constitution on minority rights

TeaThe debate on minority rights must be lifted from the current framework of communalism versus secularism and placed in the theoretical arena of democracy and substantive equality. Recognizing the importance of minority rights, the United Nations General Assembly adopted a Declaration on ‘The Rights of Persons Belonging to National, or Ethnic, Religious and Linguistic Minorities’ on 18 December 1992. This date is celebrated as Minority Rights Day all over the world. , Minority rights are essential in democratic politics because as Franklin Roosevelt reminds us, “No democracy can long survive which does not regard the recognition of minority rights as fundamental to its existence”.

Origin of minority rights

Article 19 of the Austrian Constitutional Law (1867) acknowledged that ethnic minorities have the full right to maintain and develop their nationalities and languages. Similar provisions were found in Hungary’s Act XLIV of 1868 and the 1874 Constitution of the Swiss Confederation, which granted the country’s three languages ​​equal rights in the civil services, law, and courts. The provisions of the peace treaties after World War I focused specifically on the status of minorities. Minority protection was codified in five treaties between the Allied and Associated Powers, on the one hand, and Poland, Czechoslovakia, Romania, Greece, and Yugoslavia, on the other. Special provisions for minorities were included in peace treaties with Austria, Bulgaria, Hungary, and Turkey, while Albania, Finland, and Iraq declared that they would protect their minorities. Article 27 of the Universal Declaration of Human Rights gives every person the right to community – that is, the right to enjoy his or her own culture and to participate in cultural forums, associations, etc.

debate in the constituent assembly

The framers of the Constitution showed deep sensitivity towards the needs of the minorities. Pandit GB Pant, while moving the proposal to constitute an Advisory Committee on Fundamental Rights and the Rights of Minorities, clearly stated that “A satisfactory solution of the questions relating to minorities will ensure the health, vitality and strength of the independent State of India. It is important that a new chapter begins and we all realize our responsibilities. Unless the minorities are completely satisfied, we cannot maintain peace. The committee headed by Sardar Vallabhbhai Patel examined the issue of minority rights and accordingly articles 25 to 30 were introduced in our Constitution. The underlying logic of these articles is that individualistic universal rights are of little use in a heterogeneous country like India. , and the need to discuss the multiculturalism, difference, and minority rights that mark contemporary political theory.

Logic behind minority rights

Protection of diversity is the rationale behind minority rights in the Indian Constitution. In fact, individual rights under Articles 14-18 (equality), 19 (free speech) and 25 (freedom of religion) are not sufficient for the protection of language, script or culture which comes under Article 29. No one may be personally unjustly treated, but suffers if the group to which he belongs is ridiculed or denied any value. It also undermines a person’s right to dignity. An individual’s right to culture has no meaning or significance unless the community to which the individual belongs, or is identified, is given the right to exist in a viable form. This requires not only the presence of a group that shares a common culture but also a favorable environment in which such cultures can flourish. Thus, under Article 30 minorities, both religious and linguistic, are permitted to establish and administer institutions of their choice with a view to making such accommodations in such institutions.

Recently a bench of seven judges… Aligarh Muslim University (2024) described Article 30 in clear terms as ‘an aspect of equality and non-discrimination’. in a bench of nine judges St. Xavier’s College Society (1974) had also observed that “The whole object of providing rights to minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not get such special protection then they will be denied equality ” In Kesavananda Bharti (1973), held the rights under Article 30 to be part of the basic structure which cannot be changed even by Parliament through constitutional amendment.

What are minority rights?

Interestingly, although the word ‘minority’ has been used at four places in the Constitution, no definition of the word ‘minority’ has been given. The Supreme Court has consistently held that minorities should be defined at the state level. Since Hindus are a religious minority in Punjab, Kashmir and the North-Eastern states, they are also entitled to minority rights. There are hundreds of Hindu minority institutions in India.

Article 29(1) states that ‘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 preserve the same.’ This provision embodies two important dimensions. First, it recognizes that different groups have different cultures and that not all people can have the same culture. Since these linguistic and religious cultures are valuable to their members, they need to be given explicit rights to preserve their culture, especially because such minority cultures may face disadvantages in the majority society. Secondly, the right to culture is an individualistic right, that is, individuals are given the right to preserve their distinct culture.

Article 30 guarantees that all religious and linguistic minorities shall have the right to establish and administer educational institutions of ‘their choice’. In Again Kerala Education Bill (1957), the Supreme Court held that the key word in Article 30 is ‘choice’ and the minority can expand its choice as much as it wants. The court also said that the term ‘educational institution’ also includes universities. The courts have also been consistent in providing protection under Article 30 to pre-constitutional institutions in such cases. SK Patro (1969), St. Stephen’s (1992) and dear basha (1967). In the latest decision of Aligarh Muslim University (2024), the majority has held that an institution of national importance can also claim minority character.

Additionally, Article 350A provides for instruction in the mother tongue at the primary stages of education, and Article 350B provides for the appointment of a special officer for linguistic minorities. Their religion based personal laws are also constitutionally protected, for example, the customary laws of the Nagas. There is no religious qualification attached to holding high constitutional posts. There is also a National Minorities Commission and a National Minority Educational Institutions Commission to deal with the problems of minorities.

defining minority

In the bench of 11 judges TMA Pie Foundation (2002) case left the question of the indicators of minority institutions unanswered. Former Chief Justice Dr. DY Chandrachud gave a historic judgment Aligarh Muslim University (2024) case has now been indicated.

Interestingly, there was broad agreement among all seven judges on the issue of indicia. All of them preferred holistic, comprehensive and flexible criteria such as deliberation – looking at the genesis or the idea or the mind behind the idea. Moreover, the person taking the initiative should belong to the minority community. Their intention should be to establish an institution ‘primarily for the minority community’ and other factors to be considered would include collection of funds, acquiring land, construction of buildings and government approvals. It is not necessary that the rights of administration should be with minorities only. The authority of administration is the result of establishment.

Although there is no right to receive government aid, Article 30(2) clearly states that the State cannot discriminate against any minority institution while giving aid. In Again Kerala Education Bill (1957) case, Chief Justice SR Das held that the State cannot impose such ‘onerous’ conditions in granting aid or affiliation to minority institutions which require them to surrender the minority character of their institutions.

Furthermore, the Supreme Court has consistently held that minorities have no right to mismanage their institutions, and the government must insist on appropriate safeguards against mismanagement, maintain fair standards of teaching, and ensure “excellence”. Can make appropriate rules for this. Institutions.” in St. Xavier’s (1974), the apex court clearly stated that “under the cover of special prerogative of management, minorities cannot refuse to follow the general pattern. In fact, they are forced to keep pace with others. Could.”

Faizan Mustafa is a constitutional law expert and Vice Chancellor of Chanakya National Law University, Patna.