regulation in respect of a minority educational institute shall only be valid when it satisfies the dual test, i.e., it is regulative and not destructive of the organisation’s minority character and it makes the minority institution an effective vehicle of minority education.

Re: Kerala Education Bill[xiv]: The bill provided certain laws which were securing salaries, condition of the services of the teachers and this was equally made applicable to the minority educational institution. The minority institution claimed that it was violating their administrating power. The Supreme Court held that in the name of minority rights they cannot exploit the teachers and the State is ensuring the reasonable protection of these teachers by ensuring minimum salaries and qualification.

Minorities rights under International Law 

Article 27 of the International Covenant on Civil and Political Rights specifically refers to minorities. It provides that persons who belong to minorities ‘shall not be denied’ the right ‘to enjoy their own culture, to profess and practice their own religion, or to use their own language’[xv]. In addition, Article 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides the right of everyone to education and ensures the right to choose educational institute by parents and legal guardians[xvi]. Further, the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities provides guidelines to be followed by countries to ensure the rights of minorities which include the right to participate in cultural, religious, social, economic and public life; right to establish and maintain their own associations; and right to profess and practise their own religion, and to use their own language, in private and in public freely and without any discrimination etc[xvii].

Conclusion 

The minorities are mostly the vulnerable community and their protection and development are necessary to promote them to preserve their culture, identity and religion. Therefore, the Constitution of India provides different fundamental rights in this respect which ensures their safety but at the same time, it is also important to check that these rights are not being misused. For instance: a student from a non-minority community should not be compelled to attend any religious prayers and events.

---

[i] The National Commission for Minorities, 1992 (Act 19 of 1992), s. 2(c).

[ii] Multi-sectoral Development Programme (MsDP) for Minority Concentration Areas, available at: https://www.minorityaffairs.gov.in/sites/default/files/MsDP%20%28FAQs%29.pdf (last visited on June 26, 2021).

[iii] Minorities and Indigenous Peoples- UNHRC, available at: https://www.unhcr.org/minorities-and-indigenous-peoples (last visited on June 16, 2021).

[iv] The Constitution of India, art. 29, cl. 1&2.

[v] State of Madras v. Champakam, AIR 1951 SC 226.

[vi] TMA Pai Foundation v. State of Karnataka, Air 2003 SC 355.

[vii] The Constitution of India, art. 30, cl. 1.

[viii] S.P Mittal v. U.O.I, AIR 1983 SC 1.

[ix] DAV College, Bathinda v. State of Punjab, AIR 1971 SC 1731.

[x] Azeez Basha v. Union of India, 1968 AIR 662.

[xi] Dr. Naresh Agarwal v. UOI, 2005 (4) AWC 3745.

[xii] The Constitution of India, art. 30, cl. 2.

[xiii] Rev. Sidhajbhai Sabhai and Others vs State of Bombay and Anr,1963 AIR 540.

[xiv] Re: The Kerala Education Bill, vs Unknown, 1959 1 SCR 995.

[xv] Provisions in the International Covenant on Civil and Political Rights, 1976, art. 27.

[xvi] International Covenant on Economic, Social and Cultural Rights, 1976, art. 13.

[xvii] Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992, art. 3.