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Mains Articles

Minorities in India: Their Constitutional Rights and Safeguards [Mains Articles]

Religion has no borders, Chief Justice of India Sharad A. Bobde said, as the Supreme Court dismissed a petition to recognise Hindus as minorities in the States where they are low in population.
By IT's Mains Articles Team
December 23, 2019

Contents

  • Why it was in News?
  • Who are the minorities?
  • Religious minority and Linguist minorities in India
  • Constitutional rights and safeguards provided to the minorities in India
  • United Nation (UN) and Minorities
  • About National Commission for Minorities
  • Sachar Committee Report
  • Minority rights day
  • Conclusion

Minorities in India: Their Constitutional Rights and Safeguards

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Why it was in News?

Recently, Supreme Court dismissed a petition to recognise Hindus as minorities in 8 States and UTs where they are low in population, to protect their culture and interests.

Minorities-in-IndiaTheir-Constitutional-Rights-and-Safeguards  Minorities in India: Their Constitutional Rights and Safeguards

As of now, the linguistic minorities are identified on a state-wise basis thus determined by the state government while the religious minorities are determined by the Central Government. (Linguistic minority is a class of people whose mother tongue is different from that of the majority in the state or part of a state).

Who are the minorities?

  • In common parlance, the expression “minority” means a group comprising less than half of the population and differing from others, especially the predominant section, in race, religion, traditions and culture, language, etc.

The Constitution of India does not define the word ‘minority’ anywhere.

  • However, Article 29 has the word “minorities” in its heading but refers to “any sections of citizens having a distinct language, script or culture”. This may be a whole community generally seen as a minority or a group within a majority community.
  • Article 30 speaks specifically of two categories of minorities – religious and linguistic.
  • The remaining two Articles – 350A and 350B – relate to linguistic minorities only.

Religious minority and Linguist minorities in India

Religious minority and Linguist minorities in India

  • Six communities, under Section 2(c) of the National Commission for Minorities Act, 1992, have been notified as minority communities by the Government of India: Sikhs, Muslims, Christians, Zoroastrians, Buddhists and Jains.

Linguist minorities are only at state level

  • The Supreme Court in TMA Pai Foundation & Karnataka (2002) has held that for the purpose of Article 30 a minority is determinable with reference to a state and not by taking into consideration the population of the country as a whole. Incidentally, ‘scheduled castes’ and ‘scheduled tribes’ are also to be identified at the state/UT level.

Constitutional-rights-and-safeguards-provided-to-the-minorities-in-India-1

Constitutional rights and safeguards provided to the minorities in India

  • The Union Government set up the National Commission for Minorities (NCM) under the National Commission for Minorities Act, 1992.

 ‘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.

Common Domain’, the Fundamental Rights – Part III of the Constitution

In the ‘common domain’, the following fundamental rights and freedoms are covered:

Minority-Rights-1

  • 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]

 Separate Domain’ of Minority Rights

  • 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 below Article 25]

Separate Domain’ of Minority Rights

Common Domain’, the Directive Principles of State Policy – Part IV of the Constitution

‘Directive Principles of State Policy’, as stated in Part IV of the constitution, 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:

  • To endeavour to eliminate inequalities in status, facilities and opportunities’ amongst individuals and groups of people residing in different areas;
  • To promote with special care’ the educational and economic interests of ‘the weaker sections of the people’ (besides Scheduled Castes and Scheduled Tribes);

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 Indian composite culture.’

United Nation (UN) and Minorities

  • A special Subcommittee on the Protection of Minority Rights appointed by the United Nations Human Rights Commission in 1946 defined the ‘minority’ as those “non-dominant groups in a population which possess a wish to preserve stable ethnic, religious and linguistic traditions or characteristics markedly different from those of the rest of the population.”
  • The Universal Declaration of Human Rights 1948 and its two International Covenants of 1966 declare that “all human beings are equal in dignity and rights” and prohibit all kinds of discrimination.
  • The UN Declaration against All Forms of Religious Discrimination and Intolerance 1981 outlaws all kinds of religion-based discrimination. The UN Declaration on the Rights of Minorities 1992 enjoins the states to protect the existence and identity of minorities within their respective territories among others.

United-Nation-UN-and-Minorities

About National Commission for Minorities

To evaluate development of minorities, the central government had constituted a non-statutory Minorities Commission in 1978.

  • In 1992, the National Commission for Minorities Act was enacted to provide for constitution of a statutory commission. Hence, the National Commission for Minorities was set up under the act in 1993.
  • The National Commission for Minorities (Repeal) Bill, 2004 repeals the National Commission for Minorities Act, 1992. Instead, the Constitution (103rd Amendment) Bill, 2004 proposes to establish a new National Commission for Minorities, with a constitutional status, in order to inspire greater confidence towards the effectiveness of the Commission.
  • Various States have also set up State Minorities Commissions in their respective States.

Why National Commission for Minorities Act, 1992 was repealed?

  • According to Articles 338, the union and every state government has to consult the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes on all major policy matters affecting the scheduled castes and the scheduled tribes respectively. Such a consultation is mandatory.
  • A corresponding provision was not in the National Commission for Minorities Act 1992. In the absence of such a provision, the government of the day may or may not consult the National Commission for Minorities on major policy matters. Therefore, the National Commission for Minorities Act 1992 was given statutory status with new law to instil a sense of confidence amongst minorities about protection of their interests.

The main functions of the National Commission for Minorities include:

  • Evaluating the progress of the development of minorities
  • Monitoring the working of the safeguards provided in the Constitution and in laws
  • Making recommendations for the effective implementation of safeguards for the protection of the interests of minorities
  • Looking into complaints regarding deprivation of rights and safeguards of the minorities
  • Conducting studies, research and analysis on the issues relating to socio-economic and educational development of minorities;

Composition of Commission

  • a Chairperson,
  • a Vice Chairperson and
  • Six Members to be nominated by the Central Government; provided that five members including the Chairperson shall be from amongst the minority communities.

Sachar Committee Report

In 2005 the then Prime Minister issued a Notification for the constitution of a High Level Committee, headed by Justice Rajindar Sachar, to prepare a report on the social, economic and educational status of the Muslim community of India.

Main Recommendations are: 

The Committee made a number of recommendations to address the status of the Muslim community in India, including:

Sachar-Committee-Report-1

  • Set up an Equal Opportunity Commission to look into grievances of deprived groups like minorities.
  • Create a nomination procedure to increase participation of minorities in public bodies.
  • Establish a delimitation procedure that does not reserve constituencies with high minority population for SCs.
  • Increase employment share of Muslims, particularly where there is great deal of public dealing.
  • Work out mechanisms to link madarsas with higher secondary school board.
  • Recognise degrees from madarsas for eligibility in defence, civil and banking examinations.
  • Create a National Data Bank (NDB) where all relevant data for various socio-religious categories are maintained.
  • Open high quality Urdu medium schools wherever they are in demand.
  • Set up a national Wakf development corporation with a revolving corpus fund of Rs 500 crore.

Minority rights day

  • To protect the rights of the minority communities every year on 18 December Minorities Rights Day is observed in India. The Day is celebrated by the National Commission for Minorities in India.

Minority-rights-day

  • The day marks the adoption of the “Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities” by the United Nations in 1992.

Conclusion

One can argue that from the Articles 29 (protection of the interests of minorities) and 30 (the right of minorities to administer educational institutions) 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’.

However, it is equally true to say that religious minorities should not be classified on religion bases, violating 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.

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