Bharati Law Review

(B.L.R.)
Quarterly Journal

Volume II - Issue 3
Jan.-Mar., 2014
Free Distribution

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Editorial

Future empires are empires of mind. A prosperous

country is one which has more intellectual property than
material property; number of patents are more
meaningful than number of missiles. Innovation,
excellence and inclusion are prime concerns of every
society and in particular for any profession.

Legal profession in particular demands new ideas,

interpretation and great intellect. Law changes with the
change in the society. Law is not an antique to be taken
down, dusted, admired and put back on the shelf. It is a
dynamic instrument for bringing about development; the
development which is not confined to economic growth,
but reaches out to every human being in the country. The
focus of law must be human beings. Law is not abstract; it
is not a set of mechanical rules. It has a social purpose and
an economic mission. Therefore, in a developing country
like India, law must be dynamic and not static. Law must
not be inhibited by the past; it must look out into the
future, and satisfy the hopes, aspirations of the people. As
observed by Cardozo: “The inn that shelters for the night is
not the journey's end, law like the travelers must be ready
for tomorrow.”

The intellectuals of the society owe a moral duty to review

and redesign the law as per the demands of the society.
Researchers are true parents of modern legislation. One
idea, one innovation and one new interpretation can
change the lives of millions. Justice for all is justice for me.

Through Bharati Law Review every effort has been taken

by us to inspire the young researchers to pen down their
thoughts of innovations to promote quality in the content
of law. Laws are not dead letters; they must breathe for
the society.

Prof. Dr. Mukund Sarda

B.Sc, LL.M (Gold Medalist), Ph.D, NET

Dean, Faculty of Law,

Principal, New Law College,
Bharati Vidyapeeth Deemed University, Pune.
 BHARATI LAW REVIEW
Vol. II - Issue 3
Jan.–Mar., 2014

SPECIAL ISSUE ON

“HUMAN RIGHTS: ISSUES OF

MINORITIES IN CONTEMPORARY INDIA”

CONTENTS

ARTICLES

Role Played by Indian Judiciary in Protection and 1-10

Promotion of Minority Rights: An Analysis
Dr. Shilpa Jain

Minority Rights under Indian Constitution: A 11-27

Critical Analysis
Dr. Saroj Bohra

Minority Educational Institutions in India: 28-36

Constitutional and Judicial Perspectives
Dr. Naresh V. Waghmare

Institutional Framework for Protection of 37-49

Minorities in India: An Analysis
Dr. Sunita Adhav

Minorities, Constitution and the Law 50-57

Dr. Rajeshri N. Varhadi

Minority Rights and the Indian Constitution 58-75

Dr. M.N. Phad

Minority Rights and the Indian Constitution 76-85

Ms. N. Jayalakshmi

Minority Rights and Personal Laws in India: An 86-102

Analysis
Ms. M.S. Pande
Rights of Religious Minorities to Establish and 103-114
Administer Educational Institution: Law, Extent
and Limitations
Mr. Ashok Wadje

Right to Freedom of Religion and Secularism: 115-124

Some Judicial Reflections
Mr. Gyanendra M. Fulzalke

Human Rights Issues of Victims of Violent 125-144

Crimes: Restless Waiting for Recognition as
Minority
Mr. Sukdeo Ingale

The Protection of Cultural Rights of Minorities in 145-157

India: An Analysis of Constitutional Command
Mr. Abhijeet Ramkrishna Dhere

Minority: Examining the Concept 158-180

Mr. Vinod Shamrao Pawar

Issue between Orthodox and Jacobite Christian 181-190

Factions in India: A Human Rights Concern
Mr. Jino M. Kurian

Minorities in India: Problems and Perspective 191-207

Mr. Siddhartha Srivastava

Educational Rights of Minorities in India: 208-220

Reflection on Articles 29 and 30 of the
Constitution
Ms. Subhashini Narayanan

Constitutional Privileges to the Minorities in 221-242

Respect to the Education: A Reflection on Article
30 of the Constitution of India
Ms. Masumi Nanavaty

Human Rights of Minority Women 243-252

Ms. Shatakshi Anand

Essay on Minority Rights and Indian Constitution 253-263

Ms. Megha Dugar

Minority Rights and the Indian Constitution 264-280

Ms. Uplabdhi Gupta
Ms. Suchita Bais
Minorities Rights vis-à-vis Judicial 281-298
Pronouncements
Mr. Ritesh Kumar Sharma
Mr. Nikhil Saini

Educational Status of the Indian Muslims: A 299-315

Question Mark on Secular India?
Ms. Kanika Middha
Ms. Sanskriti Mall

Role of State and Police in the Wake of Communal 316-329

Riots
Ms. Nayanika Ruia
Mr. Pranav Gupta

Rights of Linguistic Minorities and Political 330-338

Influence
Ms. Manvi Damle
Ms. Apeksha Sizaria

Role of State and Police in the Wake of Communal 339-355

Rights
Ms. Gagandeep Sobti
Ms. Aadya Dubey

Minority Rights and its Reflection in the Indian 356-367

Democracy
Mr. Vivaswan Awasthi
Ms. Ranjani Jagannath

Minority Rights and Education 368-379

Mr. Aditya Mishra
Mr. Suresh Khadav

Secularism to Protectionist Regime: A Critical 380-397

Analysis
Ms. Nabeela Siddiqui
Mr. Mohd. Haider Abbas

Secularism: A Tool for Uniting or Dividing 398-414

Mr. Siddharth Nandwani
Mr. Bhaskar Bhushan
Bharati Law Review, Jan.-Mar., 2014 1

ROLE PLAYED BY INDIAN JUDICIARY IN PROTECTION

AND PROMOTION OF MINORITY RIGHTS: AN ANALYSIS

Dr. Shilpa Jain*

“All the rights secured to the citizens under the

Constitution are worth nothing, and a mere bubble,
except guaranteed to them by an independent and
virtuous Judiciary.”
-Andrew Jackson

Introduction

The prevention of discrimination seeks to secure that

everyone, as individuals, are treated on an equal basis. In
the human rights system the state is the nexus or the
focal point, where the rights are organized and balanced.
The duty of the state imposes an obligation on the state
not to discriminate, protect individuals against social
discrimination and to take affirmative action in order to
compensate for past discriminations.1

Almost all States have one or more minority groups

within their national territories, characterized by their
own ethnic, linguistic or religious identity which differs
from that of the majority population. Harmonious
relations among minorities and between minorities and
majorities and respect for each group’s identity are a
great asset to the multi-ethnic and multi-cultural
diversity of our global society. Meeting the aspirations of
national, ethnic, religious and linguistic groups and
ensuring the rights of persons belonging to minorities
acknowledges the dignity and equality of all individuals,
furthers participatory development, and thus contributes
to the lessening of tensions among groups and
individuals.

* Assistant Professor, Rajiv Gandhi National University of Law,

Punjab.
1 Srivastav V.P., Human Rights Issues and Implementations (Indian
Publishers Distributors, Delhi) 2004, Vol.1.
Bharati Law Review, Jan.-Mar., 2014 2

Minority rights have gained greater visibility and

relevance all over the world. India is no exception to it
being a multi-ethnic, multi-religious, multi-linguistic and
multi-cultural society. Diversity of all types is the very
soul of India. It is in this context that minority rights
have assumed added significance in post-independence
India. When India attained independence after its division
on religious lines, religious minorities became very
apprehensive of their identity. In order to compensate the
members of discriminated groups who were placed at a
disadvantage Article 15(1)2 of the Constitution of India
specifically bars the State from discriminating against
any citizen of India on grounds only of religion, race,
caste, sex, place of birth or any of them. Further, Article
29(2) also guarantees protection to citizens against State
action which discriminates admission to educational
institutions on ground of religion, race, caste or any of
them. This being the position, soon after the coming into
the force of the constitution, challenges were made to
governmental programmers aimed at making special
provision for weaker sections of society in the field of
education and housing.

Defining Minority

The term “minority” shall include only those non

dominant groups in a population which possess and wish
to preserve ethnic, religious or linguistic traditions or
characteristics markedly different from those of the rest
of the population.3

Louis Wirth defined a minority group as "a group of

people who, because of their physical or cultural
characteristics are singled out from the others in the
society in which they live for differential and unequal
treatment and who therefore regard themselves as objects
of collective discrimination."4

2 Art. 15(1): The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of
them.
3 Supra note1.
4 “The Problem of Minority Groups", p. 347 in Ralph Linton (ed.), The
Science of Man in the World Crisis. New York: Columbia University
Press, 1945.
Bharati Law Review, Jan.-Mar., 2014 3

According to Francesco Capotorri UN Special

Rapporteur in his report5 has laid down what constitutes
a minority: A group, numerically inferior to the rest of
the population of a State, in a non-dominant position,
whose members-being nationals of the State- possess
ethnic, religious or linguistic characteristics differing
from those of the rest of the population and show, if only
implicitly, a sense of solidarity, directed towards
preserving their culture, traditions, religion or language.

Protection and Promotion of Minority Rights: Role

Played by Indian Judiciary

“A democracy is nothing more than mob rule, where fifty-

one percent of the people may take away the rights of the
other forty-nine.”
--Thomas Jefferson

The Indian Judiciary is playing the role of safeguarding

the rights of the forty nine who are in minority in India
and have been on disadvantaged position .When the
Constitution of India under Article 15(1) and further
under Article 29(2) gave protection to the minorities
challenges were made to governmental programmers
aimed at making special provision for weaker sections of
society in the field of education and housing. Two judicial
decisions, one of the Supreme Court and the other of the
Bombay High court led to the first Amendment of the
constitution in 1951.

The first Supreme Court decision in State of Madras v.

Champakam Dorairajan6: This case was with regard to
admission of students to the Engineering and Medical
Colleges of the State, the Province of Madras had issued
an order (known as the Communal G.O.) that seats
should be filled in by the selection committee strictly on
the following basis, i.e., out of every 14 seats, 6 were to
be allotted to Non-Brahmin (Hindus), 2 to Backward
Hindus, 2 to Brahmins, 2 to Harijans. 1 to Anglo-Indians
and Indian Christians and 1 to Muslims:

5 Study on the Rights of Persons belonging to Ethnic, Religious and

Linguistic Minorities UN Document E/CN.4/Sub.2/384/Add.1-7
(1977).
6 AIR 1951 SC 226.
Bharati Law Review, Jan.-Mar., 2014 4

Held by the Full Court that the Communal G.O.

constituted a violation of the fundamental right
guaranteed to the citizens of India by Art. 29 (2) of the
Constitution, namely, that: "No citizen shall be denied
admission to any educational institution maintained by
the State or receiving aid out of the State funds on
grounds only of religion, race, caste, language or any of
them and was therefore void under Art.13. The directive
principles of State policy laid down in Part IV the
Constitution cannot in any way override or abridge the
fundamental rights guaranteed by Part III. On the other
hand they have to conform to and run as subsidiary to
the fundamental rights laid down in Part III.

In Jagwant Kaur v. State of Bombay7: In this case an

order of the collector of Poona under Sec 5 of the Bombay
Land Requisition Act for requisitioning Some land in
Poona for establishment of a Harijan camp was
challenged as violation of Article 15(1). The basis of
challenge was that a colony intended for the benefit only
of Harijans was discriminative under the above
Constitutional provision. Further it was held that Article
46 could not over ride a fundamental right. Consequently
the order was declared void.

At the time of decision in the case (18-2-1952)

presumably, the first amendment had not come into
effect Chief Justice Chagla had observed, “We may that
after the amendment it would be possible for the State to
set up a Harijan colony in order to advance the interest of
the backwards class. But till that amendment was
enacted as Article 15 stood, it was not competent for the
State to discriminate in favour of any caste or
community. Thus it may be pointed out that it was these
two decisions, which led to the amendment of Article 15.
The first amendment incorporated clause 4 to Article 15
empowering the State, to make special provisions for the
advancement of any socially educationally backward
classes of citizens or for the Schedule Castes and
Schedule Tribes, despite Article 15(1) or clause(2) of
Article 29. The object of first constitutional amendment
was to bring Articles 15 and 29 in line with Article 16(4)

7 AIR 1952 Bom. 461.

Bharati Law Review, Jan.-Mar., 2014 5

which empowers the State to make Special Provisions for

the backward classes in matters of public employment.

The addition of clause 4 to Article 15 opened doors for

several petitions before the court and the courts have
wavered on the interpretation of this clause in several
cases. The reason behind this is that the constitution
does not state who are to be covered under "backward
classes" and there can be how much reservation. But the
constitution is not silent it allows the president to set up
a commission to investigate into the condition of people
in states and then classify them as backward under art
3408, as required. Additionally Art. 3359 says that special
provisions for SC/STs should be taken into
consideration, consistently with the efficiency of the
services.

Contribution of Judiciary in Changing the Direction

of Reservation in India

There has been a series of cases after the addition of

clause 4 to Article 15 and these cases gave rise or
directions to Reservation system in India. In Balaji v.

8 Article 340: Appointment of a Commission to investigate the

conditions of backward classes.
(1) The President may by order appoint a Commission consisting of
such persons as he thinks fit to investigate the conditions of socially
and educationally backward classes within the territory of India and
the difficulties under which they labour and to make
recommendations as to the steps that should be taken by the Union
or any State to remove such difficulties and to improve their
condition and as to the grants that should be made for the purpose
by the Union or any State the conditions subject to which such
grants should be made, and the order appointing such Commission
shall define the procedure to be followed by the Commission.
(2) A Commission so appointed shall investigate the matters referred to
them and present to the President a report setting out the facts as
found by them and making such recommendations as they think
proper.
(3) The President shall cause a copy of the report so presented together
with a memorandum explaining the action taken thereon to be laid
before each House of Parliament.
9 Article 335: Claims of Scheduled Castes and Scheduled Tribes to
services and posts The claims of the members of the Scheduled
Castes and the Scheduled Tribes shall be taken into consideration,
consistently with the maintenance of efficiency of administration, in
the making of appointments to services and posts in connection with
the affairs of the Union or of a State.
Bharati Law Review, Jan.-Mar., 2014 6

State of Mysore10 it was held that reservation cannot be

more than 50%, the classification of backward and more
backward is invalid and caste cannot be the only criteria
for reservation because Art. 15(4) talks about class and
class is not synonymous with caste. So other factors
such as poverty should also be considered.

Further Supreme Court held the "carry forward rule" as

unconstitutional in the case of Devedason v. Union of
India11. As per carry forward rule posts that could not be
filled due to lack of candidates in backward classes would
be filled by regular candidates but the same number of
additional posts would be reserved in the next year. This
caused the amount of reservation to go above 50%. S.C.
held that power of Art. 16(4)12 could not be used to deny
equality of opportunity for non-backward people.

In Janki Prasad v. State of J & K13 the Supreme Court

did not consider poverty as exclusive test for judging
socially and educationally backward classes because that
would convert a large portion of population of India to
backward classes of citizens.

The court in State of U.P. v. Pradeep Tandon14 did not

approve reservation for the rural areas as justifiable
reservations because 80% people live in rural areas and it
cannot be a homogenous class by itself. The rural
element does not make it a class, so on the basis of
poverty alone backwardness cannot be judged since
poverty is found in all parts of India.

In the case State of Kerala v. N.M. Thomas SC held that

the relaxation of 2 years given to SC/STs in State of
Kerala for passing certain test for promotion is valid. It
held that the relaxation does not cause reduction in the
efficiency because such people will have to pass the test

10 AIR 1963 SC 649.

11 AIR 1964 SC 179.
12 Article 16(4) in the Constitution of India 1949 read as:
(4) Nothing in this article shall prevent the State from making any
provision for the reservation of appointments or posts in favor of
any backward class of citizens which, in the opinion of the State,
is not adequately represented in the services under the State.
13 AIR 1973 SC 930.
14 AIR 1975 SC 563.
Bharati Law Review, Jan.-Mar., 2014 7

anyway. It further held that special provisions for SC/STs

could be made even under 16(1) and not only under 16
(4). This is because the classification has a reasonable
nexus with the objective, of upliftment of backward
classes.

Building upon the case of N.M. Thomas, in Akhil

Bhartiya Soshit Karamchari Sangh (Rly) v. Union of India15
SC upheld that reservation could be done even without
16(4) because Art. 16(1) has to be read in light of Art. 14,
which permits classification based on intelligible
differentia and a justifiable nexus with the objective. It
further held that "carry forward rule" is valid if the
reservation does not become excessive. It held that exact
mathematical calculation of 50% is not required in
solving human problems but reservation should not be
excessive. In this particular situation, 64.4% was not
considered excessive. 50% limit was not a strict limit but
only a guideline. In State of MP v. Nivedita Jain16 SC held
that complete relaxation of qualifying marks for SC/STs
for admission in medical colleges is valid.
Further in Indra Sawhney v. Union of India17 popularly
known as Mandal Commission case
it was mandated that reservation ordinarily should not
exceed 50% upholding carry forward rule subject to
overall ceiling of 50%. It is submitted that this view is
correct as reservation is an exception to the general
principle of equality and as such an exception cannot
exceed the main principle. Moreover even the founding
fathers of Indian Constitution envisaged reservation
much below than 50%18. Another important contribution
of the Judiciary has been to limit reservation to initial
appointment and not to apply it to further promotions.

Another connected issue with promotion is the

determination of seniority .This issue cropped up in
Union of India v. Virpal Singh Chauhan19. The court held

15 AIR 1981 SC 298.

16 AIR 1981 SC 2045.
17 AIR 1993 SC 477.
18 Manoj Kumar Sharma, “Reservation to Scheduled Castes and
Backward Classes in Government Employments: An Analytical
Study”, in Dr. S.C. Sharma (ed), Indian Constitution and Weaker
Sections, p. 260(2005).
19 AIR 1996 SC 448.
Bharati Law Review, Jan.-Mar., 2014 8

that when a person is promoted on the basis of

reservation, he shall not be entitled to seniority in the
feeder category and as soon as a general candidate
having seniority in feeder category is promoted, he
regains his seniority. In D.G. Vishwanath v. State Of
Mysor20 the reservation made for backward bases on the
basis of occupation, income ,residence and caste was
challenged and the court held that such an order was
unjustified. In Chitralekha v. State of Mysore21 the
Supreme Court held that though the caste of a group of
citizen might be a relevant circumstance for ascertaining
their social backwardness, it could not be the sole or
dominant test in this behalf. The court respected the
criteria adopted by the Mysore government for
ascertaining the backwardness that should be social and
educational backwardness, similar to backwardness from
which the scheduled castes and scheduled tribes have
suffered.

The SC departed from the Chirtalekha approach with

the passage of time in P. Rajendra v. State of Madras22
the rules adopted by the govt. of madras for regulating
admission to medical colleges provided for reservation of
seats for socially and educationally backward classes
specified in the appendix to that order the order was
challenged as violative of Articles 14 & 15 on the ground
that list in that order was nothing but actually a list of
certain castes only. the supreme court held that was
nothing but actually a list of certain castes only the
supreme court held that a must not be forgotten that a
caste is also a class of citizen and if the caste as a whole
is socially and educationally backward reservation be
made is favor of such a caste on the ground that it is
socially and educationally backward class of citizens
within the meaning of Art. 15(4) the court further held
that in the present case the list of socially and
educationally backward classes has been specified by
caste it does not necessarily mean that caste is the sole
consideration. If the entire caste is found socially and
educationally backward on the basis of relevant facts, the
caste as a whole may be regarded as backward class.

20 AIR 1963 S.C. 702 MYS 132.

21 AIR 1964 S.C. 1823.
22 AIR 1968 S.C. 1012.
Bharati Law Review, Jan.-Mar., 2014 9

The Supreme Court, after considering the various

aspects of reservation in series of cases analyzed,
examined, scrutinized and reviewed the constitutionality
of the reservation system under Article 15(4), 16(4) and
340 in modern perspective in well reasoned and elaborate
case of K.C. Vasanth Kumar v. State of Karnataka23 in
which a bench of the Supreme Court consisting to Y.V.
Chandrachud, J.J. D.A. Dasai, O. Chinappa Reddy, A.P.
Sen and E.S. Kenkaratamiah, J.J. held that the
reservations in favour of scheduled castes, scheduled
Tribes and Backward classes must continue as it is in
the present form and for a further period not exceeding
fifteen years. But the policy of reservation in employment,
education and legislative Institutions should be reviewed
after five year or so.

The criterion to judge the backwardness should be the

economic backwardness and reservation should not cross
a reasonable limit of preference and discrimination.
Recently the Supreme Court in Dr. Fazal Gaffar’s case
held that there should not be any reservation in the field
of specialties. If however, preference has to be given, it
should not exceed 35% of total quota.

Analysis of Judicial Decisions

An analysis of the series of cases stated above it can be

stated that the comparison of socially and educationally
backward classes with the scheduled castes and
scheduled tribes in Article 15(4) the reference to
scheduled castes and scheduled tribes were to be
construed as including such backward classes as the
President may by order specify on receipt of the report of
the Commission appointed under Article 340(1) shows
that in the matter of backwardness they are compared
to Scheduled Castes and Scheduled Tribes. The concept
of backward classes is not relative in the sense that any
class which is backward in relation to the most advanced
class in the community must be included in it. Hence the
division of backward classes into backward is
unconstitutional. The backwardness should be social and
educational and not either social or educational.

23 AIR 1985 SC 1495.

Bharati Law Review, Jan.-Mar., 2014 10

Article 15(4) refers to backward classes and not

backward castes. The test of caste would break down in
respect of communities which have no caste. In the
present India Society caste, of course is a relevant factor
in determining social backwardness but it is not the sole
or dominant test. In the light of the latest decision of the
Supreme Court (State of U.P. v. Pradeep Tandon) caste is
not a synonym for class. This case reiterated the Balaji
approach. The Socially and educationally backward
classes of citizens are groups other than groups based on
caste. Classes of citizens mean a homogenous group of
people with some common traits and who are identifiable
by some common attributes. The homogeneity of the
class of citizens is social and educational backwardness.
A classification based only on caste without regard to
other relevant factors is not violative of Article 15(4). The
onus is on the state to prove that the criteria it has
adopted in classifying backward classes are
constitutionally permissible. Both castes and poverty are
important in determining the backwardness.

The occupation followed by certain classes of people

which are looked down upon as inferior or unclean and
place of habitation may contribute to social
backwardness. Rural population as a whole cannot form
socially and educationally backward class. The
proportion of population of backward classes to the total
population of the state for the purpose of reservation for
admission to Professional institutions has been held
valid. The inclusion of a class in the list of backward
classes should not be perpetual, otherwise the whole
purpose of reservation would be defeated. Hence the list
should be under constant periodical review by the state.
The quantum of reservation to be made is primarily a
matter for the state to decide. However, it should be
limited.

It can thus be concluded that from Champakam

Dorairajan to Arun Kumar the facets of reservation
scheme has undergone several changes and Judiciary
has played a very important and crucial role in shaping
this policy and bringing about social justice.


Bharati Law Review, Jan.-Mar., 2014 11

MINORITY RIGHTS UNDER INDIAN CONSTITUTION:

A CRITICAL ANALYSIS

Dr. Saroj Bohra*

Who Are The Minorities?

The Constitution of India uses the word “minority” or its

plural form in some Articles 29 to 30 and 350A to 350B
but does not define it anywhere. Article 29 has the word
“minorities” in its marginal heading but speaks of “any
sections of citizen having a distinct language, script or
culture”. This may be a whole community generally seen
as minority or a group within a majority community.
Article 30 speaks specifically of two categories of
minorities–religious and linguistic. The remaining two
Articles i.e., 350A and350B, relate to linguistic minorities
only.

In common phrasing, 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 Oxford Dictionary defines “minority” as “a smaller
number or part; a number or part representing less than
half of the whole; a relatively small group of people,
differing from others in race, religion, language or
political persuasion”. 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.”1

The question of minorities and their rights has been

dealt with by the framers of our Constitution as they were
deeply concerned about the rights of minorities, whether

* Assistant Professor, College of Legal Studies, UPES, Dehradun.

1 Report of the National Commission for Religious and Linguistic
Minorities, 2010.
Bharati Law Review, Jan.-Mar., 2014 12

religious or linguistic. With 22 official languages and 8

major religions, the need for preserving equality remains
intact in India today. As regards religious minorities at
the national level in India, all those who profess a religion
other than Hindu are considered minorities, since over
eighty per cent of the population of the country professes
the Hindu religion. At the national level, Muslims are the
largest minority. Other minorities are much smaller in
size. Next to the Muslims are the Christians (2.34 per
cent approx.) and Sikhs (1.9 per cent approx.); while all
the other religious groups are still smaller. As regards
linguistic minorities, there is no majority at the national
level and the minority status is to be essentially decided
at the state/union territory level. At the state/union
territory level, which is quite important in a federal
structure of India, the Muslims are the majority in the
state of Jammu and Kashmir and the union territory of
Lakshadweep. In the states of Meghalaya, Mizoram and
Nagaland, Christians constitute the majority. Sikhs are
the majority community in the state of Punjab. No other
religious community among the minorities is a majority
in any other state or Union Territory. When such a huge
and vast difference is resting in our country, it becomes
necessary to shield and guard the minority section of the
society. The purpose behind giving special rights to
minorities was not to discriminate between majority and
minority but to bring equality and to give security to the
minorities.

The National Commission for Minorities Act, 1992

Section 2 (7) states that “Minority, for the purpose of the
act, means a community notified as such by the central
government”. Acting under this provision, on October 23,
1993 the central government notified the Muslim,
Christian, Sikh, Buddhist and Parsi (Zoroastrian)
communities to be regarded as “minorities” for the
purpose of this act.

In Indian context, minority was defined ‘In Re: The

Kerala Education Bill, 19572 “It is easy to say that a
minority community means a community which is
numerically less than 50 per cent., but then the question
is not fully answered, for part of the question has yet to

2 AIR 1958 SC 95.

Bharati Law Review, Jan.-Mar., 2014 13

be answered, namely, 50 per cent of what? Is it 50 per

cent of the entire population of India or 50 per cent of the
population of a State forming a part of the Union? The
State of Kerala, therefore, contends that in order to
constitute a minority which may claim the fundamental
rights guaranteed to minorities by Arts. 29(1) and 30(1)
persons must numerically be a minority in the particular
region in which the educational institution in question is
or is intended to be situated. A little reflection will at once
show that this is not a satisfactory test. Where the line to
be drawn and which is the unit which will have to be
taken? Are we to take as our unit a district, or a sub-
division or a taluka or a town or its suburbs or a
municipality or its wards? It is well known that in many
towns’ persons belonging to a particular community flock
together in a suburb of the town or a ward of the
municipality.”

In certain petitions reference to which was made by

Supreme Court in its decision in D.A.V College v. State of
Punjab3 the Court had held that what constituted a
linguistic or religious minority must be judged in relation
to the State impugned Act and was a State Act and not in
relation to whole of India. ‘Minority’ is to be determined
only in relation to the particular legislation which is being
challenged. If a State Law extending to the whole of the
state is in question, the minority must be determined
with reference to the entire State population. In such a
case, any community, linguistic or religious, which is
numerically less than 50 per cent of the entire State
population, will be a Minority for purposes of article 30
(1).

The Supreme Court4 has held that for the purpose of

Article 30 a minority, whether linguistic or religious, 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/Union
Territory level. In terms of Articles 341 to 342 of the
Constitution, castes, races or tribes or parts of or groups
within castes, races or tribes are to be notified as

3 AIR 1971 SC 173.

4 TMA Pai Foundation & Ors v. State of Karnataka & Ors, (2002)8
SCC 481.
Bharati Law Review, Jan.-Mar., 2014 14

scheduled castes or scheduled tribes in relation to the

state or union territory, as the case may be.

The State Minorities Commission Acts usually empower

the local governments to notify the minorities e.g., Bihar
Minorities Commission Act, 1991, Section 2(c);
Karnataka Minorities Commission Act, 1994, Section
2(d); Uttar Pradesh Minorities Commission Act 1994,
Section 2(d); West Bengal Minorities Commission Act
1996, Section 2(c); Andhra Pradesh Minorities
Commission Act 1998, Section 2(d). Similar acts of
Madhya Pradesh (1996) and Delhi (1999) however say
that government’s notification issued under the National
Commission for Minorities Act 1992 will apply in this
regard– Madhya Pradesh Act 1996, Section 2(c); Delhi Act
1999, Section 2(g); Section 2(d). In several states (e.g.
Himachal Pradesh, Jharkhand, Madhya Pradesh,
Maharashtra, Uttar Pradesh and Uttrakhand), Jains have
been recognized as a minority. The Jain community
approached the Supreme Court seeking a direction to the
central government for a similar recognition at the
national level and their demand was supported by the
National Commission for Minorities.

But the Apex Court did not issue the desired direction,
leaving it to the central government to decide the issue5.
In a later ruling however, another bench of the Supreme
Court upheld the Uttar Pradesh law recognizing Jains as
a minority6.

Rights of Minorities

The right of minorities has been recognized and defined

both at national and international levels.

At International Level

a) 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–racial, religious, etc.

5 Bal Patil v. Union of India, 2005.

6 Bal Vidya case, 2006.
Bharati Law Review, Jan.-Mar., 2014 15

b) The UN Declaration against All Forms of Religious

Discrimination and Intolerance 1981 outlaws all kinds of
religion-based discrimination.
c) The UN Declaration on the Rights of Minorities, 1992
enjoins the states to protect the existence and identity of
minorities within their respective territories and
encourage conditions for promotion of that identity;
ensure that persons belonging to minorities fully and
effectively exercise human rights and fundamental
freedoms with full equality and without any
discrimination; create favorable conditions to enable
minorities to express their characteristics and develop
their culture, language, religion, traditions and customs;
plan and implement national policy and programmes
with due regard to the legitimate interests of minorities;
etc.

At National Level

In India, Articles 15 and 16 of the Constitution prohibit

the state from making any discrimination on the grounds
only of religion, race, caste, sex, descent, place of birth,
residence or any of them either generally i.e., every kind
of state action in relation to citizens (Article 15) or in
matters relating to employment or appointment to any
office under the state (Article 16). However, the provisions
of these two articles do take adequate cognizance of the
fact that there had been a wide disparity in the social and
educational status of different sections of a largely caste-
based, tradition bound society with large-scale poverty
and illiteracy. Obviously, an absolute equality among all
sections of the people regardless of specific handicaps
would have resulted in perpetuation of those handicaps.
There can be equality only among equals. Equality means
relative equality and not absolute equality. Therefore the
Constitution permits positive discrimination in favor of
the weak, the disadvantaged and the backward. It admits
discrimination with reasons but prohibits discrimination
without reason.

Discrimination with reasons entails rational

classification having nexus with constitutionally
permissible objects. Article 15 permits the state to make
“any special provisions” for women, children, “any
socially and educationally backward class of citizens” and
Bharati Law Review, Jan.-Mar., 2014 16

scheduled castes and scheduled tribes. Article 15 has

been amended7 by the Constitution (Amendment) Act
2005 to empower the state to make special provisions, by
law, for admission of socially and educationally backward
classes of citizens or scheduled castes or tribes to
educational institutions, including private educational
institutions, whether aided or unaided by the state, other
than minority educational institutions. Article 16 too has
an enabling provision that permits the state for making
provisions for the reservation in appointments of posts in
favor of “any backward class of citizens which, in the
opinion of the state, is not adequately represented in the
services under the state”.

Notably, while Article 15 speaks of “any socially and

educationally backward class of citizens” and the
scheduled castes and scheduled tribes without qualifying
backwardness with social and educational attributes and
without a special reference to scheduled
castes/scheduled tribes, Article 16 speaks of “any
backward class of citizens”.

The words “class” and “caste” are not synonymous

expressions and do not carry the same meaning. While
Articles 15 and 16 empower the state to make special
provisions for backward “classes”, they prohibit
discrimination only on the ground of “caste” or “religion”.
In other words, positive discrimination on the ground of
caste or religion coupled with other grounds such as
social and educational backwardness is constitutionally
permissible and therefore, under a given circumstance, it
may be possible to treat a caste or religious group as a
“class”. Therefore even though Article 15 does not
mention minorities in specific terms, minorities who are
socially and educationally backward are clearly within
the ambit of the term “any socially and educationally
backward classes” in Article 15 and “any backward class”
in Article 16.

Indeed the central government and state governments

have included sections of religious minorities in the list of
Backward Classes and have provided for reservation for
them. The Supreme Court8, held that an entire

7 93rd Amendment.
8 Indira Sawhney & Ors v. Union of India.
Bharati Law Review, Jan.-Mar., 2014 17

community can be treated as a “class” based on its social

and educational backwardness. The court noted that the
government of Karnataka, based on an extensive survey
conducted by them, had identified the entire Muslim
community inhabiting that state as a backward class and
have provided for reservations for them. The expression
“backward classes” is religion neutral and not linked with
caste and may well include any caste or religious
community which as a class suffered from social and
educational backwardness.

Though economic backwardness is one of the most

important or perhaps the single most important reasons
responsible for social and educational backwardness
alone of a class, the Constitution does not specifically
refer to it in Articles 15 and 16. In the Indira Sawhney
case, the Supreme Court had observed: “It is therefore
clear that economic criterion by itself will not identify the
backward classes under Article 16(4). The economic
backwardness of the backward classes under Article
16(4) has to be on account of their social and educational
backwardness. Hence no reservation of posts in services
under the state, based exclusively on economic criterion,
would be valid under clause (1) of Article 16 of the
Constitution.”

It is however notable that in the chapter of the

Constitution relating to Directive Principles of State
Policy, Article 46 mandates the state to “promote with
special care the educational and economic interests of
the weaker sections of the people and protect them from
social injustice and all forms of exploitation.” This article
refers to scheduled castes/scheduled tribes “in
particular” but does not restrict to them the scope of
“weaker sections of the society”.

Article 340 of the Constitution empowered the president

to appoint a commission “to investigate the conditions of
socially and educationally backward classes” but did not
make it mandatory.
 Bharati Law Review, Jan.-Mar., 2014 18

Other Constitutional Safeguards

The other measures of protection and safeguard provided

by the Constitution in Part III or elsewhere having a
bearing on the status and rights of minorities are:

i. The State shall not deny to any person equality before

the law or the equal protection of the laws within the
territory of India- Article 14;
ii. The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth
or any of them & No citizen shall, on grounds only of
religion, race, caste, sex, place of birth or any of them,
be subject to any disability, liability, restriction or
condition Article 15;
iii. The “secular provision” that has gained traction as one
that protects all citizens including Hindus and
minorities from engaging in any activity including
education. All citizens shall have the right, to practice
any profession, or to carry on any occupation, trade or
business- Article 19(1)(g);
iv. No person shall be deprived of his life or personal liberty
except according to procedure established by law-
Article 21;
v. Subject to public order, morality and health and to the
other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely to
profess, practice and propagate religion. (2) Nothing in
this article shall affect the operation of any existing law
or prevent the State from making any law (a) regulating
or restricting any economic, financial, political or other
secular activity which may be associated with religious
practice; (b) providing for social welfare and reform or
the throwing open of Hindu religious institutions of a
public character to all classes and sections of Hindus.
Explanation I.—the wearing and carrying of kirpans
shall be deemed to be included in the profession of the
Sikh religion. Explanation II.—In sub-clause (b) of
clause (2), the reference to Hindus shall be construed as
including a reference to persons professing the Sikh,
Jain or Buddhist religion, and the reference to Hindu
religious institutions shall be construed accordingly.-
Article 25;
vi. Subject to public order, morality and health, every
 Bharati Law Review, Jan.-Mar., 2014 19

religious denomination or any section thereof shall have

the right—(a) to establish and maintain institutions for
religious and charitable purposes; (b) to manage its own
affairs in matters of religion; (c) to own and acquire
movable and immovable property; and (d) to administer
such property in accordance with law-Article 26;
vii. Freedom as to payment of taxes for promotion of any
particular religion-Article 27;
viii. Freedom as to attendance at religious instruction or
religious worship in certain educational institutions–
Article 28;
ix. Special provision relating to language spoken by a
section of the population of a state -Article 347;
x. Language to be used in representations for redress of
grievances-Article 350;
xi. It shall be the endeavor of every State and of every local
authority within the State to provide adequate facilities
for instruction in the mother-tongue at the primary
stage of education to children belonging to linguistic
minority groups; and the President may issue such
directions to any State as he considers necessary or
proper for securing the provision of such facilities-
Article 350A;
xii. Special officer for linguistic minorities-Article350B.

The following articles need special mention:

Article 29
Articles 29 and 30 deal with cultural and educational
rights of minorities. Article 9 provides that:
(1) any section of the citizens residing in the territory of
India or any part thereof having a distinct language,
script or culture of its own shall have the right to
conserve the same; and
(2) No citizen shall be denied admission into any
educational institution maintained by the state or
receiving aid out of state funds on grounds only of
religion, race, caste, language or any of them.

Unlike Article 30, the text of Article 29 does not

specifically refer to minorities though it is quite obvious
that the article is intended to protect and preserve the
cultural and linguistic identity of the minorities. However,
its scopes not necessarily confined to minorities. The
protection of Article 29 is available to “any section of the
Bharati Law Review, Jan.-Mar., 2014 20

citizens residing in the territory of India” and this may as

well include the majority. However, India is a colorful
conglomeration of numerous races, religions, sects,
languages, scripts, culture and traditions. The minorities,
whether based on religion or language, are quite
understandably keen on preserving and propagating their
religious, cultural and linguistic identity and heritage.
Article 29 guarantees exactly that. There may appear to
be some overlapping in language and expressions
employed in Articles 15(1) and 29(2). However, Article
15(1) contains a general prohibition on discrimination by
the state against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them whereas
Article 29(2) affords protection against a particular
species of state action, viz., admission into educational
institutions maintained byte state or receiving aid out of
state funds.

Article 30
Article 30 is a minority-specific provision that protects
the right of minorities to establish and administer
educational institutions. It provides that “all minorities,
whether based on religion or language, shall have the
right to establish and administer educational institutions
of their choice”.

Clause (1A) of Article 30, which was inserted by the

Constitution9 (Amendment) Act 1978, provides that “in
making any law providing for the compulsory acquisition
of any property of an educational institution established
and administered by a minority, referred to in clause (1),
the state shall ensure that the amount fixed by or
determined under such law for the acquisition of such
property is such as would not restrict or abrogate the
right guaranteed under that clause”. Article 30 (2) further
provides that “the state shall not, in granting aid to
educational institutions, discriminate against any
educational institution on the ground that it is under the
management of a minority, whether based on religion or
language”.

It would be worthwhile to note that minority educational

institutions referred to in clause (1) of Article 30 have

9 44th Amendment.
Bharati Law Review, Jan.-Mar., 2014 21

been kept out of the purview of Article 15(4) of the

Constitution which empowers the state to make
provisions by law for the advancement of any socially and
educationally backward classes of citizens or scheduled
castes/scheduled tribes in regard to their admission to
educational institutions including private educational
institutions, whether aided or unaided.

Articles 29 and 30 have been grouped together under

common head, namely “Cultural and Educational
Rights”. Together they confer four distinct rights on
minorities. These include the right of:
(a) Any section of citizens to conserve its own language,
script or culture;
(b) All religious and linguistic minorities to establish and
administer educational institutions of their choice;
(c) An educational institution against discrimination by
state in the matter of state aid (on the ground that it is
under the management of a religious or linguistic
minority); and
(d) The citizen against denial of admission to any state
maintained or state-aided educational institution.

Article 29, especially clause (1) thereof, is more

generally worded whereas Article 30 is focused on the
right of minorities to (i) establish and (ii) administer
educational institutions. Notwithstanding the fact that
the right of the minority to establish and administer
educational institutions would be protected by Article
19(1)(g), the framers of the Constitution incorporated
Article 30 in the Constitution with the obvious intention
of instilling confidence among minorities against any
legislative or executive encroachment on their right to
establish and administer educational institutions. In the
absence of such an explicit provision, it might have been
possible for the state to control or regulate educational
institutions, established by religious or linguistic
minorities, by law enacted under clause (6) of Article 19.

The minority institutions are given a choice to establish

and administer the educational institutions but they are
not free from the regulations of the state, they are also to
be controlled so that there is no maladministration. This
regulation and control is shown in the St. Stephens
Bharati Law Review, Jan.-Mar., 2014 22

College v. University of Delhi10 where it is stated that the

State has the full authority to intervene and make
regulations which serves the interests of students and
teacher. The minority institution cannot claim immunity
against the general pattern of education. And also
discrimination in admission of students cannot be done
on the basis of community; the admission should be
made on the basis of merits irrespective of the other
facts.

Any provision for reservation in a minority institution is

necessarily in the interest of the public and not in the
interest of the minority institution itself, and no such
provision can meet the Sidhraj case11 test and hence it is
violative of Article 30(1) of the Constitution.

Legal Framework for Protection of Religious

Minorities

Legislation such as the Protection of Civil Rights Act,

1955 formerly known as the Untouchability (Offences)
Act, 1955 and the Scheduled Castes and the Scheduled
Tribes(Prevention of Atrocities) Act, 1989 has been
enacted by the central government to protect persons
belonging to scheduled castes and scheduled tribes from
untouchability, discrimination, humiliation, etc. No
legislation of similar nature exists for minorities though it
may be argued that unlike the latter act, viz., the
Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act 1989, the former act, viz., the Protection
of Civil Rights Act 1955, is applicable across the board to
all cases of untouchability-related offences regardless of
religion. Therefore if a scheduled caste convert to Islam or
Christianity (or any other person) is subjected to
untouchability, the committers of the offences maybe
proceeded against under the provisions of the act.
However, no precise information is available in regard to
the act being invoked to protect a person of a minority
community.

10 AIR 1992 SC 163.

11 The test laid down in Sidhral Bhai case was as follows:- "Such
regulation must satisfy dual test - the test of reasonableness, and
the test that it is regulative of the educational character of the
institution and is conducive to making the institution an effective
vehicle of education.
Bharati Law Review, Jan.-Mar., 2014 23

The law enforcing agencies appear to be harboring a

misconception that the Protection of Civil Rights Act
1955has been enacted to protect only scheduled castes
against enforcement of untouchability-related offences.
There is a case for sensitizing the law enforcement
authorities and agencies in this regard. But having said
that one cannot resist the impression that, the Protection
of Civil Rights Act, 1955 has failed to make much of an
impact due to its tardy implementation notwithstanding
the fact that the offences under this act are cognizable
and triable summarily. The annual report on the
Protection of Civil Rights Act for the year 200312, laid on
the table of each House of Parliament under Section
15A(4) of the act, reveals that only twelve states and
Union Territories had registered cases under the act
during that year. Out of 651 cases so registered, 76.04
per cent (495) cases were registered in Andhra Pradesh
alone. The number of cases registered in nine states and
Union Territories varied from one to seventeen. Only in
three states, the number of cases registered exceeded
twenty. The report also reveals that out of 2,348 cases
(out of 8,137 cases, including brought/forward cases)
disposed of by courts during the year, a measly 13 cases
constituting 0.55 per cent ended in conviction. This
appears to be a sad commentary on the state of affairs in
regard to investigation and prosecution.

To say that the practice of untouchability does not exist

in the rest of the remaining states and Union Territories
would be belying the truth that is known to the world. It
only denotes pathetic in action on the part of law
enforcing agencies. The provisions of the Protection of
Civil Rights Act need to been forced vigorously with a
view to ensuring that the law serves the purpose it has
been enacted for.

With a view to evaluating progress and development of

minorities, monitoring the working of safeguards
provided to them under the Constitution and laws, etc.
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.

12 Latest available.
Bharati Law Review, Jan.-Mar., 2014 24

The National Commission for Minorities was set up

under the act in 1993. The functions of the commission
include:
(a) Evaluating the progress of the development of
minorities under the union and states;
(b) Monitoring the working of the safeguards provided in
the Constitution and in laws enacted by Parliament and
the state legislatures;
(c)Making recommendations for the effective
implementation of safeguards for the protection of the
interests of minorities by the central government or the
state governments;
(d) Looking into specific complaints regarding deprivation
of rights and safeguards of the minorities and take up
such matters with the appropriate authorities;
(e) Causing studies to be undertaken into problems
arising out of any discrimination against minorities and
recommend measures for their removal;
(f) Conducting studies, research and analysis on the
issues relating to socio-economic and educational
development of minorities;
(g) Suggesting appropriate measures in respect of any
minority to be undertaken by the central government or
the state government; and
(h) Making periodical or special reports to the central
government on any matter pertaining to minorities and,
in particular, difficulties confronted by them.

A Constitution Amendment Bill, viz., the Constitution

(103rd Amendment) Bill, 2004, has been introduced so as
to add a new article, viz., Article 340A, to constitute a
National Commission for Minorities with a constitutional
status. A bill to repeal the National Commission for
Minorities Act, 1992 has simultaneously been
introduced.

In terms of Section 13 of the Act, the central

government shall cause the annual report together with a
memorandum of action taken on the recommendations
contained therein, in so far as they relate to central
government, and the reasons for non-acceptance, if any,
of any recommendation as soon as may be after the
reports are received to be laid before each House of
Parliament.
Bharati Law Review, Jan.-Mar., 2014 25

In the absence of a definite time frame for laying the

annual report of the commission, there has been
considerable delay in tabling the annual reports of the
commission in Parliament. The National Commission for
Minorities has submitted twelve annual reports for the
years 1992-93 to 2004-05. The annual reports for the
years 1996-97, 1997-98, 1999-2000 and 2003-04 have
been tabled in Parliament only recently, some as recently
as in the winter session 2006 of Parliament. Therefore
there appears to be a case for amendment of the act so as
to provide for a reasonable time frame for the
recommendations to be laid, along with memorandum of
action taken, before the Parliament/state legislature. It
may be advisable to incorporate a suitable provision in
the Constitution amendment bill, laying down a definite
time frame for laying the annual reports of the
commission on the tables of both Houses of Parliament
along with action taken notes.

According to the provisions of clause (9) of Articles 338

and 338A, the Union and every state government shall
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 and can be construed to be an important
constitutional safeguard for scheduled castes and
scheduled tribes. A corresponding provision does not
exist 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
impacting minorities, depending on exigencies. Therefore,
the National Commission for Minorities Act, 1992 needs
to be suitably amended with a view to incorporating in it
a provision analogous to the provision in Articles 338(9)
and 338A(9). This may instill a sense of confidence
amongst minorities about protection of their interests.

While discussing the safeguards, it should be noted that

a very important mechanism of ensuring the welfare of
scheduled castes is constitution of a Parliamentary
Committee on Scheduled Castes. The successive
committees have been doing really a good work towards
safeguarding the interests of scheduled castes. Such a
Bharati Law Review, Jan.-Mar., 2014 26

mechanism of monitoring effective implementation of the

constitutional and legal provisions safeguarding the
interests of minorities, and also implementation of
general or specific schemes for the benefit of minorities
by government and its agencies and instrumentalities is
expected to be an effective step for ensuring the welfare of
religious minorities.

The National Commission for Minority Educational

Institutions Act, 2004 was enacted to constitute a
commission charged with the responsibilities of advising
the central government or any state government on any
matter relating to education of minorities that may be
referred to it, looking into specific complaints regarding
deprivation or violation of rights of minorities to establish
and administer educational institutions of their choice,
deciding on any dispute relating to affiliation to a
scheduled university and reporting its findings to the
central government for implementation. The act was
extensively amended in 2006 (Act 18 of 2006) inter alia
empowering the commission to inquire suo motu or on a
petition presented to it by any minority educational
institution or any persons on its behalf into complaints
regarding deprivation or violation of rights of minorities to
establish and administer an educational institution of its
choice and any dispute relating to affiliation to a
university and report its finding to the appropriate
government for its implementation. The act also provides
that if any dispute arises between a minority educational
institution and a university, relating to its affiliation to
such university, the decision of the commission hereon
shall be final.

The Commission discussed the provisions of the act as

amended and felt the need to make clear-cut, concrete
and positive recommendations for improving and
streamlining the provisions of the act.

Conclusion

The issue of rights of the minority has been dealt in

various ways and is being dealt since a long time but
there is a no specific definition of word minority in other
words, the article giving the right to the minority does not
define “minority” and thus it creates a confusion when
Bharati Law Review, Jan.-Mar., 2014 27

such issues arise. Pronouncements of the Hon’ble Courts

have clarified this issue. But still a lot more has to be
done to by other authorities to preserve the equality
among the citizens of the country.

In Re: The Kerala Education Bill lays down many

important guidelines which are now dealing with
problems which were unsolved in the past. India being a
vast country and a mixture of various religions, the
question of equality and security becomes a central,
important and sensitive issue. Through various
provisions, the minorities are conferred with special
privileges in order to remain away from the ‘inequality’.

An analysis of the judicial decisions13 shows that

although right to recognition and affiliation is not
expressly recognized by Article 30(1), without recognition
or affiliation there can be no meaningful exercise of the
right to establish and administer under Article 30, and
that recognition and affiliation can be given only on
conditions that do not render that Article illusory.14

It is evidently known that by providing such benefits to

the minorities it will help in preserving culture but on the
other hand there are still many areas in which many
modifications are required proper administration of such
institutions. Now the focus should be made on these
minorities which do not progress because development
will ultimately help in the development of the country.



13 In Re: The Kerala Education Bill 1957, A.I.R. 1958 S.C. 956: Sidhraj
Bhai v. State of Bombay, (1963) S.C.R. 837: St. Xavier’s College v.
State of Gujrat, AIR 1974; S.C. l389; DAV College, Bhatinda v. State
of Punjab, AIR 1971 SC. 1737.
14 Shah, J. observed in Sidhraj Bhai v. State of Bombay, (1963) SCR
837 at 850: “Regulations made in the true interest of the efficiency
of institutions, discipline, health, sanitation, morality, public order
and the like may undoubtedly be imposed. Such regulations are not
restr1ct1ons...: they secure the proper functioning of the institution
in matters educational".
Bharati Law Review, Jan.-Mar., 2014 28

MINORITY EDUCATIONAL INSTITUTIONS IN INDIA:

CONSTITUTIONAL AND JUDICIAL PERSPECTIVES

Dr. Naresh V. Waghmare*

Introduction

The Constitution recognizes the differences among the

people of India, but it gives equal importance to each of
them, their differences notwithstanding, for only then can
there be a unified secular nation. The essence of
secularism in India is the recognition and preservation of
the different types of people, with diverse languages and
different beliefs, and placing them together so as to form
a whole and united India. Articles 29 and 30 do not more
than seek to preserve the differences that exist, and at
the same time, unite the people to form one strong
nation.1

With regard to the establishment of educational

institutions, three articles of the Constitution come into
play. Article 19(1)(g) gives the right to all the citizens to
practice any profession or to carry on any occupation,
trade or business; this right is subject to reasonable
restrictions that may be placed under Art. 19(6). Article
26 gives the right to every religious denomination
respectively to establish and maintain an institution for
religious and charitable purposes, which would include
an educational institution. Article 19(1)(g) and Art. 26,
therefore, confer rights on all citizens and religious
denominations to establish and maintain educational
institutions. There was no serious dispute that the
majority community as well as linguistic and religious
minorities would have a right under Arts. 19(1)(g) and 26
to establish educational institutions. In addition, Art.
30(1), in no uncertain terms, gives the right to the
religious and linguistic minorities to establish and
administer educational institutions of their choice.2The

* Assistant Professor, Department of Law, University of Pune, Pune.

1 T.M.A. Pai Foundation v. State of Karnataka, AIR 2003 SC 355, Para
160 &161.
2 Id.
Bharati Law Review, Jan.-Mar., 2014 29

rights of minority institutions are governed by Articles 29

and 30 of the Constitution of India.3

The Constitution itself by Article 30 makes a

classification as between the minority and the majority,
and, by Article 19, a classification as between the citizen
and the non-citizen. Different treatment based on this
classification is authorized by the Constitution itself.

Articles 29 and 30 are set out in Part III of our

Constitution which guarantees our fundamental rights.
They are grouped together under the sub-head "Cultural
and Educational Rights". The text and the marginal notes
of both the articles show that their purpose is to confer
those fundamental rights on certain sections of the
community which constitute minority communities.
Under Clause (1) of Article 29 any section of the citizens
residing in the territory of India or any part thereof
having a distinct language, script or culture of its own
has the right to conserve the same. It is obvious that a
minority community can effectively conserve its language,
script or culture by and through educational institutions
and, therefore, the right to establish and maintain
educational institutions of its choice is a necessary
concomitant to the right to conserve its distinctive
language, script or culture and that is what is conferred

3 Art. 29. Protection of Interests of minorities.-

(1) Any section of the citizens residing in the territory of India or any
part thereof having a distinct language, script or culture of its own
shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution
maintained by the State or receiving aid out of State funds on
grounds only of religious, race, caste, language or any of them.
Art. 30. Right of minorities to establish and administer
educational institutions.-
(1) All minorities, whether based on religion or language, shall have the
right to establish and administer educational institutions of their
choice.
[(1A) In making any law providing for the compulsory acquisition of
any property of an educational institution established and
administered by a minority, referred to in clause (1), the State shall
ensure that the amount fixed by or determined under such law for
the acquisition of such property is such as would not restrict or
abrogate the right guaranteed under that clause.]
(2) The State shall not, in granting aid to educational institutions,
discriminate against any educational institution on the ground that
it is under the management of a minority, whether based on religion
or language."
Bharati Law Review, Jan.-Mar., 2014 30

on all minorities by Article 30(1).4 This right, however, is

subject to Cl. 2 of Art. 29 which provides that no citizen
shall be denied admission into any educational
institution maintained by the State or receiving aid out of
State funds on grounds only of religion, race, caste,
language or any of them.

Art. 30(1) is a sort of guarantee or assurance to the

linguistic and religious minority institutions of their right
to establish and administer educational institutions of
their choice. Secularism and equality being two of the
basic features of the Constitution, Article 30(1) ensures
protection to the linguistic and religious minorities,
thereby preserving the secularism of the country.
Furthermore, the principles of equality must necessarily
apply to the enjoyment of such rights. No law can be
framed that will discriminate against such minorities
with regard to the establishment and administration of
educational institutions vis-a-vis other educational
institutions. Any law or rule or regulation that would put
the educational institutions run by the minorities at a
disadvantage when compared to the institutions run by
the others will have to be struck down. At the same time,
there also cannot be any reverse discrimination. It was
observed in St. Xavier’s College case5 that "the whole
object of conferring the right on minorities under Art. 30
is to ensure that there will be equality between the
majority and the minority. If the minorities do not have
such special protection, they will be dented equality." In
other words,6 the essence of Article 30(1) is to ensure
equal treatment between the majority and the minority
institutions. No one type or category of institution should
be disfavored or, for that matter, receive more favorable
treatment than another. Laws of the land, including rules
and regulations, must apply equally to the majority
institutions as well as to the minority institutions. The
minority institutions must be allowed to do what the non-
minority institutions are permitted to do.

Against the background of partition it was felt necessary

to allay the apprehensions and fears in the minds of

4 In Re: The Kerala Education Bill, 1957, AIR 1958 SC 956.

5 Ahmedabad St. Xavier College Society v. State of Gujarat, AIR 1974
SC 1389.
6 Supra Note 1, Para 138.
Bharati Law Review, Jan.-Mar., 2014 31

Muslims and other religious communities by providing to

them special guarantee and protection of their religious,
cultural and educational rights. Such protection was
found necessary to maintain unity and integrity of free
India because even after partition of India, communities
like Muslims and Christians in greater numbers living in
different parts of India opted to continue to live in India
as children of its soil. The Constitution through all its
organs is committed to protect religious, cultural and
educational rights of all. Arts. 25 to 30 guarantee cultural
and religious freedoms to both majority and minority
groups. The constitutional ideal, which can be gathered
from the group of articles in the Constitution under
Chapters of Fundamental Rights and Fundamental
Duties, is to create social conditions where there remains
no necessity to shield or protect rights of minority or
majority.7

Minority Educational Institution–Right to Establish

and Administer

The expression "education" in the Articles of the

Constitution means and includes education at all levels
from the primary school level up to the post-graduate
level. It includes professional education. The expression
"educational institutions" means institutions that impart
education, where "education" is as understood
hereinabove.

In Re: The Kerala Education case,8 the Supreme Court

observed that the language employed in Art. 30(1) is wide
enough to cover both pre-Constitution and post-
Constitution institutions. It must not be overlooked that
Art. 30(1) gives the minorities two rights, namely, (a) to
establish, and (b) to administer, educational institutions
of their choice. In Re: The Kerala Education case9, the
Supreme Court observed that a minority community can
effectively conserve its language, script or culture by and
through educational institutions and, therefore, the right
to establish and maintain educational institutions of its
choice is a necessary concomitant to the right to conserve

7 Bal Patil v. Union of India, AIR 2005 SC 3172.

8 Supra Note 4.
9 Id.
Bharati Law Review, Jan.-Mar., 2014 32

its distinctive language, script or culture and that is what

is conferred on all minorities by Article 30 (1).

The words "establish and administer" in Article 30 (1)

must be read conjunctively and so read it clearly shows
that the minority will have the right to administer
educational institutions of their choice provided they
have established them, but not otherwise.10 The Article
cannot be read to mean that even if the educational
institution has been established by somebody else, any
religious minority would have the right to administer it
because, for some reason or other it might have been
administering it before the Constitution came into force.

The words "educational institutions" are of very wide

import and would include a university also, and
therefore, it may be accepted that a religious minority
had the right to establish a university under Article
30(1).11

For the purpose of Article 30(1) the word “establish”

means "to bring into existence" and the right given by the
Article to the minority is to bring into existence an
educational institution, and if they do so, to administer
it. The Aligarh University when it came into existence in
1920 was established by the Central legislature by the
Aligarh Muslim University Act, 1920. It may be that the
1920 Act was passed as a result of the efforts of the
Muslim minority. But that does not mean that the
Aligarh University when it came into being under the
1920 Act was established by the Muslim minority.12

Article 30(1) covers institutions imparting general

secular education.13 The object of Article 30 is to enable
children of minorities to go out in the world fully
equipped. It will be wrong to read Article 30(1) as
restricting the right of minorities to establish and
administer educational institutions of their choice only to
cases where such institutions are concerned with
language, script or culture of the minorities. Article 29

10 S. Azeez Basha v. Union of India, AIR 1968 SC 662.

11 Id.
12 Id.
13 Supra Note 5.
Bharati Law Review, Jan.-Mar., 2014 33

and 30 create two separate rights though it is possible

that the rights might meet in a given case.

The words "establish" and "administer" used in Art.

30(1) is to be read conjunctively. The right claimed by a
minority community to administer the educational
institution depends upon the proof of establishment of
the institution.14 The proof of establishment of the
institution is thus a condition precedent for claiming the
right to administer the institution.

The minorities do not stand to gain much from the

general Bill of Rights or Fundamental Rights which are
available only to individuals. The minorities require
positive safeguards to preserve their minority interests
which are also termed as group rights. The safeguards
and group rights have been the part of our Constitution
making. The right to establish an educational institution
is not confined to purposes of conservation of language,
script or culture. The rights in Article 30(1) are of wider
amplitude. The width of Article 30(1) cannot be cut down
by the considerations on which Article 29 (1) is based.
The words "of their choice" in Article 30(1) leave vast
options to the minorities in selecting the type of
educational institutions which they wish to establish.
They can establish institutions to conserve their distinct
language, script or culture or for imparting general
secular education or for both the purposes.15

The Supreme Court held16 that Article 30(1) gives

religious and linguistic minorities the right to establish
and administer educational institutions of their choice.
The use of the words "of their choice" indicates that even
professional educational institutions would be covered by
Art. 30.

Recognition, Affiliation and Financial Aid/Grant

Private educational institutions, both aided and unaided,

are established and administered by religious and
linguistic minorities, as well as by non-minorities. Such

14 St. Stephen's College v. University of Delhi, AIR 1992 SC 1630.

15 Id.
16 Supra Note 1.
Bharati Law Review, Jan.-Mar., 2014 34

private educational institutions provide education at

three levels, viz., school, college and professional level.

The State may prescribe reasonable regulations to

ensure the excellence of the educational institutions to be
granted aid or to be recognized. But in the name of laying
down conditions for aid or recognition, the State cannot
directly or indirectly defeat the very protection conferred
by Art. 30. The considerations for granting recognition to
a minority educational institution and casting
accompanying regulation would be a similar as applicable
to a non-minority institution subject to two overriding
considerations:
(1) The recognition is not denied solely on the ground of
the educational institution being one belonging to
minority; and
(2) The regulation is neither aimed at nor has the effect
of depriving the institution of its minority status.17

It has been observed that many educational institutions

run by minorities’ are being improperly administered as
far as the efficiency, excellence and competence in the
administration is concerned. Hence, though right to
administer a minority educational institution is a
fundamental right, yet the Supreme Court does not
permit maladministration. The various decisions of the
Supreme Court not only regulate the administration of
the minority educational institutions but also compels
them not to mal-administer their institutions as an
absolute right.

National Commission for Minority Educational

Institutions

The National Commission for Minority Educational

Institutions Act, 2004 was enacted to constitute a
National Commission for Minority Educational
Institutions and to provide for matters connected
therewith or incidental thereto. It was amended twice in
the years of 2006 and 2010. As per this Act, educational
rights to minorities means, the rights of minorities to
establish and administer educational institutions of their
choice. Minority, for the purpose of this Act, means a

17 P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3226.

Bharati Law Review, Jan.-Mar., 2014 35

community notified as such by the Central Government.

Minority Educational Institution means a college or an
educational institution established and administered by a
minority or minorities.

Conclusion

Art. 30(1) conferred certain rights not only on religious

but on linguistic minorities as well. One such right was to
establish educational institutions of their own choice; but
that right was not limited to teaching their religion alone
or their language alone. No limitation had been placed on
the subjects to be taught in such educational
institutions. Minorities would ordinarily desire to
establish such institutions as would serve both purposes,
namely the purpose of conserving their religion, language
or culture and also the purpose of giving a good general
education to their children. The key to Article 30(1) lay in
the words “of their own choice”.

On the basis of the various decisions of the apex court

following conclusions may be drawn which includes the
right to establish and administer educational institutions
comprises right:
(a) To admit students,
(b) To set up a reasonable fee structure,
(c) To constitute a governing body,
(d) To appoint staff (teaching and non-teaching),
(e) To take action if there is dereliction of duty on the
part of any employees.
(f) To maintain educational standards and
excellence, and
(g) To protect against discrimination on the ground of
minority and to be treated equally in the matters
of establishment and administration of
educational institutions.

Though the Minority Educational Institutions

Commission Act, 2004 has been enacted, in view of
Fundamental rights of minorities and judicial decisions
on minority educational institutions, it is need of an hour
to make the law by the Parliament, on ‘Minority
Educational Institutions’, taking into consideration a) the
educational interests of minorities, to maintain
standards of education at par with the best educational
Bharati Law Review, Jan.-Mar., 2014 36

institutions to bring the minorities in mainstream; b)

regulation of the affairs of the minority educational
institutions with a view to enjoy equal rights as of other
educational institutions. There shall be the provisions as
to rights of minority educational institutions; definition of
‘minority’- religious and linguistic; meaning of the term
‘of their choice’ which includes general and secular
education, professional education etc; definition of
‘educational institution’; right to aid from the state in
view of Art.30 (2): right to recognition from the
government, educational and professional bodies; right to
affiliation of University; right to admit students, right to
fix reasonable fee structure, right to appoint teaching and
non-teaching staff; right to take action if there is
dereliction of duty on the part of any employees.


Bharati Law Review, Jan.-Mar., 2014 37

INSTITUTIONAL FRAMEWORK FOR PROTECTION OF

MINORITIES IN INDIA: AN ANALYSIS

Dr. Sunita Adhav*

Introduction

National Human Rights Institutions (NHRI) are

administrative bodies set up to protect or monitor human
rights in a given country. The growth of such bodies has
been encouraged by the Office of the United Nations High
Commissioner for Human Rights (OHCHR) which has
provided advisory and support services, and facilitated
access for NHRIs to the UN treaty bodies and other
committees. There are over 100 such institutions, about
two-thirds assessed by peer review as compliant with
the United Nations standards set out in the Paris
Principles. Compliance with the Principles is the basis
for accreditation at the UN, which, uniquely for NHRIs, is
not conducted directly by a UN body but by a sub-
committee of the International Coordinating Committee of
National Human Rights Institutions (ICC). Institutions
accredited by the ICC with 'A status', meaning full
compliance with the Paris Principles, enjoy much greater
access to UN human rights treaty bodies and other
organs. The secretariat to the review process (for initial
accreditation, and reaccreditation every five years) is
provided by the National Institutions and Regional
Mechanisms Section of the OHCHR. NHRIs can be
grouped together in two broad categories: Human Rights
Commissions and Ombudsmen. While most Ombudsman
agencies have their powers vested in a single person,
Human Rights Commissions are multi-member
committees, often representative of various social groups
and political tendencies. They are sometimes set up to
deal with specific issues such as discrimination, although
some are bodies with very broad responsibilities.
Specialized national institutions exist in many countries
to protect the rights of a particular vulnerable group such
as ethnic and linguistic minorities, indigenous people,
children, refugees or women.

* Principal, Modern Law College, Pune.

Bharati Law Review, Jan.-Mar., 2014 38

In most countries, a Constitution, a Human Rights act

or institution-specific legislation will provide for the
establishment of a National Human Rights Institution.
The degree of independence of these institutions depends
upon national law, and best practice requires a
constitutional or statutory basis rather than (for example)
a presidential decree.

Nations Human Rights Institutions are also referred to

by the Vienna Declaration and Program of Action and
the Convention on the Rights of Persons with Disabilities.

Concept of Minority in India

The position of minorities in Independent India was a

question that received the attention of some of the tallest
leaders of our freedom movement. The Hindu nationalist
position on the matter was made abundantly clear by
Veer Savarkar. In his Presidential address to the 20th
session of the Hindu Mahasabha (Nagpur, 1938),
Savarkar said:
“The Hindus will be ever ready to grant equal rights
and representation to all minor communities in India
in legislatures and services, civil and political life in
proportion to population and merit. The Hindus
although they are in overwhelming majority will still
waive their right of claiming any preferential
treatment, and special prerogatives which in fact in
every other nation are due to the major community.
But the Hindus will never tolerate the absurd and
unheard of claims of the minorities to have any
preferential treatment, weightage or special favours
over and above what the majority community
obtains.”

The Indian State has steadily moved away from the

vision of One Nation, One People. India has a determined
and astute religious minority that is fully alive to its long-
term political and strategic objectives. It also has a
clueless majority led by a short-sighted intellectual and
political class. Both these factors have ensured that
institutional mechanisms continue to be created by the
State to address the ever-escalating imaginary grievances
of the minorities. In some cases, these mechanisms were
simply handed over to the minorities on a platter though
Bharati Law Review, Jan.-Mar., 2014 39

no corresponding demand had been made by them. Over

the years, these mechanisms have become firmly
entrenched and have acquired more teeth. They now
threaten to undermine the Indian State itself.

The following is an ever-expanding list of Government

Programmes and Institutions dealing exclusively with the
Minorities:

1. Ministry of Minority Affairs, Government of India

(established 2006)

2. Prime Minister’s new (2006) 15-point Programme for

the Development of (under Ministry of Minority
Affairs)

3. (a) National Integration Council, presently with the

Ministry of Home Affairs;
(b) Communal Harmony Award

4. a) Office of the Commissioner for Linguistic

Minorities (under Ministry of Minority Affairs);
b) National Commission for Minorities (under
Ministry of Minority Affairs);
c) Central Wakf Council (under Ministry of
Minority Affairs);
d) Maulana Azad Educational Foundation (under
Ministry of Minority Affairs);
e) National Minorities Development and Finance
Corporation (under Ministry of Minority Affairs)

5. Haj Committee–presently with the Ministry of

External Affairs

6. a) Maulana Azad National Urdu University,

presently with the Ministry of HRD;
b) National Council for Promotion of Urdu
Language;
c) Madrasa Modernization Programme;
d) National Commission for Minority Educational
Institutions (NCMEI), established 2004.
Bharati Law Review, Jan.-Mar., 2014 40

Minorities in Law and Government

In the politics of some countries, a minority is an ethnic

group that is recognized as such by respective laws of its
country and therefore has some rights that other groups
lack. Speakers of a legally-recognized minority language,
for instance, might have the right to education or
communication with the government in their mother
tongue. Countries that have special provisions for
minorities include Canada, China, Ethiopia, Germany,
India, the Netherlands, Poland, Romania, Russia, Croatia
and the United Kingdom.

Differing minority groups often are not been given

identical treatment. Some groups are too small or too
indistinct compared to the majority, where they either
identify as part of the same nation as the members of the
majority, or they identify as a separate nation but are
ignored by the majority because of the costs or some
other aspect of providing preferences. For example, a
member of a particularly small ethnic group might be
forced to check "Other" on a checklist of different
backgrounds, and consequently might receive fewer
privileges than a member of a more defined group.

Many contemporary governments prefer to assume the

people they rule all belong to the same nationality rather
than separate ones based on ethnicity. The United
States asks for race and ethnicity on its official census
forms, which thus breaks up and organizes its population
into different sub-groups, but primarily on racial origin
rather than national one. Spain does not divide its
nationals by ethnic group, although it does maintain an
official notion of minority languages.

Some minorities are relatively so large or historically or

otherwise so important that the system is set up in a way
to guarantee them comprehensive protection and political
representation. As an example, the former Yugoslav
republic of Bosnia and Herzegovina recognizes the three
main nations, none of which constitutes a numerical
majority, as constitutive nations, see nations of Bosnia
and Herzegovina. However, other minorities such
as Romani and Jews are officially labeled as "others" and
are excluded from many of these protections. For
Bharati Law Review, Jan.-Mar., 2014 41

example, they may not be elected to a range of high

political positions including the presidency.

The issue of establishing minority groups, and

determining the extent of privileges they might derive
from their status, is the subject of some debate. One
view is that the application of special rights to minority
groups may be inappropriate in some countries, for
example newly established states in Africa or Latin
America (not founded on the European nation-
state model), where recognition and rights accorded to
specific groups may interfere with the state's need to
establish a cohesive identity, and hamper the ability of
the minority to integrate itself into mainstream society -
perhaps to the point at which the minority follows a path
to separatism or supremacism.

For instance, In Canada, some feel that the failure of

the dominant English-speaking majority to integrate
French has given rise to Quebec separatism. This
position is countered by those that assert that members
of minorities require specific provisions and rights to
ensure that they are not marginalized within society (for
example, bilingual education may be needed to allow
linguistic minorities to fully integrate into the school
system and hence compete on a level playing field in
society), and that rights for minorities, far from
weakening the nation-building project, actually
strengthen it; where members of minorities see that their
specific needs and ambitions have been acknowledged
and catered for, they will commit themselves more
willingly to accepting the legitimacy of the nation and
their integration (as opposed to assimilation) within it.

National Commission for Minorities1

The Union Government set up the National Commission

for Minorities (NCM) under the National Commission for
Minorities Act, 1992.

Five religious communities, viz. Muslims,

Christians, Sikhs, Buddhists and Zoroastrians (Parsis)

1 Available at http://ncm.nic.in/ an official website for National

Commission for Minority.
Bharati Law Review, Jan.-Mar., 2014 42

have been notified as minority communities by the

Union Government.

The Commission has one Chairperson, one Vice

Chairperson and five Members represented five minority
communities. At present the Chairperson is Shri.
Wajahat Habibullah. Dr. H.T. Sangliana is the Vice
Chairperson, Smt. Saeeda Imam, K. N. Daruwalla and
Sh. Vinod Sharma is the present Members. The post of
two of the Members is vacant.

Andhra Pradesh, Assam, Bihar, Chhattisgarh, Delhi,

Jharkhand, Karnataka, Maharashtra, Madhya Pradesh,
Manipur, Rajasthan, Tamil Nadu, Uttarakhand, Uttar
Pradesh and West Bengal have also set up State
Minorities Commissions in their respective States. Their
offices are located in the State capitals. The functions of
these Commissions, inter-alia, are to safeguard and
protect the interests of minorities provided in the
Constitution and laws enacted by Parliament and the
State Legislatures.

Aggrieved persons belonging to the minority

communities may approach the concerned State
Minorities Commissions for redressal of their grievances.
They may also send their representations, to the National
Commission for Minorities, after exhausting all remedies
available to them. Complaints taken up by the
Commission are featured on its official website.2

Genesis of NCM

The setting up of Minorities Commission was envisaged

in the Ministry of Home Affairs Resolution dated
12.01.1978 which specifically mentioned that, "despite
the safeguards provided in the Constitution and the laws
in force, there persists among the minorities a feeling of
inequality and discrimination. In order to preserve
secular traditions and to promote National Integration
the Government of India attaches the highest importance
to the enforcement of the safeguards provided for the
Minorities and is of the firm view that effective
institutional arrangements are urgently required for the

2 http://www.ncm.nic.in.
Bharati Law Review, Jan.-Mar., 2014 43

enforcement and implementation of all the safeguards

provided for the minorities in the Constitution, in the
Central and State Laws and in the government policies
and administrative schemes enunciated from time to
time”. Sometime in 1984 the Minorities Commission was
detached from Ministry of Home Affairs and placed under
the newly created Ministry of Welfare.

With the enactment of the National Commission for

Minorities Act, 1992 the Minorities Commission became a
statutory body and renamed as National Commission for
Minorities.

The first Statutory National Commission was set up on

17th May 1993. Vide a Gazette notification issued on
23rd October 1993 by Ministry of Welfare, Government of
India, five religious communities viz., the Muslims,
Christians, Sikhs, Buddhists and Zoroastrians (Parsis)
were notified as minority communities. As per the 2001
Census, these five religious minority communities
constitute 18.42% of the country’s population.

Functions of NCM

As per Section 9(1) of the National Commission for

Minorities Act, 1992, the Commission is required to
perform following functions:

(a) evaluation of the progress of the development of

minorities under the Union and States;

(b) monitoring of the working of the safeguards for

minorities provided in the Constitution and in laws
enacted by Parliament and the State Legislatures

(c) making recommendations for the effective

implementation of safeguards for the protection of the
interests of minorities by the Central Government or
the State Governments;

(d) looking into specific complaints regarding deprivation

of rights and safeguards of minorities and taking up
such matters with the appropriate authorities;
Bharati Law Review, Jan.-Mar., 2014 44

(e) getting studies to be undertaken into the problems

arising out of any discrimination against minorities
and recommending measures for their removal;

(f) conducting studies, research and analysis on the

issues relating to socio-economic and educational
development of minorities;

(g) suggesting appropriate measures in respect of any

minority to be undertaken by the Central Government
or the State Governments;

(h) making periodical or special reports to the Central

Government or any matter pertaining to minorities
and in particular the difficulties confronted by them.

Section 2(c) of NCM Act, 1992 stipulates that ‘minority’

for the purposes of the Act, means a community notified
as such by the Central Government.

Complaints received from notified minority

communities3

Since the financial year 2000-01, the Commission

received the following number of complaints (year-wise):
2000 – 01: 2478
2001 – 02: 2590
2002 – 03: 3146
2003 – 04: 3578
2004 – 05: 3342
2005 – 06: 20784

The complaints now being received are mostly related to

police atrocities, service matters, minority educational
institutions and encroachments to religious properties.
Reports were called for from the concerned authorities
under the Union and State Governments. On receipt of
the reports, the Commission makes appropriate
recommendations to the respective authorities for
redressal of the grievances.

3 Available at http://india.gov.in/official-website-national-
commission-minorities-0.
4 As on 31. 12. 2005.
Bharati Law Review, Jan.-Mar., 2014 45

Constitution of the National Commission for

Minorities5

The Central Government shall constitute a body to be

known as the National Commission for Minorities to
exercise the powers conferred on, and to perform the
functions assigned to, it under this Act.

The Commission shall consist of a Chairperson, a Vice

Chairperson and five Members to be nominated by the
Central Government from amongst persons of eminence,
ability and integrity; Provided that five Members
including the Chairperson shall be from and amongst the
Minority communities.

The Commission shall have all the powers of a civil

court trying a suit and, in particular, in respect of the
following matters, namely:
a. Summoning and enforcing the attendance of any
person from any part of India and examining him on
oath.
b. Requiring the discovery and production of any
document.
c. Receiving evidence of affidavits.
d. Requisitioning any public record or copy thereof from
any court or office.
e. Issuing commissions for the examination of witnesses
and documents; and
f. Any other matter which may be prescribed.

National Commission for Minority Educational

Institutions6

The National Commission for Minority Educational

Institutions (NCMEI) was established, to begin with,
through the promulgation of an Ordinance. The
Department of Secondary and Higher Education, Ministry
of HRD, Government of India, notified the National
Commission for Minority Educational Institutions
Ordinance 2004 (No. 6 of 2004) on 11th November 2004.
Thereafter, on 16th November 2004, the Ministry of HRD

5 National Commission for Minorities Act, 1992.

6 Available at http://ncmei.gov.in/ an official website for national
commission of minority educational institutions.
Bharati Law Review, Jan.-Mar., 2014 46

issued the notification constituting the Commission, with

its headquarters in Delhi.
1. The genesis of the National Commission for Minority
Educational Institutions can be traced to the UPA
Government’s manifesto called ‘National Common
Minimum Programme’. In the NCMP, in its Section
on “National Harmony, Welfare of Minorities”, it was
mentioned that a Commission for minority
educational institutions would be established which
will provide direct affiliation for minority professional
institutions to Central Universities.

2. The NCMEI Act was an outcome of detailed

consultations in a meeting held on Minority
Education and Welfare at New Delhi which was
followed by subsequent discussions in the National
Monitoring Committee on Minority Education.

3. The Government brought out an Ordinance in

November 2004 establishing the Commission. Later a
Bill was introduced in the Parliament in December
2004 and both Houses passed the Bill. The NCMEI
Act was notified in January 2005.

4. The Commission is mandated to look into specific

complaints regarding deprivation or violation of rights
of minorities to establish and administer educational
institutions of their choice. Protection of rights of
minorities are enshrined in Article 30 of the
Constitution which states that “all minorities,
whether based on religion or language shall have the
right to establish and administer educational
institutions of their choice”.7

5. Thus, the Commission can look into any complaints

relating to violation and deprivation of rights of
minorities to establish and administer educational
institutions of their choice.

6. This is the first time that a specific Commission has

been established for protecting and safeguarding the
rights of minorities to establish and administer
educational institutions of their choice. This

7 Law of the Constitution, V.N. Shukla 10th edition.

Bharati Law Review, Jan.-Mar., 2014 47

Commission is a quasi-judicial body and has been

endowed with the powers of a Civil Court. It is headed
by a Chairman who has been a Judge of the Delhi
High Court and two members to be nominated by
Central Government. The Commission has 3 roles
namely adjudicatory function, advisory function and
recommendatory powers.

7. So far as affiliation of a minority educational

institution to a university is concerned, the decision
of the Commission would be final.

8. The Commission has powers to advise the Central

Government or any State Government on any
question relating to the education of minorities that
may be referred to it.

9. The Commission can make recommendations to the

Central Government and the State Governments
regarding any matter which directly or indirectly
deprives the minority community of their educational
rights enshrined in Article 30.

10. The empowerment of the Commission has provided a

much needed forum for the minority educational
institutions to highlight their grievances and to get
speedy relief. The subject matter of a petition/
complaint include non-issue of No Objection
Certificate (NOC) by the State Governments, delay in
issue of NOC, refusal/delay in issue of minority
status to minority educational institutions, refusal to
allow opening of new colleges/schools/institutions by
minorities, refusal to allow additional courses in
minority educational institutions, delay/refusal in the
release of grants in-aid, refusal to give financial
assistance, denial of permission to create new posts
of teachers in minority educational institutions even
though there is increase in the number of students,
approval of appointment of teachers being denied,
non-equality in pay scales of minority schools
teachers as compared to Government school teachers
denial of teaching aids and or other facilities like
computers, library, laboratory etc. to minority
educational institutions on par with Government
institution, non-availability of books in Urdu in all
Bharati Law Review, Jan.-Mar., 2014 48

subject for students of Urdu school, non-appointment

of Urdu knowing teachers, in adequate payment to
Madarasa employees, non-release of grants to
Madarasa, non-payment of retirement benefits to
teachers and non-teaching staff of minority schools,
extension of Sarva Shiksha Abhiyan facilities to
minority educational institution especially in the
deprived rural areas etc.

Rights of Minority Educational Institutions8

The National Commission for Minority Educational

Institutions Act 2004 (2 of 2005) as amended by the
NCMEI (Amendment Act 2006) lays down rights of
Minority Educational Institutions as under:

1. Any person who desires to establish a Minority

Institution may apply to the competent authority for
the grant of no objection certificate for the said
purpose.

2. The competent authority shall:

(a) On perusal of documents, affidavits or other

evidence, if any; and
(b) After giving an opportunity of being heard to the
applicant, decide every application filed under sub-
section (1) as expeditiously as possible and grant or
reject the application, as the case may be:

Provided that where an application is rejected, the

competent authority shall communicate the same to
the applicant.

3. Where within a period of ninety days from the receipt

of the application under sub-section (1) for the grant
of no objection certificate:

(a) The Competent authority does not grant such

certificate; or
(b) Where an application has been rejected and the
same has not been communicated to the person, who
has applied for the grant of such certificate,

8 The National Commission for Minority Educational Institutions Act,

2004 (2 of 2005) as amended by the NCMEI (Amendment Act 2006).
Bharati Law Review, Jan.-Mar., 2014 49

It shall be deemed that the competent authority has

granted a no objection certificate to the applicant.

Conclusion

Article 30(1) of the Constitution of India gives linguistic

and religious minorities a fundamental right to establish
and administer educational institutions of their choice.
The National Commission for Minority Educational
Institutions Act (for short the ‘Act’) has been enacted to
safeguard the educational rights of the minorities
enshrined in Article 30(1) of the Constitution. It has been
held by the Eleven Judges Bench of the Supreme Court
in T.M.A. Pai Foundation v. State of Karnataka9 that a
minority, whether linguistic or religious, is determinable
only by reference to demography of the State and not by
taking into consideration the population of the country as
a whole. The concept of minority is not new to any
society. In all the countries as per the guidelines of the
UN Declaration protection of minority is effectively
administered. In India minorities and their educational
institutions are protected with the effective institutions
for them separately. Apart from the Constitution separate
legislations, administrative authorities and commissions
look after the mechanism for the protection of minorities.



9 (2002) 8 SCC 481.

Bharati Law Review, Jan.-Mar., 2014 50

MINORITIES, CONSTITUTION AND THE LAW

Dr. Rajeshri N. Varhadi *

Introduction

Abraham Lincoln, the great American President and the

champion of democracy has once said that: “In a
democracy even if there is a single person on the one side
and the rest of the community on the other side the
opinion of that single person is as important as the
opinion of rest of the community and it should be
respected”. In a real democracy therefore the rights of the
minority groups are protected by special provisions of the
Constitution and the law. The founding fathers of the
Constitution have therefore very rightly provided Article
30(1) of the Constitution and the Supreme Court has
observed that the spirit of this Article is the conscience of
the 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 men and women of our
country.

The expression "minority" has been derived from the

Latin word 'minor' and the suffix 'ity' which means "small
in number".

According to Encyclopedia Britannica 'minorities' means

'groups held together by ties of common descent,
language or religious faith and feeling different in these
respects from the majority of the inhabitants of a given
political entity".

J.A. Laponee in his book The Protection to Minority

describes "Minority" as a group of persons having
different race, language or religion from that of majority
of inhabitants.

* Assistant Professor, Department of Law, University of Mumbai,

Mumbai.
Bharati Law Review, Jan.-Mar., 2014 51

In the Year Book on Human Rights U.N. Publication

1950 ed. minority has been described as non dominant
groups having different religion or linguistic traditions
than the majority population.

The Motilal Nehru Report of 1928 showed a prominent

desire to afford protection to minorities, but did not
define the expression. The Sapru Report (1945) also
proposed, inter alia, a Minorities Commission but did not
define Minority. The U.N. Sub-Commission on Prevention
of Discrimination and Protection of Minorities has defined
minority as under:

a) The term 'minority' includes only those non-

documents group of the populations which possess
and wish to preserve stable ethnic, religious or
linguistic traditions or characteristics markedly
different from those of the rest of the population;
b) Such minorities should properly include the number
of persons sufficient by themselves to preserve such
traditions or characteristics; and
c) Such minorities should be loyal to the state of which
they are nationals.1

The initial courtroom attempt to answer the first

question was made in In Re: The Kerla Education Bill
where the Hon’ble Justice S.R. Das, Chief Justice of
India, opined that the expression ‘minority’ would mean
“a community which is numerically less than 50 percent
of the total population.”2

The First Minority Rights were created by Diet of

Hungary in 1849. The first post-war international treaty
to protect minority, designed to protect them from the
greatest threat to their existence was the U.N convention
on the protection and punishment of the crime of
Genocide.

The Constitution of India contains Articles to give them

identity, right to move independently, no restriction
regarding movement etc. Article 29 and 30 of the
Constitution of India expressly recognizes the rights of
minorities. The Constitution of India provides not only

1 http://www.legalservicesindia.com/articles/judi.html.
2 Also see, A.M. Patroni v. E. C. Kesavan, AIR 1965 Kerala, 75.
Bharati Law Review, Jan.-Mar., 2014 52

basic rights which are contained in Articles 14 to 32 to

the minorities but such rights conserved their religion,
language and culture. Article 29 and 30 of the
Constitution provides cultural and education rights to
minorities.

In D.A.V. College v. State of Punjab,3 there was a

question that whether an Arya Samaji Hindu in Punjab
were a linguistic minority. Justice P. Jaganmohon Reddy,
Supreme Court of India observed that: “The Arya Samajis
are entitled to invoke the right guaranteed by Art. 29(1),
because, they are a section of citizens having a distinct
script also, they are entitled to invoke Art. 30(1), because
they are a religious minority.

Thus, It is conceivable that a linguistic or religious

minority may start educational institution of its choice
solely or mainly with the object of preserving its own
language, script or culture. So language as it is apparent
that the object of the educational institution founded by
religious or linguistic minority is to preserve and develop
their own language, script or culture, they are entitled to
the protection guaranteed by the Art 30(1).

The Supreme Court in other landmark case of the

Director, L.F. Hospital, Angamaly v. State of Kerala4 held
that the Christian community in Kerala have the rights to
establish and administer educational institution. A
school of Nursing is an educational institution. Art.30
confers a right to establish and managed the institution
in accordance with their vision and purpose. The right to
administer cannot be separated from the right to
establish. Because of either of the two is taken away the
remaining one would become meaningless. Both the
rights are implicit in the right under Art 29. Education is
necessary adjunct to the conservation of culture and
language. Therefore, the word establish and administer in
Art 30(1) must be read conjunctively and so it comes
clear.

3 D.A.V. College v. State of Punjab, 1971 AIR 1737, 1971 SCR 688.
4 Town Brethren Assembly, Angamaly v. The State of Kerala
Represented by on 23 February, 2010.
Bharati Law Review, Jan.-Mar., 2014 53

The Supreme Court has pointed out in Ahmedabad St.

Xaviers College v. State of Gujarat,5 that the spirit behind
article 30(1) is the conscience of the 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 men and women of the country.

Article 30(1) uses the terms ‘linguistic’ or ‘religious’

minorities. The word ‘or’ means that a minority may
either be linguistic or religious and that it does not have
to be both – a religious minority as well as linguistic
minority. It is sufficient of it is one or the other or both.

The constitution uses the term ‘minority’ without

defining it. In Re: The Kerala Education Bill the Supreme
Court opined that while it is easy to say that minority
means a community which is numerically less than 50
per cent, the important question is 50 % 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 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.

The ruling In Re: The Kerala Education Bill has been

reiterated by the Supreme Court in Guru Nanak
University case,6 In that case, the Supreme Court rejected
the contention of the state of Punjab that a religious or
linguistic minority should be a minority in relation to the
entire population of India. The Court has ruled that a
minority has to be determined, in relation to the
particular legislation which is sought to be impugned. If
it is a state law, the minorities have to be determined in
relation to the state population. The Hindus in Punjab
constitute a religious minority. Therefore, Arya Samajistis
in Punjab also constitute a religious minority having their
own distinct language and script. It is within the realm of

5 St. Xaviers College Society v. State of Gujarat, (1974) 1 SCC 71.

6 D.A.V. College v. State of Punjab, [1971] Supp. S.QR. 688.
Bharati Law Review, Jan.-Mar., 2014 54

possibility that the population of a state may be so

fragmented that no linguistic or religious group may by
itself constitute 50 percent of the total state population.
In such a situation, every group will fall within the
umbrella of Art. 30(1) without there being a majority
group in the state against which minorities need to claim
protection.

Article 30(1) postulate that the religious community will

have the right to establish and administer educational
institutions of their choice. In S.P Mittal v. Union of India, 7
the Supreme Court has stated: ‘In order to claim the
benefit of Article 30(1), the community must show: (a)
that it is religious/linguistic minority, (b) that the
institution was established by it. Without satisfying these
two conditions it cannot claim the guaranteed rights to
administer it”. In Andhra Pradesh Christian Medical
Association v. Government of Andhra Pradesh,8 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.

In Ahemdabad, St. Stephens College v. Government of

Gujarat, (1957, A.I.R. 1958 SC 956) it was observed by
the court that: “Every educational institution irrespective
of community to which it belongs is a ‘melting pot’ in our
national life” and that it is essential that there should be
a “proper mix of students of different communities in all
educational institutions.” This means that a minority
institution cannot refuse admission to students of other
minority and majority communities.

In Managing Board, M.T.M v. State of Bihar9 the

Supreme Court has emphasized that the right to
establish educational institutions of their choice must
mean the right to establish real institutions which will
effectively serve the needs of their community and the
scholars who resort to them.

7 S.P. Mittal v. Union of India & Ors., [1985] 1 SCC 51.

8 A.P. Christians Medical Educational Society v. Government of
Andhra Pradesh, [1986] 2 SCC 667.
9 Managing Board, M.T.M. v. State of Bihar, A.I.R. 1984 S.C. 1757.
Bharati Law Review, Jan.-Mar., 2014 55

Supreme Court has invariably invalidated provisions

seeking to regulate the composition and personnel of the
managing bodies of minority institutions. A provision
interfering with the minorities’ choice of managing body
for an institution has been held to violate article 30(1).
The Gujarat University Act provided that the governing
body of every college must include amongst its members
a representative of the University nominated by the Vice-
Chancellor, representatives of teaching and non-teaching
staff and of the college students. In the celebrated St.
Xavier’s College case,10 the Supreme Court declared the
provision as non-applicable to minority institutions
because it displaced the management and entrusted it to
a different agency; autonomy in administration was lost
and new elements in the shape of representatives of
different types were brought in. The court emphasized
that while the University could take steps to cure
maladministration in a college, the choice of personnel of
management was a part of administration which could
not be interfered with.

In the St. Stephen’s College v. University of Delhi,11 the

Court ruled out that college was established and
administered by a minority community, viz., the
Christian community which is indisputably a religious
minority in India as well as in the union territory of Delhi
where the college is located and hence enjoys the status
of a minority institution. On the question of admission of
students of the concerned minority community, the court
has ruled that, according to Article 30(1), the minorities
whether based on religion or language have the right “to
establish and administer” educational institutions of
their choice and the right to select students for admission
is a part of administration. On this point, the court has
observed: “It is indeed an important facet of
administration.

The right of a minority to establish and administer

educational institutions of its choice also carries with it
the right to impart instruction to its children in its own
language. In D.A.V. College, Bathinda v. State of Punjab12
by a notification, the Punjab Government compulsorily

10 St. Xaviers College Society v. State of Gujarat, (1974) 1 SCC 717.

11 ((1992) 1 SCC 558).
12 1971 AIR 1731 1971 SCR 677.
Bharati Law Review, Jan.-Mar., 2014 56

affiliated certain colleges to the Punjab University which

prescribed Punjabi in the Gurumukhi script as the sole
and exclusive medium of instruction and examination for
certain courses. The Supreme Court declared that it
violated the right of the Arya Samajists to use their own
script in the colleges run by them and compulsorily
affiliated to the University.

The National Commission for Minority Educational

Institutions Act was passed in year 2004 for giving more
teeth to minority education in India. This act allows
direct affiliation of minority educational institutes to
central universities. This act was enacted in order to
provide quality education in minority institutes.

In T.M.A. Pai Foundation & Others v. State of Karnataka

& Others13 stands out as the most significant in terms of
its reach, complexity and potential for shaping the future
of education in the country. The case which was pending
in the apex court for nearly 10 years got transferred from
a Bench of five judges to one of seven judges and finally
to a eleven judge Bench as it involved a fundamental
issue of determining who constituted a "minority" for
availing the special right of minorities under Article 30(1)
of the Constitution "to establish and administer
educational institutions of their choice."

The Supreme Court seems to be in favour of freeing

minority educational institutions from Government
control excepting to maintain academic standards
through prescribing qualifications for teachers and
minimum eligibility for students. The court is emphatic in
declaring that admission of students to unaided minority
educational institutions cannot be regulated at all by a
State or University if the procedure is transparent and
merit-based. The right to admit students is part of the
right to administer educational institutions.

Conclusion

India believes in conservation and maintenance of the

cultures of diverse groups including minority groups
since a democratic system signifies cultural and social

13 AIR 2003 SC 355, AIR 2002 SCW 4957.

Bharati Law Review, Jan.-Mar., 2014 57

unity in diversity. It is therefore imperative that in a

democracy special protection should be accorded to the
minority groups to enable them to retain their cultural
identity and to pursue the path of progress along with the
main stream of the country.

Our Judiciary has clarified that it is inconceivable that

linguistic or religious minority may start educational
institutions of its choice solely or mainly with the object
of preserving its own language, script and culture.
Therefore religious or linguistic minority can start and
maintain their educational institutions to preserve and
develop their own language, script and culture along with
imparting general education to their children.

Indian Judiciary has played a marathon role in

protecting and promoting the various rights of the
minority groups in the country through their brilliant
judicial pronouncements and has contributed
phenomenally to achieving the objectives enshrined in
the Preamble of the Constitution.


Bharati Law Review, Jan.-Mar., 2014 58

MINORITY RIGHTS AND THE INDIAN CONSTITUTION

Dr. M.N. Phad*

Introduction

Human rights took the shape of manmade laws and

statutes, changing contents from country to country and
from century to century.

Human rights shaped in statutory rules developed on

the national level through the Magna Carta 1215 in 13th
century, Britain, through the 1776 American Declaration
of Independence and through 1789 French Declaration of
rights of men which are the turning points on the long
road which mankind had travelled from ancient natural
rights to fundamental rights (Part III Constitution of
India) and modern human rights. Throughout the 13th to
20th centuries, fundamental rights were successively
included into the constitutions of various States.

A new approach to the idea of human rights in the 20th

century was propounded by the socialist States which
advanced the idea of economic, social and cultural rights
(right of nations to self determination, and also to natural
resources, etc), supplementing the traditional, and
individual, political and civil rights.1

Meaning of Human Rights

Human rights, as such, are incorporated in various

international Human Rights Instruments.2 “Human
rights mean the rights relating to life, liberty equality of
the individuals guaranteed by the constitution or
embodied in the International covenants and enforceable
by courts in India.3 As pointed out by Faw Cett: “Human
Rights are sometimes called fundamental rights or basic

* Assistant Professor, V.P’s V.P. Law College, Baramati.

1 Dr. Tripathi G.P., Constitutional Law-New Challenges 131 (Central
Law Publications, Allahabad, First Edition 2013).
2 Dr. Chandra U., Human Rights 1 (Allahabad Law Agency,
Allahabad, Eighth edition 2010).
3 Dr. Nirmala V., Law Relating to Human Rights 5 (Asia Law house,
Hyderabad, 15th edition).
Bharati Law Review, Jan.-Mar., 2014 59

rights or natural rights”4. E. Barker opines: “Rights are

the external conditions necessary for the greatest
possible development of the capacities of the
personality.”5

Provisions Regarding Minority Rights in Indian

Constitution

Article 29: Protection of interests of minorities-

(1) Any section of the citizens residing in the territory
of India or any part thereof having a distinct
language, script or culture of its own shall have
the right to conserve the same.
(2) No citizen shall be denied admission into any
educational institution maintained by the State or
receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them.

Article 30: Right of minorities to establish and

administer educational institutions-
(1) All minorities, whether based on religion or
language, shall have the right to establish and
administer educational institutions of their choice.
(1-A) In making any law providing for the
compulsory acquisition of any property of an
educational institution established and
administered by a minority, referred to in clause
(1), the State shall ensure that the amount fixed by
or determined under such law for the acquisition
of such property is such as would not restrict or
abrogate the right guaranteed under that
clause.(Ins. by the Constitution (Forty-fourth
Amendment) Act1978.)
(2) The State shall not, in granting aid to educational
institutions, discriminate against any educational
institution on the ground that it is under the

4 Dr. Kapoor S.K., International Law and Human Rights 56 (Central

Law Agency, Allahabad, 15th edition).
5 Jayapalan N., Human Rights 2(Atlantic Publishers and Distributors,
New Delhi, First Edition 2000) also see Dr. More V.M., Phad M.N.,
“Human Rights and Global Challenges in a Dialectics and Dynamics
of Human Rights”, Dr. Mrs. Annie John pp. 452-453(Asia Law
House, Hyderabad, 1st Edition, 2012).
Bharati Law Review, Jan.-Mar., 2014 60

management of a minority, whether based on

religion or language.6

Articles 29 and 30 confer certain special cultural and

educational rights on ‘minorities’. The word ‘minority’ has
not been defined in the Constitution. The term ‘minority’
in Article 30(1) covers linguistic and religious minorities.
Minority means less than 51 percent. A person belonging
to linguistic or religious group may be in minority at one
place and may become a member of majority at another
place. For example Muslims, are in majority in the State
of Jammu and Kashmir. But if Jammu is formed as a
separate State within the Union of India under Article 3
of the Constitution, the Muslims are reduced to minority.
The Supreme Court has held that for the purpose of
determining the ‘minority’ the unit will be the State and
not the whole of India. Thus, linguistic and religious
minorities, which have been put at par in Article 30have
to be considered State-wise7 Article 29(1) is available to
all citizens whether in majority or minority but, Article
30(1) is not available to majorities.8

Article 29(1) does not mention any restriction. In Jagdev

Singh Sidhanti v. Pratap Singh Daulta9, the Supreme
Court held that the right to conserve language, script and
culture under Article 29(1) is absolute. The marginal note
of Article 29 is “protection of interests of minorities”.
However, Article 29 is available to all the citizens and is
not confined to minorities.

Article 30 does not use the word ‘citizens’ this raises the
question can foreigners not residents in India establish
minority educational institutions of their choice’? In S.K.
Patro v. State of Bihar10, the Court held that foreigners
not resident in India have no such right. This position
has again been clarified by the Supreme Court in St.
Stephen’s College v. University of Delhi11.

6 Majumdar P.K. & Kataria, R.P., The Constitution of India 13(Orient

Publishing Company, New Delhi, Eighth Edition reprint 2001).
7 Dr. Joshi K.C., The Constitutional Law of India 291 (Central Law
Publications, Allahabad, First Edition 2011) also see T.M.A. Pai
Foundation v. State of Karnataka, A.I.R. 2003 S.C. 355).
8 Id.
9 Id also see A.I.R.1965 S.C. 183.
10 Id at p. 294 also see A.I.R.1970 S.C. 259.
11 Id also see A.I.R.1992 S.C.1630.
Bharati Law Review, Jan.-Mar., 2014 61

The rights of minorities under Articles 29 and 30 are

not higher rights but mere additional protections
conferred on minorities. Minority communities have no
higher rights than the majority communities. The rights
of Articles 30(1) are not absolute. The laws such as
pertaining to health, morality and standards of education
apply to Article 30 also.

An article 29 and 30 protect the interest of minorities

and provides certain rights to the minorities. “These
provisions are unique in their thoroughness. There is
nothing comparable to these rights in the Bill of Rights of
the U.S. Constitution. Two Constitutions which do have
provision which resemble certain parts of these two
articles are the Burmese and the Irish Republic’s....A
third country which too thought in terms of making an
express provision in this regard is West Germany...None
of these Constitutions, however, goes so far as the
Constitution of India.12

Scope of Arts. 29-30

• Right of any section of citizens to conserve its own
language, script or culture {Art. 29 (1)};
• Right of all religious or linguistic minorities to
establish and administer educational institutions
of their choice {(Art. 30 (1)};
• Right of educational institution not to be
discriminated against in the matter of state aid on
the ground that it is under management of a
minority {Art. 30 (2)};
• Right of a citizen not to be denied admission into
State–maintained or state aided educational
institution on ground only of religion ,race, caste,
or language {Art. 29(2)}

These rights are conferred on certain sections of the

community which constitute minority communities Art.
29 and 30 are intended to confer protection to minorities
rather than a right as such.

Art. 29(2) and Art. 30(1), read together, clearly

contemplate a minority institution with a “sprinkling of

12 Prof. Rai Kailash, The Constitutional Law of India 297 (Central Law
Publications, Allahabad, 10th Edition, 2011).
Bharati Law Review, Jan.-Mar., 2014 62

outsiders” admitted in it. By admitting a member of non-

minority into the minority institution, it does not shed its
character and cease to be a minority institution13.The
right to administer may be said to consist of the following
rights-to choose its managing or governing body, to
choose its teachers and Headmaster/Principal, not to be
compelled to refuse admission to students, to use its
properties and assets for the benefits of the institution, to
select its own medium of instruction, hence, a legislation
which would penalize by disaffiliation from the university
any institution which uses a language as the medium of
instruction other than the one prescribed by it, offends
against Art. 30(1)14

Limits of the right to administer are such as- to

maintain the educational character and standard of such
institution, e.g., to lay down qualifications or conditions
of service to secure appointment of good teachers, to
ensure interests of students, to maintain a fair standard
of teaching, to ensure orderly, efficient and sound
administration and to prevent maladministration, and to
secure its proper functioning as an educational
institution, to ensure that its funds are spent for the
betterment of education and not for extraneous purposes,
to prevent anti-national activity, to enforce the general
laws of the land, applicable to all persons e.g., taxation,
sanitation, social welfare, economic regulations, public
order, morality, to prescribe syllabus, curriculum of
study and regulate the appointment of teachers, to
ensure efficiency and discipline of the institution.15

In Bal Patil v. Union of India16 it was held that the Jain

community is not a minority in the State of Maharashtra.
Against the background of partition, Articles 29 and 30
were inserted in the Constitution to give special security
to the minds of minorities–Muslims and other religious
communities-and thus maintain integrity of nation. This
was the aim of the constitutional Scheme. But if on the
basis of different religious thought or less numerical

13 Basu Durga Das, Shorter Constitution of India 492 (Butterworths

Wadhwa,Nagpur, 14th edition reprint 2010) also see P.A. Inamdar v.
State of Maharashtra (2005) 6 SCC 537 591-592 (para 98).
14 Id at p. 500.
15 Id at pp. 502-503.
16 Dr. Pandey J.N., The Constitutional Law of India 365 (Central Law
Agency, Allahabad, 49th edition 2012) also see AIR 2005 SC 3172.
Bharati Law Review, Jan.-Mar., 2014 63

strength or lack of health, wealth, education, power or

social rights the claim of a section of Indian society to the
status of ‘minority’ is considered and conceded, there
would be no end to such claims. A claim by one group of
citizens would lead to a similar claim by another group of
citizens and conflict and strike would ensue. “Hinduism”
can be called a general religion unlike “Jainism” a special
religion.

Articles 29 and 30 are intended to protect the minorities

so as to enable them to conserve their own language,
script and culture and prevent discrimination against
minorities on grounds only of religion, race, language or
any of them in educational institutions. In the past in
certain countries minorities were forced to adopt the
script and language of ruling majorities. They were also
subjected to certain disadvantages because they had
religion different from that of ruling majority and were
even forced to convert themselves to the religion of the
majority ruling class. In the background of such
historical experience many countries have now provided
for safeguards to minorities in their constitutions.17

The provisions of these two Articles were incorporated

in Article 23 of the Draft Constitution which was adopted
by the Constituent Assembly but subsequently, at the
revision stage, the Drafting Committee divided the
provisions of Articles 23 of the Draft Constitution and put
them into two Articles 29 and 30. Article 29, which
incorporates clauses (1) and (2) of the Draft Articles 23,
guarantees to minorities the right to conserve their
language, script and culture, etc., and right to admission
in educational institutions, whereas Article 30
guarantees them right to establish and administer
educational institutions of their choice.18

The word ‘minority’ is not defined in the Constitution

but literally it means a non dominant group. It is a
relative term and is referred to, to represent the smaller
of two numbers, sections or group called ‘majority’. In

17 Pande G.S, Constitutional Law of India 187 (Allahabad Law Agency,

Haryana, 7th Edition, 1999).
18 Id at pp.187-188.
Bharati Law Review, Jan.-Mar., 2014 64

that sense, there may be political minority, religious

minority, linguistic minority, etc.19

Article 29(1) Right of Minorities to Conserve

Language, Script or Culture

Clause (1) of Article 29 guarantees to any section of

citizens who have distinct language, script or culture of
their own, a right to conserve the same. As the heading of
the Article is protection of interests of Minorities’ it
suggests that only those sections of citizens who are in
minority, can claim this right but the Supreme Court in
St Xavier’s College v. State of Gujrat20 held that the words
‘section of citizens’ in Article 29 includes minorities as
well as majority. No doubt, in the original draft of the
Constitution the word ‘minority’ was used and the
Drafting Committee substituted the words ‘sections of
citizens’ in place of the word ‘minority.’ However the
substitution of the words ‘sections of citizens’ in place of
the word ‘minority’ was only with a view to give protection
of Article 29 not only to minorities in technical sense but
minorities in a wider sense.

In D.A.V. College Jullunder v. State of Punjab21 the

Supreme Court held that religious or linguistic minorities
are to be determined in relation to the particular
legislation which is attacked. If the legislation in question
is of State Legislature these minorities should be
determined on the basis of the population of the whole of
the State. It is logically follows that if it is Central
legislation minority character may be determined on the
basis of the population of the whole country. As in the
case the legislation in question was of State Legislature it
was held that Hindus in Punjab were in minority.

In the original Draft Constitution the words were

“language, script and culture” but the Drafting
Committee substituted the words “language, script or
culture”. Shri B.N. Rau pointed out that it was necessary
because there were sections of people with separate

19 Bakshi P.M., The Constitution of India 69 (Universal Law Publishing

Co, New Delhi, 10th Edition Reprint 2011) also see T.M.A. Pai
Foundation v. State of Karnataka, AIR 2003 SC 355.
20 Supra note 18 at p.188. kindly see AIR 1974 SC 1389.
21 Id at p.189 also see AIR 1971 SC 1737.
Bharati Law Review, Jan.-Mar., 2014 65

language and script but who had no separate culture

(e.g., Andhras in Orissa). On the other hand, there were
sections of people who had separate culture but no
separate language or script (e.g., Muslims in Bengal).

In Shri Krishna v. Gujarat University22 the Gujarat High

Court had to consider the validity of an Act which
prohibited the use of English as a medium of instruction.
The Court held that the Act violated Arts. 29 and 30 of
the Constitution. The University of Gujarat went in
appeal to the Supreme Court, but lost the appeal.

An important consequence of the ‘right to conserve’

one’s script is that citizens have the right to agitate for
the protection of their language. ‘Political’ speeches for
the conservation of the language of a section of the
citizens cannot, therefore, be regarded as a corrupt
practice within the meaning of section 123(3) of the
Representation of the people Act, 1951.23

In State of Bombay v. Bombay Education Society24 the

State Government issued an Order banning admission of
all whose language was not English into schools having
English as medium of instruction. The Order of the
Government was struck down as violative of Article 29(2)

Article 29(2) Right of Citizens to Admission in

Educational Institutions

Clause (2) of Article 29 prohibits denial of admission to

any educational institution, which is maintained by the
state or which receives aid from the State funds, only on
grounds of race, religion, caste or language. Thus,
reservation of seats on ground of residence in any
particular territory does not violate Article 29(2)25 Under
Article 29(2) all citizens belonging to majority group have

22 Jhabvala Noshirvan H., The Constitution of India 62-63 (C.

Jamnadas & Co. educational &law publishers, Mumbai, Nineteenth
Edition, 1999), kindly see AIR 1962 Guj. 86.
23 Supra note 20 at p. 66 kindly see Jagdev Singh Sidhani v. pratap
Singh, AIR 1965 SC 183(188).
24 Prof. Narender Kumar, Constitutional Law of India 398 (Allahabad
Law Agency, Haryana, Seventh edition reprint 2010) also see AIR
1954 SC 561.
25 Supra note 18 at p. 191 also see Chitra Ghosh v. Union of India, AIR
1970 SC 35.
Bharati Law Review, Jan.-Mar., 2014 66

been given a general right to admission to State

maintained or aided schools. If an institution maintained
by a minority community receives aid from the state it
cannot refuse admission to members of other
communities.26 In St. Stephen’s College v. University of
Delhi27 the Supreme Court has laid down that the
minority aided institutions are entitled to prefer
candidates of their own community to maintain minority
character of the institution but at least 50 percent of the
annual admissions should be made available to
candidates of other communities. Thus, reservation in
favour of candidates of the community administering the
institution should not exceed 50 percent. The decision
thus allows reservations up to 50 percent.

In State of Bombay v. Bombay Educational Society28 a

circular issued by the State Government directed that
from the day of the order no primary or secondary school
should admit to a school, where English was used as the
medium of instruction, any pupil other than a pupil
belonging to a section of citizens the language of which
was English namely Anglo Indians and citizens of non-
Asiatic descent. The order was held unconstitutional for
violation of Article 29(2) as denial of admission was solely
on the ground of language. However where a writ petition
was filed seeking direction that premedical and pre dental
entrance examination be held by the Central Government
in Hindi and other regional languages and not in English
alone, the Supreme Court held that not holding of
entrance examination in Hindi or others regional
languages does not amount to denial of admission on the
ground of language..29

Where seats in the educational institutions are reserved

by the State Government on the basis of residence or
domicile or sex or on the basis of the need of the
inhabitants of that State, there would be no violation of
Article 29(2)30.

26 Id at p.192 also held in State of Madras v. Champakam Dorairajan,

AIR 1951 SC 226.
27 Id also see A.I.R. 1992 S.C. 1630.
28 Ibid also see A.I.R.1954 S.C. 561.
29 Ibid kindly see Hindi Hit Rakshak Samiti v. Union of India, A.I.R.
1990 S.C. 851.
30 Supra note 25 at p. 398.
Bharati Law Review, Jan.-Mar., 2014 67

Article 29(2) cannot be invoked for seeking admission

into educational institutions getting no grants-in-aid from
the State.31

The High Court of Madras had held that the effect of

omitting the word “sex” from Article 29(2) is that the right
of women to admission in educational institutions is a
matter within the regulation of college authorities32 In
English Medium Students Parents Assn. v. State of
Karnataka33 it held that Karnataka’s language policy
which provided instruction in mother tongue at the
primary stage with progressive use of Kannada from class
III onwards did not violate minority rights under Article
29 or 30.

Article 30(1) Right to Establish and Administer

Educational Institutions of Their Choice

Clause (1) of Article 30 guarantees that all minorities,

whether based on religion or language, shall have the
right to establish and administer educational institutions
of their choice. It is clear from the language that the right
is two-fold. They can establish an institution of their
choice and they also have right to administer it. The
expression “educational institution” may include a
university. What distinguishes a university from other
educational institutions is that a university grants degree
of its own which other educational institutional cannot
do. The words “establish” and “administer” must be read
conjunctively and so read, the minorities will have right
to administer educational institution of their choice,
provided they have established them, but not otherwise.
Minorities will not have right to administer institution
which has been established by someone else. The word
“establish” means to bring into existence and therefore if
minorities bring into existence an educational institution
then they will have right to administer it34.

31 Id also see Asha Gupta v. State of Punjab, AIR 1987 P & H 227.
32 Singh Mahendra P., V.N. Shukla’s Constitution of India 259
(Eastern Book Company, Lucknow, Eleventh Edition 2010) also see
University of Madras v. Shantha Bai, AIR 1954 Mad 67.
33 Id at p. 272 kindly see AIR 1994SC 1702.
34 Supra note 18 at p.189.
Bharati Law Review, Jan.-Mar., 2014 68

In D.A.V. College, Jullundhar v. State of Punjab35, the

University prescribed Punjabi language in Gurumukhy
script as the exclusive medium of instruction and
examination. D.A.V. College was one of the colleges which
were compulsorily affiliated to Punjab University. The
college was run by D.A.V. College Trust and Society
registered under Societies Registration Act as an
association comprised of Arya Samajis who were held to
be minority community in the State of Punjab. Following
Gujarat University v. Krishna Ranganath36 the Supreme
Court held “ While the University can prescribe Punjabi
as a medium of instruction it cannot prescribe it as the
exclusive medium or compel affiliated colleges
established and administered by linguistic or religious
minorities or by a section of society who wish to conserve
their language, script and culture to teach in Punjabi or
take examination in that language with the Gurumukhy
script.”

In Bramchari Sidheswar Shai v. State of W.B.37 Ram

Krishna Mission was held to be a section of Hindu
religion and not a religious minority.

Article 30(1) does not Confer Any Right on Non-

resident Foreigners

Unlike Article 29 the word ‘citizen’ is not to be found in

Articles 30(1) or 30(2). The guarantee is to minorities. The
expression ‘minority’ here suggests a section of persons
residing in India. It is, therefore, necessary that the
persons establishing educational institution must be
residing in India but it is not necessary that they should
also be citizens of India.38

State’s Power to Regulate Minority Institutions

Unlike Article 19 freedom to establish and administer

educational institutions by minorities guaranteed under
Article 30 is absolute in terms. It is not made subject to
any reasonable restrictions to which freedom mentioned

35 Id. kindly see A.I.R. 1971 S.C. 1731.

36 Id at p.190 also see A.I.R.1963 S.C. 703.
37 Id also see(1995) 4 SCC 646.
38 Id at p.191 also see Bishop S.K. Patro v. State of Bihar, A.I.R. 1970
S.C. 259.
Bharati Law Review, Jan.-Mar., 2014 69

in Article 19 may be subjected39. Minority character of an

institution does not depend upon declaration of the
Government. Declaration is only open acceptance of an
existing factual position40. Minority institutions may be
categorized in three classes:
(i) Educational institutions which neither seek aid
nor recognition from the State,
(ii) Educational institutions which seek recognition
from the State but not aid and
(iii) Educational institutions which seek aid as well as
recognition from the State

Institutions falling in the second and third categories

are subject to regulatory measures which may be
imposed as conditions for granting recognition or aid
such as prescribing syllabus for examination, courses of
study, conditions of employment of teachers and
discipline of students etc. but not onerous conditions
compelling them to surrender their right to administer
the institution to the Government. Institutions falling in
category (1) are free to administer their affairs in the
manner they like. The State has no power under the
Constitution to place restrictions on their right to
administer41. But this does not mean that they are
immune from operation of general laws of the land. They
cannot claim immunity from contract law; tax measures
economic regulations, industrial and social welfare
legislations and other measures to meet the need to the
society. Right is to administer not to mal administer the
institution42. The right is subject to regulatory measures
which the State might impose for furthering the
excellence of standard of education or of ensuring
orderly, efficient and sound administration.43 It is
permissible to make regulations for ensuring regular
payment of salaries before a particular date of each
month. Regulations may provide that the institution
would appoint qualified teachers or those funds of the

39 Id at p.193 also see Sidhrajbhai v. State of Gujrat, A.I.R. 1963 S.C.

540.
40 Id kindly see N. Ahmad v. Manager Emjay High School, (1998) 6
S.C.C. 674.
41 Id also see All Bihar Christian Schools Association v. State of Bihar,
(1988) 1 SCC 206.
42 Id also see In Re: The Kerala Education Bill, A.I.R. 1958 S.C.956.
43 Id at p.194 kindly see St.Xavier’s College v. State of Gujarat, A.I.R.
1974 S.C. 1389, 1396.
Bharati Law Review, Jan.-Mar., 2014 70

institution should be spent for the purpose of the

education and betterment of the institution. Regulation
may also provide for health and sanitation.44

In the All Saints High School v. The Government of

Andhra Pradesh & Others45 the Supreme Court observed
that although, unlike Art.19, the right under Art. 30 is
absolute and unconstitutional, this does not mean that it
contains a free license for maladministration, so as to
defeat the very object behind Art. 30, namely the
advancement of excellence and perfection in the field of
education

In Father Thomas Shingare v. State of Maharashtra46,

the Supreme Court held that the State cannot impose
any restrictions on the right of the minorities to
administer unaided educational institutions excepting to
ensure excellence in education, but no immunity can be
claimed by minority institutions for carrying on nefarious
practices of misusing administration for making huge
profits by collecting exorbitant sum from them and
parents of the students under the cover of Art. 30 (1).

‘Minorities’ educational institutions will be protected

under Art 30 at the stage of law making. But, they don’t
become immune from the operation of regulatory
measures because the right to administer does not
include right to mal-administer. The manner and number
of admission should not be violative of minority
character.47

In State of Bihar v. Syed Asad Raza,48 it has been held

that for creation of post in a minority institution for
appointment prior approval of the Vice-Chancellor is not
necessary and the persons so appointed would be entitled
to grant in aid in view of Art. 30 (1) of the Constitution.

44 Id .
45 Supra note 23 at p.63 kindly see A.I.R. 1980 S.C. 1042.
46 Prof. (Dr.) Rao Pola Koteswar, Prof. G.C.V. Subba Rao’s Indian
Constitutional Law 232 (S. Gogia & Company Hyderabad, 10th
Edition, 2009) Kindly see A.I.R. 2002 SC 463.
47 Id at p.238 also see P.A. Inamdar v. State of Maharashtra, AIR 2005
SC 3226.
48 Supra note 17 at p. 349 also see AIR 1997 SC2425.
Bharati Law Review, Jan.-Mar., 2014 71

The Gujarat University prescribed Gujarati or Hindi as

the sole medium of instruction and examination. The
Court held that it infringed the right of the Anglo-Indians
whose mother-tongue was English and violated Article
30(1).49

In Kerala, the Christian community was running a boys

school. It sought permission from the authorities to admit
girls. The permission was refused on the ground that
there was a Muslim girls’ school nearby. The Supreme
Court lay down that the order refusing the permission
was unconstitutional.50

Article 30(1A) Right to Compensation in Case of

Acquisition of Property

Article 30(1A), which has been inserted by Constitution

(Forty-fourth Amendments) Act 1978, provides that in
making any law providing for compulsory acquisition of
any property of an educational institution established
and administered by a minority referred to in clause (1) of
Article 30 the State shall ensure that the amount fixed or
determined under such law is such as would not restrict
or abrogate right guaranteed by Article 30(1). Prior to
Constitution (Forty-fourth Amendment Act), 1978 this
provisions was in proviso to Article 31(2) which has been
repealed by Constitution (Forty-fourth Amendment) Act,
1978 51

If the State seeks to acquire property belonging to a

minority educational institution, the relevant law must
provide for such compensation as would enable the
minority community to replace the acquired institution
by a new one comparable to the acquired one as regards
site, size and shape. This cost of reproduction, to say the
least, must not be less than the market value of the
acquired property, and in the case of scarcity of land and

49 Manohar Sujata V., Tope’s T.K.Constitutional Law of India 301-302

(Eastern Book Company, Lucknow, Third edition 2010) kindly see
Gujrat University v. Krishna Rangnath Mudholkar, AIR 1963 SC
703.
50 Id at pp.304-305 also see Mark Netto v. State of Kerala, (1979)1 SCC
23.
51 Supra note 18 at p.191.
Bharati Law Review, Jan.-Mar., 2014 72

cost of construction, it may even be higher than the

market value of the acquired property.52

Right to property of minority Institutions Article 30(1-A)

Clause 1-A was inserted in Article 30 by the Constitution
(Forty-fourth Amendment) Act, 1978. The Constitution
Bench of the Supreme Court in Society of St. Joseph’s
College v. Union of India,53 has held that the property of
minority educational institution under Article 30 cannot
be acquired under any general law, such as, the land
Acquisition Act, 1894. For this purpose, there must be a
separate law for acquiring the property of minority
community which does not restrict or abrogate the right
guaranteed under Article 30 of the Constitution of India.
However, such an extended special protection to minority
educational institutions does not seem to be justified.
The Court can always examine the abuse of power even
under the general law providing for acquisition of the
property of the minority educational institutions.

Protection under Articles 29 and 30 is not a privilege,

but is a protection to the religious/linguistic minority
communities, to attain equality with other
religious/linguistic groups of India.54

Article 30(2) Right against Discrimination in Matters

of Granting Aid

Clause(2) of Article 30 says that State shall not in

granting aid to educational institutions discriminate
against any educational institution on the ground that it
is managed by a linguistic or religious minority. The
enactment of special provision by the Supreme Court in
Sidharajbhai v. state of Gujarat55 that the right under
Article 30(1) is intended to be effective right not to be
whittled down by so called regulatory measures.

State can attach reasonable condition to recognition or

grant-in-aid but so as not to discriminate on the ground

52 Supra note 13 at p.309.

53 Supra note 8 at p. 305 also see A.I.R. 2002 S.C. 195.
54 Supra note 25 at p. 396 also see Committee of Management v. State
of U.P., AIR 2007 (NOC) 1989(All).
55 Supra note 18 at p.191 kindly see A.I.R.1963 S.C. 540.
Bharati Law Review, Jan.-Mar., 2014 73

that the institution is managed by a religious or linguistic

minority.

The Apex Court in T.M.A. Pai Foundation v. State of

Karnataka56 has observed that the expression
“education” means and includes education at all levels
from the primary school level up to the post-graduate
level...even professional educational institutions would be
covered by Article 30.

The State can regulate the appointment by prescribing

requisite qualifications, but the right to appoint
candidate of its choice, from amongst qualified
candidates, shall be with the management.57

A minority whether based on religion or language has a

right to establish institutions of a general secular
character not designed to conserve their language etc.
such as a college of general education, or a teachers’
training college, etc. Anjuman-e-Islamiah, Kurnool v. State
of Andhra “established by it, students of other
communities are also admitted.

As early as 1958, in the famous Kerala Education Bill,

the Supreme Court has observed: “The right conferred on
the religious and linguistic minorities to administer
educational institutions of their choice is not an absolute
right”.58

A significant facet of the administration of an

educational institution is the maintenance of discipline
among the members of its staff .The right of the minority
institution to take disciplinary action against the
teachers and other employees is a very vital aspect of the
management’s Fundamental Right to administer the
institution. Any rule taking away or interfering with this
right cannot be regarded as compatible with Art. 30(1).59

56 Supra note 25 at p. 404 also see AIR 2003 SC 355.

57 Id at p. 407 also see Malakara Syrian Catholic College v. T. Jone,
(2007) 1 SCC 386.
58 Id.
59 Id at pp. 1447-1448.
Bharati Law Review, Jan.-Mar., 2014 74

Conclusion

From this research paper researcher has attempted to

clarify minority rights. Rights and duties are correlated
with each other. Some rights are available to person from
his birth and end with his death these are called as
human rights or fundamental rights. This research paper
deals with minority rights and Indian Constitution.
Constitution confers fundamental rights to minorities.
Constitutional Law is Supreme Law. In India different
type of people are residing together. There is no religion of
state. State never favours any religion. All religions are
respected in India. Arts. 25 to 28 of the Constitution
speak about freedom of religion. Every person has
fundamental right to profess, practice and propagate
religion. Art.29 and Art.30 recognized and preserve rights
of minority. But minority has not defined in the Indian
Constitution. According to Art 29 any Indian citizen
residing in India has right to conserve its own language,
script or culture. Generally state is considered as unit
while determining minority. One can work for one’s
mother language, script or culture. If any institution
maintained or receiving aid from state funds then state
control such institution. There can be discrimination on
the ground of sex or place of birth. Under minority rights
seat can be reserved on the basis of residence or sex. Art
29(2) available against state as well as state aided
educational institutions. All minorities have right to
establish and administer educational institutions from
primary to post graduate as well as professional
education, but this right is not absolute. Even private
educational institution can be controlled by state if
administration is not proper or unfair. State shall not
discriminate in granting aid to educational institution.
State shall not acquire land of minority institution
without giving market value of the land. State can control
minority institution. Minorities are of two types i.e.,
Linguistic minority and Religious minority. Minority
educational institutions enjoy some special rights these
are right to choose and appoint any qualified person as
principal. Right to administer includes disciplinary action
against the employees, no right to collect capitation fee,
determination of fee structure, right to administer
excludes right to oppress or exploit the teaching staff.
Above all points are highlighted by Supreme Court in
Bharati Law Review, Jan.-Mar., 2014 75

number of case laws recently Central Government

declared Jain as religious minority community.


Bharati Law Review, Jan.-Mar., 2014 76

MINORITY RIGHTS AND THE INDIAN CONSTITUTION

Ms. N. Jayalakshmi*

Introduction

Man was a nomad with no protection and family. When

man began to form and live in groups, he formed the
groups in such a fashion that some resemblance in their
attitude, activities, culture, and color was found. There
was homogeneity. These homogeneous groups started
following caste system especially in India. Slowly man
surrendered to the powerful group or powerful kingdom,
which is also known as social contract theory. The
powerful group or powerful kingdom commanded and
ruled over the weak and they became the minority group.

The Indian society lacks homogeneity as there exist

differences of religions, language, culture etc., and there
are sections of people who are comparatively weaker than
other’s culturally, socially and economically. India is a
religious tolerant nation, minority groups have
contributed enormously during and after independence
for building of our nation. Mutual suspicion and distrust
exists between various religious and linguistic groups. To
promote a sense of security, to ameliorate the conditions
of the minorities and to make them useful members of
the society the Constitution has set up an effective
institutional machinery to oversee that safeguards are
properly effectuated by the various governments in the
country. This machinery has been strengthened by
statutory bodies.1

Objective of the Study

• To understand the concept of minority.

• The rights available to minorities under Indian
Constitution.
• To understand the role played by the national
commission for minorities.

* Assistant Professor, C.M.R. Law School, Banglore.

1 M.P. Jain; Indian Constitutional Law; 6th edition: 2012; Gurgoan:
LexisNexis Butterworths Wadhwa; at p. 18.
Bharati Law Review, Jan.-Mar., 2014 77

Who is a Minority?

The Oxford dictionary defines “minority” as “the smaller

number or part, especially a number or part representing
less than half of the whole”.2 A minority group is a
sociological category within a demographic. The term
refers to a category that is differentiated and defined by
the social majority, that is, those who hold the majority of
positions of social power in a society. The differentiation
can be based on one or more observable human
characteristics, including, e.g., ethnicity, race, gender,
wealth, health or sexual orientation. In social sciences,
the term “minority” is used to refer to categories of
persons who hold few positions of social power.3

Anthropologist Charles Wagley and Marvin Harris

defined minority groups in 1958 by five characteristics:
their relative powerlessness when compared to majority
groups, their distinct cultural and/or physical
characteristics, their self consciousness, the
transmittance of membership by descent rules and inter-
marriage.4

According to United National Article 1 refers to

minorities as based on national or ethnic, cultural,
religious and linguistic identity, and provides that States
should protect their existence. There is no internationally
agreed definition as to which groups constitute
minorities.5

According to a definition offered in 1977 by Francesco

Capotorti, Special Rapporteur of the United Nations Sub
–Commission on Prevention of Discrimination and
Protection of Minorities, a minority is: “A group
numerically inferior to the rest of the population of a
State, in a non-dominant position, whose member 0
being nationals of the State possess ethnic, religious or
linguistic characteristics differing from those of the rest of
the population and show, if only implicitly, a sense of

2 http://www.oxforddictionaries.com/definition/english/minority.
3 http://en.wikipedia.org/wiki/Minority_group.
4 http://www.eolss.net/sample-chapters/c13/e1-20-04-04.pdf.
5 http://www.ohchr.org/EN/Issues/Minorities/Pages/internationallaw.

aspx.
Bharati Law Review, Jan.-Mar., 2014 78

solidarity, directed towards preserving their culture,

traditions, religion or language”.6

In Re: The Kerala Education Bill7, the Supreme Court

observed that while it was easy to say that the minority
meant a community which was numerically less than
50% the important question was: 50% of what–the entire
population of India or of a State or of a part thereof? A
community might be in majority in a State, but it might
be a minority in the whole of India. A community might
be in majority in a State, but it might be a minority in the
whole of India. A community having concentration in a
part of the State would be a majority there, though it may
be in a minority in the State as a whole. If a part of a
State is to be taken then the question would be where to
draw a line and what unit would be taken into
consideration–a district, a town, a municipality or its
ward. The Supreme Court observed that minority was to
be determined only in relation to the particular legislation
which was being challenged.8

The Court in A.S.E. Trust v. Director, Education, Delhi

Adm.9 has pointed out that the sections of one religion
cannot constitute religious minorities. The term
“minority based on religion” should be restricted only to
those religious minorities, e.g., Muslims, Christians,
Jains, Buddhists, Sikhs etc., which have kept their
identity separate from the majority, namely, the Hindus.

It has been held by the Eleven Judges Bench of the

Supreme Court in T.M.A. Pai Foundation v. State of
Karnataka10 that a minority, whether linguistic or
religious, is determinable only by reference to
demography of the state and not by taking into
consideration the population of the country as a whole.11

6http://www.ohchr.org/Documents/Publications/MinorityRights_en.pd

f.
7 AIR 1958 SC 956.
8 Prof. Narender Kumar; Constitutional Law of India; 5th edn; 2006;
Faridabad: Allahabad Law Agency; at p. 393.
9 AIR 1976 Del 207.
10 AIR 2002 8 SCC 481.
11http://ncmei.gov.in/writereaddata/filelinks/c296efcb_Guidelines.pdf.
Bharati Law Review, Jan.-Mar., 2014 79

Nature of Rights of Minorities under Indian

Constitution

The most important event after Independence has been

the drafting of the Constitution of India enshrine the
principles of equality, liberty and social justice.12 The
Constitution of India has certain provisions relating to
minorities. It makes special provisions for the treatment
and development of minorities in every sphere of life.

The Preamble: The Preamble does not discriminate

between minority and majority, it treats them alike. The
Preamble contains the quintessence of the Constitution
and reflects the ideals and aspirations of the people. The
preamble contains the goal of equality of status and
opportunity to all citizens. The aspect of social justice is
further emphasized and dealt with in the Directive
Principles of State Policy.

Article 14-Equality before Law: “The State shall not

deny to any person equality before the law or the equal
protection of the laws within the territory of India.”

The Preamble of the Constitution itself declares that all

people irrespective of their caste, class, colour, creed, sex,
region or religion will be provided with equal rights and
opportunities. Articles 15(1) and 15(2) prohibit
discrimination on grounds of religion. Article 25 promises
the right to profess, propagate and practice religion. It is
clear that there is no legal bar on any religious
community in India to make use of the opportunities
[educational, economic, etc.] extended to the people. It is
true that some religious communities [e.g., Muslims]
have not been able to avail themselves of the
opportunities on par with other communities.13

The Preamble of the Constitution describes the concept

of secularism which means that the State has no religion
of its own, and there is equal respect for and protection
to all religions. No one is to be discriminated on grounds

12 Mamta Rao, Law Relating to Women and Children, 2nd edn., 2011,
Lucknow: Eastern Book Company, at p. 22.
13http://www.shareyouressays.com/87317/essay-on-problems-of-

minorities-in-india.
Bharati Law Review, Jan.-Mar., 2014 80

of religion and everyone is guaranteed full and equal

freedom of religion.14

Fundamental Rights: Human rights are the entitlement

of every man, belonging to majority or minority
community and it has been made enforceable as
fundamental rights of India. In Maneka Gandhi v. Union
of India, Justice Bhagwati said: “These fundamental
rights represent the basic values cherished by the people
of this country since the Vedic times and they are
calculated to protect the dignity of the individual and
create conditions in which every human being can
develop his personality to the fullest extent.”15

The special features of fundamental rights which are

guaranteed to all citizens irrespective of their minority
status are:
• Right to equality (Articles 14 and 15)
• Right to freedom (Articles 19–22)
• Right against exploitation (Articles 23–24)
• Right to freedom of religion (Articles 25–28)
• Cultural and educational rights (Articles 29-30)
• Rights to constitutional Rights (Articles 32–35)

Recognition and protection of minority rights under a

legal framework has two fold objectives–firstly to prevent
state from being oppressive against the minorities as in a
democratic setup government is run by majority,
secondly to provide the minority a protective zone
whereby they can preserve their separate identity while
contributing in national development and progress.16

According to Article 29(1), any sections of the citizens

residing in any part of India having a distinct language,
script or culture of its own has the right “to conserve the
same”. Article 29(1) does not refer to any religion. Article
29(1) includes the right “to agitate for the protection of
the language”.17

14http://www.radianceweekly.com/95/1635/india-with-israel-in-m-

east-crisis/2008-02-10/minority-affairs/story-detail/problems-of-
religious-minoritiesa-big-challenge-to-the-secular-democracy-in-
india.html.
15 AIR 1978 SC 597.
16 http://jurisonline.in/?p=1943.
17 Jagdev Singh Sidhanti v. Partap Singh Daulta, AIR 1965 SCA 183.
Bharati Law Review, Jan.-Mar., 2014 81

Article 30(1) gives the linguistic or religious minorities

the following two rights:
• The right to establish and
• The right to administer educational institutions of
their choice.

Article 30(1) of the Constitution of India gives linguistic

and religious minorities a fundamental right to establish
and administer educational institutions of their choice.
These rights are protected by a prohibition against their
violation. The prohibition is contained in Article 13 of the
Constitution which declares that any law in breach of the
fundamental rights would be void to the extent of such
violation.18

The benefit of Article 30(1) extends only to linguistic or

religious minorities and not to any other section of the
Indian citizens.19 Although, Article 30(1) does not speak
of citizens of India, however, it has been held that the
minority to claim the protection of this Article must be a
minority of persons residing in the territory of India. The
Supreme Court in Bramchari Sidheswar Shai v. State of
West Bengal20 held that Ramakrishna religion was not
distinct and separate from Hindu religion and not
minority religion. Therefore, citizens of India, who are the
followers of Ramakrishna religion could not claim to
belong to a minority based on religion and as such were
not entitled to the fundamental right under Article 30(1).

Though Article 30(1) provides rights to the minorities to

establish educational institutions but it is not an
absolute right and may be subject to reasonable
restrictions. The Supreme Court in T.M.A. Pai Foundation
v. State of Karnataka held that any regulation framed in
the national interest must necessarily apply to all
institutions, whether run by the majority or the
minority.21

It is further observed that the right to administer an

educational institution includes the right to take

18http://ncmei.gov.in/writereaddata/filelinks/c296efcb_Guidelines.pdf.
19 M.P. Jain, Indian Constitutional Law; 6th edn: 2012; Gurgoan: Lexis
Nexis Butterworths Wadhwa; at p. 1342.
20 AIR 1995 SC 2089.
21 AIR 2003 SC 355.
Bharati Law Review, Jan.-Mar., 2014 82

disciplinary action against the teachers and other

employees. A law regulating the manner of the
functioning of its managing body would be not violative of
the right under Article 30(1).22

Article 30(1) also postulates that the religious

community will have the right to establish and
administer educational institutions of their choice
meaning thereby that where a religious minority
establishes an educational institution, it will have the
right to administer that. The right to administer has been
given to the minority, so that it can mould the institution
as it thinks fit, and in accordance with its ideas of how
the interest of the community in general. The court held
that the word administer and establish have to be read
conjunctively.23

In Andhra Pradesh Christian Medical Association v.

Government of Andhra Pradesh, the Supreme Court
emphasized that the object of the Art. 30(1) is not to allow
bogies to be raised by pretenders. The institution must be
an educational institution of minority in truth and reality
and not mere masked phantoms.24

Article 30(2) debars the State from discriminating

against minority institutions in the matter of giving
grants. Apart from the provision in the Constitution,
Government of India has undertaken a number of
initiatives for educational development of minorities, at
all levels of elementary, secondary and higher education
and in all sectors including vocational, professional and
technical education. Apart from the Pre-Matric and Post-
Matric Scholarships, Merit-cum-Means Scholarship
Scheme and Maulana Azad Fellowship Programme, which
are being implemented by the Ministry of Minority Affairs;
Ministry of Human Resource Development is also
implementing the Scheme for Providing Quality
Education in Madarasa (SWQEM) and Infrastructure

22 Prof. Narender Kumar; Constitutional Law of India; 5th edn; 2006;

Faridabad: Allahabad Law Agency; at p. 401.
23 Manager, St. Thomas U.P. School, Kerala v. Commr. & Secy. To
General Education Dept., AIR 2002 SC 756.
24 AIR 1986 SC 1490: (1986) 2 SCC 667.
Bharati Law Review, Jan.-Mar., 2014 83

Development in Minority Institutes (IDIM) exclusively for

the benefit of the minorities.25

The National Commission for Minorities Act, 199226

Apart from Articles 29 and 30, for the protection of

minority rights, the National Commission for Minorities
Act, 1992 came in to force to safeguard and to monitor it
such safeguards have been provided to minorities.

The Minorities Commission was set up in January,

1978 for providing an institutional arrangement for
evaluating the safeguards provided in the Constitution for
protection of the minorities and to make
recommendations for ensuring implementation of the
safeguards and the laws.

The Minorities Commission with statutory status would

infuse confidence among the minorities about the
working and the effectiveness of the Commission. The
main task of the commission shall be to evaluate the
progress of the development of minorities, monitor the
working of the safeguards provided in the Constitution
and in laws enacted by the Central or State
Governments, besides looking into the specific
complaints regarding deprivation of rights of the
minorities. It shall cause studies, research and analysis
to be undertaken on the issues relating to the socio-
economic and educational development of the minorities
and make recommendations for the effective
implementation of the safeguards.27

The National Commission for Minorities undertakes

review of the implementation of the policies formulated by
the Union and State Governments with regard to
minorities. It looks into specific complaints regarding
deprivation of rights and safeguards of minorities, and

25 http://indiaeduguide.blogspot.in/2013/03/problems-faced-by-
minorities-in-getting.html.
26 Received the assent of the President on 17-5-1992, pub. in gaz., of

India, dt 17.5.1992. Part ii, Sec.i, ext. p.1.

27 Dr. V. Nirmala: Law Relating to Human Rights; 15th edn; 2011;

Hyderabad: Asia Law House; at p. 345.

Bharati Law Review, Jan.-Mar., 2014 84

conducts research and analysis on the question of

avoidance of discrimination against the minorities.28

The Commission shall perform all or any of the

following functions, namely:
• Evaluate the progress of the development of
Minorities under the Union and States.
• Monitor the working of the safeguards provided in
the Constitution and in laws enacted by
Parliament and the State Legislatures.
• Make recommendations for the effective
implementation of safeguards for the protection of
the interests of Minorities by the Central
Government or the State Governments.
• Look into specific complaints regarding
deprivation of rights and safeguards of the
Minorities and take up such matters with the
appropriate authorities.
• Cause studies to be undertaken into problems
arising out of any discrimination against
Minorities and recommend measures for their
removal.
• Conduct studies, research and analysis on the
issues relating to socio-economic and educational
development of Minorities.
• Suggest appropriate measures in respect of any
Minority to be undertaken by the Central
Government or the State Governments.
• Make periodical or special reports to the Central
Government on any matter pertaining to
Minorities and in particular the difficulties
confronted by them.
• Any other matter which may be referred to it by
the Central Government.29

The Commission while performing any duty shall have

the powers of the civil court trying a suit and in respect of
the following matters, namely:

28 http://www.radianceweekly.com/95/1635/india-with-israel-in-m-
east-crisis/2008-02-10/minority-affairs/story-detail/problems-of-
religious-minoritiesa-big-challenge-to-the-secular-democracy-in-
india.html.
29 http://ncm.nic.in/ncm_act.html#c3.
Bharati Law Review, Jan.-Mar., 2014 85

• Summoning and enforcing the attendance of any

person from any part of Indian and examining
him on oath.
• Requiring the discovery and production of any
documents.
• Receiving evidence on affidavits.
• Requisitioning any public record or copy thereof
from any court or office.
• Issuing commissions for the examination of
witnesses and documents; and
• Any other matter may be prescribed.

The Sachar Committee on the basis of Census 2001

identified 100 Muslim dominated district where
educational opportunities were minimal Indira Gandhi
National Open University (IGNOU) in the 11th Plan (2007-
2012) has decided to provide educational opportunities to
the deprived regions and sections of the Society identified
by the Sachar Committee by establishing at least one
study centers in each block of the 100 District. The
matter was taken by the Commission with the IGNOU.30

Conclusion

The Constitution has not defined the term “minority”, but

it has provided all rights to minorities. In certain
circumstance it has categorically stated that such right
though not absolute, but is meant only for minority class
for their protection. Under Article 30(1) when the court
spelled out that the words administer and establish must
be read conjunctively, it is a classic example that has
been proved that they have been given absolute right to
mould their institution in consonance with the interest of
their community and with the law of the land. The
Constitution has been time and again trying to protect
the minorities by providing various benefits, but still the
fear of communal tension, poor representation and lack
of protection lingers in their mind. The main aim of law
should be to instill the confidence in the mind of such
minorities that their legal rights will be protected and
they will be treated in par with the majority and there
would be no discrimination between citizens.


30 http://ncm.nic.in/pdf/Agenda%202010.pdf.
Bharati Law Review, Jan.-Mar., 2014 86

MINORITY RIGHTS AND PERSONAL LAWS IN INDIA:

AN ANALYSIS

Ms. M.S. Pande*

From very ancient time, India is a country of multi-

religions, casts, creeds, communities, sects-sub sects etc.
For each religion, we have different personal laws in
India. But its history is not too old. From the era of
British, India was introduced with different written
statutes. To please different community and religion
people, British introduced different laws for them on their
religion ground. It is very well understood afterwards that
British ruled India for long time, due to their "divide and
rule" policy. The same policy is carried out after
independence too. We have different minority
communities in India, they based mainly on two ground
(i) religion and (ii) language. There are many forms and
kinds of minorities. In this paper, minorities in context to
religions only are discussed. This paper mainly focuses
on issues for religious minorities personal laws. In this
paper, discussion is made in reference of religion based
family law of which provisions differ community to
community and religion to religion. Differences and
reasons behind this scenario are widely discussed here.

Concept of minority rights is not at all new. In India,

from very ancient time, there is existence of varna pratha.
Under this system there were different four varnas i.e.,
Brahmin, Kshatriya, Vyasya and Shudra. Shudras were
getting protection by other varnas on the ground that
they were under them and as per dharma (religion) they
were bound for that. No doubts this system revealed as
per changing time but its essence still exist in our
society, not in the form as it was before but with major
changes and improvements.

In today's world, concept of minority rights is not in

terms of that, as it existed before ceturies but its concept
is definitely closely related with it. Today too their rights
are protected and are advocated to be protected in the

* Student, Ph.D., Gujarat University, Gujarat .

Bharati Law Review, Jan.-Mar., 2014 87

name of religion and language. All the religions are

developed in India, in healthy atmosphere and the
instances of disturbance in due course of that, are very
few.

As per census 2001 Muslims, Christians, Buddhists,

Sikhs and Parsis constitute about 18.4% of the total
population of our country. Out of this 18.4%, 72.919%
are Muslims, 12.707% are Christians, 10.140% are
Sikhs, 4.198% are Buddhists and 00.037% are parsis. In
India Muslims, Christians, Parsis, Jews are the main
religions minorities. Apart from Hindus, for Muslims,
Christians and Parsis (minority communities) Separate
Personal Laws are there to deal with their personal issues
like marriage, maintenance, adoption, will, succession,
inheritance etc.

A Systematic approach of international protection of

minority rights began after the First World War by the
League of Nations. The minority protection system was
meant to protect group rights of homogenous populations
within states to further the idea of self determination.
After the Second World War the United Nations focus was
on universal rights of individuals, rather than on
minorities. The end of the cold war, and the many
conflicts with ethnic dimensions market the revival of the
protection of minority rights. The result was the adoption
of the Declaration on the Rights of persons belonging to
National or Ethnic, Religious and Linguistic Minorities by
the UN General Assembly in 1992. The 21st century faces
the challenge to achieve a peaceful coexistence within the
multicultural nations of the world.

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-racial, religions etc.
The UN Declaration against All Forms of Religions
Discrimination and Intolerance, 1981 outlaws all kinds of
religion-based discrimination. The UN Declaration on the
Rights of Minorities, 1992 enjoins the state to protect the
existence and identity of minorities within their respective
territories and encourage conditions for promotion of that
identity; ensures that persons belonging to minorities
fully and effectively exercise human rights and
Bharati Law Review, Jan.-Mar., 2014 88

fundamental freedoms with full equality and without any

discrimination; create favourable conditions to enable
minorities to express their characteristics and develop
their culture, language, religion, traditions and customs;
plan and implement national policy and programmes
with due regard to the legitimate interests of minorities;
etc.1

There are Several Provisions regarding Minority

Communities in Constitution of India. Main object behind
this is; India is a Sovereign Socialist Secular Democratic
Republic and it guarantees "Liberty of thoughts,
expression, belief, faith and worship to all its citizens." To
ensure this object of preamble, provisions are given in
Constitution. They are mainly:
(i) Freedom of Conscience and free profession,
practice and propagation of religion (Art. 25)
(ii) Freedom to manage religions affairs (Art. 26)
(iii) Protection of interests of minorities (Art. 29)
Under the head of fundamental Right to freedom
of religion (Art. 25 to Art.30) Art. 27, Art. 28 and
Art. 30 are also of much importance.
(iv) Article 46 mandates for Protection of educational
and economic interests of scheduled castes,
scheduled tribes and other weaker section.
(v) Article 51A(e) states that; it is the duty of every
citizen of India to promote harmony and the spirit
of common brotherhood amongst all the people of
India transcending religions, linguistic and
regional or sectional diversities.

Apart from this too, there are several other Articles in

Constitution to provide wider rights to minorities.

The Constitution of India uses the word “minority” or its

plural form in some Articles 29-30 and 350A to 350B-
but does not define it anywhere. Article 29 has the word
“minorities” in its marginal heading but speaks of "any
sections of citizens having a distinct language, script of
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-religions and linguistic. The remaining two

1 Constitutional and Legislative Provisions Regarding the Minorities,

Chapter-2, www.sabrang.com, Retrieved On 20/01/2014.
Bharati Law Review, Jan.-Mar., 2014 89

Articles 350A and 350B relates to linguistic minorities

only.2

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.3

In India, Articles 15 and 16 of the Constitution prohibit

the state from making any discrimination on the grounds
only of religion, race, caste, sex, descent place of birth,
residence or any of them either generally i.e., every kind
of state action in relation to citizens (Article 15) or in
matters relating to employment or appointment to any
office under the state (Article 16). However, the provisions
of these two Articles do take adequate cognizance of the
fact that there had been a wide disparity in the social and
educational status of different sections of a largely caste-
based, tradition-bound society with large scale poverty
and illiteracy. Obviously, and absolute equality among all
sections of the people regardless of specific handicaps
would have resulted in perpetuation of those handicaps.
There can be equality only among equals. Equality means
relative equality and not absolute equality. Therefore, the
Constitution permits positive discrimination in favour of
the weak, the disadvantaged and the backward. It admits
discrimination with reasons but prohibits discrimination
without reason. Discrimination with reasons entails
rational classification having nexus with constitutionally
permissible objects.4

Constitution provides protection to minority rights with

special provisions. Basic reasons behind such provisions
were and are that the framers of Constitution were well
aware with the social scenario of our nation because all
of them belonged from different parts of Indian society.
They were well aware about the difference in social
system. Hence, to bring all the citizens on same footage
and under same roof various provisions were put in the
Constitution. The basic theory behind this, was to put
strengthen weaker section with main stream and section

2 Report of the National Commission for Religions and Linguistic

Minorities, Ministry of Minority Affairs, www.jeywin.com, p.12.
3 Id.
4 Id, p.13 & 14.
Bharati Law Review, Jan.-Mar., 2014 90

of the society. This could happen only when the weaker

sections are given few more facilities to make themselves
capable to stand with main stream of society and to get
equal status in the society. As a part of this concept
several other legislations are also enacted in the society.
No doubt this all has benefited the Minority communities
not only for religious or linguistic minority communities,
but also for sub-caste communities.

For each religion we have different personal law and

basic reason behind this is some misconceptions,
misrepresentations and misinterpretation of different
religion based faiths. In the name of religion many
malpractices have went on from the past and they are
still continue. Having separate personal law is not at all
the problem, if it really gives the best solution of the
problem or issue. But the scenario is that, due to special
status in the name of religion and minority the old
orthodox and timeout usages and customs still prevail in
the society. The different group of family laws has created
ambiguities among the people of different religions. The
circumstances are not such that people are really
enjoying their special personal laws but the scenario is
that, they are in loss and trouble due to some provisions
of their personal law. For illustration; in Muslim
community, upto four marriages are allowed for men. In
fact this provision has created nuisance in Muslim
community because in present era it seems quite unjust
and illogical. In Muslims even today husband has
universal right to divorce his wife without giving any
reason. After that he is free for another marriage if he
had four wives calculating with the last divorced wife.
How practical it is today? These are only two
illustrations; there are many other illogical provisions in
Muslim Personal Law. For Christians and Parsis, the
situation is with full of ambiguity. No doubt latest
Amendments in personal laws have provided few reliefs
but not completely changed the social system.

In the name of protecting religious identity of

communities, our family laws are claimed to be based on
religion but that is not the complete truth. No religion
denies for change, if its in common interest of justice. In
present era when people opt for dual policy, that means,
they choose the option where they get maximum benefit
Bharati Law Review, Jan.-Mar., 2014 91

but they come with arguments when the provision is

contrary.

The situation should change as per the changing norms

and values of society. Because if anything remains
unchanged, in changed circumstances, that causes loss
to any related with it. Today when people are not fully
religion-abiding, why they should get the privileges only
in the name of religion. For civil nature issues people
claim their rights under their personal law whereas for
criminal liability they are governed by main laws of the
country. If it is considered widely and if people are only
religion oriented why they don't ask punishment under
the provisions of their religious books. The reason behind
this is the punishments, for wrong doers are stricter in
religious books. How many cases are there in which the
culprit has asked for the penalty as provided in his
particular religion? The answer is none. Why such dual
policy? If one wants personal law of the choice of his
religion than one should ask for the penal provisions
described or mentioned in one's religion.

In any civilized society, if indeed, the principle of

“equality” is followed, that should be in all the forms. Not
only for some parts. Issues like marriage, maintenance,
adoption, will, succession, inheritance are generally
decided as per the provisions of personal laws. The
system and provision of law followed for Hindus can't be
followed for any other religion and the system and
provision of law followed by Muslims also can't be
followed by any other religion. This creates ambiguity
because the laws, in all the fields are developing
continuously. And the thoughts of people of different
religion people are greatly affected by globalization,
modernization, urbanization, industrialization etc. What
is heard as the voice of community, is in fact the voice of
few leaders of that particular religion or community. In
present era it cannot be counted as the thought of whole
community. It requires attention and deep study to know
the voice of each individual. If it cannot be done, then
justice cannot be made reach to the affected individual.
When the justice is asked, generally it is asked by an
individual. If the system can't hear the pain of an
individual, no substances in providing rights to whole
community.
Bharati Law Review, Jan.-Mar., 2014 92

Today not necessarily, the individual comes out to ask

for civil issue only under his personal law only but he
comes out to ask for relief under any other law of the
country. No doubt his demand to get remedy under the
provisions of any other personal law, which is not related
with his religion, which he profess or follows can't
sustained in the eyes of law. But if one comes to ask for
the rights under the law which is of general nature, the
law doesn't refuse or can't refuse to provide the remedy.
For example, if women of all the religions comes to ask
for remedy under the provisions of Protection of Women
from Domestic Violence Act, 2005. In all the personal
laws, provisions for maintenance, resident etc. are there,
then why they should be treated under any other law
which is not related to the personal laws or any personal
law. The common and logic answer for this is, people
want change and they are not fully satisfied with the
provisions of their existing personal laws only. The main
loss is caused to the women of all the religions because
prima facie and basically too, our personal laws are not
gender just. Due to timely amendments, situation for
Hindu women is improved and apart from others Parsi
women's rights are also quite gender just but for others
situation is really unjust.

What is evident across the board is that special cultural

and political rights, once they are granted, are
exceedingly difficult to withdraw. Even when something is
done for the sake of promoting equal treatment for all,
state actions meet with suspicion and mistrust. It is for
these reasons that the union state has refrained from
reforming the personal laws of the minority communities.
Over time, the personal laws of both the Parsi and the
Christian community have been reformed internally
through the initiatives of the members themselves. The
same has not, however occurred in the case of the
Muslim Personal Law. The question what role the state
can play in ensuring more just treatment for Muslim
women is an issue that has divided the community and
the nation. Respect for diversity suggests an absence of
direct state action and greater room for communities to
govern themselves, but can the state act as a catalyst in
this process of reform? Should it set targets and
timetables for reform to be undertaken by the
community? Should it lay down the boundary conditions
Bharati Law Review, Jan.-Mar., 2014 93

or the parameters of what is acceptable and within those

parameters allow communities to govern themselves?
Which of these strategies should the state adopt? Which
will be an effective way of combining the concern for
diversity with equality? Judgments on these questions
are likely to vary from context to context. What we need
therefore is an affirmation of the principle while the
policies by which we give effect to that norm can be
deliberated upon keeping the specifics in mind5

In a paper titled "Individual Rights in India: A

Perspective from the Supreme Court" presented at the
International Roundtable Conference, held at University
of Georgia, between April 3 to 6, 2009, Hon'ble Justice
Mr. K.G. Balakrishnan, the then Hon'ble Chief Justice of
India, said that, more than the questions about the
positive protections afforded to religions groups, it was
questions dealing with the notion of 'equal treatment' for
all religions and the related controversy over the Hindu
Code Bill that evoked the strongest polarized responses.
The efforts to reform Hindu Personal Law through the
legislative route can be traced back to the early 1920's
when several lawyers joined efforts to lobby for the
codification of the law relating to marriage, maintenance,
adoption, inheritance and succession among other
aspects. Besides the immediate benefit of legal certainly
and uniformity, codification was also intended to curtail
practices such as polygamy, prohibition of inter-caste
marriages, denial of property rights to women and the
exclusion of lower castes and untouchables from owner
ship of property in due course. Hence, the progressive
demand for codification was cast in the language of social
reform and posed as counterpoint to language of social
reform and posed as a counterpoint to the apparently
regressive position of non-interference taken by the
religious conservatives. In fact Dr. Ambedkar proposed
that civil rights should be privileged over religions
practices and argued that the provisions of a Uniform
Civil Code should find place in the chapter on
fundamental rights. In many ways, the case for
codification mirrored the intent behind the colonial

5 Mahajan Gurpreet, Negotiating Cultural Diversity and Minority

Rights in India, www.idea.int, p. 11 & 12, Retrieved on 20-01-2014.
Bharati Law Review, Jan.-Mar., 2014 94

legislative interventions against seemingly retrograde

social practices.6

In this paper Hon'ble Lordship has further mentioned

that the nexus between the exercise of "religious liberty"
and the protection of minority rights in India has been
prominently discussed with respect to the debates about
interference with the personal laws of religions
minorities. The debate on the feasibility implementing a
Uniform Civil Code raises Several Complicated question-
from the case for mitigating gender-based discrimination
in personal laws on one hand to preserving religions
autonomy on the other hand. An earlier instance of
substantive codification i.e. the Hindu Code Bill faced
several objections at the time of the drafting of the
Constitution. The rhetoric of conservatives (both within
and outside the dominant congress party) was that while
restraints were placed on customs rooted in the religious
beliefs of the majority community, the religious minorities
were not so covered. The liberalists' case for a Uniform
Civil Code was vehemently opposed on the ground that
the imposition of uniformity would reflect majoritarian
beliefs and would hence erode the identity of minority
group such as Muslims, Christians, Parsees and Jews.
The subsequent enactment of the Hindu Code in the
1950's was again criticized by the right-wing parties as
an example of 'differential treatment' that amounted to an
appeasement of minority interests.7

The Fifth Minorities Commission clarified that

secularism in India did not connote anti sacerdotalism or
anti-clericalism nor did it crusade for anti-religious faith.
It said: "Our broad type of secularism looks upon
traditional religion, of every label, with benevolent
neutrality. It would like to see the end of exploitation or
of use of religion for political and economic purposes and
to purge of superstition and harmful predatory practice.
But beyond that, it encourages religion as apart of
beneficial human activity in so far as it can satisfy and
serve the criteria of utilitarian ethics, which are secular.
Hence, we tend to employ the term secularism for a
healing, freedom supporting harmonizing factor in our
thoughts and feelings, which enable religious cultures,

6 Supreme Court of India.nic.in, p.14, Retrieved on 20/01/2014.

7 Id.
Bharati Law Review, Jan.-Mar., 2014 95

not only survive and live but to do with all the force and
vigor they can do this without harming the general social
welfare... The impact of our secularism operating as a
new social, economic, ethical and moral force resulting
from modern knowledge, science and enlightenment can
elevate traditional religion by purging it of noxious
elements."8

While providing the special rights to the minorities, the

basic principle of Constitution, "Equality before law" and
"Equal protection of law" should not be ignored. Art.14
basically advocates for the view, without which no society
in present era can remain healthy in long term. When our
Constitution was framed, the Socio-economic-legal-
political circumstances were different than today, and
hence, various provisions for the upliftment of minority
communities were made in the Constitution. Some of
theses provisions such as reservations, were of such
nature that the basic intention behind them was to
withdraw them after some period but they are still
existing. The main reason behind this is the "vote-bank
oriented" politics of all the political parties. Not only this
but till today too, none of the political parties have come
out to delete such unequal system in the society. The
rights of minorities among minorities should also be
considered, but that is left behind. Class-interest is seen
but individual is ignored. It shouldn't be ignored that the
group of individuals constitute a class or a group which
is a part of society or a society. In this view, if
development of society is required, individual’s rights
should improve and develop with combination of the
principle "equal protection of law to all" and which will
really create the society in which all would be "equal
before law."

But our religion based personal laws are very far from
both these principles and terms of Constitution of India.
All have different provisions than to others. An
individual, though he is a citizen of India, though he is
under the Constitution of India, though he is regulated
by the same penal law as other religion people, but he is

8 Bhat P. Ishwara_(2009), Law & Social Transformation, p. 233,

Eastern Book Company: Lucknow. The Author of this book has
given sitation in this book as: Paras 7.62 to 7.66, Fifth Annual
Report of Minorities Commission of India, 1982-83. on p.233.
Bharati Law Review, Jan.-Mar., 2014 96

treated differently when it is a question of his personal

law related right. How can "equality before law" principle
survive in such circumstances. "Reasonable
Classification" term cannot be and should not be imposed
here because, if it is thought widely, it does not include
such things in its concept. If it is at all wished to provide
"equal protection of law to all" it should be on the same
footage and on the same platform. Without such
implementation, at least in this context, Art.14 then just
exists in books of Constitution only. While thinking or
interpreting any provision of Constitution or any other
law, object behind it should be considered first, which is
really not taken in account while dealing with the
personal laws by the parliament or the government ever.

As discussed above, also the founding parents of

Constitution of India, while framing Constitution, were of
the view to form a uniform personal law for all the
citizens of India, irrespective of their caste, creed or
community. And henceforth in part IV of the
Constitution, under Article 44, they put a provision to
form and regulate a Uniform Civil Code for the citizens of
India. If they wished to keep them separate only, why
they would have been made such provision in
Constitution? The history of making of Constitution
reveals all the ifs and buts of the discussion held before
finalizing the format of the Constitution. That itself clears
the intention of the Constitution framers. It is found that
most of the members were of the opinion for
implementation of Art. 44 in Indian society. But what
delayed it, was, political will power and due to this, this
mandate of Art. 44 was delayed to be implemented
practically. Decades have been passed there after but still
Art. 44 has remained untouched.

Since religions wield overwhelming influence on the

social and individual life in traditional societies as that of
India, and often overemphasis customary beliefs, thereby
retarding or hindering modernization, the question of
bringing or concretizing social transformation with the
help of law faces practical difficulties. Religious issues
often become sites of social tension because of competing
religious sentiments. Society as a common hinterland for
both religion and state has to prepare itself for an orderly
development by respecting paramount human values. A
Bharati Law Review, Jan.-Mar., 2014 97

Principal distancing from all religions and an approach of

impartiality in treatment provide a safe walk, soberness
and legitimacy for state action. Being a component of the
policy of multiculturalism, this approach sets ways and
limits to law's regulative task, and inculcates an attitude
and mindset for co-existence amidst different religious
communities. Secularism as a means of liberation from
prejudices and communal frenzies has inherent
competence to enhance the worth of human rights and
welfare. Search for viable parameters for the appropriate
triangular relations among state, religion and individual
become an imperative in shaping the legal policies in the
task of social transformation.9

Culture is not fixed but a process, cultural norms

constantly develop and reshape as a result of various
factors, including external influences. It should also be
recognized that culture is a rich resource that contains
many alternative, sometimes contradictory components,
and many offer a variety of readings to choose from. In
many cases, it is inaccurate to present a single norm or
practice as representing the "real" essence of a given
culture. The selective use of specific cultural components,
and not other, by some members of a group, may serve
the interests of dominant sectors of a given community
and may silence alternative readings of cultural norms.10

The concept of Art. 44 of Constitution is to provide

Uniform Personal Law to all. To reveal the basic
differences of different personal laws and to provide one
and the same solution to all the citizens equally only
practical implementation of Art. 44 is required. As
discussed above personal laws provide different solutions
to two different people, on the same issue, if they are of
different religion. To give equal status to all, and to
provide sameness in the system of personal laws, no
option is available then implementing Uniform Civil Code
for all the citizen of India. Here, it is noteworthy that, Art.
44 do not intend to interfere with any religious faith or
propagation of religion by an individual or class but it
intends to remove only technical and legal differences

9 Bhat P. Ishwara (2009), Law & Social Transformation, p. 225-226,

Eastern Book Company: Lucknow.
10 Shmueli Merav, Minority Women, Family Law and the State,
www.nawl.ca/en/jurisfemme/entry, Retrieved on 04/02/2014.
Bharati Law Review, Jan.-Mar., 2014 98

from the various personal laws. While considering other

aspects, this aspect needs to be looked first. But on this
point, Art. 44 is either misunderstood or misinterpreted
or misrepresented by the self centered people who are
generally leaders of different communities. Except
Uniform Civil Code, no solution is there for the protection
of people on personal issues, equally.

The main objection for change in existing personal law

comes from the Muslim community. And if it is observed
widely, it can be seen easily, that some part of this
community has suffered the most due to unchanging
mindset. Whereas Christians and Parsis too have some
objections, but they are of such nature which can be
rectified and solved through talk. Personal law for Hindus
is not in question here, but it is noteworthy that it has
been amended so many times as per requirement and
now they are very up to the level. So many instances are
been noted in which people have tried to take the benefit
of other personal law by conversion to that particular
religion. Smt. Sarla Mudgal case11 is noteworthy verdict
on this aspect so many incidents of this nature occur but
the illiteracy and poverty ratio existing in our country is
one of the reasons, why all the cases don't open up in the
society. National law commission has often emphasized
on these issues.

Hon'ble Apex Court of India also has passed several

judgments in respect of minority communities of different
kinds. Many of them have been proved milestones in
solving and resolving the various problems of minority
communities. In reference of the issue discussed in this
paper too, Hon'ble Supreme Court of India has observed
in so many of its judgments and has shown its worry and
concern for implementation of Art. 44-Uniform Civil Code
in Nation. The crux of few of such judgments is noted
here.

In Mohd. Ahmed Khan v. Shah Bano Begum case12

Hon'ble Apex Court made a reference to uniform civil
code and in para 32 of this judgment and observed that:
"It is also a matter to regret that Article 44 of our
Constitution has remained a dead letter. It provides that:

11 AIR 1995 SC 1531.

12 ((1985) GLHEL-SC 17763).
Bharati Law Review, Jan.-Mar., 2014 99

"The State shall endeavor to secure for the citizens a

uniform civil code through the territory of India". There is
no evidence of any official activity for framing a common
civil code for the country. A belief seems to have gained
ground that it is for the Muslim community to take lead
in the matter of reforms of their personal law. A common
civil code will help the course of national integration by
removing disparate loyalties to law which have conflicting
ideologies. No community is likely to bell the cat by
making gratuitous concessions on this issue. It is the
state which is charged with the duty of securing a
uniform civil code for the citizens of the country and
unquestionably, it has the legislate competence to do so".

In the same para it is further observed that: "we

understand the difficulties involved in brining persons of
different faiths and persuasions on a common platform.
But a beginning has to be made if the Constitution is to
have any meddling. Inevitably the role of the reform has
to be assumed by the courts because it is beyond the
endurance of sensitive minds to allow injustice to be
suffered when it is so palpable. But piecemeal attempts
to courts to bridge the gap, between personal laws cannot
take the place of a common civil code. Justice to all is a
far more satisfactory way of dispensing justice then
justice from case to case".

In Smt. Sarla Mudgal President, Kalyani and other v.

Union of India and others case13 Hon'ble apex court called
for the requirement of uniform civil code, Art. 44 and
while referring Art. 44 it was observed that: "Article 44 is
based on the concept that there is not necessary
connection between religion and personal law in a
civilised society. Article 45 guarantees religious freedom
whereas Article 44 seeks to divest religion from social
relations and personal law. Marriage, Succession and like
matter of a secular character cannot be brought within
the guarantee enshirned under Articles 25, 26, 27. The
personal law of the Hindus, such as relating to marriage,
succession and the like have all the sacramental origin,
in the same manner as in the case of the Muslims or the
Christians. The Hindus along with Sikhs, Buddhists and
Jains have forsaken their sentiments in the cause of the

13 (AIR 1995 SC 1531).

Bharati Law Review, Jan.-Mar., 2014 100

national unity and integration, some other communities

would not, though the Constitution enjoins the
establishments of a "common civil code" for the whole of
India".

In this judgment it is also observed that "When

Constitution was framed with secularism as its deal and
goal, the consensus and conviction to be one, socially
found its expression in Article 44 of the Constitution. But
religious freedom, the basic foundation of secularism was
guaranteed by Articles 25 to 28 of the Constitution,
Article 25 is very widely worded. It guarantees all
personals, not only freedom of conscience but the right to
profess, practice and propagate religion. What is religion?
Any faith or belief. The court has explained religious
liberty in its various phases guaranteed by the
Constitution and extended it to practice and even
external over acts of the individual. Religion is more than
mere matter of faith. The Constitution by guaranteeing
freedom of conscience ensured inner aspects of religious
belief. And external expression of it was protected by
guaranteeing right to freely practice and propagate
religion.”

In John Vallamattom v. Union of India case14 the Hon'ble

Apex Court has observed that: "Art. 44 provides that the
state shall endeavor to secure for the citizens a uniform
civil code throughout the territory of India. The aforesaid
provision is based on the premise that there is no
necessary connection between religious and personal law
in a civilized society. Art. 25 of the Constitution confer
freedoms of conscience and free profession, practice and
propagation of religion. The aforesaid two provisions viz.,
Articles 25 and 44 show that the former guarantees
religious freedom whereas the latter divests religion from
social relations and personal law. It is no matter of doubt
that marriage, succession and the like matters of a
secular character cannot be brought within the
guarantee enshrined under Articles 25 and 26 of the
Constitution. Any legislation which brings succession
and the like matters of secular character within the ambit
of Articles 25 and 26 is a suspect legislation. Although it
is doubtful whether the American doctrine of suspect

14 2003(0) GLHEL-SC-13037.
Bharati Law Review, Jan.-Mar., 2014 101

legislation is followed in this country. In Smt. Sarla

Mudgal, President, Kalyani and Others v. Union of India
and other, it was held that marriage, succession and like
matters of secular character cannot be brought within
the guarantee enshrined under Articles 25 and 26 of the
Constitution. It is a matter of regret that Article 44 of the
Constitution has not been given effect to Parliament is
still to step in for framing a common civil code in the
country. A common civil code will help the cause of
national integration by removing the contradictions based
on ideologies".

Above thoughts and views of Hon'ble Supreme Court of

India also clears the necessity and need of implementing
Art. 44 practically in the society. For societal interest at
large, this fact has to be accepted that self-centered
politics can benefit some but not all the spheres of
society.

There are many aspects of minority rights. Many of

them are solved but several are yet to be solved. But the
issue discussed in this paper can be rectified definitely
and that can happen only by forming and implementing
Uniform Civil Code for all citizens. Personal rights of
minority communities under their personal laws needs to
be dealt equally because it is in the best interest of them
only. It is widely felt that common civil code will surly
help in national integration and it is the duty of the state
to form the Uniform civil code for the nation. Though
there are the difficulties in filling the gaps among the
thoughts of different religions following people but, this
was the same situation at the time of independence and
at the time of framing our Constitution and as well as at
the time of introducing the Hindu code bill by the then
Prime Minister of India, Shri Pandit Jawaharlal Nehru.
But after that too, more than 65 years have been passed
but there is no any positive movement in this direction by
the government. It cannot be accepted, now too, that the
social scenario is not that much ripen, that uniform civil
can be introduced. It is, so that it is a fact that no any
such efforts are made by the legislature and hence, it
could not be introduced and regulated in our society. The
reasons behind that are many. They are political, social,
economical, sentimental and even geographical. Strong
determination of political will power in essential need for
Bharati Law Review, Jan.-Mar., 2014 102

any change in society without that no change can be

made in any field and the same principle is applied in
this context too. It had become not only the need but also
the necessity of the hour to change the form of personal
laws and uniform them as per the present time demand.
In the age of globalization one cannot be allowed to have
a special status in law on the ground of his religion only.
For above noted views, despite of time to time
amendments, present family/personal laws have become
inconsistent with the time. Hence a drastic change in
personal law is required and then only minority
communities would be justified in context to their
personal/family laws.


Bharati Law Review, Jan.-Mar., 2014 103

RIGHTS OF RELIGIOUS MINORITIES TO ESTABLISH

AND ADMINISTER EDUCATIONAL INSTITUTION: LAW,
EXTENT AND LIMITATIONS

Mr. Ashok Wadje*

Introduction

Protection of minorities is a worldwide concern almost in

all the legal system of the world. Minorities are
considered to be and are vulnerable groups facing
atrocities and discrimination in numerous ways, which in
fact goes against the very basic right to live a peaceful
and right to live a life with dignity. The threat is constant
in a system or a country or a state with the considerable
presence of majority community.

Country like India which has adopted a secular

approach in its Constitution, this issues or this concern
is of immense importance. Moreover, Indian democratic
set up is the involvement and participation of all the
communities in the national life. There are six major
religions in India prevalent from time immemorial and
based on different philosophies. As per Government of
India those major religions are: Hindu, Sikh, Jain,
Buddhism, Christian and Muslim.1

Indian Constitution is unique in self which has adopted

a secular approach where state is neither pro nor against
any religion. State or legislature, through cannot even
establish any new religion by law.2 At the same time
freedom of religion and of conscience3 is granted to its
citizens to practice and profess their own religion with
reasonable restrictions4. At the same time state is allowed
to restrict secular practices of any religion which exceeds

* Assistant Professor, Symbiosis Law School, Noida.

1 Census of India, Ministry of Home Affairs, Govt. of India:
http://censusindia.gov.in/Census_And_You/religion.aspx
(Last updated on February 4, 2014).
2 Narayan v. State of Madras, AIR 1954 Mad 385 (para 6).
3 Article 25 of Indian Constitution.
4 Reasonable Restrictions under Article 25 (1), Article 25 (2) (a) & (b).
Bharati Law Review, Jan.-Mar., 2014 104

this limit or restriction5. So freedom of religion is confined

only to essential practices of religion.6 State’s interference
in the religious affairs is discouraged by the Indian
Constitution and this is followed by several judicial
precedents discouraging interference of State or state
activities in the religion or essential religious practices
which forms part of the same.

The real purpose and intendment of Article 25 of Indian

Constitution is to guarantee especially to the religious
minorities the freedom to profess. No doubt, the freedom
guaranteed by Article 25 applies not merely to religious
minorities but also to all persons. But in interpreting the
scope and content of the guarantee contained in this
Article, the court will always have to keep in mind the
real purpose underlying the incorporation of the
provision in the fundamental rights given in the Chapter
III of the India Constitution.

Conceptual Framework of “Minority” under Indian

Constitution

The term “minority” in the context of Indian constitution

or for the purpose of protection granted by the Indian
constitution is to be construed or taken to mean as the
group or community or religion which is in the minority
by virtue of its number of population in a given area.
“minority” term, in this context can be used in relation to
two factors/things:7
i. Religious community
ii. Linguistic community

Article 30 to that effect uses the terms “linguistic” or

“religious” minorities. It implies that the minority may
either be linguistic or religious and that it does not have
to be both: a religious minority as well as linguistic
minority. It is sufficient of it is one or the other or both.
Protection is accorded to those groups who are in
“minority”: religious or cultural. Neither it is defined nor
any description provided for the same.

5 Commissioner, HRE v. Sri L. Thirtha Swamiar of Sri Shirur Mutt, AIR

1954 SC 282.
6 Id.
7 Articles 29, 30 of the Indian Constitution.
Bharati Law Review, Jan.-Mar., 2014 105

The word “minority”, in the absence of special

definition, it must be held that any community, religious
or linguistic which is numerically less than fifty percent
of the population of a State. Such criterion was given In
Re: The Kerala Education Bill, 19578 wherein court has
observed that the same can be determined in relation to
population of the State. Supreme Court opined that while
it is easy to say that minority means a community which
is numerically less than 50 percent, the important
question is 50 per cent of what? Should it be of the entire
population of India, or of a State, a part thereof?9 The
Supreme Court did not however decide this point
definitely. However it had come to be accepted that
“minority” is to be determined only in relation to the
particular legislation which is being challenged. Thus if a
State law extending to the whole of a State is in question,
the minority must be determined with reference to the
entire State population. Further in T.M.A. Pai Foundation
v. State of Karnataka10 the same issues was debated as
to: in order to determine the existence of a religious or
linguistic minority in relation to Article 30, the State or
the country as a whole is to be taken as the unit.
Supreme Court opined that the test for determining ‘who
are linguistic or religious minorities’ within the meaning
of Article 30 would be one and the same either in relation
to a State legislation or Central legislation.

In Bal Patil v. Union of India11, it was observed that the

“minority” for the purpose of Indian Constitution can be
identified as group of people or community who were
seen as deserving protection from likely deprivation of
their religious, cultural and educational rights by other
communities who happen to be in majority and likely to
gain political power in a democratic form of government
based on religion.
Religious minority would mean that the only or the
principal basis of a minority must be their adherence to
one of the many religious and not a sect or a part of the
religion and that the other features of the minority are

8 AIR 1958 SC 956.

9 M.P. JAIN, Indian Constitutional Law, (6th ed.), 1764 (2010).
10 (2002) 8 SCC 481.
11 (2005) 6 SCC 690.
Bharati Law Review, Jan.-Mar., 2014 106

subordinate to the main feature, namely, its separateness

because of its religion. A linguistic minority for the
purpose of protection granted under Indian Constitution
is one which must at least have a separate spoken
language. It is not necessary that the language should
also have a distinct script for those who speak it to be a
linguistic minority.

E.g., an Anglo-Indian community is well known

minority community in India based on religion as well as
language and has been recognized as such by the
Supreme Court of India in State of Bombay v. Bombay
Education Society12.

Protection of Minorities: Perspective of Indian

Constitution

Article 2913 of Indian Constitution in general and Article

3014 in particular, aims at securing interest of minorities
by providing them of certain privileges as a part of
Fundamental rights under Chapter III of India
Constitution. Their identity, culture, script, customs,
religion and language has been considered by securing,
protecting and providing certain benefits or privileges

12 AIR 1954 SC 561.

13 Article 29. Protection of interests of minorities:
(1) Any section of the citizens residing in the territory of India or
any part thereof having a distinct language, script or culture of its
own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State
funds on grounds only of religion, race, caste, language or any of
them.
14 Article 30. Right of minorities to establish and administer
educational institutions:
(1) All minorities, whether based on religion or language, shall
have the right to establish and administer educational institutions
of their choice.
1 (1A) In making any law providing for the compulsory acquisition
of any property of any educational institution established and
administered by a minority, referred to in clause (1), the State
shall ensure that the amount fixed by or determined under such
law for the acquisition of such property is such as would not
restrict or abrogate the right guaranteed under that clause.
(2) The State shall not, in granting aid to educational institutions,
discriminate against any educational institution on the ground
that it is under the management of a minority, whether based on
religion or language.
Bharati Law Review, Jan.-Mar., 2014 107

pertaining thereto. The same can be seen in Article 30

which grants them special permission to establish and
administer their own educational institution of their
choice. This is basically for dual purposes:
i. To secure their interest through: language, religion,
culture and identity, and
ii. To empower their children to participate in main
stream of the society through education and
learning in educational institution of their choice.

But that does not mean they can misuse the said
privilege or special right for the purposes not covered as
the objectives behind or under Article 29 and 30 of the
Constitution and also for anything which can violate the
clause of equality as per Article 14 of the Indian
Constitution. In further of it, drafters of Indian
Constitution has made precaution to avoid misuse of the
same by inserting restriction on the rights of minorities
under clause (2) of Article 29 which runs as:
“No citizen shall be denied admission into any
educational institution maintained by the State or
receiving aid out of the State funds on grounds only
of religion, race, caste, language or any of them.”It
guarantees the rights of a citizen as an individual
irrespective of the community to which he belongs.”

Establishment and Administration of Educational

Institutions: Law, Extent and Limitations

The right of minorities to establish and administer

educational institutions of their choice under Article
30(1) and Article 29(1) can be claimed by an institution
only if it is established by a religious or linguistic
minority. The guarantee of protection under Article 30 is
not restricted to educational institutions established after
the Constitution but applies also to those established
before.15 The right to establish and maintain educational
institutions according to the choice of a minority
community is a necessary concomitant to the right to
under Article 29 of the Indian Constitution. The right
guaranteed under Article 30(1) is twofold:
i. To establish and
ii. To administer educational institution of their own

15 S.K. Patra v. State of Bihar, AIR 1970 Pat 101 (para 6).
Bharati Law Review, Jan.-Mar., 2014 108

choice.

These words indicate that the extent of the right is to be

determined not with reference to any concept of State
necessity and general social interest but with reference to
the educational institutions themselves, that is with
reference to the goal of making the institutions effective
vehicles of education for the minority community or other
persons who resort to them.

Nature, Scope, Extent and Limitation on the Right

under Article 30(1)

No doubt that Article 30 can be construed to preserve

and protect religious freedom, autonomy and its
individuality, but there is no fundamental right under
which an institution can claim either aid or affiliation as
a matter right. It is permitted for the Sate or University,
as the case may be, to lay down reasonable conditions to
maintain the excellence of standard of education but in
the garb of doing so, refusal to grant affiliation cannot
made pretext for destroying individuality and personality
of the said institution. But regulatory measures which
are designed towards the achievement of the goal cannot
be said to be violative of Article 30(1).16

Following are some important facets17 of ‘right to

establish and administer educational institution of their
own choice’ which one must keep in view, in order to
know the nature and scope above mentioned right
recognized under Article 30(1):

i. “Management of Affairs”
The right to administer institutions of minority’s
choice enshrined in Article 30 (1) means
“management of affairs” of the institution. This power
as mentioned above is subject to the regulatory power
of the state or university18 as the case may be. So the
right conferred on the religious or linguistic minorities
to administer educational institutions of their choice

16 Frank Anthony P.S.E. Association v. Union of India, AIR 1987 SC

311.
17 H.K. SAHARAY, THE CONSTITUTION OF INDIA-AN ANALYTICAL
APPROACH, 389, 390 (4thed.) (2012).
18 Id.
Bharati Law Review, Jan.-Mar., 2014 109

is not an absolute right. This right is not free from

regulation. Just as a regulatory measure are
necessary for maintaining the educational character
and content of minority institutions, similarly
regulatory measures are necessary for ensuring
orderly, efficient and sound administration.

ii. Educational Institution

Words “educational institution” is of very wide import
and would include a University also and as such it
may be construed that a religious minority can even
establish a university under Article 30(1).19

iii. Establish and Administer

The words “establish and administer” must be read
conjunctively with the words “establish and
maintain”. Azeez Basha v. Union of India20 can be
cited in this context to throw light on these words.
The Aligarh University when it came into existence in
1920 was established by the Central Legislature by
the 1920 Act. It may be that the 1920 Act was passed
as a result of the efforts of the Muslim minority. But
that does not mean that the Aligarh University when
it came into being under the 1920 Act was
established by the Muslim minority.

iv. Administration
The word “administration” in the context of Article
30(1) means “management of affairs” of the
institution. The management must be free of control
so that the founders or their nominees can mould the
institution as they think fit and in accordance with
their ideas of how the interests of the community in
general and the institution in particular will be best
served.

v. Minority Institutions
All laws made by the State to regulate the
administration of educational institution and grant of
aid will apply to minority educational institution also.
But if any such regulations interfere with the overall

19 Azeez Basha v. Union of India, AIR 1968 SC 662 (para 21).

20 AIR 1968 SC 662 (para 25).
Bharati Law Review, Jan.-Mar., 2014 110

administrative control by the management over the

staff, or dilutes, in any manner, the right to establish
and administer educational institutions, to that
extent, will be inapplicable to minority institutions.

General principles as to establishment and

administration of minority educational institution:21

i. The right of minorities to establish and administer

educational institution of their choice has the
following elements:
a) To choose its governing body in whom the
Founders of the institution have faith and
confidence;
b) To appoint teaching staff and also non-teaching
staff and to take action if there is dereliction of
duty on their part;
c) To admit eligible students of their choice and to
set up a reasonable fee structure;
d) To use its properties and assets for the benefit of
the institution.

ii. The right conferred on minorities under Article 30

is only to ensure equality with the majority and not
intended to place the minorities in a more
advantageous position vis-à-vis the majority.

iii. The right to establish and administer educational

institutions is not absolute. Nor does it include the
right to mal-administer. Regulations made by the
State concerning generally the welfare of students
and teachers, regulation laying down eligibility
criteria and qualifications for appointment as also
conditions of service of employees, regulations to
prevent exploitation or oppression of employees and
regulations prescribing syllabus and curriculum of
study fall under this category. Such regulations do
not interfere with the right under Article 30(1) of the
Constitution.

iv. Subject to the eligibility conditions/qualifications

prescribed by the State being met, the unaided
minority educational institutions will have the

21 Supra note 18 at pp. 395, 396.

Bharati Law Review, Jan.-Mar., 2014 111

freedom to appoint teachers/lecturers by adopting

any rational procedure of selection.

v. Extension of the aid by the State does not alter

the nature and character of the minority educational
institution. Conditions can be imposed by the State to
ensure proper utilization of aid without diluting or
abridging the right under Article 30(1) of the
Constitution.

Regulations: How Far Justified?

After analysis of these propositions of law one can

reiterate the principle of law laid down by the Hon’ble
Supreme Court of India22 that: “the right conferred on the
religious and linguistic minorities to administer
educational institutions of their choice is not an absolute
right.”

Regulations which do not affect the substance of the

guaranteed rights, but ensure the excellence of the
institution and its proper functioning in matters
educational, are permissible. Regulations could be made
to maintain educational character and standard of
institution. From the point of view of regulation, minority
educational institutions can be placed into two
categories:
1. Institutions receiving aid from the state; and
2. Institutions not getting aid from the state.

When any regulatory measure is charged upon, it would

be obligatory for the court to find out as to whether the
provisions in fact secures a reasonable balance between
ensuring a standard of excellence of the institution and of
preserving the right of minority to administer the
institution as a minority institution.23 Further in the case
of Frank Anthony Public School Employees’ Association v.
Union of India24 Supreme Court of India further thrown
light on the scope of the right and extent of limitation or
restriction thereupon in following words:

22 In Re: The Kerala Education Bill, AIR 1958 SC 956.

23 Managing Committee St. John Inter College v. Girdhari Singh, AIR
2001 SC 1891.
24 AIR 1987 SC 311.
Bharati Law Review, Jan.-Mar., 2014 112

“The extent of the right under Article 30(1) is to be

determined, not with reference to any concept of
state necessity and general societal interest but with
reference to educational institution themselves, that
is, with reference to the goal of making the
institutions effective vehicles of education for the
minority community or other persons who resort to
them. It follows that regulatory measure which is
designed towards achievement of the goal of making
the minority educational institutions effective
instruments for imparting the education cannot be
considered to impinge upon the rights guaranteed by
Article 30(1) of the Constitution. The question in
each case is whether the particular measure is, in
the ultimate analysis, designed to achieve such goal,
without of course nullifying any part of the right of
the management in substantial measure.”

Similarly, Supreme Court in St. Stephen’s College v.

University of Delhi25 made mixed observations as to right,
its purpose and restriction thereupon in following words
which further signifies the importance of restriction on
the right so guaranteed under Article 30(1):
“…[T]here must exist some positive index to enable
the educational institution to be identified with
religious or linguistic minorities. Article 30(1) is
protective measure only for the benefit of religious
and linguistic minorities and it is essential to make it
absolutely clear that no ill-fit or camouflaged
institution should get away with the constitutional
protection.”

There are many such an areas in relation minority

rights pertaining to establishment of educational
institution and administration thereof, in which judiciary
has taken a vigilant approach on the ubiquitous minority
educational institutes diverting the purpose for which it
got protection. Those are:
1. Government grants and recognition and conditions
of grants and recognition;
2. Structure of or composition of managing bodies;
3. Appointment of teachers;
4. Disciplinary action against the staff;

25 AIR 1992 SC 1630.

Bharati Law Review, Jan.-Mar., 2014 113

5. Admission of students;
6. Medium of instructions;
7. Fees etc.

In several such cases Supreme Court came heavily on

the rights so granted by defining the nature, scope and
extent of the same as discussed above. Some of them are
prominent to be mentioned about in this connection. For
example, T.M.A. Pai Foundation v. State of Karnataka26,
Supreme Court of India indicated a greater regulation of
aided and unaided minority institutions particularly in
the matter of admissions and fees of professional
colleges. This actually has led a spate of litigation, of
which many cases came up to the Supreme Court. The
issues were considered in connection with professional
institutions in Islamic Academy of Education v. State of
Karnataka27, and P.A. Inamdar v. State of Maharashtra28,
which ultimately ascertained certain norms29 pertaining
to this right and its regulation.

Conclusion

Although Article 30(1) is labeled as one of the

fundamental rights under chapter III of Indian
Constitution it has to be read subject to the regulatory
power of the state. Regulations which do not affect the
substance of the guaranteed rights, but ensure the
excellence of the institution and its proper functioning in
several matters pertaining to or as a part or as an
incidental to ‘right to establish and administer
educational institute of their own choice’ and as
discussed above right to administer cannot encompass
the right to mal-administer.

Judiciary has been active in this area by expanding the

wide sweep of ‘right to establish and administer
educational institute of their own choice’ by its
interpretative tool at the same time of putting heavy but
reasonable regulations on the exercise of the right which
ultimately ensures that minority educational institutions

26 (2002) 8 SCC 481 at p. 582.

27 (2003) 6 SCC 697 at p. 730.
28 (2005) 6 SCC 537 at p. 602.
29 Supra note 10, at pp.1367, 1368.
Bharati Law Review, Jan.-Mar., 2014 114

are not meant for their exclusive benefit or any kind of

profit oriented mechanism.

Time has also come to think of globalization and rapid

changes in the educational sector and as such minority
institutions ought to keep pace with such changes and
developments. A minority institution may impart general
secular education; it need not confine itself only to the
teaching of minority language, culture or religion. But to
be treated as a minority institution, it must be shown
that it serves or promotes I some manner the interests of
the minority community by promoting its religious tenets,
philosophy, culture, language and literature. Further
there should be a nexus between the institution and the
particular minority to which it claims to belong. A
considerable section of the minority must be benefited by
the institution.


Bharati Law Review, Jan.-Mar., 2014 115

RIGHT TO FREEDOM OF RELIGION AND SECULARISM:

SOME JUDICAL REFLECTIONS

Mr. Gyanendra M. Fulzalke*

“It is the duty of all progressive intellectuals to propagate

and popularized. This principles of secularism and
explain to the people at large all its facets and its
aspects.”
- Justice P.B. Gajendragadka

Introduction

Indian society is a blend of more than six religions. Since

long these religions are living with great unity and
integrity, while adopting Indian Constitution drafters
encountered a superhuman task to unite the different
religions under one umbrella. India is a country which
bounds in personal laws every religious community in
personal matters is governed by own laws1. Freedom of
religion is guaranteed as a fundamental right under
Indian constitution. This freedom connotes very citizen of
India can profess, practice and propagate any religion as
per his/her aspirations. Though this freedom is
guaranteed still there is a question before Indian
democracy that how to protect the freedom. If we
observed Indian conditions then at one par India is
secular country, and at other end freedom of religion is
greatened, the secularism means complete neutrality
state in the matters of religion. The state shall not boost
any religion as an official religion of state. The state shall
not give grant in aid to any religious institutions or any
financial support to religious activity, religion shall
remain a private business of individual. But the central
Government and various state Governments are giving
financial aid to religious endowments. For example
expenditure on Guru Da Gaddi, expenditure on
Kumbhamela, expenditure for renovation of Temples,
Mosques, vihars. If we are true secular? Then why this

* Assistant Professor, Shri Shivaji Law College, Parbhani.

1 Paras Diwan, Muslim Law in Modern India, Allahabad Law Agency
reprint 2008, p. 1.
Bharati Law Review, Jan.-Mar., 2014 116

expenditure we have to think twice it is necessary to

prohibit these kinds of attempts. Secularism does not
mean equal protection to all religion, but complete
neutrality of religion in the matters affairs of state.

Concept of Freedom of Religion and Secularism

The religion is a matter of personal faith and belief. Every

human being is attached with a kind of religion. Religion
is nothing but a way of life generally adopted by the
people in a particular territory. Religion has played a very
important role in initial stage of life and up to certain
extent today itself has relevancy. We have seen a religion
growing up from stage to stage, from the simplest
childish prayers to the highest metaphysical
abstractions2. Swami Vivekananda while delivering a
lecture on religion asserted that, religion is idea which is
raising the brute unto man and man unto God. Religion
is manifestation of natural strength that is in man. The
basic aim of religion is to bring peace to man. Any
religion that can bring it to man is the true religion for
humanity3. The religion is nothing but doctrine of belief
which is binding on flowers of religion. Religion provides
moral principles to be followed by followers in their day to
day life, due the existence of religion there is peace in the
world. India is the most populous country of the world.
The people inhabiting this vast land profess different
religions and speak different languages. It is a mosaic of
different religion languages and culture. Each of them
has made a mark on Indian polity and India today
represent synthesis of them all. Despite the diversity of
religion and language there runs through the fabric of the
Nation the golden thread of a basic innate unity4. As the
concept of religion was developed and it has controlled
whole human life certain evils entered in religion. Many
philosophers and jurists suggested that there should be a
complete separation between state and religion. The
religion should remain as private business of individual.

The freedom of religion is guaranteed in plethora of

countries in the world, but this freedom give rise to

2 Prof. Hari Narke, Dr. B.R. Ambedkar Writings and Speeches Vol. 3
Unpublished writing, second edition P. 7.
3 Atheist Society of India v. Govt. of A.P., AIR 1992 AP 310.
4 St. Xavier’s College V. State of Gujarat, AIR 1974 SC 1389.
Bharati Law Review, Jan.-Mar., 2014 117

arbitrary use of doctrines and customs and traditions of

religion which resulted in control over religion.
Secularism is evolved as complete neutrality of religion in
the matters of state, but the study religion therefore in
school education cannot held to be an attempt against
the secular philosophy of the constitution5. United State
of America adopted complete water tight compartment
between religion and state, it means region shall not
interfere state affairs. No doubt freedom of religion is
guaranteed under American constitution by First
Constitutional amendment Act. Secularism is a condition
of a state where no more importance will be given to
religion is here that the second meaning of secularism in
India applies secularism means and some of this is
written in to constitution of country that all religions and
cultural groups in India are entitled to practice their faith
to be instructed through the medium of their mother
tongue to be protected, not attacked without cause by the
police6. No doubt citizens will have freedom of religion
still this liberty is not exclusive reasonable restrictions
can be imposed on individual freedom. The state shall
keep itself way from observance of any particular religion.

Constitutional Provisions of Freedom of Religion and

Secularism

1. Preamble of Indian Constitution

Preamble is the key to open the mind of
legislature. It contains aspirations of makers of
Indian constitution. Under preamble liberty is
guaranteed of thought, expression, belief, faith
and worship. It means citizen of India can
exercise their freedom of religion without any
disturbances. A person can exercise his religious
freedom so long as it does not come in to conflict
with the exercise of fundamental Rights of others7.
Whenever there is confusion about interpretation
of constitution. In Keshwananda Bharti’s8

5 D.J. De, Constitution of India, Asia Law House, Hyderabad, vol. 2 P-

1420.
6 N. Sundaram, Religious Freedom and Secularism Theory and
Practice,, Amicus Books, The ICFAI University Press ISBN 81-314-
1372-1 P-93.
7 M.P. Jain, Indian Constitutional Law, 6th edition, 2010,
Butterworth’s LexisNexis Wadhwa,, Nagpur, p. 1321.
8 AIR 1973 SC 1461.
Bharati Law Review, Jan.-Mar., 2014 118

landmark judgment Supreme Court of India held

that preamble of India Constitution is integral and
inseparable part of constitution. Forty Second
Amendment Act, 1976 inserted Secular word
under preamble of Indian constitution.

2. Fundamental Rights:
Article 25 to 30 of Indian constitution devoted to
freedom of religion to Indian Citizens. They are as
follows.
1. Article 25 of Indian Constitution: Freedom of
conscience and free profession, practice and
propagation of religion-
Subject to public order morality and health and to
the other provision of this part, all persons are
equally entitled to freedom of conscience and the
freely to profess practice and propagate religion.
Nothing in this Article shall affect the operation of
any existing law or prevent the state from making
any law
a. regulating or restricting any economic,
financial political or other secular activity
which may be associated with religious
practice;

Providing for social welfare and reform or

throwing open of Hindu religious institutions of
public character to all classes and sections of
Hindus.

Explanation I : The wearing and carrying kripans

shall be deemed to be included in the profession
of Sikh religion.

Explanation II: In sub-clause (b) of clause (2) the

reference to Hindus shall be construed as
including a reference to professing the Sikh, Jain
or Buddhist religion and the reference to Hindu
religious institution shall be construed
accordingly.

2. Article 26 of Indian Constitution: Freedom to

manage religious affairs.—Subject to public
order, morality and health, every religious
Bharati Law Review, Jan.-Mar., 2014 119

denomination or any section thereof shall have

the right—
(a) To establish and maintain institutions for
religious and charitable purposes;
(b) To manage its own affairs in matters of religion;
(c) To own and acquire movable and immovable
property; and
(d) To administer such property in accordance with
law.

3. Article 27 of Indian Constitution: Freedom as to

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

4. Article 28 of Indian Constitution: Freedom as to

attendance at religious instruction or religious worship
in certain educational institutions.—

(1) No religious instruction shall be provided in any

educational institution wholly maintained out of State
funds.

(2) Nothing in clause (1) shall apply to an educational

institution which is administered by the State but has
been established under any endowment or trust which
requires that religious instruction shall be imparted in
such institution.

(3) No person attending any educational institution

recognized by the State or receiving aid out of State
funds shall be required to take part in any religious
instruction that may be imparted in such institution
or to attend any religious worship that may be
conducted in such institution or in any premises
attached thereto unless such person or, if such person
is a minor, his guardian has given his consent thereto.

5. Article 44 of Indian Constitution: Uniform civil code

for the citizens.—The State shall endeavour to secure
for the citizens a uniform civil code throughout the
territory of India.
Bharati Law Review, Jan.-Mar., 2014 120

Legislative Attempts to Keep India as Secular

Country

The Parliament of India is the highest legislature for

India. Parliament can make laws for whole nation to keep
its mandate our Parliament has enacted various laws to
protect freedom of religion and to keep India as secular
country, union as well as state legislature enacted
various legislations which is one step in the achievement
of secularism in India. The 42nd Amendment Act, 1976
which inserted Secular word under preamble of Indian
Constitution, which declare India as secular state. Some
legislative attempts are as follows:
1. Code of Criminal Procedure Code, 1973
2. Special Marriage Act, 1954
3. Dowry Prohibition Act, 1961
4. Foreign Marriage Act, 1969
5. Medical Termination of Pregnancy Act, 1971
6. Protection of Women from Domestic Violence Act,
2005
7. Prevention of Child Marriage Act, 2006
8. Religious Institutions (Prevention of Misuse) Act,
1988
9. Places of Worship (Special Provisions) Act, 1991
10. Bigamy prohibition under Government Service
Rule, 1964
11. Birth and Deaths Registration Act, 1969
12. Schedule Caste and Scheduled Tribes (Prevention
of Atrocities ) Act, 1989

Judical Approach towards Right to Freedom of

Religion and Secularism

The Indian Supreme Court is final interpreter and watch

dog of Indian constitution but apex court in plethora of
judgments interpreted secularism as equal treatment to
all religions. Freedom of religion and secularism are
opposite concepts and state have to maintain balance
between two. There was a time in India history when
religion provided, regulated fully controlled the legal and
judicial system of country. Today the situation is other
way round. In the secular India of our times it is the law
of land that determines the role of religion in the society
and it is the judiciary that determines what the laws on
Bharati Law Review, Jan.-Mar., 2014 121

this aspect of life say mean and require9. It is necessary

to protect the freedom of religion but most important we
have to maintain secularism in India. Secularism is the
basic structure of Indian constitution which was
confirmed in S.R. Boomai v. Union of India10. It means
state shall not interfere in religious matters of religion.
The state will be a complete neutral role and freedom of
religion will be very private affair of individual. We are
secular first and then freedom of religion is guaranteed
under Articles 25 and 26 of Indian Constitution. These
Articles itself give power to state that they can intervene
in religious matters on the ground of morality, health,
public order it clearly implicates that secularism is genus
and freedom of religion is species. The rule is that Indian
shall remain secular and exception is of freedom of
religion. Propriety shall be given to secularism and
freedom of religion shall be a very private affair of
Individual. Current Indian scenario is ample clear on
secularism but role of parliament of India and state
legislatures is in big question. It is highly expedient to
check and balance the role of legislature and Judiciary in
the area of secularism and freedom of religion.

It is the constitutional duty of Indian Judiciary to

uphold constitutional mandate. Supreme Court of India
also interpreted in different manner in plethora of
decisions Apex court held that secularism means equal
treatment to all religion, but actual meaning of it is
complete demarcation between state and religion. Society
not only expects the courts to ensure procedural fairness,
but also expects them to be efficient. The courts are the
machinery for enforcing laws and regulations. The legal
system might have very good laws which provide for the
granting of substantive rights to the citizen vis-à-vis his
fellow citizens, and vis-a-vis the government11. It is the
duty of state to incorporate these ideas in reality.
Plethora of marginal religious communities are living in
India and they shall not feel insecure equal opportunity
shall be given to everybody for proper progress and

9 Prof. Tahir Mahmood, Laws of India on Religion and Religious

Affairs, Universal Law Publishing Co., ISBN 978-81-7534-659-8, p.
10.
10 AIR 1994 SCC 1.
11 Shimon Shetreet, Law and Social Pluralism, LexisNexis
Butterworths, ISBN 81-8038-003-3 P 224.
Bharati Law Review, Jan.-Mar., 2014 122

development, and it is the duty of majority to protect the

interests and aspirations of minorities. In Bijoe
Emmanuel v. State of Kerala12, which is also known as
National Anthem case Apex court of India held that it is
not mandatory to sing a National Anthem if particular
religion doesn’t permit its followers then it is optional,
this was a landmark judgment because it respected the
personal liberty to follow any religion. The role of Indian
judiciary can play very important role in this area, still
there are plenty of hopes from Apex court of India. In
Acharya Jagdishwaranand Avaduth v. commissioner of
police Calcutta13, the basic question before supreme
Court of India was that whether a particular rite or
observance is an essential religious rite of an religion
Apex court of India held that performance of Tandava
dance with skulls and daggers is not an essential part of
religious rites to be observed by Anand Margis. In this
way state can interfere in the religious matter on the
ground of public order. Hence secularism is a basic
stricture of Indian Constitution. In another path setting
decision Supreme Court of India in Mohd. Hanif Quareshi
v. State of Bihar14, curtail question was that total Bann
on cow slaughter vocative to Article 25 of Indian
constitution. It was observed by Court that total Bann on
cow slaughter is invalid and unconstitutional.

Indian secularism is very different kind of secularism. If

we observed Indian conditions minutely particularly the
judgments of Courts in India then from the inception of
Supreme Court in this Country the Apex court of India
wrongly interpreted the concept of secularism.
Secularism may be considered as an ethical system
founded on the principles of natural morality and
independent of revealed religion or supernaturalism15.
The dictionary meaning of secularism is neutrality of
state in the matters of religion. The basic question is that
whether this meaning was actually considered by our
judiciary the answer is no. every time Apex Court India
held in many cases that Sarvadharma Sambahv which
means equal treatment to all religions. Is it practically
possible for country like India where more than six

12 AIR 1986.
13 AIR 1983.
14 AIR 1958.
15 Encyclopedia Americana, 1965.
Bharati Law Review, Jan.-Mar., 2014 123

religions are living from thousands of years? If court’s

interpretation is correct then India may not remain as
secular country. But Forty Second Amendment Act, 1976
which inserted Secular world under preamble of Indian
Constitution, which specifically declare India as a neutral
state in the matters of religion. If we study the decisions
of courts particularly after 42nd Amendment Act, there is
no change in interpretation of concept of secularism.

Minority Rights and Secularism

Minorities are specially protected under Indian

constitution. These classes of citizens are very few in
number as compare to majority religious institutions. A
theoretic state cannot protect the interest of religious
minorities as it is committed to one particular religion,
whereas a secular country acts as the guardian of
religious minorities16. It doesn’t mean that state shall
provide financial assistance for religious purpose because
it may against the concept of secularism. Article which
provides effective protection to minorities in India are as
follows:

Article 29 of Indian Constitution: Protection of Interests

of Minorities.—

(1) Any section of the citizens residing in the territory of

India or any part thereof having a distinct language,
script or culture of its own shall have the right to
conserve the same.

(2) No citizen shall be denied admission into any

educational institution maintained by the State or
receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them.

9. Article 30 of Indian Constitution: Right of minorities to

establish and administer educational institutions. —

(1) All minorities, whether based on religion or language,

shall have the right to establish and administer
educational institutions of their choice.

16 Legal News and Views, Vol. 26: No 11: November 2012, p. 1.

Bharati Law Review, Jan.-Mar., 2014 124

(1A) In making any law providing for the compulsory

acquisition of any property of an educational institution
established and administered by a minority, referred to in
clause (1), the State shall ensure that the amount fixed
by or determined under such law for the acquisition of
such property is such as would not restrict or abrogate
the right guaranteed under that clause.
(2) The State shall not, in granting aid to educational
institutions, discriminate against any educational
institution on the ground that it is under the
management of a minority, whether based on religion or
language.

Suggestions

1. There is an urgent need to redefine the concept of

secularism.
2. There is immense necessity to stop grant in Aid
for religious purpose.
3. The Indian State in letter and spirit shall play a
neutral role in the area of religion.
4. The Supreme Court shall interpret secularism as
per dictionary meaning.

Conclusion

The concept of freedom of religion and secularism

enshrined under Indian constitution are very vague and
it is the right time redefines it. These concepts are
creating ambiguity in the mind of common people as well
as in the mind of judiciary. In a country like country
which is developing in every sector of human life it is
necessary to concentrate on developmental activities and
so the state shall stop from funding religious institutions
and denominations. No doubt religious freedom is
guaranteed but it doesn’t mean that the state shall
devote its revenue for such expenditure. If particular
religion wants to develop then there is no bar on it but
nowadays its becoming the fashion every Government is
appeasing the religious institutions.


Bharati Law Review, Jan.-Mar., 2014 125

HUMAN RIGHTS ISSUES OF VICTIMS OF VIOLENT

CRIMES: RESTLESS WAITING FOR RECOGNITION AS
MINORITY

Mr. Sukdeo Ingale*

Introduction

Although questions on minority form parts of the popular

political discourses in India, the concept of minority
remains debated and expanded from time to time. It is
crystal clear since Independence and can be illustrated
by the recognition of minority status recently received by
Jain community. In a situation epitomized by ethnic-
hegemony and competing ethnic endeavour, the majority-
minority syndrome has turned out to be in inescapable
phenomena in Indian democracy.

Since the issue of minority problems have assumed

global importance, and since the question of addressing
minority issues under every political set-up is of primary
concern, there is imperative to develop who constitute
majority or minority and under what circumstances.
Nonetheless what is noteworthy is that the social
relations cannot be viewed only in majority-minority
aspects based on number of person belonging to
particular group; ceteris paribus the interactive and
cumulative nature of the social forces influencing inter-
group relations needs to be equally emphasized in
delineating minority. If such social forces demand, there
needs to be “a gateway” for recognition of minority status
of any group which needs special protection. To find out
possibility of such gateway we need to study meaning
and definitions of the term “minority”.

Definition of Minority

For the first time in India, the Motilal Nehru Committee

recommended a number of fundamental rights some of
them were to solve communal problems1. The Motilal

* Assistant Professor, DES NF Law College, Pune.

1 MITTAL J. K., Indian Legal and Constitutional History (4th ed. 2007).
Bharati Law Review, Jan.-Mar., 2014 126

Nehru Report2 showed a prominent desire to afford

protection to minorities, but did not define the
expression. Sir Tej Bahadur Sapru Committee3, set up by
the Non-Party Conference also proposed, inter alia, a
Minorities Commission but did not define minority.

The Constitution nowhere defines the terms “minority”,

nor does it lay down sufficient indicia to the test for
determination of a group as minority. Confronted,
perhaps, with the fact that the concept of minority, laid
its problem, was intercalate, the framers made no efforts
to bring it within the confines of a formulation. Even in
the face of doubts being expressed over the advisability of
leaving vague justiciable rights to undefined minorities,
the members of the Constituent Assembly made no
attempt to define the term while Article 23 of the Draft
Constitution, corresponding to present Articles 29 and
30, was being debated.

In India the term minorities is defined by academicians

as the groups that are held together by ties of common
descent, language, or religious faith, and feel themselves
different from other dominant groups within a political
entity4. Usually, a minority group is defined on the basis
of a relatively permanent and unchanging status and on
the basis of being different, often visibly, from the
majority group. This definition includes minorities based
on ascribed statuses such as race, ethnicity, and gender
and other statuses that are difficult or impossible to
change, such as sexual orientation and disability. It also
includes groups with common identities that are deeply
held and relatively unlikely to change, most commonly
religious or linguistic groups.

Despite many references to “minorities” in international

legal instruments, there is no universally agreed, legally

2 Motilal Nehru Report, 1928 (Jan. 26, 2014),

http://csspoint.yolasite.com/resources/Nehru%20Report%20
(1928).pdf.
3 The Sapru Report, 1945 (Jan. 26, 2014)
http://archive.org/stream/saprucommittee035520mbp/saprucom
mittee035520mbp_djvu.txt.
4 Brij Pal, Empowerment of minority in India, 1 Global Advanced
Research Journal of History, Political Science and International
Relations 4, 89-94 (May, 2012) also available at
http://garj.org/garjhpsir/index.htm.
Bharati Law Review, Jan.-Mar., 2014 127

binding definition of the term “minority”. This is primarily

because of a feeling that the concept of “minority” is
inherently vague and imprecise and that no proposed
definition would ever be able to provide for the
innumerable minority groups that could possibly exist. It
is often stressed that5 the existence of a minority is a
question of fact and that any definition must include
both objective factors (such as the existence of a shared
ethnicity, language or religion) and subjective factors
(including that individuals must identify themselves as
members of a minority).

The most widely acknowledged definition is the one

formulated by Capotorti6.

A minority group as – “a group numerically

inferior to the rest of the population of a State, in
a non-dominant position, whose members - being
nationals of the state - posses ethnic, religious or
linguistic characteristics differing from those of
the rest of the population and show, if only
implicitly, maintain a sense of solidarity, directed
towards preserving their culture, traditions,
religion or language”.

The U.N. Sub-Commission on Prevention of

Discrimination and Protection of Minorities7 has defined
minority as under:

1) The term “minority” includes only those non-

documents group of the population which possesses
and wish to preserve stable ethnic, religious or
linguistic traditions or characteristics markedly
different from those of the rest of the population;

5 United Nations, International Standards and Guidance for

Implementation (2010) (Jan. 9, 2014)
http://www.ohchr.org/Documents/Publications/MinorityRights_en.
pdf.
6 FRANCESCO CAPOTORTI, STUDY ON THE RIGHTS OF PERSONS
BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC
MINORITIES 98 (1991).
7 The U.N. Sub-Commission on Prevention of Discrimination and
Protection of Minorities, U.N. Doc. E/CN.4/Sub.2/1994/56 (1994),
(15 Jan., 2014)
http://www1.umn.edu/humanrts/demo/1994min.html.
Bharati Law Review, Jan.-Mar., 2014 128

2) Such minorities should properly include the

number of persons sufficient by themselves to
preserve such traditions or characteristics; and
3) Such minorities should be loyal to the state of
which they are nationals.

No one of the above definition comes out to be

comprehensive to cover all the varied situations,
illustrates the difficulty experienced in assigning limits to
concept of minority. This must remain the possible
explainable reason why Legislature and Courts have not
ventured to formulate a general definition.

After analyzing definition of minority and existing

position in India, Bishnu N. Mohapatra8 has drawn two
conclusions. First, although an important dimension,
numerical weakness alone does not define a minority.
Second, minority status is essentially fluid and it varies
across level and time. He further opined that in any given
context, a minority identity of a group is not solely
dependent upon certain objective factors such as
population, economic well-being and so on. The group
should also possess a subjective awareness of its distinct
status in relation to others. Beside these two dimensions,
State plays a crucial role in the construction of minority
identity. The author does believe it true and this research
paper is one step toward recognition of minority status of
victims of crimes.

Every situation may not necessarily involve the

assumption that the group in order to deserve the title of
‘minority’ must be distinguishable from the majority by
the presence of the feeling or consciousness of its being
different from the majority. A group distinguishable from
others by the possession of certain objective
characteristics, such as language, may not have a feeling
or consciousness of its distinct status of being counting
as minority. Hence the most acceptable definitions as
discussed above are not beyond the reach of argument.
That definition appears to be confined to those non
dominant groups only which, apart from having certain
objective characteristics that are distinctively of their

8 BISHNU N. MOHAPATRA, Minorities and Politics, in “The Oxford

Companion to politics in India 225 (Niraja Gopal Jayal & Pratap
Bhanu Mehta eds., 2010).”
Bharati Law Review, Jan.-Mar., 2014 129

own, wish to preserve the distinctive identities and are

not willing to be assimilated with the rest of the
population.

On the same issue while discussing Islamic discussions

of Western Secularism in the ‘jurisprudence of Muslim
minorities’, Andrew F. March9 proposed a simple
assumption to find out what constitute minority. His
assumption is that all groups view themselves as more or
less insular and equally closed vis-à-vis other groups. In
a closed society consisting of only Catholics and
Protestants, Catholics see Protestant reason as exclusive
and thus potentially threatening. In a more complex
society, Catholics see Protestant reason as equally
exclusive as Jewish, Islamic, Mormon, or secular reason.
In both of these societies, according to this simple
assumption, where Catholics are a minority and their
own reason cannot prevail they do not prefer the
comprehensive reasoning of any of the other groups over
any other, and thus have reasons to endorse some form
of public reason.

As the Indian society is ‘most complex society’

consisting of many religions followed and languages
spoken, his assumption about more complex society is
equally true for Indian society. Hence it claims need of
reconsideration of ‘traditional concept of minority’
through path-breaking research in this area.

Criteria of Recognition of Minority Status

In India, the term “minority” is often used to denote those

non-Hindu religious communities whose members are for
one reason or another inclined to assert their
distinctiveness in relation to Hindus. Thus, Muslims,
Christians, Sikhs, Parsees and Jews are commonly
described as minorities in India. The Indian Constitution
recognizes only two types of minorities based on religion
and/or language10. It does not recognize minorities based
on culture, ethnicity, race or nationality. However, the

9 Andrew F. March, Are Secularism And Neutrality Attractive To

Religious Minorities? Islamic Discussions Of Western Secularism In
The ‘Jurisprudence Of Muslim Minorities’ (Fiqh Al-Aqalliyyat)
Discourse, 30 Cardozo Law Review 6, 2821-2854 (2009).
10 Under Article 25 to Article 30 of The Constitution of India.
Bharati Law Review, Jan.-Mar., 2014 130

emergence of lower caste movements, communal

identities and ethno-nationalism have resulted to the
phenomenon of identity politics in India on the one hand
and deepening majority-minority syndrome on the other.
In common parlance, “religion” tends to be limited to the
easily identified faiths like Christianity, Hinduism,
Judaism, Islam and Buddhism. Minority in India is
confined to religious connotations. Hindus are regarded
to be the majority while Muslims, Sikhs, Parsees, Anglo-
Indians, Christians and now recently Jains are identified
as religious minorities.

Religion as the primary basis of grouping people and

differentiating between the majority and the minority has
persisted even though it is by no means a comprehensive
identity in the Indian context. But the fact that the Hindu
society is further vertically and horizontally differentiated
along caste lines remained out of mind. Indeed caste
differences hinder Hindu population to act or behave as a
cohesive majority11. What exist, as a consequence, are a
number of caste groups, more in the shape of diverse
minorities rather than a single majority. It necessitates
reconsideration of the concept of “minority status based
on religion.”

As a minority identity, and similar to religion in this

aspect, language has been considered equally important
facet of minority identity.

Although religion and language are the primary bases of

determining minority identity in India, religious affiliation
and linguistic similarities do not hold precedence in most
part of India. In Northeast India, the formations of
collective identity due to intense “ethnic mobilization”
and “ethnic nepotism” detriments religious affiliation
considered imperative to outline majority-minority
framework. Nonetheless, certain groups of people are
identified as “religious” and “linguistic” minority
nationally; yet, the consolidation on the grounds of ethnic
and caste element have rather been overriding criteria of
identification than any others12. Thus, in order to define
minority, it becomes essential to note the point of

11 Ch. Sekholal Kom, Defining Minorities of India’s Northeast, 6

Eastern Quarterly III, 117–127 (2010).
12 Id at 122.
Bharati Law Review, Jan.-Mar., 2014 131

reference where minority is to be outlined vis-à-vis the

prevailing facet of identification resorted in that specific
area. In other words, although the dual recognition of
religion and language acted as the only accepted
identification tools, the feeling of “relative deprivation”
and “dominance” along caste and ethnic lines seems to
fragment the different population groups into smaller
segments. Hence the author believe that to limit concept
of ‘minority’ to religious and linguistic groups and to give
them special protection, at the end of day, results in
misuse of state instrumentality for ‘hidden political ends.’

Recognition of Minority Status of Victims of Violent

Crimes

The history of human rights is an unending story of

search for absolute values. The history of 2500 years of
struggle for human rights can be summed up as
follows13-
From exploitation to exploration
From exploration to proclamation
From proclamation to declaration
From declaration to protection
From protection to perfection

The term human right is emerged only after Second

World War. The first documentary use of the expression
‘Human Right’ is found in the Charter of the United
Nations14, which was adopted after Second World War at
San Francisco on June 26, 1945. The preamble of this
Charter declared its object as “to reaffirm faith in
‘fundamental human rights’.” But it was not a binding
instrument. The only first concrete step in formulation of
human right is the United Nations Declaration of Human
Rights proclaimed in 1948 as a common standard of
achievement for all people and all nations. The
Declaration deals with many civil, political, social,
economic and cultural rights. The Declaration is to be
implemented through two international covenants
namely, the Covenant on Civil and Political Rights, 1966
and the Covenant on Economic, Social and Cultural

13 Lakshminath A., Human Rights- Post-human Challenges, 2 JMR 2, 1

(2011).
14 The Charter of United Nations (Jan. 13, 2014)
http://www.unic.org.in/items/Other_UNCharter.pdf.
Bharati Law Review, Jan.-Mar., 2014 132

Rights, 1966, which came into force in December 1976.

These covenants; and thereby human rights protected
there under are legally binding on all member States who
ratified it. All civilized countries have recognized most of
the human rights either in statutes and Constitution
itself or while interpreting these legislations. Some
countries like UK15 have changed their primary
legislations (and sometime Constitutions) to make their
legislative policies suitable for recognition and
enforcement of Human Rights.

The concept of human right is inclusive and cannot be

defined. The scope of Human Rights is increasing and
there is new recognition of many rights which can result
in better protection of Human Rights.

Till vary recent days the Human Right issues of victims

of violent crimes were not taken seriously. It is only after
the Second World War some criminologist started talking
about victims’ rights and only at the beginning of 21st
century some legal systems recognized some rights of
victims. Otherwise the poor victims of crime were entirely
overlooked in misplaced sympathy for the criminals. On
other hand the guilty man was lodged, fed, clothed, and
entertained in a model cell at the expenses of the state.16
Some of the rights of an accused person are protected by
Indian Constitution under Article 22. But the victim
remained unknown to the Indian Law and Criminal
Jurisprudence till 2008 when some sort of statutory
protection was accorded through the Code of Criminal
Procedure (Amendment) Act, 2008. There may be a
controversy among academicians as well as professionals
about deterrent effect of punishment but there is no
second opinion as to the need of protection and
rehabilitation of victims of crime. Now it is well accepted
that provision of punishment does not serve the cause of
the victim. Hence the Hon’ble Supreme Court in Delhi
Domestic Working Women’s Forum v. Union of India and
others17 had directed the National Commission for
Women to evolve a “scheme so as to wipe out the tears of
unfortunate victims of rape’’. There are different schemes

15 The UK has changed its 11 primary legislations in response to

adverse findings of Courts while implementing the Human Rights.
16 VIBHUTE K. I., Criminal Justice, 350 (1st ed., 2004).
17 1995 (1) SCC 14.
Bharati Law Review, Jan.-Mar., 2014 133

of various State Governments (which are either

implemented or in the process of formulation) with
objective of protection and rehabilitation of victims of
rape. But there is no such recognition of victims of other
crimes. Hence the author proposes recognition of
minority status for the victims of all types of violent
crimes.

As per the existing standard of human rights, the

traditional concept of minority denotes groups which
basically possess following characteristics:
1. Its members experience discrimination,
segregation, oppression, or persecution by a
dominant group;
2. It is characterized by physical or cultural,
linguistic etc traits, which are permanent or
unchangeable, that distinguish from the
dominant group;
3. It is a self-conscious social group; and
4. Membership in a minority is generally
involuntary.

All the above standards, except about permanent or

unchangeable physical, cultural or linguistic traits, are
true with respect to victims of violent crime. This
jurisprudential conflict about permanent or
unchangeable physical, cultural or linguistic traits can be
resolved by issuing ‘'ad-hoc certificates of minority status’
in which court can specifically mention about validity
period and mode of restitution and rehabilitation to
which victim of crime is entitle.

The Benefits of Such Recognition

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. The
distinction between ‘common domain’ and ‘separate
domain’ and their combination have been well kept and
protected in the Constitution.
Bharati Law Review, Jan.-Mar., 2014 134

1. Common Domain under the Fundamental

Rights – Part III of the Constitution,
2. Common Domain under the Directive
Principles of State Policy – Part IV of the
Constitution,
3. Common Domain under the Fundamental
Duties – Part IVA of the Constitution,
4. Separate Domain under Article 29-30,
Article 347, Article 350 and Article 350 A.

Apart from Constitutional Safeguards, there are some

benefits in the form of schemes and programmes declared
by State and Central Governments to which person
became entitle to claim if he/she has been recognized as
member of minority group. For example on the occasion
of Independence Day, in 2005, the then Prime Minister,
in his address18 to the Joint Session of Parliament on
February 25, 2005, had announced “15 Point
Programme” for the Welfare of Minorities. The programme
includes following benefits of various government
schemes-
1. Equitable availability of the Integrated Child
Development Services (ICDS) Scheme for
holistic development of children and
pregnant or lactating mothers from
disadvantaged sections.
2. Improving access to School Education
through the Sarva Shiksha Abhiyan, the
Kasturba Gandhi Balika Vidyalaya Scheme,
and other similar Government schemes.
3. Greater resources for teaching Urdu through
recruitment and posting of Urdu language
teachers in primary and upper primary
schools that serve a population in which at
least one-fourth belong to that language
group.
4. Modernizing Madarsa Education through
the Central Plan Scheme of Area Intensive
and Madarsa Modernization Programme
which provides basic educational
infrastructure in areas of concentration of
educationally backward minorities and

18 Government of India, Ministry of Minority Affairs, Annual Report

2005-06, (Jan. 10, 2014) www.minorityaffairs.gov.in.
Bharati Law Review, Jan.-Mar., 2014 135

resources for the modernization of Madarsa

education.
5. Pre-matric and post- matric scholarships for
meritorious students from minority
communities.
6. Improving educational infrastructure
through the Maulana Azad Education
Foundation to strengthen and enable it to
expand its activities more effectively.
7. A certain percentage of the Urban Self-
Employment Programme (USEP) and the
Urban Wage Employment Programme
(UWEP) will be earmarked to benefit people
below the poverty line from the minority
communities.
8. Upgradation of skills of members of minority
community through technical training in
ITIs.
9. Promoting economic development activities
among the minority communities by
enhanced credit support for economic
activities through the National Minorities
Development & Finance Corporation
10. Recruitment to State and Central Services
through large scale employment
opportunities by the Central and the State
Governments in the police organisations, the
Railways, nationalized banks and public
sector enterprises.
11. Equitable share in rural housing scheme by
reserving a certain percentage of the various
schemes providing financial assistance for
shelter for poor beneficiaries from minority
communities living in rural area.
12. Improvement in condition of slums
inhabited by minority communities under
the schemes of Integrated Housing & Slum
Development Programme (IHSDP) and
Jawaharlal Nehru National Urban Renewal
Mission (JNNURM).
13. Prevention of communal incidents by
appointing district and police officials of the
highest known efficiency, impartiality and
secular record in the areas having such
previous record.
Bharati Law Review, Jan.-Mar., 2014 136

14. Prosecution for communal offences for

severe action against all those who incite
communal tension or take part in violence.
15. Rehabilitation of victims of communal riots
by providing immediate relief and prompt
and adequate financial assistance.

Out of these 15 points, the last three points directly

deals with and can be used even if victims can be given
‘minority’ status. Out of the remaining points, only the
point at sr. no. 3 and 6 cannot be used if victims can be
given ‘minority’ status as it specifically relates to religious
and cultural minority. Otherwise for all other points
minority status to victims of crime does not make any
change. All these schemes can be extended for victims of
violent crimes. The funds can be raised by different ways.
In this regard some academicians have attempted
sincerely to find out different ways to build the funds for
compensation to the victims of crime. According to Prof.
(Dr.) N. R. Madhava Menon19 there are many ways in
which victim compensation can be generated by Center
and State Govts. It includes-
1. Initial grants by State and Central Govts.
2. Court fees collected in full or part which
exceeds Rs. 100 Crores the whole country
every year.
3. Fines imposed on conviction by criminal
courts, which may substantially increase,
particularly in economic offence and from
rich convicts.
4. Unclaimed small decree amount
accumulated over the years.
5. Donations to the fund which may be
exempted from tax like prime Minister’s
Relief Funds.
6. Access of Rs. 5 on select pleadings field in
criminal courts.
7. Monetary amount ordered to be paid by
courts (punitive damage the Fund in
different types of cases coming up before
them.

19 N.R. MADHAVA MENON, Victim Compensation Law and Criminal

Justice; A Plea for Victim Orientation in Criminal Justice, in CRIMINAL
JUSTICE- A HUMAN RIGHT PERSPECTIVE OF THE CRIMINAL
JUSTICE PROCESS IN INDIA 365 (K.I. Vibhute ed., 2004).
Bharati Law Review, Jan.-Mar., 2014 137

8. Bail bond forfeitures and

9. Wages earned by prison inmates

Above sources are sufficient to rise funding for

protection and rehabilitation of victims of crime. There is
no scarcity of funds when different State Governments
started paying compensation to the victims of crime. For
example State of M.P. The CAG Report20 revealed that an
amount of Rs. 2.46 crore was deposited in the common
fund up to March 2006, out of which an amount Rs. 8.10
lakh only could be disbursed to 81 beneficiaries and
balance of Rs. 2.38 crore was lying unutilized against
which only 25 cases were pending at the end of March
2006. Same is the story of schemes formulated and
implemented by many other State Governments. It means
the only issue is about instrumentality through which
Government can achieve noble objective of protecting
human rights of victims through proper restitution and
rehabilitation.

Jurisprudential Conflicts of Such Recognition of

Victims

In spite of the persisting divergent views, the

explanations of definitions of the concept ‘minority’
reveals four basic elements that make a minority; (i) a
minority is a non-dominant and numerically insignificant
group; (ii) distinguishable on the basis of physical and
cultural features which are not changeable; (iii)
collectively being regarded and treated as different and
inferior; and (iv) minorities are the product of
aggregation/segregation in a definite geographical locale.
Thus, it is apparent that the traditional concept of
‘minority’ includes culturally, ethnically and linguistically
distinct group, numerically inferior and non-dominant
group living within a larger society. Thus, ‘minority’ has
been understood as a comparatively non-dominant
smaller group of people differentiated from others in the
same society by race, religion, ethnic, language etc.

20 CAG Report, Jail Department, Audit Report (Civil) for the year ended
31 March 2006 (Jan. 22, 2014) http://www.agmp.cag.gov.in
/reports/State%20Audit%20Reports/2005-06/civil/civ%2005-
06%20combine.pdf.
Bharati Law Review, Jan.-Mar., 2014 138

The Indian Constitution rejects creation of a political

majority on the basis of religion or language. The term
“minority” is mentioned in four of its Articles namely
Articles 29(1), 30, 350-A, 350-B, however, it nowhere
defines the term “minority” nor delineates criteria for
determining minority. In most cases, “minority” in India
is described as that groups which are outside majority
(i.e., Hindu). Thus, it implies that the core of Indian
identity is Hinduism. This signifies that only religious
groups, that are numerically smaller, can be minorities.
On the other, it mapped out large ethno-linguistic states
within the “Indian Union.” India as a “Union of States”
formed laws and codes for Centre-State relationship for
distributing powers among these ethnically based
territorial provinces (states). As a result, the traditional
concept of “minority” became confined to the religious
minorities nationally and to a specific linguistic, religious
or an ethno-cultural minority within a state, even if that
“minority” constituted a majority in another state of
India.

Apparently it looks, as Rakesh Kr. Singh21 believes, that

the purpose of Article 29 is to facilitate migration of
people. If, for example, a few people from Madras were to
come and settle down in Mumbai, they would constitute
a cultural and linguistic minority in Maharashtra and
Article 29 would protect their culture, language and
script. But according to author such situation clearly
means that if a person belonging to such religious or
linguistic group wants to make avail benefits of minority
status – he needs to be part of such state where such
religious or linguistic group is recognized as ‘minority’
and he loses the benefits of minority status if he migrates
to the state where such group is not minority. Indirectly
recognition of minority status on the criteria of religion or
language is nothing but to restrict right to reside and
settle in any part of the territory of India. In short
traditional concept of minority is violation of Article 19 (1)
(e) of the Constitution of India.

Hence, it is to be noted that religion or language could

not be the only criteria of determining one’s minority
identity. In fact, inequality also persists between people

21 Rakesh Kr. Singh, Constitutional Mandate and Rights of Linguistic

Minorities, 48 JILI 2, 271 (2006).
Bharati Law Review, Jan.-Mar., 2014 139

professing the same faith and having same language of

communication.

Recently some western countries have started debate on

recognition of minority status on the basis of sexuality.
The same has been started even in India22. It must be
noted that certain concepts which developed from specific
western contexts which ipso facto claimed to have
universal validity does not necessarily have pernicious
consequences for third world societies. In contemporary
Indian society, on the same line we must review criteria
for recognition of minority status and think seriously for
awarding minority status to the victims of violent crimes.

Way Outs to the Jurisprudential Conflicts

During the framing of Constitution of India, the Dalits/

Harijans as well as the ‘backward’ tribals claimed
minority status23. In the deliberations of Constituent
Assembly, the minorities question was regarded as
encompassing the claims of three kinds of communities:
religious minorities, Scheduled Castes, and ‘backward’
tribes, for all of whom safeguards in different forms had
been instituted by the British and by Princely States in
the colonial period.

The representatives of most groups claiming special

provisions in some form emphasized that the group was a
minority of some kind. So close was the identification of
the term `minority' with the notion of special treatment
for a group that even those opposed to a continuation of
the colonial system of minority safeguards employed the
same language to justify their stand. For instance, it was
argued that the ‘so-called minorities’ were not the ‘real
minorities’. The latter were variously identified as ‘the
agriculturists’, ‘the rural people’, ‘the backward
provinces’, even ‘the masses’. The claim was that these
were the groups that ought to receive special treatment,
rather than the communities hitherto favoured by the
British Ruler24.

22 A PUCL-K fact-finding Report about Bangalore, Human rights

violations against sexuality minorities in India, (Jan.26, 2014)
http://www.pucl.org /Topics/Gender/2003/sexual-minorities.pdf.
23 CAD, I, at 139 see also p. 284.
24 CAD, I at 264.
Bharati Law Review, Jan.-Mar., 2014 140

But this view remained “Minority Opinion” in

Constituent Assembly and majority of members were not
ready to recognize minority status for – the agriculturist,
the rural people, etc.

Few members of Constituent Assembly understood that

this “Minority Opinion” holds water and when time
demands any group (even the masses) can be recognized
as ‘minority’ based on criteria other than religion or
language. Hence Constituent Assembly replaced word
‘minority’ (as throughout world it is intrinsically
connected with religion, language, ethnicity, etc) with
‘any section’ (which is open ended where any group can
be accommodated).

Dr. Ambedkar sought to explain the reason the reason

for substitution in the Draft Constitution of the word
minority by the words “any section” observing:
“It will be noted that the term minority was
used therein not in the technical sense of the
word ‘minority’ as we have been accustomed
to use it for the purpose of certain political
safeguards, such as representation in the
Legislature, representation in the service and
so on. The word is used not merely to indicate
the minority in the technical sense of the
word; it is also used to cover minorities which
are not minorities in the technical sense, but
which are nonetheless minorities in the
culture and linguistic sense. That is the
reason why we dropped the word “minority”
because we felt that the word might be
interpreted in the narrow sense of the term
when the intention of this House….was to use
the word ‘Minority’ in a much wider sense so
as to give cultural protection to those who
were technically not minorities but minorities
nonetheless”.

After more than 60 years to the Constitution of India,

now the time demands that for protection and
enforcement of Human Rights of victims of crime, we
need to recognise victims of crime as ‘minority’. By doing
so, with few jurisprudential adjustments, Minority
Bharati Law Review, Jan.-Mar., 2014 141

Commission can be used as ‘State Instrumentality’ for

protection and rehabilitation of victims of crime. The
author does not see any other better way for protecting
Human Rights of victims of violent crimes.

If one tries to analyze working of Minority Commission-

it is crystal clear that even today, when victims of crime
are not recognized as ‘minority’; in most of the cases the
National Minority Commission is engaged in solving
‘Complaints of Law and Order’(see figure-1). So now the
National Minority Commission is playing vary vital role in
protection and rehabilitation of victims of crimes
belonging to ‘minority’ communities. The author proposes
that after successful working for last more than 20 years,
now it is demand of time to give constitutional status to
the National Minority Commission and to widen its
powers and functions to include victims of violent crime
as a ‘minority’.
Bharati Law Review, Jan.-Mar., 2014 142

1,199
1,200
963
1,000

800 652
600
406 442 448
354
400 295
215 224 214
145
200 997079 716657 665233
17 9 17
0
1/04/2011 to 1/04/2012 to 1/04/2013 to
31/03/2012 31/03/2013 31/10/2013

Law & Order Service Matters

Educational Matters Religious Rights
Waqf Matters Economic Matters
Cultural Rights Other Matters

Figure 1: Subject wise Complaints to National

Commission for Minority, Source: Reports of Complaint
Monitoring System, available at:
http://ncm.nic.in/Complaint_Monitoring_System.html.

Conclusion

It is not surprising that there should be both favourable

and unfavourable views towards recognition of victims of
violent crimes as ‘minority’. This research is, after all, a
fundamentally doctrinal discussion, rather than a
pragmatic one. Internal consistency and overall
coherence shows need of and possibility of recognition of
minority status of victims of violent crimes for their
adherence and support. Fundamentally everyone
including academicians, jurist, legislators and common
citizen of India agrees that there is need of protection and
rehabilitation of victims of violent crime. Most of the State
Governments have formulated, and few of them have
started implementation of different schemes to achieve
Bharati Law Review, Jan.-Mar., 2014 143

such objective. Indeed, the cost of creating new

Instrumentality for such purpose is very high and
certainly not expected in India. Hence the author
proposes to recognize minority status for victims of
violent crime and to make them beneficiary of all the
benefits available for members of minority community.
For that purpose the author suggests following changes-
1 The court, in each and every case for protection
and rehabilitation of victims of crime, shall issue
certificate of ‘Minority Status’ mentioning amount
of compensation and or any other facility to be
provided for restitution and rehabilitation of
victims of crime. The National Commission for
Minority shall do all the needful, on the
production of such certificate of ‘Minority Status’.

2 For recognition of minority status of victims of

crime, the author suggests following amendment
to the Constitution of India-

Article 29 A: Protection of Interest of Victims

of Violent Crime: (1) every victim of violent
crime shall have right to compensation and
or restitution including rehabilitation in
such manner as the State may, by law,
determine.
(2) No victim of violent crime shall be denied
the benefits of any scheme or programme
available to the member of minority except
the rights provided under Article 30 of the
Constitution of India.

3 Constitutional status to National Commission for

Minorities can help in the matters of protections
of Human Rights of victims of crimes. The author
suggests following constitutional amendment to
that effect-
“Article 338 B. National Commission for
Minorities- (1) There shall be a Commission
for the Minorities to be known as the
National Commission for Minorities.
(2)……………
……………….
……………….”
Bharati Law Review, Jan.-Mar., 2014 144

The author suggests all analogous provisions as

provided under Article 338 and Article 338 A of
the Constitution for the National Commission for
Schedule Caste and the National Commission for
Schedule Tribe respectively.

4 Sec. 9(1) of the National Commission for

Minorities Act, 1992 needs to be amended for
inclusion of following sub-clause:

“j. to award compensation and or to take such

measures as required for protection and
rehabilitation of victims of violent crimes as
per ‘the certificate of minority status’ issued
by the Court”


Bharati Law Review, Jan.-Mar., 2014 145

THE PROTECTION OF CULTURAL RIGHTS OF

MINORITIES IN INDIA: AN ANALYSIS OF
CONSTITUTIONAL COMMAND

Mr. Abhijeet Ramkrishna Dhere*

Introduction

India is a land which is very well known for its

acceptance of various cultures and peaceful co-existence.
Various cultures have mixed with each other and have
created a very great and unique pattern of culture which
is rare on the earth. As far as the history of India is
concerned it is very evident that from time to time India
has been the very much attracting destination for the
invaders. The invaders have come to invade India and
have forgotten to go back to their home. They have settled
down here only and this has given birth to the
multifaceted and pluralistic nature of Indian Society.
Arya, Shakas, Hoon, Mughals, Parsis all they came to
India and lived very happily here. This plural society has
given India a very unique face at the international level.
In modern time because of some events the issue of
peaceful cohabitation has become crucial. The majorities
started suppressing the minority voices and then the
problem was started. The need was felt for the protection
mechanism for the protection of minorities’ rights. The
Constitution framers were very much aware about this
and they have provided with the specific provisions for
the same. The issue of minority rights has been very
extensively dealt by the Constitution of India. The
protection provides for linguistic as well as the religious
minorities for the protection of language and their unique
culture. The present essay focuses on particularly the
issue of cultural rights of the minorities and the
mechanism provided for the protection of those rights
with the special reference to the judicial
pronouncements.

* Assistant Professor, Modern Law College, Pune.

Bharati Law Review, Jan.-Mar., 2014 146

The Conceptual Evolution of the Rights of Minorities

The word minority has not been defined anywhere in the

Constitution of India. But for the present essay it is very
much important to look into the definition of the word
minority. According to the Encyclopedia Britannica, the
word “minority”, means a culturally, ethnically, or
racially distinct group that coexists with but is
subordinate to a more dominant group. As the term is
used in the social sciences, this subordinancy is the chief
defining characteristic of a minority group. As such,
minority status does not necessarily correlate to
population. In some cases one or more so-called minority
groups may have a population many times the size of the
dominating group, as was the case in South Africa under
apartheid1.

In light of this general definition we also have to take

into consideration the definition given by our Hon’ble
Supreme Court, while deciding over the issue of minority,
in Jain Minority case2, held that: “Minority is as
understood from the constitutional scheme signifies an
identifiable group of people or community who were seen
deserving protection from likely deprivation of their
religious, cultural and educational rights by other
communities who happen to be in majority and likely to
gain political power in a democratic form of government
based on election”. Thus accordingly in India there are
Five communities which are considered to be the
Minorities on the basis of Linguistic and Religious base
viz Muslim, Parsi, Buddhist, Sikh and recently included
Jain Community, at the national level. And the issue of
identification of a minority has to be done on a State
basis. The power of Central Government has to be
exercised not merely on the advice and recommendation
of the National Commission for Minorities but on
consideration of the social, cultural and religious
conditions of the community in each State. Statistical
data produced to show that a community is numerically
a minority cannot be the sole criterion. If it is found that

1 The Encyclopedia Britannica,

http://www.britannica.com/EBchecked/topic/384500/minority, (2
Feb 2014).
2 Bal Patil v. Union of India, AIR 2005 SC 3172;(2005) 6 SCC 690; JT
2005(7) SC 185.
Bharati Law Review, Jan.-Mar., 2014 147

a majority of the members of the community belong to

the affluent class of industrialists, businessmen,
professionals and propertied class, it may not be
necessary to notify them under the National Commission
for Minorities Act as such and extend any Special
treatment or protection to them as a minority. The
provisions contained in the group of Articles 25 to 30 are
a protective umbrella against the possible deprivations of
fundamental rights of religious and linguistic minorities.3

The International Developments in the Protection of

Cultural Rights of Minorities

The process of protection of cultural rights of the

minorities has not been evolved in a single day. It has
taken a substantial time of the history to develop. It is
not the contribution of any particular country but it is
having a very strong base at the international Level.
Therefore it becomes very much essential to look into the
International perspective of the issue of cultural rights.
Various international treaties and covenants have
provided for the protection of the important rights of
minorities. Minority protection incorporates some of the
earliest articulations of cultural rights and the protection
of intangible cultural property in international law.
Although cultural diversity was encouraged by such
treaty provisions, it was often not their explicit purpose.
Instead, peace and progress have been the consistent
rationales attached to the inclusion, or otherwise, of such
provisions.

In the wake of the twentieth century during the period

of wars that is from 1919 to 1945, there was a detailed,
but flawed, articulation of minority protection. The Allied
governments refused to concede the universal application
of minority protection by including it in the Covenant of
the League of Nations. They were not willing to include
the express mention for the protection of cultural rights
of minorities in the Covenant. Instead, it was included in
peace treaties with specific central and eastern European
States.4

3 Id.
4 C.A. Macartney, National States and National Minorities, 240, (1968);
and P. Thornberry, International Law and the Rights of Minorities, 41
(1991).
Bharati Law Review, Jan.-Mar., 2014 148

The issues addressed by these treaty provisions, and

the Permanent Court of International Justice’s (PCIJ)
interpretation of them, continue to resonate to the
present-day in multilateral instruments covering
minorities, cultural diversity, cultural rights and
intangible heritage. Drawing from the guarantees
afforded certain groups in various nineteenth century,
the inter-war minority protection had two distinct
components. The first arm covered the principle of non-
discrimination, that is, members of the minority were as
entitled to equal enjoyment of civil and political rights as
other nationals.5 Although these guarantees provided for
the use of minority languages, the PCIJ found that their
intended purpose was to ‘prevent any unfavorable
treatment, and not to grant a special regime of privileged
treatment.’ They were, it said, of ‘a purely negative
character in that they are confined to a prohibition of any
discrimination.’6

On the other hand the second arm of these

international guarantees provided that minorities should
enjoy the equal right to establish, control and manage
their own ‘charitable, religious and social institutions,
schools and other educational establishments, with the
right to use their own language and to exercise their
religion freely therein.’7

When it defined what constituted a minority for the

purposes of these treaty provisions, the PCIJ made
reference to the intangible elements of their cultural
identity. It found that the relevant ‘community’ was,
“…united by … a view to preserving their traditions,
maintaining their form of worship, securing the
instruction and upbringing of their children in
accordance with the spirit and traditions of their race and
mutually assisting one another”.8 This particular
interpretation by the PCIJ has proved to be very much
dynamic in the international level and therefore the

5 Rights of Minorities in Upper Silesia (Minority Schools), 29, 1928

PCIJ Series A, No.15.
6 Id. at 30.
7 Treaty of Peace between the Allied and Associated Powers and
Austria, St Germain-en-Laye, Article 67, Section V, 10 September
1919, in force 8 November 1921.
8 Advisory Opinion in the Greco-Bulgarian ‘Communities’, 1930 PCIJ
Series B, No.17, 33.
Bharati Law Review, Jan.-Mar., 2014 149

relevant State was placed under a positive obligation to

assist in the realization of rights contained under this
second arm. This interpretation was reinforced with the
requirement that in territory where the minority made up
‘considerable proportion of … nationals’ the State was
required to provide instruction in the minority language
in public education system; and an equitable share of
public funds to the communities to realize these goals.9
This international development has been the base for the
evolution of the concept of rights of minorities in Indian
context. The Indian Constitution finds its base in these
international documents.

Genesis and Growth of the Concept in the Indian

Constitution

From the very beginning the Framers of our Constitution

were very much aware about the importance of the term
“protection of minorities” in every aspect. It was
considered as the essential provision for the protection of
India’s long tradition of peaceful coexistence of various
cultures right from the ancient times. The framers
therefore expressly provided for the protection of
linguistic as well as the cultural rights of the minorities.
The constitutional provision for the protection of
minorities rights are expressed under Articles 29 and 30.
Articles 29 and 30 read as follows.

Article 29: Protection of interests of minorities

(1) Any section of the citizens residing in the territory
of India or any part thereof having a distinct
language, script or culture of its own shall have
the right to conserve the same.
(2) No citizen shall be denied admission into any
educational institution maintained by the State
or receiving aid out of State funds on grounds
only of religion, race, caste, language or any of
them.

Article 30: Right of minorities to establish and

administer educational institutions
(1) All minorities, whether based on religion or
language, shall have the right to establish and

9 Treaty of St. Germain-en-Laye, Article 68, Section V, 1919.

Bharati Law Review, Jan.-Mar., 2014 150

administer educational institutions of their

choice.
(1A) In making any law providing for the
compulsory acquisition of any property of an
educational institution established and
administered by a minority, referred to in clause
(1), the State shall ensure that the amount fixed
by or determined under such law for the
acquisition of such property is such as would
not restrict or abrogate the right guaranteed
under that clause.
(2) The state shall not, in granting aid to
educational institutions, discriminate against
any educational institution on the ground that it
is under the management of a minority, whether
based on religion or language.10

From the above provision we can draw a conclusion

that the scheme which is provided in the Constitution is
very much clear on the point that the distinct culture of
the minorities and the distinct language of them is to be
preserved and it puts the duty on the State to have a
substantial mechanism for the protection and
preservation of the same.

This development will be more clarified if we look into

the Constituent Assembly debates which were there for
this particular inclusion of the term protection of
minorities interests. There was a separate Minority Sub
Committee was setup to study and review the policies for
the minority rights under the Chairmanship of H.C.
Mukherjee.11 The Minorities Sub-committee
recommended that the following provisions among others
be included under the Fundamental Rights in the
Constitution:
(i) All citizens are entitled to use their mother
tongue and the script thereof, and to adopt,
study or use any other language and script of
their choice.

10 PROFESSOR M. P. JAIN, INDIAN CONSTITUTIONAL LAW, 1704-

1708, Volume 1, LexisNexis Butterworths Wadhwa, Nagpur, (6th
Edition, 2010).
11 The Parliament of India, available at
http://parliamentofindia.nic.in/ls/debates/facts.htm,1 (2 Feb.
2014).
Bharati Law Review, Jan.-Mar., 2014 151

(ii) Minorities in every unit shall be adequately

protected in respect of their language and
culture, and no Government may enact any
laws or regulations that may act oppressively
or prejudicially in this respect.
(iii) No minorities, whether of religion, community
or language, shall be deprived of its rights or
discriminated against in regard to the
admission into State educational institutions,
nor shall any religious instruction be
compulsorily imposed on them.
(iv) All minorities, whether of religion, community
or language, shall be free in any unit to
establish and administer educational
institutions of their choice, and they shall be
entitled to State aid in the same manner and
measure as is given to similar State-aided
institutions.
(v) Notwithstanding any custom, law, decree or
usage, presumption or terms of dedication,
no Hindu on grounds of caste, birth or
denomination shall be precluded from
entering in educational institutions dedicated
or intended for the use of the Hindu
community or any section thereof.
(vi) No disqualification shall arise on account of
sex in respect of public services or
professions or admission to educational
institutions saves and except that this shall
not prevent the establishment of separate
educational institutions for boys and girls.12

The Advisory Committee in its interim report submitted

on 23 April, 1947, incorporated provisions at (ii), (iii) and
(iv) above in its clause 18 which read as follows:13
“18. (1) Minorities in every unit shall be protected in
respect of their language, script and culture,
and no laws or regulations may be enacted
that may operate oppressively or prejudicially
in this respect

12 DR. SUBHASH KASHYAP, CONSTITUTIONAL LAW OF INDIA, 2590-

2598, Volume 1 & 2, Universal Law Publishing Co., Delhi, (Ed.
2008).
13 Id. at 770-772.
Bharati Law Review, Jan.-Mar., 2014 152

(2) No Minority whether based on religion,

community or language shall be
discriminated against in regard to admission
into State educational institutions.”

With the fear of the partition of the country already

looming large on the horizon when the clause came up
for consideration in the Constituent Assembly on 1 May,
1947, there was some discussion on whether such rights
would be provided to minorities in the areas that ceded
from India. However, the Assembly decided to stick to the
principle of protection of minority rights in India
irrespective of what happens elsewhere. Clauses 18 (1)
and (3) were adopted without any change while clause
18(2) was referred back to the Advisory Committee for
clarification.14

The Advisory Committee reconsidered sub-clause (2)

and in its Supplementary Report submitted on 25
August, 1947, did not suggest an amendment to delete
from clause 18(2) the words nor shall any religious
instruction be compulsorily imposed on them The
Committee further said:
“We have examined the question as to whether the
scope of the clause should be extended so as to
include State-aided educational institutions also and
have come to the conclusion that in present
circumstances we would not be justified in making
any such recommendation.”

When clause 18(2) came up for consideration before the

Constituent Assembly on 30 August, 1947, the following
amendments were moved:
(i) Ahmed Ibrahim, one of the members of the
Constituent Assembly suggested that sub-
clause (2) should not apply to State-aided
educational institutions maintained for the
benefit of a particular community or section of
the people,
(ii) Mohan Lai Saxena suggested that no State aid
should be extended to any institution imparting
religious education unless the syllabus thereof
was approved by the State,

14 The Constituent Assembly Debates, 497-504, Vol. III.

Bharati Law Review, Jan.-Mar., 2014 153

(iii) Purnima Banerji gave suggestion that State-

aided institutions should be included within the
purview of the sub-clause.

The Drafting Committee after prolonged deliberations

presented a revised draft as Article 23 of its Draft
Constitution of February, 1948. It read:
(1) Any section of the citizens residing in the
territory of India or any Part thereof having a
distinct language, script and culture of its own
shall have the right to conserve the same.
(2) No minority whether based on religion,
community or language shall be discriminated
against in regard to the admission of any person
belonging to such minority into any educational
institution maintained by the State.
(3) (a) All minorities whether based on religion,
community or language shall have the right to
establish and administer educational
institutions of their choice.
(b) The State shall not, in granting aid to
educational institutions, discriminate against
any educational institution on the ground that it
is under the management of a minority, whether
based on religion, community or language.

When the Draft Constitution was circulated for eliciting

opinion and comments, several suggestions were received
from members and others including institutions like a
State Legislative Councils and personalities like Jaya
Prakash Narayan15.

Draft article 23 was discussed in the Constituent

Assembly on 7 and 8 December, 1947. M.L.
Chattopadhyaya said that the article was a great charter
of rights for all the linguistic minorities in different parts
of India. Of the many amendments, the following were
accepted by the Drafting Committee and adopted by the
Assembly:
(i) The Suggestion which was moved by Dr.
Ambedkar, that in clause (1), the words

15 Constitutional Assembly Debates, Available at

http://parliamentofindia.nic.in/ls/debates/debates.htm, 1 (02 Feb
2014, at 2.30pm).
Bharati Law Review, Jan.-Mar., 2014 154

“language, script and culture" be replaced by

the words "language, script or culture”16
(ii) Thakurdas Bhargava moved suggestion that
clause (2) should read as follows:
“No citizen shall be denied admission into any
educational institution maintained by the State
or receiving aid out of State funds on grounds
only of religion, race, caste, language or any of
them.”
(iii) That the word “community” be omitted from
clause (3) also, which was moved by Thakurdas
Bhargava.17

Draft article 23 as amended by the above was adopted

to stand part of the Constitution.18 Finally at the stage of
revision, draft Article 23 was divided into two separate
articles - Articles 29 and 30 of the Constitution.

This was the process by which the current provision for

the protection of the rights of the minorities has been
incorporated in the Constitution of India. The protection
is provided at the three levels one is at the linguistic level
and second is at the cultural level and lastly on the
educational level. And we can say that the framers of the
Constitution were very keen in protecting all these three
rights separately and substantially.

Protection of Cultural Interests of the Minorities in

India

As discussed above it is now clear that, in India the

protection given to the minorities is twofold. That they
can preserve their distinct script as well the distinct
culture. In European countries and some Western
Countries the stress was laid on the cultural unification
of the population. They feared that the cultural diversities
will create a threat to the unity and integrity of the
nation. On the other hand India has provided a very
unique model which lays down the principle of multi
cultarism and a pluralistic society. India has established
the principle of ‘Unity in Diversity’. With respect to this
concept if we see our system for the protection of the

16 Id. at 2.
17 Id. at 4.
18 The Constituent Assembly Debates, 904-927, Vol. VII.
Bharati Law Review, Jan.-Mar., 2014 155

minorities interests, we may find that, right from the very

beginning of the commencement of the Constitution the
more stress has been laid on the language preservation.
Comparatively the issue of cultural preservation has not
been given that much importance as it was needed.
Various schemes were formulated by various
governments for the preservation of scripts of the distinct
languages. Languages such as Urdu, Gurumukhi, Parsi,
Pali are protected by the Government by extending the
funds at various levels and by creating the research
centers for them. But for the cultural heritage of these
minority communities the Government has not paid
much attention.

The Muslim community is enriched with the Sufi

culture and it has been the great heritage for the India.
The Sufi music in the form of Qawwalis is the most
popular form of the art in India well as the world at large.
This form has been proved to be very effective for creating
the harmony between the growing enmities among the
majorities and minorities. This and other art forms which
are forming the essential part of the cultures are not
taken into consideration by the Government and no
substantial step has been taken for the preservation of
the same.

As far as the Buddhist minorities are concerned, they

are also having the great ancient cultural heritage. The
Buddhists can be divided into two major groups. One
group is formed by the Buddhists which were there
before 1956. And the second part is formed by the people
who were converted to Buddhism after the emancipation
struggle led by Dr. Babasaheb Ambedkar, in 1956. The
former group is largely situated in the North East region
of the Country and is having very distinct culture as well
language and script. The latter group is largely situated
in Maharashtra, who belongs to the scheduled caste. The
Buddhists in Maharashtra, who were called as the
Mahars before the Independence, are the people who are
also having the distinct pattern of culture. Their struggle
for the emancipation which was started by the Mahatma
Jyotiba Phule got its final fruit with under the leadership
of Dr. B.R. Ambedkar. And after Ambedkar the struggle is
still going on various issues for achieving the social
status. This struggle was led with the intention of
Bharati Law Review, Jan.-Mar., 2014 156

cultural emancipation. The Jalsaa, an art form which has

a very close resemblance with that of Sufi Qawwali, has
been the medium for this struggle. On various occasions
Dr. Ambedkar has said that the process of emancipation
is more effectively led and reach to people only with the
help of the popular art forms. The cultural emancipation
is as important as the political one.19 This is a very
important cultural heritage for the Buddhist minorities in
Maharashtra. The Government has not paid attention for
the preservation of this art form and which is now on the
verge of vanishing.

In likewise manner the cultural heritage of the Sikh

community and Parsi communities is also in danger
because of the changing situations. As the Government
has not been very keen in protecting and preserving this,
these art forms are dependent on the society for their
preservation. It is now seen that the majority forces are
dominating these minorities’ cultural aspects and as a
consequences these are at the verge of vanishing. The
way in which the Government has provided for the
educational and the linguistic protection it has now take
into consideration the aspect of preservation of Ccltural
heritage of these minority communities.

Conclusion

The art forms such as Qawwali and others are very much
effective in creating the harmony between various social
factors, therefore it needs to be protected and promoted
by the Government. The cultural aspect of the human life
is the most important and essential element hence it has
to be given more importance. The society is developed
through the cultural evolution and it is having a great
impact on the social life as well as on the political and
psychological life of the individual. The society changes
very dynamically and according to that the cultural
patterns of the society are also changing. In this
changing situations the State as to take care that every
section of the society is able to protect and preserve its
cultural rights. And therefore state has provided them
with the adequate means for the protection of their

19 NARENDRA JADHAV, AMBEDKAR SPEAKS, Volume I, II and III,

Konark Publishers Private Ltd, New Delhi, 2013.
Bharati Law Review, Jan.-Mar., 2014 157

cultural interests. The minority communities which are

struggling for their existence but mere existence without
their own cultural heritage will give a way to the feeling of
alienation in the minds of these minority communities.
Thus it is duty of the State to protect their culture to the
effect that these sections of the society will feel as they
are the part of this society and ultimately this nation.
This is particularly also important for the preservation of
the goal of the Indian federalism that is ‘Unity in
Diversity’. The State has to take an affirmative action for
this in the form of policies and by providing the
protecting mechanisms for the same.


Bharati Law Review, Jan.-Mar., 2014 158

MINORITY: EXAMINING THE CONCEPT

Mr. Vinod Shamrao Pawar*

Introduction

The ‘concept of minority’ has become a question of global

importance. In India this question has been long
standing, controversial and very much discussed in
modern times. In the Constitution of India we find
reference of two kinds of minorities-religious and
linguistic. But the Constitution does not define the term
“minority”. While extending the protection of the
minorities to a particular group it becomes pertinent to
identify who the minorities are. It becomes necessary to
do so to ensure that the real minorities get the protection
of the Constitutional provisions.

In India the minorities are victims of a dual nature.

Various studies reveal that they have lagged behind in
various fields and at the same time they are said to be
appeased by the government. The concept of minority has
attracted much attention, especially when the question of
Minority Educational Institutions and their rights were
discussed by the judiciary and the public at large.

The present article is limited to the concept of minority,

its origin, meaning, development and the present
situation. It also attempts to study whether there are any
conceptual lacunae in the concept and whether the
concept as followed in India is in line with the concept as
followed by the International Agencies. Such agencies like
the United Nations have also tried to define the term
minority. But, it can very well be said that:
“The task of defining the term minority proved to be
of such difficulties and complexities that neither the
experts in this field nor the organs of International
Agencies have been able to accomplish it to date.
Thus there is no definite definition which is capable
of being universally accepted.”1

* Assistant Professor, New Law College, Bharati Vidyapeeth, Sangli.

1 Mishra Naveen, Singh Sudhir Kumar, Status of Minorities in South
Asia, Authors Press, New Delhi p. 4 (1st ed., 2002).
Bharati Law Review, Jan.-Mar., 2014 159

This reality has inspired the researcher to undertake

the present research and to critically examine the
concept of minority with reference to the Indian legal
system. It also attempts to examine whether the concept
as followed in India and its interpretation by the judiciary
has given rise to any ambiguity or misuse. It tries to
study the various judgments of the Apex court which are
concerned with the concept of minority.

The research further emphasizes that apart from

numerical criteria other criteria should also be
considered. It further points out the absurd situations
which arise after considering language as the criteria for
determination of minority status of a community.

Objectives of the Study

• To find out the meaning of the term ‘minority’ and to

trace its historical background in context of India.
• To study the relevance of the concept taking into
consideration the peculiar Indian scenario.
• To find out whether there is any conceptual lacuna
in the concept of minority as followed in India.
• To study whether any novel approaches can be
adopted regarding the concept of minority and their
identification.

Methodology

The present study is a Doctrinal Research. For this work

mainly secondary data has been used. The sources for
collecting data would be Constitutional Assembly
Debates, the Constitution of India, Text Books, Case
Laws of the Supreme Court of India, Articles from
Journals, and Newspapers and the Internet.

Meaning of Minority

In every country of the world there are some minority

communities. In the nineteenth century there was the
growth of the idea of Nationalism. During this period the
question of minorities gained importance. One religion,
one race, one language became the characteristics of
Nationalism. The main reason for the existence of
minorities in various countries is the expansion of
Bharati Law Review, Jan.-Mar., 2014 160

boundaries of countries and migration of various

communities for a number of reasons. Religious
conversions have also contributed to this. The migration
was due to occupation of the homeland by the enemy, or
to settle permanently in another country, or to seek
refuge in another country. People had to leave their own
country due to different political opinion, or in some
cases it was voluntary migration. In many instances
people were forcibly taken away to work as slaves on
farms and plantations of westerners.

Democracy itself implies that the majority will rule

because of their numerical superiority. Naturally the
minority have to remain subservient to the majority
community. In many countries the relations between
minority and majority have remained strained due to
variety of reasons.

“Minority and majority are basically arithmetical terms

showing the relative numerical position of various groups
in a particular political entity.”2

The concept of minority is not only related to the

numerical strength of a particular community, but it is
related to the basic difference between the power of the
majority and the minority community.

Defining the concept of minority has proved to be a

challenge to the global community.

“The world seems to be at the moment gripped with

uncertainties at defining the word ‘minority’. According
to International Encyclopedia of Social Sciences, minority
is defined as a group of people-differentiated from others
in the same society by race, nationality, religion or
language–who thinks of themselves as a differentiated
group with negative connotation. Further, they are
relatively lacking in power and hence are subjected to
certain exclusions and other differential treatment.”3

2 Tahir Mahmood, (edited) Politics of Minority Educational Institutions

Law and Reality in the Subcontinent, imprint One, Gurgaon, p. 11,
(1st ed., 2007).
3 Mishra Naveen, Singh Sudhir Kumar, Status of Minorities in South
Asia, Authors Press, New Delhi p. 77 (1st ed., 2002.)
Bharati Law Review, Jan.-Mar., 2014 161

According to Dictionary of Political Science, the term

minority means: “Group which is composite society forms
one of the smaller parts. Its numerical weakness implies
a potential threat to its equality, and protection of racial,
ethnical, religious rights. Minorities are a major concern
of our democratic systems. Yet some disablements of a
minority are caused by the minority to submit to a
contrary will and at many elections, the voice of an even
sizeable minority is totally muted.”4

Minorities in India

The Constitution of India recognizes two categories of

Minorities:
i) Religious minorities and
ii) Linguistic minorities

India being a multilingual country, the presence of

linguistic minorities need not be explained. On the other
hand the presence of religious minorities according to Dr.
Naveen Mishra, has been explained by Oomen T.K. in the
following words:
“Religious minorities in India may be grouped in to
three broad categories based on the source of their
presence. They are --
a) Protest religions of India, e.g., Jainism,
Buddhism and Sikhism.
b) Migrant religions, e.g., Judaism and
Zoroastrianism.
c) Religions which are perceived to be products of
conquest and colonialism, e.g., Islam and
Christianity.”5

The Concept of Minority according to International

Agencies

With the establishment of the United Nations the

question of the rights of minorities gained importance. A
sub commission on Human Rights known as the Sub-
commission on the prevention of Discrimination and
protection of minorities was established in 1947. It is

4 Bhatt Rakesh, Dictionary of Political Science, Mohit Publication,

New Delhi (1st ed. 2005).
5 Omen T.K., State and Society in India, Sage Publications, New Delhi,
1990, p. 207, Requoted from Mishra p.127.
Bharati Law Review, Jan.-Mar., 2014 162

important to note that the Universal Declaration of

Human Rights which is the highest moral sanction of all
human rights contains no provisions about the rights of
minorities. The General Assembly stated that the United
Nations cannot remain indifferent to the issue of
minorities.

“The International Covenant on Civil and Political

Rights (1966) stands as the only post-war human
rights agreement which contains specific mentioned
general statement of the rights of minorities. Art. 27
of the covenant reads, in those states in which
ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be
denied the right, in community with the other
members of their group, to enjoy their culture, to
profess and practice their own religion, or to use
their own language”.6

The special Rapporteur of the UN Sub Commission on

the prevention of discrimination and protection of
minorities, Prof Capotorti, offered this definition for the
purpose of Article 27: “A minority is a group numerically
inferior to the rest of the population of a state, in a non-
dominant position, whose members being nationals of the
state possess ethnic, religious, or linguistic
characteristics differing from those of the rest of the
population and show, if any, a sense of solidarity,
directed towards preserving their culture, traditions,
religion or language.”7

Adoption of the Concept in India

While studying the concept of minority in the Indian

context, it is important to study the dynamics of the
Muslim community. The feeling of minority complex in
the various Indian communities may be due to the feeling
of insecurity in the minds of these communities. In
British India, the British adopted the policy of giving
special recognition to the Muslims, along with the Sikhs,
Indian Christians, Anglo-Indians and the Depressed
Classes. The formation of the Muslim League is an

6 Mishra Naveen, Singh Sudhirkumar, Status of Minorities in South

East Asia, Authors Press, New Delhi, p. 5 (1st ed. 2002).
7 Id.
Bharati Law Review, Jan.-Mar., 2014 163

important event as to the recognition of minority rights of

the Muslims in India. The Depressed Classes, under the
leadership of Dr. Ambedkar were successful in getting
recognition as a minority community in British India.

The Morley-Minto Reforms, the Simon Commission, the

three Round Table Conferences, the Communal Award,
the Cabinet Mission Plan, and the Constituent Assembly
are the milestones in the study of the concept of minority
in India. It can help us to know how the concept has
gradually changed and evolved to date.

Last but not the least, the realization of the Muslim

community as a “religious minority” and propounding of
the “Two Nation Theory” led to the unavoidable partition
of India. It is with this experience, the minority rights
were to be discussed in the Constituent Assembly of
India.

Discussions in the Constituent Assembly

The Constituent Assembly had a total of about fifteen

committees on various subjects. The Advisory Committee
on Minority and Fundamental Rights was one such
committee concerned with the minorities. Sardar
Vallabhbhai Patel was the Chairman of this advisory
committee on minorities. The Report on the minorities
was discussed in the constituent Assembly on 27th and
28th Aug. 1947.

The minorities were classified in to three groups:

GROUP ‘A’-- population less than ½ per cent in the
Indian domain excluding the states.
1) Anglo-Indians.
2) Parsees
3) Plains tribesmen in Assam

GROUP ‘B’-- population not exceeding 1½ per cent.

4) Indian Christians.
5) Sikhs.

GROUP ‘C’-- population exceeding 11/2 percent.”8

6) Muslims

8 Constituent Assembly Debates, Book 1, Vol. V, Loksabha

Secretariat, New Delhi, p. 224 (first printed 1950, reprinted 2003).
Bharati Law Review, Jan.-Mar., 2014 164

7) Scheduled Castes

Basis of the Classification ….. the Rationale

Sardar Vallabhbhai Patel while tabling this Report said:

“We have divided the minorities according to their
strength or according to their population”.9 Though the
constituent Assembly was against separate electorate for
the minorities, it does not in any way create hindrance in
the recognition or protection of minorities.

Speaking on this issue Mr. Govind Vallabh Pant said:

“Do you want the citizens of one country to look to their
co-religionist in another state for their protection, or do
you want them to be treated as equal citizens of their own
free sovereign India? I want all minorities to have an
honorable place in this Union of India. I want them to
have full opportunities for self-realization and self-
fulfillment. I want this synthesis of cultures to go on so
that we may have a state in which all will live as brothers
and enjoy the fruits of the sacrifices of those who gave
their all for the achievement of this freedom, fully
maintaining and observing and following the principles of
equality, liberty, and fraternity.”10

After considering the discussions in the Constituent

Assembly, we find that though the minorities were
provided various safeguards in the new Constitution, we
do not find any specific discussion about the ‘concept of
minority’ or the discussion about the ‘definition’ of the
term minority. At the time of classifying the minorities
into three groups viz., Group A, B, and C, the numerical
strength of the minorities in relation to the population of
India was considered. Here it is pertinent to note that,
here the minorities were considered at the National level.

The scheduled castes, who were neither considered to

be racial, linguistic nor religious minority, were
considered to be minority, though they were not
minorities in the strict sense of the term. The general
attitude of the Constituent Assembly was to provide
safeguards to the minorities and give them an honorable
place in the Union of India.

9 Id. at p. 199.
10 Id. at p. 224.
Bharati Law Review, Jan.-Mar., 2014 165

Constitutional Provisions

Article 29 and Article 30 of the Constitution of India,

contain specific provisions regarding minorities.

According to Fadia: “the sole purpose of these

provisions is to reassure the minorities that certain
special interests of theirs which they cherish as
fundamental to their life are safe under the
Constitution.”11

Article 29. Protection of interests of minority-

1. Any section of citizens residing in the
territory of India or any part thereof
having a distinct language, script or
culture of its own shall have the right
to conserve the same.
2. No citizen shall be denied admission to
any educational institution maintained
by or receiving aid out of state funds
on the grounds only of religion, race,
caste, sex, and place of birth or any of
them.

Article 30. Right of minorities to establish and

administer educational institutions-
1. All minorities, whether based on
religion or language, shall have the
right to establish and administer
educational institutions of their
choice. The state shall not, in granting
aid to educational institutions,
discriminate against any educational
institutions on the ground that it is
under the management of a minority,
whether based on religion or language.

Article 350- Facilities for instruction in mother tongue at

primary stage-

It shall be the endeavor of every state and of every local

authority within the state to provide adequate facilities
for instruction in the mother tongue at the primary stage

11 Fadia B.C., Indian Government and Politics, Sahitya Bhavan

publications, Agra, p. 770 (1st ed. 1991 rev’d, 2001).
Bharati Law Review, Jan.-Mar., 2014 166

of education to children belonging to linguistic minority

groups; and the president may issue to any state such
directions as he considers necessary or proper for
securing the provision of such facilities.

Article 350-B…Empowers the President of India to

appoint a special officer for linguistic minorities.

If we consider the above provisions of the Constitution

of India, we can summarize them in the following
manner-

a) Art. 29 and 30 are enumerated under the heading

cultural and educational rights. Art. 29 speak about
protection of interests of minorities. But the
Constitution does not provide any definition about the
concept of minority. From the reading of Art. 29, we
can draw the conclusion that, minorities are the
section of people residing in the territory of India or
any part thereof who have-
i) Distinct language
ii) Distinct script or
iii) Distinct culture

And the distinct language, script or culture should be of

their own. These groups of citizens can conserve their
language, script, or culture as of right.

b) Considering Art 30, the Constitution empowers the

minorities to establish and administer educational
institutions of their choice. The Art. 30 says- “All
minorities whether based on religion or language….”

From the above wording it is clear that the Constitution

recognizes two types of minorities-i.e.
i) Minorities based on religion.
ii) Minorities based on language.

According to Tahir Mahmood, who had been the

Chairman of the Minority Commission-

“The Constitution of India contains no definition of

‘minority’ and gives no clue for the level of
determination of minority status. It speaks of two
categories of Minorities- religious and linguistic – but
Bharati Law Review, Jan.-Mar., 2014 167

provides no list of the minorities of either category,

though it does mention certain languages by name
for a limited purpose [schedule viii]. There is no
Parliamentary legislation either specifying the
religious or linguistic minorities in the country or
prescribing any procedure for identifying them.

The National Commission for Minorities Act 1992

enables the Central Government to notify the
minorities for the purpose of that Act only and in the
exercise of this power, the government has notified
five religious communities- Muslims, Christians,
Sikhs, Buddhists and Parsis as minorities. The local
Minorities Commission Acts of the states, wherever
in force, generally ditto the provisions of NCM Act,
while some of them specify the local religious and
linguistic minorities. At the national level, while the
followers of the Hindu religion constitute the
predominant majority in India, all the other
communities are regarded as minorities.”12

From the above observation of Tahir Mahmood it is

amply clear that the concept of minority is not sufficiently
clear in the Constitution

Ix. Judicial Pronouncements

Taking in to consideration the above Constitutional

provisions and the legal position, we will be relying on the
various judicial pronouncements to study the ‘concept of
minority’.

In Re: The Kerla Education Bill13, it has been held that,

any community which is numerically less than 50
percent of the state’s population will be considered as a
‘minority’.

In Aldo Maria Patroni and Others v. E.C. Kesavan14, It

was observed by the Supreme Court that, “The word
‘minority’ has not been defined in the Constitution and in

12 Tahir Mahmood, Politics of minority Educational Institutes-Law and

Reality in the Sub-Continent, imprint One, Gurgaon, Haryana, pp.
11,12 (1st edn. 2007).
13 AIR 1958 SC 956-976.
14 AIR 1965, KERALA 75.
Bharati Law Review, Jan.-Mar., 2014 168

the absence of any special definition we must hold that

any community, religious or linguistic, which is
numerically less than fifty per cent of the population of
the state is entitled to the fundamental right guaranteed
by the Article. Held that as the Christians, at the 1961
census, amounted only to 21.22 percent of the
population of the state of Kerala, the Roman Catholics
who formed the section of that community were a
minority within Article 30(1) of the Constitution.”
considering the above observation of the Supreme Court,
it has been underlined that the concept of minority has
not been defined in the Constitution. Again in this case
the court seems to have applied the numerical criteria for
determining the minority status of a particular
community.

In D.A.V. College, Bhatinda v. State of Punjab15, it has

been held that-minority status can be granted if a
community can establish that it has a distinct script and
they can establish that they are a religious minority. Also
while deciding the minority status, it should be decided
in relation to the state concerned. If the impugned Act is
a state Act, then it should be decided in relation to the
state and not in relation to the country as a whole. On
that basis it was held that the Hindus in Punjab are a
minority in the state of Punjab, though they may not be
so in relation to the entire country.

If we consider this peculiar situation, it is evident that

an absurd situation has arisen. As known, the Hindus
are considered to be a majority in India, but they have
been recognized as a minority in the state of Punjab. It is
important to note that by applying the same test, Jains
and the Sikhs have been held to be minorities in the
Union Territory of Delhi (Arya Samaj Education Trust, AIR
1976, Delhi, 207, 218.)

In T.M.A. Pai Foundation v. State of Karnataka16,

Delivering the majority judgment the bench answered 11
questions.

15 (1971) 2 SSC 261.

16 (2002) 8 SSC 481.
Bharati Law Review, Jan.-Mar., 2014 169

“Q1. What is the meaning and content of the

expression ‘minority’ under Article 30 of the Constitution
of India?

A. 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 on a par in Article 30, have to be
considered state wise”.

The effects of T.M.A. Pai case has been summarized by

M.P. Raju in the following words-
i) The decision of T.M.A. Pai destroyed the concept of
national Minorities.
ii) This issue should not have been decided in a vacuum
without a Factual matrix-it is procedurally wrong to
decide any Constitutional issue in a vacuum.
iii) Prima facie the whole logic is flawed.

The fact of organization or reorganization on linguistic

lines does not mean that for the purpose of Article 30
linguistic minorities ought to be determined in relation to
the state alone”.17

P.A. Inamdar v. State of Maharashtra18, has been

described by M.P. Raju as, “Inamdar 2005 was an
attempt by a 7 judge bench to sort out the alleged
confusion created by Islamic Academy (2004) when
clarifying the 11 judge verdict in T.M.A. Pai (2002).

It is important to note that the “Answers to 11

questions in T.M.A. Pai Foundation have been quoted in
the judgment of P.A. Inamdar case. It was held that,
“Thus with the dictum of Pai Foundation; it cannot be
doubted that a minority whether linguistic or religious, is
to be determined only by reference to the demography of
a state and not by taking into consideration the
population of the country as a whole”.

17 Tahir Mahmood, Politics of Minority Educational Institutes-Law and

Reality in the Sub-Continent, Imprint One, Gurgaon, Haryana, pp.
91, 92 (1st edn. 2007).
18 (2005) 6 SSC 537.
Bharati Law Review, Jan.-Mar., 2014 170

Though P.A. Inamdar was an attempt to clarify some

doubts that were created by Islamic Academy (2004) it
does not throw light on the concept of minority from a
different perspective. It merely quotes and affirms the
views expressed in T.M.A. Pai Foundation case, as to the
concept of minority. It emphasizes that the unit for
determining the minority, whether religious or linguistic
should be the state alone.

X. Analysis of the Concept of Minority

The discussion regarding the concept of minority that has

been carried out till now can be summarized as follows:

i) A universally acceptable definition of the

‘concept of minority’ is an elusive idea.
ii) There has been a gradual evolution in the
concept of minority till date in India.
iii) The propounding of the “Two Nation Theory”
and the resultant partition of India had a great
impact on the Constitution makers while
framing the Constitution of India.
iv) The Constitution uses the term minority in
two senses, religious and linguistic minorities,
but it does not provide a definition of the term
minority.
v) There is no parliamentary legislation either
specifying the religious or linguistic minorities
in the country or prescribing any procedure
for identifying them.
vi) The National Commission for Minorities Act,
1992 enables the Central Government to
notify the minorities for the purpose of the Act
only and in exercise of this power, the
government has notified five religious
communities-Muslims, Christians, Sikhs,
Buddhists and Parsis as the minorities. On 20
January 2014, the Government of India
awarded minority status to Jain community as
per Sec. 2 (c) of the National Commission for
Minorities Act 1992.
vii) When the Constitution of India was adopted in
1950, the important task of interpreting the
Bharati Law Review, Jan.-Mar., 2014 171

various provisions of the Constitution lay on

the Supreme Court of India.
viii) The concept of minority was much discussed
when the question of interpretation of Article
30 arose, which deals with the right of
minorities to establish and administer
educational institutions of their choice.
ix) The Supreme Court has most of the times
used the numerical criteria for determining
the minority status of a community or a
linguistic minority.
x) For determining the minority status of a
community, the unit that has been used is the
‘state’ and not the nation as a whole.

XI. Findings

A) The numerical criteria

The Supreme Court on many occasions has applied

the numerical criteria for determining the minority
status of a community. e.g. In Re: The Kerala
Education Bill, Aldo Mario Patroni and others v. E.C.
Kesavan. The application of only the numerical
criteria is not correct, taking into consideration the
peculiar socio-economic conditions prevailing in
India. Indian society is a caste ridden society and
there is rigid social stratification within it. Various
privileges like social status, cultural monopoly, land
holding, access to educational facilities,
representation in services of the state, and political
representation are not available to all Indians alike.
Some communities though numerically inferior, get
much greater privileges in matters of land holding,
monopoly over trade and commerce, dominance over
cultural and educational field or representation in
services of the state.

So without taking into consideration this peculiar

Indian position, and applying only the numerical criteria,
and expecting that, this numerical criterion will work
with mathematical precision if fallacious. The majority
and minority communities should be determined with
relation to the difference in the power and dominance of
the two communities. It is equally important to see
Bharati Law Review, Jan.-Mar., 2014 172

whether a minority community is facing any

discrimination. In this regard the observations of Prof.
Zoya Hasan, (JNU) Member of National Commission for
Minorities is noteworthy:

“Contrary to this widely accepted perception of

minorities, the Governments new proposal for state
specific minorities is driven by a statistical or
numerical approach. The size of a group is not what
should concern our policy makers or those
committed to eradication of inequality, prejudice and
discrimination. This is because numbers per se
quantify and describe the proportion of a group in a
population; they do not tell us anything about
whether a particular minority group is powerful or
powerless, advantaged or disadvantaged, represented
or under represented. A more meaningful conception
of minority would include section of people who, on
account of their non-dominant position in the
country as a whole (not a specific state) and because
of their religion, language, caste or gender, are
targets of discrimination. The statistical approach
disregards the crucial qualitative condition of
vulnerability and disadvantage.”19

The framers of the Constitution had seen the partition

of India. They wanted to ensure the unity and integrity of
the country. In order to create a sense of belonging
towards the nation, certain Constitutional safeguards
were necessary for the protection of the minorities.

The provisions enshrined in the Constitution of India

relating to minorities are basically meant to prevent
discrimination, which the minorities may be subjected
due to their different religion, language and culture etc.
So it casts a Constitutional obligation on the state to see
that the minorities are not discriminated against. Thus it
becomes necessary that, while providing the protection of
Article 29 and 30, the protection is given to the real
needy, and not to those sections of the society which are
already enjoying a dominant position in the society. The
end result will be the perpetuation of the dominance of
the influential classes only.

19 Zoya Hasan, Defining Minorities in India, Law and Other Things,

blogspot.in/2007/07/defining-minorities-in-india.html.
Bharati Law Review, Jan.-Mar., 2014 173

Considering the above discussion, it can be said that

application of only numerical criteria for determination of
minority communities is not correct. The Constitution of
India speaks of two kinds of minorities:
1. Religious and
2. Linguistic

Determination of minority communities on the basis of

religion or language itself takes into consideration the
numerical criteria only.

B) Role of Central Government

Taking into consideration the Constitutional provisions

regarding the minorities, the central government has not
enacted any specific legislation to identify the religious
minorities or the linguistic minorities. Also there wasn’t
any legislation for prescribing any procedure for
identification of the religious minorities. It can very well
be said that, the central government has not carried out
its responsibility of identification of the minorities. In the
absence of any such legislation, the entire responsibility
of interpreting the concept of minority laid upon the
judiciary i.e., The Supreme Court of India.

But the paradox is that, though the Supreme Court of

India has interpreted the concept of minority on various
occasions, through various judicial pronouncements, the
solution given by the court again gives birth to another
set of problems. It clearly indicates that when the theory
is applied to practice, it reveals serious lacunas, which
cannot be ignored.

C) Whether State can be the unit for determining the

minority status?

The unit for determination of the minority status of any

community has been held to be the ‘state’ by the Apex on
many occasions. The Court applied the similar test In
Re: The Kerala Education Bill, Aldo Mario Patroni and
T.M.A. Pai cases also. By application of this test, the
Hindus who are considered to be a majority community
in India were considered to be a minority community in
the state of Punjab as per decision of D.A.V. College,
Bhatinda case. This is very absurd.
Bharati Law Review, Jan.-Mar., 2014 174

It is important to refer to the dissenting judgment

delivered by J. Ruma Pal in T.M.A. Pai case. She has held
that the question of minority status must be determined
with reference to the country as a whole. This view is
important in order to prevent the misuse of the minority
status for commercial purposes.

D) Why various communities are eager to get

recognition as minorities?

Article 30 of the Constitution of India gives the minorities

to establish and administer educational institutions of
their choice. Though these educational institutions were
meant to conserve their distinct language, script or
culture, the ‘educational institutions of their choice’ has
been interpreted by the Supreme Court to mean
‘institutions imparting general secular education’ (St.
Xaviers College v. State of Gujrat, AIR 1974 SC1389).

With the State constantly shrugging off its responsibility

of providing professional education to the citizens, and
the judiciary providing an impetus for commercialization
of technical education, professional education like
medical, engineering and management has become the
domain of private players. If such an Institution is a
minority educational institution, it has, according to
Mihir Desai three broad benefits, which are not available
to other institutions-

1) Minority educational institutions do not have to

maintain reservation in employment or admission for
SCs, STs and OBCs as required to be done by other
educational institutions.
2) In terms of control over employees, minority
educational institutions have much greater power
than other institutions. For instance in the selection
of teachers and principal, the minority educational
institutions can have a selection committee which
does not include the University representative.
Similarly. While in ordinary school the Headmaster
normally has to be appointed on the basis of
seniority, minority management can select a
headmaster of their choice.
Bharati Law Review, Jan.-Mar., 2014 175

3) In matters of admission of students, minority

educational institutions can have reservation of up to
50% for students of their community.”20

The net resultant is that, the minority educational

institutions which are genuine are not getting the
protection of Article 30, while minority educational
institutions which have come up to exploit the situation
and derive personal benefits are impatient to get
recognition as minority educational institution.

It is pertinent to note that the National Commission for

Minority Educational Institutions is flooded with
proposals from institutions to get recognition as minority
educational institutions and this phenomenon is a recent
development. It is certainly the misuse of the protection
afforded to the minorities by the Constitution. Though
genuine and sincere minority institutions need protection
of Article 30, it is the foremost duty of the state to check
profit motivated and pseudo minority educational
institutions.

E) Criteria other than numerical criteria

The inherent limitations of the numerical criteria have

been reiterated by many authors. The following could be
the additional criteria for determining the minority status
of a community.

1) Social Status--It is one of the most important indicator

to determine whether a particular community needs
the protection available to the minority community.
The reality is that social backwardness is an important
ground for discrimination in India.

2) Educational Status-Education is the root cause of

overall development of a community. It is the only tool
for moving up the ladder of economic and social
empowerment.

3) Economic and Industrial Power--It is known that

economic dominance of any particular community can

20 Mihir Desai, Tahir Mahmood (edn.), Politics of Minority Educational

Institutes-Law and Reality in the Sub-Continent, Imprint One,
Gurgaon, Haryana, pp. 81-82 (1st edn. 2007).
Bharati Law Review, Jan.-Mar., 2014 176

make many constitutional safeguards a mockery and

can also influence the state machinery to a great
extent. It is noteworthy that, 80% of economic
enterprise and industries are owned by industrial
families of the Parsi community, but they are
recognized as a minority at the national level.

4) Representation in political fields and services of the

State would also be important criteria.

F) Whether the concept of minority as followed in

India confirms to that followed by the
international agencies.

According to the international agencies, apart from

numerical inferiority, a minority community must be a
disadvantaged group and it should also be in a non-
dominant position.

If we consider these two important criteria it is crystal

clear that the concept of minority according to the Indian
legal system, does not take into consideration these two
important criteria. It is only due to ignoring these two
aspects the Jains and the Parsis have been recognized as
minorities. It can very well be concluded that the concept
of minority as followed in India does not confirm to the
definition which has been followed by the International
Agencies. Though India is not bound to follow the concept
of minority which has been adopted by the International
Agencies, it is high time that India considers seriously
the lacuna which is patently evident in the “concept of
minority as followed in India: “Such a step is important to
be taken to extend the Constitutional protection available
to the minorities, to the minorities in the true sense of
the term”. What is important is that a total novel
approach is needed while interpreting the provisions of
Articles 29 and 30. It is equally important to interpret the
provisions in the subaltern perspective.

To conclude, the views of Soli Sorabjee who had been

the Solicitor General of India are very much relevant-
“The MRG (Minority Rights Group) concept of minority is
more comprehensive. It includes not only religious and
linguistic minorities, but all sections of people who on
account of their non-dominant position in a society and
Bharati Law Review, Jan.-Mar., 2014 177

because of their peculiar characteristics-be they physical,

sexual, cultural, racial, religious or ideological, are the
targets of discrimination and are subject to economic and
social disabilities and disadvantages. A minority
community should not be determined on the basis of
quantity-it should be a qualitative determination.

Conclusions

Defining the concept of minority has been a challenge to

the global community. Any universal definition which
would be applicable to all situations seems to be an
elusive idea. Minorities are people who are differentiated
from the rest of the population by race, nationality,
religion or language. They lack in power and are
subjected to certain exclusions and other differential
treatment. It is generally agreed that a minority is a
group which is ‘non-dominant group’ and a
‘disadvantaged group’. The Constitution of India speaks
of ‘religious’ and ‘linguistic’ minorities. But it is important
to note that the Constitution of India does not define the
term ‘minority’.

The discussion of the concept of minority in the Indian

context is never complete without the role played by the
Muslim community and the depressed classes, as other
minority communities have played a relatively subtle role
in the politics of India. Another community worth
mentioning would be the Sikh community, whose
assertion of Sikh identity had been very violent, and it
had progressed to the demand of Khalistan.

During the pre-independence era, the sense of

insecurity and suspicion towards the majority resulted in
assertion of minority identity. This feeling was further
fostered by the British by giving separate recognition to
the minorities. The separate identity of the minorities was
further strengthened by awarding “communal electorate.
During the framing of the Constitution of India, it was the
demand of the leaders of the minority community that
their interest should be protected in the new
Constitution. The founding fathers had before them, the
bitter experience of the partition of India. Under this
background, the provisions for the protection of
minorities were made in the Constitution of India. The
Bharati Law Review, Jan.-Mar., 2014 178

minorities report classified the minorities into three

Groups-A, B and C. This classification is essentially
based on the numerical criteria. It should be noted that
minorities were considered at the national level only. It
can be concluded that the general attitude of the
Constituent Assembly towards the minorities was to
provide them adequate safeguards, and give them a place
of honor in the Union of India.

In the Constitution of India, specific mention of the

minorities can be seen in Arts. 29 and 30. These
provisions are meant to create in the minds of the
minorities a sense of belonging towards the nation, and
assure to them that certain interests of theirs, which they
consider as fundamental, are safe under the Constitution
of India. The Constitution of India contains no definition
of the term minority and provides no clue for the
determination of minority status. Due to this reason, we
have to rely on various judicial pronouncements to
understand the concept of minority.

The Supreme Court on occasions applied the test of

numerical inferiority while determining the minority
status of a community. It can be very well said that, the
application of only the numerical criteria is not correct
considering the peculiar socio-economic conditions in
India. The majority and minority status should be
determined considering the difference in the power and
dominance of the two communities. It is equally
important to see whether the minority community faces
any discrimination from the majority community.
Further, the Court has determined the ‘State’ to be the
unit for determining the minority community. Due to
application of this test, the Hindus, who are considered
as the majority at the national level, are considered as
linguistic minority in the state of Punjab (D.A.V. College
case) Also religious and linguistic minorities have been
put at par and have been considered state wise. The
concept of minority as followed in India should be in line
with the concept of minority followed by the International
Agencies. To foster national integration and curb
separatist mentality, it is important to safeguard the
interests of the minority communities. In a democratic
setup, it is important for the state to admit the existence
Bharati Law Review, Jan.-Mar., 2014 179

of the minorities. For securing their welfare, it is essential

to identify “who the minorities are” in the first instance.

The concept of minority as followed by the Indian legal

system has the following lacuna, which needs to be
addressed immediately. Further the concept should be in
line with the concept followed by the International
Agencies.

I) While deciding who is a minority, only the

numerical criteria are being considered.
II) While deciding a particular community as a
minority community, its dominance in the
society, its disadvantaged position, whether it
suffers from any discrimination from the
majority community or the state, these factors
should be considered.
III) While deciding the minority status, the unit
should be the nation and not the state,
because, a community which is a religious
majority at the national level becomes a
linguistic minority in certain states, while the
communities which are linguistic majorities in
certain states, become linguistic minorities in
the states of their migration.
IV) Due to this contradictory situation, many
communities which are socially and
economically powerful and dominant are
trying desperately to get the tag of minority, be
it religious or linguistic, to perpetuate their
monopoly in various fields. Such a trend is
visible, with regard to starting of professional
educational institutions.
V) The right contained in Art. 30 seems to be an
absolute right. It should be subject to other
fundamental rights also. So there should be
reasonable restrictions on the right.

Suggestions

Without taking into consideration only the numerical

criteria, the President of India should establish a
Commission for the proper identification of minorities.
The commission should think of formulating a workable
definition of minorities in the Indian context. Further the
Bharati Law Review, Jan.-Mar., 2014 180

definition should be in line with the definition as followed

by the International Agencies.

The commission should carry out extensive and far

reaching social survey. Eminent social scientists,
economists, legal luminaries and representatives of the
minority communities should be included in the
Commission. Thorough discourses on the “terms of
reference” should be carried on. One Urban and One or
Two Rural units be selected randomly in all districts of
the country and extensive empirical survey should be
carried on. The data collected can be processed at the
National Informatics Center and various indicators are
determined to define a particular community as a
‘minority.’

It is high time that the Central Government takes

immediate steps to prevent the misuse of the term
minority, and pass on the benefits to those who are
minorities in the true sense of the term.

In a democratic country, minorities should not exist for

a long period. It is in the interest of national integration,
that minority and majority assimilate. The majority has a
greater role to play. The Central Government should
immediately abandon the numerical criteria and
establish a Commission for the determination of
minorities taking in to consideration additional criteria. It
would be an important step towards extending the
protection of minorities to those who are minorities in the
real sense of the term.


Bharati Law Review, Jan.-Mar., 2014 181

ISSUE BETWEEN ORTHODOX AND JACOBITE

CHRISTIAN FACTIONS IN INDIA: A HUMAN RIGHTS
CONCERN
Mr. Jino M. Kurian*

For more than a century, Indian Christians are

witnessing the issue between Orthodox and Jacobite
Christian factions. Even though being two minority
factions among the Christian minority, the issue has not
been addressed as a global or national minority rights
violation. In India, the apparent presence of these two
factions can be seen predominantly in Kerala and their
mission works are not much manifest outside the state.
This might be the dynamics preventing the issue not to
be discoursed over the boundaries of Kerala. However,
being one of the Christian communities in India, which is
claiming the succession of first convertors to the religion
by the St. Thomas and also as a religious and social issue
which has not been solved for more than a century; this
minority rights violation should be seriously discussed
among the scholars.

Probing over the reasons behind the differences between

the two parties, it traces us back to the evolution of
Christian religion in India. In A.D. 52, St. Thomas, one of
the direct disciplines1 of Jesus Christ, visited Malayalam
speaking southern parts of India and founded seven
churches.2 These people are called as Malankara
(Malayalam speaking) Jacobite or Orthodox Syrian
Christians. The church3 had grown up and flourished
throughout the region. It acquired assets and became
financially rich and also marked for administrative
efficiency imparted by different metropolitans who were
consecrated from time to time.

* Student, 2nd year, LL.M. (Corporate), Nalsar University of Law,

Hyderabad.
1 The Holy Bible says that Jesus was having confidential disciplines
also. Disciplines of disciplines were also preached and brought up
the religion in different regions of the world.
2 Encyclopedia of Religion, Volume 14, page 227.
3 The word ‘church’ is used to denote both denominations of the
religion and the building, where Christians worship.
Bharati Law Review, Jan.-Mar., 2014 182

It was then the period of invasions over Indian land by

different imperial powers. The missionaries from
Portuguese forced Syrian Christians to accept Roman
Catholicism. Between 1599 to 1654 A.D. due to influence
of the Portuguese political power in the East Coast of
India, the Malankara Church was compelled to accept
Roman Catholic supremacy i.e., the supremacy of the
Pope of Rome. The tough resistance from the Syrian
Christians resulted in adopting repressive measures by
the Portuguese. Books of the Syrians Christians were
burnt and destroyed. All traces of apostolic succession in
their church were obliterated.4

After a series of issues between the Portuguese, in the

year 1664, the Syrian Christians of Malankara assembled
near the Koonan Cross5 at Muttancherry and took an
oath that they shall never again unite themselves with
the Portuguese or Catholic Church. This oath is well
known as Koonan Cross Oath. This event marks an
epoch in the history of the Syrian church. It splits the
followers into two Punthenkoor and Palayakoor. The
former became Syrian Christians6 and the latter Roman
Syrians.7

Years passed, the Malankara Church had grown up

spiritually and financially. The trust created by the
church acquired vast assets. On this period many
missionaries and bishops from different foreign churches
started frequently visiting the church. Their liturgical
thoughts and preaching were turbulently influenced and
became part of the preachers of the church. With their
help foundation for the propagation of the Christianity
was strengthened. Gradually disputes were also arisen
between the visitor’s group and leaders of the church

4 Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma and

Another AIR 1995 SC 2001 para 7.
5 Cross is the religious symbol of Christians which represents the
Holy Cross of Jesus Christ.
6 Syrian Christians are Christians who follow the Syrian liturgy. They
are mainly Oriental Orthodox Churches. The two Syrian Orthodox
Churches in Syria and India, along with the Egyptian (Coptic),
Ethiopian, and Armenian Churches, belong to the group of Ancient,
or Oriental Orthodox, Churches.
7 Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma and
Another AIR 1995 SC 2001 para 7.
Bharati Law Review, Jan.-Mar., 2014 183

over the possession and ownership of the properties held

together.

Even before the intrusion of Portuguese to the

Malankara, the church had exchanges with churches in
Persia and later with Antioch. The ordinations of
Malankara Metropolitans were being done by the direct or
indirect involvement of Patriarch of Antioch on these
days. The disputes arose between Christian Mission
Society, London, one of the missionaries group and the
church was resolved through arbitration.
“It is known as the 'Cochin Award of
1840'. This Award divided the
properties between the two bodies
allotting among other items 3000 Star
Pagodas to the Malankara Church.
The properties so allotted to the
Malankara Church were as per the
Award to be administered by the
trustees i.e., (1) the Malankara
Metropolitan, (2) a priest-trustee and
(3) a lay-trustee. The effect of the
Cochin Award was that the dispute
between the Mission Society and the
Syrian Church came to an end. But it
appears between 1808 and 1840 vast
assets had been acquired with the
trust created by Dionysius VI. These
were controlled and administered by
the person who was the head of the
Church. Therefore, even though one
Cheppat Dionysius, a locally ordained
Metropolitan was in office, one
Mathew Athanasius went to Syria in
1840 and got himself ordained as
Metropolitan by the Patriarch of
Antioch. Thus the seeds of strife were
sown.”
(Most. Rev. P.M.A. Metropolitan v.
Moran Mar Marthoma and Another,
AIR 1995 SC 2001 para 8).
Bharati Law Review, Jan.-Mar., 2014 184

In 1654, the local ordinations were commenced.8 Thus

1840 marked the beginning of emergence of struggle for
supremacy over the Church between locally ordained
Metropolitan and the one ordained by the Patriarch of
Antioch. Disputes came to the knowledge of Travancore
Government. They appointed a tribunal in 1848, known
as ‘Quilon Committee’ to settle dispute. Even though the
Committee awarded in favour of M. Athanasius, the
members of the church were not satisfied. In 1865,
Joseph Dionysius was sent to Syria and ordained as the
Malankara Metropolitan. Still, M. Athanasius lived until
his last breath as the Malankara Metropolitan and
ordained his brother’s son Thomas Athanasius to assume
his office.

In 1876, another synod was called in Mulunthuruthy,

which is popularly known as ‘Mulunthuruthy Synod’. At
the Synod the Syrian Christian Association popularly
called the 'Malankara Association' was formed to manage
the affairs of the Churches and the community.9 It
affirmed the Orthodox faith and accepted Joseph
Dionysius as the Malankara Metropolitan.
“Whether it was re-assertion of
supremacy of Patriarch or not cannot
be said as the election of Joseph
Dionysius was preceded by two
factors, one, that he had been
persuaded by the local people, earlier,
and he got himself ordained by the
Patriarch and second that Thomas
Athanasius was a nominee of his
brother and he had not been elected
by the people. But it, undoubtedly,
shows that the spiritual domination
was still predominant. However,
Thomas Athanasius challenged the
ordination by Patriarch and claimed
equal status. This could not have been
agreed to by anyone as the spiritual

8 The first was the ordination in 1654 of Mar Thoma Mitra as

Marthoma I. He was ordained as Metropolitan of Malankara by the
Patriarch of Antioch through his delegate. From 1665 onwards,
therefore, the ordination of the Malankara Metropolitan was carried
on by the delegate of Patriarch of Antioch.
9 Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma and another
AIR 1995 SC 2001, para 10.
Bharati Law Review, Jan.-Mar., 2014 185

faith in the Patriarch prevented the

people in Malabar to acknowledge a
person as Metropolitan who was not
ordained either by the Patriarch or his
nominee. However, Thomas
Athanasius refused to hand over the
property and Joseph Dionysius was
left with no option except to approach
the court.”
(Most. Rev. P.M.A. Metropolitan v.
Moran Mar Marthoma and Another,
AIR 1995 SC 2001 para 10).

Thus it commenced the period of legal war for

possession over the properties of the church in the
courts. Unfortunately, disturbances in the church
followed to two factions in the church as 'Patriarch' and
the 'Catholico'. Within a short span of time, five suits
were filed, the first is known as, 'Seminary Suit', in 1879,
the second as 'Arthat case' in 1899, the third in 1913
which became famous as 'Vattipanam case', the fourth in
1938 known as 'Samudayam Suit' and fifth and last in
197410.

The first was filed by a Patriarch ordained and duly

elected Metropolitan at Mulunthuruthy Synod for
recovery of property against nominated Metropolitan,
whereas the second was filed for enforcement of the order
passed in earlier suit as some of the parishes were
denying the authority of the Metropolitan to exercise
spiritual and temporal control over them. The third was
an inter pleader suit by Secretary of State for India due to
formation of two groups laying rival claims against the
assets. All the three suits were decided in favour of
Catholico group. Therefore, the fourth suit was filed by
the Patriarch group against Catholicos claiming that they
had become heretics and had separated from the Church.
This too was decided in favour of Catholicos. But the fifth
suits were filed by the Catholicos for reasons. Even
though the decisions of these preliminary cases are so
discussed, afterwards more than two hundred suits were

10 Most. Rev. P.M.A. Metropolitan v. Moran Ma

Marthoma, AIR 1995 SC 2001, para 11).
Bharati Law Review, Jan.-Mar., 2014 186

filed with regard to partition and other related issues

between the two parties.

The Indian Constitutional advocates always argue that

minorities’ rights are well protected in the country.
Comparing with many of the other nations, the system of
minority protection in India is commendable. The secular
characteristics of the State governance system always try
protecting the minorities’ rights. Still, as a nation with
lots of diversified characteristics and the presence of
various indigent minority groups, India should give more
caution in strengthening its minority protection
measures.

Christians are one of the minority religious groups in

the country. Generally people recognize, two major
groups among the Christians are Catholics and the
Protestants. But the religion contains many other
denominations. Syrian Christians including Orthodox
and Jacobite Churches are one among them, who have
their own religious heads and do not admit the
superiority of the Pope.

Moreover a constitutional right, it is the fundamental

necessity of every person to believe, propagate and
practice his religion. Most of the civilized states of this
era are guaranteeing the right of their citizens to practice
their religion. Article 25 of the Indian Constitution
specifically says that all persons are equally entitled to
freedom of conscience and the right freely to profess,
practice and propagate religion and Article 29(1) provides
that any section of the citizens residing in the territory of
India or any part thereof having a distinct language,
script or culture of its own shall have the right to
conserve the same.

The dispute between Jacobite and Orthodox churches

affects a person’s as below:

• Denial of access to place of worship and structures

(shrines).

Regarding the issue between Orthodox and Jacobite

factions, lots of churches, under the dispute are closed
for worship. The state is not at all capable to make
Bharati Law Review, Jan.-Mar., 2014 187

peaceful environment in the church premises. So they

closed down it until the settlement of the dispute.

While closing down the churches, a believer of this

church cannot use the place for worship. He is not
allowed to enter the church or to submit his offerings. As
per the dogmas of the Orthodox Christians, they follow
traditional customs and beliefs. They have great affection
towards church and structures used by their forefathers.
When it is close down for more than a reasonable time, it
leads to the violation of the primary religious rights of a
person.

• Restriction for prayers and attendance of the

church services.

There is no doubt for the fact that “people conduct

prayer to get internal reliefs”. If there are restrictions on a
person for the use of the worship place and time of
worship, how could he get his internal satisfaction? How
is it possible for a believer to relieve his mental agony, if
the place of worship he uses is under Police surveillance?

There are some churches opened under restrictive

conditions for worship. This has also been done by the
state with the help of force. This temporary arrangement
which pursues for a long time is in no way settle the large
dispute.

Whenever there is friction and turmoil between believers

it affects the whole body. It hinders people from entering
into worship and receiving from God's Word. It creates an
uninviting atmosphere for visitors in the church, it may
hinder people from coming to Christ, and can even grieve
the Holy Spirit (Eph. 4:30-32).

• Access to the Cemetery.

With respect to the present circumstances, the

properties of the churches under dispute are claimed by
the both the factions of the church. It includes cemetery,
shrines, places of worship and other properties. The main
issue is nothing else other than proportionately
partitioning the properties held together. According to the
church faith, on the second coming of Jesus, all of them
Bharati Law Review, Jan.-Mar., 2014 188

who are resting in the tombs shall rise up and go with

him to the heaven. “Marvel not at this; for the hour is
coming in which all that are in the graves shall hear His
voice and shall come forth — they that have done good,
unto the resurrection of life, and they that have done evil,
unto the resurrection of damnation.” (John 5:28-29)11

Hence the church gives foremost emphasis to the

cemetery and periodic prayers at the tomb of a late
Christian. As similar to the access to the place of worship
(church building), access to the cemetery is also part of
the faith. The members of these two factions frequently
come into arguments with regard to the entry and use of
the cemetery. Sometimes even it has gone to the
instances where it defames the corpus brought for
funeral.

• Recurrent disturbances regarding the properties

affect public tranquility.

Arguments and physical aggressions are common in the

region where church dispute is so massive. Sometimes it
affects the tranquility of the entire region it exists in. The
state uses force also for protection of the people and
prevention of physical aggressions in the area. This in
turn affects the peaceful co-existence of the people in the
area. Some of the regions of Ernakulam district of Kerala,
generally witnesses similar instances. People of other
religions also criticize thistrend which followed in their
place.

• Unconcerned about the orthodoxly built

monumental structures of the ancient churches.

Orthodox and Jacobite have many ancient churches in

Kerala. It includes churches which built thousands years
ago and having rare sculptures on stone and indigenous
wooden works. These structures are rare in the country
and assets for its tourism development. The dispute
existing churches including Thrikkunath Seminary,
church in Kadamattom, church in Kollencherry were
founded long years back (all are in Ernakulam district)

11 21st Century King James Version (KJ21).

Bharati Law Review, Jan.-Mar., 2014 189

and renovation measures are hardly done. The churches

are close down by the state and preservations or
renovations of the building is not possible as per the
present situation.

• Hostage spreading to the next generation (it’s a

religious sentiments).

The issue became a religious sentiment and stretched

long by the aggressors. The judiciary tried to solve it
several times and still new issue arises from the
situation. The new generations of the church, who are
not at all cautious of the issue, are also dragged into by
the aggressors. If the present situation continues, it
would be miserable to say that, two factions are carrying
on the sentimental problem to next generation. This
would affect religious and spiritual rights on the next
generation also.

Mutually consented arbitration is the best method to

solve this religious as well as social problem. As Bibles
verses teach: “But if he will not hear thee, then take with
thee one or two more, that ‘in the mouth of two or three
witnesses every word may be established.” (Matthew
18:16).12 The interpretation of this verse says that if your
private attempt fails to resolve the issue, you are then to
take one other Christian and again confront the offending
party. The presence of another Christian is as a witness
to strengthen the serious effect of confrontation, to
collaborate the exhortation of scripture, to amplify the
Lord's presence in the meeting, and to verify the
exchange of testimony. So the problem exist between the
two parties are supposed to be solved in between the
religion.

The Kerala High Court also made a similar comment in

one of its judgments regarding church dispute to settle
the dispute through arbitration. Thattathil B
Radhakrishnan J.: “…we suggested to the learned
counsel for the parties that if there can be a negotiated
settlement between the two factions relating to various
disputes either by way of mediation or conciliation, as the
case may be, it would be appropriate for the community

12 21st Century King James Version (KJ21).

Bharati Law Review, Jan.-Mar., 2014 190

in the furtherance of their spiritual and temporal goals as

religious denomination.”13

Mahatma Gandhi said that: “I admire Christ but not

Christians”. The most civilized and cultured religion in
the world which brought forth great development and
alleviated the standard of the people, Christian religion in
India, deserves high respect and honor. Minor issues
exist among the Christian religion, which should not have
happened in this religion, should be discussed and solved
immediately.

Especially the dispute between Orthodox and Jacobite

factions, they have decided to go apart and settle as
different churches. Still, new issues arise and the real
intention on the part of the members of the churches is
not at all fulfilling. Presently, there are more than
hundreds of cases between the two factions. It includes
criminal as well as civil cases also.

As it is earlier suggested, the exact solution, which can

be brought forth, is a mutual consent settlement through
a genuinely driven arbitration. For that active and
experienced mediators should be presented. Before the
mediation, the exact problem between the factions should
be addressed among the human rights forums and it has
to be identified as human rights violation of a person’s
rights. Violation of a believer’s right to freely practice,
propagate and profess a religion.



13 RFA No. 310 of 1010, dated 23rd day of November 2010.

Bharati Law Review, Jan.-Mar., 2014 191

MINORITIES IN INDIA: PROBLEMS AND PERSPECTIVE

Mr. Siddhartha Srivastava*

Introduction

India’s billion strong populations consist of 6 main ethnic

groups, 52 major tribes, 6 major religions, and 6400
castes and sub-castes. Besides, there are 18 major
languages and 1600 minor languages and dialects.
However, it is practically useful to think of four types of
minorities in India: linguistic, religious, caste, and tribal.

Linguistic Minorities

There were some 1,632 languages spoken in India.

However, the speakers of 18 major languages constitute
about 91% of the population. The anomalies and
contradictions apparent in the scheme of official
recognition of language generate some concerns for
linguistic minorities. There are states, most notably in
India’s northeast, where the local languages of
overwhelming number of people are not yet ‘officially’
recognized. For example, the state level official languages
in Meghalaya, Mizoram and Nagaland are not spoken by
the majority of the people in these states.

Religious Minorities

India is among the most diverse societies in the world in

terms of religious minorities. It has people from all the
major religions in the world—Hindus, Muslims,
Christians, Sikhs, Buddhists, Jains and Zoroastrians
(Parsis). Religious Composition of Indian Population, as
revealed in 2001 census, is as follows: Hindus: 81.4%,
Muslims: 12.4%, Christians: 2.3%, Sikhs: 1.9%,
Buddhists: 0.8%, Jains: 0.4%, and others: 0.7%. The
Muslims constitute the largest religious minority in India
and are scattered all over the country. There is only one
Muslim majority state in India-Jammu & Kashmir (67%).
Sense of insecurity caused by communal violence and

* Student, 3rd year, B.A. LL.B., Amity Law School, Delhi.

Bharati Law Review, Jan.-Mar., 2014 192

hate campaign by Hindu religious fundamentalists

appears to be one of the most common concerns of
religious minorities in general and the Muslim
community in particular. Socio-economic backwardness
and disproportionate representation in almost every
aspect of public life are also among the pressing issues
for the religious minorities in India.

Tribal Minorities

Indigenous tribal people of India are concentrated in

three principal regions. One is India’s northeast. The
second is in middle India, and includes Bihar, the hill
areas of inland Orissa, south eastern Madhya Pradesh,
and a portion of northern Andhra. The third region is in
India’s west, and includes parts of eastern Gujarat,
western Madhya Pradesh, and southern Rajasthan. The
main demand prevalent among many tribal people is
their right to autonomy. In response, the successive
governments have relied on two political administrative
solutions: the creation of autonomous district and
regional councils provided for by the sixth schedule of the
Constitution, and the formation of separate states.

This paper tries to deals with the various kinds of

minority groups present in India and the various
problems faced by them.

Who are Minorities?

The expression “minority” has been derived from the

Latin word “minor” and the suffix ‘ity’, which means
“small in number”. Various definitions given by various
books and committees are as follows:
• Year Book of Human Rights describes minority
as non dominant group having different religious
or linguistic traditions than the majority
population.1
• The U.N. Sub-Commission on Prevention of
Discrimination and Protection of Minorities
has defined minority as2:

1 Molishree , Minority Educational Institutions: A Critical Analysis,

Centre for Civil Society.
2 Ibid.
Bharati Law Review, Jan.-Mar., 2014 193

1) The term 'minority' includes only those non-

documents group of the population which
possesses and wish to preserve stable ethnic,
religious or linguistic traditions or
characteristics markedly different from those
of the rest of the population.
2) Such minorities should properly include the
number of persons sufficient by themselves to
preserve such traditions or characteristics;
and
3) Such minorities should be loyal to the state of
which they are nationals.

The initial courtroom attempt to answer the question

who is minority was made In Re: The Kerala Education
Bill3 case where the Hon’ble Supreme Court, through S.R
Das CJ., suggesting the techniques of arithmetic
tabulation held that “minority means a “community”
which is numerically less than “50 per cent” of total
population.” The Kerala High Court also agreed with the
above definition and held that the word “Minority” is not
defined in the Constitution, and in the absence of special
definition, any community religious or linguistic –which
is numerically less than 50 per cent of the population of
the State concerned, is entitled to fundamental right
guaranteed by Article 30 of the constitution.4 Further in
D.A.V. College, Bhutinda v. State of Punjab and Others5,
the Hon’ble Supreme Court held that: “ what constitute a
linguistic or religious minority must be judge in relation
to the State inasmuch as the impugned Act was a State
Act and not in relation to whole of India”. In Stephen’s
College v. University of Delhi6, The Court held that the
minority under Article 30 must necessarily mean those
who form a distinct or identifiable group of citizen of
India.

The above definitions referred minorities as a group

smaller in number in comparison to majority in a defined
area. However, it did not indicate as to what factors must
be considered while making a distinction between
minorities and the rest. However there are certain

3 A.I.R. 1958 S.C. 956.

4 A.M. Patroni v. Kesavan, A.I.R 1965 Ker 75 at p-76.
5 1971 (Supp) S.C.C. 261.
6 (1992) 1 SCC558 at 560 (para 28).
Bharati Law Review, Jan.-Mar., 2014 194

definitions which provide certain factors which can be

considered while categorizing minorities from others.
• According to Encyclopedia Britannica minorities
means “group held together by ties of common
descent, language or religious faith and feeling
different in these respects from the inhabitants of
a given political entity”.
• The Oxford Dictionary defines ‘Minority’ as a
smaller number or part; a number or part
representing less than half of the whole; a
relatively small group of people, differing from
others in race, religion, language or political
persuasion.
• J.A Laponce in his book “The Protection to
Minority” describes “minority” as a group of
persons having different race, language, or
religion from that of majority of inhabitants.
• In the Year Book of Human Rights (U.N
Publication 1950 edition) minority has been
described as non dominant group having different
religious or linguistic traditions than the majority
population.

Thus most of the definitions explained above either

categorises minorities as a group smaller in numbers or a
group having certain characters distinct from others. No
definition comes out to be comprehensive to cover all the
varied situations and illustrates the difficulty experienced
in assigning limits to concept of minority.

Indian Constitution on Minorities

Religious harmony, not mere tolerance, is the bedrock of

India’s secularism. It is also the solemn duty of the
Government to make every possible effort to protect and
promote secular values and provide equality of
opportunity to all religious minorities. Enshrined in the
Indian Constitution therefore, are several rights that are
intended to protect the interests of all citizens, including
minorities.7 The Constitution of India uses the word
minority, or its plural form, in Article 29 to 30 and Article
350A to 350B. Under Article 30 the expression

7 Official website of Prime Minister of India, PM on Conference of State

Minorities Commissions, Jan. 13, 2014.
http://pmindia.gov.in/bulletin_board_details.php?nodeid=124.
Bharati Law Review, Jan.-Mar., 2014 195

“minorities” has been used in two senses one based on

religion and other based on language while Article 350
relates to linguistic minorities only.8

Article 29

It states that:
(1) Any section of the citizens residing in the territory
of India or any part thereof having a distinct
language, script or culture of its own shall have the
right to conserve the same; and
(2) No citizen shall be denied admission into any
educational institution maintained by the state or
receiving aid out of state funds on grounds only of
religion, race, caste, language or any of them.

Unlike Article 30, the text of Article 29 does not

specifically refer to minorities though it can be clearly
deduced that the article is intended to protect and
preserve the cultural and linguistic identity of the
minorities. However, its scope is not necessarily confined
to minorities. The protection of Article 29 is available to
“any section of the citizens residing in the territory of
India” and this may as well include the majority.
However, India is a colourful conglomeration of
numerous races, religions, sects, languages, scripts,
culture and traditions. The minorities, whether based on
religion or language, are quite understandably keen on
preserving and propagating their religious, cultural and
linguistic identity and heritage. Article 29 guarantees
exactly that. There may appear to be some overlapping in
language and expressions employed in Articles 15(1) and
29(2). However, Article 15(1) contains a general
prohibition on discrimination by the state against any
citizen on grounds only of religion, race, caste, sex, place
of birth or any of them whereas Article 29(2) affords
protection against a particular species of state action viz.
admission into educational institutions maintained by
the state or receiving aid out of state funds.

8 Ninong Ering, Constitution does not define minorities: govt tells RS,
The Times of India (Aug. 13, 2013).
http://articles.timesofindia.indiatimes.com/2013-08-
13/india/41372208_1_minorities-act-constitution-religious-
minorities.
Bharati Law Review, Jan.-Mar., 2014 196

Article 30

Right of minorities to establish and administer

educational institutions-
(1) All minorities, whether based on religion or
language, shall have the right to establish and
administer educational institutions of their
choice.
(1A) In making any law providing for the
compulsory acquisition of any property of an
educational institution established and
administered by a minority, referred to in clause
(1), the State shall ensure that the amount fixed
by or determined under such law for the
acquisition of such property is such as would not
restrict or abrogate the right guaranteed under
that clause
(2) The state shall not, in granting aid to educational
institutions, discriminate against any educational
institution on the ground that it is under the
management of a minority, whether based on
religion or language.

Article 30 is a minority-specific provision that protects

the right of minorities to establish and administer
educational institutions. It provides that “all minorities,
whether based on religion or language, shall have the
right to establish and administer educational institutions
of their choice”. Clause (1A) of Article 30, which was
inserted by the Constitution (44th Amendment) Act, 1978,
provides that “in making any law providing for the
compulsory acquisition of any property of an educational
institution established and administered by a minority,
referred to in clause (1), the state shall ensure that the
amount fixed by or determined under such law for the
acquisition of such property is such as would not restrict
or abrogate the right guaranteed under that clause”.
Article 30 further provides that “the state shall not, in
granting aid to educational institutions, discriminate
against any educational institution on the ground that it
is under the management of a minority, whether based
on religion or language”. It would be worthwhile to note
that minority educational institutions referred to in
clause (1) of Article 30 have been kept out of the purview
of Article 15(4) of the Constitution which empowers the
Bharati Law Review, Jan.-Mar., 2014 197

state to make provisions by law for the advancement of

any socially and educationally backward classes of
citizens or scheduled castes/scheduled tribes in regard to
their admission to educational institutions (including
private educational institutions), whether aided or
unaided. Articles 29 and 30 have been grouped together
under a common head, namely “Cultural and
Educational Rights”. Together they confer four distinct
rights on minorities. These include the right of:
(a) any section of citizens to conserve its own language,
script or culture;
(b) all religious and linguistic minorities to establish and
administer educational institutions of their choice;
(c) an educational institution against discrimination by
state in the matter of state aid (on the ground that it is
under the management of a religious or linguistic
minority); and
(d) the citizen against denial of admission to any state
maintained or state-aided educational institution.

Article 29, especially clause (1) thereof, is more

generally worded whereas Article 30 is focused on the
right of minorities to (i) establish and (ii) administer
educational institutions. Notwithstanding the fact that
the right of the minority to establish and administer
educational institutions would be protected by Article
19(1)(g), the framers of the Constitution incorporated
Article 30 in the Constitution with the obvious intention
of providing confidence among minorities against any
legislative or executive encroachment on their right to
establish and administer educational institutions. In the
absence of such an explicit provision, it might have been
possible for the state to control or regulate educational
institutions, established by religious or linguistic
minorities, by law enacted under clause (6) of Article 19.

Article 350A

Facilities for instruction in mother-tongue at primary

stage-
It shall be the endeavour of every State and of every local
authority within the State to provide adequate facilities
for instruction in the mother-tongue at the primary stage
of education to children belonging to linguistic minority
groups; and the President may issue such directions to
Bharati Law Review, Jan.-Mar., 2014 198

any State as he considers necessary or proper for

securing the provision of such facilities.

The Constitution imposes a duty on every State to

provide adequate facilities for instructions in the mother
tongue at the primary stage of education to children of
linguistic minority group

Article 350B

Special Officer for linguistic minorities-

(1) There shall be a Special Officer for linguistic
minorities to be appointed by the President.
(2) It shall be the duty of the Special Officer to investigate
all matters relating to the safeguards provided for
linguistic minorities under this Constitution and report to
the President upon those matters at such intervals as the
President may direct, and the President shall cause all
such reports to be laid before each House of Parliament,
and sent to the Governments of the States concerned.

The President shall also appoint a Special Officer for

linguistic minorities who will investigate all matters
relating to the safeguards provided for linguistic
minorities under the Constitution and report to the
President upon those matters as the President may
direct.

Part III of the Indian Constitution: Fundamental

Rights

Part III of the Indian Constitution guarantees certain

fundamental rights for each and every citizen of India.
These general rights have significant bearing on the
protection of minorities. In particular, these rights
include: equality before law,9 safeguard against
discrimination on grounds of religion, race, caste, sex or
place of birth,10 equality of opportunity in matters of
public employment, 11 abolition of untouchability,12

9 Art. 14.
10 Art. 15.
11 Art. 16.
12 Art. 17.
Bharati Law Review, Jan.-Mar., 2014 199

freedom of expression,13 freedom of association,14 right to

free education up to the age of fourteen,15 right to freely
profess, practice and propagate religion,16 right of
religious denominations to manage religious affairs,17
safeguard against taxation for promotion of any
particular religion,18 and safeguard against religious
instruction in state-funded educational institutions.19

Despite the guarantee of non-discrimination as a

fundamental right, Indian Constitution enables the state
to make special provision for the advancement of any
socially and educationally backward classes of citizens or
for the schedule castes and the scheduled tribes.20
Moreover, promotion of educational and economic
interests of schedules castes, scheduled tribes and other
weaker sections of the people is one of the state policies
formulated by the Constitution.21 The Constitution
further provides that ‘seats shall be reserved’ in
proportion to their numbers to scheduled castes and in
the Parliament,22 and in the State Legislatures.23

Kinds of Minorities and Problems Faced by Them

The Indian population is composed of 6 main ethnic

groups, 52 major tribes, 6 major religions, and 6400
castes and sub-castes. Besides, there are 18 major
languages and 1600 minor languages and dialects.24
However, it is practically useful to think of four types of
minorities in India: linguistic, religious, caste, and tribal.

Religious Minorities

The India population consists of people from all the major

religions in the world—Hindus, Muslims, Christians,

13 Art. 19(1)(a).
14 Art. 19(1)(c).
15 Art. 21A.
16 Art. 25.
17 Art. 26.
18 Art. 27.
19 Art. 28.
20 Art. 15(4).
21 Art. 46.
22 Art. 330.
23 Art. 332.
24 T.M.A. Pai Foundation and others v. State of Karnataka and Others,
WP (Civil) No. 317/1993, para.158.
Bharati Law Review, Jan.-Mar., 2014 200

Sikhs, Buddhists, Jains and Zoroastrians (Parsis).

Religious Composition of Indian Population, as revealed
in 2001 census, is as follows: Hindus: 81.4%, Muslims:
12.4%, Christians: 2.3%, Sikhs: 1.9%, Buddhists: 0.8%,
Jains: 0.4%, and others: 0.7%.25

The largest group among the religious minorities is that

of Muslims. It should be noted that India has the third
largest Muslim population in world, only after Indonesia
and Bangladesh. Even Pakistan, which was carved out
for safeguarding the interests of Indian Muslims, has a
smaller Muslim population than India. There is only one
Muslim majority state in India–Jammu & Kashmir (67%)
and one Muslim majority Union Territory-Lakshadweep
(95%). Muslims are also found in good numbers in Assam
(30.9%), West Bengal (25.2%), Kerala (24.7%), Uttar
Pradesh (18.5%), Bihar (16.5%), Jharkhand (13.8%),
Karnataka (12.2%), Uttarakhand (11.9%), and
Maharashtra (10.6%). However, in terms of number, most
Muslims reside in Uttar Pradesh, West Bengal, Bihar,
Maharashtra, Assam, Kerala, Jammu & Kashmir, Andhra
Pradesh, Gujarat, Madhya Pradesh, Jharkhand, and
Tamil Nadu.26

There are three states in India where the Christians, the

second largest religious minority of India, constitute the
majority. All these states are in the north-east, viz.,
Nagaland (90%), Mizoram (90%) and Meghalaya (70.3%).
In terms of ration, Christians also have sizable pockets
Manipur (34%), Goa (26.7%), Kerala (19%), and
Arunachal Pradesh (18.7%). Among the union territories,
the Christians constitute a substantial number in
Andaman & Nicobar Islands (21.7%). However, in terms
of number, most Christians reside in Kerala, Tamil Nadu,
Nagaland, Meghalaya, Andhra Pradesh, Jharkhand,
Maharashtra, and Karnataka. Among the other religious
minorities, the Sikhs are mainly concentrated in Punjab
where they form a majority (59.9%).27

25 Demographics of India; Wikipedia

http://en.wikipedia.org/wiki/Demographics_of_India.
26 Islam in India, Wikipedia
http://en.wikipedia.org/wiki/Islam_in_India#Muslim_population_by
_states.
27 Christianity in India; Wikipedia
http://en.wikipedia.org/wiki/Christianity_in_India#State_Populatio
ns,.
Bharati Law Review, Jan.-Mar., 2014 201

The Buddhists are mainly concentrated in Maharashtra.

Jains, the India’s oldest religious minority,28 mainly live
in the states of Maharashtra, Rajasthan, Gujarat and
Karnataka.

Sense of insecurity caused by communal violence and

hate campaign by Hindu religious fundamentalists
appears to be one of the most common concerns of
religious minorities in general and the Muslim
community in particular.29 It is largely Muslims who are
the victims of such communal violence. During the
communal riots following the demolition of Babri Masjid
in 1992, almost all institutions of state and civil society
in India–executive, judiciary, legislature, political parties,
police, trade unions etc. failed to protect the besieged
Muslim community, and uphold the secular principles
that the Indian Constitution is committed to. In 2002, the
state of Gujarat in western India witnessed the most
horrendous massacres of Muslims by Hindu nationalist
groups with the overt involvement of state machinery.

Socio-economic backwardness and disproportionate

representation in almost every aspect of public life are
also among the pressing issues for the religious
minorities in India. Dr. Gopal Singh Report on Minorities
submitted to the Government in 1983 found that
amongst poorest of the poor, minorities constitute the
majority. In particular, the report revealed that there
were only 128 Muslims in the Indian Administrative
Services out of a total of 3,785 (3.2%), and 57 Muslims in
Indian Police service (2.6%).30 The Report on ‘Social,
Economic and Educational Status of the Muslim
Community of India’ submitted to the government of
India in 2006 (popularly known as ‘Sachar Commission
Report’) also documented the overall situation of

28 R.A. Schermerhorn, Ethnic Plurality in India, Arizona, University of

Arizona Press, 1978, p.101.
29 Amrita Basu and Atul Kohli (eds.), Community Conflicts and the
State in India, Cambridge, Oxford University Press, 1998.
30 Venkitesh Ramakrishnan, Community on the margins, The Hindu
(Feb. 1, 2014)
http://www.hindu.com/thehindu/thscrip/print.pl?file=2006121500
4700400.htm&date=fl2324/&prd=fline&.
Bharati Law Review, Jan.-Mar., 2014 202

Muslims, the largest religious minority of India, in India.

Some of the findings of this report are as follows:31
• Muslims live with an inferiority complex as “every
bearded man is considered an ISI agent”;
• Social boycott of Muslims in certain parts of the
country has forced them to migrate from places
where they lived for centuries;
• A community specific factor for low educational
achievement is that Muslims do not see
education as necessarily translating into formal
employment;
• Schools beyond the primary level are few in
Muslim localities;
• Many banks have designated a number of
Muslim concentration areas as ‘negative or red
zones’, where they do not give loans;
• It is common to find names of Muslims missing
in the voter lists of a number of states;
• Unemployment rate among Muslim graduates is
the highest among Socio-religious groups both
among the poor and the non-poor;
• The participation of Muslims in regular jobs in
urban areas is quite limited compared to even the
traditionally disadvantaged scheduled castes and
scheduled tribes;
• Participation of Muslims in security related
activities (e.g., Police) is considerably lower than
their share in population;
• Compared to the Muslim majority areas, the
areas inhabiting fewer Muslims had better roads,
sewage and drainage, and water supply facilities;
• The presence of Muslims is only 3% in the IAS,
1.8% in the IFS and 4% in the IPS;
• In no state does the representation of Muslims in
the government departments match their
population share;
• The presence and participation of Muslims in the
Judiciary has been a major point of concern.

Although the religious minorities always claim the

benefits of affirmative action as stipulated in Articles
15(4) and 16(4) of the Constitution, the government of

31 Anis Chisti, Sachar Committee Report: A Review, Mainsream Weekly

(Dec. 23, 2006), http://www.mainstreamweekly.net/article95.html.
Bharati Law Review, Jan.-Mar., 2014 203

India consistently refuses to extend reservations to

religious groups on the ground that it would be divisive.
However, it is part of the Indian political strategy, as
often argued, to periodically appoint Muslims on
positions of high visibility like a President and a Chief
Justice to give the impression that Muslims are equal
participants in the public life in India.32

Recently, the UPA government has given consent for

giving national minority status, under the National
Commission of Minorities Act, to the Jain community.33
The Jain community numbering about 50 lakh has
minority status in 11 states but was not covered by the
National Commission of Minorities Act. Thus, Jains will
also come under the ambit of national minority status
making a total of six minority community in India.

Linguistic Minorities

By one estimate, there were some 1,632 languages

spoken in India.34 However, the speakers of 18 major
languages constitute about 91% of the population.
Although the Constitution of India offers detailed
provisions on language, it does not provide a clear
criterion for defining minority languages.35 However, it is
agreed upon by all that there is no linguistic group at the
national level which can claim the majority status and as
such the majority-minority question is considered in
reference to the state only.36

The major demand of linguistic groups is that their

language be recognized as an official language of states.
This recognition, linguistic minorities argue, reduces the

32 Iqbal A. Ansari (ed.), Communal Riots, The State & Law In India, New
Delhi, Institute of Objective Studies, 1997, pp. 66-75.
33 Abantika Ghosh, Jain Community given Central Minority Status, The
Indian Express (Jan 21, 2014)
http://indianexpress.com/article/india/india-others/jain-
community-given-central-minority-status/.
34 D. D. Basu, Introduction to the Constitution of India, New Delhi,
Prentice Hall of India, 1997, p. 187.
35 Rajeshwari V. Pandharipande, “Minority Matters: Issues in Minority
Languages in India”, International Journal on Multicultural Societies,
vol.4, no.2, 2002, p. 214.
36 S. Chaklader, Linguistic Minority as a Cohesive Force in Indian
Federal Process, New Delhi, Associate Publishing House, 1981, p.
14.
Bharati Law Review, Jan.-Mar., 2014 204

pressures for linguistic assimilation and enables the

group to strengthen its identity and solidarity.37
Accordingly, after independence, many of the Indian
states were reorganized, not of course without
widespread struggles of the people, along linguistic lines.
Thus, almost every major states of India has what may be
called a ‘home’ language, of which it is a ‘home’ state. At
present, the officially recognized languages are-Assamese,
Bengali, Bodo, Dogri, Gujarati, Hindi, Kannada,
Kashmiri, Konkani, Maithili, Malayalam, Manipuri,
Marathi, Nepali, Oriya, Punjabi, Sanskrit, Santhali,
Sindhi, Tamil, Telugu, and Urdu.38

The anomalies and contradictions apparent in the

scheme of official recognition of language generate some
concerns for linguistic minorities. There are states, most
notably in India’s northeast, where the local languages of
overwhelming number of people are not yet ‘officially’
recognized. For example, the state level official languages
in Meghalaya, Mizoram and Nagaland are not spoken by
the majority of the people in these states. Kashmiri,
which is spoken by 53 per cent of the total population in
the state of Jammu and Kashmir, is not the state
language. Contrarily, Urdu, the official language of
Jammu and Kashmir, is spoken by less than 1 per cent
of the total population of the state. Similarly, English, the
official language of Meghalaya, is spoken by 0.01 per cent
of the total population.39

Indigenous Tribal Groups

Indigenous tribal people of India are concentrated in

three principal regions. One is India’s northeast. The
second is in middle India, and includes Bihar, the hill
areas of inland Orissa, southeastern Madhya Pradesh,
and a portion of northern Andhra. The third region is in
India’s west, and includes parts of eastern Gujarat,
western Madhya Pradesh, and southern Rajasthan. There

37 Myron Weiner, The Indian Paradox: Essays in Indian Politics, New

Delhi, Sage Publications, 1989, p. 66.
38 Languages with official status in India
http://en.wikipedia.org/wiki/Languages_with_official_status_in_Indi
a#Eighth_Schedule_to_the_Constitution.
39 Rajeshwari V. Pandharipande, “Minority Matters: Issues in Minority
Languages in India”, International Journal on Multicultural Societies,
vol.4, no.2, 2002, p. 215.
Bharati Law Review, Jan.-Mar., 2014 205

is also a small tribal area in the mountain region of

Himachal Pradesh and in the Nilgiri hills in Tamil Nadu.
Among the tribal groups, six largest tribes constitute
nearly one-half of the India’s tribal population. These
tribes are: the Gonds of central India; the Bhils of
western India; the Santhals of Bihar, West Bengal and
Bihar; the Oraons of Bihar and West Bengal; the Minas of
Rajasthan; and the Mundas of Bihar. Some tribes,
though considerably smaller, constitute a majority of the
areas in which they live: the Nagas, Khasis and Garos, for
example, in India’s northeast.

According to the 2001 census, the schedule tribal

population constitutes 8.2% of the total population of
India. Among the states, Mizoram has the highest
proportion of scheduled tribes (94.5%) while Goas has the
lowest (0.04%).

The main demand prevalent among many tribal people

is their right to autonomy. In response, the successive
governments have relied on two political administrative
solutions: the creation of autonomous district and
regional councils provided for by the sixth schedule of the
Constitution, and the formation of separate states.40
Such solutions being not in accordance with the
aspiration of tribal people, many indigenous groups,
particularly in the north-eastern region, have been
struggling for self-rule.41 The overall socio-economic
condition of these tribal groups is also far below the
national average.

Dalits as a Caste Minority

The word ‘dalits’ comes from the Hindi root dal and
means ‘held under check’, ‘suppressed’ or ‘crushed’ — or,
in a looser sense, ‘oppressed’.42The caste system is a
traditional Hindu system of social segregation, which
works on the principle of purity pollution. In this
structure of segregation, dalits occupy the lowest

40 Christian Erni, Indigenous Peoples Self-Determination in Northeast

India, Indigenous Affairs, vol.3, no.1, 2001, p. 61.
41 Sanjib Baruah, Territoriality, Indigeneity and Rights in the Northeast
India, Economic and Political Weekly, Jan 29, 2014, pp. 15-19.
42 National Confederation of Dalit Organisations
http://nacdor.org/?page_id=184.
Bharati Law Review, Jan.-Mar., 2014 206

position. Traditionally they are considered as

untouchable by so called higher castes/dominant caste
group. At present, dalits are not necessarily present only
in the Hindu community. Many dalits who converted to
other religions in the past few centuries continue to
retain their dalit heritage. The introduction of Islam to
India from about the thirteenth century AD led to
widespread conversions by many low-caste and
‘untouchable’ groups, and by the mid-nineteenth century
about one quarter of the population was Muslim.43
Although the Constitution of India formally outlawed the
practice of untouchability-the imposition of social
disabilities on persons by reason of their birth in certain
castes-back to almost sixty years ago, in practice the dalit
communities are still subjected to extreme forms of social
and economic exclusion and discrimination.

According to the Indian Constitution, dalits are not

classified as minorities, although the Court, in one
instance, labeled them as the “world’s most oppressed
minority”.44 Within the constitutional scheme, dalits are
perceived to be included in the term ‘scheduled castes’.
However, the Constitution does not define or specify as to
who are to be regarded as ‘scheduled castes’, rather
leaves it to the discretion of the President to determine
and accordingly notify.45

According to the 2001 census, the schedule caste

population constitutes 16.2% of the total population of
India. Four fifth (79.8%) of them live in rural areas while
the rest one-fifth (20.2%) in urban areas. The highest
percentage of scheduled castes population to the total
scheduled castes population of the country live in Uttar
Pradesh (21.1%) followed by West Bengal (11.1%) and
Bihar (7.8%), Andhra Pradesh (7.4%) and Tamil Nadu
(7.1%).

The ground reality for the dalits is that India’s social

hierarchy and ethno demography have affected the
context of equal protection provisions of the

43 World Directory of Minorities

http://www.minorityrights.org/?lid=5652&tmpl=printpage.
44 State of Karnataka v. Babu Ingale, (1992) 3 SCR 284, para. 15.
45 Article 366(24) and Article 341 of the Indian Constitution.
Bharati Law Review, Jan.-Mar., 2014 207

Constitution.46 Their socio-economic condition is quite

inhuman. Although the constitutionally mandated
affirmative action has had some impact in enabling them
to overcome histories of social injustice and religiously
sanctified discrimination, still now dalits continue to be
one of the most underprivileged groups in India in every
index of human development. Caste based violence is
another concern for the dalit community in India.47

Conclusion

Pluralism is the keystone of India’s civilization and

culture. The Indian nation with its continental size and
minority population of country-like-magnitude cannot
afford the luxury of letting the vast population of
minorities lie low as sleeping partners.48 They have to be
assimilated and empowered, so that they can contribute
to the nation. So the need is to address the real problems
of minorities. Agreed that there are various legislations
and provisions for their upliftment, but they have not
been able to serve their purpose completely. The
Muzzaffarnagar riots have once again showed that
Muslims, that too in state where they are highest in
number, are not safe in India. The fact that in various
states the official language is not even spoken by 1% of
the population shows that something is wrong there. The
condition of dalits, in spite of various constitutional
provisions and legislations, is not up to the mark.

So, the need of the hour is that the various problems

related to minority groups should be addressed as soon
as possible, so that they can help in development of the
nation.



46 Maya Chadda, Minority Rights and Conflict Prevention: Case Study of

Conflicts in Indian Jammu and Kashmir, Punjab and Nagaland,
London, Minority Rights GroupInternational, 2006, p. 3.
47 Smita Narula, Broken People: Caste Violence against India’s
‘Untouchables’, New York, Human Rights Watch, 1999.
48 Prof. S.N. Singh, Muslims in India, Anmol Publishers, New Delhi,
2013.
Bharati Law Review, Jan.-Mar., 2014 208

EDUCATIONAL RIGHTS OF MINORITIES IN INDIA:

REFLECTION ON ARTICLES 29 AND 30 OF THE
CONSTITUTION
Ms. Subhashini Narayanan*

“Education is a better safeguard of liberty than a

standing army.”
-Edward Everett
Introduction

For a democracy to be healthy and efficient, the

protection of the rights of minorities is a sine qua non.
The protection of the underdogs from the dominating
class is essential for their development. The apex court of
India has time and again asserted that India is a land of
different castes, people, communities, religions and
cultures; a land of 6 main ethnic groups, 52 major tribes,
6 major religions and 64 castes and sub-castes. The
judges reject any absorptionist or inclusivist trend,
attempting to preserve the distinct identity of each group.
The Constitution of India broadly recognizes two
categories of minorities: linguistic and religious. Under
Section 2(c) of the Statute of the National Commission of
Minorities, the Government of India has officially
recognized Muslims, Christians, Sikhs, Buddhists and
Zoroastrians as minority communities. Although the
Government of India used religion as the basis for
categorizing the population, the religious minorities are
not the only minorities in India.

Secularism is one of the basic features of the

constitution, thereby indicating that it is beyond the
amending power of the Parliament. The essence of
secularism in India is the recognition and preservation of
the different types of people, with diverse languages and
different beliefs, and placing them together so as to form
a united and cohesive India. Regarding the constitutional
ideal of equality, the Supreme Court of India has
explained the ideals of ‘substantive equality’ and
‘differential treatment’. Legitimizing the conferring of

* Student, 2nd year, B.A. LL.B.(H), Hidayatullah National Law

University, Raipur.
Bharati Law Review, Jan.-Mar., 2014 209

certain rights on a special class of citizens, the court has

stated that all the people of India are not alike, making
preferential treatment to a special section of society the
need of the hour. Article 30 of the Constitution is a
special right conferred on the religious and linguistic
minorities because of their numerical handicap, to instill
in them a sense of security and confidence.1

Concept of Minority

The word ‘minority’ has been derived from the Latin word
‘minor’ which means smaller. The Britannica
Encyclopedia defines minority as a culturally, ethnically,
or racially distinct group that coexists with but is
subordinate to a more dominant group (whatever the
numerical strength of such minority). In social scientific
usage the term ‘minority’ is used to denote a group that
is assigned an inferior status in society. A minority group
is often defined on the basis of a relatively permanent
and constant status and on the basis of being different
from the majority group. This includes groups with
deeply held common identities that are relatively unlikely
to change, i.e., linguistic and religious minorities.
Minority groups are generally different in a way that is
‘socially significant’ from groups that hold a dominant
place and they are relegated to a subservient position in
society. The United Nations Sub-Committee on
Prevention of Discrimination and Protection of Minorities
and Minority Rights in India has defined the term
‘minority’ as “only those non-dominant groups in a
population, which possess and wish to preserve stable
ethnic, religious or linguistic traditions or characteristics
markedly different from those of the rest of the
population”. The members of a minority are often
excluded from a full share in mainstream life in society
on account of their ‘difference’ from the majority. Such
situations tend to give rise to a discriminatory and
bigoted attitude towards the minority in question.
Minorities in turn respond strongly by developing a sense

1 M.P. Raju, Minority Rights & Educational Institutions: Latest

Developments, Vol. 9 No.1 Integral Liberation (2005).
Bharati Law Review, Jan.-Mar., 2014 210

of group loyalty and unity isolating them further from the

rest of the society.2

The Indian Constitution neither defines the term

‘minority’, nor provides any conditions that need to be
fulfilled for a group to be eligible to be recognized as a
minority. The drafters of the Constitution left this task to
the judiciary. The Supreme Court of India in 1958 set out
parameters for determining if a community constituted a
minority community.

In Re: The Kerala Education Bill3 the first attempt was

made at interpreting the meaning and ambit of the term
‘minority’. In this case the Supreme Court held that
minority means a community which is numerically less
than 50 per cent of the population. This, however, does
not define the geographical limits within which the said
50 per cent is to be determined. Later in D.A.V. College
Jalandhar v. State of Punjab4 rejecting the contention
that a religious or linguistic minority should be
determined with respect to the entire population of the
country, the Supreme Court held that a minority has to
be determined in relation to a particular legislation which
is sought to be implemented. In the case of a state law,
minorities have to be determined in relation to the
population of the state, not the entire country.

In T.M.A. Pai Foundation v. State of Karnataka5 it has

been held by the eleven judges’ bench of the Supreme
Court that a minority, whether linguistic or religious, is
determinable only by reference to the demography of the
state and not by taking into consideration the population
of the country as a whole. The court further held that the
rights of linguistic and religious minorities as well as the
majority community to set up educational institutions of
their choice are unfettered, but that the right to
administer them is not absolute.

2 Brij Pal, Empowerment of Minority in India, Vol. 1(4), Global

Advanced Research Journal of History, Political Science and
International Relations, pp. 089-094 (2012).
3 AIR 1958 SC 956.
4 AIR 1971 SC 1737.
5 (2002) 8 SCC 481.
Bharati Law Review, Jan.-Mar., 2014 211

History of Minority Rights in India

Group-preference state policies in India have been in

existence since the early twentieth century. Although not
very well defined and extensive, provisions for improving
the conditions of minorities and bringing them at par
with the rest of the society have been around for quite
some time. Provisions for special representation for those
considered backward in the legislatures and reservation
in government employment had been set in motion by the
British governance in India as well as by some princely
states. Dominant nationalist opinion in the Constituent
Assembly believed that availing of group-preference
provisions included in the Constitution by religious
minorities in India was not fair as such safeguards were
being included for the sole reason of helping backward
sections of society in overcoming their disabilities and not
for promoting the preservation of distinct cultural
identities. The concept of safeguards for minorities as a
matter of general policy was rejected and such protection
was considered legitimate only in the case of particular
groups with the specific purpose of expunging the social
and economic disabilities of backward sections of society.
During the colonial period, minority safeguards were
defended as a mechanism to facilitate the political
accommodation of different communities and as a means
to ameliorate the conditions of disadvantaged groups. The
maintenance of a political balance between different
communities was regarded as an unacceptable basis for
minority safeguards in the nationalist vision and hence
the case for safeguards for religious minorities was
weakened.6

The need for special rights for minorities was felt during
the British period when minority-majority awareness was
at its peak. The implementation of the divide and rule
policy of the British led to the estrangement of the
minorities. Above all, fear in the minds of the minority
regarding their status and rights post-independence was
fuelled by the identification of the Congress with the
upper-caste Hindus. Under these conditions, rights
protecting minority interests were sought to be
incorporated within the framework of the upcoming

6 Rochana Bajpai, Constituent Assembly Debates and Minority Rights,

Vol. 35, Economic and Political Weekly, pp.1837-1845 (2000) .
Bharati Law Review, Jan.-Mar., 2014 212

Constitution of independent India to dispel the fears of

the minorities and to set their concerns to rest.7 Under
the Constitution of 1950, preferential provisions were
restricted mainly to the scheduled castes and scheduled
tribes. In order to protect the interests of minorities in
India, numerous provisions have been incorporated in
the nation’s Constitution under the head of the
‘inalienable’ fundamental rights.

Constitutional Assembly Debates

Special treatment for certain groups of people was based

on a history of exploitation and injustice by Hindu (high
caste) society and the notion that justice required
atonement in some form was held. Minority safeguards
were intended to be temporary, transitional measures
necessary until backward sections of the population were
brought up to the level of the rest.

It is generally assumed that all the Constitution-makers

advocated the notion of secularism and democracy.
Dominant nationalist opinion visualized the ideal as a
future situation in which safeguards for minorities would
no longer be necessary. It was believed that the inclusion
of such safeguards would undermine the fundamental
principles on which the new nation state was to be
formed. Such protection required the recognition of a
person’s caste in public policy hence marring the
commitment to secularism. A scheme of group preference
would lead to departures from a system of equal
individual rights and the result would be a compromise
on equality and justice. The granting of political
safeguards to minorities would fuel separatist tendencies
and weaken national unity and cohesion. In the pre-
Constitution period, minority safeguards were regarded
as instruments of the colonial ‘divide and rule’ policy
intentionally fabricated by the ‘deceitful’ colonial rulers to
mislead the minorities and to create friction between
different sections of the nation hence delaying the
transfer of power when it became unavoidable.

7 Ranu Jain, Minority Rights in Education: Reflections on Article 30 of

the Indian Constitution, Economic and Political Weekly, June 11,
2005.
Bharati Law Review, Jan.-Mar., 2014 213

Though secularism is commonly interpreted to imply

that the state does not give preference to any particular
religion, it does not relate to matters of religion alone. In
general usage it refers to the elimination of religion and
caste as categories of the process of public policy-making.
Dominant opinion held that building a nation required
the formation of a secular spirit which would prompt
people to stop viewing themselves as members of a
particular community and instead see themselves as
Indians. To be caught in petty group concerns by being
communal would undermine the very basis of the new
secular ethos aimed at by the dominant nationalists. This
view exemplified by Pandit Nehru regarded claims for
minority safeguards as distractions from the more
pressing problems of development. During this period,
the nationalist opinion being liberal in nature propagated
the idea of equal individual rights further according
centrality to the individual over the community.8

Protection Offered to Minorities in the Indian

Constitution

Conscious of the complexity of the minority problem in

India and estrangement between different sections of the
society that it could cause in a country that had recently
attained independence, the Constitution-framers were
sure to include Constitutional safeguards for the
protection of minority rights, though fundamental rights
were made available to every citizen of India irrespective
of their caste, creed, sex, the language they spoke, race
or culture. To prevent the majority from exerting their will
unreasonably on unwilling minorities the Constitution, in
addition to ensuring basic rights, provided them with the
opportunity to preserve their culture, religion and
language. To ensure ‘actual’ equality among the
‘unequals’ special rights were included in the
Constitution for the minorities by giving them the right to
establish educational institutions and guaranteeing to
them autonomy in matters of administration of these
institutions.

Predominantly due to the existence of constitutional

safeguards preserving the language, religion and culture

8 Rochana Bajpai, Constituent Assembly Debates and Minority Rights,

Vol. 35, Economic and Political Weekly, pp.1837-1845 (2000).
Bharati Law Review, Jan.-Mar., 2014 214

of the minorities, the ideals of pluralism and secularism

have proved to be flexible in India despite attacks from
the majority. The Constitution of India confers various
rights on the minorities-Articles 15, 16, 25, 26, 27, 28,
29 and 30. Article 15 provides that the State should not
discriminate on grounds of religion, race, caste, sex or
place of birth against any citizen. Article 16 states that no
citizen shall be denied public employment on the ground
of religion, race, caste, sex, descent, place of birth or
residence. In the interest of the minorities, however,
Article 16(4) allows the State to take special measures for
the backward class citizens in government positions, in
case they are not adequately represented. Article 25
grants every individual the freedom of conscience and the
right to profess practice and propagate freely his\her
religion. However, this right is not absolute. The freedom
to manage one’s own religious affairs is provided by
Article 26. This Article confers the right to every religious
denomination to exercise its own rights. This right has to
be exercised in a manner that conforms to morality,
public order and health. Article 26 is complementary to
Article 25. Further, Article 27 specifies that no person
shall be compelled to pay any taxes, the proceeds of
which are specifically allocated for the payment of
expenses for the promotion and maintenance of any
particular religion or religious denomination. Article 28(1)
prohibits any educational institution, which is wholly
maintained out of State funds, to provide religious
instruction on account of India being a secular state.9

A. Educational Rights

Article 29 and 30 confer cultural and educational rights

on the minorities. Article 29(1) grants the right to any
group of the citizens residing in India having a distinct
language, script or culture of its own, to preserve the
same. Article 29(1) essentially refers to sections of
citizens who have a distinct language, script or culture.
The link that runs through Article 29(1) is language,
script or culture, and not religion. Whether they belong to
a minority recognised by the Government or not, Article
29(1) gives the right to all sections of citizens, to preserve
their language, script or culture. In the exercise of this

9 Manoj Kumar Sinha, Minority Rights: A Case Study of India, 12

International Journal on Minority and Group Rights 355-374 (2005).
Bharati Law Review, Jan.-Mar., 2014 215

right to preserve their culture or language that section of

the society can set up educational institutions. This right
is associated with the right conferred by Article 30.
However, the right under Article 30 is not absolute.
Article 29(2 lays down that in case an educational
institution is maintained by the State or receives aid, no
citizen shall be denied admission on the grounds only of
religion, race, caste, or language.

B. Effect of Governmental Aid on Minority Rights

Article 29(2) holds that no citizen shall be denied

admission on grounds only of religion, race, caste or
language to any educational institution maintained by
the State or that receives aid out of State funds. On the
other hand Article 30(1) guarantees all minorities,
whether linguistic or religious, the right to establish and
administer educational institutions of their choice. The
nature and scope of Government control over minority
educational institutions in the context of the non-
discrimination principle under Article 29(2) has been
interpreted and laid out in the case of Unnikrishnan v.
State of Andhra Pradesh10. According to the majority
opinion in the T.M.A. Pai case an aided minority
educational institution would be required to admit a
reasonable extent of non-minority students so that the
rights under Article 30(1) would be substantially
conferred while the citizens' rights under Article 29(2)
would not be violated. However, the Court left it to the
State to determine the percentage of non-minority
students to be admitted in various minority institutions.
The minority right to establish and administer
educational institutions is currently governed by the law
laid down in the case of St. Stephen’s College v. University
of Delhi11. This judgment granted complete freedom to
minority educational institutions as long as 50 per cent
of the available seats were given to non-minority
students. However, in the T.M.A. Pai case it was found
that fixing the percentage of seats to be given to non-
minority students is not desirable in practice. The non-
minority component should be reasonable, changing
according to the size of the minority, the type of
institution and the varying educational needs of the

10 (1993) 1 SCC 645.

11 1992 (1) SCC 588.
Bharati Law Review, Jan.-Mar., 2014 216

minorities. It was further held in this case that the State

could lay down reasonable conditions to be fulfilled by
the institution when it was applying for governmental aid,
however, it could not force them to give up their rights
guaranteed under Article 30. The rights of the minority
educational institutions in general remain unchanged
despite receiving grants-in-aid.

Judges in general opine that any regulation framed in

national interest must necessarily apply to all
educational institutions, whether run by the majority or
the minority. The right conferred by Article 30(1) cannot
override national interest or prevent the government from
framing regulations for that purpose; but this would
mean that minorities cannot have any special
fundamental rights, which are not available to the
majority community. A major flaw in the reasoning of the
decision is the body responsible for the determining
whether a group is a linguistic or religious minority.
Majority opinion held that the deciding body should be
the State. Minority institutions, which administer
educational institutions in the spirit of service alone,
have nothing to lose from the judgment in case they do
not receive aid from the government and are totally free
from any State control.

C. National Commission for Minority Educational

Institutions Act, 2004

In order to enforce this right the National Commission for

Minority Educational Institutions Act has been enacted to
safeguard minority interests. Section 2(g) of the Act
defines a minority educational institution as a college or
institution (other than a University) established or
maintained by a person or group of persons from
amongst the minorities. In S.P. Mittal v. Union of India12
the Supreme Court has held that in order to claim the
benefit of Article 30(1) the community must show

1. That it is a linguistic/religious minority.

2. That the institution was established by it.

12 AIR 1983 SC 1.
Bharati Law Review, Jan.-Mar., 2014 217

Unless and until these two conditions are fulfilled, the

institution cannot claim the guaranteed rights to
administer it. The proof of the fact of the establishment of
the institution is a precedent for claiming the right to
administer the institution. The onus of proof lies on one
who asserts that an institution is a minority institution.
Whether the Government declares it or not, a minority
educational institution continues to be one. When the
Government makes such a declaration regarding an
educational institution, it merely recognizes that the
institution was established and is being administered by
a minority community. It is merely an open acceptance of
the legal character of the institution which must have
existed antecedent to such declaration.

The right enshrined in Article 30(1) of the Constitution

is meant to benefit the minority by protecting and
promoting its interests. However, there should be a nexus
between the institution and the particular minority to
which it claims to belong. The right claimed by a minority
community to administer the educational institutions
depends on the proof of establishment of the institution.
In P.A. Inamdar v. State of Maharashtra13 it has been held
that the minority institutions are free to admit students
of their own choice including students of non-minority
community and also members of their own community
from other States, both to a limited extent only and not in
a manner and to such an extent that their minority
educational status is lost. If they do so, they lose the
protection of Article 30(1) of the Constitution”.

The objects sought to be achieved by Article 30(1) are:

1. to enable the minorities to conserve their religion

and language, and
2. to give a thorough good general education to the
children belonging to such minority.

So long as the institution retains its minority character

by achieving and continuing to achieve the two
objectives, the institution would remain a minority
institution. The State Government can prescribe
percentage of the minority community to be admitted in a

13 (2005) 6 SCC 537.

Bharati Law Review, Jan.-Mar., 2014 218

minority educational institution receiving financial aid

from the Government, taking into account the population
and educational needs of the area in which the
institution is located. There cannot be a common
regulation in respect of types of educational institutions
in different levels of education, for the entire State, fixing
the uniform ceiling in the matter of admission of students
in minority educational institutions. A balance has to be
kept between preserving the right of the minorities to
admit students of their own community and that of
admitting a few outsiders in their institutions subject to
the condition that the manner and number of such
admissions is not violative of the minority character of
the institution. The minority educational institution is
primarily for the benefit of the concerned minority.
Hence, the sprinkling of the non-minority students in the
student population of the minority educational institution
is expected to be peripheral either for generating
additional financial source or for cultural courtesy. Thus,
a substantive section of student population in minority
educational institution should belong to the minority.

The States Reorganization Commission that was set up

in the early 1950's to rationalize the administrative
structure of the country came to the conclusion that
languages of minority groups were commonly not among
the languages mentioned in the Eighth Schedule of the
Constitution. Therefore, it recommended certain
measures to be followed to promote the cause of
linguistic minorities. Consequently, Articles 350A and
350B were added to the Constitution. Article 350A
discusses the duty of the State to provide adequate
facilities for instruction in schools at the primary stage in
their mother tongue to children belonging to linguistic
minorities. Further, Article 350B makes provisions for
the appointment of a Commissioner for Linguistic
Minorities whose sole responsibility would be to protect
the educational and linguistic rights of minorities.14

14 Kamal K Sridhar, Language in Education: Minorities and

Multilingualism in India, Vol. 42, International Review of Education,
pp.327-347.
Bharati Law Review, Jan.-Mar., 2014 219

D. Relation between Articles 29 And 30

Close inspection reveals a deep-rooted difference between

the two Articles. On one hand Article 30 provides the
exclusive right to establish and administer educational
institutions to the linguistic and religious minorities, and
on the other hand Article 29(2) provides the right to
admission in government administered and aided
educational institutions to the citizens of India. In the
case of St. Xavier’s College v. State of Gujarat15 a bench of
nine judges examined the interrelationship between
Articles 29 and 30 and held that Articles 29(1) and 30(1)
dealt with distinct matters and may be considered
supplementary to each other in relation to certain
cultural rights of minorities.

The case of St Stephen’s College16 decided by a bench of

five judges of the Supreme Court is a landmark case
while examining the relation between Article 29(2) and
Article 30(1). It was opined that minority aided
educational institutions are entitled to prefer their
community candidates to maintain the minority
character of their institutions in conformity with the
university standard. The State may regulate the intake in
this category with due regard to the need of the
community in the area which the institution is intended
to serve not allowing the intake to exceed 50 per cent of
the annual admission. The admission of other community
candidates shall be done purely on the basis of their
merit and capabilities. The ratio outlined in the St
Stephen’s College case is correct but rigid percentage
cannot be stipulated. The authorities can stipulate
reasonable percentage in accordance with the type of
institution, population and educational needs of the
minorities.

Conclusion

The constituent assembly debates show a tolerant rather

than an encouraging approach of the state towards the
minorities. This further explains the stand of the
Constitution-makers to make provisions for minorities
who want to seek special rights by asserting their

15 AIR 1974 SC 1389.

16 AIR 1992 SC 1654.
Bharati Law Review, Jan.-Mar., 2014 220

demands instead of giving everything on a platter. The

partition of the nation and many other factors had
caused the Constitution-makers to become cautious
when it came to minorities demanding rights to prevent
any hindrance to the process of development in the
nation. This was one of the main reasons for imposing
restrictions on political rights of the minorities and
confining them to social, educational and cultural
spheres. The Article itself has been kept a little vague to
allow periodical interpretation of the rights by the Indian
courts, keeping in consideration the historical
requirements of the nation and minority-majority
relations. In case of interpretation of Article 30 by the
courts, the judgments vary from one case to another,
hence, reflecting the personal biases of the judges. This
results in making the interpretation of this Article very
subjective and vague. The interpretation of this Article
further reflects a trend towards gradually reducing the
scope of the Article by meting out liberal treatment to
linguistic minorities over religious minorities. This has
caused many minority communities to be deprived of
what is their due. In addition to this, the conjunctive use
of Articles 29 and 30 has caused many issues like quote-
fixing in seats. Although it is accepted that admission
should not be denied to any individual who meets the
eligibility criteria set by the institution, the rigid fixing of
a ratio affects the enrolment of the members from the
minority community in the institution. This provision
works to the disadvantage of the minorities who come
from a backward economic and educational background
and may not have the resources to buy a seat in a
general institution or the required merit. In the T.M.A. Pai
case, although, the ratio of 50:50 has been rejected, the
concerned authorities have been given power to adapt the
ratio with the educational need of the area. Such a
situation could result in creating friction between the
government and the minorities. The rising issues in case
of minority educational institutions are those of
procuring and proving one’s minority status which is not
always easily granted, government aid compelling such
institutions to abide by demands of the State (limiting
their autonomy).


Bharati Law Review, Jan.-Mar., 2014 221

CONSTITUIONAL PRIVILEGES TO THE MINORITIES IN

RESPECT TO THE EDUCATION: A REFLECTION ON
ARTICLE 30 OF THE CONSTITUTION OF INDIA

Ms. Masumi Nanavaty*

In this paper Article 30 will be looked upon mainly,

whereas there are many other Fundamental Rights
(Article 15 to17, and 25 to 30) and Directive Principles of
State Policy (Article 330 to 339 and 350) are there for the
benefits of the minorities. For an easy reference the
Article 30 is stated below:

Right of Minorities to Establish and Administer

Educational Institutions

(1) All minorities, whether based on religion or

language, shall have the right to establish and
administer educational institutions of their own
choice.
[(1A) In making any law providing for the
compulsory acquisition of any property of an
educational institution established and
administered by a minority referred to in clause
(1), the State shall ensure that the amount fixed
by or determined under such law for the
acquisition of such property is such as would not
restrict or abrogate the right guaranteed under
that clause.]

(2) The State shall not, in granting aid to the

educational institutions, discriminate against any
educational institution on the ground that it is
under the management of a minority, whether
based on religion or language.

Article 30 guarantees the right of minorities to establish

and administer educational institutions. It does not

* Student, 2nd year, Institute of Law, Nirma University, Ahmedabad.

Bharati Law Review, Jan.-Mar., 2014 222

expressly refer to citizenship as a qualification for the

members of the minorities.1

Whereas, Clause (1) of Article 30 provides the right to

all the minorities to establish and administer educational
institutions of their choice. It is essential that the rights
available to minorities are protected in regard to
institutions established and administered by them.
Accordingly, institutions declared by the State to be
minority institutions under cl. (1) of Article 30 are
omitted.2 The object of Article 30(1) is to give the
minorities "a sense of security and a feeling of confidence"
not merely by guaranteeing the right to profess, practice
and propagate religion to religious minorities and the
right to conserve their language, script and culture, but
also to enable all the minorities, religious or linguistic, to
establish and administer educational institutions of their
choice.3 4

Whereas, Article 30(2) mandates that in granting aid to

educational institutions, the State shall not discriminate
against any educational on the ground that it is under
the management of a minority, whether based on religion
or language. Minority institutions are not to be treated
differently while giving financial assistance. Receipt of aid
by a minority educational institution does not impair its
right under Article 30(1)5 6

The expression "educational institutions" means

institutions that impart education, including education at
all levels from the primary school level up to the
postgraduate level as also professional education.7

1 Right Rev. Bishop S.K. Patro v. State of Bihar, (1969)1 S.C.C. 363:
AIR 1970 S.C. 259.
2 Ashok Kumar Thakur v. Union of India (2008)6 SCC 1, p. 541.
3 A.P. Christians Medical Educational Society v. Government of A.P.
(1986)2 S.C.C. 667: AIR 1986 S.C. 1490.
4 Prof. M.P. JAIN, Indian Constitutional Law 1351 (Justice Ruma Pal,
Samaraditya Pal edn., LexisNexis Butterworths Wadhwa, Nagpur
2012) (1962).
5 Professor M.P. JAIN, Indian Constitutional Law 1351 (Justice Ruma
Pal, Samaraditya Pal edn., LexisNexis Butterworths Wadhwa,
Nagpur 2012) (1962).
6 V.N. Shuklas, Constitution of India 261 (Mahendra P. Singh, 11th
edn., Eastern Book Company, Lucknow 2012) (1950).
7 Durga Das Basu, Indian Constitutional Law 327 (3rd edn., Kamal
Law House, Kolkata 2011) (2007).
Bharati Law Review, Jan.-Mar., 2014 223

The concern behind the solemn guarantee in all the cases

was to try and convince the minorities that their interests
shall and would be protected under the Indian
Constitution after the need for the same was felt when
the minority- majority context was heightened during the
British Period. This minority- majority rule had estranged
the minorities to a very large extent. And because of this
divide and rule policy the constitutional rights to a
minority person were guaranteed and was considered as
a motivating force to compel away fear and also to
convince the minorities that their rights would be
considered in the Independent India. But, because of the
Partition of India- Pakistan and because of the
assassination of Mahatma Gandhi the rights were then
confined to the minorities to socio-cultural field like
education.8

A few relevant interpretations defining the

interpretations of the cases of both High Court and
Supreme Court on the Article 30 are discussed in the
subsequent research paper.

Who is a Minority?

The term "minority" cannot be just explained simply by

interpreting the words in its factual sense. In some
societies, it is based on the numerical ratio to the
population as a whole at a particular place. The minority
is thought of as an opposite to the majority. The
international law though uses the term "minority" in a
very restricted sense. The origin of the minority group
may be possible in any of the following manners:9

1. It may formerly have constituted an

independent state with its own tribal
organization;
2. It may formerly have been part of a State living
under its own territory, which was later
segregated from this jurisdiction and annexed to
another State; or

8 Ranu Jain, Minority Rights In Education: Reflections On Article 30

2430-2437 (ECONOMIC AND POLITICAL WEEKLY, Vol. 40, No. 24).
9 Dr. Satish Chandra, Minorities In National And International Laws
11 (Deep & Deep Publications, New Delhi) (1985).
Bharati Law Review, Jan.-Mar., 2014 224

3. It might have been, or yet to be, a regional

scattered group which although was bound to
the predominant group by certain feelings of
solidarity, has not reached even a minimum
degree of real assimilation with the predominant
group.

To identify the minority group, five distinctive features

are as under:10

1. A minority group is a subordinate social group.

Its members suffer disadvantages resulting from
prejudice and discrimination. These may include
segregation and persecution.
2. The members of a minority group have their own
physic, culture, dialect etc. which the dominant
group holds in low esteem. The group usually
has distinguished characteristics.
3. The members of a minority group identify
themselves as a part of the group. There is an in-
group feeling of loyalty.
4. Membership in a minority group is usually not
voluntary. It is by birth.
5. Members of a minority group have strong bounds
of brotherhood and generally believe in
endogamy.

Article 30(1) gives the linguistic or religious minorities

the following two rights11:

1. The right to establish, and

2. The right to administer educational institutions of
their choice.

As regards the indicia to be prescribed for grant of

minority status certificate, a reference to Section 2(g) of
the National Commission for Minority Educational
Institution Act, 2004, has become inevitable as it defines

10 Dr. Satish Chandra, Minorities In National And International Laws

11 (Deep & Deep Publications, New Delhi) (1985).
11 Prof. M.P. JAIN, Indian Constitutional Law 1351 (Justice Ruma Pal,
Samaraditya Pal edn., LexisNexis Butterworths Wadhwa, Nagpur
2012) (1962).
Bharati Law Review, Jan.-Mar., 2014 225

a Minority Educational Institution. Section 2(g) is as

under:12
“Minority Educational Institution” means a college or
institution (other than a University) established or
maintained by a person or group of persons from
amongst the minorities.”

Sec. 2(f) of the Central Educational Institutions

(Reservation in Admission) Act, 2006, defines a minority
educational institution as under: “Minority Educational
Institution” means an institution established and
administered by the minorities under clause (1) of article
30 of the Constitution and so declared by an Act of
Parliament or by the Central Government or declared as a
minority educational institution under the National
Commission for Minority Educational Institutions Act,
2004.

The Supreme Court has pointed out in Ahmedabad St.

Xavier's College v. State of Gujarat,13 that the spirit
behind Article 30(1) is the conscience of the 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 men and women of the country. The
minorities have been given protection under Article 30 in
order to preserve and strengthen the integrity and unity
of the country. The sphere of general secular education
will develop the commonness of boys and girls of India.
The minorities will feel isolated and separate if they are
not given the protection of Article 30.14

The Constitution uses the term "minority" even though

they have not defined it anywhere. In In Re: The Kerala
Education Bill15, the Supreme Court opined that while it
is easy to say that minority means a community which is
numerically less that 50 per cent, the most important

12 Government of India National Commission for Minority Educational

Institutions, Guidelines for determination of minority status,
recognition, affiliation and related matters in respect of minority
educational institutions under the Constitution of India, 02 – 03.
13 AIR 1974 S.C. 1389: (1974)1 S.C.C. 717.
14 V.N. Shukla's, Constitution Of India 265 (Mahendra P. Singh, 11th
edn., Eastern Book Company, Lucknow 2012) (1950).
15 AIR 1958 SC 956.
Bharati Law Review, Jan.-Mar., 2014 226

question is 50 per cent of what? Should it be of the entire

population of India, or of a State, or a part thereof? Is it
possible that the community may be in majority in a
State but in a minority in the whole of India. A
community in a part of a State and may thus be in
majority there, though it may be in minority in the State
as a whole. The Supreme Court did not however decide
this point definitively. However, it had come to be
accepted that 'minority' is to be determined only in
relation to the particular legislation which is being
challenged.16

Thus, if a State law extending to the whole of a State is

in question, the minority must be determined with
reference to the entire State population. In such a case,
any community, linguistic or religious, which is
numerically less than 50 per cent of the entire State
population, will be regarded as a minority for the
purposes of Article 30(1).17

The same ruling was then reiterated by the Supreme

Court in the D.A.V. College, Jullundur v. State of Punjab18
and ruled that the minority should be a minority in
relation to the particular legislation which is sought to be
impugned. If it is a State law, the minorities have to be
determined in relation to the State population.

The Supreme Court had ruled in S.K. Patro v. State of

Bihar19, that a minority claiming privilege under Article
30 should be a minority of persons residing in India.
Foreigners not residing in India do not fall within the
scope of Article 30. Residents in India forming the "well
defined religious or linguistic minority" fall under the
protection of Article 30.20

16 Prof. M.P. JAIN, Indian Constitutional Law 1351 (Justice Ruma Pal,
Samaraditya Pal edn., LexisNexis Butterworths Wadhwa, Nagpur
2012) (1962).
17 Government of India National Commission for Minority Educational
Institutions, Guidelines for determination of minority status,
recognition, affiliation and related matters in respect of minority
educational institutions under the Constitution of India, 10–11.
18 AIR 1971 S.C. 1737, 1742.
19 AIR 1970 S.C. 259.
20 DURGA DAS BASU, INDIAN CONSTITUTIONAL LAW 329 (3rd edn.,
Kamal Law House, Kolkata 2011) (2007).
Bharati Law Review, Jan.-Mar., 2014 227

In Azeez Basha v. Union of India21, a Constitutional

Bench of the Supreme Court has held that the expression
“establish and administer” used in Article 30(1) was to be
read conjunctively that is to say, two requirements have
to be fulfilled under Article 30(1):22

a) That the institution was established by the

community and,
b) Its administration was vested in the community.

The court in T.M.A. Pai Foundation v. State of

Karnataka23 was unanimously of the view that the right
to establish and administer an institution in Article 30(1)
of the Constitution, comprises the rights24:

1. To admit students;
2. To set up a reasonable fee structure;
3. To constitute a governing body;
4. To appoint staff;
5. To take action if there is any recklessness on the
part of the employees.

In S.P. Mittal v. Union of India25, the Supreme Court has

held that in order to claim the benefit of article 30(1), the
community must show;

a) That it is a religious/linguistic minority,

b) That the institution was established by it.

Without specifying these two conditions it cannot claim

the guaranteed rights to administer the educational
institution.26

Article 30(1) postulates that the religious community

will have the right to establish and administer
educational institutions of their choice implicating that
where a religious minority establishes an educational
institution, it will have the right to administer that. The

21 AIR 1968 S.C. 662.

22 Ibid 16.
23 AIR 2003 S.C. 355.
24 DURGA DAS BASU, INDIAN CONSTITUTIONAL LAW 335 (3rd edn.,
Kamal Law House, Kolkata 2011) (2007).
25 AIR 1983 S.C. 1.
26 DURGA DAS BASU, INDIAN CONSTITUTIONAL LAW 327 (3rd edn.,
Kamal Law House, Kolkata 2011) (2007).
Bharati Law Review, Jan.-Mar., 2014 228

same right has been given to the minority, so that it can

mould the institution as it may think fit, and also in the
accordance with its ideas of how the interest of the
community and the institution in particular will be best
served.27

It has been held by a Division Bench of the Madras High

Court in T.K.V.T.S.S. Medical Educational and Charitable
Trust v. State of Tamil Nadu28 that “once it is established
that the institution has been established by a linguistic
minority, and is administered by that minority, that
would be sufficient for claiming the fundamental right
guaranteed under Article 30(1) of the Constitution.” The
same principle applies to religious minority also.29

A minority educational institution continues to be so

whether the Government declares it as such or not. When
the Government declares an educational institution as a
minority institution, it merely recognizes a factual
position that the institution was established and is being
administered by a minority community. The declaration
is merely an open acceptance of the legal character of the
institution which must necessarily have existed
antecedent to such declaration.30

A Society or Trust consisting of members of a minority

community, or even a single member of a minority
community, may establish an institution. The position
has been clarified by the Supreme Court in State of
Kerala v. Mother Provincial31. Where the Supreme Court
had observed that:
“Establishment means bringing into being of an
institution and it must be by a minority community.
It matters not if a single philanthropic individual
with his own means, institution or the community at
large founds the institution or the community at
large contributes the funds. The position in law is

27 Manager, St. thomas U.P. School, Kerala v. Commr. and Secy. to

General Education Dept., AIR 2002 SC 756.
28 AIR 2002 Madras 42.
29 Government of India National Commission for Minority Educational
Institutions, Guidelines for determination of minority status,
recognition, affiliation and related matters in respect of minority
educational institutions under the Constitution of India, 10–11.
30 N. Ammad v. Emjay High School, (1998) 6 SCC 674.
31 AIR 1970 SC 2079.
Bharati Law Review, Jan.-Mar., 2014 229

the same and the intention in either case must be to

found an institution for the benefit of a minority
community by a member of that community. It is
equally irrelevant to this right that in addition to the
minority community, others from other minority
communities or even from the majority community
can take advantage of these institutions.”

A minority institution may impart general secular

education; it need no confine itself only to the teaching or
minority language, culture or religion. But to be treated
as a minority institution, it must be shown that it serves
or promotes in some manner the interests of the minority
community by promoting its religious tenets, philosophy,
culture, language or literature.32

In Andhra Pradesh Christian Medical Association v.

Government of Andhra Pradesh33, the Supreme Court
emphasized that the object of Article 30(1) is not to allow
bogies to be raised by pretenders. The institution must be
an educational institution of minority in truth and reality
and not mere masked phantom. The Supreme Court had
also asserted that the Government, the University and
ultimately the court can go behind the claim that the
institution in question is a minority institution and to
"investigate and satisfy itself whether the claim is well -
founded or ill - founded". The Government, the University
and ultimately the court "have the undoubted right to
pierce the minority veil" and "discover whether there is
lurking behind it no minority at all and in any case no
minority institution."

It has been held in P.A. Inamdar v. State of

Maharashtra34 that “the minority institutions are free to
admit students of their own choice including students of
non-minority community and also members of their own
community from other States, both to a limited extent
only and not in a manner and to such an extent that
their minority educational status is lost. If they do so,
they lose the protection of Article 30(1) of the
Constitution”.

32 V.N. SHUKLA's, CONSTITUTION OF INDIA 266 (Mahendra P. Singh,

11th edn., Eastern Book Company, Lucknow 2012) (1950).
33 AIR 1986 SC 1490.
34 (2005) 6 SCC 537.
Bharati Law Review, Jan.-Mar., 2014 230

Under Article 30(1), the requirements of establishment

and management have to be read conjunctively. The twin
requirements have to be established and in the absence
of one, an institution cannot be granted minority status.
Thus the Supreme Court has tried to restrict the misuse
of the benefits granted to the minorities.35

In St. Stephe's College v. State of Delhi36, the Court

observed: " Every educational institution irrespective of
community to which it belongs is a 'melting pot' in our
national life" and that it is essential that there should be
a "proper mix of students of different communities in all
educational institutions." this only meant that a minority
institution cannot refuse admission to the students of
other minority and majority communities.

The Supreme Court through the P.A. Inamdar's37 case

held that the twin objects sought to be achieved by
Article 30(1) in the interest of minorities are:

• To enable such to conserve its religion and

language, and
• To give a thorough good general education to the
children belonging to such minority.

So long as the institution retains its minority character

by achieving and continuing to achieve the aforesaid two
objectives, the institution would remain a minority
institution.

The crucial phrase of Article 30(1) is 'of their choice' and

their 'choice' cannot be limited merely to institutions
seeking to conserve languages, scripts or culture of the
minorities. Thus, a minority whether based on religion or
language has a right to establish institutions of a general
education. Nor, is the right of the minority taken away if
in an educational institution established by it, students
of other communities are also admitted.

It was observed in P.A. Inamdar's38 case that “it

necessarily follows from the law laid down in T.M.A. Pai

35 DURGA DAS BASU, INDIAN CONSTITUTIONAL LAW 329 (3rd edn.,

Kamal Law House, Kolkata 2011) (2007).
36 AIR 1992 SC 1630.
37 P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537.
Bharati Law Review, Jan.-Mar., 2014 231

Foundation that to establish a minority institution, the

institution must primarily cater to the requirements of
the State else its character of the minority institution is
lost. However, to borrow the words of Chief Justice S.R.
Dass in In Re: The Kerala Education Bill, “a sprinkling of
that majority from the other States on the same footing
as a sprinkling of non minority students would be
permissible and would not deprive the institution of its
essential character of being a minority institution,
determined by reference to that State as a unit”.

On reading Article 30(1) with several landmark

judgments and some authoritative pronouncements, the
definition of Minority Educational Institution in Section
2(g) of the National Commission for Minority Educational
Institution Act, 2004 and Section 2(f) of the Central
Educational Institutions (Reservation in Admission Act),
2006 the following facts should be proved for grant of a
minority status to an educational institution on regular
basis:39

1. That the educational institution was established

by member(s) of the religious minority
community;
2. That the educational institution was established
for the benefit of the minority community;
3. That the educational institution is being
administered by the minority community.

The aforesaid facts may be proved either by direct or

circumstantial evidence. There must be some positive
index to enable the educational institution to be
identified with religious minorities. There should be
nexus between the means employed and the ends
desired.40 If the minority educational institution
concerned is being run by a trust or a registered society,
then majority of the trustees of the trust or members of
the society, as the case may be, must be from the

38 Ibid 37.
39 Government of India National Commission for Minority Educational
Institutions, Guidelines for determination of minority status,
recognition, affiliation and related matters in respect of minority
educational institutions under the Constitution of India, 09 – 10.
40 PROFESSOR M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1346
(JUSTICE RUMA PAL, SAMARADITYA PAL edn., LexisNexis
Butterworths Wadhwa, Nagpur 2012) (1962).
Bharati Law Review, Jan.-Mar., 2014 232

minority community and the trust deed or Articles of

Association or any other document duly executed in this
regard must reflect the objective of sub-serving the
interest of the minority community. In the absence of any
documentary evidence some clear or cogent evidence
must be produced to prove the aforesaid facts. There is
no bar to the members of other communities to extend
their help to the member of a minority community to
establish an educational institution of its choice.41

According to the T.K.V.T.S.S. Medical Educational and

Charitable Trust v. State of Tamil Nadu42, the Madras
Court had held that, "a minority status cannot be
conferred on a minority educational institution for
particular period to be renewed periodically like a driving
license. It is not open for the State Government to review
its earlier order conferring minority status on a minority
educational institution unless it is shown that the
institution concerned has suppressed any material fact
while passing the order of conferral of minority status or
there is fundamental change of circumstances warranting
cancellation of the earlier order."43

If a minority status certificate has been obtained by

practicing fraud or if there is any suppression of any
material fact or any fundamental change of
circumstances warranting cancellation of the earlier
order, the authority concerned would be within its
powers to cancel the minority status certificate after
affording an opportunity of being heard to the
management of the institution concerned, in conformity
with the principles of natural justice.

It is also relevant to note that the minority status

certificate granted by the National Commission or by any
authority can be cancelled under Section 12C of the
National Commission for the Minority Educational Act,
2004 on violation of any of the conditions enumerated
therein.

41 S.K. Patro v. State of Bihar AIR 1970 SC 259.

42 AIR 2002 Madras 42.
43 Government of India National Commission for Minority Educational
Institutions, Guidelines for determination of minority status,
recognition, affiliation and related matters in respect of minority
educational institutions under the Constitution of India, 10 - 11.
Bharati Law Review, Jan.-Mar., 2014 233

Section 12C of the National Commission Minority

Educational Act, 2004 is as under

12C. Power to cancel- The Commission may, after giving

a reasonable opportunity of being heard to a Minority
Educational Institution to which minority status has
been granted by an authority or Commission, as the case
may be, cancel such status under the following
circumstances, namely: -

a) if the constitution, aims and objects of the

educational institution, which has enabled it to
obtain minority status has subsequently been
amended in such a way that it no longer reflects
the purpose, or character of a Minority
Educational Institution;

b) if, on verification of the records during the

inspection or investigation, it is found that the
Minority Educational Institution has failed to
admit students belonging to the minority
community in the institution as per rules and
prescribed percentage governing admissions
during any academic year.

Regulation of Minority Educational Institution

The Fundamental Freedom under Article 30(1) is prima

facie absolute in nature as it is not made subject to any
reasonable restrictions. This means that all minorities,
linguistic or religious, have by Article 30(1) the right to
establish and administer the educational institutions of
their choice and "any law or executive direction which
seeks to infringe the substance of that right under Article
30(1) would to that extent be void." The same does not
mean that the state cannot impose any regulations on
the minority institutions.

In In Re: The Kerala Education Bill44, Regulations which

do not affect the substance of the guaranteed rights, but
ensure the excellence of the institution and its proper
functioning in matters educational, are permissible.

44 AIR 1958 SC 956, 1053.

Bharati Law Review, Jan.-Mar., 2014 234

Regulations could be made to maintain educational

character and standard of institution.

By its interpretative process over the years, the

Supreme Court has given a wide sweep to the protection
conferred on the minority educational institutions under
Article 30(1) as well as permitted some regulation thereof
by the concerned government in the interest of the well
being of the institution concerned.45

From this point of view of regulation, minority

educational institutions can be placed into two
categories46:

1. Institutions receiving aid from the State;

2. Institutions not getting aid from the State, each
category being further sub-divided according to
the nature of the educational institution, namely
schools, undergraduate colleges, post-graduate
colleges and also professional colleges.

Grants and Recognition from the Government

The situation in today's era is such that an educational

institution cannot possibly hope to survive, and function
effectively, without government grants, nor can it confer
degrees without affiliation to the University. Without
recognition, a minority run institution cannot fulfill its
role effectively and the right conferred by Article 30(1) is
diluted. The right and real exercise of Article 30(1) is to
establish effective educational institutions which may
sub serve the real needs of the minorities and the
scholars who resort to them.

Article 30(2) debars the state from discriminating

against minority institutions in the matter of giving
grants.

In Frank Anthony47, the Court had explained thus: "The

extent of the right under Article 30(1) is to be determined,

45 DURGA DAS BASU, INDIAN CONSTITUTIONAL LAW 329 (3rd edn.,

Kamal Law House, Kolkata 2011) (2007).
46 PROFESSOR M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1351,
(JUSTICE RUMA PAL, SAMARADITYA PAL edn., LexisNexis
Butterworths Wadhwa, Nagpur 2012) (1962).
Bharati Law Review, Jan.-Mar., 2014 235

not with reference to nay concept of state necessity and

general societal interest but with reference to the
educational institutions themselves, that is, with
reference to the goal of making the institutions effective
vehicles of education for the minority community or other
persons who resort to them....The main question in each
case is whether the particular measure is, in the ultimate
analysis, designed to achieve such goal, without of course
nullifying any part of the right of the management in
substantial measure."48

The State of Karnataka49 had denied recognition to a

minority teachers' training college on the basis that the
State had already had other such institutions and
therefore the policy of the government was to not permit
the starting of any more such minority institutions.50 The
High Court held the denial of recognition not valid.
Without specifically deciding the question whether or not
the State can have such a policy, the court concluded
that the State had no such firm policy as a matter of fact
as it had given permission to another similar institution
which applied later than the institution in question.

The same High Court51 then held that a minority

institution need not take prior permission of the
government to be started. Recognition must be given to a
minority institution if all the conditions are fulfilled and
are satisfied. Recognition cannot be denied on the ground
that because of the existence of one school in locality
there is no need for another school. Such a factor and the
policy is irrelevant and invalid so far as a minority
institution is in question.

The Supreme Court had observed when the question of

government aid in minority institutions, in St. Stephen's

47 Frank Anthony Public Schools Employees' Assn. v. Union of India

AIR 1987 SC 311.
48 PROFESSOR M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1352,
(JUSTICE RUMA PAL, SAMARADITYA PAL edn., LexisNexis
Butterworths Wadhwa, Nagpur 2012 (1962).
49 Socio Literati Advancement Society, Bangalore v. State of Karnataka,
AIR 1979 Kant 217.
50 PROFESSOR M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1352,
(JUSTICE RUMA PAL, SAMARADITYA PAL edn., LexisNexis
Butterworths Wadhwa, Nagpur 2012 (1962).
51 Deccan Model Education Society v. State of Karnataka, AIR 1983
Kant 207.
Bharati Law Review, Jan.-Mar., 2014 236

college52: "The educational institutions are not business

homes. They do not generate wealth. They cannot survive
without public funds or private aid. It is said that there is
also restraint on collection of student’s fees. With the
same restraint on the collection of fees, the minorities
cannot be saddled with the burden of maintaining the
institutions without grant-in-aid. They do not have
economic advantage over others. It is not possible to have
educational institutions without state aid. The minorities
cannot, therefore, be asked to maintain educational
institutions on their own."

The conditions are of two types:53

1. It may relate to matters as syllabi, curricula,

courses, minimum qualification of the teachers,
age of superannuation, library, conditions which
are concerned with sanitary problems, health and
hygiene etc.
2. It may relate to the management of the
institutions.

The underlying purpose for the conditions for grants

and recognition is to promote educational standards and
uniformity and help the institutions concerned achieve
efficiency and excellence and are imposed not only in the
interest of general secular education but are also
conducive to improvement of minority institutions
themselves. Regulatory measures are necessary to
maintain the educational character and content of
minority institutions. Such conditions cannot be
regarded as violative of Article 30(1) and should,
therefore, be followed by all educational institutions.

Even the conditions for grant and recognition must

satisfy a test54:

i. These conditions must be reasonable.

52 St. Stephen's College v. University of Delhi, AIR 1992 SC 1630.

53 Government of India National Commission for Minority Educational
Institutions, Guidelines for determination of minority status,
recognition, affiliation and related matters in respect of minority
educational institutions under the Constitution of India, 26 – 27.
54 PROFESSOR M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1353,
(JUSTICE RUMA PAL, SAMARADITYA PAL edn., LexisNexis
Butterworths Wadhwa, Nagpur 2012) (1962).
Bharati Law Review, Jan.-Mar., 2014 237

ii. These are regulatory of the educational

character of the institution and are
conducive to making it an effective vehicle of
education for the minority community or
other persons who resort to it.

Affiliations and Recognition

Section 10(A) of the Act confers a right on the minority

educational institution to seek affiliation to any
university of its choice.

10A. Right of a Minority Educational Institution to

seek affiliation

1. A Minority Educational Institution may seek

affiliation to any University of its choice subject to
such affiliation being permissible within the Act
under which the said University is established.

2. Any person who is authorized in this behalf by the

Minority Educational Institution, may file an
application for affiliation under sub-section (1) to
a University in the manner prescribed by the
Statute, Ordinance, rules or regulations, of the
University: Provided that such authorized person
shall have right to know the status of such
application after the expiry of sixty days from the
date of filing of such application.”

The Supreme Court in Managing Board of the Milli

Talimi Mission Bihar and Ors. v. State of Bihar and Ors.55,
had clearly recognized that running a minority institution
is also as fundamental and important as other rights
conferred on the citizens of the country. If the State
Government declines to grant recognition or a university
refuses to grant affiliation to a minority educational
institution without just and sufficient grounds, the direct
consequence would be to destroy the very existence of the
institution itself. Thus, refusal to grant recognition or
affiliation by the statutory authorities without just and
sufficient grounds amounts to violation of the right
guaranteed under Article 30(1) of the Constitution. The

55 1984 (4) SCC 500.

Bharati Law Review, Jan.-Mar., 2014 238

right of the minorities to establish educational

institutions of their choice will be without any meaning if
affiliation or recognition is denied.

The primary purpose of affiliation is that the students

reading in the minority institutions will have
qualifications in the shape of degrees necessary for a
useful career in life. The establishment of a minority
institution is not only ineffective but also unreal unless
such institution is affiliated to a University for the
purpose of conferment of degrees on students.” It has
been held in T.M.A. Pai Foundation56 case that affiliation
and recognition has to be available to every institution
that fulfills the conditions for grant of such affiliation and
recognition.

A minority educational institution seeking recognition

or affiliation must fulfill the statutory requirements like:57

1. The academic excellence,

2. The minimum qualifications of eligibility
prescribed by the statutory authorities for Head
Master/ Principal/ teachers/ lecturers and
3. The courses of studies and curriculum.
4. It must have sufficient infrastructural and
instructional facilities as well as financial
resources for its growth.

No condition should be imposed for grant of recognition

or affiliation, which would, in truth and in effect, infringe
the right guaranteed under Article 30(1) of the
Constitution or impinge upon the minority character of
the institution concerned.

If an object surrender of the right guaranteed under

Article 30(1) is made a condition of recognition or
affiliation, the denial of recognition or affiliation would be
violative of Article 30(1).

56 Supra 18.
57 Government of India National Commission for Minority Educational
Institutions, Guidelines for determination of minority status,
recognition, affiliation and related matters in respect of minority
educational institutions under the Constitution of India, 20-21.
Bharati Law Review, Jan.-Mar., 2014 239

The right of the minorities to establish and administer

educational institutions of their choice under Article
30(1) of the Constitution is subject to the regulatory
power of the State for maintaining and facilitating the
excellence of the standard of education. Taking reference
to the same, the Supreme Court had held in P.A.
Inamdar's58 case that:
"...Subject to a reconciliation of the two objectives,
any regulation accompanying affiliation or
recognition must satisfy the triple tests: (1) the test
of reasonableness and rationality, (2) the test that
the regulation would be conducive to making the
institution an effective vehicle of education for the
minority community or other persons who resort to
it, and (3) that there is no in road into the protection
conferred by Article 30(1) of the Constitution, that is
by framing the regulation the essential character of
the institution being a minority educational
institution, is not taken away."

The right of the minorities to establish and administer

educational institutions of their own choices comprises of
the following rights:59

a) To choose the governing body in whom the

founders of the institutions have faith and
confidence to conduct and manage the affairs of
the institution.

The Supreme Court has invariably invalidated

provisions seeking to regulate the composition and
personnel of the managing bodies of minority
institutions. A provision if interfering with the minorities'
choice of the managing body for an institution has been
held to violate the Article 30(1). In the St. Xavier's College
case,60 the Court declared the provisions as non -
applicable to minority institutions because it displaced
the management and entrusted it to a different agency
because the autonomy was lost and new elements in the

58 P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537.

59 Government of India National Commission for Minority Educational
Institutions, Guidelines for determination of minority status,
recognition, affiliation and related matters in respect of minority
educational institutions under the Constitution of India, 28-29.
60 The Ahmedabad St. Xavier's College Society v. State of Gujarat, AIR
1974 SC 1389.
Bharati Law Review, Jan.-Mar., 2014 240

shape of representatives were brought in. The court

declared these provisions invalid as they took away from
the founders he right to administer their own institution.

The Calcutta High Court61 has said that the Education

board cannot, under any of the circumstances, interfere
or take - over the management of a minority school/
college by super-seeding its managing committee and
appointing an administrator to take charge of school and
also administer it.

b) To appoint teaching staff and also non - teaching

staff, and to take action if there is dereliction of
duty on the part of the employees.

The selection and appointment of teachers, and the

head of the institution, is regarded as pre-eminently the
function of the administration. The position taken by the
Supreme Court62 is that while a University can prescribe
qualifications for the academic staff, the actual selection
of teachers must remain in the hands of the
administration on the institution and nay dilution of this
right of the management infringes Article 30(2). It is the
management's right to choose the Head Master/ Principal
of a minority educational institution and cannot be
interfered with by the State.63

c) To admit the eligible students of their own choice

and to set up a reasonable fee structure.

In St. Stephen's College v. University of Delhi64

exempting St. Stephen's College from the uniform
admission procedure applicable to all affiliated and
constituent colleges of the University of Delhi at the
under-graduate level, the Court held that the admission
of students to educational institutions is also an
important aspect of the administration. The court found
that denial of this power to the college to supplement its
admission procedure by interview and to compel it to

61 Nanda Ghosh v. Guru Nanak Education Trust, AIR 1984 Cal 40.
62 Ahmedabad St. Xavier's College v. State of Gujarat, AIR 1974 SC
1389.
63 Board of Secondary Education v. Director of Public Instructions,
(1998)8 SCC 555.
64 (1992) 1 SCC 558.
Bharati Law Review, Jan.-Mar., 2014 241

make admissions exclusively on the basis of marks

obtained in the qualifying examination would be against
the rights of the minority community under Article
30(1).65

Every Institution is free to devise its own fee structure

but the same can be regulated in order to prevent
profiteering. No capitation fee can be charged directly or
indirectly or in any other form.66 Capitation fee cannot be
changed and no seat can be permitted to be appropriated
by payment of capitation fee.67 Delhi High Court had
ruled that68 under Article 30(1), the right to freely
administer educational institutions does not permit the
minorities to indulge in commercialization of education in
the garb of constitutional protection. The court has ruled
that "on the aspect of commercialization and exploitation,
minority institution would be primarily placed as other
institutions.69

Article 30(1A) became necessary because Article 31 was

being abrogated from the Constitution. The State has the
right to acquire the property belonging to a minority
institution. This provision seeks to protect the minority
rights somewhat in the regard but the actual implications
of Article 30(1A) are not clear. The Supreme Court
commented on the scope of Article 30(1A) in Society of St.
Joseph's College v. Union of India70, where the court
pointed out that Article 30(1A) had been introduced in
the Constitution because Parliament in its constituent
capacity apprehended that minority educational
institutions could be compelled to close down or curtail
their activities by the expedient of acquiring their
property and paying them inadequate amounts on
compensation.

65 V.N. SHUKLA's, CONSTITUTION OF INDIA 270 (Mahendra P. Singh,

11th edn., Eastern Book Company, Lucknow 2012) (1950).
66 DURGA DAS BASU, INDIAN CONSTITUTIONAL LAW 331 (3rd edn.,
Kamal Law House, Kolkata 2011) (2007).
67 P.A. Inamdar v. State of Maharashtra, (2005)6 SCC 537.
68 Delhi Abibhavak Mahasangh v. Union of India, AIR 1999 Del 128,
149.
69 V.N. SHUKLA's, CONSTITUTION OF INDIA 269 (Mahendra P. Singh,
11th edn., Eastern Book Company, Lucknow 2012) (1950).
70 AIR 2002 SC 195.
Bharati Law Review, Jan.-Mar., 2014 242

Conclusion

Minority educational institutions have a great role to

fulfill for the nation and minorities of the State as well.
The religious and the linguistic minorities also need to
understand that they are the only minorities who need
special protection from the majorities. These religious
and linguistic minorities should keep in mind their
special rights like their Independent State, Reasonable
Fee Structure, Government and Private aid, the loyalty
towards their own group, etc and help the nation in
servicing the real minorities like the poor people, their
children, women, the Dalits, Adivasis, women of the tribal
groups and also those who are not mentally and
physically fit, because in spite of the additional
regulations and less restrictions the minorities should
not wary about establishing aided nature of the
institutions but go and help these poorer sections of the
society.

Lastly if these minority institutions are not masked

phantoms who are lurking behind and truly want to help
the minorities, the possibilities and the potentialities of
the members of the minorities and non - minorities as
well, would also change.


Bharati Law Review, Jan.-Mar., 2014 243

HUMAN RIGHTS OF MINORITY WOMEN

Ms. Shatakshi Anand*

Conceptual Framework

The right you get by the virtue of being born as human is

called human rights. The right to breathe freely in the air
as if you are equal to everyone else is human rights. You
need no documentations and no declaration; you just
need to be human to get that right.

The concept of ‘Human Rights’ is not new, but the first

major initiative for protection of human rights at
international level was taken by the United Nations on
December 10, 1948, when the General Assembly adopted
the “Universal Declaration on Human Rights” (UDHR). It
says: ‘The General Assembly proclaims this “Universal
Declaration Of Human Rights” as a common standard of
achievement for all peoples and all nations, to the end
that every individual and every organ of society, keeping
this Declaration constantly in mind, shall strive by
teaching and education to promote respect for these
rights and freedoms and by progressive measures,
national and international, to secure their universal and
effective recognition and observance, both among the
peoples of Member States themselves and among the
peoples of territories under their jurisdiction’.

It was recognized that the dignity and equal and in-

alienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world. It
treats men and women at par and gives them equal rights
as it further says: ‘Whereas the peoples of the United
Nations have in the Charter reaffirmed their faith in
fundamental human rights, in the dignity and worth of
the human person and in the equal rights of men and
women and have determined to promote social progress
and better standards of life in larger freedom’. The
declaration was adopted by vast majority of member
states including the Islamic states except Saudi Arabia.

* Student, 3rd year, B.A. LL.B., Symbiosis Law School, Pune.

Bharati Law Review, Jan.-Mar., 2014 244

The Universal Declaration on Human Rights contains 30

Articles. Although nowhere in the declaration any
discrimination on the basis of gender has been made, the
reference of gender/ women has come in Article 2 and
Article 16.

• Article 2 says: ‘Everyone is entitled to all the

rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race,
color, sex, language, religion, political or other
opinion, national or social origin, property, birth
or other status’.
• Whereas the Article 16 gives equal status to men
and women in respect of marriage, during
marriage and at its dissolution. It says, ‘Men and
women of full age, without any limitation due to
race, nationality or religion, have the right to
marry and to found a family. They are entitled to
equal rights as to marriage, during marriage and
at its dissolution’.

As per the Declaration, everyone has the right to

freedom of opinion and expression and everyone has the
right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief,
and freedom, either alone or in community with others
and in public or private, to manifest his religion or belief
in teaching, practice, worship and observance. It further
says, everyone has the right to recognition everywhere as
a person before the law. All are equal before the law and
are entitled without any discrimination to equal
protection of the law All human beings are born free and
equal in dignity and rights. No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or
punishment. No one shall be held in slavery or servitude;
slavery and the slave trade shall be prohibited in all their
forms.

If you take out the gist of the entire declaration, it

simply means that no justification can be there for
discriminating against a person. Women, male, black,
white, disabled etc all are equal, human beings deserving
equal rights and respect like others.
Bharati Law Review, Jan.-Mar., 2014 245

Religion is the faith that makes a person believe in the

existence of a supernatural power that guides him in all
spheres of life. People lay their origin to religion. The
sense of belongings to this world is derived from the
religion you practice. Religion gives majority people an
identity. It instills an element of hope in the person, every
bad or good situation; it’s the religion that gives a person
a hope to go on. Losing a religious identity is like losing
oneself. But a major question is what if the religion and
human rights come in conflict?

Underlying the stance that the concept of human rights

is fundamentally secular and therefore outside of, and
even antithetical to, the worldwide view of religion. In the
words of A.K. Brohi, a legal scholar who served as a
federal minister in the Pakistan government,
“There is fundamental difference in the perspectives
from which Islam and the west each view the matter of
human rights. The western perspectives may by and
large be called anthroposentic in the sense that man is
regarded as constituting the measure of everything
since he is the starting point of all thinking and
actions. The perspective of Islam on the other hand is
the ocentric-god conscious. The believer has only
obligation or duties to god since he is called upon the
divine laws.1

This leaves the person in a paradoxical situation. If the

divine law is depleting a person of his human rights, then
the person feels in a fix and doesn’t know what to do. The
United Nations declarations make him feel independent
and capable to ask for his rights but the religious laws
sometimes pull them back? So is the remedy only to
shun the sense of affinity towards religion? Muslim
women in particular find themselves in a quandary when
they initiate or participate in a discussion on human
rights whether in the west or the Muslim societies. Based
on their life experience, most Muslim women who become
human rights activists or advocates feels strongly that
virtually all Muslim societies discriminate against women
from cradle to grave. This leads many of them to become
deeply alienated from Muslim culture in a number of
ways. This sense alienation often times leads to anger

1 Chatterjee,Mohini, Feminism and Women’s Human Rights, vol. 2,

Aavishkar Publisher, 2004.
Bharati Law Review, Jan.-Mar., 2014 246

and bitterness towards the patriarchal structures and

system of thought which dominates most Muslim
societies. Muslim women often find much support and
sympathy in the west so long as they are seen as rebels
and deviants within the worlds of Islam but many of
them begin to realize sooner or later that while they have
serious difficulties with Muslim culture they are also not
able to identify with the western culture. This realization
leaves them to feel-isolated and alone. Much attention
has been focused on the sorry plight of Muslim women
who are poor and oppressed but hardly any notice has
been taken of the profound tragedy and trauma suffered
by self aware Muslim women of today who are struggling
to maintain their religious identities and personal
autonomy in the face of both imperialism of western
secular culture and the intricacies of Islamic tradition
culture.2

For these women, some remedy must be searched

within Islam so that women maintain their identity yet
are treated as equals. United Nations could not be so
trapped in its secular discourse that it would persist in
its refusal to deal with the fact that for millions of people
whose life are rooted in belief rather than unbelief,
human rights become meaningful only when they are
placed within the framework of their belief-system.

Human Rights and Minority Women

The Holy Quran is supposed to be a record of the exact

words revealed by God through the Angel Gabriel to the
prophet Muhammad. It contains 114 chapters, Suras and
is prime source of every Muslim faith and practice. It
deals with all the subjects, which concerns human
beings, wisdom, doctrine, worship and law. But its basic
theme is the relationship between God and its creatures.
It provides guidelines for a just society, proper human
conduct and an equitable economic system.

Although Islam does not prohibit women from working,

but emphasizes the importance of housekeeping and
caring for the families of both parents. Many
interpretations of Islamic law hold that women may not

2 Ibid.
Bharati Law Review, Jan.-Mar., 2014 247

have prominent jobs, and thus are forbidden from

working in the government. This is an example of
violation of the principle of equality.

Men are considered superior to women. As per the Holy

Quran, men have authority over women because Allah
had made one superior to the other because they spend
their wealth to maintain them. It says, “And they (women)
have rights similar over them (husband) to what is
reasonable, but men have a degree over them.” (2:228)
Men are commanded even to beat their disobedient wives
even if he merely fears highhandedness in their wives
(quite apart from whether they actually are highhanded).
The Quran says: “Men are protectors and maintainers of
women, because Allah has made one of them to excel the
other, therefore the righteous women are devoutly
obedient. ……..As to those women whose part you see ill
conduct, admonish them, refuse to share their beds, beat
them.”(4:34). This completely justifies a clear cut
domination of the male over female subjecting her to a
inferior position. Religion authorizes a person to
command the others body mind and soul and if the
person refuses then she is an outcast from her own
religion. It is a terrible state of women.

A Muslim man inherits more than a female. The Quran

says, “Allah commands you as regards your (children’s
(inheritance) to the male, a portion equal to that of two
females: if only daughters, two or more, their share is
two-thirds of the inheritance; if only one, her share is a
half”. (4:11) That is a man shall inherit twice as much as
female. Some scholars say that men inherit more than
women because the male is the bread earner and the
women will be supported by her male relatives but there
are circumstances possible where the sister would be in
more need of finances than the wealthy brother. The very
concept of being maintained by the man depletes the
women of her autonomy and self respect. She not
considered a human of equal strata.

The Quran gives special status to men in case of

marriage. As per sura 4:3 of the Quran, a man is allowed
to become polygamous upto four wives and also the slave
girls are considered as the personal property for their
male owners as per sura 4:24. The Quran also gives the
Bharati Law Review, Jan.-Mar., 2014 248

ease of divorce to the men, which accommodates the

men, but not the women. In most of the cases she needs
her husband’s permission. Women can be divorced by
their husbands with or without cause, but she can only
seek divorce from her husband with her husband’s
consent. This is the most arbitrary provision of Islamic
law. While a Hindu woman can imprison her husband for
sharing her part of love with another wife, Muslim women
have to swallow this poison down their throat. They
cannot rebel, because it is their religious law and the
man is doing justice to the society by giving equal love
and care to three weak women.

Further a divorced woman is not allowed to re-marry

her ex-husband even if she wishes to do so without
satisfying certain conditions that is only if she marries
another man and then this second man divorces her. The
Quran clearly says: ‘And if he has divorced her (the third
time), then she is not lawful unto him thereafter until she
has married another husband. Then if the other husband
divorces her, it is no sin on both of them that they re-
unite.’ (2:230)

A Muslim woman’s legal testimony is only half of a

man’s only except in the event that she is accused of
adultery. The women are considered deficient in
intelligence compared to men. The Quran says, “And if
there are not two men (available), then a man and two
women, such as you agree for witnesses, so that if one of
them (two women) errs the other can remind her.”
(2:282). This is nothing but a mere way of saying that
female are not that trustworthy or knowledgeable than
man. This presumption takes away her right. There is no
justification to the arbitrary discrimination. Supreme
Court had gone ahead and tried to give women equal
rights in divorce law in the Shah Bano case3, but
unfortunately the ruling government pulled back the
society to the previous stage and brought about an entire
enactment to sooth the male prevalence over Muslim
society. Even the secular provision of the Cr.P.C. will be
applicable to the couple only if the male counterpart gets
ready for it. Human rights of the Muslim Women are in a

3 Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR(3) 844).

Bharati Law Review, Jan.-Mar., 2014 249

pitiable situation and needs serious pondering and

amendments.

Empirical Research Analysis

Objective:

1. To gauge the readiness of the Muslim women for

changes in the law.
2. Their view about the human rights problems

Methodology

Primary research was done by discussing with women the

problems and then they were asked to write their views in
blank sheets.

Universe

The research was conducted on 50 women, the area

being Mussalleypur haat of Patna district, Bihar.

Hypothesis

Women would be somewhat submissive to current law.

Findings

This was the last group which was only comprised of

muslim women. They were asked 3 question:

1. If they wanted the concept of 3 talaq to be

removed?
2. If they wanted the concept of 4 marriages to be
removed?
3. Their concept about khula

3 Talaq
yes
no
Bharati Law Review, Jan.-Mar., 2014 250

• Just 20% of the women said that they wanted the

concept to be removed.
• 26% said that it should not be removed because it
gives time to think. But they also said that if it is
given, then wife should be properly maintained.
• Whereas 54% were not sure. They said it was
wrong that only male gets this right but at the
same time they accepted that is their religion so
they were confused.

4 marriage
yes
no
other

• 54% of the women wanted the concept of 4

marriages to be removed. They were not ready to
share their husband.
• 20% wanted no interference in their sacred law.
• 26% said it was not required to be removed as it is
only in books and not in practice.

In the last question,

• 80% of the people said women should get right

in khula.
• 18% said they had no idea about the concept of
khula.
• Rest 2% said if women herself leaves her
husband, then she should not get any right.

The Hypothesis was somewhat wrong because specially

relating to Muslim Marriage issues, women demanded
change. Even in khula they wanted their right. And the
best part of the discussion was that most of them were
from very humble families with less or no education. If
they wanted to change, I draw another assumption that
middle class and upper class of women also demand the
same. The summary of the entire finding is that women
Bharati Law Review, Jan.-Mar., 2014 251

are now prepared for change and society needs to remedy

them.

Conclusion

While doing the entire research work, the key point which
struck me is that there is no personal attack on ISLAM as
a religion. The Islamic Feminists believes and respects
Islam and is a great protagonist of the same. The
interpretation of the religion is made in such an aspect
that there is the birth of the patriarchal control. The
main motive of these feminists is to shun this control and
to bring about equality on the whole. This seems to a
great task owing to its roots buried deep since the
ancient times, nevertheless there are some remedies
which are available for the same.

As the term ‘Islamic Feminism’ gained currency in the

1990s through the scholars and activists, it would clarify
the perspective of a large number of women somewhere
between Islamists and secular feminists. While they
would not give up their allegiance to Islam as an essential
part of self- determination and identity they did critique
patriarchal control over the basic Islamic world–view.
Islamic feminism did not define these women, and many
still reject the term. However, the term helped others to
understand the distinction between them and the two
dominant approaches for Muslim women’s rights.

The impositions of Uniform Civil Code have been open

to several discussions. The forefathers truly believed that
there is some sort of modernization required before
Uniform Civil Code is implemented. Some still fear that
ignoring the personal laws, especially the Muslim Law
which has been left completely unaltered, would lead to
civil war, wide- scale rioting and social unrest. While
making the Indian Constitution, its forefathers wanted to
adopt the “secular” model of western democracy, but on
the contrary it adopted a “secular” state with religious
laws for its religious groups. In India, “secular” means
“non intervening in the matter of religion.” Drawing from
the findings of the research that I conducted, it appears
that the basic level of modernization, which is mentioned
as prerequisite for the implementation of the Uniform
Civil Code has already been achieved. If women, from the
Bharati Law Review, Jan.-Mar., 2014 252

economically lower rung of the society are prepared for

change then it has a clear implication that the educated
section is already prepared for it. But the time has come
where Article 44 of the Indian Constitution which
mentions about Uniform Civil Code is the need of the
hour, since it respects and keeps religion as the base and
brings about equality among the society irrespective of
the person’s religion.


Bharati Law Review, Jan.-Mar., 2014 253

ESSAY ON MINORITY RIGHTS AND INDIAN

CONSTITUTION

Ms. Megha Dugar*

Introduction

This study focuses on different definitions of “minorities”

by various authors and the rights provided to them as in
Indian Constitution. The paper also discusses the
contemporary state of minorities.

This first phase of the secondary research looks at the

birth of the word “minority” crawling to Historical
Evolution of Minorities and further steps into
distinguishing between minority rights to indigenous
rights.

The second phase deals with the provisions in the

Constitution of India associated with minorities and their
effectiveness in the Indian society.

This research bring in light the minority as a social

category of powerlessness, caste, linguistic, religious,
ethnic group and indigenous people.

The present paper looks into the specific historical

trajectories such communities often labelled minorities
have had in the past.

The focus of this article is to bring out the majority-

minority relationship and the discourse of rights as a
community’s tools to enable political self-expression.

The case studies that comprise this paper offer not just
a glimpse of the particular histories of these communities
but also connect with each other and highlights how the
discourse of community rights have been used with
various degree of success by minority communities in
order to articulate their political and other demands.

* Student, 1rd year, BBA LL.B., SLS, Noida.

Bharati Law Review, Jan.-Mar., 2014 254

Wikipedia says: “A minority group is a sociological

category within a demographic. Rather than a relational
"social group", as the term would indicate, the term refers
to a category that is differentiated and defined by the
social majority, that is, those who hold the majority of
positions of social power in a society. The differentiation
can be based on one or more observable human
characteristics, including, for example, ethnicity, race,
gender, wealth, health or sexual orientation. Usage of the
term is applied to various situations and civilizations
within history, despite its popular mis-association with a
numerical, statistical minority. In the social sciences, the
term "minority" is used to refer to categories of persons
who hold few positions of social power.”

The Constitution does not define the term "minorities"

anywhere but only mentions it in some articles.

"The Constitution of India used the word minority or its

plural form in some Article 29 to 30 and 350A to 350B,
but does not define it anywhere."

Though Article 29 refers to "minorities" in its marginal

heading, it speaks of "any section of citizens having a
distinct language, script and culture".

An entire community or a group within a majority

community could thus be seen as a minority.

Article 30 speaks about two categories of minorities -

religious and linguistic-while Article 350 relates to
linguistic minorities only.

The National Commission for Minorities Act has

declared five communities-Muslims, Christians, Sikhs,
Buddhists and Parsis-as religious minorities.

The Indian Constitution ensures “justice, social,

economic and political” to all citizens. The Indian
Constitution has adopted measures for the protection of
the rights of the religious and ethnic minorities and of the
socially and economically disadvantaged classes such as
the scheduled castes and scheduled tribes.
Bharati Law Review, Jan.-Mar., 2014 255

The Indian Constitution enshrines various provisions

for the protection of the rights and interest of the
minorities.

• Firstly, India declares herself a secular state. No

particular religion is the religion of the
overwhelming majority, has been made the
religion of the state.
• Secondly, Article 29 give the religious and
linguistic minorities right to establish and manage
educational institutions of its own. The minorities
have been given the unrestricted rights to promote
and preserve their own culture. Indeed is a
country of diverse cultural groups and India is
keen to preserve her cultural diversity. Thus for
example, even though, Hindi is made the official
language of India, primary education everywhere
is given in the mother tongue.
• Thirdly, Article 29 expressly forbids
discrimination on grounds of race, religion, caste,
language, in admission to educational institutions
run by the state or receiving aids from the state.
This means that the doors of all educational
institutions run by government or receiving funds
from the state are open to all groups of Indians.
Linguistic, religious or ethnic minority students
cannot be denied admission to such educational
institutions.

Article 30 is vital to the protection and preservation of

rights of the minorities. The minorities have been given
the right to establish and administer educational
institutions of their choice. The state also cannot
discriminate against educational institutions established
and managed by the minorities in matters of granting
aids. Such educational institutions however must receive
state recognition. The state educational authorities have
the right to regulate such educational institutions
because the “right to manage does not include the right
to mismanage.”

Article 16 guarantee that in matters of public

employment, no discrimination shall be made on grounds
of race, religion, caste or language etc. This means that in
Bharati Law Review, Jan.-Mar., 2014 256

matters of public employment, all Indians are placed on a

footing of equality.

Finally, Article 25 of the Indian constitution guarantees

freedom of religion to every individual. This article of the
Indian constitution ensures that the members of the
religious minority community have the unhindered right
to follow their own religion. The state regulates the
practice of a religion only when and to the extent it
disturbs public peace. The minority not only has the right
to follow their own religion, they also have the right to
propagate it. But the state certainly does and should
regulate conversion through force or temptation. Forcible
conversion is forbidden because it transgresses the
individual’s freedom of conscience.

On the whole, the minorities of all kinds have very

secure rights in India which must be a matter of envy to
the minorities elsewhere.

Why is the expression 'minority' - such a touchy word -

undefined under the Constitution? Is it because a large
number of benefits are conferred on minority
communities through a series of inviolable fundamental
rights?

The Supreme Court takes them as a protective

arrangement. In its 2005 judgment in Bal Patil v. Union of
India, the court said: "The group of Articles 25 to 30 of
the Constitution, as the historical background of
partition of India shows, was only to give guarantee of
security to the identified minorities and thus to maintain
integrity of the country."

• Article 25: Freedom of conscience and free

profession, practice and propagation of religion.

• Article 26: Freedom to manage religious affairs.

• Article 27: Freedom as to payment of taxes for

promotion of any particular religion.

• Article 28: Freedom as to attendance at

religious instruction or religious worship in
certain education institutions.
Bharati Law Review, Jan.-Mar., 2014 257

• Article 29: Protection of interests of minorities.

• Article 30: Right of minorities to establish and

administer educational institutions.

The apex court, in its 2005 judgment, felt that the

special guarantees and protection to the religious,
cultural and educational rights of minorities was
guaranteed as a fundamental right in the Constitution, in
the backdrop of the bloody partition, to allay
apprehensions and fears in the minds of Muslims and
other religious communities.

"Such protection was found necessary to maintain unity

and integrity of free India because even after partition,
communities like Muslims and Christians in greater
numbers living in different parts of India opted to live in
India as children of its soil," the court had said.

It said the minorities initially recognized, were based on

religion and on a national level, for example Muslims,
Christians, Anglo-Indians and Parsis.

However, it had sounded a warning against vote bank

politics based on divisive tactics and underlined that "the
constitutional ideal, which can be gathered from the
group of articles in the Constitution under Chapters
Fundamental Rights and Fundamental Duties, is to
create social condition where there remains no necessity
to shield or protect rights of minority or majority."

The recent Judgment given by Justice S.N. Srivastava of

Allahabad High Court to the effect that, Muslims in UP
are not a minority within the state, came as a surprise to
many. The media is both electronic and print media gave
prominent coverage to the judgment. The Judgment has
now been stayed by the Division Bench of the same
Court. The legal and Constitutional merits and demerits
of the proposition will be gone into by the Appeal Courts
upholding or overruling the judgment of the single judge
of the Allahabad High Court in the coming days.

The Allahabad High Court’s judgment has in a way

indirectly reopened the debate on rights of minorities
Bharati Law Review, Jan.-Mar., 2014 258

under the Constitution. Samna, a daily edited and

published by Bal Thackeray also welcomed the judgment
in the issue dated 6 April 2007 stating that too many
concessions and privileges are being granted to the
Muslims in India. The right wing politicians have led the
people of India to believe that minorities enjoy too many
special rights and privileges and that minority means
Muslims or at best Christians.

There is only one article pertaining to the Minorities in

the Constitution of India. Article 30 of the Constitution
provides that all minorities, whether based on religion or
language, shall have the right to establish and administer
educational institutions of their choice. The Constitution
thus envisages that minorities can be based on religion or
language. Not only Muslims and Christians but also
Buddhists, Sikhs and even Jains are minorities.
Moreover, Hindus are a religious minority within the
state of Jammu and Kashmir, Mizoram, Meghalaya and
Lakshadweep and enjoy the privileges of minorities under
the Constitution in those states. But more important,
and not perceived in popular imagination, is the category
of linguistic minorities. In Maharashtra, all those
speaking Gujarati, Tamil, Hindi, Kannada, Malayalam,
Urdu and languages other than Marathi are minorities
and enjoy the same privileges as religious minorities.
Marathi speaking people in India are a minority in states
other than Maharashtra. Thus all the citizens in India are
a minority and enjoy the privilege of minorities. Not only
Akbar Peerbhoy College and Saint Xaviers College in
Mumbai are minority institution, but also Mithibai
College (set up by Gujarati minorities), SIES College (set
up by Tamil speaking minority in Mumbai) K.C. College,
Jai Hind College (set up by Sindhi speaking minorities)
are recognized as minority educational institutions.

In TMA Pai Foundation judgment, the Supreme Court

has laid down that the right to establish educational
institutions of their choice is available not only to the
minorities but to all the citizens of the India. One of the
fundamental rights in Article 19 of the Constitution to
practice any profession, or to carry on any occupations,
trade or business - has been interpreted by the Supreme
Court to include right to establish educational
institutions, which is a right guaranteed to all the
Bharati Law Review, Jan.-Mar., 2014 259

citizens. What is the exclusive right of the minorities

then? Minorities can not only establish educational
institutions of their choice but also administer them.
Supreme Court has further laid down that the right to
establish and administer broadly comprises of right to (a)
admit students; (b) set up a reasonable fee structure; (c)
constitute a governing body; (d) appoint staff (teaching
and non-teaching); and (e) take action if there is
dereliction of duty on the part of any employees. Non-
minority educational institutions are governed by the
policies and regulations of the state government or the
Central Government in matters of admission,
appointment of staff, fixing the fee structure and
constitution of governing body, where as the minority
institutions are not.

The right to establish and administer educational

institutions is to ensure that religion and language of
minorities are preserved, reproduced, regenerated and
recreated. The language, culture and religion of the
majority need not fear that their language and religion
will not be preserved, as the elected representatives are
not expected to be insensitive to the cultural, linguistic
and religious needs of the majority in spite. Except the
right establish and administer educational institutions of
their choice, there is no other exclusive right that
minorities enjoy under the Constitution of India. Articles
14, 15 and 16 prohibit any discrimination on grounds of
religion, race, caste, sex, place of birth by the state. As
Sachar Committee Report has pointed out, the Muslim
minorities are not privileged but are discriminated and
therefore are socially and economically backward. Not
privileges, but inclusive growth is what is necessary to
ensure social justice which was the dream of the
Constitutional Fathers and all Indians minus the elites.

There are many theocratic countries where equal rights

are not extended to all of its citizens. They have
categorized citizens according to their believes. The rights
are also attached differently; we must thank the fathers
of our constitution who envisioned equal rights to all
citizens and added special rights to religious and
linguistic Minorities.
Bharati Law Review, Jan.-Mar., 2014 260

The Indian constitution guarantees equal rights to all

its citizens, violation of which by the State or Central
Government can be challenged in the High Court or
Supreme Court as per the Article 32 of the Constitution,
such cases are taken up with utmost urgency. Article 14
of the constitution states that, ‘the State shall not deny to
any person equality before the law or the equal protection
of the laws within territory of India.’ It gives equal status
to all citizens in freedom and dignity. It further makes
clear in Article 15, ‘the state shall not discriminate
against any citizen on grounds only of religion, race,
caste, sex, place of birth, or any of them, and it offers,
‘equal access to public facilities.’ The 93rd amendment
added a new clause-Clause 5-to Article 15. This enables
the enactment of laws, making special provisions for the
socially and educationally backward classes, the
Scheduled Castes and the Scheduled Tribes in
educational institutions including private educational
institutions, except in minority institutions.

It is good to understand the Directive Principles and

Fundamental Rights. ‘Fundamental rights are legally
enforceable and guaranteed rights but directive principles
are not enforceable in any court of law. But under article
31-C, a DP may be framed as law even if it abridges
fundamental rights. The 42nd Amendment Act allowed
DPs to usurp FRs.’ Therefore the reservation policy is a
directive principle and it can be formulated as per the
requirements. It makes clear that the policy on
reservation is a directive principle to help a socially week
entity to become better.

The Constitution positively undermined the division of

opportunities on the basis of birth to any particular
entity. It provides equal opportunities in employments
which is made clear in Article 16 ‘there shall be equality
of opportunity for all citizens in matters relating to
employment or appointment to any office under the
state’. It also spells out in clear terms that, ‘no citizen
shall on grounds only of religion, race, caste, sex,
descent, place of birth, resident or any of them be
ineligible for or discriminated against in any respect of
any employment or office under the State.’
Bharati Law Review, Jan.-Mar., 2014 261

It is also to be noted that the constitution provides an

additional provision to the government to enact laws to
make sure that no section of the society is left out. The
Article 16(4) point out that ‘Nothing in this article shall
prevent the State from making any provision for the
reservation of posts in favour of any backward class of
citizens, which in the opinion of state is not adequately
represented in the services under the state’. The
constitution has not defined in clear terms what does it
mean by backwardness and how do we determine the
backwardness. It has definitely raised questions.

Education is seen as the only means to progress for an

individual and society at large. So the Article 29 states
that ‘no citizen shall be denied admission into any
educational institution maintained by the State or
receiving aid out of the State funds on ground only of
religion, race, caste, language, or any of them.’ It gives a
feeling that unaided educational institutions does not
bind by this Article. But opportunity is equally
distributed to all.

The constitution of India is very clear in terms of

Minority Rights. The Indian Constitution very well
protects the minorities and it provides opportunity to
develop to its fullness. The recent communal clashes and
accusations on minorities raises a question that whether
the constitutional rights are exercised well? There is no
political will or leadership to pursue the cause of the
Minority Community

"The Constitution (103rd Amendment) Bill, 2004 to

grant constitutional status to the National Commission
for Minorities envisages a change in the way minorities
are specified. The Cabinet has reportedly approved a
proposal (May 2007) to define minorities State-wise in
line with several Supreme Court judgments, most notably
that in T.M.A. Pai. For the purpose of this legislation,
minority will be specified as such in relation to a
particular State/Union Territory by a presidential
notification issued after consultation with the State
Government; this will be in addition to the five minorities
(Muslims, Christians, Sikhs, Buddhists, and Parsis)
referred to in the NCM Act, 1992. The new approach is
not consistent with the understanding developed in the
Bharati Law Review, Jan.-Mar., 2014 262

Constituent Assembly on the protection of minorities and

the constitutional compact between the State and
minority groups.

Although the Constitution does not define a minority or

provide details relating to the geographical and numerical
specification of the concept, it is clear that the
constitutional scheme envisages this to be determined at
the national level. Periodic judicial interventions and
categorization has had major repercussions. Over the
years, judicial pronouncements have sought to give a
restricted meaning to minority rights by limiting them to
education and defining minorities at the State level in
terms of protection under Article 30 which provides
religious minorities the right to set up educational
institutions of their choice. The legitimation of a
restrictive conception of minority rights can also be
noticed, in this context, in the Central Government’s
proposal to adopt a State-specific notion of minorities.

At the heart of the current controversy is confusion

about which groups qualify as minorities and regarding
the nature of the unit of determination under this rubric.
However, internationally, some agreement exists.
Commonly cited characteristics that make groups
distinctive and expose them to discrimination include
religion, language, culture, and gender. There is also a
unanimous opinion that the term ‘minority’ refers to a
power relationship. In this, the size of a group may bear
some relation to the degree of power it wields, but
presumably because other factors are also involved in the
equation, the relationship of group size is not all that
significant.

Contrary to this widely accepted perception of

minorities, the Government’s new proposal for State-
specific minorities is driven by a statistical or numerical
approach. The size of the group is not what should
concern our policy-makers or those committed to
eradication of inequity, prejudice, and discrimination.
This is because numbers per se merely quantify and
describe the proportion of a group in a population; they
do not tell us anything about whether a particular
minority group is powerful or powerless, advantaged or
disadvantaged, represented or under-represented. A more
Bharati Law Review, Jan.-Mar., 2014 263

meaningful conception of minority status would include

sections of people who, on account of their non-dominant
position in the country as a whole (not a specific State),
and because of their religion, language, caste or gender,
are targets of discrimination and therefore deserving of
special consideration. The statistical approach disregards
the crucial qualitative condition of vulnerability and
disadvantage.

In the circumstances, defining and confining the

category ‘minority’ to States is not the best way forward;
it would be far more helpful to recognize the
comprehensive character of minority rights, in
consonance with the demands of substantive equality, to
include them by revisiting the concept of affirmative
action. This would be in step with the slew of policies and
measures currently under consideration to address the
economic, social, and educational deprivation that
minorities experience."

References

• Article on Rights of Minorities in Indian

Constitution, Posted in Indian constitution by Vijay
Jaiswal On August 29, 2013.
• No Non-sense Minority by Rita Manchanda.
• Rights of Minorities under the Constitution of India;
Submitted by admin on 14 May 2007-12:21am by
Irfan Engineer.
• http://articles.timesofindia.indiatimes.com/2013-
08-13/india/41372208_1_minorities-act-
constitution-religious-minorities.
• http://en.wikipedia.org/wiki/Minority_group
• http://twocircles.net/node/1688.
• http://www.importantindia.com/2182/rights-of-
minorities-in-indian-constitution/.
• http://articles.timesofindia.indiatimes.com/key
word/minority-rights.
• http://www.franand.com/Page.aspx?AID=47.
• http://articles.timesofindia.indiatimes.com/2007-
04-06/india/27873905_1_minority-rights-minority-
communities-educational-rights.


Bharati Law Review, Jan.-Mar., 2014 264

MINORITY RIGHTS AND THE INDIAN CONSTITUTION

Ms. Uplabdhi Gupta*
Ms. Shuchita Bais**

Introduction

Protection of minorities is the hallmark of a civilization.

According to Gandhi ji, the claim of a country to
civilization depends on the treatment it extends to the
minorities. Lord Acton added another dimension: the
most certain test by which we judge whether a country is
really free is the amount of security enjoyed by
minorities. Rights of minorities figured prominently in the
Constituent Assembly. Our founding fathers were deeply
concerned to ensure full meaningful protection to the
members of the minority communities individually and
collectively. The minorities particularly Muslims,
Christians, Sikhs were apprehensive that their civil and
political rights may be ridden rough shod by the majority
community despite the secular pretensions of
independent India.1

The Preamble to the Constitution declares the State to

be ‘secular’ and this is a special relevance for the
religious minorities. Equally relevant for them, especially,
is the declaration of the Constitution in its Preamble that
all citizens of India are to be secured ‘liberty of thought,
expression, belief, faith and worship and ‘equality of
status and of opportunity.’

There are many theocratic countries where equal rights

are not extended to all of its citizens. They have
categorized citizens according to their beliefs. The rights
are also attached differently; we must thank the fathers
of our constitution who envisioned equal rights to all
citizens and added special rights to religious and

* Student, 2nd year, B.A. LL.B.(H), Hidayatulaah National Law

University, Raipur.
** Student, 2nd year, B.A. LL.B.(H), Hidayatulaah National Law
University, Raipur.
1 Prakash Louis, Minority Report in Secular India, Tehelka report
EDIT/OP-ED.
Bharati Law Review, Jan.-Mar., 2014 265

linguistic minorities. The Indian constitution guarantees

equal rights to all its citizens, violation of which by the
State or Central Government can be challenged in the
High Court or Supreme Court as per the Article 32 of the
Constitution, such cases are taken up with utmost
urgency. Article 14 of the Constitution states that, ‘the
State shall not deny to any person equality before the law
or the equal protection of the laws within territory of
India.’ It gives equal status to all citizens in freedom and
dignity.2

The various articles of the Constitution providing rights

to the minorities, clearly and firmly point out to only one
direction: that of a 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. By the yardstick
adopted by the framers of the Constitution and
crystallized into its provisions the Indian Nation is not
just a conglomeration of individual inhabitants of this
State; it comprises of two distinct categories of
constituents. The two-tier commonwealth of Indian
Nation includes, on one hand, every citizen of India
individually and, on the other hand, the multitude of
religious, linguistic, cultural and ethnic groups among its
citizens. The Indian Nation is an enormous coparcenary
in which the individual citizens are also members of their
own respective branches taking the form of religious,
cultural, linguistic and ethnic groups. And all these
groups, like all individuals, have the same Fundamental
Rights to enjoy and the same Fundamental Duties to
discharge.

The social pluralism of India, as fortified by the unique

Constitutional concept of secularism, raises the need for
the protection and development of all sorts of weaker
sections of the Indian citizenry – whether this ‘weakness’
is based on numbers or on social, economic or
educational status of any particular group. The
Constitution, therefore, speaks of religious and linguistic
minorities, scheduled castes, scheduled tribes and
backward classes and makes–or leaves room for making–

2 Fr. Anand Muttungal, “Constitutional Safeguards for Minorities in

India (Part IV)”.
Bharati Law Review, Jan.-Mar., 2014 266

for them special provisions of various nature and varying

import.

The word ‘minority’ or ‘minorities’ has been used in the

constitution of Indian in some Articles – 29 to 30 and
350A to 350B – but it is defined anywhere. Article 29 has
the word of “minorities” in its marginal heading but
speaks of “any sections of citizens...having a distinct
language, script or culture”. Article 30 speaks specifically
of religious and linguistic minorities. Articles 350A and
350B are related to linguistic minorities.

In common parlance, the expression ‘minorities’ means

a group comprising less than half of the population and
differing from others, specially the pre dominant section,
in race, religion, tradition and culture, language, etc. A
special sub-committee on the Protection of Minority Right
appointed by the United Nations Human Rights
Commission in 1946 defined the ‘Minority as those “non-
dominant groups in a population which posses a wish to
preserve stable ethnic, religious and linguistic tradition
or characteristics markedly different from those of those
of the rest of the population.”3 For understanding the
concept of minorities we first need to look back at the
Indian Constituent Assembly.

Minority Rights in the Indian Constituent Assembly,

1946-1949

The Constituent Assembly debates mark a crucial

turning point in the history of state policies of minority
preference in India. Since the late nineteenth century,
special provisions had been instituted by the colonial
state4 as well as by some princely states5 for a vast array

3 Rochana Bajpai on Minority Rights.

4 Group representation provisions in central legislatures were first
introduced by the colonial state in the Morley-Minto Reforms of
1909, which granted separate electorates to Muslims. The
Government of India Act of 1919 extended separate electorates to
Sikhs, Indian Christians and Europeans. In the Government of India
Act of 1935, a total of thirteen communal and functional groups
were granted special representation. Reservations in government
appointments for Muslims were first recognized by the colonial state
in 1925. The policy was formalized and extended to other
communities in 1934. See B. Shiva Rao (ed.), The Framing of India's
Constitution: A Study (Delhi 1967).
Bharati Law Review, Jan.-Mar., 2014 267

of groups designated as minorities or ‘backward’. Under

the Indian Constitution of 1950, preferential provisions in
legislatures and government employment were restricted
mainly to the scheduled castes and ‘backward’ tribes.

The Constituent Assembly began its proceedings as

scheduled on 9 December 1946, with the Muslim League
boycotting its sessions. In the Assembly's deliberations,
the minorities question was regarded as encompassing
the claims of three kinds of communities: religious
minorities, scheduled castes, and ‘backward’ tribes, for
all of whom safeguards in different forms had been
instituted by the British and by Princely States in the
colonial period. The representatives of most groups
claiming special provisions in some form emphasized that
the group was a minority of some kind. So close was the
identification of the term ‘minority' with the notion of
special treatment for a group that even those opposed to
a continuation of the colonial system of minority
safeguards employed the same language to justify their
stand. For instance, it was argued that the ‘so-called
minorities' were not the ‘real minorities'. The latter were
variously identified as ‘the agriculturists’, ‘the rural
people’, ‘the backward provinces’, even ‘the masses’. The
claim was that these were the groups that ought to
receive special treatment, rather than the communities
hitherto favoured by the British. The speeches of
representatives belonging to most religious minority
communities reflected concerns regarding the
submerging of a distinct cultural identity in independent
India.

While the appellation `minority’ was popular among the

representatives of almost every group claiming special
provisions in the Constituent Assembly, nationalist
opinion, for reasons that will be explored below, regarded
the term unfavourably and consistently sought to restrict
its usage. In nationalist opinion in the Constituent
Assembly, individuals as well as groups were recognized

5 Some of the earliest instances of policies of group preference in

government employment are to be found in the caste based
reservation schemes instituted by the princely states, such as
Mysore in 1895 and Kolhapur in 1902. See S. Bayly, Caste, Society
and Politics in India From the Eighteenth Century to the Modern
Age (Cambridge 1999).
Bharati Law Review, Jan.-Mar., 2014 268

as entities to which a liberal regime of rights, and its

underlying norms of equality and freedom would apply.

Political safeguards, however, were a different matter.

While political safeguards for minorities were included in
the Report on Minority Rights adopted by the Constituent
Assembly in August 1947 and in Part XIV of the Draft
Constitution published in February 1948, nationalist
opinion was hostile to such provisions from the outset.
Political safeguards for minorities were reluctantly
admitted as temporary, transitional measures, necessary
until ‘backward’ sections of the population were brought
up to the level of the rest, or until groups accustomed to
‘privileges’ under the colonial system had adjusted to the
new order. In the dominant nationalist opinion, however,
the ideal was always visualized as a situation in the
future where political safeguards for minorities would no
longer be necessary. Speeches in the Constituent
Assembly employed several variants of arguments from
national unity, secularism, democracy and equality and
justice in opposition to minority safeguards.

Quotas and rights were provided by the constituent

assembly but were admitted as a temporary mechanism
for a limited purpose. Quotas were permitted as a means
of reducing disparities in the levels of development
between different sections of the population and, thereby
assisting in the assimilation of these groups as well as in
the development of the nation. These grounds were
regarded as creating a case for quotas for the scheduled
castes and tribes, but not for the religious minorities. As
in the case of political representation provisions, an
analysis of the legitimating vocabulary for reservation in
the public services suggests that the retraction of quotas
for religious minorities during the making of the
Constitution was always a likely outcome.6

Religious and Linguistic Minorities

In contemporary situation the case of religious minorities

at the national level in India includes, all those who
profess a religion other than Hindu are considered
minorities. This is because over 80% of the population of

6 Galanter, Competing Equalities, p. 363.

Bharati Law Review, Jan.-Mar., 2014 269

the country professes the Hindu religion. Among the

minorities at the national level, Muslims are the largest
minorities followed by Christians and Sikhs while all the
other religious groups are still smaller.

As regard linguistic minorities, there is no majority at

the national level and the minority status is to be
essentially decided at the state/union territory level. For
instance in the state of Jammu and Kashmir and the
union territory of Lakshadweep Muslims are the majority.
In the states of Meghalaya, Mizoram and Nagaland
Christians constitute the majority. Sikhs are the majority
community in the state of Punjab.7

Cultural and Educational Rights of Minorities

Articles 29 and 30 of the Indian Constitution lay down

the provision relating to “Cultural and Educational Rights
of Minorities”. Articles 29 and 30, which provide for the
protection of interests of minorities and right to establish
and administer educational institution respectively, read
as follows:

Article 29: Protection of interests of minorities

1. Any section of the citizens residing in the territory of

India or any part thereof having a district language,
script or culture of its own shall have the right to
conserve the same.
2. No citizen shall be denied admission into any
educational institution maintained by the State or
receiving aid out of State funds on grounds only of
religion, race, caste, language or any of them.

Article 30: Rights of minorities to establish and

administer educational institutions

1. All minorities, whether based on religion or language,

shall have the right to establish and administer
educational institutions of their choice.

7 Dhavan, Rajeev, and Fali. S Nariman, ‘The Supreme Court and

Group Life: Religious Freedom, Minority Groups and Disadvantaged
Communities’ in B. N Kirpal and others (eds), Supreme but Not
Infallible: Essays in Honour of the Supreme Court of India (oxford
University Press 2000), 256.
Bharati Law Review, Jan.-Mar., 2014 270

2. In making any law providing for the compulsory

acquisition of any property of an educational
institution established and administered by a
minority, referred to in Clause (1), the State shall
ensure that the amount fixed by or determined under
such as would not restrict or abrogate the right
guaranteed under that clause.
3. The State shall not, in granting aid to educational
institutions, discriminate against any educational
institution on the ground that it is under the
management of a minority whether based on religion
or language.

Right to conserve language, script or culture (Article

29(1): Clause (1) of Article 29 provides: “Any section of
the citizen residing in the territory of India or any part
thereof having a district language, script of culture of its
own shall have the right to conserve the same”.

The “right to conserve” means the right to preserve and

the right to maintain. The right to conserve one’s own
language, script of culture, thus, means and includes the
right to preserve and to maintain own language, script or
culture. It includes the right to preserve and maintain
own language, script or culture. It includes the right to
work for one’s own language, script or culture and to
agitate for the same.

The right contained in Article 29(a) may be exercised by

setting up educational institutions and by imparting
instructions to the children of their own community in
their own language.

In D.A.V. College, Bhatinala v. State of Punjab8– The

Punjab University was established at Patiala under the
Punjab University Act, 1961. After the reorganization of
the State of Punjab in 1969, the Punjab Government
issued a Notification providing for the compulsory
affiliation of all the colleges situated within the area
under the jurisdiction of the Punjab University, Patiala.
Thereafter, the University issued the impugned circular
to all the affiliated colleges requiring them to introduce
Punjab in Gurmukhi script as the Court struck down the

8 AIR 1971 SC 1731.

Bharati Law Review, Jan.-Mar., 2014 271

circular as well as examinations. The Supreme Court

struck down the circular as violative of the right of the
petitioner to conserve their script and language and to
administer their institutions in their own way.

Right of Minorities to establish and manage

educational institutions: Article 30(1) guarantees to all
linguistic and religious minorities the ‘right to establish’
and the ‘right to administer’ educational institutions of
their own choice. The word ‘establish’ indicates the right
to bring into existence, while the right to administer an
institution means the right to effectively manage and
conduct the affairs of the institution. Thus, it leaves it to
the choice of the minority to establish such educational
institution as will serve both purposes, namely, the
purpose of conserving their religion, language or culture,
and also the purpose of giving through general education
to their children in their own language.

Clause (2) of Article 30 prohibits the State from making

discrimination in the matter of grant of aid to any
educational institution on the ground that it is managed
by a religious minority or linguistic minority.

In State of Bihar v. Syed Raza9– It has been held that for

creation of post in a minority institution for appointment
prior approval of the Vice-Chancellor is not necessary
and the persons so appointed would be entitled to grant
in aid in view of Art. 30(1) of the Constitution. Clause (2)
of Art. 30 provides that the State shall not, in granting
aid to educational institutions, discriminate against any
educational institution on the ground that it is under the
management of a minority, whether based on religion or
language.10

The Supreme Court in TMA Pai Foundation and Ors. v.

State of Karnataka & Ors.11(2002) has held that for the
purpose Article 30 a minority, whether linguistic or
religious, is determinable with reference to a state and
not by taking into consideration the population of the
country as a whole. Incidentally, ‘Scheduled caste’ and

9 AIR 197 SC 2425.

10 Kamaludin Khan,Educational Rights of Minorities, 2nd edition,
http://twocircles.net/book/export/html/135425.
11 AIR 1994 SCC (2) 94.
Bharati Law Review, Jan.-Mar., 2014 272

‘scheduled tribe’ are also to be identified at the

State/Union territory level. In terms of Articles 341 to
342 of the constitution, castes, races or tribes or parts of
or groups within caste, traces of tribes are to be notified
as scheduled caste or scheduled tribes in relation to the
state or union territory, as the case maybe.

Article 15 and 16 of the constitution prohibit the state

from making any discrimination on the grounds only of
religion, race, caste, sex, descent, place of birth,
residence or any of them either generally i.e., every kind
of state action in relation to citizens (Article 15) or in
matters relating to employment or appointment to any
office under the state (Article 16). However, there is a
wide disparity in the social and educational status of
different section of a largely caste-based, tradition-bound
society with large scale poverty and illiteracy. Equality
can only be among equals. Equality does not mean
absolute equality but relative equality therefore, to favour
the weak, the backward and the disadvantage, the
constitution permits positive discrimination with reasons.
Discrimination with reasons includes rational
classification. Article 15 allows the state to make any
special provisions for women, children, any socially and
educationally backward class of citizens and scheduled
caste and scheduled tribe. Recently Article 15 has been
amended by the Constitution (93rd amendment) Act, 2005
to empower the state to make special provisions, by law,
for admission of socially and educationally backward
classes of citizens or schedule caste/tribes to educational
institutional, including private educational institution,
whether aided or unaided by the State, other than
minority educational institutions. Article 16 also has a
provision that allows the state for making provisions for
the reservations in the appointment of post in favour of
“any backward class of citizens which in the opinion of
the state, is not adequately represents in the services
under the State”. Even though discrimination only on the
ground of ‘caste’ or ‘religion’ is prohibited but positive
discrimination on the ground of caste or religion along
with other grounds such as educational and social
backwardness is constitutionally permissible.12 The
Supreme Court in Indra Sawheny and Ors. v. Union of

12 http://www.jstor.org/discover/10.2307/4416749?uid=2&uid=4&
sid=21103411136297.
Bharati Law Review, Jan.-Mar., 2014 273

India13, has held that an entire community can be treated

as a ‘class’ on the basis of its social and educational
backwardness.

It can be seen throughout the Constitution that there

has been an over emphasis on religious and linguistic
minorities. This has led to the emergence of a preferential
class of minorities. One corollary of this is that other
minorities are frequently overlooked and are not
recognized. This hampers their claim to the rights that
they have been guaranteed by the constitution. In fact
this challenges their status of minority. This problem has
remained unaddressed since a long time. Providing
proper recognition to other minorities is long overdue.
They should be placed at par with the preferential class
of minorities since they have also been granted the right
to equality.

Constitutional Rights and Safeguards

Minority rights provided in the Constitution can be

placed into two domains namely ‘common domain’ and
‘separate domain’. The rights provided under ‘common
domain’ are applicable to all the citizens of our country
whereas 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.

The Constitution has made provisions for the

Fundamental Rights in Part III, which the State has to
comply with and these are also judicially enforceable.
There is another set of non-justiciable rights stated in
Part IV, which are connected with social and economic
rights of the people. These rights are known as ‘Directive
Principles of State Policy’, which legally are not binding
upon the State, but are “fundamental in the governance
of the country and it shall be the duty of the State to
apply these principles in making laws” (Article 37). Part
IV of the Constitution of India, containing non-justiciable
Directive Principles of State Policy, includes the following
provisions having significant implications for the
Minorities :

13 AIR 1993 SC 447.

Bharati Law Review, Jan.-Mar., 2014 274

Obligation of the State ‘to endeavour to eliminate

inequalities in status, facilities and opportunities’
amongst individuals and groups of people residing in
different areas or engaged in different vocations; [Article
38(2)]

Obligation of State ‘to promote with special care’ the

educational and economic interests of ‘the weaker
sections of the people’ (besides scheduled castes and
scheduled tribes);

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 – 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 our composite culture.’

The Constitution has provided a definite space for both

the ‘domains’ i.e., ‘common’ as well as ‘separate’. In Part
III of the Constitution, which deals with the Fundamental
Rights is divided into two parts viz. (a) the rights which
fall in the ‘common domain’ and (b) the rights which go to
the ‘separate domain’. In the ‘common domain’, the
following fundamental rights and freedoms are covered:
People’s 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)]
Bharati Law Review, Jan.-Mar., 2014 275

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]

The minority rights provided in the Constitution which

fall in the category of ‘Separate Domain’ are as under:

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)]

Article 46 of Directive Principle of State Policy mandates

the State to “Promote with special care the educational
and economic interest of the weaker sections of the
people... and... protect them from social injustice and all
forms of exploitation.” In this Article the ambit of weaker
sections of the society is not limited to scheduled
caste/tribes.
Bharati Law Review, Jan.-Mar., 2014 276

Special provision relating to the language spoken by a

section of the population of any State; [Article 347]

Article 340 of the constitution empowers the president

to appoint a commission to investigate the condition of
socially and educationally backward classes but does not
make mandatory

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; [Article 25]

Apart from these specific provisions the Constitution in

its spirit advocates for equal rights for minorities. It
attempts to do right the wrongs that have already been
committed towards minorities. For minorities it is not
uncommon to face discrimination. To remove this
discrimination our constitution strives to take all possible
measures. Apart from the constitution there are also
some other provisions for the development of minorities.
These provisions are largely legislative in nature. Some of
them are: Protection of Civil Rights Act, 1955 [formerly
known as the Untouchability (Offences) Act, 1955] and
the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989. National Commission
for Minorities has also been established by the National
Commission for Minorities Act, 1992. The setting up of
Minorities Commission was envisaged in the Ministry of
Home Affairs Resolution dated 12.01.1978 which
specifically mentioned that, “despite the safeguards
provided in the Constitution and the laws in force, there
persists among the Minorities a feeling of inequality and
discrimination. In order to preserve secular traditions
and to promote National Integration the Government of
India attaches the highest importance to the enforcement
of the safeguards provided for the Minorities and is of the
firm view that effective institutional arrangements are
urgently required for the enforcement and
implementation of all the safeguards provided for the
Minorities in the Constitution, in the Central and State
Bharati Law Review, Jan.-Mar., 2014 277

Laws and in the government policies and administrative

schemes enunciated from time to time. Sometime in 1984
the Minorities Commission was detached from Ministry of
Home Affairs and placed under the newly created
Ministry of Welfare.14

Political Scenario

Article 79 of the Constitution states: “There shall be a

Parliament for the Union which shall consist of the
President and two Houses... Council of States and House
of the People.” However, the Constitution being supreme,
its organs owe their existence to it. Each organ has to
function within the Constitution’s provisions. The Indian
Constitution has borrowed heavily from the traditions
and conventions of the British political system. Yet the
doctrine of parliamentary sovereignty does not prevail in
India. Indian Parliament is neither sovereign nor
supreme. “It is the Constitution which is supreme and
sovereign and Parliament will have to act within the
limitations imposed by the Constitution.”

A legislature has to act within the parameters set by the

Constitution. It is expected that the political class would
follow the rule of law in letter and spirit. Unfortunately,
that does not seem to be the case. How else can one
defend statements made by senior leaders that
‘minorities’ should not be wrongfully arrested or face
undue harassment. If they had gone through the
Constitution, they would have noticed that the term,
minority, has not been explicitly defined. Article 30 (1)
stipulates: “All minorities, whether based on religion or
language, shall have the right to establish and administer
educational institutions of their choice.” It goes on to add
in vide 30 (3) that “The State shall not, in granting aid to
educational institutions, discriminate against any
institution on the ground that it is under the
management of a minority, whether based on religion or
language.” It is thus clear that the term, minority, is
identified on the basis of religion or language.

14 Rao, B. Shiva, v. K.N. Menon, Subhash C. Kashyap, and N.K.N.

Iyengar, The framing of India’s Constitution, vol. 2 (Indian Institute
of Public Administration, 1966).
Bharati Law Review, Jan.-Mar., 2014 278

Should the political class define who is a ‘minority’ or

should one go by what is written in the Constitution?
Article 30(1) of the Constitution secures the rights of
religious and linguistic minorities to administer
educational institutions. Minority communities have been
given this right under this article to preserve and
strengthen the unity and integrity of the nation. If
religious or linguistic minorities are not given protection
under Article 30, they are likely to feel alienated.

However, it should be remembered that the right

conferred upon minorities is not meant to place them at
an advantageous position vis-à-vis the majority
community. It is necessary to invoke Article 30 to remind
India’s politicians that minorities include religious and
linguistic groups. Attempts to prioritize one over the other
would violate fundamental rights. By harping on
‘religious minorities’, political leaders are doing exactly
the opposite of what is enshrined in Article 14, which
talks about the right to equality.

Let us explore the definition of the term, minority, as

explained in A.M. Patroni v. E.C. Kesavan, AIR 1965 KER
75 (FB). Here it was held that any community, religious
or linguistic, numerically less than 50 per cent of the
population of the State is a minority community. This
makes it evident that there may be political minorities,
religious minorities and linguistic minorities, and that the
unit of determining the status of linguistic and religious
minorities would be the State.

A political leader from Karnataka has reportedly asked

minorities to default on loans. Linguistic minority groups
too have the right to respond to this clarion call on the
part of a seasoned politician. In this context, one needs to
remember, once again, that the Constitution of India is
supreme. Hopefully, India’s political leaders should take
note, broaden their vision and recognize linguistic
minorities. This will help them create equal opportunities
for the people of India. Otherwise, they will be severely
criticized for ignoring the right to equality guaranteed by
Article 14.15

15 Massey, James, Minorities in Democracy (1999), Manohar

Publishers, New Delhi, pp. 72-73.
Bharati Law Review, Jan.-Mar., 2014 279

National Commission for Minorities

The Union Government set up the National Commission

for Minorities (NCM) under the National Commission for
Minorities Act, 1992. Six religious communities, viz.;
Muslims, Christians, Sikhs, Buddhists, Zoroastrians
(Parsis) and Jains have been notified as minority
communities by the Union Government.16

The Commission has the following functions:

• Evaluate the progress of the development of
Minorities under the Union and States.
• Monitor the working of the safeguards provided in
the Constitution and in laws enacted by Parliament
and the State Legislatures.
• Make recommendations for the effective
implementation of safeguards for the protection of
the interests of Minorities by the Central
Governments or the State Governments.
• Look into specific complaints regarding deprivation
of rights and safeguards of the Minorities and take
up such matters with the appropriate authorities.

The Commission has the following powers:

• Summoning and enforcing the attendance of any
person from any part of India and examining him
on oath.
• Requiring the discovery and production of any
document.
• Receiving evidence on affidavit.
• Requisitioning any public record or copy thereof
from any court or office.
• Issuing commissions for the examination of
witnesses and documents.17

Conclusion

Demands for rights and entitlements on grounds of

Identity are no doubt very different today than they were
in colonial India. The idea of an India irreconcilably
divided amongst its many identities would undoubtedly
today be dismissed as preposterous. However, it seems

16 http://minorities.in/profiles.php.
17 National Commission for Minorities, India.
Bharati Law Review, Jan.-Mar., 2014 280

that the vision of a divided India has been replaced by a

curious conception of ‘Hindu’ majoritarianism. A
majoritarianism based on a sacralised conception of a
‘Hindu’ majority whose bearing on social experience is
oblique (in the case of the scheduled castes) at best or
tenuous at worst (in the case of the minorities and the
backward classes). In other words the constitutional
revolution of modern India is also a social vision that
gathers up diverse sets of social experience by the
dubious presumption that a sacral conception of ‘Hindu’
society can model the Indian social problem. Ironically it
was exactly this lack of resonance with the Indian social
condition that motivated the constitutional project to
reframe the colonial system of minority rights.


Bharati Law Review, Jan.-Mar., 2014 281

MINORITIES RIGHTS VIS-À-VIS JUDICIAL

PRONOUNCEMENTS

Mr. Ritesh Kumar Sharma*

Mr. Nikhil Saini**

Introduction

The existence and settlement of minorities in India is not

a modern phenomenon, its origin date back to the Aryan
period.1 In numerous ancient Indian relics there are
accounts of division of society into 4 classes namely the
‘brahmins’, ‘kshatriyas’, ‘vaishyas’, and ‘shudra’.2 The
shudra’s formed minority in Indian socio economic
system, this lead to their exploitation, degradation and
subject to inhumane treatment. Further they were named
untouchables or the outcaste. The minorities in India
during the modern time are not the same as it used to be
it has changed drastically over the period of time with the
advent and interference of foreigners.

The present India is a result of a rise and falls of

monarch followed with the advent of foreigners India has
been ruled by Aryans, Muslims and the British but its
original inhabitants were the Dravidians who were
divided into different castes and religions. With the
decline of Muslim rule in India the British found the right
opportunity to expand their roots in the country and by
the end of 17th century it was firmly established in India.
The British widened the ongoing gap of religion and then
left the country in turmoil with the issue at peak. The
partition caused turmoil, bitterness, chaos among the
various communities hence we can see that the issue did
not emerge overnight but it is one that existed for time
immemorial.

For achieving holistic development of a nation its

minorities should be taken along in the process of nation

* Student, 2nd year BBA LL.B.(H), National Law University, Odisha.

** Student, 2nd year BBA LL.B.(H), National Law University, Odisha.
1 HUTTON J.H., CASTE IN INDIA 152 (3rd ed. 1961).
2 25 MAX MULLER F. ED., AND G. BUHLER TRANS., THE SACRED BOOKS OF
THE EAST (1886).
Bharati Law Review, Jan.-Mar., 2014 282

building and should not be left alienated. There are

certain essential core elements in every society enshrined
in its constitution for safeguarding the rights of these, it
is the duty and obligation of the state to uphold these
principles without prejudice and if the state succeeds in
its duty then these cases of violation would be brought
down. But the debate still goes on whether India’s
minority has to live with deep seated biases and for how
long?

Minorities in India

In India a minority is regarded as one who is separate

from the majority group. Not only religious groups
consider themselves minorities but it encompasses of
caste, tribe, linguistic too. The Indian Constitution
recognizes two types of minority groups: linguistic and
religious.3 The Indian Government has recognized the
following communities as minorities: 1.Muslims,
2.Christians, 3.Sikhs, 4.Buddhist, 5.Zoroastrian and
now 6.Jains also.4 The ministry of social justice and
empowerment has identified these groups and described
them under Section 2(c)5 of Statue of National
Commission of Minorities. The NCM does not define the
term minorities but an assumption is drawn by seeing
past practices that parameter population and religion as
a yardstick.6

The present UPA 2 government has introduced many

policy schemes to uplift the status of these communities
and provide them a level playing field, the government
has introduced affirmative actions like sub quota of 4.5 %
out of 27 % quota of OBC for the development of
backward classes of minorities from Jan. 1, 2012.7

There is no prescribed definition of the term minorities

in national or international arena but certain attempts
have been made by authors like Francesco Capotorti,
United Nations Special Rapporteur who defines minority

3 D.D. BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW (2nd ed. 1994).

4 National Commission for Minorities Act, 1992, SO No. 816(E).
5 National Commission of Minorities, § 2(c).
6 ANNUAL REPORT, MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT
GOVERNMENT OF INDIA 29-36(2002-2003).
7 ANNUAL REPORT, MINISTRY OF MINORITY AFFAIRS GOVERNMENT OF INDIA
71 (2012-13), available at http://www.minorityaffairs.gov.in.
Bharati Law Review, Jan.-Mar., 2014 283

as: “A minority is a group which is numerically inferior to

the rest of the population of a State, in a non-dominant
position, whose members-being nationals of the State
possess ethnic, religious or linguistic characteristics
differing from those of the rest of the population and
show, if only implicitly, a sense of solidarity, directed
towards preserving their culture, traditions, religion or
language.”8

Certain things tend to be forgotten among the dim,

atrocities on the minorities have been among such things
there have been cases of gross violation of their rights,
large number of cases relating to violence on the
minorities either go unreported or are suppressed, people
belonging to the minority community are being victimized
by the police in name of terrorist act in the country they
are tortured in lockups and made to sign blank
documents9 the cataract of sorrow will never go away
from the eyes of the community.

1. Linguistic Minorities

In India main problem for attaining nation integration is

presence of a sub-national identity based on language.
The constitution under the eighth schedule recognizes 18
major languages10 that lead to people forming their own
individual sub identity by regarding themselves a part of
their own groups. Religious and cultural feelings are knit
together closely in a fabric and can be seen as one moves
far away from the Hindi heart land of north India.11 In
1950 Hindi was chosen as the official language of the
nation and further it was decided that it will be solely
used as an official language after the constitution was in
force for 15 years.12 This decision led a huge outcry from
the southern lands and leads the nation in 1965 to
declare the use of English as a second official language

8 DEIRDRE FOTTRELL& BILL BOWRING, MINORITY AND GROUP RIGHTS IN THE

NEW MILLENNIUM 91 (1999).
9 Peoples Tribunal on the Atrocities Committed against Minorities In
The name Of Fighting Terrorism available at
http://www.lokraj.org.in/?q=articles/news/peoples-tribunal-
atrocities-committed-against-minorities-name-fighting-terrorism.
10 INDIA CONST. SCH. § 8.
11 R. KOTHARI, POLITICS AND THE PEOPLE: IN SEARCH OFA HUMANE
INDIA(1989).
12 Ibid.
Bharati Law Review, Jan.-Mar., 2014 284

for indefinite period. Today Most of the States have an

official language and people who speak another language
as their mother tongue regard themselves as linguistic
minorities. Articles 347, 350, 350 A of the Indian
constitution provide safeguard to the protection of
linguistic minority rights.

2. Religious Minorities

India is a land of diversity a large number of religions are

followed here Hinduism being in majority and Islam,
Christianity, Buddhism, Zoroastrianism, Jainism in
minority. As per the census of 2001 the Indian
population was 1,027, 015, 247.40,13 comprising of 828
million (80.5 per cent) Hindus forming the largest ethnic
group followed by 138 million (13.4 per cent) Muslim, 24
million (2.4 per cent) Christians, 19 million (1.9 per cent)
Sikhs, 8 million (0.8 per cent) Buddhists and 4.2 million
(0.4 per cent) Jain.14 A supplementary 6.6 million belong
to other religions. As per the census report it was seen
that India compromises of six major ethnic groups and
fifty-two major tribes, six major religions and 6,400
castes and sub-castes; eighteen major languages and
1,600 minor languages and dialects.15 In a land that has
so much diversity it is difficult to hold together people of
such vested needs, all the communities have their own
religious faiths and it must be respected, at times it
becomes difficult to hold together such a wide range of
people together but India has been successful in
achieving and maintaining it.

Judicial Interpretation

Judicial interpretation have always read secularism as a

fundamental law of the land and sought to outline its
boundaries as sacred and profane. The Supreme Court
has taken the task to set up the policies by being in an
activist’s role hence it should make sure that it promotes

13 Census of India 2001, Provisional Population Totals, available at

http://www.censusindia.gov.in/Census_Data_2001/India_at_glance
/popu1.aspx.
14 Census of India 2001, Religious composition, available at
http://www.censusindia.gov.in/Census_Data_2001/India_at_glance
/religion.aspx.
15 TMAPai Foundation and Ors. v. State of Karnataka and Ors., 2 SCC
195, para 158(1994) [hereinafter TMA Pai Foundation and Ors.].
Bharati Law Review, Jan.-Mar., 2014 285

secularism in the plural multicultural sense. While in

some cases the court has taken a strong point on the
issue and declared secularism as unamenable feature of
the constitution while in other cases the courts definition
is susceptible to the interest of the majority encroaching
on the rights of minorities.

The legal safeguards for minorities are derived from 3

main sources:

1. The Constitution of India

2. Govt. Schemes and Recommendations of various
Committees
3. Judicial Pronouncements16

All these sources are discussed in depth in his paper.

1. Constitution

The constitution safeguards and protects the rights of

linguistic minorities through a system of built in
mechanism under Articles 15, 16, 25, 26, 27, 28, 29, 30,
347, 350, 350A and 350B, together with Articles 32 and
226.

Article 15 protects the rights of minorities against the

state it prohibits the state from discrimination on
grounds of religion, race, caste, sex or place of birth.
Article 16 states that no person should be denied public
employment on the grounds of religion, race, caste, sex
etc. however 16(4) permits state to take affirmative
measures for the backward citizens who are not
adequately represented. Article 25 grants every individual
to the freedom of conscience and the right to practice,
profess and propagate his religion However,
proselytization affects the freedom of conscience and
thereby, conversion by force, fraud, and inducement is
prohibited.17

Article 26 is complementary to Article 25 as it lays down

freedom to manage religion affairs but subject to public
morality, order, and health. The scope of this article is

16 MAHMOOD, SYED TAHIR ED., MINORITIES AND STATE AT THE INDIAN LAW:
AN ANTHOLOGY 121- 133(1999).
17 Stainislaus v. State of M.P., (1977) 1S.C.C. 677.
Bharati Law Review, Jan.-Mar., 2014 286

not only limited to minorities but is available to majority

also, i.e., Hindus.18 Article 29 grants the linguistic
minorities living in any part of the country to conserve its
language culture and script and Article 30, gives them
the right to establish and administer educational
institution of their choices. Hence these two articles
create mutually supportive rights for both minority
institutions and people. In Ahmedabad St. Xavier's
College Society and Anr. v. State of Gujarat and Anr.,19 the
apex court defined the area of Articles 29 and 30 and
observed that these two articles confer 4 distinct rights:
the right of people of a group which are resident citizens
to conserve protect and safeguard its own language,
script or culture; the right of religion or linguistic
minorities to establish and administer their educational
institutions; an educational institution should not be
discriminated for state aid on the ground that it is
managed by religious or linguistic minority; it is the right
of an citizen to be not denied admission into educational
institution which are state maintained or state aided on
ground only of religion caste, race or language. In Rev.
Sidhajbhai Sabhai v. State of Bombay,20 the Supreme
Court held that unlike Article 19 of the constitution, the
right mentioned in Article 30(1) is a fundamental right in
absolute terms and is not subject to reasonable
restrictions. The significance of these rights could be
inferred from Justice Khanna’s opinion that: “no
tampering with these rights can be countenanced.”21 The
spirit behind 30(1) is the conscience of the nation that
the minorities, religious as well as linguistic, are not
prohibited from establishing and administering
educational institutions, of their choice.22 Article 30 is a
special right conferred on the religious and linguistic
minorities because of their numerical handicap and to
instill in them a sense of security and confidence, even
though the minorities cannot be per se regarded as
weaker sections or underprivileged segments of the

18 Pannalal Bansilal Patil and ors. v. State of A.P., (1996) 2S.C.C. 498.
19 Ahmedabad St. Xavier's College Society and Anr. v. State of Gujarat
and Anr. (1974) 1S.C.C. 717 [hereinafter Ahmedabad St. Xaviers
College].
20 Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay and Ors.,
(1963) 3 S.C.R. 837.
21 AHMEDABAD ST. XAVIERS COLLEGE, supra note 19, at 717.
22 See id. at 721.
Bharati Law Review, Jan.-Mar., 2014 287

society.23 A linguistic minority for the purpose of Article

30(1) is one which must at least have a separate spoken
language. It is not necessary that that language should
also have a distinct script for those who speak it.24 The
expression in Article 30 is that the minorities shall have
the right to establish and administer educational
institutions of their choice and therefore it is entirely in
the hands of the minority community to widen their
choice.25

Article 347 of the Indian constitution provides for a

presidential direction for the official recognition of a
language. As per Article 350 every person is entitled to
submit a representation for the redress of any grievance
to any officer or authority of the union or state in any of
the languages used in the union or in the state. Article
350-A provides facilities for instruction in mother tongue
at primary stage of education to children belonging to
linguistic minority groups. There is a clear violation of
Article 29(1), if it is read with Article 350-A, if
instructions are given by a state to its linguistic minority,
to study a regional language at primary stage, i.e., a
language not their own, but it could be prevented if they
are given an option. In D.A.V College, Bhatinda v. State of
Punjab,26 the apex court held that Punjab university of
Patiala can propose Punjabi as a medium of instruction
in the collage but it cannot be the sole nor could it
compel affiliated collages which are established and
maintained by religious or linguistic minorities to teach
Punjabi or give exams in that language. In English
Medium S.P.A. v. state of Karnataka,27 the Supreme Court
clarified that the objective of Article 350-A is to safeguard
the interests of linguistic minorities and its existence
owns to reorganization of states.

23 TMA Pai Foundation v. State of Karnataka, (1994) 2S.C.C. 195

[hereinafter TMA Pai Foundation].
24 St. Stephen's College v. The University of Delhi et al., (1992) 1 S.C.C.
558 [hereinafter St. Stephen’s College].
25 Faizan Mustafa, The Constitution, Minorities and the Judiciary,
available at,
http://www.iosworld.org/constitution%20minority%20and%20judic
iary.htm.
26 D.A.V. College Bhatinda v. The State of Punjab and Ors., (1971) 2
S.C.C. 269.
27 English Medium S.P.A. v. State of Karnataka, (1994) 1 S.C.C. 550.
Bharati Law Review, Jan.-Mar., 2014 288

Article 350-B lays down the foundation of the

institution of commissioner for linguistic minorities in
India (CLM). The office exists since 30 July 1957. In
pursuance of Article 350-B, it is the duty of the office of
CLM to investigate all matters relating to the safeguards
provided for linguistic minorities under the Constitution
and report to the president upon those matters at such
interval as the president may direct, and the president
shall cause all the reports to be laid before each house of
parliament and sent to the governments of the state
concerned.

Under the Article 32 declares that anyone approach the

highest court to gain protection against the violation with
the rights comprises of the religious and linguistic
minorities to seek remedy. A similar jurisdiction prevailed
in the High court under the Article 226. The concern
behind this right was to make believe to the minorities
that if they discriminated then their interest can be
protected by approaching to the highest court. In these
situation, constitutional rights will remove the fear and to
convince the minorities of protection of their interest. In
the constituent assembly debate on Article 23 B.R.
Ambedkar said: “It will be noted that the term minority
was used therein not in the technical sense of the word
‘minority’ as we have been accustomed to use it for the
purposes of certain political safeguards, such as
representation in the Legislature, representation in the
services and so on. The word is used not merely to
indicate the minority in the technical sense of the word, it
is also used to cover minorities which are not minorities
in the technical sense, but which are nonetheless
minorities in the cultural and linguistic sense. For
instance, for the purposes of this Article 23, if a certain
number of people from Madras came and settled in
Bombay for certain purposes, they would be, although
not a minority in the technical sense, cultural
minorities.... The article intends to give protection in the
matter of culture, language and script not only to a
minority technically, but also to a minority in the wider
sense of the terms as I have explained just now.”28

28 B.R. Ambedkar (Constituent Assembly Debates, 922-923 (1948-49).

Bharati Law Review, Jan.-Mar., 2014 289

It was held that any community, religious or linguistic,

numerically less than 50 per cent of the population of the
State is a minority community.29 Further, the question as
to whether community can be said to be a minority
community depends upon the question as to whether
they are a minority in the State in question or not.30 It is
most humbly submitted that Muslims are, without a
doubt a minority religion in the State of Uttar Pradesh,
constituting a population of 18.5 per cent.31

The status of minority can be identified on the basis of

the size of the population of the group. The Supreme
Court held that the technique of arithmetical tabulation
of less than 50 per cent of population for identifying a
minority.

However, in the recent case Supreme Court said that

the geographical entity of state for consideration of the
status of minority for Article 30. The judgment of the
Supreme Court:
“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.”32

2. Recommendation of Various Committees and

Government Schemes

I) Sanchar Committee
PMO constituted the high level of committee33 under the
chairmanship of Rajinder Sachar for preparation of a
Report on the Social, Economic and Educational Status
of the Muslim Community of India.
The Committee made various recommendations to
address the status of the minority. Some of these
recommendations were:

29 ST. STEPHENS COLLEGE, supra note 24.

30 TMA PAI FOUNDATION AND ORS., supra note 15, at 201.
31 Census of India on Religion 2001, available at:
http://censusindia.gov.in/Census_And_You/religion.aspx.
32 TMA PAI FOUNDATION AND ORS., supra note 15, at 201.
33 SACHAR COMMITTEE REPORT, available at,
http://www.minorityaffairs.gov.in/sachar.
Bharati Law Review, Jan.-Mar., 2014 290

• To create a National Data Centre where the

various data must be collected for different
Minority groups.
• The status of the minority group must be
monitored every five year.
• The discrimination which is there in the society
must be removed and legal provisions must be
implemented in a strict sense.
• The Authorities should develop a Diversity Index
(DI) in the context of institution to strengthen the
minorities and allocate them seats in higher
education.
• Conduct appropriate curriculum for this purpose
in teachers’ education, organizing remedial
classes and providing public spaces for minorities.
• It also recommended to provide admissions to the
most backward amongst all minority group in
recognized universities and autonomous colleges.
It further discussed to provide different types of
reservation to three main Muslims groups i.e.,
‘Ashrafs’, ‘Ajlafs’ and ‘Arzals’. Arzals Muslim group
is the most backward class and they need
reservation so that their requisite growth can be
achieved.
• The education system must be improved as school
children get influenced by what they read;
textbooks must have a content of social diversity
and remove the material which contains religious
intolerance. Institutions must be established
where gender basis discrimination is not
acceptable.
• Legal mechanism must be established in which
complaints of discrimination against minorities
will be dealt in matters like employment, housing,
obtaining bank loans. There should be an
autonomous assessment and a monitoring body
should be set up to evaluate the development.

II) Ranganath Committee Report

The Committee34 submitted the final report on
2007. It made Major recommendation in the respect

34 RANGANATH MISHRA COMMITTEE REPORT, available at,

http://www.minorityaffairs.gov.in/ncrlm.
Bharati Law Review, Jan.-Mar., 2014 291

of the Muslims, who are the largest minority at the

national level and yet they are educationally most
backward religious community.

• The institution like Aligarh Muslim University and

Jamia Millia Islamia should be authorized to
promote education for the Muslims students by
implementing all possible steps required for this
authorization.
• All institutions run by the minority group i.e.
Muslims should be given all facilities and advanced
aid which help in raising the standards of minority
group.
• The Madrasa Modernization Scheme of the
government should be suitably revised, and they
should be given funds so that they can provide
facilities which are needed to be given.
• The rules and processes of the Central Wakf
Council should be improved in a way that its main
control should be educational development of the
minority group. For this purpose, the Council may
be legally authorized to collect a special 5 per cent
educational levy from all Wakfs, and to sanction
utilization of Wakf lands for establishing
educational institutions, polytechnics, libraries
and hostels.
• Anganwaris, Government Schools and several
similar type of institution should be established
under the schemes and Muslims families must be
advised and incentives should be given to them for
sending their children to these institutions.
• The report also recommended that the concessions
which are provided to the Scheduled Castes and
Scheduled Tribes, in terms of eligibility criteria for
admission and low fee should also be given to all
minority group specially Muslims women and
Buddhists- are generally educationally backward.

III) Recommendation of the Steering Committee for

the XII Year Plan
The planning commission formed steering committee on
“Empowerment of Minorities”35 for the XII five year plan.

35 RECOMMENDATION OF THE STEERING COMMITTEE ON EMPOWERMENT OF

MINORITIES, available at,
Bharati Law Review, Jan.-Mar., 2014 292

The strategy was to achieve development of minorities

through education, skills development for employment,
and to enhance the socio-economic status of the group. It
stresses that the education is the main important tool for
the socio-economic development of the minority group.
The committee made recommendations as follows:
• Scholarships programs should be implemented
and department implementing different
scholarships should be given in the form of
maintenance fee, tuition fee.
• The various components during the XI Year Plan
under the scholarships have been constant, so it
was recommended that data should be revised
and fixed according to the Wholesale Price Index
(WPI).
• In the previous plan it was mandatory for the
student to obtain 50% marks for Pre-Matric
Scholarship. This condition should be discarded
as it allows retention of the minority students in
schools.
• The rates of admission fees, tuition fees, and
maintenance allowance should not be uniform.
The rates shall be increasing for the students who
are moving up from class IX to Class XII. This will
motivate them and allow more number of
retention students at the higher standards to gear
up for higher studies.

Ongoing Schemes under Elementary Education and

Literacy

IV) Sarva Sikhsha Abhiyan

Sarva Sikhsha Abhiyan36 was launched in 2000 with an
objective to provide for a variety of interventions for
universal access and retention, bridging social category
gaps in elementary education and improving the quality
of learning. This scheme include various missions like
opening of new schools, improving the infrastructure of
the schools, classrooms should be increased, toilets and
drinking water facility should be available, regular
teacher training, textbooks and support for learning
achievement. With the implementation of Right to

http://planningcommission.gov.in/aboutus/committee/index.php?
about=12strindx.htm#sd.
36 SARVASIKSHAABHIYAN, available at, http://mhrd.gov.in/schemes.
Bharati Law Review, Jan.-Mar., 2014 293

Education Act 2009, there have been changes in the

schemes which are as follows:
• Providing all round education, as perceived by the
National Curriculum Framework 2005, with
complete renovation of the entire teaching
syllabus, teaching methodology and management.
• The disadvantaged sections of the society specially
children belonging to the backward sections
should not only get an equal opportunity so that
they stand on the same footing but also condition
must be created for them so that they can avail
opportunity.
• The term access should not only be restricted to
providing basic schooling to the children living in
a particular area but it should have a wider
meaning to it, it should be also include children
belonging to the backward sections of the society
that are left behind .
• The gender concern, effort should be made that
girls to keep pace with boys in the education
perspective which is in national Policy on
Education 1986/92, the step should be taken by
the authority to bring change in the status of the
women.
• Teacher issue: teacher should be trained in such
a way that they put effort in creating a classroom
culture and make their students think beyond the
requisite limits and this will help in formation of
healthy environment.
• With the introduction of the Right to Education
Act, it put compulsion on parents, teachers,
educational administrators and other institutional
authority to send children to the schools for
studying.

V) Kasturba Gandhi Balikavidyalaya (KGBV)

Kasturba Gandhi BalikaVidyalaya37 is the scheme
launched by the government in July 2004, for building
up residential schools at upper primary level for the girls
of the minority group belong to SCs, STs, OBC and other
disadvantaged group. This scheme implemented to those
areas where female literacy rate is less than the national

37 KASTURBA GANDHIBALIKAVIDYALAYA, available at,

http://ssa.nic.in/girls-education/kasturba-gandhi-balika-
vidyalaya/kgbv-scheme.
Bharati Law Review, Jan.-Mar., 2014 294

average rate, especially in the backward villages of the

country. The scheme provides reservation policy of about
75 per cent to the girls belonging to the SCs, STs, OBC
and remaining 25 per cent is for the girls who belong to
the families below poverty line. The scheme targets those
adolescent girls who are unable to attend the schools,
girls who are above the age of 10+ and unable to
complete the primary school.

Out of 3600 KGBVs sanctioned, 3439 KGBVs have been

operationalized. Out of these, 552 KGBVs have been
sanctioned in rural and urban areas of Muslim
concentration and 517 of these have been
operationalized. 24,590 minority girls have been enrolled
out of total of 3, 33,622 girls enrolled.38

VI) Integrated Child Development Services Scheme

Equitable availability of Integrated Child Development
Services (ICDS) Scheme39 was launched for the
development of children and pregnant mothers from the
minority section of the society by providing services
through Anganwadi centers such as supplementary
nutrition, immunization health check-up, preschools and
non- format education. These projects were also located
in the villages with a substantial population of
disadvantaged group to provide benefits of the scheme.

A. Supreme Court and Minorities

It is fascinating to note that it is the judiciary that tells

us what compromises of religion. The term religion is not
defined in the constitution and it is not one that could be
given a definition its scope is wide and difficult to limit it
in words. The apex court has not restricted the definition
of religion to only the relationship between individual and
its creator and the obligations imposed on him. The court
has also held that not all religion believe in the presence
of a supreme being – like Buddhism and Jainism.

38 KASTURBA GANDHI BALIKAVIDYALAYA,available at,

http://ssa.nic.in/girls-education/kasturba-gandhi-balika-vidyalaya.
39 INTEGRATED CHILD DEVELOPMENT SERVICES SCHEME, available at,
http://wcd.nic.in/icds.htm.
Bharati Law Review, Jan.-Mar., 2014 295

In S.P. Mittal v. the union of India40 the court laid down

that religion is a matter of faith, belief in the superior is
not essential to constitute religion. Religion not only
includes a code of ethical rules for its followers but it
might prescribe rituals, ceremonies, observance which is
regarded as its integral part. InA.S. Narayan Deekshitulu
v. State of Andhra Pradesh41 it was held that religion in
constitution is a personal matter of faith and belief.
Further in Anandmargis case42 the Anandmargis were
recognized as a religious denomination but the
performance of tandava dance by its followers (carrying
lethal weapons and skull in processions or at public
places) was held by the honorable court as a non-
essential feature. However on appeal it did recognize
Tandava dance as essential to the religious belief of
Anandmargis but restricted it due to maintenance of
public order. During this phase the court not only
decided what constituted religion but also what practices
were to be allowed.

In Ismail Faruqui v. Union of India,43 the Supreme

Court's opinioned that the court, in the use of its
sovereign power, can acquire places of worship, for the
purpose of maintaining law and order. The court said
that offering prayer and worshipping to one’s own
Supreme Being is important however its offering at every
location where such prayer is offered is not essential
religious practice.

In the State of West Bengal v. Ashutosh Lahiri44 and

prior to that, in M.H. Querseshi v. State of Bihar45 the
Supreme Court held that Muslim citizens of India are not
allowed the freedom to kill cows for 'Qurbani' as part of
their tradition. The court viewed that the slaughtering of
cows is not an essential practice of Muslims. And Under
the Article 48 of the Constitution, the court banned cow
slaughter – giving way to an unacknowledged respect to
the Hindu belief in the holiness of the cow.

40 S.P. Mittal v. Union of India, (1983) 1 S.C.C. 51.

41 A.S. Narayana Deekshitulu v. State of Andhra Pradesh and ors.,
(1996) 9 S.C.C. 548.
42 Acharya Jagdishwaran and Avadhuta and Ors. v. Commissioner of
Police, Calcutta and Anr.(1983) 4 S.C.C. 522.
43 Ismail Faruqui v. Union of India, (1994) 6 S.C.C. 360.
44 State of West Bengal v. Ashutosh Lahiri, (1995) 1 S.C.C. 189.
45 M.H. Querseshi v. State of Bihar, (1959) S.C.R.629.
Bharati Law Review, Jan.-Mar., 2014 296

The judgments of the Supreme Court thus tell us that

in matters of religion only essential practices can have
absolute protection. This has given a way for continuous
interference by the state in matters of religion. By their
authority to decide what religion is and what not the
courts in India have acquired the authority to regulate
the meaning and ambit of religion.

T.M.A. Pai Foundation and Others v. State of Karnataka

& Others46: It is a landmark judgment given by the apex
court this judgment shapes the future of minority
community in the field of education. It was given by a
constitutional bench of 11 judges and involved
fundamental questions like who constitutes a minority
and who could obtain special rights mentioned under
Article 30(1) of the constitution. The court accepted the
view that minority is one which is numerically less than
the majority and Article 30 covers both linguistic and
religious minorities. The bench unanimously accepted
that Article 30(1) confers religious and linguistic
minorities the right to establish and administer
educational institutions including professional
institutions. The court held that the right to establish an
educational institution is unfettered howsoever the right
to administer the educational institution is not an
absolute one. The judgment is important from the point
of interplay between 29(2) and 30(1), Article 29(2) says
that no citizen shall be denied admission on grounds only
of religion, race, caste or language to an educational
institution maintained or receives aid from state whereas
Article 30(1) provides all minorities, whether based on
religion or language, the right to establish and administer
educational institutions of their choice.47 Nine out of 11
judges in the bench held that aided minority institution
have to admit reasonable extent of non-minority students
hence Article 30(1) is substantially maintained while
citizens’ rights under 29(2) are not infringed.48 The court

46 T.M.A. Pai Foundation & Others v. State of Karnataka and

ors.,(2002) 8 S.C.C. 481.
47 N.R.M. Menon, Minority Rights and Education, THE HINDU, January
10, 2003 [hereinafter Menon, Minority Rights and Education].
48 M.P. RAJU, MINORITY RIGHTS MYTH OR REALITY: A CRITICAL LOOK AT THE
II JUDGE VERDICT WITH FULL TEXT, 19-44 (2002) [hereinafter Raju,
Minority Rights Myth or Reality].
Bharati Law Review, Jan.-Mar., 2014 297

left it to the state to decide the percentage of non-

minority students.49

In the past the minority’s right to establish and

administer educational institution was maintained by St.
Stephens’s judgment which provided a cap of 50 per cent
but the bench held that providing a rigid cap is not
desirable in law or in practice.50

The court stated that the right enshrined under Article

30(1) of the constitution cannot be such that overrides
the national interest or averts the government from
framing regulations in that matter.51 Minority as a
community cannot have fundamental rights, which are
not provided to the majority community or non-minorities
this principle emerged out of the judgment.52 Law of the
land which includes rules and regulations must apply to
all whether it is majority or minority.

Conclusion

Looking at the present scenario we can say that in spite

of so many constitutional assurances and enactments,
the socio-economic development of this section of the
society is not even nearer to the expectations of the
constitution makers there is a dire need to rethink and
formulate minorities rights that are being butchered, the
constitution provides various articles to safeguard the
community and protect its identity but in practical life
these rights are not implemented as they should be. The
constitution is not followed in the same spirit in which it
was drafted by drafters of the Indian Constitution, the
minority have become a tool of the political superior who
use them to take mileage in the votes run, in lieu of
actual development the community is given small
incentives in form of schemes that are too not properly
implemented. There is a need to introduce new central
law that provides multi-culturalism and pluralism in
educational institutions, making the social composition

49 Ibid.
50 Menon, Minority Rights and Education, supra note 47. See also
Acharya Jagdishwaranand Avadhuta and Ors. v. Commissioner of
Police, Calcutta and Anr. (1983) 4 S.C.C. 522.
51 Raju, Minority Rights Myth or Reality, supra note 48 at 45.
52 Ibid.
Bharati Law Review, Jan.-Mar., 2014 298

of that institution diverse to tackle the problem of

alienation that is being faced by the community. In case
of judiciary there are three trends followed by it firstly,
the judgments of the judges are contextual hence they
are different, and reflect personal convictions of the
judges. This makes the interpretation of the article vague
and subject to constant struggle between the minorities
and the state. Secondly the judgments are more liberal
towards the linguistic minorities than religious ones and
lastly they represent a trend towards reducing the scope
of the article giving more scope to government control
and interference, the courts in India that are being looked
forward as savior of the rights of people hence should
come forward in playing a proactive role in happier
construction of existing constitutional provisions on
minorities by being in conformity to the international
standards. The government has launched many schemes
for the betterment of disadvantaged groups in various
parts of the countries but these schemes do cover the
remote areas people in the village and blocks are not
aware of the schemes. Corruption also plays a major role
in the failure of the schemes in many places funds which
are sanctioned by the government under the schemes do
not reach to the targeted groups. The food material which
is provided to children in Anganwadis is found to be of
inferior quality. A committee must be devised to look into
these issues and work for the benefit of the minority
group. Any government scheme which is targeted for the
minorities should be adequately advertised in both urban
and rural areas where these minorities reside.


Bharati Law Review, Jan.-Mar., 2014 299

EDUCATIONAL STATUS OF THE INDIAN MUSLIMS:

A QUESTION MARK ON SECULAR INDIA?

Ms. Kanika Middha*

Ms. Sanskriti Mall**

Introduction

At the inception of the Nation, India sworn to be a secular

nation and incorporating in it people of all religions and
communities with a promise to protect the interest of all
religions and flourish it with the best of its abilities. India
as a nation is posed with great threats as out of its total
population, Hindus consist of majority numbers i.e. 80.5
% of the population with the remaining five communities
including Muslims, Christians, Sikhs, Buddhists,
Zoroastrians and others consisting of minority of 19.5%
of the population1. Out of which Muslims consist of
13.4% of it2 making it the largest minority in the country.

The term ‘minority’ however is not defined by our

Constitution, but the general idea is that a minority
community is a disadvantaged section of any society. The
Supreme Court In Re: The Kerala Education Bill3 stated
that to determine minority, a community has to be a
numeric minority in a particular region in which an
educational institution in question is situated for it to
avail minority educational rights. The issue of ‘minority’
especially in terms of religion has been very sensitive and
complex in India and continues to remain the same.
Apart from the communal violence, it has been so
because of the existing inequalities persisting in many
sectors including educational sector, employment sector
etc., amongst different communities especially between
Muslims and other communities. Along the years India as
a nation has come a long way in many spheres including

* Student, 4th year, B.A. LL.B., Institute of Law, Nirma University

Ahmedabad.
** Student, 4th year, B.A. LL.B., Institute of Law, Nirma University
Ahmedabad.
1 Computed from Census of India, 2001, Religion Data.
2 Ibid.
3 1959 1 SCR 995.
Bharati Law Review, Jan.-Mar., 2014 300

those of economy, health, literacy, but have all the

different communities, with special reference to the
Muslims, been able to grow and develop at the same
rate? The answer is ‘No’. There are many disparities at
each level.

The study however, is restricted to the educational

status of the Muslims in India as compared to the other
communities in India. Apart from the socio-economic
conditions, the literacy rate of the Muslims is also the
lowest in India as compared to other religious groups
which is an issue of concern. There is variation in the
literacy rate amongst five major religious minorities.4

It is well evident and accepted that role of education in

today’s era is highly important in contribution towards
development and empowerment. Nelson Mandela5 once
said: “Education is the most powerful weapon which you
can use to change the world.” Education undisputedly, is
a tool and indeed a ladder for success and development
not only for any community or society but for the entire
nation. Lower level of literacy rate leads to poorer
economic conditions. It is therefore important to educate
people to bring change into the social and economical
structure of any nation and for its empowerment. Right
to Education in India is a Fundamental right6 which
must be enjoyed by all the citizens of India in letter and
spirit including the minority communities. Along with the
general rights, Constitution of India has provided the
minorities with special rights to help them stand on equal
footing with the others.

Constitutional Protection and Legal Instruments

Researchers have pointed out that historically, the rights

of religious minorities have been ignored by India's
constitutional makers, which was amply evident from the
Constituent Assembly debates. As argued by
commentators on minority rights that:7

4 Supra note 1.
5 Nelson Mandela was the President of South Africa (10 May 1994 –
14 June 1999). He was also an Activist and a Lawyer.
6 The Constitution (Eighty-sixth Amendment) Act, 2002.
7 Rochana Bajpai, 'Constituent Assembly Debates and Minority
Rights', Economic and Political Weekly, Vol. XXXV, Nos. 21-22, 27
May 2000, pp. 1837 1845.
Bharati Law Review, Jan.-Mar., 2014 301

There was no principled defence in the nationalist

vocabulary for safeguards in the case of religious
minorities. This marked a crucial shift from the colonial
framework where the entitlement of minority groups to
special representation and other forms of safeguards had
been an established principle. The illegitimacy of
safeguards for religious minorities within a broadly
shared normative vocabulary was a crucial factor that
facilitated their abolition during constitution making.8

The protection provided to the minorities was not

enough, even though the Constitution9 provides for
certain rights to all its citizens and imposes certain
obligations on the state to provide for education to all its
citizens. Some rights are general which are enjoyed by all
the citizens whereas some of the rights are special and
specific in nature to be given protection to the minorities.

General Rights under the Constitution of India

• Article 14
It provides to all citizens equality under the eyes of law
and equal protection before law within the territory of
the country. All citizens are equal before law including
the Muslims as well. If treated unequally, it would
amount to violation of right to equality.

• Article 15
According to Article 15 no citizen or any community
for that matter shall face any discrimination on the
basis of any of the criteria’s such as religion, caste,
sex, gender, race or birth.

• Article 21
It has been observed by the Supreme Court in the
judgement of Miss Mohini Jain v. State of Karnataka
and Ors10 that every citizen has right to education
even though expressly not given by the Constitution in
Part III of the constitution as a Fundamental right. It
is a part of right to life and liberty and State shall
endeavour to protect and promote the same.

8 Rochana Bajpai, 'Values in political rhetoric', Seminar, No. 524,

April 2003.
9 The Constitution of India, 1949.
10 1993 AIR 2178, 1993 SCR (1) 594.
Bharati Law Review, Jan.-Mar., 2014 302

• Article 45
It imposes duty on the state in the form of Directive
Principles of the State Policy to provide for free and
compulsory education to all children up till 14 years of
age within the period of 10 years after adopting the
Constitution.

• The Constitution (86th Amendment) Act, 2002

Long before the RTE Act11 came into being, right to
education was expressly included as a Fundamental
right. A separate Article 21A was introduced to provide
for free and compulsory education to all the children
between the ages of six to fourteen years.

• Right to Education Act, 2009

The Right to Education Act is enacted by the
parliament of India on 4 August 2009, to give the
children between 6 to 14 years of age, free and
compulsory education under Article 21A of the Indian
Constitution.

Special Rights/Protection under the Constitution of

India

Though Constitution of India does not explicitly define

the term ‘minority’ but it confers upon the minority
communities with certain rights and guarantees to
protect the same in the form of following Articles. Two
most important sections pertaining to the minority
educational rights are as follows:

• Article 29
It entitles the minorities a right to conserve their
language, script or culture and secondly to protect
them from being denied any right in any educational
institution established or maintained by the State
itself or funded by it on any of the following grounds:-
religion, language, caste or race.

• Article 30
Most importantly Section 30 empowers the minorities
to establish and administer their own educational
institutions and secondly state shall not discriminate

11 Right to Education Act, 2009.

Bharati Law Review, Jan.-Mar., 2014 303

while granting aid to it on the sole ground that it is

managed by the minorities.

But even after the Constitution has conferred upon the

communities with various rights and protections, what
has led to such a huge gap between the level of literacy
rates amongst Muslims and other religious groups or
what has led to the educational backwardness of the
Muslims? What are the causes that have left the
community lagging behind? Is educational backwardness
the cause for their socio- economic conditions as well?
Though the Constitution has provided with special
protection why haven’t they been able to benefit from it?

It is observed that the rights given by the constitution

are not enjoyed by all citizens in letter and spirit with
special reference to the Muslims. It is evident that they
face discrimination and exclusion even today after sixty
seven years of independence. It therefore questions the
secular image of the nation which is indeed problematic.

Apart from these constitutional protections the

government of India has also set up many institutions to
evaluate progress of development of these minorities.
Various Commissions have been set up to safeguard the
interest of minority communities in an effort to provide
them equal platform. Following mentioned are the
statutory bodies established by the Government and their
role in providing them adequate safeguards for access to
education.

Statutory Bodies

The Government of India has established many

institutions to uphold the rights of Minorities and enforce
these rights guaranteed to them. Their roles and
functions are mentioned here under.

• The Maulana Azad Education Foundation (MAEF)

This scheme was registered in the year 1989. It
devises and implements schemes and plans to
benefit the educationally backward minorities.
Bharati Law Review, Jan.-Mar., 2014 304

• The National Commission for Minorities (NCM)

NCM is a statutory body instituted by the Central
government in the year 1992. It was set up to
perform various functions such as to evaluate and
monitor the developmental progress of minorities,
make detailed reports on any matter related to
minorities and to make recommendations and
provide suggestive measures for their developmental
process.

• The National Commission for Backward Classes

The commission was set up by the Government of
India under National Commission for Backward
Classes Act, 1993. This commission investigates the
conditions of disadvantaged sections such as the
socially and educationally backward classes which
include therein the sections of religious minorities
which are socially and educationally backward.

• The National Commission for Minority

Educational Institutions (NCMEI)
NCMEI was constituted in the 2004 by an ordinance
and then introduced as a Bill and was passed by
both houses in 2004. It has been set up mainly for
protection of the rights of minorities to establish and
administer educational institutions according to their
choice.

• National Monitoring Committee on Minorities'

Education (NMCME)
It is constituted by Ministry of Human Resource
Development. It has further five sub-committees to
look into the implementation of the schemes which
are aimed at minorities and also promotion of Urdu
language. It was reconstituted in the year 2011.12

It is certain that these institutions have played an

important role in enforcement of minority rights,
educational rights in particular and also that some
minority communities have also performed quite well
having been benefited from their developmental
processes. However, it can be seen in various parts of our

12 Educational Development of Minorities, Ministry of Human Resource

Development, Government of India, accessed at on
http://mhrd.gov.in/more_minoedu , February 8, 2014.
Bharati Law Review, Jan.-Mar., 2014 305

country the Muslim community in particular have not

equally benefited from the development. The data of the
same has been provided in the various committee reports
setup by the Government to inquire into the detailed
status of Muslims in educational sector.13 These
institutions are not adequately functioning with respect
to providing educational rights to Muslims community in
particular. To elaborately understand the current status
it is important to throw some light on the condition of the
Muslim community in India in the educational sector.

Overview of Findings of Various Reports on the Status

of Muslims: Emperical Data

Minorities have faced historical backwardness in both

economic and educational sphere. Gopal Singh
Committee, (Dr. Gopal Singh Panel on Minorities, June
1983) which threw light on educational backwardness
and under representation in government employment.
Class variation does exist in Muslim minorities, but the
backwardness is seen in the community as a whole. The
empirical data collected shows injustice done by the state
towards the community and the neglect since
independence which produced gross injustice as well as
peripherality.14

Government of India has established many committees

thereafter to produce detailed reports on the condition of
Muslim community in terms of education, their socio-
economic status and various other aspects. These reports
provided empirical information on a large scale on status
of Muslims in India. Following are the highlights made on
the Committee reports on educational status.

13 Prime Minister's address at Conference of State Minorities

Commissions, Press Information Bureau, Government of India, New
Delhi, January 13, 2014 accessed at
http://pib.nic.in/newsite/PrintRelease.aspx?relid=102452 on
February 8, 2014.
14 Supra note 11.
Bharati Law Review, Jan.-Mar., 2014 306

Sachar Committee Report15

Sachar Committee is said to be the first high level

committee which was organized to look into the following
aspects of the Muslim community in India being social,
economical and educational. Prior to Sachar Committee,
many other committees were established but their
recommendations and suggestions stayed
unimplemented. Also, there was no systematic data
available on the same. Following are the major
observations made on the report:
• Data was prepared on both quantitative and
qualitative measures.
• Quantitative measure such as ‘literacy rate’ suggests
that According to the Census of India, 2001 Literacy
rate of the Muslims was way lower than the total
population (national average) and other minorities as
well. Muslims with the literacy rate of 59.1% and the
national average on 65.1%.
• The gap between the education level of Muslims and
‘all others’16 has only been widening over the years.
• According to the report of the committee the condition
of the Muslims was as bad as that of the SC’s and
ST’s. Both these groups have attained the lowest
literacy rate in comparison with the others. But SC’s
and ST’s have at least been able to benefit from the
affirmative action policies by the government.
• The NSSO17 61st Round data which was taken in the
year 2004-05 clearly makes it visible that in recent
years the literacy rates for the schedule caste/tribes
as compared to that of Muslims have improved in a
faster trend.
• Enrolment and attendance data also show that rates
of enrolment and attendance Muslims in rural as well
as urban areas were far lower than all others. In fact

15 Sachar Committee was organized in the year 2005 and was chaired
by Justice Rajendra Sachar. It was presented on November 17,
2006.
16 ‘All others’ constitutes of other religious minority groups apart from
Muslims including that of Christians, Sikhs, Buddhists,
Zoroastrians and others.
17 The National Sample Survey Organization was established in India
in 1950 which conducts socio-economic surveys. It is an
organization under Ministry of Statistics of the Government of India.
It is now known as National Sample Survey Office.
Bharati Law Review, Jan.-Mar., 2014 307

the conditions of the SC’s and ST’s have been on an

increasing trend as compared to that of Muslims.
• The drop-out level from the school was highest in
Muslims. Almost 1/4th of the population of Muslim
children within the age group of 6-14 have dropped-
out or have never even attended school.
• According to the census of India, 2001, average years
of schooling among the age group of (7-16) were the
lowest in Muslims.
• At every level i.e., Primary, Secondary or Higher
education, Muslim children were the lowest in
percentage to have attained education at these levels
as compared to the overall population or even other
minority groups for that matter.
• Even at graduate and post graduate level the
representation is also sub-standard.
• Most importantly with the level of growth in literacy
rate and educational level in India, the gap between
Muslims and all others have only been increasing ,
with the increase in all levels of education especially
in urban areas.
• Urdu medium Schools have also been performing very
poorly due to the lack of basic amenities.
• Limited access to Madrasas18.

Justice Ranganathan Mishra Commission Report19

Following are the observations:

• Literacy rate amongst women has been found to be
lowest in the Muslims.
• The gender gap in literacy rate in Muslims is much
greater than the over-all gender gap of all
communities.

Rest of the observations made on the condition of the

Muslims were quite similar to that of the Sachar
Committee Report.

18 Madrasas are an important community initiative. This is type of

educational Institution to impart religious knowledge.
19 The report was prepared and presented by the Commission on May
10, 2007.
Bharati Law Review, Jan.-Mar., 2014 308

Steering Committee Report20

The major observations which have not been covered by

the earlier Committees are as follows:
• Since the literacy rate was the lowest amongst
Muslims in most states, as a result the poverty ratio
was also the highest amongst them including both
urban and rural areas. While the other minority
communities were in a better off condition.

The Data shows a very appalling and alarming

projection of the status of Muslims in India. This
condition is the result of multiple factors which includes
Stereotypes and discrimination against Muslim identity
making them difficult to get admission, non availability of
primary or secondary schools in the Muslim dominated
localities which causes special disadvantage to the
Muslim girls leading to low level of education in females,
the poor economical condition of the parents which make
them unable to send their children to school, poor
infrastructure of schools, prevalence of child marriage in
some sub communities, lack of access to quality
education, religious orthodoxy, poor condition of
religious schools etc.

From the reports of all the three committees it is evident

that the situation is very problematic. Further a
comparative analysis has been done in the reports
between Muslims and other communities or population
as a whole. It has been realized a huge difference occurs
between the former and the latter. Key reasons have also
been identified which are the root causes for the same.
Low level of education is not only the result of religious
orthodoxy of the Muslim community, which is believed to
be the popular perception of the masses, but there are
other reasons on record which need to be taken care of
by the government and it should come out with certain
measures to combat the same. There are certain steps
taken by the government in elevating and uplifting these

20 Report of the Steering Committee was prepared on ‘Empowerment of

Minorities’ by a Working group on which was constituted by the
Planning Commission on May 6, 2011. National Commission for
Religious and Linguistic Minorities was chaired by Justice
Ranganathan Mishra.
Bharati Law Review, Jan.-Mar., 2014 309

disadvantaged minorities and particularly the Muslim

community.

Steps Taken and Their Implementation

Since the empirical data on the status of the Muslim

community has been revealed by various committee
reports, the issue has become debatable and has created
a buzz in the country. Thereafter, many steps and
initiatives have been taken to improve the condition of
the disadvantaged minorities particularly the Muslims.
Many suggestions and recommendations and suggestions
were given by various committees on development of
these disadvantaged groups especially Muslims. On the
basis of recommendation given in these reports, certain
initiatives have been taken by the Government. Initiatives
such as guidelines for the implementation of Prime
Minister’s New 15 point programme21 were given and a
follow–up on Sachar Committee Report was drafted to
look into the implementation part of the policies and
recommendations to know their status and progress of
these initiatives.22

One of the main objectives of the New 15 point

programme was to enhance the educational opportunities
for the minorities. It gives certain guidelines on how to
achieve the same for e.g., providing with Anganwadi
centres by the ICDS23 Scheme, improvement of School
education under the scheme of Sarva Shiksha Abyan,
promoting and providing with resources for teaching
Urdu language, modernization of Madrasas so that these
institutions keep up with the modern educational system,

21 The Hon’ble President, in his address to the Joint Session of

Parliament on February 25, 2005, had announced that the
Government would recast the 15 Point Programme for the Welfare of
Minorities with a view to incorporate programme specific
interventions. Prime Minister, in his address on the occasion of
Independence Day, 2005, announced to revise and revamp the 15
Point Programme for Minorities.
22 Implementation of 15-Point Programme for Minorities Reviewed,
PRESS RELEASES, November 8, 2007
New Delhi, accessed at http://pmindia.nic.in/press-
details.php?nodeid=671 on Feb 02,2014.
23 The Integrated Child Development Services is a programme
sponsored by Government of India focusing on child development
with an objective raise the level of health and nutritional level of
children.
Bharati Law Review, Jan.-Mar., 2014 310

providing with scholarships to the students, improving

the infrastructure of the school under MAEF and provide
required assistance to continue expanding its activities.
Even though these schemes have been introduced but it
has been observed that they have not been implemented
in its entirety.

Secondly, as much as follow up report on the Sachar

Committee Report is concerned, it was realized that even
though there have been steps taken to implement the
suggestions but the pace at which the process of
implementation is taking place is quite slow and stagnant
and therefore needs a quicker response to the same.24

Many schemes and policies following the Sachar

Committee Report were introduced. But the policy
implementation part seems to have been failing as still
Muslims are the underprivileged section of the society as
the data shows in the reports. Even after six years of the
drafting of the Sachar Committee Report, the data from
the Steering Committee shows that access to education
for Muslims still remain a problem. Certain issues have
been identified. The data shows that there is a difference
between fund allocations for implementation of the
development schemes for minorities and actual
expenditure for implementing the same.25 It has been
observed that there is under spending in the important
areas related to development and providing access to
education to minorities. The data provided pictures a far
too less flattering status of the Indian Muslims.

Theorizing Minority Rights with Secularism

In India, minority rights are heterogeneous in nature. The

claim is made because it is not easy to analyze the
construction and discourse on minorities. We in India
decide majority-minority equation primarily on numerical
basis; be it on grounds of religion, caste, language or
class. There is no doubt that Muslims are in minority
since independence, hence state as well the Constitution
guaranteed them ‘rights’ so that they don’t fall as prey to
tyranny of majority and achieve the goal of ‘equality’.

24 Supra note 17.

25 11th Five Year Plan Financial Performance, Report of the Steering
Committee on ‘EMPOWERMENT OF MINORITIES’ 5-6 (2011).
Bharati Law Review, Jan.-Mar., 2014 311

The question of minority rights with regard to Muslims

in India has been trapped into the questions of identity
and security and less attention is paid on the aspect of
equity by the dominant governmental discourse of
policymaking. While all the aspects of identity, security
and equity of the Muslims are interlinked, the historical
experience of the post-colonial Indian state has been that
of addressing the Muslim’s question on the foundation of
secularism and nationalism.26

“In last two decades there has been a great community

mobilization against the inequality and hegemony in the
society which Taylor calls “Politics of Recognition”27.
Neoliberal policies have taken the hegemonic status in
the Indian society which believes in the principle of
status quo. It does not need any sort of intervention by
the government. In this era of globalization any sort of
affirmative action is seen as opposition to competition
which is the dominant ideal of globalization. But we will
have to understand that competition starts from level
playing field. The whole performance of the government is
accounted according to the implementation of these neo
liberal policies.

Secondly, we can notice a politics of particularism with

narrow sectarian approach primarily claiming certain
democratic demands for only a selective group or
community. This politics is aptly expressed among the
excluded groups although it is more organized in the case
of dalits.28 With such sectional mobilizations it was
difficult to sustain the concept of undifferentiated,
deprived Muslim community fighting for its due share in
polity. After Mandal Commission caste became the
primary identity for getting benefit of affirmative action.
Certainly OBC Muslims receive benefits of reservation,
but their strength is very nominal in the whole
community which is educationally as well as
economically backward.

26 Aiyar Yamini, Minority Rights, Secularism and Civil Society, EPW, Vol
XXXIX, Oct. 2004.
27 Taylor Charles, Politics of Recognition, Oxford: Blackwell, 1994.
28 Maidul Islam, Rethinking The Muslim Question in Post-Colonial India,
Social Scientist, Vol. 40, August 2012.
Bharati Law Review, Jan.-Mar., 2014 312

Impact of Educational Backwardness of Muslims on

Secular Nature of the State

Secularism in India is understood as all religions being

treated equally by the state. There shall be no
discrimination by the State on the ground religion. Yet
Muslims are continuously facing marginalization and
alienation at so many levels. This disturbs the very
foundation of secular and socially just nature of Indian
state. The status and condition of Muslims is very much
contradictory to the same. It is however very important to
understand the nexus between Secular nature of the
State and Educational empowerment of the minorities
and especially, the Muslims. As from the very beginning
there have been much visible tensions between Hindus
and Muslims which cannot be ignored.

There are many questions which need to be addressed

related to this issue. What is coming in the way of their
development? Is it because of the communalization in our
country that’s stopping the empowerment of this
particular community? It brings out the secular-
communal debate in India. It has been evident from the
empirical data given in the reports that since
independence SC/ST’s have still shown considerable
change and development in the education sector by the
government policies of affirmative action where as the
development of Muslims in educational sector has been
stagnant. It is questionable that if the Muslim community
is even worse off than the Schedule caste and Schedule
tribes than why the government has not implemented
affirmative action for the Muslims. Therefore it calls on
an urgent basis for the formulation of such policies which
bring about the desired changes and development.

Recommendations and Suggestions

On the basis of all the observations regarding the status

of minorities especially Muslims when it comes to
accessibility to education and their economic
development these points are to be taken into
consideration:
• There is a need to lay down special emphasis on
setting up of primary schools in all the localities and
Bharati Law Review, Jan.-Mar., 2014 313

make sure that a minimum level of school education

is made compulsory by every state.
• Muslim children must be treated at par with the
children of other sections of the society and must be
entitled to similar educational provisions and
policies
• Madarsa, where the Muslim children are sent for
their schooling must be made technically equipped
with the education tools of the new era.
• The government schools must be made easily
accessible to the Muslim children especially girls as
the non-availability of the institution hampers their
entire development process.
• More and more female participation must be
appreciated in the education sectors and they must
be provided with all the essential commodities and
facilities required for their subsistence and security
i.e., appointment of female teachers
Introduction of scholarships must be made for
promoting students to go for professional and
technical studies in order to raise their standard of
living through their economic upliftment.
• Certain training programmes must be conducted by
the local authorities for the people who are lacking
technical skill which would be highly beneficial for
the Muslim community as most of them are involved
in skill based professions.
• Also, their talent must be recognized and given due
acknowledgment.
• There shall be proper implementation of the policies
and schemes formulated for the benefit of the
minority communities.
• Affirmative policies should be formulated to extend
the benefits to the backward sections of Muslims.

Conclusion

Muslim community of India has been kept deprived from

the very beginning. The data from the various reports
show various levels of inequality and discrimination faced
by them. It can be said that the Indian State in its
entirety failed to actively realize the rights of Muslim
community and respond to their backwardness. Though
the Constitution of India through introduction of certain
Articles (Art. 25-29) has tried to resolve the issue of
Bharati Law Review, Jan.-Mar., 2014 314

Muslims being deprived of many opportunities in India

but the present figures show that their status remains
the same as being the minority and ironically the one
which constitutes the highest percentage of minority.
Despite of the various attempts made by the legislators as
well as the governments the status of Muslims has not
raised to a considerable level. It has been seen that the
SC’s and ST’s have developed in the educational sector at
a higher rate than the Muslims. Their condition has been
identified as even worse than the worst-offs of our
country. It is high time that we realized that educational
backwardness hinders the social and economic
upliftment of any community too. There are certain
lacunas in government policies such as lack of policies
including affirmative action for the community. A push is
however required to make them reach the desired
standards. There has been a flood of plans and policies
pertaining to the social, economical and educational
upliftment of Muslims but still Muslims as a community
which forms a part of minority in India are lacking far
behind other disadvantaged groups like SC and STs. The
precise reason for this is not only the fallacies and non-
implementation of public policies rather it is also certain
customs and traditions of their community which are
making them to move at a comparatively slower rate. The
pace at which the community is heading towards
development in educational sector poses serious threats
to the secular nature of the State and makes it
questionable. As per the observations made by the
various committee report and data analysis it has been
observed that India has failed to recognize their
educational rights. Also the status of Muslim women is
such that they do not get a chance to receive any
education in particular as they are kept in pardah.
Therefore, these problems need to be addressed by the
authorities and sincere efforts should be made to improve
their conditions. On the basis of the recommendations
made by the Sachar Committee female education and
participation in education system must be promoted so
as to improve their living conditions as well as their
status. Secondly, all the governmental policies pertaining
to the subject must undergo scrutiny and proper checks
and balances must be maintained to keep an eye on the
efficacy of these policies and how far they are proving to
be productive for the purpose they are being framed. The
Bharati Law Review, Jan.-Mar., 2014 315

data collected on the status of Indian Muslims is an eye-

opener for the State and society as well. It therefore calls
for change in existing policies and prevailing systems in
India. Education is a tool which will bring change in the
existing conditions and would amount to over-all
development as well. Also not only would it advantage
that particular community but would ultimately
contribute in the growth of the entire nation. This
problem has to be addressed in its entirety. There is lack
of proper implementation of these steps or initiatives
taken or schemes formulated, which needs to be focused
upon. Though, there have been serious efforts made by
the government in uplifting the status of the minorities
especially Muslims and certain steps have been taken in
furtherance of the same but still there is a lot required to
be done.


Bharati Law Review, Jan.-Mar., 2014 316

ROLE OF STATE IN THE WAKE OF COMMUNAL RIOTS

Ms. Nayanika Ruia *

Mr. Pranav Gupta**

Introduction

India is a land of myriad ethnic, religious, caste and

linguistic minorities affiliated to distinct belief systems,
sub-cultures and regions. The republic of India is the
largest democracy in the world which shares its
boundaries with Tibet, Nepal, china, Bhutan, Burma,
Bangladesh, Pakistan, Sri Lanka and so on after getting
the independences from Englishmen. Integration of these
diverse communities – some large enough to aspire to a
regional homeland and others content to remain as part
of the Indian state – has been a central preoccupation of
Indian governments since 1947. India has adopted a
democratic model which aimed at the concepts of
socialist, secular, sovereign, and democratic republic in
which the subject of ‘secular’ added after sometime, and
this had happened via various influencing factors and
forces which includes politicians, legal elite, western
philosophers etc. This study explores India’s policies and
practice towards minorities and the role of the state and
police administration in regulating the issues related to
the minority group and the communal violence.

Concept of Minority

India is a shelter to all the religions known to mankind in

present scenario and pluralism is the stamp of Indian
society. This multi religious and communal concept is not
new, as it can be traced back to leaders associated with
the national movements, literature works and the
drafting of the Constitution etc. but with the changing
time and limited resources for the upliftment, the
struggle to have that resources made the people against
each other. The stronger ones went ahead and the weaker

* Student, 1st year, BBA LL.B., SLS, Noida.

** Student, 1st year, BBA LL.B., SLS, Noida.
Bharati Law Review, Jan.-Mar., 2014 317

ones were crushed in a chariot of standard, majority and

religions etc. the concept of Minority is defined as:
“A minority is a population group with ethnic,
religious and linguistic characteristics differing from
the rest of the population, which is non-dominant,
numerically smaller than the rest of the population
and has the wish to hold on to its separate identity.”1

India Recognizes Three Types of Minorities

Religious, caste-based and linguistic:

1. Religion based: According to the National

Minorities Commission, the designated minorities
are the Muslims, Sikhs, Christians, Buddhists
and Zoroastrians. All religious minority groups are
granted the right to personal laws. Of these, the
Muslim civil code has proved the most
controversial.
2. Caste based: Part XVI of the Constitution
designates Scheduled Castes (SC) and Scheduled
Tribes (ST) for protection. The Other Backward
Castes (BCs) and Classes were added later by
various acts of Parliament. These minorities have
been targets of historical discrimination derived
from the traditional caste hierarchy.
3. Language based: There are two ways in which
linguistic minorities are granted political space for
participation and representation: through federal
autonomy and by drawing up a schedule of
languages and identifying minority languages for
protection.

Laws for the Minorities

The scheme of safeguards provided by the Constitution of

India, which the nation gave unto itself on January 26,
1950, was more elaborate and comprehensive. The basic
concepts are enshrined in the Preamble to the
Constitution and the chapter on the Fundamental Rights.
Our Constitution lays great emphasis on the
fundamental unity and equality of the people of India.
The Union of India (of which the States form an integral

1 Henrard (2000).
Bharati Law Review, Jan.-Mar., 2014 318

part) recognizes only one common citizenship for the

entire population, and guarantees equality of rights and
opportunities to all its citizens. The Constitution makes
adequate provision for stimulating the personality of the
individual and ensures equal treatment and full
opportunities to linguistic minorities. These rights are
accompanied by specific safeguards in respect of
language, culture, freedom of speech, freedom of worship,
and equality of opportunities in securing employment,
and in trade and commerce.

Few articles those basically deal with the rights of

minorities:
Art. 25-Right to Freedom of Religion, Subject to public
order, morality and health and to the other provisions of
this Part, all persons are equally entitled to freedom of
conscience and the right freely to profess, practice and
propagate religion.

• Articles 14-18 Right to Equality

• Articles 29-30, Cultural and Educational Rights,
to accommodate the diverse groups existing in the
country.

Why to Care for Minorities

It is important to understand the conditions and

problems of minorities in India. First, despite a relatively
impressive array of constitutional and legislative
guarantees, and the establishment of a broad range of
institutions, autonomous bodies and commissions to
monitor and protect the rights of minorities, India’s
disadvantaged and marginalized segments find their
access to power and judicial redress blocked by a
coalition of powerful forces. Minorities face
discrimination, violence and atrocities. Constitutional
and legislative protections have not prevented periodic
pogroms against religious minorities, as in Gujarat in
2002, when more than 2,000 Muslims were killed, or in
the riots following Indira Gandhi’s assassination that led
to the Murder of 3,000 Sikhs in Delhi alone. The
government response to such riots has been ineffective.

Second, the wide gap between existing laws and the

reality of minority conditions deserves attention. As a
Bharati Law Review, Jan.-Mar., 2014 319

member state of the United Nations (UN), India is bound

by the Universal Declaration of Human Rights (UDHR)
and the Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities
(UNDM). Of particular relevance to this study is Article 3
of the UNDM.

Of all the religious and ethnic issues in contemporary

India, history has cast its deepest shadow on Hindu-
Muslim relations. The most critical contemporary phase
of this history was the partition of 1947. A Muslim
sovereign state of Pakistan was born amidst ghastly
communal violence but almost as many Muslims as there
were in the new constituted Pakistan, for various
reasons, stayed in India. The partition did not solve the
Hindu-Muslim problems; it caused the situation of the
Muslims in India more pathetic despite of several laws by
the Indian constitution, the state has failed to regulate
them, which further resulted abysmal and cruel
misshape on the name of religion, caste and race.

There are many riots and other related activities which

has left a pathetic stain on functioning of India’s
government and its policy making system.

What is the Role of a State?

Protection of minority rights is the obligation of the State

where the minority resides, so governance plays a vital
role in involving minorities in societies and protecting
their rights and interests. Through recognition, dialogue,
and participation, all the citizens of a diverse society can
form a greater understanding of one another's concerns.
The media and education have important roles to play in
this regard, as do political representatives and
community leaders. Although no country has a perfect
record on minority rights, though an attempt should be
done to make a nation as a happy ground for all its
citizens.

In order to prevent conflict, protect minorities, integrate

ethnic diversity and foster friendly relations between
States, we must not erode the principles, standards and
mechanisms that have been carefully developed in the
past half-century. Indeed, States should not only ensure
Bharati Law Review, Jan.-Mar., 2014 320

that policy and practice guarantee the minimum of

minority rights, but they should promote full and
effective equality between persons belonging to national
minorities and those belonging to the majority."2 So make
a state better for its citizen, Indian government should
improve on:

• Judicial system
• Education system
• Education standards of politician
• Safety of every individual.
• Equal aid to every community and culture and
especially to the neediest ones.
• Effective Laws for the upliftment for the minority
group.

Case Study: Muzaffarnagar Riots

In the recent decades, with a sharp rise in the communal

incidents and religion based tensions, the growth of
communal riots and force has acquired a dangerous
position in India. Communal violence has been prevailing
in India since a long time. For example, the 1984 anti-
Sikh riots.

27th August 2013, a terrifying yet sad day in India

which gave birth to a new group of communal riots
namely ‘Muzaffarnagar Riots’. Severe clashes between the
two communities, the ‘Muslims’ and ‘Jats’ in
Muzaffarnagar and Shamli, India broke out in the parts
of rural areas and communally sensitive district of
Muzaffarnagar in Uttar Pradesh which claimed more than
43 lives leaving 93 plus injured. These riots in
Muzaffarnagar have not only raised questions about the
social stability in India but also about the ability of the
civil administration in order to remove disorder and
enforce tough rules and laws against targeted communal
violence.

From inception, the situations and factors which led to

the emergence of such serious riots and violence was, on
this one day when a Hindu girl was walking past a

2 H:\cscssscccsccs\Sovereignty, responsibility, and national

minorities statement by OSCE minorities commissioner-High
Commissioner on National Minorities.htm.
Bharati Law Review, Jan.-Mar., 2014 321

Muslim community on her way to school; she was being

harassed by a man who passed lewd, insulting comments
on her. The girl then further complained to her brothers
about the incident. Without giving it a thought, the
brothers took the matter in their own hands and decided
to teach that guy a lesson by inserting a knife into the
guy’s stomach, which ultimately resulted in his death.
The guy who had harassed the girl belonged to the
Muslim community. The friends, family and neighbors of
that Muslim boy caught hold of the girl’s brothers and
lynched them mercilessly in front of many witnesses.
This was not the end but a beginning which opened doors
to the Muzaffarnagar communal riots. The girl’s father,
when tried filing a FIR against the family of the boy who
had harassed the girl, the police refused to register the
FIR. On the other hand, when the Muslim family went to
file a FIR for the murder of their son who harassed the
girl, the police readily registered the case and arrested
the Father of the girl with his other close relatives.

Here, the problem actually started, as by thinking that

clear discrimination was done by the administration, the
Jat community requested the panchayat of their
community to force the police in order to drop the
charges against girl’s father.
Nonetheless, the Administration did not take any final
decision. The Jat community again approached the
Panchayat under the ‘Bahu Beti Bachao Sammelan’ and
distributed a few inflammatory videos and pictures via
CD/MMS. With no action brought in by the main people
of the district, people of the Muslim community took
advantage of the situation and on a certain day attacked
the people of the Hindu community. After this incident,
the riots spread like fire which became uncontrollable.

1. Impact of the Media

The vernacular media and a few major national news
channels (electronic) have seemed to have played a vital
role in provoking and instigating serious violence and
aggression against the Muslim community. Through
unfound and false stories, a mischievous and deliberate
attempt in spreading hatred between the communities
was a part of the role which the media played.
Nonetheless, with the support of the representatives of
political parties like BJP, they used social media like
Bharati Law Review, Jan.-Mar., 2014 322

Facebook, MMS and CD’s as a tool arouse hatred before

as well as during the riots. Moreover, the people of
Muzaffarnagar gave a communal color to the violence by
exaggerating the incidents. Many Hindi news channels
and newspapers misreported the happenings on daily
basis by setting up a picture in the minds of the public
that it was the Muslims who were slaughtering the
Hindus and initiating distorted violence. As a result,
there was a severe rise in the rumors and passion to fight
and revolt back in the riots.

2. Role of Police and Administration

The role of the police administration is majorly important
during a communal violence in order to maintain peace
and decorum in the society. In the Muzaffarnagar riots,
the police was reluctant in serving the sufferers, as in
spite of repeated calls made by the people for help, the
police refused to intrude. The women were refused to be
protected by the police, which as a result persuaded
them to take shelters into homes by the mobs. On the
contrary, the police patrols denied to help the injured
men and also taunted the Muslims by abusing them
continuously. The FIRs and complaints were not
addressed and registered by the police even when the
names of the attackers were mentioned as evidence. The
administration was unsupportive throughout the riots as
it failed to provide proper security to its citizens and at
present is unable to provide curable and required relief in
the different camps to the displaced survivors. Lack of
allowance paid to inmates, shortage of food and water,
lack of special supplies like milk for the children; no
provision for the pregnant mothers and their babies, no
doctors/infirmaries for treating the injured and survivors
etc.

3. Economic Loss
The result of these riots and communal violence were
tremendous as they had a dreadful impact on the
economy. Many survivors, mostly the daily wage laborers
like small traders, vendors, farm labors etc. having their
small homes in Muzaffarnagar were forced to leave their
homes. In order to protect and save their lives from the
Jat mobs (armed), they had to flee from their houses
which as a result displaced many people eventually. Their
houses were looted and burnt, along with which all their
Bharati Law Review, Jan.-Mar., 2014 323

cattle and animals were slaughtered with the men. The

women had no hopes of returning back or getting
rehabilitated soon as they were unaware of the
‘compensation’ as a right which they could demand from
the state. They were clueless about which occupation
would they engage themselves now, as they had lost each
and everything which they possessed like livestock, home
etc.

4. The Condition of Women and Children

The condition of women and children has been critical
always in the human tragedy. They are perpetually the
worst sufferers in all scenarios. Women faced many
hardships while living in the relief camps like a refugee
as they were constantly subjected to a pitiable plight on
their condition. Their children at the camps were
constantly traumatized. The women survivors elaborated
on mass assaults which took place during the riots.
Women and their daughters were raped in public and
then burnt alive. For the same, the FIR’s were filed but
no action took place by the police. The education of many
children was affected. Many were brutally and mercilessly
killed. A large number of school-going young girls were
married off quickly by their parents in fear for their
security and safety. The conditions at the relief camps
were also poor with improper sanitation, dirty
surrounding, insufficient food for children etc.

Drawbacks of State while Handling Sensitive Issues

like Minorities

Even after celebrating the 66th Independence Day, the

condition of Indian politics has got worse. In today’s
arena of politics, the people of this nation majorly got
carried away and cast their vote in name of caste,
religion, community etc. which ultimately bring forth the
non-organized and a kind of tyranny government which
sometimes deals its citizens like Jews used to deal in
concentration camps. Such type of election and formation
of government in India raises a huge question on the
validity and reality of its so called ‘democratic and
secular’ approach. Some most common issues related to
political instability and poor governance are:
Bharati Law Review, Jan.-Mar., 2014 324

• Caste, religion, community based voting and

politics.
• Misuse of authority by ministers and Gov. Officers
to satisfy their vote banks, like Godhara Kand,
Babri Maszid issues etc.
• Low standard of educational eligibility criteria for
MPs and MLAs for the election.
• Misuse of Media which includes print media,
electronic media.
• Internet (Facebook, twitter etc.) is most burning
and dangerous medium. It had done a lot in
emblazing problems in Mujaffar Nagar riots.
• Politics for only reservations to attract the voters
of a particular group or religion should be
stopped.
• No effective legislation for the violence with
respect to the minority group.

Suggestions

• To end the minority conflicts a political solution

that guarantees minority rights is essential;
ceasefires and peace agreements should be
negotiated with full, free and effective
participation of minority groups.
• The central state government must fulfill its
constitutional obligations and promote genuine
autonomy at the state level, permitting minorities
space for self-rule
• To uphold this commitment there should be
explicit constitutional provision for separation of
powers and non-interference of the central
government in autonomous regions’ governance.
• The Government of India should also repeal anti-
terrorism legislation such as the Armed Forces
Special Powers Act, which has the effect of
negating autonomous states’ control over their
own affairs.
• All communities, including the smallest and most
marginalized minorities, have a right to
participate in public and political affairs (UNDM
Articles 2.2, 2.3); electoral systems and methods
of governance should provide for political
representation of all (including minority women
and men) at state and central state level, and
Bharati Law Review, Jan.-Mar., 2014 325

should provide incentives for political parties and

democratic institutions that appeal to all
communities across ethnic, religious and
linguistic lines.
• In keeping with India’s duty under Article 2.5 of
the Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and
Linguistic Minorities, the government should
place no restrictions on the rights of minorities to
maintain kinship links across borders. Such links
may also be promoted by setting up cross-border
bodies to address issues of common interest,
which have an important role in facilitating
openness and supporting identities. Status of
India with regard to international minority rights
standards.
• Civil society should play a role in promoting inter
community cooperation and supporting positive
relations across ethnic, religious and linguistic
lines, and should work to increase the capacity of
marginalized minorities to advocate for their
rights.
• The Government of India should implement its
obligations to promote minorities’ rights to
practice their culture, religion and language
(ICCPR Article 27).
• There should be effective anti-discrimination
legislation and mechanisms to challenge
discrimination at all levels to uphold
Constitutional provisions. This should be
accompanied by special measures where
minorities have been excluded, as the means to
overcome inequalities.

Role of the Police in India

The police are one of the omnipresent organizations in

our society. In case of need, crisis, difficulty and danger
when the citizen is clueless about what to do and whom
shall he/she approach; the police patrol or the police
station are then the most approachable and appropriate
unit for the citizens. The police are the only most visible
working representative of the government. They are the
most dynamic, interactive and accessible organization of
the society. Their functions, duties and roles in the
Bharati Law Review, Jan.-Mar., 2014 326

society are complex and dubious with the main aim to

maintain law and order in the society. The functions and
the role of the police include enforcing and upholding of
the law to protect life, property, liberty, dignity of the
members of the society and human rights. It preserves
and promotes public order to protect and prevent internal
security, terrorist activities, breach of militant activities
and communal harmony. It is appointed to safeguard the
public properties like roads, bridges, railways etc. against
any kind of attack or violence. It protects the citizens of
its nation from crime; by their own preventive measures
and actions they reduce the probability of the
commission of a crime. Fairly registering all complaints
which are brought to them and investigating all kinds of
cognizable offences, acknowledging the receipt of the first
information report to the complainant, maintaining
security in the community by preventing conflicts and
promoting amity, aiding the individual and providing
active assistance in case of necessary help are a few
essential duties of a police. It facilitates an orderly
movement among people and vehicles in order to regulate
and control traffic. Social responsibility of the police
include behaving with decorum and courtesy with the
members of the society, particularly women, senior
citizen, children and mentally or physically challenged
individuals by guiding and assisting them requisitely.
Insuring harmony and peace during conflict between
communities, the conduct of the police always is
governed to the principles of human rights norms and
impartiality with special focus to protect the weaker
sections of the society along with minorities. Preventing
harassment of children and women in public areas like
stalking, abusive gestures, remarks and signs of
harassment which cause distortion and disturbance in
the society. Maintenance of essential government services
in order to obey and follow an order given by the
government or any superior institution is the basic duty
of the police officer. The role of the police in India is to
protect, promote and preserve the human rights and
interest of the backward classes, weak and poor strata’s
of the society.3

3 http://police.pondicherry.gov.in/Model%20Police%20Manual%20
by%20BPRD/Draft%20Police%20Manual%20BPRD%20-
Volume%202.pdf.
Bharati Law Review, Jan.-Mar., 2014 327

Drawbacks of the Indian Police

The system of Indian police constitutes of various

drawbacks, where the police suffers a variety of
procedural, personnel, organizational and behavioral
paradoxes and ailments.4

1. Corruption, a root cause which provokes the police

to breach its duty by either getting bribed for
money or due to the political interference in its
duty. Under political pressure and high orders, the
police often get deviated from its duties towards
the society.
2. The lackadaisical attitude of the police officers in
the Indian system portrays its work to be
inefficient, casual and careless.
3. Low salaries which are paid to the police in today’s
cost of living, demotivates and pressurizes the
police to persuade illegal ways in order to earn
money as a part of corruption.
4. One of the main factors is job security, which is
taken for granted by the police officers under the
wake of which they prefer to get bribed and prevail
on a wrong path in order to earn more money.
5. Inadequate and lack of professional training of a
personnel, no modernization of the equipment and
the system demoralizes the ability, strength and
competence among the police.
6. The most important reason which makes the whole
police system inefficient is that they are dummies
in the hands of the political parties and politicians.
They get bribed very easily to perform an act which
is against their rules and duties, while supporting
the political parties because of which corruption
flourishes.
7. Illegal detention and arrest, ill-treatment and
police torture, false register of complaints and lack
of investigation of a crime which violates the
human rights of the public and citizens in the

4 http://www.indiaeyewitness.com/Channels/Issues.asp?category=P
olice%20System.
http://www.firstpost.com/blogs/how-to-improve-indias-police-a-
roadmap-677462.html.
http://www.loksatta.org/cms/documents/indianpolicesystem_sum
mary.pdf.
Bharati Law Review, Jan.-Mar., 2014 328

society are a few obstacles in a police officer’s

accountability.

For example, as witnessed in the Muzaffarnagar riots,

the police was reluctant in serving the sufferers, women
and children during the communal violence. They even
denied to register and address complaints and FIRs
which were made by the people. They were unsupportive
throughout the riots and failed to provide proper security
to the people of Muzaffarnagar.

Suggestions

1. In order to substantially improve the functioning

and efficiency of the Indian police force, a division
of the unit into three fields i.e. mechanism,
investigation and maintenance of law and order in
the society should be done.
2. To enhance the public accountability and ensure
the unnecessary interference of the political parties
into the duty of the police, a collegium should be
set up where a few key officers should be
appointed to take control of the situations which
give rise to corruption like bribing.
3. There should be an independent body which would
have a jurisdiction over the complaints and FIRs
filed by the public which are often unattended.4
4. The overall functioning and efficiency of the lower-
level officers can be highly boosted by training
them in a better and modernized atmosphere,
paying them better allowances and creating a
system which encourages them with a positive
action, instead of a negative one.
5. Sustained social and political support for reform
should be provided where it can ensure that the
reform is maintained and properly initiated.
6. Leadership among police can also make the reform
more effective as a good police leader should have
professionalism, integrity, competence and ability
to motivate its staff. Adequate resources and/or
low-cost measures.
7. A good and proper system of evaluation should be
done on a regular basis which is essential for
identifying the widespread implementation of
Bharati Law Review, Jan.-Mar., 2014 329

successful reforms which can in turn improve the

police performance and efficiency.
8. Salaries and promotions should be increased for
hardworking and fair police officers as they not
only encourage them to perform better but also
help them to sustain a comfortable life.
9. With stringent laws under the legislation which
primarily focus on the conduct of the police
towards the society, i.e., to maintain peace and
order, protect women and children, secure its
citizens etc. helps to transform the work of the
police into a more candid nature.
10. Employing women officers and just, truthful police
officers whose soul duty is to protect the society
from crime and violence instead of the aim to earn
more money.

Conclusion

Hence, the state as well as the police together play a

crucial role in preventing the breach of human rights of
the minorities. During a communal violence, when the
lives, property etc. of the people are under a threat, a
need for a proper framework which clearly distributes
and assigns the work of the state and police individually
in required. This should further be synced between each
other for a proper coordination during an emergency.
Breach of duty and rights by the police and the state
disorientates and distorts the entire system which in turn
impacts and effects the minorities of the society severely
as they might get displaced, tortured, killed etc.
Minorities form an essential part of this society and thus,
their rights should be secured and protected by the police
as well as the state for a proper functioning of the
nation.


Bharati Law Review, Jan.-Mar., 2014 330

RIGHTS OF LINGUISTIC MINORITIES AND

POLITICAL INFLUENCE
Ms. Manvi Damle*
Ms. Apeksha Sizaria**

The term linguistic minorities refer to a class of people

who are less in number and speak a language that is
different from that of the majority in a state. However,
this is a very superficial view of the problem. It is very
difficult to define the term “linguistic minorities” in
specific as it takes a new turn at every new place, has a
very vast form and has to be understood in a different
context. Indian multilingualism is very unique where one
language is written in many scripts and many languages
are written in one script. As the proverb says “Every two
miles the water changes, every four miles the speech.”
There is “Diglossia”- the coexistence of a highly elaborate,
formal language alongside a more colloquial form of the
same tongue - occurs in many instances. For example,
spoken Bengali is so divergent from written Bengali as to
be nearly another tongue.1 Such is the diversity of
language in India.

To be more elaborative and specific there are different

aspects to why people belong to the minority group of
language which may vary from person to person, such as
they may be “permanent residents” i.e., Bengali speakers
residing in Belgaum district or Marathi speakers in
Assam , they may be “transitory” i.e., coming to a
different state to earn livelihood , they might be the
speakers of the language which has its own script and
literature and on the other hand it is even possible that
no script or literature exists for a language. Another
possibility might be absence of regional language for a
state i.e., none of the language is spoken by more than
half of the population, for e.g., in Nagaland, Arunachal

* Student, 1st year, B.A. LL.B., Institute of Law, Nirma University

Ahmedabad.
** Student, 1st year, B.A. LL.B., Institute of Law, Nirma University
Ahmedabad.
1 LINGUISTIC STATES INDIA, available at
http://www.indianchild.com/linguistic_states_india.htm.
Bharati Law Review, Jan.-Mar., 2014 331

Pradesh and Meghalaya. In such a case all the languages

spoken in the state are regarded as minority. At present
around 114 languages are spoken in the country out of
which 22 are scheduled. Almost all the languages spoken
in the country basically belongs to four different families
i.e., Dravidian, Indo-Aryan, Sino-Tibetan, Austro-Asiatic.

There are two different features that define the minority,

first is “functional load”2 and second is “functional
transparency”. Functional load refers to the ability of a
particular language to cover the maximum domains.
Higher the domain it covers, higher will be the load. For
e.g., English, it covers a large domain such as in
education, politics, management, business, national and
international interaction etc., so it has higher load. On
the other hand any tribal language has only one domain
which is at home, so it has lesser load on it. Functional
transparency refers to the degree of functional load i.e.,
the control and autonomy of the language in the
particular domain. Higher the autonomy, higher will be
the transparency. For example, Sanskrit explains a lot
about Hinduism and has its own say in it, so it is higher
on transparency.

In India, there are various laws made for protection of

minorities. India is a democratic country where there has
to be rule by the masses and protection of minorities has
to be ensured. But being so diversely multilingual it is
very difficult in India, to implement any law without side
effects.

The formation of states in India has been the biggest

example of the above. The main aim after India gained
independence was carving out of states on linguistic
basis such that maximum people speaking the same
language could be grouped together. Under the provisions
of Article 3 of the constitution this was done as it allows
formation of a new state. Odisha was the first state to be
formed on linguistic basis in 1936 because of the
consistent efforts of Madhusudan Das. Later, in 1952,
Potti Sreeramulu fasted until death, demanding the

2 RAJESHWARI V. PANDHARIPANDE, MINORITY MATTERS: ISSUES IN MINORITY

LANGUAGES IN INDIA, International Journal on Multicultural Societies,
Vol. 4, No. 2 available at
http://www.unesco.org/most/vl4n2pandhari.pdf.
Bharati Law Review, Jan.-Mar., 2014 332

separation of state of Andhra Pradesh, so that the Telugu

speaking population could get a separate state. He
wanted protection of linguistic rights of his people and
thus, a new state. However, today years after the
formation of Andhra Pradesh, demand for a separate
state of “Telangana” began. Telangana was made a part of
Andhra Pradesh in 1952 partition. Since then, this
insecurity has always prevailed. One might wonder why
people speaking the same language are demanding
separate states or probably what relevance this holds in
context of this paper where we are discussing violation of
rights of linguistic minorities. But it surely does.
Telangana is a backward part of Andhra Pradesh, very
rich in resources. Andhra Pradesh government has
exploited the resources in this region in a way that has
not been favorable for people of Telangana. Main reasons
for demanding Telangana are:

• Rivers like Krishna and Godavari flow through

Telangana, but the water from the dams are sent
to Andhra.
• Because of less literacy and backwardness of
Telangana people, most of the new jobs, postings
in government and education are given to people
from Andhra.
• Except for common language, the people of
Andhra and Telangana have different dialects,
histories, cultural systems, different food
habit.i.e.telangana.org

Also, 45% of the state income comes from Telangana

region. When it comes to utilization of funds, the share of
Telangana is only 28%.3 Hyderabad has become the bone
of contention between them. Hyderabad is one of the
most developed cities. This development has been at the
cost of exploitation of resources in the Telangana region,
where people, however, never received any benefits out of
the same. Therefore, division of “Telangana” is a
contentious issue in context of placing Hyderbad in any
one state, where one has taken up the task and made
efforts to develop the city while on the other hand is an
area that provided the required resources for

3 Interview with Dr. Jayshanker, ‘Why Telangana’ , available at

http://www.telangana.com/why_telangana.htm.
Bharati Law Review, Jan.-Mar., 2014 333

development. In the context of this paper, it is necessary

to understand that if demand for Telangana is considered
then unity and integrity of India is risked. So many
languages are spoken in this country with uncountable
dialects and variations. If states are on divided
considering all of them, India will be left in pieces. When
disputes can arise in a state where people share the same
ethnicity, they can surely arise in multilingual states.
This is so because there is probably no such area which
is totally unilingual. Every area has some people
speaking a language that is different from what
maximum people speak. There are bilingual or
multilingual belts present in many areas. It also included
certain tribal belts who spoke so many languages and
dialects of the same. Out of 114 languages in the
country, 88 are classified as tribal languages, out of
which only four i.e. “Bodo”, ”Dogri”, “Maithili” and
“Santali” are included in scheduled languages. 36.3
million of Indians from 1.2 billion speak absolute
minority language, which is mostly “Adivasi” language.
However, the “Adivasi” population is estimated to be 70-
80 milllion. This shows that not all “Adivasis” are
speaking their language.4 They may still relate to their
cultural roots but constant discrimination, suppression,
lack of protection and modernization have seriously
impaired the development of these languages, rendering
them with less number of speakers. Through this paper
we would suggest that altering state boundaries to
protect rights of linguistic minorities is not a viable
option in a country like India. Instead, it should be
ensured that rights of linguistic minorities should be
protected and safeguarded in such a way that there
remains no feeling of insecurity and desire to form a new
state. When this is achieved, goal of democracy will be
realized in its true sense.

Now, considering such a complex scenario it becomes

difficult to identify the “linguistic minorities” in India.

The eighth schedule of the Indian constitution includes

twenty-two languages, which constitute 93 mother
tongues. Earlier it had fourteen languages, Assamese,

4 Kamal K. Sridhar, Language in education: Minorities and

multilingualism in India, 42(4) International Review of Education
327-347 (1996).
Bharati Law Review, Jan.-Mar., 2014 334

Bengali, Gujarati, Hindi, Kannada, Kashmiri, Malayalam,

Marathi, Oriya, Tamil, Telugu, Punjabi, Sanskrit and
Urdu, when the constitution was first formed in 1956.
Later on Sindhi was added in 1969, Nepali, Manipuri and
Konkani in 1992 and Four tribal languages “Bodo”,
”Dogri”, “Maithili” and “Santali” in 2003. It is the duty of
the government of India to develop these languages.

Now, the common misconception is, that mere

classification of a language as “scheduled” gives it a
status and makes it a majority language. This is however,
true only to a certain extent. It is true that these
languages are those languages which are spoken by most
people in India, but then it is necessary to see the other
side of the coin. For e.g., Telugu is a scheduled language
and so is Tamil. Most people in Tamil Nadu speak Tamil
and most in Andhra Pradesh speak Telugu. When a
Telugu speaking person moves from Andhra Pradesh to
Tamil Nadu he also becomes a linguistic minority.
Therefore, it is evident that even a major language can
become a minority with change of place. Sometimes a
language may be a majority language, but may not be
given official status by the state. For e.g., In Kashmir,
80% people speak “Kashmiri” and “Dogri”, however the
official language of the state is “Urdu”.5 Even if “Urdu” is
declared at the official language in Kashmir, it still
remains a minority language at the state level and it’s
protection and promotion is not ensured merely by
declaring it an official language. It is evident that
declaring a language as “scheduled” or “official” will
surely add to its status but does not ensure its
development, which usually is the actual objective behind
such declaration. Protection and promotion of languages
of linguistic minorities can take place when the
government of a country takes certain steps in this
direction.

Also, though the culture should be protected but “one

language” policy and its relevance can’t be ignored. Say
for example a Gujarati speaking patient residing in
Madhya Pradesh goes to a Hindi speaking doctor and
converses with him in his own native language. Now here
lie the chances of misinterpretation, which may cause

5 See supra note 2.

Bharati Law Review, Jan.-Mar., 2014 335

harm to one the party. Here it becomes important to

understand that conserving a language and not being
ready to use any other language are two very different
things. Though there is a hair line difference between
both concepts, but they should not be confused with. The
main purpose should be protection, not creating chaos.

Considering the situation, one of the most threatened

rights of linguistic minorities is their right to education.
Though, laws exist in this regard, but again they lack
implementation. Article 296 and Article 307 are the two
main articles in part three of the Indian constitution
regarding protection of minorities. However, there are
certain loopholes. Firstly, the constitution of India does
not define the term minorities in specific. It is considered
to include both religious and linguistic minorities.
Therefore, when laws are made there is always some kind
of ambiguity associated with it.

The article allows citizens to preserve their language

and guarantees admission in state run educational
institutions without discrimination. However, this
provision does not seem to be sufficient to cater to the
needs of multilingual Indian landscape. When a tribal
person, who cannot understand any language except his
mother tongue, is admitted into a state run institution,
where medium of instruction is different, he
automatically feels alienated. Education for him becomes
strenuous which finally results in increased number of
drop-outs from schools. To avoid such outcomes, it is not
only necessary to ensure admission in educational
institutions but also the medium of instruction should be
looked after.

6 INDIA CONST. art. 29. "Protection of interests of minorities. (1) Any

section of the citizens residing in the territory of India or any part
thereof having a distinct language, script or culture of its own shall
have the right to conserve the same. (2) No citizen shall be denied
admission into any educational institution maintained by the State
or receiving aid out of state funds on grounds only by religion, race,
caste, language or any of them."
7 INDIA CONST. art 30. "Right of minorities to establish and administer
educational institutions: (1) All minorities whether based on religion
or language, shall have the right to establish and administer
educational institutions of their choice. (2) The state shall not, in
granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the
management of a minority, whether based on religion or language.”
 Bharati Law Review, Jan.-Mar., 2014 336

International organizations like UNESCO, have

acknowledged the importance of education in mother
tongue. However, situation in India is so complex that
even if maximum people are given the opportunity of
getting educated in their mother tongue, a large section
of population will still be left out as their mother tongue
might not have proper scripts, books or literature
available for studying. The population of this section
might equal the entire population of US.8 Feasibility of
the law is at stake. The question we need to ask is
whether such laws can be implemented without harming
any section of minorities, if not benefitting them.

It was soon realized that most minority languages were

also those that were not specified in schedule eight of the
constitution. Therefore, The State’s Reorganization
Committee inserted Article 350-A9 and 350-B10 in the
constitution which were specifically made for linguistic
minorities.

Providing education in mother tongue, atleast at the

elementary level, to the speakers of major languages in
India, who live in their home states has not been a major
problem. The law has been implemented to a great
extent. For e.g. People whose mother tongue is Gujarati
and they reside in Gujarat. However for the rest of the
population, this law does not really work. Speakers of
tribal languages and speakers of major languages who
have migrated to other places are still suffering.

National Commission for Minority Educational

Institutions Act considers only Muslims, Christians,
Sikhs, Buddhists, Parsis and now Jains as
minorities(under section 2(c) of National Commission of

8 See supra note 4.

9 INDIA CONST. art 350-A. “It should be the endeavour of every State
and of every local authority within the State to provide adequate
facilities for instruction in the mother tongue at the primary stage of
education to children belonging to linguistic minority groups; and
the President may issue such directions to any State as he considers
necessary or proper for securing the provision for such facilities.”
10 INDIA CONST. art 350-B. “There shall be a special officer to investigate
all matters relating to the safeguards provided for linguistic
minorities under this Constitution and report to the President upon
those matters at such intervals as the President may direct, and the
President shall cause all such reports to be laid before each house of
Parliament, and sent to the Governments of the States concerned."
Bharati Law Review, Jan.-Mar., 2014 337

Minorities Act,1992 in January, 2014), as notified by the

government of India.11 So any Tamil speaking person who
lives in Gujrat might not be able to avail any benefits
under the act. He may be minority in the state of Gujrat
like Muslims, Christians, Sikhs, Buddhists, Parsis and
Jains but will not come in the ambit of the act. Also, as
article 350-B states, a commissioner is appointed as the
head of National Commission of Linguistic Minorities. He
looks into all matters relating to violation of rights of
linguistic minorities. Commission has the powers of a
civil court and can make recommendations to the central
government. In 2012, as stated in “The Milli Gazette” in
an article by N.A Ansari, certain recommendations were
made by the commission. In it’s 48th report the
commission has firmly stated that “education to children
belonging to minority communities should be imparted in
their mother tongue upto primary level, teaching of their
mother tongue should be made compulsory upto
secondary level and facilities of teaching the language of
their choice or liking should be provided to such students
i.e. minority students. In addition to these, under the
‘Scheme of the Safeguards’.12 It has been recommended
that in places where the population of linguistic
minorities is 15 percent or more, facilities of providing
teachers of minorities language, syllabus books,
translations and other things also should be provided.
Yet another recommendation is that if in any district or
place the population of people belonging to linguistic
minorities is 60 percent their language (or mother tongue)
should be made the additional official and administrative
language so that people speaking this language should
get an opportunity of doing official work (or perform
official duties) in their own language.” However it has
been observed that most such recommendations pile up
in government offices. Not much heed is paid, especially
if they are not in favor of the ruling government.

Also the dominance of English in India, considering the

historical background of British colonialism, has been an

11 Government of India National Commission for Minority Educational

Institutions, Guidelines for determination of Minority Status,
Recognition, Affiliation and related matters in respect of Minority
Educational Institutions under the Constitution of India. available at
http://ncmei.gov.in/writereaddata/filelinks/c296efcb_Guidelines.p
df.
12 Ibid.
Bharati Law Review, Jan.-Mar., 2014 338

impediment. English has become a universal language

and thus, has gained more importance, mainly at the
cost of other languages. Many minority groups have
themselves started undermining their own language and
have lost faith in it. Implementation has also been tough
in small and rural areas where schools lack properly
trained teachers, Languages lack scripts and Libraries
lack linguistic literature. However, we can find certain
steps that have been taken internationally to instill a
sense of confidence among people for their language. For
e.g. Canada has been successful in setting an example
worldwide by becoming the first country to adopt the
concept of “multiculturalism”13 To be more elaborative it
means to make people value what they follow from
ancestors and take pride in it. As mentioned earlier in the
paper, one of the main reason for a language becoming a
minority is because of the people who themselves
consider their own language as a medium of
embarrassment and hence opt to speak a language
spoken by the majority. Canadian government was
successful enough to catch this nerve of the minority and
declared the concept of “multiculturalism”, so that people
feel belongingness with their motherland in spite of being
of diverse nature. This proved to be a milestone on the
road whose destination is unity. Though it won’t be
justified to measure India on the same parameters, but
both the countries share the similarity on being diversity
in them. If people are encouraged to speak their mother
tongue and preserve their culture for generations, then
possibility is to achieve the goal of unity to a certain
extent. Secondly one of the most important point that
can’t be ignored is that no matter how many laws
government pass to protect the minority, role of a layman
in it can’t be questioned. It is high time to sensitize the
republic about the seriousness of the issue and how it is
the duty of every person to preserve, protect and promote
the culture they are brought up in. Every person should
take interest and try to promote the speakers to carry
forward their culture.



13 JULIANA BIONDO, LINGUISTIC MINORITY RIGHTS: PICKING A SIDE,

available at http://yulr.org/linguistic-minority-rights-picking-a-
side.
Bharati Law Review, Jan.-Mar., 2014 339

ROLE OF STATE AND POLICE IN THE WAKE

OF COMMUNAL RIGHTS

Ms. Gagandeep Sobti*

Ms. Aadya Dubey**

Medieval Legacy

Is it not an irony that in post-British India, the

country’s political leadership in pursuit of votes and
vote banks is carrying forward the violent medieval
legacy only for their political interests and dividends
that come from such riots?

The pre-medieval invaders of India generally settled in

Indian soil and merged in the cultural cauldron of this
land. But the Islamic conquests were different. The
conquerors indulged in mass killings, forced conversions
with the superimposition of an alien Arab-Turk-Perso
culture all in the name of religion. This created a
permanent conflict between the two major religious
groups. The creation of Pakistan in the name of religion
and the failure of post independence Indian rulers to
bridge the gap between the two communities have only
exacerbated the distrust between the two communities. 1
Praising their faith as God’s final and perfect religion,
these conquerors declared that it was their divine right to
conquer the non-Muslim world and to superimpose their
culture on the people of the conquered territories. This
mindset of the invaders clashed with the spiritual beliefs
of the conquered people and thus created a permanent
chasm. One cannot but agree that this was not just a
conflict of religion but a conflict of civilization between
the ruling class and the ruled.

The invaders had earlier succeeded in their mission in

Persia and other gulf countries and rejected Judaism and
Christianity as defective variants of Islam but the

* Student, 4th year, BBA LL.B., SLS, Noida.

** Student, 4th year, BBA LL.B., SLS, Noida.
1 Banerjee, S., 2002, When the ‘Silent Majority’ Backs a Violent
Minority, Economic and Political Weekly, 37(13): 1183-1185.
Bharati Law Review, Jan.-Mar., 2014 340

response of the natives in India was different and the

ruled continued their resistance all through. Since then,
the socio-cultural division between the two communities
had remained a permanent feature of Indian society.2
Nobel Prize winner V.S. Naipaul in his book Half a Life
observed that: “Islam has had a calamitous effect on
converted peoples. To be converted you have to destroy
your past, destroy your history. You have to stamp on it,
you have to say “my ancestral culture does not exist, it
does not matter”.3

The British Rule and Its Narrow Objectives

After the end of the imperialistic Islamic rule in 1857 and

shift of power from the Muslim rulers to the British, there
was a marked change in the attitude of the Hindus also
towards the former as well as the new ruler. While “the
Hindus looked upon the British rule as deliverance from
Muslim yoke, and considered English education as a
blessing, the Muslims in their eagerness to preserve their
religion and religious views rejected English education”.
(Muslim Politics and Leadership in South Asian Sub-
continent by Yusuf Abbasi, p. 13).

The British ruler did not like to resolve the conflict

between the two communities. They looked at the whole
issue as a law and order one and emphasis was on
communal harmony to prevent a break down in law and
order and nothing more.

The post-Mogul historians repeatedly wrote about the

Indo-Arab composite culture of this land but ignored the
wounded psyche of the natives. Though the Hindus and
Muslims were living together for more than a millennium
both the groups always remained in social isolation from
each other. At the instance of Mahatma Gandhi, the
Hindus joined the Khilafat Movement launched by the
Muslims against the British for restoration of Ottoman
Empire but this unity was also a temporary one.

2 Brass, P.R., 1994, The Politics of India since Independence, 2nd ed,
Cambridge: Cambridge University Press.
3 http://blogs.wsj.com/indiarealtime/2013/09/26/the-politics-of-
communal-violence/.
Bharati Law Review, Jan.-Mar., 2014 341

Partition and Thereafter

The Indian National Congress had opposed the two-

nation theory tooth and nail but its leaders succumbed to
the pressure of Muslim League leaders who gave a call for
Direct Action in 1946 that led to widespread communal
riots in the sub-continent. These riots were said to be one
of the immediate causes of partition.4

When India emerged as an independent democratic and

secular republic, the then ruling Congress only tried to
philosophize the Hindu-Muslim issue by repeating the
same Marxian theory of composite culture by ignoring the
fact that the “pang of toothache cannot be borne by
philosophical speculation”. Of course the term “secular”
was not incorporated in the Constitution at the time of its
framing, its spirit was secular. But instead of formulating
a practicable policy to resolve the historical communal
conflict, the ruling political party carried forward the
same policy of the earlier rulers. Ironically, the Marxists
and Left-liberal intelligentsia also supported them.5

Revival of the Muslim League Politics by the Muslim

Leaders and their Parties

This resulted in the Muslim League reviving the

movement for the separate identity of the Muslims on the
basis of religion which was nothing but a fight for a
shared political power on the basis of a separate religious
identity. For them, democracy and secularism were alien
to their faith. “Democracy is a concept completely alien to
the Muslim psyche to the extent that there is no
equivalent terminology for it in Arabic or other languages
spoken by Muslims.” (Understanding Mohammad–A
psychobiography of Allah Prophet by Ali Sina, a Canadian
Muslim of Iranian descent). They ignored the concept of
common national identity as accepted by other minorities
like Jews, Christians and Zoroastrians (Parsis) who
hardly had any communal conflict in this secular
country.

4 Brass, P.R., 1994, The Politics of India since Independence, 2nd ed.,
Cambridge: Cambridge University Press.
5 http://economictimes.indiatimes.com/topic/communal-parties.
Bharati Law Review, Jan.-Mar., 2014 342

Had the ruling establishment been bold enough and

abandoned the concept of minority and majority in
framing the constitution, the Indian Muslims like their
counterparts in other non-Muslim majority democratic
countries of the world would have resigned themselves to
being equal citizens. They would have either opted for
Pakistan or accepted the concept of common law for all.
But our Constitution makers ignored the hard historical
fact of religion which was the main reason behind
partition and again divided the people into majority (read
Hindu) and minority on the basis of religion by
incorporating some articles which provided special
privileges to the latter6. This generated a communal
consciousness in both the communities and also revived
the secreting historical wounds in the psyche of the
majority community particularly when the ruling
establishment remained more concerned with the
communal demands of the minorities. Emergence of
other communal organizations could not be prevented.

Vote Bank Politics to Fore

In between Pandit Jawaharlal Nehru to Manmohan

Singh, a number of commissions and councils like
National Integration Council, Minority Commission,
Rangnath Mishra Committee, Sachchar Committee were
set up by the Central Government but such efforts could
hardly resolve the communal conflict in the country.
These exercises rather prompted almost all the political
parties to go for competitive bidding to go for “vote banks”
in the elections. Distribution of communal sops to the
minorities particularly in pre-election year by the so
called secular parties only accelerated the identity politics
played by the minority religious leaders.

By and large only the vote-seeking political parties are

blamed whenever there is any communal riot. But the so
called secular media should be held equally responsible
for not agitating against the vote bank politics being
played by the political parties. If only the government had
not interfered with the Shahbano case, things could have
been different today. But it was not to be as vote bank

6 Devji, F.F., 1992, Hindu/Muslim/Indian, Public Culture, 5(1): 1-18.

Bharati Law Review, Jan.-Mar., 2014 343

politics appeared to be more important and crucial for

survival of some of the political parties.7

Keeping alive the communal issues like over a decade

old Gujarat Riots, Arrest of Muslim suspects in terror
cases, arrest and conviction of Batala House Encounter
in 2008 and 2013 respectively suggest that the Muslim
leaders have made it a strategy to flex their muscle on
any issue which goes against the Muslims.

The Batla Encounter

Within a month of the Batala House encounter in

September 2008, various Muslim organizations organized
a meeting in Jama Masjid Delhi on 14th October and
condemned the arrest of Muslim youths who were
suspected as accused in this encounter. It may be
mentioned that Shahi Imam of this mosque in his
invitation letters had highlighted the “bomb blasts, blame
game, illegal arrests, and torture of Muslim youths” and
also alleged: “The highly discriminatory actions of State
police forces and central intelligence agencies have let
loose a reign of terror to which Central government has
turned a blind eye”. He felt that: “If we don't unite by
closing our ranks to meet this challenge, history will
never forgive us”. The meetings made this encounter a
political issue which is still persisting.

Surprisingly, even the then Jamia Millia Islamia Vice

Chancellor Mashirul Hasan a widely acclaimed
campaigner of ‘moderate and tolerant Islam’ joined the
communal polarization move and offered to provide legal
assistance to the two arrested students of the university.
He even led a street march in support of the Islamists.

Thus, with a sustained campaign the Muslim leaders

succeeded in convincing the community members across
the country that their community members killed in the
police encounter and arrested were innocent and not
terrorists. They went to the extent of preaching that the
death of Mohan Sharma was caused by the bullet fired by
his own colleague either deliberately or by accident.

7 http://www.hindustantimes.com/india-news/newdelhi/unsure-
what-will-work-in-2014-polls-political-parties-play-communal-card-
too/article1-1121826.aspx.
Bharati Law Review, Jan.-Mar., 2014 344

Revisiting Pre Partition Scenario

The increase in communal riots since the beginning of

the new millennium on the eve of election years namely
2004, 2009 and 2013 shows that India is revisiting the
pre-partition challenge of the communal flame engulfing
the country. But the most unfortunate part of the
scenario is the role of political parties, ‘secular’
intelligentsia, journalists, writers and academics in
running down the image of the country in the world.

If the people of the country in general and ruling class

in particular do not take lessons from the historical
wrongs committed by Indians who brought defeat and
dishonour to the nation either to save their throne or
skin, we are bound to fail in bridging the gap of
communal mistrust in the society. The prevailing
dissatisfaction of the Muslim community and consequent
unrest is a dangerous sign for both the internal and
external security of the country.

The answer lies in a strong political will of both the

state and central leadership to shed their politics of vote
bank and one sided approach in handling the communal
riots as otherwise the country will continue facing the
challenge of the medieval legacy. Muzaffarnagar riot will
not be the last and we will only see more riots in future.

In the decade since religious violence in Gujarat left

hundreds of Muslims dead, the State’s chief minister,
Narendra Modi, who is accused of failing to stop the
clashes, has struggled to shift attention from his image
as a Hindu nationalist to his credentials as a pro-
business administrator.

Still, Mr. Modi’s political career, which reached a new

high this month with his nomination as the Bharatiya
Janata Party’s candidate for Prime Minister, has been
shaped by the riots in 2002 in which over 1,000 people
died.8

In a country with a long history of sectarian violence,

Mr. Modi’s supporters often defend the controversial

8 http://asiancorrespondent.com/113760/analysis-the-politics-of-
indias-communal-violence/.
Bharati Law Review, Jan.-Mar., 2014 345

leader by invoking the memory of another deadly riot–one

that took place under the Congress party’s watch. In
1984, nearly 3,000 people, mostly Sikhs, died in
retaliatory violence after two Sikh bodyguards
assassinated the then Prime Minister, Indira Gandhi.

Many senior Congress leaders were accused of inciting

mobs and organizing the clashes, and a few
of them are still being tried by Indian courts. The party’s
president, Sonia Gandhi, is also facing a lawsuit filed by
a Sikh group in a U.S. court for allegedly protecting its
members whom the group says was involved in the riots.
Analysts have tried to explain why the criticisms leveled
against Mr. Modi over the 2002 riots have been sharper
and lasted longer than the backlash the
Congress faced after the 1984 riots. The difference, some
say, lies in the fact that the Congress is largely perceived
as secular, whereas the BJP has acquired a reputation
for being a Hindu majoritarian party.

Rajeev Bhargava, the director of the Centre for the

Study of Developing Societies in New Delhi,
said many people were willing to forgive Congress
because “it is not a constitutively communal party”.

“The wounds of 1984 are limited to what happened in

1984,” Mr. Bhargava, who studies secularism, said. “It
was an isolated incident, but there was no ideological
foundation or pattern and therefore no fear of it being
repeated.”

By contrast, he said, the BJP’s core ideology is centered

on Hindu nationalism. The party rose to power in the
nineties through a movement for the construction of a
contentious Ram temple in Ayodhya that culminated in
the violent destruction of a mosque in 1992, sparking
bloodshed across India.

“The 2002 riots were not an aberration,” said Zafarul

Islam Khan, the President of the All India Muslim Majlis-
e-Mushawarat, an umbrella body of Muslim groups. “A
hard-line Hindu agenda is part of the BJP’s plan.”9The

9 Sarkar, T., 2005, ‘Educating the Children of the Hindu Rashtra:

Notes on RSS Schools’ in Jaffrelot, C., ed. 2005. The Sangh Parivar:
A Reader, New Delhi: Oxford University Press 197-206.
Bharati Law Review, Jan.-Mar., 2014 346

BJP says it is focused on the country’s overall

development and in turn accuses Congress of practicing
vote-bank politics aimed at garnering Muslim votes.10

Congress has made political decisions to win over

religious voters. In the 1980s, the then Prime Minister
Rajiv Gandhi, under pressure from orthodox Muslim
clergy, overturned a landmark Supreme Court judgment
that gave a Muslim woman the right to alimony. He also
embraced the emotive temple issue to boost his re-
election prospects in 1989, allowing the contentious
foundation laying ceremony of a Ram temple next to a
mosque.

But in making these moves, Congress showed political

expediency rather than religious conviction, some
analysts argue. Writing in the Indian daily The Telegraph
in July, columnist Mukul Kesavan said: “Congress, by a
kind of historical default, is a pluralist party that is
opportunistically communal while the BJP is an
ideologically communal party that is opportunistically
secular.”

But Sikh groups argue there is little to differentiate the

two national parties. They accuse Congress of making
false promises to the minority community while
continuing to protect leaders who they say were involved
in the violence. “The Congress party was in power then
and they are in power now,” said Karnail Singh, president
of the All India Sikh Students Federation, who called the
1984 riots genocide. “They have controlled the system to
suppress the truth and to prevent justice from being
done.”

Still, some analysts say the Congress party’s

attempts to reconcile with the Sikh community softened
critics, a situation they contrast with Mr.
Modi’s refusal to apologize for the 2002 riots. Two
successive Congress-run governments since 2004 have
been led by the Sikh Prime Minister, Manmohan
Singh, who apologized for the riots when he came to
power. “I have no hesitation in apologizing not only to the
Sikh community but to the whole nation, because what

10 http://www.firstpost.com/politics/most-communal-party-of-the-
country-is-congress-rajnath-singh-1192309.html.
Bharati Law Review, Jan.-Mar., 2014 347

took place in 1984 is a negation of the concept of

nationhood enshrined in our Constitution,” he said at the
time.

Another explanation is that Sikhs form a small minority

in India and seldom figure prominently in political
calculations, said Shekhar Gupta, a leading Indian
journalist. They form less than 2% of India’s population,
while Muslims account for 13.4%. The rivalry between
Hindus and Muslims has a long and emotive history,
beginning before India’s partition that led to the creation
of the Islamic state of Pakistan.

Right-leaning commentators say Congress, which has

relied on Muslim votes to win elections: “has kept the
issue alive” because it has developed a vested interest is
keeping the community fearing for its personal safety.
“They honed in on the 2002 riots and assiduously created
a demonology around it,” said Swapan Dasgupta, a
Delhi-based political analyst. Congress spokesman
Sanjay Jha said his party had not played vote bank
politics over the riots, which he called “state sponsored,”
an accusation the BJP denied.

Any idiocy and cruelty that has ever been recorded in

the annals of history re-emerges during communal riots.
As religious hatred engulfed the nation and over 1,000
people died, every possible refinement in human
unkindness and poignant twists of fate were on display.
Children are burned alive. New weapons-the lethal acid
sling-shot-appear on the scene. A woman making tea on
the street for the policemen standing outside her home in
Bombay dies when the same jawans turn their guns on
the building. Police arriving at the scene of ferocious
fighting in Bombay's Dharavi slum discover that the
cause is not the Babri masjid but a stolen chicken.11

Muslims infuriated by the sacrilege at Ayodhya went

onto the streets to protest. Finding, in several states, that
the police were using considerable force against them,
they felt even more indignant. As Saeed Hameed, editor of
Tanveer Weekly in Bombay, said: "The feeling was that
the police didn't even raise a lathi when kar sevaks

11 http://www.kashmirtimes.com/newsdet.aspx?q= 23093.
Bharati Law Review, Jan.-Mar., 2014 348

demolished the mosque but are shooting us when we

protest against the destruction." An analysis of what
happened and the reasons for some unpredictable
developments, such as the staggeringly high death toll in
Maharashtra and the comparative calm in Bihar.

Gujarat: The police collude and the administration sits

idle. The violence which exploded in a state known to be
a communal tinder-box shocked even thick-skinned
residents hardened to atrocities and provided
employment to ironsmiths who were asked by Hindu
fanatics to work round the clock making sharp weapons.
A majority of those who died were Muslims who had come
out on the streets in cities such as Ahmedabad and Surat
to protest against the demolition and succumbed to
Hindu mobs or trigger-happy policemen. In Ahmedabad
alone, 28 of the 3 7 Muslims who died were killed by
police bullets. The administration lurked in the shadows,
showing no will to stop the carnage. Five days after it
began, the army had to be called in. When the police were
not firing, they were passive.

There is no evidence to show that political parties were

involved. Lumpen elements were, though, particularly in
areas where prosperous Muslim traders lived. Hundreds
of shops were looted or torched under the police's gaze.
The end result was greater polarization. One sign of this
was the behavior of Hindus who attacked a group of
intellectuals protesting against the demolition, shouting:
"Where were you when Hindu temples were demolished in
Kashmir?"

Madhya Pradesh: Hindu fanatics and the press inflame

passions. It was party time in Bhopal. As the news of the
demolition arrived, Bajrang Dal and VHP workers
celebrated by bursting crackers and distributing sweets.
The police remained silent spectators. By the next
morning, the bloodletting had begun. By December 12,
the escalating violence had already taken 95 lives in
Bhopal and 2 5 in other towns in the state. The
stormtroopers of the Sangh brotherhood provided plenty
of encouragement for the rioters by openly brandishing
weapons while BJP MLA Shailendra Pradhan fuelled the
hatred, saying: "In Bhopal, the minority community broke
all limits of demonic barbarism."
Bharati Law Review, Jan.-Mar., 2014 349

Chief Minister Sunderlal Patwa did little by way of

damage control. It was only when it became clear that the
Centre might dismiss his Government that the state
police got a handle on the situation. Nor were matters
helped by unsubstantiated reports in Bhopal dailies such
as the Madhya Pradesh Chronicle and the Navbharat that
about 70 girls had been abducted from the city and then
gang raped publicly. The reports were denied by the
administration but it was too late. Bhopal was already
burning.

Maharashtra: Numerous Muslims killed in police firing.

Most of the people waiting outside the overcrowded
morgue at J.J. Hospital in Bombay to identify their loved
ones were Muslims. They all had a similar story to tell of
a male relative being shot by the police. Nissar Ahmed
spoke of how his brother Races Ahmed, 28, had gone out
of their hut near the Bandra railway station to see a
clash between two groups. The police opened fire, and
Races was hit in the leg. As he hobbled back home, two
constables shot him in the chest. The vast majority of
deaths in Bombay were from police bullets as policemen,
armed with handguns, rifles and sten guns, fired straight
into Muslim crowds. Bombay Police Commissioner S.K.
Bapat admitted that most of the deaths were caused by
police firing.

What started off as a clash between Muslim youths and

armed police trying to protect public property turned
communal as the riots spread from the densely-
populated Muslim areas of south and central Bombay to
the huge slums of Dharavi, Deonar and Ghatkopar. And
a new weapon appeared: a tyre tube stretched between
two poles used to direct quarter liquor bottles filled with
acid at targets. Estimated range: 500-750 metres. A
helping hand was provided by the assiduously
inflammatory Shiv Sena chief Bal Thackeray who said the
Government was harassing Hindus just to keep Muslims
happy. The Muslim League also swung into action,
putting up posters urging Muslims to make their anger
known-and they did, galvanized into further protests by
images they kept seeing of the demolition on satellite
television. After a week's madness, however, Bombay was
limping back to normalcy.
Bharati Law Review, Jan.-Mar., 2014 350

Assam: Bangladeshi immigrants add a new dimension.

The epicenter may have been in Ayodhya but the tremors
were felt in Assam as though it were just next door. As
the news spread like a raging prairie fire, furious
Muslims went on the rampage killing Hindus and
destroying temples. The worst affected were the districts
dominated by immigrant Muslims. The State Government
says only 68 persons died in the week of massacres but
local newspapers put the figure much higher. The
political ramifications of the violence are alarming. Since
the Muslims who went on the offensive were largely
immigrants from Bangladesh, the ethnic divide in the
state now has religious overtones. An intelligence official
from Assam cautions: "The Assamese did not endorse the
demolition of the masjid. But the violence unleashed by
the immigrants will only harden attitudes towards them."

West Bengal: Marxist smugness exacerbates the

violence. Last rocked by communal violence in 1946, the
mayhem this time was far worse. The orgy of unreason
not only drove the two communities apart, it also
punctured the Marxist Government's cockiness that it
could nip any communal trouble in the bud. This
cockiness had caused complacency-one of the main
reasons why Calcutta was so badly affected. The
administration's responses were ludicrously slow. Even
when police stations were half a kilometre away from
trouble spots, help took ages to arrive. Ram Chandra
Kashyapi, 63, rang up the police eight times but nobody
came: "I have lived through the 1946 riots. What
happened this time is infinitely worse'' said an army
officer: "It was not a very bad situation but a badly
managed one." The Marxists' optimistic decision to lift the
curfew helped the mobs regroup and reorganize and led
to the second round of rioting.

Uttar Pradesh: Bad, but not as bad as expected. It was

the one place that everybody expected to go up in flames
but, oddly enough, while sensitive towns such as Kanpur
and Varanasi were gripped by the nationwide frenzy,
other towns were relatively calm. The reason being that
most people had had their fill of Ayodhya-related violence
in 1990 under Mulayam Singh Yadav. But no thanks to
the State Government. Most districts hardly had enough
forces to cope with large-scale rioting. Anxious to pre-
Bharati Law Review, Jan.-Mar., 2014 351

empt a Hindu attack, many Muslims went on the

offensive. For all the tension, however, it was back to
business as usual after a few days.

Rajasthan: Swift police action minimizes deaths. The

death toll in this BJP-ruled state could have been
colossal. What prevented catastrophe was the prompt
reaction of the police? On the morning of December 7, as
soon as a violent mob had gathered near a place of
worship in Jaipur, the police opened fire, killing 15
people. But, in police parlance, it was "effective firing". Its
impact was felt almost immediately. The situation was
under control within two hours. Chief Minister Bhairon
Singh -Shekhawat also called in the army in seven towns
immediately. And eight towns were placed under curfew.

Bihar: Muslims listen to Laloo. As soon as the first dome

of the Babri Masjid collapsed under the kar sevaks'
onslaught, Chief Minister Laloo Prasad Yadav swivelled
around in his chair, picked up the telephone and dialed
the district magistrates and police chiefs one by one:
"Shoot whoever foments communal violence. Deal with
the situation ruthlessly; otherwise you know how I will
deal with you." Before the incendiary news could get
around, the police and paramilitary forces had moved
into communally sensitive areas. The army was standing
by too. Laloo's directives initially helped contain violence
but pent-up emotions finally erupted in towns like
Ranchi, Jamshedpur and Munger. However, the toll-24
dead-was among the lowest in the country. Of these, nine
people died in police firing. One reason for the muted
backlash was Laloo's nurturing of Muslim-Yadav unity.
He was able to persuade Muslim leaders to influence
their flock to maintain sanity in return for promise of
protection. Laloo also went round the state appealing to
both sides to keep calm. To beef up security, he even
ordered the withdrawal of 82 sections of armed security
men on VTP duties.

Kerala: ISS keeps mum but police firing takes heavy toll.
The Muslim League issued R c SAI a strike call the
moment it heard the news. By early evening, everybody
knew about the demolition. Students preparing for exams
closed their books and sat glued before TV sets. Panic
spread. In a pleasant surprise, the Government and the
Bharati Law Review, Jan.-Mar., 2014 352

police swung into action immediately. Prohibitory orders

were declared in all sensitive areas. And the Government
announced that severe action would be taken against
trouble-makers. Leaders of both communities urged
restraint.

The violence began with a bomb blast in an auto

rickshaw in Trivandrum and exploded into an
uncontrollable riot in Kasargode. Railway stations and
Central Government offices were attacked. The police
were clearly out of their depth and the army had to be
flown in to Kasargode and Malappuram from Trivandrum.
More troops were requested for from Hyderabad as the
BJP called for a bandh.

The bandh evoked little response, yet it extracted a toll

of four lives. The only redemption: no place of worship
was attacked. Malappuram temple came pretty close but
its priests managed to dissuade the rampaging mob. The
rabid ISS maintained a low profile. The Government too
did not provoke it by making pre-emptive arrests of its
activists. In fact, ISS chief Abdul Nasser Mahdhani who
had reason to feel vindicated after the Ayodhya incident,
remained silent, even in the face of reports about the ban
on the ISS?

Andhra Pradesh: Police firmness keeps the hatred within

bounds. Few cities in the country anticipated violence as
well as Hyderabad, which has been a communal trouble-
spot since the early 80s. But when trouble broke out, its
scale was far less than expected. This was mostly
because the police had made many preventive arrests
and Chief Minister K. Vijaya Bhaskara Reddy had given
the force a free hand. The carte blanche to the police
turned out to be a mixed blessing. Expecting a long spell
of curfew, the police did not impose one in the sensitive
old city area till rioting actually started. Then, when faced
with riotous mobs, instead of first trying to disperse them
by using lathis, the police fired, causing many of the
deaths. Karnataka: 60 DEAD. Muslim mobs outnumber
the police. The moment the news about the mosque
began circulating, furious Muslim mobs began gathering
in the Muslim-dominated area of Shivajinagar of
Bangalore looking for a confrontation. Half-a-dozen
districts in the state were affected. The basic cause of
Bharati Law Review, Jan.-Mar., 2014 353

bloodshed was that the police were hopelessly

outnumbered everywhere as mobs, armed with broken
tube lights, iron rods and cycle chains, took to the
streets. The State's three CRPF companies had been
posted at Ayodhya. As DGP A.J. Anandan said that their
plight was pathetic. Most of their men haven't slept for a
week since they came on duty in December. The
Government desperately sought additional forces but the
Centre, inundated with similar requests, was unable to
help.

Tamil Nadu: All quiet on the southern front. While the

rest of the country was exploding with fury, Tamil Nadu
appeared to be an oasis of peace. Madras was
particularly quiet. The only aberration was a few stray
incidents in the southern districts such as Tirunelveli
where two people died in police firing when a mob
attempted to set fire to a police station. Even the reaction
of the political parties seemed muted in comparison with
other states. The DMK and the AIADMK decided to
observe a bandh on December but it was incident-free,
thanks to the Government and the police who had' been
on red alert as early in December. The relative calm can
be attributed to the remarkable restraint shown by
Muslims. All they did was stage a few demonstrations
and close down businesses. The BJP's limited base in the
state was another reason for the relative calm. Punjab
and Haryana, two towns affected was put under curfew.
These two states were spared the carnage, though a
curfew was imposed for the first time since 1947 in the
Muslim majority town of Malerkotla in Punjab in
December when some people tried to take out
processions and damage a temple. Haryana's Gurgaon
district, with a sizeable Muslim population, was also put
under curfew.12

Conclusion

The problem of communalism at the present stage of

societal development in India is almost intractable. This
is as difficult as eradication of prejudices from the
human mind. It is easier to part with money or comfort,
but it is much more difficult to part with one's pet

12 http://indiatoday.intoday.in/story/babri-masjid-bloody-aftermath-
across-india/1/162906.html.
Bharati Law Review, Jan.-Mar., 2014 354

prejudices. These prejudices have resided in human mind

for centuries; framework of years or even decades
appears to be too short for ridding the human psyche of
prejudices particularly those relating to color, religion
and language. But this realization should not act as a
deterrent in coming to grips with the problem and
chalking out a purposeful plan of action to contain it and
ultimately to solve the problem.

The task of curing India of communal virus is no less

difficult than transforming her from a semi-feudal
superstition-ridden society into a modern enlightened
society. The hold of the past on our people has to be
loosened by developing in them futuristic orientation.
People of various communities and religious persuasions
joined together in the common endeavor to overcome
their present disabilities and to attain a prosperous
future would have little time and inclination for petty
squabbles and recriminations.

They will labour together in fields, factories and

laboratories to increase the food production, consumer
goods and sophisticated devices and gadgets to improve
the quality of life. Economic linkages between people of
different communities will provide an antidote to
communal virus and heal the wounds of the past. The
educational institutions, particularly the universities, can
play a pivotal role in enhancing awareness about the
anthropological and sociological findings that confirm the
equality of races and communities.

While elimination of communal feelings requires multi-

pronged strategy involving educational, social and
political measures, prevention of communal conflagration
requires alertness and immediate response from the law
and order administration. The District Administration
should regularly update itself about the various
developments likely to cause communal ruckus. An
political parties, instead on trying to cash in the people’s
religious or minority sentiments should behave in an
acceptable way, rather than treating various sects of
religiously complicated society that India is as a mere
vote bank.
Bharati Law Review, Jan.-Mar., 2014 355

It can initiate preventive detention of mischievous

elements from the concerned communities and can thus
reduce the chances of a communal conflagration. The
local magistrates should keep themselves updated with
the happenings in religious congregations and should be
on the lookout for any serious portents of communal
trouble. Timely information can ensure preparedness of
the administration for unpleasant situations as it will not
be caught napping. If this happens, India might see the
dawn of coming years in a new light. Otherwise,
something will always be holding the spirit of the nation
back.


Bharati Law Review, Jan.-Mar., 2014 356

MINORITY RIGHTS AND ITS REFLECTION IN THE

INDIAN DEMOCRACY

Mr. Vivaswan Awasthi*

Ms. Ranjani Jagannath**

History of Minorities and Their Rights in India

India possesses one of the biggest cultural and religious

diversity in the world. Such is the case from past ten
centuries or more, owing to the invasion of different
classes of people in India. India’s diversity is an array of
its billion and odd population consists of six main ethnic
groups, 52 major tribes, six major religions, and 6,400
castes and sub-castes, besides 18 major languages and
1,600 minor languages and dialects.1 Since the late
nineteenth century, the British as well as some princely
states, for a wide range of groups designated as
‘minorities’, have made certain special provisions.2

The Morley-Minto Reforms brought a religious division,

by giving separate electorates to Muslims, in pursuance
of their ‘divide and rule’ policy. Apart from this, the
colonial rulers and princely states instituted several
reforms to a three-fold classification of minorities,
namely, the religious minorities, scheduled castes and
backward tribes. The colonial rule ended with the
partition of India and creation of a separate State for
Pakistan for the Muslim community. Even though a
significant number of this community chose to stay back
in India, there were several anxieties about the future of

* Student, 3rd year, B.Com. LL.B.(H), GNLU, Gandhinagar.

** Student, 3rd year, B.A. LL.B.(H), GNLU, Gandhinagar.
1 Joshua Castellino and Elvira Domínguez Redondo, Minority Rights
in Asia: A Comparative Legal Analysis,
http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780
199296057.001.0001/acprof-9780199296057-chapter-3, (last
accessed on 22nd Jan. 2014).
2 B. Shiva Rao (ed.), The Framing of India's Constitution, A Study
(Delhi, 1967).
Bharati Law Review, Jan.-Mar., 2014 357

the Muslims in a Hindu-dominated society.3

Independent India was given the task to tackle the

anxieties of the religious minorities that were formed. In a
situation where social and cultural identities had been
mobilized, there were several imponderables.4

Minorities in Pre-independence Era

The non-cooperation and the civil disobedience

movement resulted in strong mixture of nationalism and
communism feelings. Dr. Ambedkar was invited to the
second round table conference in London in 1932, for
which he wished to propose separate electorates for the
‘untouchables’. Gandhi vehemently opposed this idea as
he believed it would further lead to division among
Hindus. All this along with Nehru’s report, gave rise to a
struggle for independence as the prime objective, and
issue of caste and minorities became secondary within
the Congress. Mohammed Ali challenged this formulation
when he proposed that a parity existed between Hindus
and Muslims that overrode their demographic
imbalance.5 Similary, Ambedkar too, reserved his
comments on the ‘majority’ population of India, opposing
the formulation. By the time of the Poona Pact of 1932,
national identity had come to be aligned with the idea of
democratic majority, while communalism was widely
understood as the politics of the religious minorities.6
Thus came the birth of the battle for recognition of
minorties in its initial phase of the pre-independent
India.

In November 1939, Gandhi brought out demands for

Constituent Assembly. In Harijan he wrote ‘the
constituent assembly provides the easiest method of
arriving at a just solution of the communal problem.
Today we are unable to say with mathematical precision

3 Gurpreet Mahajan, Negotiating Cultural Diversity and Minority Rights

in India, Democracy Conflict and Human Security: Further
Readings, Centre for Political Studies, Jawaharlal Nehru University.
4 Id.
5 Shabnum Tejani, Indian Secularism: A Social and Intellectual
History 1890-1950, p. 234 Indiana University Press (2008).
6 Id.
Bharati Law Review, Jan.-Mar., 2014 358

who represents whom; but the Constituent Assembly will

represent all communities in their respective proportion’. 7
This was passed by the Congress in their resolution in
March 1940. Soon after, Jinnah called upon all Indian
Muslims to adopt the demand for ‘independent states of
Pakistan’ at the League’s session in Lahore.8 Jinnah
argued that the Congress was not a nationalist but a
Hindu party, and a constituent assembly could not
proceed without the agreement of India’s Muslims.9 The
1946 Cabinet Mission plan identified the threat of
communal problems which lay on the premise that the
‘Hindus with the greatly superior numbers must be a
dominating element’.10

After Nehru’s statement opposing the plan drafted by

the Cabinet Mission for the allotment of proportion of
seats to Muslims, Sikh and General, Jinnah launched the
Direct Action Day, meant to be a peaceful campaign but
ultimately led to widespread communal violence and
bloodshed. When the much debated partition became a
reality, it was seen by an overwhelming number in the
assembly as a result of secessionist politics of the
minority.11 Thereafter, the debate shifted to what
constituted a ‘minority’ and how it was to be defined.

Ambedkar’s Reasoning for Dalit Rights

Dr. Ambedkar articulated dalit rights in the name of

rights for untouchables, depressed classes, scheduled
castes and tribes in a given historical context.12 He linked
the discontent in the parliamentary democracy to the

7 Chaube, Constituent Assembly of India, p. 31, Manohar Publishers

and Distributors, Revised edition (2000).
8 See supra note 5 at p. 238.
9 See supra note 5 at p. 239.
10 N. Manswergh (ed.), Transfer of Power Documents, Vol. VII, p. 583
London, 1977.
11 See supra note 5 at p. 247.
12 Dr. P. Kesava Kumar, Liberal Democracy and Kymlicka’s Conception
of Minority Rights: Towards a Perspective of Dalit Rights, (30 June
2013),
http://roundtableindia.co.in/index.php?option=com_content&view=
article&id=6582:liberal-democracy-and-kymlicka-s-conception-of-
minority-rights-towards-a-perspective-of-dalit-
rights&catid=124&Itemid=140, last aceessed 22nd Jan. 2014.
Bharati Law Review, Jan.-Mar., 2014 359

idea of liberalism which had not been delivered to the

masses in the right proportion. He did not want the
Indian mass to suffer such weakness, and hence
propounded a written constitution where the right to
liberty, property is envisaged to each person irrespective
of their social or economic status. He points out that
parliamentary democracy in standing out as a
protagonist of liberty has continuously added to
economic wrongs of the poor, downtrodden and
disinherited class.13

Hence, political democracy goes in vain where there is

no social or economic democracy which he argues is the
tissue and fibre of political democracy. This was the
strength of his argument for the dalits. He felt the
western thought of democracy was more surreal in
nature. Even in the Draft Constitution, he emphasized on
morality and social customs. He proposed a moral
community with right to equality, liberty, and fraternity
borrowed from the French philosophy.

Therefore, dalit rights, he believed, should be assessed

within this political, social and economic framework,
where each is judged by what he individually possesses.
The idea of reservation for the dalits, took a start with
Ambedkar’s views, and was subsequently added in the
Constitution.

Constituent Assembly Debates

Each article in the Constitution has been deliberated

upon by the members of the Assembly, and amendments
been passed, following which motion was adopted.
Minority rights constitute a big mass of the Constituent
Assembly debates as this was a sensitive issue at that
period. Though ‘minority’ occurs only four times in the
Constitution (Arts. 29, 30, 350A, and 350B) discussion of
the concept of ‘minority’ in India needs to pay due
attention to debates that took place in the legislative
assembly.14 The debate on Article 23 (of the Draft
Constitution, now in the form of Articles 28 and 29)

13 Id.
14 See supra note 1.
Bharati Law Review, Jan.-Mar., 2014 360

ensued around the issue of what should constitute

minority rights. The original report on Part III of the
Constitution prepared by the Committee on fundamental
rights did not contain the word ‘minority’. K.M Munshi is
responsible for bringing the concept of ‘national
minorities’ in Article 30 of the Constitution. However, the
word ‘minority’ only appears in Article 30(1) but is
omitted in Article 29. The reason was explained by Dr.
Ambedkar as:
“The word is used not only to indicate the minority in
the technical sense of the word; it is also used to
cover minorities which are nonetheless minorities in
the linguistic and cultural sense.”15

These provisions were inserted to annul any

discrimination against the minorities, where the minority
claim is based on religion is decided on the numercal
basis and on any other yardstick other than religion is
decided on the stretched meaning as Dr. Ambedkar has
explained, must be construed in the true spirit of the
historical jurisprudence and legislative intent.

Moreover, the Constitutent Assembly debates inclined

more on achieving a socialistic vision of a nation wherein
a vast majority lived in poverty, irrespective of caste,
creed, or religion than with the tag of ‘minority’. Gandhiji
propagated:
“…[A]n India, in which the poorest shall feel that it is
their country in whose making they have an effective
voice; …an India in which all communities shall live
in perfect harmony. There can be no room in such an
India for the curse of untouchability or the curse of
intoxicating drinks and drugs. Women will enjoy the
same rights as men.”16
In the Assembly’s deliberations, the minorities question
was regarded as encompassing the claims of three kinds
of communities: religious minorities, backward castes
and tribals, for all of whom safeguards in different forms

15 Dr. Ambedkar, Constitutional Assembly Debates, Vol. VII,

Amendment no. 678, 8th December 1948, available at
http://parliamentofindia.nic.in/ls/debates/vol7p22.htm,
last accessed on 21st Jan. 2014.
16 M.K. Gandhi, India of My Dreams, Published 2009 by Diamond
Pocket Books (1947) 9–10.
Bharati Law Review, Jan.-Mar., 2014 361

had been instituted by the British and by princely states

during the colonial period.17 Each group wanted to attain
the minority status of some kind, and sought to receive
more safeguards than other minority groups. It was
argued that only through the retention of their own
distinct cultures could members of these communities
contribute effectively to the nation.18 Minorities as
backwards classes were connoted on the basis of social
and economic backwardness and not on numerical basis
as they were a part of the Hindus. However, some argued
in keeping with Congress nationalist opinion, that
political safeguards were undesirable and that the
solution to the problems of these groups lay in the
removal of economic and social disabilities.19

The demand for separate electorates by the Muslims

was one of the key debates of the Constituent Assembly.
It was finally rejected by the house on the ground that it
would destroy the national character of India and would
bring in distinctiveness of communities, and could
sabotage the political community. Also religion was a
sensitive subject, and the house felt it lies safer outside
the political sphere as they were incompatible with
secularism principles.

The debate on quotas in services is also an interesting

argument. The house passed the quotas as undesirable
with the exception of backward communities only for a
short run. The reason behind this motion was neither did
they want to identify caste in the political agenda, nor did
they want to deviate from the principle of equality
enshrined in the Constitution.
Reservation in government posts was regarded as
undesirable not only for the country but also for the
backward castes themselves.20 Here the most common
arguments were that not only would quotas stigmatize

17 Rochana Bajpai, Constituent Assembly Debates and Minority Rights,

Economic and Political Weekly, May 27, 2000, available at
http://www.epw.in/system/files/pdf/2000_35/21-
22/Constituent_Assembly_Debates_and_Minority_Rights.pdf,
last accessed Jan. 26th 2014.
18 See the statements of Rev Jerome D’Souza, CAD, vol. III, p. 296.
19 See supra note 17.
20 Id.
Bharati Law Review, Jan.-Mar., 2014 362

the recipients induce feelings of inferiority among them

and stifle initiatives for self-development but also that
they would benefit only a few, already privileged sections
within the group.21

Challenges to Protection of Minority Rights: How has

Indian Democracy Tackled it?

The 8th Schedule of the Indian Constitution has

recognized a variety of languages as the official language.
Apart from this, the Constitution also mentions ‘National
Minority’ as Muslim, Christian, Sikh, Parsees and
Buddhists.

There is a twofold dimension of minority rights in the

current scenario. First, they made community a
legitimate subject of political discourse; and second, they
placed the issue of inter-group equality on the agenda.22

However, it also proposes two basic problems to the

Indian democracy, one, it transgresses the right to
equality which form a fundamental pillar of the Indian
Constitution and two, the minorities recognized are
indifferent to the issues of their internal minorities. Thus,
while special safeguards provided to identify minorities
curb the hegemony of any one community or the nation-
state, they do not guarantee free and equal status to all
groups and communities in society.23

Division of Dalit’s on the Basis of Religion

The presidential order of 1950 brought about a few

amendments to the rights of minorities. It provided the
same ‘dalit rights’ to Sikh and Buddhist minorities but
refused the same to Christian minorities. This order
deviated from Articles 14 and 15 of the Constitution and
divided the dalits on the basis of religion. No explanation
was given for the exclusion of Christian although the

21 See supra note 17.

22 Emmanuel Nahar, Minority Rights in India: Christian Experiences
and Apprehensions, Maintream Weekly, Vo.l XLV No. 1, (December
23, 2006).
23 Id.
Bharati Law Review, Jan.-Mar., 2014 363

then Union Minister of Welfare and Labour, stated that

irrespective of religion economic and social backwardness
must be addressed.

The Reservation Debate

A major problem posed by recognition of minority rights

is in the field of government employment. The
Government in India is the largest employer, and it is
thus obvious that the State must follow Article 16(1)
which reads: “There shall be equality of opportunity for
all citizens in matters relating to employment or
appointment to any office under the State”.24 Therefore,
the State must observe equality in its own employment
mechanism.

However, the plight of minorities even after 6 and odd

decades of independence, has not improved as visualized
by the founders. One major reason for this is the fact that
the Constitution has explicitly provided for qualified
rights of minorities over every other class, gives them a
handful of opportunities which are being taken for
granted. These opportunities have not been utilized to
strive and come out of the ‘backwardness of the class’ but
these opportunities are rather being used as a platform to
merely conceive employment as they see no other easy
way through. This problem is especially seen with the
social minorities. Religious minorities do not figure in this
particular issue as they have been given a different
background of rights under the Constitution. The
founders had conceived the idea of reservation in
employment, but had clearly stated that this reservation
would be in force only for a short period of time, because
they were then expected to use the benefits and grow to
become on par with the rest of the society. They did not
introduce this concept to allow the minorities to misuse
the provision to their advantage. This calls for legislative
intent while interpreting the Constitution which clearly
passed a resolution that quotas are undesirable with the
exception of backward communities only for a short run.
This short run has been amended by the Parliament
several times, and extended up to 2010. The viability of

24 Constitution of India, Art. 16.

Bharati Law Review, Jan.-Mar., 2014 364

this extension has been much debated. The bottom line

however is, India being the largest democracy must re-
analyze the conditions of minorities and re-draw
boundaries.

Cultural Diversity

The common tendency when addressing questions of

cultural diversity is to treat given communities as near-
natural groups, with clearly identified boundaries that
demarcate them from other communities.25 Similarly,
when we speak of cultural diversity, it is usually
assumed that the communities to be accommodated are
empirically given and there is little room for dispute
there.26 These assumption need to be visited yet again
due to the varied reactions from the society.

The claims for due recognition of a given identity-based

community may come both from the desire to seek some
redistribution of goods as well as deeply felt expressive
needs. Most often the two are combined, and this poses
serious challenges. This shows that the recognition
vested today is open to manipulation and hence this
poses a serious threat to the very essence of democracy.

The disputes have often concerned claims from ethnic

groups on a homeland and territory separated from a
certain state or in other cases, demands for autonomy or
even secession from the Indian union have been made.27
The extent and force of these movements are best
illustrated in a publication issued in 1995.28

One solution to this complex issue is to provide formal

25 Gurpreet Mahajan, Negotiating Cultural Minority and Diversity Rights

in India, Vol. II Democracy, Conflict and Human Security:
Further Readings, Idea Publications,
http://www.idea.int/publications/dchs/upload/dchs_vol2_sec3_4.p
df.
26 Id.
27 Ingolf Kiesow Nicklas Norling, The Rise of India: Problems and
Opportunities,
http://www.silkroadstudies.org/new/docs/Silkroadpapers/2007/0
701India.pdf, last accessed Jan. 31, 2014.
28 P.S. Datta, Ethnic Peace Accords in India, New Delhi: Vikas
Publishing, (1995).
Bharati Law Review, Jan.-Mar., 2014 365

recognition to the languages of the diverse communities.

No tribal language has been made an official language
albeit it is spoken by more than a million people.

Giving political and self governance is one way to

achieve a united nation, but this thought must go hand
in hand with the basic structure of our constitution, as
the Indian society still prejudices the position of women
to a large extent. Therefore, though there is a pressing
need to recognize community desires, at the same time,
equal rights of all citizens must not be compromised.29

Policies seeking to enhance cultural diversity, must

positively acknowledge the existence of minorities, for it
to succeed. The enforcement of Special Marriage Act,
1954 was a giant step towards a modern society
acknowledging harmonization of communities. This is
also a tread towards a uniform civil law.

Possible Solutions

In India the Ministry of Minority Affairs was created on

29th January, 2006 to ensure a more focused approach
towards issues relating to the minorities and to facilitate
the formulation of overall policy and planning,
coordination, evaluation and review of the regulatory
framework and development programs for the benefit of
the minority communities.30 The Government also
created the National Commission for Minorities Act in
1992.

Yet another solution lies in the task of minimizing

communal violence, although it had reduced greatly since
the bloody partition. This must be done in a systematic
manner, not just by appeasing the minority community
to increase vote banks by political parties, but by
genuinely creating a harmony between the majority and
minority through strong secular policies. What is

29 Amrita Basu and Atul Kohli (eds), Community, Conflict and the
State in India, Oxford: Oxford University Press, (1998).
30 Dr. Arun Kumar Sharma, Defining Minorities in India, IIT HSS
Department,
http://www.academia.edu/1438983/Defining_minorities,
last accessed 1st Feb. 2014.
Bharati Law Review, Jan.-Mar., 2014 366

strengthened, on the one hand, is intra-community

rather than inter-community bonds and, on the other, a
traditional and more orthodox leadership, which is more
insular and hostile to the expression of differences within
the community.31 Distributing freebies, ridiculing the
majority, and keeping the minority at the height of every
decision are no way of promoting cultural diversity. This
would result in ignorance of majority for the benefit of
minorities, which would in turn convert the majority into
minority, not in terms of numbers but in terms of
benefits and advantages.

However, despite the efforts, the current policy tackling

minority is creating an adversarial spirit in the civil
society and annihilation of Indian civilization.32
Therefore, there is a need for restructuring of policies and
analyzing alternative approaches.

Dr. Arun Kumar Sharma33 has proposed a four-model

alternate approach to solving the minority issue at hand.
The first model proposed is the Sarvodaya Model, wherein
there is equalization of benefits on all levels and
constraint on higher scales of income with more
emphasis on morality at the individual level.

The second model proposes the representative

educational elite in bureaucracy that is the original
demand for caste and community reservation, which
serves no good purpose but enhances the British policy of
‘Divide and Rule’.

The reflexive affirmative actions calls for a beginning of

reverse discrimination whereby the elite from all
categories are truncated from the state support, thus
implying defining not the backward classes but the
forward classes whose share in the power and wealth
should be increasingly restricted, be they from any caste

31 See supra note 25.

32 Agrawal, S.P., and Aggarwal, J.C., Educational and Social Uplift of
Backward Classes: At What Cost and How? Concept Publishing
Company, New Delhi.(1991).
33 See supra note 30.
Bharati Law Review, Jan.-Mar., 2014 367

or community.34

The western approach is giving preferential treatment to

minorities in all walks, but this we have seen only helps
in increasing vote banks in the Indian context and is
hardly a solution. The benefits of all the models above
could be extracted to create a balanced approach.



34 Id.
Bharati Law Review, Jan.-Mar., 2014 368

MINORITY RIGHTS AND EDUCATION

Mr. Aditya Mishra*

Mr. Suresh Khadav**

Introduction

India is the largest democracy of the world. It is a land of

religious, cultural and linguistic diversity.
Correspondingly we have the division of population into a
majority and several minorities on the basis of religious,
cultural as well as on linguistic communities.

The basic object of minority protection is to instills

confidence in them, create a feeling that they will never
be overrun by the majority and to homogenize the
pluralities in a civil society and to integrate minorities
fully and equally into the national life of the state
characterized by the ethos and interest of majority. The
term minority occurs only in Articles 29 and 30 of the
Indian Constitution. Article 30 recognizes the right of a
minority whether based on religion or language to
establish and administer educational institutions of their
choice and prohibits the state from discriminating
against any educational institutions on the ground that it
is under the management of a minority. Article 30(1)
holds a very special place for the fact that through
education alone minorities can conserve their language,
script and cultural heritage. It is the most important
factor for the development of man as well as of the
society. Even the international law recognizes that
education is general human right and also crucial part of
minority rights.

The Constitution of India uses the word ‘minority’ or its

plural form in some Articles – 29 to 30 and 350A to 350B
-but does not define it anywhere. Article 29 has the word
“minorities” in its marginal heading but speaks of “any
sections of citizens… have a distinct language, script or

* Student, 2nd year, B.A. LL.B., National Law University and Judicial
Academy, Assam.
** Student 2nd year, B.A. LL.B., National Law University and Judicial
Academy, Assam.
Bharati Law Review, Jan.-Mar., 2014 369

culture”. Article 30 speaks specifically of two categories of

minorities - religious and linguistic. The remaining two
Articles - 350A and 350B - relate to linguistic minorities
only. In common parlance, the word “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.1
The word “Minority” is defined by the Oxford Dictionary
as a smaller number or part; a number or part
representing less than half of the whole; a relatively small
group of people, differing from others in race, religion,
language or political persuasion”. The United Nations
Human Rights Commission appoint a special
Subcommittee on the Protection of Minority Rights in
1946 which defines the word ‘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.”

Minority Rights under Article 30 of the India

Constitution

Article 30(1) – the “minorities only” clause that is at the

centre of all this.

All minorities, whether based on religion or language,

shall have the right to establish and administer
educational institutions of their choice.

Article 30: Right of minorities to establish and

administer educational institutions

(1) All minorities, whether based on religion or

language, shall have the right to establish
and administer educational institutions of
their choice.
(1A) In making any law providing for the
compulsory acquisition of any property of an
educational institution established and
administered by a minority, referred to in

1 Khan Arshi, Exclusion of Minorities in South Asia: Denial, Deprivation

And Discrimination, INDIAN JOURNALS.COM (Feb. 8, 2014),
http://jfmt.indianjournals.com/ijor.aspx?target=ijor:jes&volume=2&
issue=1&article=009.
Bharati Law Review, Jan.-Mar., 2014 370

clause (1), the State shall ensure that the

amount fixed by or determined under such
law for the acquisition of such property is
such as would not restrict or abrogate the
right guaranteed under that clause.
(2) The state shall not, in granting aid to
educational institutions, discriminate
against any educational institution on the
ground that it is under the management of a
minority, whether based on religion or
language.

Article 19(1)(g) the “secular provision” that has gained

traction as one that protects all citizens including Hindus
and minorities from engaging in any activity including
education

(g) All citizens shall have the right, to practice any

profession, or to carry on any occupation,
trade or business.

Article 29(1) under “Protection of interests of Minorities”

says any section of citizens having a distinct culture,
language, or script of its own shall have the right to
conserve the same.

The Constitution of India provides certain fundamental

rights (Articles 15-17, 25 to 30) and directive principles
(Articles 330- 339 and 350) for the benefit of minorities in
India.

The rights are protected by a prohibition against their

violation, and are backed by a promise of enforcement.
They, being part of the Fundamental Rights, are invested
with sanctity and a status higher than that of the
ordinary law and, consequently, every legal provision or
executive action must conform to the mandates implied
in them. The prohibition is contained in Article 13 which
bars the state from making any law abridging or limiting
any of these provisions and threatens to veto any law
found inconsistent with. The injunction runs against the
whole state which term under Article 12 is defined to
include government and Parliament of India and the
government and the legislature of each of the states and
all local and other authorities. The term 'law' includes
Bharati Law Review, Jan.-Mar., 2014 371

within its amplitude any ordinance, order, bye-law. Rule,

regulation, notification, custom or usage having the force
of law; and the prohibition binds all such
instrumentalities within the state as have legal authority
to formulate such law. The promise of enforcement is
contained in Article 32 which, conferring practicability to
the assertions contained in Article 13, declares that the
right to move the Supreme Court by appropriate
proceedings for the enforcement of Fundamental Rights
is guaranteed and thus imposes a duty upon the highest
court to afford protection against any violation and vests
a corresponding right in the religious and linguistic
minorities to seek remedy in case the rights are
threatened with deprivation or infringement. A similar
jurisdiction has been conferred upon the High Court’s
under Article 226. The rights are made justifiable before
the courts for double purpose of protecting them against
arbitrary action of regulatory authorities wielding the
force of state and against excesses of elected legislatures
dominated by transient numerical majorities and often
swayed by passions and prejudices.2

As regards religious minorities at the national level in

India, all those who profess a religion other than Hindu
are considered minorities, since over 80 per cent [of the]
population of the country professes the Hindu religion. At
the national level, Muslims are the largest minority.
Other minorities are much smaller in size. Next to the
Muslims are the Christians (2.34 per cent) and Sikhs (1.9
per cent); while all the other religious groups are still
smaller. As regards linguistic minorities, there is no
majority at the national level and the minority status is to
be essentially decided at the state/union territory level.
At the state/union territory level – which is quite
important in a federal structure like ours – the Muslims
are the majority in the state of Jammu and Kashmir and
the union territory of Lakshadweep. In the states of
Meghalaya, Mizoram and Nagaland, Christians constitute
the majority. Sikhs are the majority community in the
state of Punjab. No other religious community among the
minorities is a majority in any other state/UT.

2 Ranu Jain, Minority Rights in Education: Reflections on Article 30 of

the Indian Constitution, 40, ECONOMIC AND POLITICAL WEEKLY,
2430, 2437 (2005).
Bharati Law Review, Jan.-Mar., 2014 372

Education is the vehicle by which a child grows to be an

independent adult. It is also the means by which cultural
values are transmitted and the child is bound to his or
her family, community and society. The right to
education has a special value as it enables children to
increase their chances of having their other rights
fulfilled. "Education is the single most important
instrument for social and economic transformation. A
well educated population, adequately equipped with
knowledge and skill is not only essential to support
economic growth, but is also a precondition for growth to
be inclusive since it is the educated and skilled person
who can stand to benefit most from the employment
opportunities which growth will provide." The Muslim
community should realize that there is a need for
systematic transformation of the thinking process and
the resulting behaviour through proper education. “In
fact our salvation lies in acquiring strong knowledge
economies powered by information technology,
innovation and education.”

Going by the Sachar Committee Report, Muslims were

scraping the bottom of the educational barrel of the
country. Their enrolment and retention rates at the
primary and secondary levels were lower than the
national average. Sufficient numbers of educational
institutions were not available for Muslims across the
country. Equal opportunity was also not available to all
sections of Muslims.3

Most of their institutions are lacking in infrastructural

and instructional facilities. Growth in numbers of their
educational institutions has not been accompanied by an
improvement in the delivery of quality education.

An important section of children of the Muslim

community had involuntarily been excluded from
mainstream education on account of their economic,
social and cultural status. Concerted efforts were needed
to promote access for such children to schooling and
other educational resources. “Minorities in general and
Muslims in particular should strive hard to harness every

3 M.S.A. Siddiqui, Focus on Education of Minority Communities, The

Hindu, Dec. 19, 2012.
Bharati Law Review, Jan.-Mar., 2014 373

source that could lead them to quality education, quality

growth and quality development”.

Given the importance of a knowledge economy, the

establishment of educational institutions of global
standards ought to become the priority of minority
communities. Internationalism in higher education
needed to be promoted. The development of self-respect,
a strong sense of ethics and inter-faith understanding
through education were perhaps the most important
mission of educational institutions.

Educational rights for minority groups may be included

in states' education systems and also enshrined in their
statutes. However, states' laws, their declarations and
their educational systems are largely normative
statements. For many minority groups, the key issue is
whether educational practice actually recognizes those
legal obligations and aspirations and provides a full,
effective and fulfilling education for their young people.

Sachar Committee Report

The Government of India constituted Justice Sachar

Committee for preparation of a Report on the Social,
Economic and Educational Status of Muslim Community
of India, and Justice Ranganath Mishra Commission for
identifying criteria for socially and economically
backward classes among the religious and linguistic
minorities, and to suggest various welfare measures for
Minorities including Reservation.

The members of the Committee visited different parts of

the country to assess the grassroots situation and grasp
the realities by experience rather than merely with the
help of statistics brought to their desks by investigators.
The Committee tried to sift the perception of members of
the Muslim community (as well as of non-Muslims) and
understand the nature and magnitude of the
community’s grievances, to be able to judge the veracity
or otherwise of the expressions of negligence and
deprivation.

Most of the grievances of the community are common

knowledge and those who have access to the Urdu press
Bharati Law Review, Jan.-Mar., 2014 374

in different parts of the country are fully aware of the

endless stories of ‘woes’ and ‘miseries’ of the community.
But a systematic study of these grievances had to be
made and the Sachar Committee ventured to do that. We
shall deal with the grievances briefly later but, first, a
review of the findings of the Sachar Committee in
different areas of its concern.4

Finding of the Sachar Committee

The 403-page report, has listed its findings on population

growth, literacy levels, employment, health and various
other developmental indicators. The Sachar Committee
report also put forth recommendations to address the
conditions and issues identified as affecting Muslims in
India. These include creation of an Equal Opportunity
Commission, mechanisms to promote participation of
Muslims in public bodies, financial support to help
increase employment share, and provisions examining
ways of linking madarsas to the formalized education and
employment structure.

Main Recommendations5

• 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.
• Provide legal mechanism to address complaints of
discrimination against minorities in matters of
employment, housing, schooling and obtaining bank
loans.
• Establish a delimitation procedure that does not
reserve constituencies with high minority population
for SCs.

4 Anees Chishti, Sachar Committee Report: A Review, XLV,

MAINSTREAM WEEKLY (2006).
5 Priya Parker, Summary of Sachar Committee Report: High Level
Committee to examin the socio-economic and educational status of
theMuslim community in India, PRS LEGISLATIVE RESEARCH, (Feb.
8, 2014)
http://www.prsindia.org/parliamenttrack/report-
summaries/sachar-committee-report-high-level-committee-to-
examine-the-socio-economic-and-educational-status-of-the-muslim-
community-in-india-660/.
Bharati Law Review, Jan.-Mar., 2014 375

• Initiate and institutionalize a process of evaluating

contents of textbooks to purge them of explicit and
implicit material that may impart inappropriate
social values, especially religious intolerance.
• Create a National Data Bank (NDB) where all
relevant data for various socio-religious categories
are maintained.
• Set up an autonomous assessment and monitoring
authority to evaluate the extent of development
benefits.
• Encourage the University Grants Commission to
evolve a system where part of allocation to colleges
and universities is linked to diversity in student
population.
• Facilitate admissions to the most backward amongst
all socio-religious categories in regular universities
and autonomous colleges and evolving alternate
admission criteria
• Provide different types of affirmative action to three
main Muslim groups (Ashrafs, Ajlafs and Arzals):
Designate Arzals Muslim group as most backward
classes as they need multifarious measures,
including reservation. Provide Hindu-OBC-type
attention to Ajlaf Muslim group.
• Provide financial and other support to initiatives
built around occupations where Muslims are
concentrated and that have growth potential.
• Increase employment share of Muslims, particularly
where there is great deal of public dealing. Working
out mechanisms to link madarsas with higher
secondary school board.
• Recognize degrees from madarsas for eligibility in
defense, civil and banking examinations.
• Provide hostel facilities at reasonable costs for
students from minorities on a priority basis.
• Promote and enhancing access to Muslims in
‘Priority Sector Advances’.
• Include in teacher training components that
introduce importance of diversity and plurality and
sensitizing teachers towards needs and aspirations
of Muslims and other marginalized communities.
• Open high quality Urdu medium schools wherever
they are in demand and ensuring high quality
textbooks for students in the Urdu language.
Bharati Law Review, Jan.-Mar., 2014 376

• Draw Muslims on relevant interview panels and

boards.
• Improve participation and share of minorities,
particularly Muslims, in business of regular
commercial banks.
• Set up a national Wakf development corporation
with a revolving corpus fund of Rs. 500 crore.
• Create new cadre to deal with specific Wakf affairs.

The government approved 72 of 76 recommendations

made by the Sachar Committee, while rejecting three of
them and deferring a decision on another. The
government rejected three of its recommendations to
enumerate castes as a part of its decennial census
exercise. The government also turned down the
Committee's recommendations to have a new all India
cadre of officer to manage state Wakf Boards and the
Central Wakf Council, besides having an alternative
admission criterion to facilitate admission of the most
backwards among all socio-religious categories (SRCs) in
universities and autonomous colleges.

After the implementation of Recommendation made by

the Sachar Committe Recruitment of minorities had
increased in government jobs, security forces and the
banking sector, and simultaneously priority sector
lending for minorities had gone up from 9 per cent to 15
per cent. Besides, 40 lakh scholarships were awarded to
minority students, and minority-specific development
programmes implemented in as many as 90 minority-
concentration districts.6

Supreme Court Judgment: Minority Education Right

The recent Supreme Court judgment on the educational

rights of minorities does not adequately reflect
international trends for strengthening protection of
minority rights. There is a need to rethink and
reformulate minority rights, and enact a central law
providing for multi-culturalism and pluralism along with
inter culturalism in all educational institutions, with the
provision that minorities will have unfettered right to

6 Manmohan, Minorities have benefited after Sachar Committee Report,

THE HINDU, Dec. 30, 2011.
Bharati Law Review, Jan.-Mar., 2014 377

regulate their admission without resorting to exclusion of

non-minorities7.The Supreme Court takes them as a
protective arrangement.

In its 2005 judgment in Bal Patil v. Union of India, the

court said: "The group of Articles 25 to 30 of the
Constitution, as the historical background of partition of
India shows, was only to give guarantee of security to the
identified minorities and thus to maintain integrity of the
country." The apex court, in its 2005 judgment, felt that
the special guarantees and protection to the religious,
cultural and educational rights of minorities was
guaranteed as a fundamental right in the Constitution, in
the backdrop of the bloody partition, to allay
apprehensions and fears in the minds of Muslims and
other religious communities.8

"Such protection was found necessary to maintain

unity and integrity of free India because even after
partition, communities like Muslims and Christians
in greater numbers living in different parts of India
opted to live in India as children of its soil."

In T.M.A. Pai Foundation and Ors. v. State of Karnataka

and Ors. the larger bench of the Supreme Court headed
by Chief Justice B.N. Kirpal held that ‘the state
governments and universities cannot regulate the
admission policy of unaided educational institutions run
by linguistic and religious minorities, but state
governments and universities can specify academic
qualifications for students and make rules and
regulations for maintaining academic standards. The
same principle applies in the appointment of teachers
and other staff and an unaided minority educational
institution would be free to hire as it pleased as long as
some essential qualifications were adhered to. Minority
educational institutions would have to comply with
conditions laid down by universities or boards to get
recognition or affiliation. They have the right to admit

7 Iqbal A Ansari, Minority Rights in Education: Reflections on Article 30

of the Indian Constitution, 38 ECONOMIC AND POLITICAL WEEKLY
1827,1829 (2003).
8 Dhananjay Mahapatra, Statute ensures minorities rights, THE TIMES
OF INDIA, Apr. 6, 2007.
Bharati Law Review, Jan.-Mar., 2014 378

students of their choice, but subject to an objective and

rational procedure of selection and compliance of
conditions if any, requiring admission of a small
percentage of students belonging to weaker sections of
the society by granting them scholarships. The
admissions should be on merit and be conducted in a
transparent manner.’9

The court further held that commercialization of

education was not permissible. The Unni Krishnan’s case
was partly overruled to the extent of scheme relating to
the grant of admission and the fixing of the fee as it was
not considered to be correct. The court also overruled
the decision in St. Stephen’s case where it had held that
minority educational institutions were free to reserve
seats up to 50% for minority students. The court has
now empowered the states to fix quotas for minority
students taking into account the type of institution,
population and educational needs of the minorities.

It said the minorities initially recognized were based on

religion and on a national level, for example Muslims,
Christians, Anglo-Indians and Parsis.

However, it had sounded a warning against vote bank

politics based on divisive tactics and underlined that "the
constitutional ideal, which can be gathered from the
group of articles in the Constitution under Chapters
Fundamental Rights and Fundamental Duties, is to
create social condition where there remains no necessity
to shield or protect rights of minority or majority."

Conclusion

Treating unequals as equal is as bad as treating equals

as unequals. Our Constitution provides for equality for
equality of opportunity to all but meting out equal
treatment to those who did not start off equally in the
first place means treating unequals as equals. Minorities
in India have had to face adverse discrimination and,
therefore, do not stand on equal footing with others,
which made the framers of the Constitution, through

9 All India Taleemi Ghar Lucknow, (Feb. 8, 2014),

http://www.feduni.org/TMA-V-Karnataka.asp.
Bharati Law Review, Jan.-Mar., 2014 379

Article 29 and Article 30, accord special rights to the

people who form religious or linguistic minority in India.10
There are excellent minority educational institutions
which have been rendering quality education at moderate
costs before the capitation fee menace began warranting
judicial intervention. The situation is different today
because of the policy of liberalization, politics of
conversion, and the compulsions of democratic
governance. Minority institutions which continue to
administer educational institutions in the spirit of service
(and not profiteering) have nothing to lose or fear from
the judgment.

The subject of minority education rights is a sensitive

issue. At the same time the educational process has the
potential to effectively facilitate and strengthen mutual
respect and understanding between the various
communities within States.



10 Kamaluddin Khan, Educational rights of minorities, (Feb.8, 2014),

http://twocircles.net/legal_circle/educational_rights_minorities_ka
maluddin_khan.html.
Bharati Law Review, Jan.-Mar., 2014 380

SECULARISM TO PROTECTIONIST REGIME:

A CRITICAL ANALYSIS

Ms. Nabeela Siddiqui*

Mr. Mohd. Haider Abbas**

While writing a critical commentary on the constitution of

India, Seervai confessed that no chapter has given him
more anxious thought than Chapter 7 on the Right to
Freedom of Religion. The learned author says that the
founding fathers rightly made freedom of conscience and
freedom of religion a fundamental right.1 India is a
pluralistic society and a country of religions. It is
inhabited by people of many religions. The framers of the
Constitution thus desired to introduce the concept of
secularism, meaning state neutrality in matters of
religion. They also wanted to confer religious freedom on
various religious groups. Religion has been a very volatile
subject in India both before and after Independence. The
Constitution therefore seeks to ensure state neutrality in
this area.2

Religious tolerance and equal treatment of all religious

groups are essential part of secularism. Secularism in
India does not mean irreligion. It means respect for all
faiths and religions. The State does not identify itself with
any particular religion.3 The Supreme Court of India
explained the significance of the secular character of the
Indian polity thus:
“There is no mysticism in the secular character of
the State. Secularism is neither anti-God nor pro-
God; it treats alike the devout, the agnostic and the
atheist. It eliminates God from the matters of State
and ensures that no one shall be discriminated
against on the ground of religion. The Constitution at
the same time expressly guarantees freedom of

* Student, B.A. LL.B., Aligarh Muslim University, Aligarh.

** Student, B.A. LL.B., Aligarh Muslim University, Aligarh.
1 Seervai, Constitutional Law of India, (1993) 4th ed. Vol. 2 1271.
2 M.P. Jain, Indian Constitutional law, (2005) 5th edition Reprint.
3 Dr.Radhakrishnan, Secularism in India (ed. V.K.Sinha) 127 (1968);
P.B.Gajendragadkar, Indian Parliament and Fundamental Rights
(TLL); N.A. Subramaniam, Freedom of Religion, 3 JILI 323 (1961).
Bharati Law Review, Jan.-Mar., 2014 381

conscience and the right freely to profess, practice

and propagate religion. The Constitution makers
were conscious of the deep attachment the vast
masses of our country had towards religion, the sway
it had on their minds and significant role it played in
their lives. To allay all apprehensions of interference
by the legislature and the executive in matters of
religion, the rights mentioned in Articles 25 to 30
were made a part of the fundamental rights and
religious freedoms contained in those articles were
guaranteed by the Constitution.”4

In Bommai5, a nine judge bench of the Supreme Court

referred to the concept of secularism in the India context.

According to Justice Sawant, J.:

“…. Religious tolerance and equal treatment of all
religious groups and protection of their life and
property and of the places of their worship are an
essential part of secularism enshrined in our
Constitution….”

B.P. Jeevan Reddy, J. observed:

“…. While the citizens of this country are free to
profess practice and propagate such religion faith or
belief as they choose, so far as the State is
concerned, i.e., from the point of view of the State,
the religion, faith or belief of a person is immaterial.
To it, all are equal and all are entitled to be treated
equally.”

The concept of secularism is not merely a passive

attitude of religious tolerance. It is also a positive concept
of equal treatment of all religions. The concept of
secularism was not expressly incorporated in the
Constitution at the stage of its making. However, its
operation was visible in the Fundamental Rights and
Directive Principles. The concept of secularism, though
not expressly stated in the Constitution, was,
nevertheless, deeply embedded in the constitutional
philosophy.

4 The Ahmedabad St. Xavier’s College Society v. State of Gujarat,

AIR 1974 SC 1389.
5 S.R. Bommai v. Union of India AIR 1994 S.C. 1918; (1994) 3 SCC 1.
Bharati Law Review, Jan.-Mar., 2014 382

In 1976, through 42nd Amendment of the Constitution,

the concept of secularism was made explicit by amending
the preamble. By this Amendment, the word “secular”
was introduced in the Preamble to the Constitution and,
thus, what was hitherto implicit was made explicit. The
Constitution does not define the term secular as it is a
very elastic term and not capable of any precise definition
and so it is best left undefined. A Secular state does not
extend patronage to any particular religion.6

Verma, J., delivering the majority opinion in M. Ismail

Faruqui v. Union of India,7 observed in relation to the
concept of secularism:
“It is clear from the Constitutional scheme that it
guarantees equality in the matter of religion to all
individuals and groups irrespective of their faith
emphasizing that there is no religion of the state itself.
The Preamble of the Constitution read in particular
with Articles 25 to 28 emphasises this aspect and
indicates that it is in the manner the concept of
secularism embodied in the Constitutional scheme as
acreed adopted by the Indian people has to be
understood while examining the constitutional validity
of any legislation on the touchstone of the
Constitution. The concept of secularism is one faced of
the right to equality woven as the central golden
thread in the fabric depicting the pattern of the
scheme in our Constitution.”

The right of worship was granted by court for man to

worship as he pleased. There can be no compulsion in
law of any creed or practice of any form or worship.7 Man
is not answerable to the State for the variety of his
religious views.8

In S.R. Bommai v. Union of India9, the Supreme Court

has held that “Secularism is a basic feature of the
Constitution”. The state treats equally all religions and
religious dominations.

6 M.P. Jain, Indian Constitutional Law, (2005) 5th ed. Reprint.

7 Cantwall v. Connecticut, (1931) 310 U.S. 29.
8 United States v. Ballard, (1944) 322 U.S. 78.
9 See supra note 7.
Bharati Law Review, Jan.-Mar., 2014 383

The word “religion” has not been defined in the

Constitution and has been held to be hardly susceptible
of any rigid definition. Religion is certainly a matter of
faith and is not necessarily theistic. There are well known
religions in India like Buddhism and Jainism which do
not believe in God or in any intelligent First Cause. A
religion has undoubtedly its basis in a system of beliefs
and doctrines which are regarded by those who profess
that religion as conducive to the spiritual well-being, but
it would not be correct to say that religion is nothing else
but a doctrine or belief. A religion may not only lay down
a code of ethical rules for its followers to accept it: it
might prescribe rituals and observances, ceremonies and
modes of worship which are regarded as integral parts of
religion and these forms an observances might extend to
matters of food and dress. Religion in its broadest sense
includes all forms of faith and worship, all the varieties of
man`s belief in a Superior Being or a Moral Law.10

A religion is not merely an opinion, doctrine or belief. It

has its outward expression in acts as well. If, therefore,
the tenets of Jainism or Parsi religion lay down that
certain rights or ceremonies are to be performed at
certain times and in a particular manner, it cannot be
said that these are secular activities partaking of
commercial or economic character, simply because they
involve expenditure of money or employment of priest or
use of marketable commodities. No outside authority has
any right to say that these are not essential parts of
religion and it is not open to secular authority or prohibit
them in any manner they like under the guise of
administering the trust estate.11

According to Dr. Radhakrishnan: “Religion is the code of

ethical rules and also means rituals, observances,
ceremonies and modes of worship which are its outer
manifestations. It can be identified with feelings,
emotions, sentiments, instincts, cult, perception,
conscience and belief or faith”.12 J. Clayton Feaver says,

10 P.M. Bramadathan Nambooripad v. Cochin Devaswom Board,

AIR 1956 Travancore 19 (FB) para 12.
11 Ratilal Panchand Gandhi v. The State of Bombay,
AIR 1954 S.C. 388 para 12.
12 S. Radhakrishnan, An Ideal View of Life, Ch. III, p.84.
Bharati Law Review, Jan.-Mar., 2014 384

“Religion aims at unification, and being all inclusive

and co-extensive with the whole of life…. It does not
simply to be one phase of experience among many
existing side by side with others and on equal terms. It
means to intensify, vitalize, and enhance every human
function and activity”.13

The courts too, have always admitted difficulty of

defining the term ‘Religion’. And in Adelaide Company’s
case, the court observed that “it would be difficult if not
possible to devise a definition of religion which would
satisfy the adherents of all the many and various
religions which exist or have existed, in the world.”14

Field J. of Supreme Court of U.S.A in Davis v. Beason15

observed that , the term “religion” has reference to one`s
views of his relations to his Creator, and to the
obligations they impose of reverence for his been and
character and of obedience to his will.

In Sardar Syedna Tahir case16 McChogla while dealing

with the constitutionality of the Bombay Prevention of
Excommunication Act 1949 defined religion as a matter
of man`s faith and belief. It is a matter concerning a
man`s contact with his creator. It has nothing to do with
the manner in which the practice is accepted or adopted
as forming part of a particular faith or religion. Thus,
Chagla J. followed what has been devised by Field’s in
Davis v. Beason. Supreme Court while dealing with the
case of L.T. Swamiar17, said: “Religion is certainly a
matter of faith with individuals or communities and it is
not necessarily theistic”. Though the Supreme Court
related the term religion with a “belief in God or Creator”
in 1889, yet more or less a liberal approach was made
and some constitutional protection was given to the
religions which do not believe in God as they have done
to Christianity.

13 J.C. Feaver, Religion in philosophical and cultural perspective, p.11.

14 Adelaide Company of Jehovah`s Witness, Inc. v. The
Commonwealth, 67 CLR 116 (1943).
15 Davis v. Beason, 133 US 333 at 342 (1889).
16 Sardar Syedna Tahir v. Moasaji, AIR 1953 Bombay, p. 188.
17 The Common Hindu Religions Endowments v. L.T. Swamiar (1954)
S.C.R. 1023.
Bharati Law Review, Jan.-Mar., 2014 385

The definition of Religion has been widened by the

Supreme Court of USA so as to include religions like
Buddhism as it stated in Fowler v. Rohde Islands case18
that Methodist Presbyterian or Episcopal Ministers,
Catholic Priests, Muslim Mullas, Buddhist Monks could
preach to their congregation in Pawtucket`s Part with
impunity. Thus, Judiciary in India has adopted a
comprehensive and liberal derived definition of the term
religion so as to suit heterogeneous, multi-religious
community in India and to give enough latitude to
various faiths and denominations reasonable opportunity
to exercise basic freedom granted under Articles 25 and
26 of the Constitution of India. But it has its own
limitations and this has limited considerably the
autonomy of religious life.

In Ghulam Abbas v. State of Uttar Pradesh19, in a writ

petition under Article 32 the Supreme Court enforced the
customary religious rights of the Shia community on a
piece of land. The Court said that the State could not
interfere with the established customary rights to perform
their religious ceremonies and functions. In a landmark
judgment in Santosh Kumar v. Secy. Ministry of Human
Resources Development20, the Supreme Court has held
that introduction of Sanskrit language as a subject in
Central Board of Secondary Education (CBSE) is not
against secularism as it is the “mother of all Aryan
languages”. This is when the deviation of judiciary in
interpreting the essence of religious freedom began.

Therefore the norm that only such practices as are

essential an integral part of a religion needs to be
protected. It therefore falls upon the courts to decide, on
the basis of evidence adduced before them concerning the
conscience of the community and the tenets of the
religion concerned, whether a practice for which
protectionist claimed is “religious” in character, and, if
so, whether it is an essential and integral part of the said
religion or is merely “secular or superstitious in
nature”.21

18 345 US at 69, L.Ed. 828 (1943).

19 AIR 1981 SC 2168: (1984) 1 S.C.C. 81.
20 AIR 1995 S.C. 293.
21 Commisioner Hindu Religious Endowments v. Lakshmindra
Swamiar, AIR 1954 S.C. 282: 1954 S.C.R. 1005.
Bharati Law Review, Jan.-Mar., 2014 386

As the Supreme Court has observed in the case noted

below: 22
“What constitutes an essential part of religion or
religious practice has to be decided by the courts
with reference to the doctrine of a particular religion
and include practices which are regarded by the
community as a part of its religion.”

The judicial role in this area has been described by the

Supreme Court as follows:
“The Court, therefore, while interpreting Articles 25
and 26 strikes a careful balance between the freedom
of the individual or the group and regard to religion,
matters of religion, religious belief, faith or worship,
religious practice or custom which are essential and
integral part and those which are not essential and
integral and the need for the state to regulate or
control in the interest of the community”.23

James Mill, History of British India in which he laid the

foundation for a communal interpretation of Indian
history provided the justification for ‘Two Nation theory’.
He was the first historian to develop the thesis of dividing
Indian history into three periods, which he called Hindu
Civilisation, Muslim Civilisation and British Civilisation.
Mill`s nomenclature was based on religious aspect. Mill
was severely critical of Hindu culture and described it as
being backward in progress and anti-rational. This led to
Indian historian having defined Hindu Civilisation even if
it meant over glorifying the ancient past. Communal
interpretation of Indian history is of poor quality. If the
assumption is weak in evidence and support, they must
be disregarded. The study of History should be the social
change, set-up, administration etc., not on the basis of
ruler to which he belongs.

The modern secular historian understood the

terminology used by the contemporary historian to apply
to the whole society. Conflict to the ruling class is
understood to conflict at a social level. Sultan Allauddin

22 H.H. Srimadh Pararulala Ethiraja Ramanuja Jeeyar Swami v. State

of Tamil Nadu, AIR 1972 S.C. 1586, at 1593.
23 A.S. Narayana v. State of Andhra Pradesh, AIR 1996 S.C. 1765,
1792: (1996) 9 S.C.C. 548.
Bharati Law Review, Jan.-Mar., 2014 387

Khilji took strong measures to suppress rebellious Hindu

Zamindars (along with no less strong measures to
suppress the Muslim Iqtadars, including very pious
people who had nothing to with the rebellions).

The Nationalist Historians24 tried to meet the challenge

of communalist with all sincerity but unfortunately they
chose to fight the adversary on his ground. Communal
Historians praise Akbar`s liberal policy to isolate other
medieval rulers. When we the study the history of society
rather history of individual our whole communal
approach will change. Tension within ruling class for
obvious political and economic reasons is often given a
religious or ideological colour.

It is a great question why communalism arose and grew

in modern India from last hundred years. We note that
both nationalism and communalism are the products of a
similar modern process the growing economic, political
and administrative unity of the country.

According to Dr. Romila Thapar and Sri Harbans

Mukhiya communalism was not in existence in the
ancient and medieval period. It means that it is a product
of modern Indian nationalism is an ideology that develops
in identity of common interest of Indian people, in
particular gains the common enemy, foreign imperialism.
On the other hand communalism is developed in section
and certain area.

Communalism is generated by the lack of deeper

penetration of nationalist outlook and ideology. New
national identity is needed. Identity around religion was
of course cannot only be one available. Caste, language,
tribe, region can serve the purpose.25 Historian uses the
term Hindu leaders and Muslim leaders.

24 Bipin Chandra, “COMMUNALISM AND WRITING OF INDIAN

HISTORY”.
25 The One Man Commission of Inquiry by a sitting Judge of the
Bombay High Court, Mr Justice B.N. Srikrishna, was appointed on
January 25,1993 to enquire into Bombay riots and subsequent
serial bomb blast. It started functioning in April 27; 1993.It was
dissolved by Shiv Sena-BJP Government on January 23, 1996 when
it came to power. On May 27, 1996 it was revised on the suggestion
of Atal Bihari Vajpayee during his short spell of Premiership. The
Commission ended recording of evidence of July 3, 1997. A total of
Bharati Law Review, Jan.-Mar., 2014 388

“It is also due to the lack of secular approach and

deeper penetration of nationalism. Nationalism can’t
make appeal against communalism because religious
elements are there. Our educational institutions,
mass media, including newspapers and All India
Radio and political parties have made no efforts to
disseminate among people a modern scientific
understanding and awareness of nationalism. They
have failed to spread a nationalist outlook. Their
appeal to nationalism against communalism leaves a
large number of people cold.”

Communal violence though not in India, has entered

into a new phase. It has not only engulfed just the
political terrain of parties and elections but has
penetrated deeply into socio-cultural roots and religious
mainstay of this ancient civilization. The cultural ethos
stood for unity and integrity. To perpetuate this unity in
diversity the modern India has wedded herself to secular
democracy. These very ideals are being challenged and
are sought to be replaced by communally charged
ideology of Hindu Rashtra and Hindutva. Publication of
the Justice B.N. Srikrishna Commission Report, 1998
testifies how ugly could be the face of communalism,
what holocaust it can cause and what miseries it would
inflict on the victims just to ensure some peoples
ascendency to state power. Probably no other enquiry
into communal violence ever since independence was so
much thorough, discreet, fair and forth right than the
Srikrishna Commission enquiry into the Bombay rights of
December 1992, January and March 1993 in the wake of
demolition of Babri Mosque on December, 6 1992 by
votaries of Hindutva, the Sangh Parivar26. Violence is not
a new social phenomenon of modern India. It has existed
in some form or the other. According to Andre Bateille
violence takes different forms in a democratic society.

504 witnesses were examined by the Commission (Deccan herald,

August 8, 1998. The report consist of two volumes and runs into
800 pages with 24 pages of “Memorandum of Action to be taken”).
26 “We will never be able to reckon the scope and extent of violence
inflicted on the disadvantaged members of society and tolerated by
them in their everyday life,” Andre Bateille, “Modernity and
Morality”. Times of India, 29, October, 1998
(www.timesofindia.com/today/29edit9htm).
Bharati Law Review, Jan.-Mar., 2014 389

Recent Communal Activities

• 2,500 people killed in 8,473 riots in last

decade: Government states27

In an alarming trend, more than 2,500 people have been

killed in incidents of communal violence in the country
since 2002, out of which 107 lost their lives this year
alone. A total of 2,502 people died in 8,473 incidents of
communal disturbances across the country during the
decade. 28,668 people were also injured in these riots,
according to Union Ministry of Home Affairs statistics.
107 people have been killed in 479 riots, including the
recent Muzaffarnagar violence, this year till September
15, 2013.Altogether 1,697 people were also injured in
these riots which have taken place in different parts of
the country.

• 107 killed in riots this year; 66 Muslims, 41

Hindus28

Perhaps for the first time, the government has identified

the religion of victims of communal violence across the
country, saying of the 107 people killed so far this year,
66 were Muslims and 41 Hindus. The worst scenario has
emerged from Uttar Pradesh, where twice as many
Muslims lost their lives than others. According to a Union
home ministry document, U.P. recorded 62 deaths (42
Muslims and 20 Hindus) in communal violence, the
highest in the country. India’s most populous state and
politically crucial state had recorded the highest number
of deaths (39) in communal unrest in 2012 as well. U.P.
saw 93 riots in the first nine months of 2013 along with
108 incidents of tension. A total of 219 Muslims and 134
Hindus were injured. The statistics come at a time when
western UP’s Muzaffarnagar district is limping back to
normalcy after bloody riots in which at least 48 people
were killed and more than 50,000 displaced from their
homes. The frequency of flare-ups in UP, which has 80

27 http://www.rediff.com/news/slide-show/slide-show-1-2500-people-
killed-in-8473-riots-in-last-decade-govt-stats/20130922.htm
(retrieved on 6.02. 2014 at 10:58 a.m.).
28 http://www.hindustantimes.com/india-news/newdelhi/107-killed-
in-riots-this-year-66-muslims-41-hindus/article1-1126579.aspx
(retrieved on 6.2.2014 at 11.a.m.).
Bharati Law Review, Jan.-Mar., 2014 390

LokSabha seats, has triggered talk of conspiracies to

polarise voters on communal lines in the run-up to the
general elections due in 2014.The Home Ministry’s
statistics, circulated among members of the National
Integration Council, indicate the administrative
machinery often does not respond effectively when
minorities are targeted. Overall, till September 15, the
country saw 479 riots. Altogether 1,697 people including
794 Hindus, 703 Muslims and 200 police officials were
injured. The home ministry compiles the data on the
basis of reports from the state governments. Dr Syed
Zafar Mahmood of Zakat Foundation said he had his
doubts about the accuracy of the official statistics,
suggesting they did not capture the complete picture. “It
is much worse,” he said.

“There are camps after camps full of people who fled

their homes during the Muzaffarnagar riots. Why are they
only full of Muslims?”

In Maharashtra, 10 people were killed and 271 injured

in 56 incidents of communal violence. Seven of the 10
killed were from the minority community. Of the injured,
101 were Hindus, 106 Muslims and 64 police officials.
Bihar saw 40 communal disturbances, 25 incidents of
tension-like situation and recorded nine deaths - five
Hindus and four Muslims. Among the injured, 123 were
Hindus, 66 Muslims and 19 police officials. Gujarat saw
54 cases of communal violence, 21 of tension and
recorded six deaths - three Hindus and three Muslims.
The injured included 85 Hindus, 57 Muslims and five
police personnel. In 2012, the country had seen 640
incidents of communal violence and 93 deaths - 48
Muslims, 44 Hindus and one police official. A total of
2,067 people were injured. The injured included 1,010
Hindus, 787 Muslims, 222 police officials and 48 others.
Among the injured, 266 were Hindus, 197 Muslims and
25 police officials. Maharashtra had recorded 94 riots,
208 incidents of tension and 15 deaths - nine Muslims
and six Hindus - in 2012.

Among the injured, 110 were Muslims, 97 Hindus, 44

police officials and 29 others. Madhya Pradesh had
recorded 89 incidents of communal disturbance, 92 of
tension and deaths of five Muslims and four Hindus in
Bharati Law Review, Jan.-Mar., 2014 391

2012.Among the injured 146 were Hindus, 80 Muslims

and 15 police officials. In West Bengal, eight Muslims and
one Hindu were killed, while 38 Muslims and 19 Hindus
suffered injuries in 23 cases of communal disturbance
and 21 of tension in 2012.There were 20 riots and 30
incidents of tension in Bihar last year, leading to the
death of three Hindus. A total of 87 Hindus and 52
Muslims were injured. Gujarat had seen 57 incidents of
communal disturbance, 20 of tension and recorded the
death of four Hindus and one Muslim in 2012.The
injured included 91 Muslims, 82 Hindus and 28 police
officials.

• Chronology of communal violence in India29

One of the first major communal riots took place in

August 1893 in Mumbai in which about a hundred
people were killed and 800 injured. The period between
1921 and 1940 marked a particularly difficult phase. The
1926 Muharram celebrations in Calcutta were for
example marred by a clash that led to 28 deaths. India
witnessed its worst communal riots in 1948 after the
partition. Noakhali in Bengal and several villages of Bihar
were the worst hit. The first major riots between Hindus
and Muslims after the bloodshed of partition in 1947
occurred in Jabalpur in Madhya Pradesh in 1961. 1969
Ahmedabad riots: Communal riots between Hindus and
Muslims erupted in Ahmedabad in 1969.

At least 1000 people had died during this riot. At the

time there was a dispute over the leadership of the
Congress party between Indira Gandhi and Morarji Desai.
Hindu-Muslim riots broke out in Jamshedpur and
Aligarh in 1979 and in Moradabad in 1980.1984 Sikh
riots: The assassination of Prime Minister Indira Gandhi
on October 31, 1984 sparked riots that lasted 15 days.
Several inquiry panels later, eight people were convicted.
The politicians and police got away. The mayhem began
at about 6 p.m. shortly after the death of Indira Gandhi
was announced at the All India Institute of Medical
Sciences, Delhi. The news set the tone for a communal

29 http://www.hindustantimes.com/news-feed/archives/chronology-
of-communal-violence-in-india/article1-8038.aspx(retrieved on
6.02.2014 at 11:03 a.m).
Bharati Law Review, Jan.-Mar., 2014 392

massacre that India hadn't quite witnessed since

Independence.

Chaos reigned on the streets and locality after locality in

the capital echoed with the shrieks of the dying and
burning people. A fortnight of carnage saw over 2,700
dead and many thousands injured. "President Zail Singh
wanted the army to act, but it didn't. The then prime
minister and home minister did not take his calls,"
recalls Tarlatan Singh, who was Zail Singh's press
secretary. The worst affected areas were the ones that
had elected Congressmen HKL Bhagat and Sajjan Kumar
to the LokSabha. Yet the police could do nothing to lay
their hands on them.

1987 Merut riots: The riots began on May 21, 1987 and
continued for two months. The state police conducted a
probe but all cases were later withdrawn by the state.
The armed personnel accused went scot free. As with
most riots, there are conflicting versions on what set this
one off: burning of mills or a reaction to the carnage by
the Provincial Armed Constabulary (PAC) person.

A majority claim it was the armed police. The PAC men

wanted to arrest a man from the Hashimpura area but
were stopped by a mob. When the uniformed men tried to
force their way in, the crowd became violent. The PAC
called in reinforcements and retaliated instantly. About
40 bodies were later found floating in the canal near
Maliana village. This ignited communal passions and
Meerut was soon on fire. Within hours, over 350 shops in
the city and three petrol pumps had been burnt. In the
following two months, 350 people were killed, among
them prominent residents including a doctor from Hapur
and an army captain.

Rationality took the backseat as one set of residents

instigated massacres against another. It took several
weeks for a 13,000-strong army detachment to restore
peace in Meerut. The Uttar Pradesh government, under
pressure from the Rajiv Gandhi government, withdrew
hundreds of cases from district courts in Meerut. As a
result, there were no convictions. The PAC, having
terrorised a large section of Meerut, was the biggest
gainer-and justice the biggest loser.
Bharati Law Review, Jan.-Mar., 2014 393

1989 Bhagalpur riots: On October 23, 1989 began the

month-long riots triggered by police atrocities. Of the 864
cases filed by the police, 535 were closed and most
accused acquitted for lack of evidence. Following police
atrocities in 1989, the silk city of Bhagalpur saw
massacre and arson in which over 1,000 people died,
nearly 50,000 were displaced and 11,500 houses torched.

In the carnage, an army major herded 100 men, women

and children to a house at Chanderi village and posted
the local police for their protection. The next morning,
however, he found the house empty. Four days later, 61
mutilated bodies were found in a nearby pond, among
them a live Malika Bano whose right leg had been
chopped off. Bano narrated a story that continues to
haunt Bhagalpur.

On the night of October 27, a frenzied mob took over

the house from the police, slaughtered the people hiding
inside and tossed their bodies in the pond. Of the 864
cases registered by the Bihar Police, chargesheets were
filed in only 329 cases. In 100 of these, the accused were
acquitted for want of evidence. Chanderi was no different.
Of the 38 accused, only 16 were convicted and sentenced
to rigorous life terms, while 22 were acquitted.

The Babri masjid demolition set off riots between

December 1992 and January 1993. The Sri Krishna
panel examined 502 witnesses, but no police officer has
yet been punished.

1992 Mumbai riots: Hours after the demolition of the

Babri masjid, Mumbai erupted. For five days in
December 1992 and then again for a fortnight in
January, the city witnessed unprecedented riots. As
many as 1,788 people were killed and property worth
crores of rupees destroyed.

On January 25, 1993, the Maharashtra government set

up the Sri Krishna Commission of Inquiry, which
recorded the evidence of 502 witnesses and examined
2,903 exhibits. But three years later, on January 23,
1996, the BJP- Shiv Sena government wound up the
commission, only to reinstate it later under public
Bharati Law Review, Jan.-Mar., 2014 394

pressure. The commission finally submitted its report on

February 16, 1998. Of the 17 police officers who were
formally charged in mid-2001, not one has been arrested
so far. Even departmental action has not been initiated
against them. In April this year, former city police
commissioner RD Tyagi and eight serving police officers
accused of killing nine people, were discharged by a
Mumbai sessions court.

2002 Gujarat riots: On February 27, 2002 suspected

Muslim mob attacked a train carrying activists of the
Vishwa Hindu Parishad (VHP) back from the disputed
holy site of Ayodhya. The attack left 58 Hindu activists
dead.

The episode resulted in major riots, which left many

Muslims dead in Gujarat.

• Lucknow: Alleging spurt in incidents of

communal violence in SP regime, BSP members
today said that at least 12 communal riots had
taken place due to failure of the government in
past one year.30

"The SP government has failed to check communal

violence in the state. In past one year at least 12
communal riots have taken place", leader of Opposition
Swami Prasad Maurya said during question hour in the
Assembly.

Maurya said that in BSP's four term in Uttar Pradesh

not a single incident of communal tension was reported
but as soon as Samajwadi Party formed the government
the situation has changed. Replying to him,
Parliamentary Affairs minister Mohammad Azam Khan
said that in Bahujan Samaj Party regime their men were
involved in loot, rape and other such activities and now
as they did not have any work they were vitiating
communal atmosphere of the state. The discussion
started on question of BSP member Dharmpal Singh,
who sought to know from the government whether

30 http://articles.economictimes.indiatimes.com/2013-03-
12/news/37651104_1_communal-violence-prasad-maurya-bsp
(retrieved on 06.02.2014 at 11:04 a.m.).
Bharati Law Review, Jan.-Mar., 2014 395

national integration department of the state have formed

integration committees in district level.

In his reply, concerned minister Brahma Shankar

Tripathi said that out of 75 districts he got information in
this regard from 44 districts and response was awaited
from the rest of the districts. The member alleged that
government was not serious in forming these committees.
Amidst noisy scenes, Speaker Mata Prasad Pandey asked
opposition to raise the matter in the House during
discussion on law and order later in the day.

There are several factors which are responsible for the

disintegration of the country but here we shall be dealing
with the most important factor, which is very frequently
misused by political pandits, general public and even by
administrative agencies just trivial and temporary gain.
Today, main factor in communal tension is political vote
banking. The leaders are playing a vote bank policy
without bothering the consequences in future. There
basic strategy is to calculate how much seats they shall
gain with maximum disintegration and minimum efforts.
They even go to the extent of dividing the common public
in Hindu-Muslim, Upper Caste- Lower Caste, Northern-
Southern, and Hindi-English etc. The basic need that is
public interest is always veiled. In 1907, the Hindu
Mahasabha was formed for the protection and promotion
of the interest of the Hindus. Their outlook towards all
problems was from a communal angle. Some other
Religious-Political parties were formed during the process
namely Bharatiya Jana Sangh, Bharatiya Janata Party,
RSS, VHP, Bajrang Dal, Durga Vahini. They advocate a
Hindu Rashtra which is absolutely communal in nature.
As a result there election campaigning is totally an
outburst of communal views proposing an agenda of
Hindu favourism. Muslim League, the Jamat-e- Islami,
The Muslim Majlis in contrary to prove their might
propose the complete reversal of the above policy. In the
name of Muslim empowerment they ought to propagate
an extremist view of disunification of brotherhood.

These groups are a constant threat toward the basic

nature of Constitution. There basic aim being (divide and
rule policy). Where there is an extensive collision of
Hindu- Muslim interest, other sects act as a catalyst in
Bharati Law Review, Jan.-Mar., 2014 396

raking up the issue. Among the Sikhs, the Akali Dal,

stands for the promotion of the interest of the Sikhs in
India, contributing both the attributed of regionalism and
communalism. The Election Manifesto gives the
importance to the issues like protection and preservation
of Democracy, stability in the country, integrity of nation
to fight against communalism and evils like corruption.
Communal Parties in the total reversal of these policies
stand for the cause of religious caste ism and
regionalism. In the Authors opinion, such parties should
be banned from contesting elections.

Communal political parties mobilise in the name of

political opinion the fire of disintegration to gain benefits
as in terms of seats from a particular constituency. The
Representation of Peoples Act defines what constitutes
corrupt practices and electoral offence. Politicians play a
vital role in promoting the enmity widening the gap
between different communities irrespective of the
problem i.e., Shah Bano Controversy, Salman Rushdie,
Babri Masjid-Ram JanmBhoomi, religious procession,
rape of a girl of other community (Mathura Ahir Case)
dispute of land between two communities, murder of
criminals by other communities etc.

The impact of communalism has engulfed whole of the

contemporary India. This issue today needs the
instantaneous attention and in its reversal a
consolidation of secular forces. In each of the recent
cases of violent religious activism, the supporters who
have encompassed these deep-seated anti-state religious
ideologies have fondled personally upset with what they
regard as the domination of the secular state. They
experience this oppression as an assault on their pride
and feel insulted and shamed as a result.

The failures of contemporary society—though economic,

political, and cultural—are often experienced in personal
ways as humiliation and alienation, as a loss of selfhood.
Acts of violence against the secular state become
emblematic expressions of empowerment. Endeavours to
claim clout in a public pitch is supposed as hostile and
marginalizing. Religious activists think that they are
simply reclaiming the political power of the state in the
name of religion. It might be a workable arrangement in a
Bharati Law Review, Jan.-Mar., 2014 397

pre-modern world where religious sensibilities aren’t

wined with an expansive sense of moral order, and a
religion-based polity could embrace a varied and
pluralistic society.

The mockery is that the modern idea of religion is much

narrower than that, limited to particular sets of doctrines
and to particular confessional communities. The use of
communal ideology and religion in election process has
been an unfortunate aspect of Indian democracy.
Democracy is perceived not as an instrument for creation
of a more responsible society but as a system of
government that ensures power to the group in largest in
number. To put an end to communalism it is necessary
that Indian society embodies such values as values of
tolerance and mutual respect.


Bharati Law Review, Jan.-Mar., 2014 398

SECULARISM: A TOOL FOR UNITING OR DIVIDING

Mr. Siddharth Nandwani*

Mr. Bhaskar Bhushan**

Introduction

“Religion is not in doctrines, in dogmas, nor in

intellectual argumentation; it is being and becoming, it is
realization.”1 Hinduism is therefore, not a definite
dogmatic creed, but a vast, complex, subtly unified mass
of spiritual thought and realization.2 India is a pluralistic
society and a country of religions. It is inhabited by
people of many religions. The framers of constitution thus
desired to introduce the concept of ‘secularism’, meaning
thereby state neutrality in matters of religion. They also
wanted to confer religious freedom on various religious
groups.3 So it was of prime concern to introduce the term
‘secular’ to achieve religious solidarity and peace because
religion has been a very volatile subject in India both
before and after independence. The Constitution therefore
seeks to ensure state neutrality in this area.4

Etymologically, the word ‘secular’ comes from the Latin

word saeculum, which first meant ‘age’ or a ‘great span of
time’ or the ‘spirit of the age’. Later it acquired another
meaning, of belonging to ‘this world’. There existed two
worlds, the secular and the religious- eternal, temporal
and spiritual, each with distinctive practices and
institutions. This was the birth within Christian
discourse of the notion of relative separation or
disengagement. However, it was the spiritual order that
ultimately remained decisive.5

* Student, 3rd year, BBA LL.B., New Law College, Bharati Vidyapeeth
Deemed University, Pune.
** Student, 2nd year, BBA LL.B., New Law College, Bharati Vidyapeeth
Deemed University, Pune.
1 Gautam Sen, The Mind of Swami Vivekananda § 53.6 (19th ed.
2008).
2 Radhakrishnan, The Hindu View of Life § 21.1 (19th ed. 1954).
3 Prof. M.P. Jain, Indian Constitutional Law § 1315.1 (6th ed. Re.
2012).
4 Ibid.
5 Achin Vanaik, Communalism Contested § 65.1 (1997).
Bharati Law Review, Jan.-Mar., 2014 399

With the passage of time, the concept of secular later

developed into the concept of secularization.

The term ‘secularization’ emerged after the Peace of

Westphalia in 1648 and is a process originally referred to
as the transfer of ecclesiastical lands to civic control. By
the nineteenth century and in the still powerful flush of
Enlightenment values, G.L. Holyoake of Britain coined
the term ‘secularism’ to define an ideology and movement
wherein social (and individual) morality, hitherto
determined by the transcending principles of religion,
were now to be determined by reason, and anchored to
the good of man or woman in this life.6 He started the
movement of propagating the term and its ideology in
1846, and laid down its principles in his two books,
Principles of Secularism and The Origin and Nature of
Secularism.7 Agnostic or indifferent to religion, this
version of ‘secularism’ acquired a more atheistic slant
through Holyoake’s disciple, Charles Bradlaugh. But
‘secularism’ as a rationalist movement, agnostic,
indifferent or atheistic, soon stalled. It ignored rather
than confronted religion or religious discourse.8

Thus the whole idea of Secularism is not to accept the

recognition of a specific legal regime for each community
because the emergence of the very concept owes its
inception to the noble idea of inclusiveness and a process
of creating a society where the principles of individual
faith were subordinate to the peaceful existence of a
layman, where government or state served to be the
guardian of the individual by fostering their pluralistic
beliefs.

Historical Background: Social Transformation

through ‘Secularism’

Tracing the history which asserts that the concept

Secularism emerged as a reaction to communalism, the
idea of western countries but the ground reality was that
it even existed in our ancient literatures and was
prophesized by our great rulers since the time

6 Ibid.
7 S.L. Verma, Towards theory of positive Secularism § 43.2 (1st ed.
1986).
8 See supra note 5.
Bharati Law Review, Jan.-Mar., 2014 400

immemorial. An attitude of objectivity, Humanism, co-

existence and toleration permeated the secular spirit of
ancient Indian thoughts. A distinctive openness is
exhibited in Rigveda which stated: “Truth is one, and the
learned may describe it variously.” It considers all human
beings as parts of universal soul and preaches individual
equality as a forerunner of religious equality. As stated in
Atharvaveda, “This earth, which accommodates people of
different persuasions and language, as in a peaceful
home, may it benefit all of us.”9 Ashoka in his twelfth
edict proclaimed:

“He who does reverence to his own sect while

disparaging the sects of others, wholly from
attachment to his own, with intent to enhance the
glory of his own sect, in reality, by such conduct,
inflicts the severest injury on his own sect. Concord,
therefore, is meritorious, to wit, hearkening and
hearkening willingly to the law of piety as accepted
by other people.”10

The Satavahanas, Kushanas and the Gupta rulers paid

equal patronage to all the religions. Under the Vardhana
rulers different schools of religion and philosophy
flourished side by side. The Shiva cult propounded in the
south posed no problem of social disharmony because of
well-laid ethos of religious tolerance. Liberal patronage to
all religions without discrimination was the policy of
Chalukyas, Rashtrakutas, Hoysalas and Cholas.11

Thus it was a step forwarded to establish the idea of

Secularism which has now emerged as a significant
method of maintaining peace, harmony and accord in the
society.

9 Prithvi Sukta in Atharvaveda “Janam vibharti bahutham vivaachasam

maanaa dharmanam prithavee yathokasam”.
10 S.Radhakrisnan, Indian Religions § 18 (Orient Paperbacks, 1979,
New Delhi 1992).
11 P. Ishwara Bhat, Law and Social Transformation in India § 234.1 (1st
ed. 2009, Re. 2012).
Bharati Law Review, Jan.-Mar., 2014 401

Constitutional Background

The word ‘secularism’ and its concept were defined by

the Hon’ble Supreme Court in the case of Ziyauddin
Burhanuddin Bukhari v. Brijmohan Ramdas Mehra12:

“The concept of secularism was defined in the realms

of philosophy and in utilitarian terms. The courts set
the role of the State to be neutral or impartial in
extending its benefit to the citizens of all casts and
creeds and cast a duty on the State to ensure
through its laws that disabilities are not imposed
based on persons practicing or professing any
particular religion.”

This was the precedent that earmarked the

intervention of judiciary in taking active participation
over the matters relating to religion that pertain to
Secularism.

‘Secularism’ in India: Uniting the Nation

The value premises:

The Preamble to the Constitution and Article 25-28.
The Core Concept of Secularism as an independent
paradigm.

Witnessing the fireballs from communities presiding prior

to and after independence i.e. during the period of
partition, in which millions of people shook their hands
with the almighty, demanded the insertion of the word
‘secular’ into the Indian Constitution, and finally the term
was introduced into the preamble by 42nd Amendment
Act of 1976.

Even the masterminds behind our national movement

were of the view that the term should be brought into
existence so that our goal of providing every person the
right to profess, practice and propagate religion be
achieved. It was at that time Pandit Nehru declared:

“The government of a country like India, with many

religions that have secured great and devoted

12 A.I.R. (1976) 2 S.C.C. 17.

Bharati Law Review, Jan.-Mar., 2014 402

following for generations, can never function

satisfactorily in the modern age except on a secular
basis.”13

Thus the attraction of secularism for the country lay in

the fact that it was the only prudent option for
construction a nation out of fragmented, polarized
identities that had emerged and consolidated themselves
during the colonial and the anti-colonial phase. In India,
where two new nations had emerged out of a blood-
spattered history, the need was to forget that people who
had shared the same historical consciousness, the same
language and the same folklore for centuries has
eventually split over religion. This demanded to integrate
these divided people on new ideologies, on new
perspectives and on new issues. This could happen only
through secularism that gave due recognition to religious
identities, and yet attempted to transcend them as far as
the public sphere was concerned. The state couldn’t
refuse to recognize the religious identities of its people.
What it could do was to stipulate that all religions were,
in principle, equal.14

Accordingly, the concept of secularism emerged in India

with three fold objectives, which were:

• Firstly, that the state would not attach itself to

any one religion, which would thereby establish
itself as the state religion;
• Secondly, all citizens were granted the freedom of
religious belief;
• Thirdly, the state would ensure equality among
religious group by ensuring that one group is not
favoured at the expense of another.15

Believing on three fold objective as specified, the

amount of relief that could not be estimated was such
that the insertion of the term bought something that it
changed the entire philosophy which existed earlier.
secularism and democracy: these were the two gods of

13 D.E. Smith, Nehru and Democracy: The Political Thought of an Asian

Democrat § 154 (1958).
14 Neera Chandhoke, Beyond Secularism: The Rights of Religious
Minorities § 50.3 (1999).
15 Ibid., p. 49.
Bharati Law Review, Jan.-Mar., 2014 403

the newly independent countries of the ‘third world’.

Whenever and wherever religion was invoked in the post-
colonial world, it was a component of, not as a substitute
for national identity. Despite the fact that the movement
for Pakistan had been fought in the name of Islam,
Jinnah ruled out the idea that a theocratic state would be
established in the country. Inaugurating the Constituent
Assembly of Pakistan on the eve of the formation of the
country, on 11 August 1947, Jinnah promised equality to
all citizens of Pakistan.16

Now I think we should keep that in front of us as

our ideal, and you will find, that in course of time
Hindus will cease to be Hindus and Muslims will
cease to be Muslims, not in the religious sense,
because that is the personal faith of each individual,
but in the political sense as citizens of the state.17

In virtually every country of Asia and Africa, voices that

invoked religion for political purposes were dismissed as
primordial. They had no place in a modern, secular
state.18 Thus it was the sole tool for uniting the groups
which existed in the country so that everything goes
smoothly.

The concept of secularism in India is briefly explained

and enshrined under Constitution of India, the mother of
all laws. The reference of which is drawn from Articles 25
to 28 of the Indian Constitution. The basic idea of
introducing the concept was to confer rights not only to
those who are the citizens of the country but also to all
persons in India. These constitutional donations are not
only restricted to individuals but also extends its purview
to religious group i.e., religious groups are also covered
under the umbrella of Freedom of Religion and
Conscience. Articles 25 to 28 provides protection to all
religions and religious practices and assures that there is
no interference by the state in religious affairs i.e. state
doesn’t support or discriminate any religion and does not
has any religion of its own as observed by the Hon’ble

16 Ibid., p.,54.
17 Rafiq Zakaria, The Widening Divide: An Insight Into Hindu-Muslim
Relations § 48 (1995).
18 See supra note 10.
Bharati Law Review, Jan.-Mar., 2014 404

Supreme Court in the case of S.R. Bommai v. Union of

India19 where Sawant, J.: observed,

“Religious tolerance and equal treatment of all

religious groups and protection of their life and
property and of the places of their worship are an
essential part of Secularism enshrined in the
constitution.”

According to B.P. Jeevan Reddy, J.:

“While the citizens of this country are free to

profess, practise, and propagate such religion, faith
or belief as they choose, so far as the state is
concerned, i.e., from the point of view of the state,
the religion, faith, or belief, of a person is
immaterial. To it, all are equal and all are entitled to
be treated equally.”

Thus providing equal opportunity to all was the rule.

Beyond this, to secure all citizens of their rights, needful
steps were taken as even anti-secular forces were not
allowed to participate as they would divide antecedents of
different religious faith and will then create tyranny
among them which will then be followed by riots and
anti-secular movements. Therefore, the constitution
framers levied religious matter confined to individuals
and gave power to the state to look into the matters
pertaining to religions.

The concept of secularism is more or less a face of

equality principle. Thus for understanding the idea of
Secularism the reference has to be made to Articles 14,
15, 16 and 29-30 as these foster the concept of
secularism which has been observed by the Hon’ble
Courts in India. In the case of M. Ismail Faruqui v. Union
of India20 while delivering the majority opinion, Verma, J.,
observed:

“It is clear from the constitutional scheme that it

guarantees equality in the matter of religion to all
individuals and groups irrespective of their faith
emphasizing that there is no religion of the state

19 AIR 1994 S.C. 1918 : (1994) 3 S.C.C. 1.

20 AIR 1995 S.C. 604, at 630 : (1994) 6 S.C.C. 360.
Bharati Law Review, Jan.-Mar., 2014 405

itself. The Preamble of the Constitution read in

particular with Articles 25 to 28 emphasizes this
aspect and indicates that it is in this manner the
concept of Secularism embodied in the
constitutional scheme as a creed adopted by the
Indian people has to be understood while examining
the constitutional validity of any legislation on the
touch stone of the constitution. The concept of
Secularism is one facet of the right to equality
woven as the central golden thread in the fabric
depicting the pattern of the scheme in our
Constitution.”

Thus the concept seemed to achieve its very object of

uniting but has left itself to diversified range of
confusions.

The Crossroads of Indian Secularism

Knowing the fact that the concept of Indian secularism is

completely different from the western notion of
Secularism brings us at a critical juncture presenting
before us a few fundamental questions answers to which
are important in determining the practical applicability of
the concept of Indian secularism which often becomes a
matter of debate and discussions because of its
fundamental differences which exists between the Indian
and the occidental notion of secularism.

Indian secularism is going through serious hurdles

which can be aptly understood by the below mentioned
quote:

‘When I use a word’, Humpty Dumpty said, in rather a

scornful tone, ‘it means just what I choose it to mean-
neither more nor less.’
‘The question is’, said Alice, ‘whether you can make
words means so many different things.’
‘The question is’, said Humpty Dumpty, ‘which is to be
master-that’s all.’

-Lewis Carroll, Through the Looking Glass21

21 T.N. Madan, Modern Myths, Locked Minds § 233 (1998).

Bharati Law Review, Jan.-Mar., 2014 406

India’s unique secularism calls for religious neutrality

rather than indifference. The relationship of religion with
the state is a tricky matter for any modern secular
democracy in which debates centres on the question of
the appropriate limit for the external regulation of the
religion. When religious freedom should end, and modern
democratic principles should begin, are the concerns of
layman’s and the learned alike. Religion is a matter of
personal faith or belief but it has social orientations which
are diverse and varying. Every individual has a right or a
privilege but one cannot enjoy his privilege by infringing
upon the privileges available to others alike. The sphere of
individual freedom is a subset of collective social
behaviours wherein our actions have the consequent
implications upon other individuals and society in many
ways and at different levels. Knowing this, every
individual has to conduct his religious behaviour in a way
that the other fellow-person equally blessed like him
doesn’t feel offended. This brings us to claim that the
issue of Secularism is a subject common to different
disciplines of academics and hence, requires rigorous
introspection and enquiries into various subjects which
are affecting the ideology behind “Secularism Whether
Being a Uniting or a Dividing tool”.

The issue of secularism is a collective representation of

various constituent factors that are affecting it either
implicitly or explicitly, which are as follows:

• The Role of State The Legislature

The Executive
The Judiciary

• The Perception of Religion: Nexus Between

Religion and Secularism;

• Population of the Country or the Masses:

Role of Politics and Political Parties;

• Individual Identity and Secularism.

Bharati Law Review, Jan.-Mar., 2014 407

The Role of State Legislature

Legislature refers to a body of those individuals who

contribute in making laws for the society. A law may be
defined as a set of principles that are laid down for the
purposes of ordering the life of people in the country
passed by the legislative authority, derived from court
decisions and established by local customs. They define
Do’s and Don’ts for the people of country but the
question being, can only a enactment really make a
country secular?22 The responsibility of legislature is to
make laws that are thoroughly consistent and to create a
set of laws that are not in conflict with each other.
Legislature being a part of elected democracy is a group
of elected representatives that eventually take birth from
party system. Politics rather than being a tool of
empowering the nation has been reduced to a way of
securing immunity and privileges which is now affecting
the quality of law making process as the government has
not been able to clarify its position or approach related to
religion. The failure can be justified by the below
mentioned e.g. India’s commitment towards Secularism is
inconsistent with the operational set of personal laws
governing different religions and nurturing different
individual identities therein. The lack of political will
towards Directive Principles of State Policy’s Article 44
Uniform Civil Code (UCC) adds to the state of indecision
and create confusion.

Executive

The body of individuals who have the responsibility to

govern and administer the country. Its sees that the laws
made are implemented properly, but it has been going
through serious dilemmas. The bureaucracy is greatly
superseded by politicians; issues like corruption, red
tapism, lack of sensitivity and understanding the
contemporary issues and their complex implications have
been a part of the same problem every now and then,
which eventually are creating anonymity among the
departments itself.

22 Shri V.M.V. Naval Kishore, National Foundation for Communal

Harmony, Secularism and the Law, available at
http://nfch.nic.in/WORD_FILE/SECULARISM.pdf (last visited
February 6, 2013).
Bharati Law Review, Jan.-Mar., 2014 408

The instance of government officers acting on the order

of politicians without thinking about what is right or
wrong and which is the result of immense pressure is a
best example which overcasts the breakdown of
government personnel’s. The anonymity between the
ruling party and the right-wing parties and their
collective failure in the Babri-Masjid case which could
have been settled by diplomatic negotiations and a
serious failure of the government where the opposition
party seemed to ridicule the ruling party like nothing
else connotes the very fact of serious breakdown in the
administrative setup and their reluctance to act has
created a spot in the history of India’s institutional setup
and has questioned the intent of the system whether
being the one that unites or divides.

The incident where the intervention of the state and its

favouritism policy was out-casted affected the very
meaning of the term secular.

The rebuilding of the Somnath Temple by the

Saurashtra Government wherein it sanctioned funds for
installation ceremony and the President of India being
present on the occasion were able to gave official colour
to the whole project but it was an incident of the
institution associating itself with a particular religion
bringing fear in the minds of minorities and the Prime
Minister having deep personal reservation on the issue
though the commitment being that the state’s would not
have the options of religious preferences23, are few
examples illustrating about the problems as faced by the
executive departments.

The Judicial Pro-activeness

“While in United State of America, we go for strict church-

state separation; in India it has involved the active
interpretation of religious doctrines wherein judiciary
acquired the authority to evaluate essential and non
essential ingredients of a religion, and this power of

23 S. Gopal in G. Parthasarthy and S. Gopal, Jawaharlal Nehru and

India’s Quest for a Secular Identity, Occasional Papers on History and
Society, Nehru Memorial Museum and Library, First Series, No XLII
pp. 16-17 (1987).
Bharati Law Review, Jan.-Mar., 2014 409

interpreting has brought with it the power to rationalize

it.”

In 1960’s the courts devised ‘The Essential Practices’

doctrine in which the essentialness or usefulness of a
religious practice or action was scrutinized. This doctrine
paved a path to Indian judiciary for resolving the tension
between different religious freedoms and the paramount:
modernistic liberal constitutional values of practising,
propagating and preaching religion. This helped our
judiciary in simplifying the scenario by interpreting
religious doctrines in conformity with the above
mentioned values. The Court room thereby became a
sight for cleaning and reforming religion because
‘superstitious beliefs’ fell outside the constitutionally
protected premises for religious freedom. Petitioners lost
cases not because of their right to religious freedom had
limits, but because they misunderstood their very own
religion. This allowed courts to internally regulate religion,
thereby avoiding the problems of conflict between the
public purpose of the state and religious freedom which
typically came with external regulation of religious
principles.

Through interpretation of religious and texts and

doctrines for themselves for the purpose of decision
making and dispute settling, courts were able to solve the
dual purpose of individual ambiguity and personal
disillusionments and the clear and concise position of the
state backed up by the authentic religious sources.
Courts were able to deny any form of disagreement all
together and were able to show that the secular public
purposes of the state where the best expression of the free
exercise of the particular religion in question by deciding
only those matters that came to its notice through the
institutional setup. The idea was to promote a composite
nationalism which would integrate all Indians regardless
of their religion. Religion was only to be an umbrella
which would protect in and every living being from the
state of inactivity and would empower them rather than
creating divisions on the name of ideologies that were
subordinate to the purpose they sought to achieve.

All said and done, any nation that has grown from
strengths to strengths derives its power and potential
Bharati Law Review, Jan.-Mar., 2014 410

from the institution it fosters, culture it follows and the

ideology and principle it imparts to its citizenry, but above
all this abstract notion of system becomes reality only
when the people who are the part of it have the intent and
the will to do so. All the three institutions can’t work
without the help of the other two and together as they
form the principle setup of our nation. But on this issue
of Secularism, inference can be drawn that the system
has fallen apart and has failed to perform their very own
functions, reasons best known to them.

There are numerous instances of the same when we

objectively peep into history.

The Perception of Religion: Nexus between Religion

and Secularism

India as a country is deeply religious. The idea of India

can’t exist without religion. Religion is in fact a source of
strength that strengthens the bond among individuals,
ideologies and contributes to the cause of Indian
Nationalism. Religion is nothing but being and becoming.
The word religion means Dharma, the duty full notion of
what is right and wrong. It is realization in action
‘Dharyatri Dharma’ something that can be adorned which
is the synonym of life itself i.e. religion is nothing but life
lived on the principles of righteousness.

Religion and Secularism are contemporary and

complementary to themselves as religion in India seems to
stand for blind belief and reactions, dogma and bigotry,
superstition and exploitation, and the preservation of
vested interest.24 But in the depth of it, it supplies,
nurtures as well as satisfies a deeper inner craving of
humanity.

But due to reasons unknown; the Constitution of India

acknowledges the concept of minorities but it has not
been defined precisely leaving a good deal to be inferred,
which creates a soft stance over the issue of the religion
and secularism. The division created in the name of
majority and minority is nothing but political agenda and
Secularism is an elastic concept which can contain all

24 See supra note 21 p. 239.3.

Bharati Law Review, Jan.-Mar., 2014 411

such tensions and the disparities among religions and its

followers. The issue of secularism can only be seen
through the composite lens of religion and the individual
perception of religion in symphony with the social outlook
i.e., we have to consider the role that religion plays in the
collective Indian behaviour of different religions and the
individual perceptions which are in conflict with each
other. This situation has created lacunas which are being
used by political giants to exploit and rule, which is an
extension of the British Colonial Management principle of
‘Divide And Rule’, contemporaneously used for the ‘Vote
Bank Politics’ and creating divides in the civil society.

Population of the Country or the Masses: Role of

Politics and Political Parties

The population of the country is divided into

communities, sects and hence, have numerous
differences among themselves. People who are part of
different communities advocate for the betterment of their
communities. We have to realize and recognize the fact
that communities work for empowering their members
and the people both identify with and are identified by
their community. Due to this variation, plurality and
diversity, masses are distinctly divided into groups over
different issues that affect their life; political parties
exploit this condition by catering to their demands and
voicing their concerns. This does bring transparency and
empower the masses but the way by which political
parties try to make use of this situation is very
dangerous. The issues in their hand is of value and
importance but it later turns into an agenda of gaining
power which has nothing to do for the solution to the
issue and is nevertheless, a fake promise of assuring
protection to all. The issue of secularism in the light of
minority-majority conundrum is exploited by the political
fraternity in the same way mentioned above. The masses
often submit to the immediate pleasures rather than
accepting and practicing what is just and fair which can
be illustrated by the case of Shah Bano Begum case25:

Where the Supreme Court entitled Muslim woman

for maintenance but was criticized by the

25 Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.

Bharati Law Review, Jan.-Mar., 2014 412

protestors claiming that the verdict of the supreme

court has attacked on their religion and has
denied the right from their own personal laws,
seeing the situation political move, Rajiv Gandhi’s
Government directed the parliament to enact a law
over turning the judgment of the Supreme Court
which was not for the benefit of the masses but for
the impression that it would affect the future
gaining of votes from the minorities. The role of
Rajiv Gandhi Government was seen as an
appeasement towards Muslim minority and it can
be inferred that they merely tried to use the
sentiments existing amongst the communities.

Thus seeing the situation un-tackled, political parties

have tried to take the benefit of this, leading to immense
destruction of sentiments of others and further creating
mess and debilitating the value of a concept of
secularism.

Individual Identity and Secularism

As discussed above about communities, it is equally

important to understand the nature of every individual
that it is a part of Indian Polity but is opinionated
personally. Individual identity and ideology play a
significant role in determining the feasibility of law
imposed by the state. India being essentially a religious
country with diverse ideas and principalities, Secularism
for an individual is nothing but a system of values that
make him tolerant, sensitive towards others. A concept as
novel as Secularism can only be a success when a
diversity of individuals reach a common plane of
understanding which can further the values of our
constitutional principles. Religious sentiments are not
only a part of religious groups but are also the part of
individual faiths and beliefs and hence require respect
which could than create amity, accord, harmony and vice-
versa.

Therefore it is very tough to exactly determine what

should be omitted or added, but law and the position of
state which includes all three institutions, religion being
at the centre of thought and action, the presence of
diversity, variations and a blend of religiously liberal as
Bharati Law Review, Jan.-Mar., 2014 413

well as religiously orthodox individuals and communities

create diasporas of multiculturalism which is primary to
the existence of India’s Secularism. The role of various
sects and society claiming to be different from each other
give a connective colour to the problem of Secularism. The
role of religious parties is secondary to the existence as
they only represent the voice of the population, but
understanding the depth of democracy and the problem of
electoral process as well as the multi party system, a
serious issue like Secularism often becomes a politicized
matter losing its aesthetic value. The Indian history of
discourse, colloquia and argumentative traditions of
opinion adds to the versions of variations in secularism
and creates a mirage in which creates an illusion of ‘to be
or not to be’.

Suggestions

Ideas like secularism can’t be held as a dividing tool but it

is a collection of abstract, philosophical and lofty
principles of statehood because of the purpose for which
it has been introduced in the Constitution. Constitutions
are made for creation of a collective identity but not for a
divided polity which has now taken a different view
whereby we have given minority’s status to those who
even can’t be part of it. Therefore it can be said that it is
an issue that creates division only when understood and
practiced as well as prophesized differently or
erroneously. But we should consider it as a normative
and positive concept which is contemporarily being used
otherwise and in the light of above mentioned arguments
the researchers have came up to the conclusion that,
being a democratic country, secularism is a dialect of
religion and reasoning but due to its dogmatization and it
being forcefully molded and narrowed consistently, the
core meaning of the concept loses its importance and
purpose due to the factors mentioned above, which are in
practice only to nullify the effect of self emancipation,
process of secularization and is a threat to democracy
itself. Therefore following considerations should be
appreciated so as to strengthen the very fabric of
Secularism:

• Implementation of Uniform Civil Code;

Bharati Law Review, Jan.-Mar., 2014 414

• Tackling fundamentalism by strengthening

secularism;
• Controlling power-hungry politicians;
• Introducing the concept of civil religion explicitly;
• Strengthening the values of democracy;
• Collective understanding the concept of pluralism;
• Striving for inter-communal harmony and fostering
universal brotherhood.

Thus, the researchers have highlighted the overall

arguments so as to give attention to each and every
aspects of ‘secularism’ which is now understood as an
efficient tool for either Uniting or Dividing. But the
researchers favour ‘secularism’ being a tool for uniting the
nation.


 Bharati Vidyapeeth Deemed University
New Law College, Pune
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