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Bhartiya Vidhyapeeth University, Pune
RIGHTS OF RELIGIOUS MINORITIES IN INDIA: ISSUES AND TRENDS
TABLE OF CONTENTS
ACKNOWLEDGEMENT……………………………………………………………………………………………………………………..……4
INTRODUCTION………………………………………………………………………………5
CONCEPT OF MINORITIES……………………………………………………………...…...8
RELIGIOUS MINORITIES IN INDIA……………………………………………………......13
RELIGIOUS FREEDOM IN INDIA ……………………………………………………….....25
RELIGIOUS MINORITIES AND INDIAN CONSTITUTION……………………………….30
RIGHT TO RELIGIOUS FREEDOM TO MINORITIES……………………………………..37
PURPOSE OF GRANTING CULTURAL AND EDUCATIONAL RIGHTS TO THE
MINORITIES IN INDIA………………………………………………………………………58
JUDICIAL APPROACH ………………………………………………………………………………………………………………………….60
MINORITIES’ RIGHT TO ESTABLISH AND ADMINISTER EDUCATION
INSTITUTUON : A
CRITIQUE……………………………………………………………………………….….77
MINORITIES’ RIGHT AND CURRENT ISSUE……………………………………….……98
CURRENT STATE OF MINORITIES AND INDIGENOUS PEOPLE…………………….110
CONCLUSION.…………………………………………………………………………………………………………………………………..134
REFERENCES…………………………………………………………………………………………………………………………………….136
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CHAPTER- 1 : INTRODUCTION
India is a land of myriad ethnic, religious, caste and linguistic minorities affiliated to distinct
belief systems, sub-cultures and regions. 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.
It is important to understand the condition of the minority in the present and past scenario.
Despite the several efforts by the government to improve the condition of the minority,
constitutional guaranteed rights, different institution and commission established to monitor,
failed. Minority faces discrimination, violence and atrocities. These cults have come into the
light many times whether it is Gujarat riots where more than 2000 Muslims were killed, or
following Indira Gandhi assassination led to the murder of 3000 Sikhs in Delhi. Atrocities
against dalit in Bihar, Jharkhand, Maharastra Gujarat, and in north eastern part of the India is
very common. We can see the results of this kind of ruthless discrimination in Maharastra in
recent days. The purpose to guarantee these rights and to distinguish them from majority was not
creating such discrimination but to make them able, to diffuse them with the majority. Even the
foreigner residing in India and forming the well defined religious and linguistic minority also
fall under the preview of this Article. ‘Persons belonging to minorities have the right to
participate effectively in decisions on the national and, where appropriate, regional level
concerning the minority to which they belong or the regions in which they live, in a manner not
incompatible with national legislation.
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India is a secular republic and the constitution guarantees equal rights to all its citizens
without any discrimination. The Indian constitution provides many legal safeguards to the
minority community and special provisions are made for their social and economic
growth. Despite these, minorities in India face all types of inequity in the public sphere.
Even the violence and human right violations of the minority community in India is a
common phenomenon
A minority religion is a religion held by a minority of the population of a country, state, or
region. Minority religions may be subject to stigma or discrimination. An example of a stigma is
using the term cult with its extremely negative connotations for certain new religious
movements. People who belong to a minority religion may be subject to discrimination and
prejudice, especially when the religious differences correlate with ethnic differences.
Laws are made in some countries to protect the rights of religious minorities, such as protecting
the minorities' culture and to promote harmony with the majority.
Current state of minorities and indigenous peoples
It is amply clear that various issues related to minorities have started putting pressure on the
policy formulation and implementation by the government. It also needs to be added that the
dominant heterogeneous groups are quite fragmented and that government policy cannot be
faulted for working to further the interests of any particular group as such. However, there are
substantial difficulties; these include problems with the implementation of policies currently
dealing with property rights and interests and the restructuring of rights of religious minorities.
The plurality existing within the political framework and the pressures generated by the polity is
now seeing a continuous process of social churning affecting the position of minority groups.
Various religion in india:-
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India is the birth place of four of the world's major religious traditions; namely Hinduism,
Jainism, Buddhism and Sikhism. Throughout its history, religion has been an important part of
the country's culture. Religious diversity and religious tolerance are both established in the
country by law and custom. A vast majority of Indians associate themselves with a religion.
Religions of India-
Religion Population Percent
All religions 1,028,610,328 100.00%
Hindus 827,578,868 80.5%
Muslims 138,188,240 13.4%
Christians 24,080,016 2.3%
Sikhs 19,215,730 1.9%
Buddhists 7,955,207 0.8%
Jains 4,225,053 0.4%
Bahá'ís 1 953 112 0.18%
Others 4,686,588 0.32%
Religion not stated 727,588 0.1%
According to the 2001 census, Hinduism accounted for 80.5% of the population of India. Islam
(13.4%), Christianity (2.3%) and Sikhism (1.9%) are the other major religions followed by the
people of India. This diversity of religious belief systems existing in India today is a result of,
besides existence and birth of native religions, assimilation and social integration of religions
brought to the region by traders, travelers, immigrants, and even invaders and conquerors.
Zoroastrianism and Judaism also have an ancient history in India and each has several thousand
Indian adherents. India has the largest population of people adhering to Zoroastrianism and
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Bahá'í Faith anywhere in the world. Many other world religions also have a relationship with
Indian spirituality, like the Baha'i faith which recognizes Lord Buddha and Lord Krishna as
manifestations of God Almighty.
Indian diaspora in the West have popularized many aspects of Hindu philosophy like yoga
(meditation), Ayurvedic medicine, divination, vegetarianism, karma and reincarnation to a great
extend. The influence of Indians abroad in spiritual matters has been significant as several
organizations such as the Hare Krishna movement, the Brahma Kumaris, the Ananda Marga and
others spread by Indian spiritual figures.
The Muslim population in India is the third largest in the world. The shrines of some of the most
famous saints of Sufism like Moinuddin Chishti and Nizamuddin Auliya are in India and attract
visitors from all over the world.. India is also home to some of the most famous monuments of
Islamic architecture like the Taj Mahal and the Qutb Minar. Civil matters related to the
community are dealt with by the Muslim Personal Law, and constitutional amendments in 1985
established its primacy in family matters.
The Constitution of India declares the nation to be a secular republic that must uphold the right
of citizens to freely worship and propagate any religion or faith (with activities subject to
reasonable restrictions for the sake of morality, law and order, etc.). The Constitution of India
also declares the right to freedom of religion as a fundamental right.
Citizens of India are generally tolerant of each other's religions and retain a secular outlook,
although inter-religious marriage is not widely practiced. Inter-community clashes have found
little support in the social mainstream, and it is generally perceived that the causes of religious
conflicts are political rather than ideological in nature.
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CHAPTER – 2 : CONCEPT OF MINORITY
The expression "minority" has been derived from the Latin word 'minor' and the suffix 'ity' which
means "small in number". According to Encyclopaedia 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. 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 Constitution does not define the terms 'minority', nor does it lay down sufficient indicia to
the test for determination of a group as minority. Neither Motilal Nehru(1928) nor The Sapru
report has tried to define minority .The U.N. Sub-Commission on Prevention of Discrimination
and Protection of Minorities has defined minority as under:
1) The term 'minority' includes only those non-documents group of the 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;
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.
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The first initial afford was in In Re Education bill 1by Supreme Court to define minority. Justice
S.R. Das C.J., suggested the techniques of the arithmetic tabulation, held that the minority means
a “community, which is numerically less than 50 percent” of the total population.
The definition refers to group of individual who are particularly smaller as the majority in a
defined area. Definition however does not indicate as to what factor of distinction, subjective or
objective are to be taken as the test for distinguishing a group from the rest. Thus, while
considering 'minority', a numerically smaller group, as against the majority in a defined area,
some place emphasis upon certain characteristics commonly possessed by the members
constituting the minority and, to them, these characteristics serves as objective factors of
distinction. In this sense the term used to cover "racial, religious or linguistic sections of the
population within a State which differ in these respects from the majority of the population."
Distinction can be made on different basis; types of minority can be racial, religious or linguistic
minority. There have been different rights guaranteed to minorities by the constitution.
A minority is a sociological group that does not constitute a politically dominant voting majority
of the total population of a given society. A sociological minority is not necessarily a numerical
minority — it may include any group that is subnormal with respect to a dominant group in
terms of social status, education, employment, wealth and political power. To avoid confusion,
some writers prefer the terms "subordinate group" and "dominant group" rather than "minority"
and "majority", respectively. In socioeconomics, the term "minority" typically refers to a socially
subordination ethnic group (understood in terms of language, nationality, religion and/or
culture). Other minority groups include people with disabilities, "economic minorities" (working
poor or unemployed), "age minorities" (who are younger or older than a typical working age)
and sexual minorities.
The term "minority group" often occurs alongside a discourse of civil rights and collective rights
which gained prominence in the 20th century. Members of minority groups are prone to different
treatment in the countries and societies in which they live. This discrimination may be directly
1 AIR 1958 SC 956
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based on an individual's perceived membership of a minority group, without consideration of
that individual's personal achievement. It may also occur indirectly, due to social structures that
are not equally accessible to all. Activists campaigning on a range of issues may use the
language of minority rights, including student rights, consumer rights and animal rights. In recent
years, some members of social groups traditionally perceived as dominant have attempted to
present themselves as an oppressed minority, such as white, middle-class heterosexual
males.
Muslims, Sikhs, Christians, Buddhists and Zoroastrians (Parsis) have been notified as minority
communities under Section 2 (c).Minorities in the country is about 18.4% of the total population
of the country, Of which Muslims are 13.4%; Christians 2.3%; Sikhs 1.9%, Buddhists 0.8%and
Parsis 0.007%.
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CHAPTER – 3 : RELIGIOUS MINORITIES IN INDIA
Muslims
So far different statistics have been given on the population of Indian Muslims. Based on these
figures about 15 percent of the Indian people are Muslims.
Thus the Indian Muslims not only form the largest Muslim minority in the world but they are
considered the largest Muslim population after Indonesia and Pakistan. In India the four main
Islamic occasions namely Eid-al- Adha, Eid-al- Fetr, the Birth anniversary of Prophet
Mohammad (Blessing of God upon him and his progeny) and Ashura day are considered as
official holidays. Although Muslims in India form a minority but in terms of their active role in
the ancient civilization and culture of India they have left behind valuable works. The huge and
beautiful Taj Mahal building, the Red Castle near Delhi and Delhi Jame' Mosque (the largest
Indian mosque) are considered among masterpieces of architecture during the rule of Muslims in
India. There are about 600 historical mosques in India but the Indian government does not allow
Muslims to hold religious ceremonies inside them and this has turned into a problematic issue
between them and the government. The promotion of Farsi and Urdu languages in India and the
spread of knowledge and art have been among other positive cultural acts of Muslims in this
country.
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No doubt the current situation of Indian Muslims is different from the past. Over the past years,
India has achieved considerable economic progress but Muslims have hardly benefited from
them. In the past few years the average economic growth of India has stood at 8 percent and
according to experts this country has turned into one of the major economic powers.
Nevertheless during the years 2004- 2005, 27.7 percent of the Indians lived under poverty line
one third of whom were Muslims.
Based on another research conducted by the US Maryland University, out of every 10 Muslims
in India, 3 live under poverty line.
Experts of Indian issues consider certain factors to be involved in the poverty and deprivation of
Indian Muslims. The first one is the policy of the British colonialists who attempted to deprive
Muslims of their economic and commercial rights and place them in bottlenecks. The other
factor is related to the way Pakistan got its independence from India. During this separation poor
Muslims stayed in India.
Nevertheless, what intensifies poverty and discrimination against the Indian Muslims is the
educational injustice in the Indian community, because illiterate Muslims cannot have any access
to good jobs and thus they will have a lower level of life. Over 60 percent of Indian people above
15 years can read and write whereas this figure is less among Muslims; especially the level of
literacy of Muslim women is very low. On the other hand the number of Muslims at schools and
universities is very low as compared to their large population.
In addition to the Muslims' deprivation in India, the hostilities of Hindus towards them should
also be mentioned. Attacks on Muslims and their sanctities have been common since the past.
Every now and then the extremist Hindus attack Muslims under illusive pretexts and kill some of
them.
Of course in the recent years the extremist Hindus' attacks on Muslims have decreased but the
anti-Islamic propagandist atmosphere is seen in India. Some media intensify the poisonous
atmosphere and portray Muslims as terrorists.
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Several Islamic organizations act in India to defend the rights of Muslim minority in this country.
The two main Islamic parties in the Indian subcontinent are Jama’at Islami and Jam’iat Ulema-e-
Islam or Assembly of Islamic Clergy.
Shiite school is one of the major Islamic schools of India. Based on some figures the number of
the Shiites is estimated to be more than 30 million people. A large number of Shiites also live in
Kashmir. Although the Indian Muslims enjoy no considerable economic and social situation, the
Shiites condition is much worse. The Shiites enjoy low and limited presence at schools,
universities and offices. However the Indian Shiites have certain groups and organizations which
work for upgrading their situation in the Indian community.
Despite the brilliant record of Islam and Muslims in the history and civilization of India, now the
Indian Muslims live in discriminative situation. These conditions not only have pressured this
large minority of India but have deprived the county from the huge capacity of Muslims who
have shown their efficiency throughout history. It is evident that preventing Hindu extremists
from launching attacks and insults against Mulims and a just treatment of Muslims pave the way
for removing discrimination against Muslims.
Though Islam came to India in the early 7th century with the advent of Arab traders, it started to
become a major religion during the Muslim conquest in the Indian subcontinent. Islam's spread
in India mostly took place under the Delhi Sultanate (1206–1526) and the Mughal Empire,
greatly aided by the mystic Sufi tradition.
Muslims constitute the second largest religious group in India and are thus the largest minority.
The 2001 census enumerated India's Muslim population at over 138 million, and by 2006 the
Muslim population would be over 150 million. India's Muslim population is amongst the largest
in the world, exceeded only by Indonesia's and close to the Muslim populations of Pakistan and
Bangladesh. Moreover, it is larger than the total populations of most countries of the world. India
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is considered an overpopulated country and India's population policy seeks to achieve
replacement level fertility by 2010.
The Muslims are the majorities among the minorities, which means Muslims constitute a large
part of the minority community both in India and in Delhi. Going through various researches and
surveys its prominently seen that education is one of the most lacking aspect in the Muslim
community. Its because of this that after so many years after independence the community lacks
in major fields in the country even though they constitute the second largest group in the
population.
Major problems
1. Muslims are behind other religious communities in the area of literacy and education,
industrial promotion and economic pursuits. They lack technical and vocational education as
well as training in trades in demand.
2. The village and districts having concentration of Muslim populations often lack markets for
their products.
3. The Muslims in Delhi are not able to avail of the facilities of Wakf resources in the absence of
proper management. Only 2.3% rate is been returned by the registered 4.9 lakh wakfs in India.
4. The work participation rate among Muslim women is found to be low affecting the quality of
their life. On surveying and on reviewing people’s view these are some of my suggestions:
7. A district wise Muslim Minority Development Board should be created with adequate
representation of the Muslim community which should oversee the implementation of welfare
projects aimed at improving the educational and economic status of Muslims like providing
training for entrepreneurship, advancing interest free loans for Muslims
entrepreneurs, marketing of products of artisans, waving taxes for at least 5 yrs for new
industries set up by Muslims, creating infrastructure like water, sewage system, electricity,
dispensary, schools, roads, banks etc.
8. The Delhi govt with the help of the Delhi Minority Commission should identify key areas of
development like education, industrial development, and special project should be formulated
and implemented within a particular frame work for the socio economic development of the
Muslim community.
9. Modernisation of madrasa should be carried out at a fast rate.
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CHRISTIANS
Christianity was introduced in India in 1st Century by St. Thomas one of the twelve disciples of
Jesus Christ. Christianity is the first foreign religion in India which was introduced to natives
after been initially introduced to the Jewish diaspora in Kerala. Christianity in India has different
denominations, like Roman Catholicism, oriental Orthodox Christianity and Protestantism.
Roman Catholic is a denomination practiced by over 17.3 million people in India which
represents less than 2% of the total population. Most Catholics reside in South India. Goa is
home to Roman Catholics. The state known for its Christian population. Christianity was
introduced to Indians twice. Possibly in the 1st century by St. Thomas, and by Europeans.
Europeans brought Catholicism in the 13. Century (Portuguese) and Protestantism in the 18.
Century (British and American missionaries). It became popular following European
colonisation and Protestant missionary efforts.
The Christians constitute about 2.3% of the total Indian population, in which 34% are
urbanresidents. Christians have a higher literacy level (80%) as compared to other religious
minorities and above national literacy rate of 65%. They are generally engaged in service sector
except in some states. Christians are more concerned about health and have better level of
wellbeing. The Christians have the highest per capita income and per capita expenditure among
the minorities. Unemployment among Christian community is also significantly lower than
amongst Muslims and Sikhs.
Though Christianity does no recognize a caste system, nonetheless caste system is practiced
among Christians in large parts of the country. Christians in Delhi are a very small section of
minorities, according to the survey done by the Indian Social Institute these are the figures:
Christian being very less in number are neglected by both the state and the Delhi Minority
Commission. But with the help of individual organizations associated with the churches the
socio-economic conditions of the community is taken care of.
Another issue is the allocation of land for religious constructions. Its well seen that due to the
lack of institutional land in the city the DDA is very strict in land allocation, and according to
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Rev Fr. Dominic Immanuel, the Catholic representative, the DDA should allocate land on the
basis of their need. According to him the Christian community comes in large numbers and have
a tradition of congregational worship so the need for larger land is there. Although this issue has
been raised a number of times in the DDA but yet no consideration has been shown.
Another important problem is lack of burial grounds in Delhi. Presently there are 3 main
cemeteries in Delhi- one in Paharganj, another at Prithviraj road and the war cemetery near
Dhaula Kuan. But the major problem is the lack of space in these cemeteries. Discussions are
going on for the procurement of more lands for burials which is nearly impossible in Delhi due
to lack of landin the city.
One of the alternatives would be the installation of cell like structure inside the cemeteries to
accommodate more and more dead bodies within a less space. This cell structure is very well
working in many southern states especially in all parts of Kerala.
Due to the lack of land in Delhi this would be an apt solution to the existing problem of lack of
burial grounds A major problem is also faced by the recognised minority institutions. Even
though they are given the minority status, no rules and policy consideration has been given to
them and these institutions, especially schools, are considered same as other public schools.
SIKHS
Sikhism originated in fifteenth century Northern India with the teachings of Nanak and nine
successive gurus. The principal belief in Sikhism is faith in Vāhigurū— represented by the
sacred symbol of ēk ōaṅkār [meaning one god]. Sikhism's traditions and teachings are distinctly
associated with the history, society and culture of the Punjab. Adherents of Sikhism are known
as Sikhs (students or disciples) and number over 23 million across the world.
Guru Nanak (1469–1539) was the founder of Sikhism. The Guru Granth Sahib was first
compiled by the fifth Sikh guru, Guru Arjan Dev, from the writings of the first five Sikh gurus
and others saints who preached the concept of universal brotherhood, including those of the
Hindu and Muslim faith. Before the death of Guru Gobind Singh, the Guru Granth Sahib was
declared the eternal guru. Sikhism recognizes all humans as equal before Waheguru,[28]
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regardless of colour, caste or lineage. Sikhism rejects the beliefs of idol worship and
circumcision.
Guru Nanak's preachings were directed with equal force to all humans regardless of their
religion. Guru Nanak defines the transformation of man to a permanent union with God as part
of his preaching against communalism summarized by the famous phrase, "There is no Hindu
and no Muslim".
Sikhism is a monotheistic faith which was founded in the 15th century in the region of Punjab,
northwest India. It is recognized as the youngest of world religions. The Sikh religion today has a
following of over 20 million people worldwide and is ranked as the world’s fifth largest religion.
One of the major problem faced by the Sikh community in Delhi is the declining sex ratio in the
community. It is especially high in a particular section of the community called the jatedars.
Some of the suggestions to support the girl child would be to implement the medical scheme in
government hospitals and financial support for girl child in primary and secondary level
education. Another major problem is rehabilitation of riot victims of 1984; the government
hasn’t yet made arrangements for the rehabilitation of or compensation to the riot victims.
Jainism and Buddhism
Both Jainism and Buddhism spread throughout India during the period of the Magadha empire.
Scholars Jeffrey Brodd and Gregory Sobolewski write that "Jainism shares many of the basic
doctrines of Hinduism and Buddhism." and scholar James Bird writes, "But when primitive
Buddhism originated from Hindu schools of philosophy, it differed as widely from that of later
times, as did the Brahmanism of the Vedas from that of the Puranas and Tantras."
Buddhism in India spread during the reign of Asoka the Great of the Mauryan Empire, who
patronised Buddhist teachings and unified the Indian subcontinent in the 3rd century BCE. He
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sent missionaries abroad, allowing Buddhism to spread across Asia. Jainism began its golden
period during the reign of Emperor Kharavela of Kalinga in the 2nd century BCE.
Both Jainism and Indian Buddhism started declining following the rise of Puranic Hinduism
during the Gupta dynasty. Buddhism continued to have a significant presence in some regions of
India until the 12th century. Jainism continues to be an influential religion and Jain communities
live in Indian states Gujarat, Rajasthan, Madhya Pradesh, Maharashtra, Karnataka and Tamil
Nadu. Jains authored several classical books in different Indian languages for a considerable
period of time.
Jainism is considered as a legally distinct religion in India. Many others consider it a reformist
movement that is a part or sub-sect of Hinduism, historically and legally. The Supreme Court of
India has made several pronouncement on the question, most recently observing that Jainism is
"indisputably is not a part of Hindu Religion". The question is politically charged because the
Jains if recognized as a religious minority would be eligible for a series of benefits granted to
minority groups by the Constitution of India. Since India became a Republic in 1950, the
Constitution has brought the various social contracts such as marriage and inheritance of all Jains
fully under the purview of Hindu Laws, a status that remains unchanged today.. The Union of
India does not accord Jains, Buddhists and Sikhs the status of a religious minority even as some
States have passed judgments pronouncing such a status at the state level.
The National Minorities Commission arrived at their recommendation that the Jain
community be declared as a minority religious community. It was in consideration of the
following:
the relevant constitutional provisions,
various judicial pronouncements,
the fundamental differences in philosophy and beliefs (theism vs.atheism principally) vis-
a-vis Hinduism, and
the substantial number of Jain population in the country.
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It resolved to recommend to the Government of India that the Jains deserve to be recognised
as a distinct religious minority, and that, therefore the Government of India may consider
including them in the listing of "Minorities."
The Bal Patil Judgement:-
In 2005, the Supreme Court of India declined to issue a writ of Mandamus towards granting
Jains the status of a religious minority throughout India. The Court however left it to the
respective states to decide on the minority status of Jain religion.
In one of the observations of the Supreme Court, not forming part of the judgment, the
Court said:
“ Thus, 'Hinduism' can be called a general religion and common faith of India
whereas 'Jainism' is a special religion formed on the basis of quintessence of Hindu
religion. Jainism places greater emphasis on non-violence ('Ahimsa') and
compassion ('Karuna'). Their only difference from Hindus is that Jains do not
believe in any creatorlike God but worship only the perfect human-being whom
they called Tirthankar. LordMahavir was one in the generation of Thirthankars.
The Tirathankars are embodiments of perfect human-beings who have achieved
human excellence at mental and physical levels. In philosophical sense, Jainism is a
reformist movement amongst Hindus
like Brahamsamajis, Aryasamajis and Lingayats. The three main principles of
Jainism are Ahimsa, Anekantvad and Aparigrah. ”
The Supreme Court also noted: " … that the State Governments
of Chhatisgarh, Maharashtra,Madhya Pradesh, Uttar Pradesh and Uttarakhand have already
notified Jains as 'minority' in accordance with the provisions of the respective State
Minority Commissions Act."
This cast a doubt on the independent standing of Jain religion. Scholars in the Jain tradition,
as well as several groups amongst the Jain community protested, and emphasised that Jain
religion stands as a religion in its own right. While Hinduism as a mode of living, and as a
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culture is to be found across various religions in India because of several common customs,
traditions and practices, but as religions Hindu religion and Jain religion are distinct.
U.P. Basic Shiksha Parishad Judgment:-
In 2006, the Supreme Court opined that "Jain Religion is indisputably is not a part of Hindu
Religion".
"Buddhism and Jainism were certainly not Hinduism or even the Vedic Dharma. Yet they
arose in India and were integral parts of Indian life, culture and philosophy. A Buddhist
or Jain, in India, is a hundred per cent product of Indian thought and culture, yet neither is
a Hindu by faith. It is, therefore, entirely misleading to refer to Indian culture as Hindu
culture."
Chronological order of various court judgments on Jainism as a separate religion
1927 - As early as 1927 Madras High Court in Gateppa v. Eramma and others2 held that "Jainism
as a distinct religion was flourishing several centuries before Christ". Jainism rejects the
authority of the Vedas which form the bedrock of Hinduism and denies the efficacy of the
various ceremonies which Hindus consider essential.
1939 - In Hirachand Gangji v. Rowji Sojpal3, it was observed that "Jainism prevailed in this
country long before Brahmanism came into existence and held that field, and it is wrong to think
that the Jains were originally Hindus and were subsequently converted into Jainism."
1951 - A Division Bench of the Bombay High Court consisting of Chief Justice Chagla and
Justice Gajendragadkar in respect of Bombay Harijan Temple Entry Act, 1947 (C.A. 91 of 1951)
held that Jains have an independent religious entity and are different from Hindus.
1954 - In The Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt reported4 this Court observed that there are well known religions in
India like Buddhism and Jainism which do not believe in God, in any Intelligent First Cause. The
2 AIR 1927 Madras 2283 AIR 1939 Bombay 3774 AIR 1954 SC 282
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Court recognized that Jainism and Buddhism are equally two distinct religions professed in India
in contrast with Vedic religion.
1958 - In well known Kerala Education Bill's case5, this Court held that to claim the minority
rights, the Community must be numerically a minority by reference to the entire population of
the State or country where the law is applicable. In that way also, the Jain Community is eligible
for the claim.
1968 - In Commissioner of Wealth Tax, West Bengal v. Smt. Champa Kumari Singhi & Others 6
a Division Bench of the Calcutta High Court observed that "Jains rejected the authority of the
Vedas which forms the bedrock of Hinduism and denied the efficacy of various ceremonies
which the Hindus consider essential. It will require too much of boldness to hold that the Jains,
dissenters from Hinduism, are Hindus, even though they disown the authority of the Vedas".
1976 - In Arya Samaj Education Trust, Delhi & Others v. The Director of Education, Delhi
Administration, Delhi & Others 7, it was held as follows: "Not only the Constitution but also the
Hindu Code and the Census Reports have recognized Jains to belong to a separate religion." In
the said judgment, the Court referred to the observations of various scholars in this behalf. The
Court quoted Heinrich Zimmer in "Philosophies of India" wherein he stated that "Jainism denies
the authority of the Vedas and the orthodox traditions of Hinduism. Therefore, it is reckoned as a
heterodox Indian religion". The Court also quoted J. N. Farquhar in "Modern Religious
Movements in India" wherein he stated that "Jainism has been a rival of Hinduism from the
beginning". In the said judgment, in conclusion, the Court held that "for the purpose of Article
30(1), the Jains are a minority based on religion in the Union Territory of Delhi".
1993 - In A.M. Jain College v. Government of Tamil Nadu8 , the Court observed that it is also an
admitted fact that the Jain community in Madras, Tamil Nadu is a religious and linguistic
minority.
5 AIR 1958 SC 9566 AIR 1968 Calcutta 747 AIR 1976 Delhi 20781993 (1 ) MLJ 140
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In a judicial reminder, the Indian Supreme Court observed Sikhism and Jainism to be sub-sects
or special faiths within the larger Hindu fold, and that Jainism is a denomination within the
Hindu fold. Although the government of British India counted Jains in India as a major religious
community right from the first Census conducted in 1873, after independence in 1947 Sikhs and
Jains were not treated as national minorities. In 2005 the Supreme Court of India declined to
issue a writ of Mandamus granting Jains the status of a religious minority throughout India. The
Court however left it to the respective states to decide on the minority status of Jain religion.
However, some individual states have over the past few decades differed on whether Jains,
Buddhists and Sikhs are religious minorities or not, by either pronouncing judgments or passing
legislation. One example is the judgment passed by the Supreme Court in 2006, in a case
pertaining to the state of Uttar Pradesh, which declared Jainism to be undisputably distinct from
Hinduism, but mentioned that, "The question as to whether the Jains are part of the Hindu
religion is open to debate. However, the Supreme Court also noted various court cases that have
held Jainism to be a distinct religion.
Another example is the Gujarat Freedom of Religion Bill, that is an amendment to a legislation
that sought to define Jains and Buddhists as denominations within Hinduism. Ultimately on July
31, 2007, finding it not in conformity with the concept of freedom of religion as embodied in
Article 25 (1) of the Constitution, Governor Naval Kishore Sharma returned back the Gujarat
Freedom of Religion (Amendment) Bill, 2006 citing the widespread protests by the Jains as
well as Supreme Court's extrajudicial observation that Jainism is a "special religion formed on
the basis of quintessence of Hindu religion by the Supreme Court"
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CHAPTER- 4 : RELIGIOUS FREEDOM IN INDIA
Freedom of religion in India is a fundamental right guaranteed by the country's constitution.
Freedom of religion is established in tradition as Hinduism doesn't recognise labels of distinct
religions and has no concept of blasphemy. Every citizen of India has a right to practice and
promote their religion peacefully. However, there have been many incidents of religious
intolerance which have resulted in riots and pogroms. These incidents have been condemned by
the governmental administrations, private businesses, and judicial systems.
India is one of the most diverse nations in terms of religion. Even though Hindus form close to
80 percent of the population, the Indian Muslims form the third largest Muslim population in the
world, and the country also has large Sikh, Christian and Zoroastrian populations. It is home to
the holiest shrines of four world religions: Hinduism, Buddhism, Jainism and Sikhism.
Modern India came into existence in 1947 as a secular nation and the Indian constitution's
preamble states that India is a secular state.
India has a Hindu President (Pratibha Patil), Muslim Vice President (M. Hamid Ansari), a Sikh
Prime Minister (Manmohan Singh) and an atheist (Christian by birth, Defence Minister A. K.
Antony). The leader of the largest party, the Indian National Congress, Sonia Gandhi is a
Christian, while the leader of the opposition is Sushma Swaraj, a Hindu. India's ex-President APJ
Abdul Kalam was a Muslim. Out of the 12 Presidents of India since Independence, three have
been Muslims. India had a prominent former Defence Minister (George Fernandes), a Christian
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(though not practicing) and a Hindu minister controlling foreign affairs. India's Air Force Chief,
Fali H. Major, is a Parsi.
What is Meant by Religious Rights
The Church in each place must be free to define the mission it believes it has received from God.
Likewise, individual Christians and other believers must be free to practice their faith in
whatever manner they believe necessary, commensurate with their not violating the same
freedom of others. In addition, we affirm the understanding of religious freedom embodied in the
Universal Declaration of Human Rights (1948) and other international covenants. While some
actions taken in the name of religious rights may be ambiguous and will have to be addressed on
a case-by-case basis, we believe that religious rights include at least the following:
Every person has the right to determine his or her own faith and creed according to
conscience.
Every person has the right to the privacy of his belief, to express his religious beliefs in
worship, teaching, and practice, and to proclaim the implications of his beliefs for
relationships in a social or political community.
Every person has the right to associate with others and to organize with them for religious
purposes.
Every religious organization, formed or maintained by action in accordance with the
rights of individual persons, has the right to determine its policies and practices for the
accomplishment of its chosen purposes, which implies the right:
o to assemble for unhindered private or public worship
o to formulate its own creed
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o to have an adequate ministry
o to determine its conditions of membership
o to give religious instruction to its youth, including preparation for ministry
o to preach its message publicly
o to receive into its membership those who desire to join it
o to carry on social services and to engage in missionary activity both at home and
abroad
o to organize local congregations
o to publish and circulate religious literature
o to control the means necessary to its mission and to secure support for its work at
home and abroad
o to cooperate and to unite with other believers at home and abroad
o to use the language of the people in worship and in religious instruction
o to determine freely the qualifications for professional leadership of religious
communities, freely naming their religious lead
Historical tradition of religious freedom-
The plural nature of Indian society in the 3rd century BCE was encapsulated in an inscription of
Ashoka:
"King Piyadasi (Ashoka) dear to the Gods, honours all sects, the ascetics (hermits) or
those who dwell at home, he honours them with charity and in other ways. But the King,
dear to the Gods, attributes less importance to this charity and these honours than to the
vow of seeing the reign of virtues, which constitutes the essential part of them. For all
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these virtues there is a common source, modesty of speech. That is to say, One must not
exalt one’s creed discrediting all others, nor must one degrade these others Without
legitimate reasons. One must, on the contrary, render to other creeds the honour befitting
them.”
King Kharvela (born in the family of Rajarshi Vasu) declares himself in his inscription
(approximately 2nd century BCE):
sava pasaNDa-puujako, sava devaayatan-sa.nskaarako
Translation: I am worshipper of all sects, restorer of all shrines.
Kharvela's self-description must be contrasted with other rulers around the world, who took pride
in calling themselves "but-shikan" or "defender of the (only true) faith"
Badayuni in his Muntakhab-ut-Tawáríkh reports that the Mughal Emperor Akbar, who had
established the Din-i-Ilahi faith, decreed the following in AH 1000 (1551-1552 CE):
"Hindus who, when young, had from pressure become Musalmans, were allowed to go
back to the faith of their fathers. No man should be interfered with on account of his
religion, and every one should be allowed to change his religion, if he liked. ...People
should not be molested, if they wished to build churches and prayer rooms, or idol
temples, or fire temples."
Refuge from religious persecution
India, with its traditional tolerance, has served as a refuge for groups that have encountered
persecution elsewhere.
Jews: Jews in India were granted lands and trading rights.The oldest of the three longest-
established Jewish communities in India, traders from Judea and Israel arrived in the city
of Cochin, in what is now Kerala, 2,500 years ago and are now known as Cochin Jews.
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According to recordings by Jews, the date of the first arrival is given at 562 BC. In 68
AD, more Jews fled to Kerala to escape attacks by the Romans on Jerusalem.
Christians: Christianity is believed to have come to India in the 1st century.
Parsi: The Zoroastrians from Iran arrived in India fleeing from religious persecution in
their native Iran in the 9th century. They flourished in India and in 18-19th centuries
intervened on behalf of their co-religionists in still in Iran. They have produced India's
pioneering industrialist house of Tatas and one of the only two Indian Field Marshals in
S. F. Manekshaw.
Tibetan Buddhists: India is now home to the Dalai Lama, the revered head of the Vajrayana
Buddhism of Tibet.
Present position:-
Right to freedom of religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to
all citizens of India. The objective of this right is to sustain the principle of secularism in India.
According to the Constitution, all religions are equal before the State and no religion shall be
given preference over the other. Citizens are free to preach, practice and propagate any religion
of their choice.
Religious communities can set up charitable institutions of their own. However, activities in such
institutions which are not religious are performed according to the laws laid down by the
government. Establishing a charitable institution can also be restricted in the interest of public
order, morality and health. No person shall be compelled to pay taxes for the promotion of a
particular religion. A State run institution cannot impart education that is pro-religion. Also,
nothing in this article shall affect the operation of any existing law or prevent the State from
making any further law regulating or restricting any economic, financial, political or other
secular activity which may be associated with religious practice, or providing for social welfare
and reform.
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CHAPTER- 5 : RELIGIOUS MINORITIES AND INDIAN CONSTITUTION
The Constitution of India - the world's most diverse democracy - is a remarkable document,
balancing the freedoms and rights of citizens who represent all of the major world religions.
After introducing the constitutional basis for religious freedom in India and articulating the
distinctive character of Indian secularism, this Article turns to two major issues of religious
freedom in contemporary India - the rights of religious minorities, and the right to convert to a
different religion. Debates over these rights juxtapose divergent arguments that invoke religious
freedom and highlight the multiple facets and meanings of religious freedom.
Minority rights in India include the right of members of various religious communities to use
their own religious civil law in certain family law cases. This is known as "personal law," and the
future of this system is the subject of ongoing and heated debate. Is personal law essential to the
freedom of religious communities, or does it impede the freedom and equality of women within
religious communities? Can these freedoms be reconciled?
A second minority rights debate in India is the question of exactly who constitutes a minority.
Legal disputes over which religious groups should be recognized by the government as
"minorities," and which individuals within those groups should be recognized as members of
religious minorities, demonstrate that the very definition of "minority" is a minority-rights issue.
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This issue brings other freedoms into tension as well. For example, how should the state balance
an individual's freedom ...
Constitutional rights and safeguards provided to the minorities in India:-
1. Constitutional safeguards for religious and linguistic minorities of India
Though the Constitution of India does not define the word ‘Minority’ and only refers to
‘Minorities’ and speaks of those ‘based on religion or language’, the rights of the minorities
have been spelt out in the Constitution in detail.
2. ‘Common Domain’ and ‘Separate Domain’ of rights of minorities provided in the
Constitution
The Constitution provides two sets of rights of minorities which can be placed in ‘common
domain’ and ‘separate domain’. The rights which fall in the ‘common domain’ are those which
are applicable to all the citizens of our country. The rights which fall in the ‘separate domain’
are those which are applicable to the minorities only and these are reserved to protect their
identity. The distinction between ‘common domain’ and ‘separate domain’ and their
combination have been well kept and protected in the Constitution. 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.’
2.1 ‘Common Domain’, the Directive Principles of State Policy – Part IV of the Constitution
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
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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 :-
i. 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) ]
ii. 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);
[Article 46] and
2.2 ‘Common Domain’, the Fundamental Duties – Part IVA of the Constitution
Part IVA of the Constitution, relating to Fundamental Duties as provided in Article 51 A applies
in full to all citizens, including those belonging to Minorities. Article 51A which is of special
relevance for the Minorities stipulates as under :-
i. 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
ii. citizens’ duty to value and preserve the rich heritage of our composite culture.’
2.3 ‘Common Domain’, the Fundamental Rights – Part III of the Constitution
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:
i. people’s right to ‘equality before the law’ and ‘equal protection of the laws’; [Article
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14]
ii. prohibition of discrimination against citizens on grounds of religion, race, caste, sex or
place of birth; [Article 15 (1) & (2)]
iii. 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)]
iv. 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)]
v. 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)]
vi. 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)]
vii. 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]
viii. prohibition against compelling any person to pay taxes for promotion of any particular
religion’; [Article 27]
ix. 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]
2.4 ‘Separate Domain’ of Minority Rights
The Minority Rights provided in the Constitution which fall in the category of ‘Separate
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Domain’ are as under:-
i. right of ‘any section of the citizens’ to ‘conserve’ its ‘distinct language, script or
culture’; [Article 29(1)]
ii. 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)]
iii. right of all Religious and Linguistic Minorities to establish and administer educational
institutions of their choice;[Article 30(1)]
iv. freedom of Minority-managed educational institutions from discrimination in the matter
of receiving aid from the State;[Article30(2)]
v. special provision relating to the language spoken by a section of the population of any
State;[Article 347]
vi. provision for facilities for instruction in mother-tongue at primary stage;[Article 350 A]
vii. provision for a Special Officer for Linguistic Minorities and his duties; and [Article 350
B]
viii. Sikh community’s right of ‘wearing and carrying of kirpans; [Explanation 1 below
Article 25]
3. India’s multi-culturalism interwoven in the Constitution
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
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ethnic groups. And all these groups, like all individuals, have the same Fundamental Rights to
enjoy and the same Fundamental Duties to discharge.
4. Protection of weaker sections in Indian pluralistic society
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 – for them special provisions of various nature and varying import.
Such Various provisions of constitution:-
Article 14: 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 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.
(2) 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 with regard to—
(a) Access to shops, public restaurants, hotels and places of public entertainment; or
(b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained
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Wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women
and children.
1[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes.]
2[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State
from making any special provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or the
Scheduled Tribes in so far as such special provisions relate to their admission to educational
institutions including private educational institutions, whether aided or unaided by the State,
other than the minority educational institutions referred to in clause (1) of article 30.]
Article 21: No person shall be deprived of his life or personal liberty except according to
procedure established by law.
Article 25: (1) 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;
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(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, Jaina or
Buddhist religion and the reference to Hindu religious institutions shall be construed
accordingly.
Article 26: Subject to public order, morality and health, every 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 29: (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 he State
or receiving aid out of State funds on grounds only of religion, race, caste, language or any of
them.
Article 30: (1) All minorities, whether based on religion or language, shall have the right
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to establish and administer educational institutions of their choice.
1[(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 350A: 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 any State as he considers necessary or proper for securing the provision of such
facilities.
CHAPTER -6 : RIGHT TO RELIGIOUS FREEDOM TO MINORITIES
Now altogether there are five religious categories in India that are granted Minority Rights by its
Constitution, the Christians and the Muslims the most populous among them.
Articles 29 and 30 that give expression to these Minority Rights (MRs) are as follows.
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Article 29, defines the protection of interest of the minorities: Article 29 (1) Any section of the
citizen 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. 29 (2)No citizen shall be denied
admission into any educational institution maintained by the State receiving aid out of State
funds on grounds only of religion, race, caste, language or any of them.
Article 30 defines the right of the minorities to establish and administer educational institutions:
30(1). All minorities, whether based on religion or language, shall have the right to establish and
administer institutions of their choice. 30(1-A) In making any law providing for the compulsory
acquisition of any property of an educational institution to establish by the minority, referred in
clause (1), the State shall ensure that the amount fixed by or determined under such a law for the
acquisition of such property is such as would not restrict or abr0gate the right guaranteed under
that clause. 30(2) The State shall not, in granting aid to educational institutions, discriminate any
educational institution on the ground that it is the management of a minority, whether based on
religion or language.
A little bit of history
On July 1946, India’s Constituent Assembly (CA) was elected into power in accordance with the
Cabinet Mission Plan of colonial Britain made on 16 May the same year. The CA was assigned
with the task of formulating India’s Constitution which it finalized and submitted to the
Parliament and to the nation on January 26, 1950.
There was a stipulation in the Cabinet Mission Plan that`the cession of sovereignty to the Indian
people on the basis of a constitution framed by the Assembly would be conditional on adequate
provisions being made for the protection of minorities’. This adequate protection meant to give
‘political safeguards’ to religious minorities, Scheduled Castes and Tribes.
This stipulation was based on Britain’s notion ”that India was a conglomeration of communities
rather than a nation”. Political safeguards were to ”adjust the balance between different
communities in representative bodies, public services and other arenas.”
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In the initial deliberations in the CA, approval was given to this British position. However, in the
final draft of the Constitution ”religious minorities were excluded from the purview of all
political safeguards” which made the only the scheduled Castes and tribal groups eligible for it.
This momentous development, argues Rochana Bajpai was made because in the nationalist
discussions, ”the political ideals of secularism, democracy, justice and national unity were
construed in ways that precluded political safeguards for minority groups.” . You can read it
here.
That is any preferential treatment in the name of religion was seen undermining the ideals of
secularism, discussed at length in the CA. So then what remained was the question of SC and
ST. Arguments for compensatory justice and preferential treatment for both these ”referred to a
history of exploited Hindu”.
But what had happened in the further discussions in the CA was that the term ‘minority’ took a
narrow term by which the historical minorities were also excluded from the purview of political
safeguard. This was followed by an amendment by K.M.Munshi. He said “…my amendments
seeks to clarify the position that so far as the Scheduled Castes are concerned, they are not
minorities in the strict meaning of the term; that Harijans are part and parcel of the Hindu
community, and that safeguards are given to them to protect their rights only till they are
completely absorbed in the Hindu Community” (my emphasis). Reservation was given to them
as a protective right to attain equality with the privileged caste Hindus.
Not only that, by Article 25 (b) Sikhs, Jains and the Budhists were deemed to be Hindus.Other
backward Castes about which CA made no mention so far were also made Hindus.
Minority – majority.
Promotion of the harijans and the rest of the Indian religions into the Hindu community that
instantly transformed it into India’ s numerical majority might appear to be an act of solidarity by
the caste brahmins who played a central role in India’s caste discrimination as well as in the CA
(one fourth of the 403 members in the CA came from 5% brahimin castes). But the following
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definition of ‘Hinduism” by Vinayak Damodar Savarkar, the prominent proponent of Hinduthva,
makes one doubtful about it.
‘‘Hinduthva: Savarkar claimed that the term Hinduism includes all religions of Hindus, such as
Bhuddhists, Jains, Sikhs, and even tribal communities. He was almost close to the idea that if
any one wants to be an Indian he or she should be a Hindu”
Earlier, following the Aryan supremacist position and the propaganda India received as the
cultural home of Europe from the romantic poets of the 18th century Europe, Hinduism had
attained a new global fame. Inspired by that fame and the ideals of European Oriental-ism was
framed Hinduthva on a new set of political, cultural and religious fundamentals.
Most importantly it instantly bared the minority’s fears and their vulnerability. It was to alleviate
those fears that MRs were granted to protect their distinct religious and linguistic feature.
The constitution of India guarantees different rights to the minority. These are cultural and
educational rights which have been guaranteed under Article 29 and 30.
Article 29: (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 he State
or receiving aid out of State funds on grounds only of religion, race, caste, language or any of
them.
Article 30: (1) All minorities, whether based on religion or language, shall have the right
to establish and administer educational institutions of their choice.
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1[(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.
Who are the persons of inherence of the rights under Article 30 of the Indian Constitution? This
right secures to religious and linguistic minorities a right to establish and administer educational
institutions of their choice. Whenever, therefore, a group seeks its protection by challenging a
law or executive action before a court, the foremost question that the court must dispose of a
preliminary step is whether the group seeking protection is in fact a minority definable in terms
of the article. The probe would require an enquiry into two questions, (i) What is a minority? (ii)
How is minority to be ascertained in a given situation?
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, lie 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, and, presumably
left it to the wisdom of the courts to supply the omission.
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However, as the following would show, the opinions of the courts on the first question appear to
be the result of a half-hearted attempt, and, only indicate the futility of depending on them in any
search for an answer to the second question.
The word minority has not been defined in the Constitution. The Motilal Nehru Report (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:
1) The term 'minority' includes only those non-documents group of the 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;
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 first question was made in In re Education Bill 9
where the Supreme Court, through S.R. Das C.J., suggesting the techniques of arithmetic
tabulation, held that the minority means a "community, which is numerically less than 50
percent" of the total population. This statistical criterion prevail with the Kerela High Court also
which, in A.M.Patroni v. Kesavan , defined minority to mean the same thing as it meant to the
Supreme Court.
The 'definition' refers to group of individual who are particularly smaller as the majority in a
defined area. It however does not indicate as to what factor of distinction, subjective or objective
are to be taken as the test for distinguishing a group from the rest. Thus, while considering
'minority', a numerically smaller group, as against the majority in a defined area, some place
emphasis upon certain characteristics commonly possessed by the members constituting the
minority and, to them, these characteristics serves as objective factors of distinction. In this sense
9 AIR 1958 SC 956
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the term used to cover "racial, religious or linguistic sections of the population within a State
which differ in these respects from the majority of the population."
Minority in other sense also means, a group constituting a minority group have a feeling of
belonging to one common unit, a sense of akinness or community, which distinguishes from
those belonging to the majority of the inhabitants. They are "group held together by ties of
common descent, language or religious faith and feeling themselves different in these respects
from the majority of the inhabitants of the given political entity." There are also those who define
minority in terms of relationship between the dominant groups and minority. To them it is much
more important "to understand the genesis of the relationship between dominant group and
minority then it is to know the marks by the possession of which people is identified as member
of either." Rose defined minority as a "group of people differentiated from others in the same
society by race, nationality, religion, or language - who both think of themselves as a
differentiated group and are though of by others as a differentiated group with negative
connotation."
Thus most of the definitions explained above place emphasis either upon certain common
characteristics present among the members of the groups which serve as the marks of distinction
and such objective test, and it is only in some cases that the factor of relationship between the
dominant and non dominant group is regarded as the main determinant of minority status which,
in turn, at least some cases, renders relative numbers in and out of the group concerned as
irrelevant for definitional purpose.
A 'consciousness' of the difference with the majority on the basis of certain characteristics is,
therefore, considered as a distinguishing mark, and as such a subjective element. thus, the
definition which lays emphasis upon certain subjective factors such as 'feeling' or 'consciousness'
provide a test which is too vague and uncertain, and more psychological in nature than real.
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
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consciousness of its distinct status of being counting as minority. The most acceptable
definitions, given by the Human Rights Commission, is 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 own, wish to preserve the
distinctive identities and are not willing to be assimilated with the rest of the population.
No 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 courts have not ventured to formulate a general definition.
Indeed, as far as the limited purpose of article 30 is concerned, such a venture would have been
rather unnecessary too. For, religion and language being the criteria indicated in article 30, a pre-
condition for the latter acceptability, the Constitution itself tends to confine the tasks of the
courts to the ascertainment whether the group claiming constitutional protection is the group
identifiable by the characteristics of religion or language and is numerically non dominant. The
courts have therefore, only to be sure for themselves that the basis of claim to protection is ether
religion or language.
Interpreting the words, "based on religion" in article 30, the Delhi High Court rightly pointed out
that the words would mean that "the only or the principal basis pf the 'minority' must be their
adherence to one of the many religions…and that the other features of the minority are
subordinate to the main feature, namely, its separateness because of the religion." A similar
interpretation can also be placed on the words 'based on language'. That being so, it can be
concluded that for the purpose of article 30, a majority means a non-dominant collectively
distinguishable from the majority of population by the objective factors of religion or language
or language or a combination of both.
Constituent Assembly Debate:-
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Bhartiya Vidhyapeeth University, Pune
The whole debate in the Constituent Assembly on article 23 of the Draft Constitution which later
assumed the shape of the present article 29 and 30, revolve round this issue: what rights could or
should be conceded to minorities? The reference to minorities was a reference to none other than
Indian minorities existing in India. The original draft of the fundamental rights submitted to the
Constituent assembly on April 16, 1947 by the Sub-Committee on Fundamental Rights did not
contain any provision corresponding to article 30(1) and did not even refer to the word minority.
The letter submitted by K.M. Munshi to the Minorities Sub-Committee on the same date when,
along with some other rights, the rights now forming part of article 30(1) was proposed, made a
reference on the term "national minorities".
The Drafting committee, however, sought, to make a distinction between the rights of any
section of the citizen to conserve its language, script or culture and the right of the minorities
based on religion or language to establish and administer educational institutions of their choice
and for this the committee omitted the word 'minority' in the earlier part of the draft article 23
corresponding to article 29, while it retained the word in the latter part of the draft article 23
which now forms part of the article 30(1).
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.
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Ambedkar's explanation that the right was available not only to minorities in the 'technical sense'
but also to minorities in the 'wider sense' has an obvious reference only to that part of Draft
article 23 which now forms part of article 29(1) and not to that which is now clause (1) of article
30. His expiation, therefore, may be taken to be an attempt to broaden the scope of clause (1) of
article 29 only so as to include within the term 'minority' other minority groups also, as
contemplated and illustrated by him, and thus to confine article 30(1) to those minorities which
he described as minorities in the technical sense, were politically recognized and the most
prominent amongst them were represented in the Constituent Assembly also.
The whole problem, as far as this part of constitution is concerned, that engaged considerable
time and efforts of the framers was to achieve a consensus an a constitutional arrangement,
between the numerically dominant majority considered as such on the national scene and the
minorities referred to above- a solution which could give the minorities a feeling of security
against discrimination, and security against interference with those characteristics which had
divided them apart from the majority. And, it is too obvious to be noted that, at no stage was any
section of this majority ever treated as 'minority'.
If these assumptions as accepted as truly reflecting the intention of those who drafted and
incorporate these provision in the constitutional document, with a wishful hope that they were
rendering a constitutional solution to the problem of Indian minorities, it may be argued that
where a minority is the historical or national context and its claim is based on religion it must be
defined and ascertain in terms of the population of the whole country, irrespective of its being in
numerical majority in any particular state; and, where a group in not a minority considered as
such in the national context, but is still definable as 'minority' under Ambedkar's stretched
meaning of the term, it may be ascertained with reference to the population of the state
concerned. The argument is correct, it is submitted, if the provision in the question are viewed
against the historical prospective in which they were adopted, and are construed to carry into
effect the true spirit and intention of the constitution.
Protection of Interest of Minorities:
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Article 29 of the Constitution of India defines the protection of interest of minorities: -
1) Any section of the citizen residing in the territory of India or any part thereof having a distinct
language, script or culture of its own shall have right to conserve the same.
2) No citizen shall be denied admission into any educational institution maintained by the State
receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
Clause (1):-
Clause (1) gives protection to every section of the citizens having distinct language, script or
culture by guaranteeing their right to conserve the same. If such section desires to preserve their
own language and culture, the state would not stand in their way. A minority community can
effectively conserve its language, script or culture by and through educational institutions and
therefore necessary concomitant to the right to conserve its distinctive language, script or culture
and that is what is conferred on all minorities by article 30(1). But article 29(1), neither controls
the scope of article 30(1) nor is controlled by that article. The scope of the two is different.
Article 29(1) is not confined to minorities but extends to all sections of citizens. Similarly article
30(1) is not confined to those minorities, which have 'distinct language, script or culture' but
extends to all religious and linguistic minorities. Further, article 30(1) gives only the right to
establish and administer educational institutions of minorities' choice while article 29(1) gives a
very general right 'to conserve' the language, script or culture. Thus, the right under article 30(1)
need not be exercised for conserving language, script or culture.
Clause (2):-
Clause (2) relates to admission into educational institutions, which are maintained or aided by
state funds. No citizen shall be denied admission in such institutions on grounds only of religion,
race, caste, language or any of them. Article 15 prohibits discrimination against citizen on
ground of religion, etc. but the scope of two articles is different. Firstly, article 15(1) protects all
citizens against the state where as the protection of article 29(2) extends to the state or anybody
who denies the right conferred by it.
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Secondly, article 15 protects all citizens against discrimination generally but article 29(2) is a
protection against a particular species of wrong, namely, denial of admission into educational
institutions maintained or aided by the state . Finally, the specific grounds on which
discrimination is prohibited are not the same in two articles. 'Place of birth' and 'sex' do not occur
in article 29(2), while 'language' is not mentioned in article 15.
The right to admission into an educational institution is a right, which is an individual citizen,
has as a citizen and not as a member of a community or class of citizen. Hence a school run by a
minority, if it is aided by state funds, cannot refuse admission to children belonging to other
communities. But the minority community may reserve up to 50 percent of the seats for the
members of its own community in an educational institution established and administered by it
even if the institution is getting aid from the State. The state, however, cannot direct minority
educational institutions to restrict admission to the members of their own communities. Article
29(2), however, does not confer a legal right on the members belonging to other communities to
freely profess, practice and propagate their religion within the precincts of a college run by a
minority community . Article 29(2) cannot be invoked where refusal of admission to a student is
on the ground of his not possessing requisite qualifications or where a student is expelled from
an institution for acts of indiscipline.
To overcome the conflict with article 15 as well as article 29 the Constitution (First Amendment)
Act, 1951, added clause (4) to article 15 to the effect that nothing in article 15 and article 29(2)
shall prevent state from making any special provision for the advancement of any socially and
educationally backward classes of citizen or for the schedule caste and the schedule tribes. The
state is empowered to reserve seats in state colleges for socially and educationally backward
classes of citizen or for SC and ST.
Rights of Minority to Establish and Administer Educational Institutions
Article 30 of the Constitution of India defines Rights of Minority 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.
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[1-A) In making any law providing for the compulsory acquisition of any property of an
educational institution establish and administered by a minority, referred 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.
Clause (1):-
Clause (1) gives rights to all minorities based on religion or language the right to establish and
administer educational institution of their own choice. Article 29 and 30 are grouped together it
will wrong to restrict the rights of minority to establish and administer educational institution
concerned with language script and culture of the minorities. The reasons are: Firstly, article 29
confers the fundamental rights on any section of the citizen which will include the majority also
where as article 30(1) confers all rights on all minorities. Secondly, article 29(1) is concerned
with language, script or culture, whereas article 30(1) deals with minorities based on religion or
language. Thirdly, article 29(1) is concern with the right to conserve language, script or culture,
whereas article 30(1) deals with right to establish and administer educational institutions of the
minorities of their choice. Fourthly, the conservation of language, script or culture under article
29(1) may be by means wholly unconnected with educational institutions, and similarly
establishment and administer educational institutions by a minority under article 30(1) may be
unconnected with any motive to conserve language, script or culture. A minority may administer
an institution for religious education, which is wholly unconnected with any question of
conserving language, script or culture. It may be that article 29(1) and article 30(1) overlap, but
the former cannot limit the width of the latter. The scope of article 30 rests on the fact that right
to establish and administer educational institution of their own choice is guaranteed only to
linguistic or religious minorities, and no other section of citizens has such a right. Further article
30(1) gives the right to linguistic minorities irrespective of their religion. It is, therefore, not at
all possible to exclude secular education from article 30.
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The expression 'minority' in article 30 remains undefined though the court has observed that it
refers to any community which is numerically less than 50 percent of the population of a
particular state as a whole when a law in consideration of which the question of minority right is
to be determined as a State law. A community, which is minority in specific area of the State
though a majority in the state as a whole, would not be treated as minority for the purpose of this
article. A minority could not also be determined in relation to entire population of the country. If
it was a state law, the minorities must be recognized in relation of that state. But the fact that the
expression minority an article 30(1) is used to distinct from 'Any section of citizen' in article
29(1) lends support to the view that article 30(1) deals with national minorities or minorities
recognized in the context of entire nation. In that case, however, article 30(1) would become
inapplicable to the national majority even if it is a minority in any particular state, e.g., Hindus in
Punjab or Jammu and Kashmir.
Although article 30(1) does not speak of citizens, the minority competent to claim the protection
of that article must be a minority of person residing in India. 'The minority under article 30 must
necessarily mean those who farm a distinct and identifiable group of citizen in India'. Article
30(1) does not confer upon foreigners not residents in India the right to set up educational
institutions of their choice. The right conferred on minorities is to establish educational
institutions of their choice. It does not say that minority based on religion should establish
educational institutions for teaching of their own language alone. The article leave it to their
choice to establish such educational institutions as will serve both the purpose, namely, the
purpose of conserving their religion, language, or culture, and also the purpose of giving a
thorough general education to their children. Minorities are, however, not entitled to have
educational institutions exclusively for their benefit.
In D. A. V. College v. State Of Punjab10 , it was observed that, a linguistic minority for the
purpose of art. 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 to be a
linguistic minority. Religious or linguistic minorities should be determined only in relation to the
particular legislation which is sought to be impugned, namely that if it is the State Legislature
10 AIR 1971 SC 1737
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these minorities have to be determined in relation to the population of the State. Arya Samajis
have a distinct script of their own, namely Devnagri therefore they are entitled to invoke the right
guaranteed under art. 29(1) because they are a section of citizens having a distinct script and
under art. 30(1) because of their being a religious minority. Sub-sections (2) and (3) of s. 4 do
not in our view offend by themselves any of the rights of the petitioners either under art. 29(1) or
art. 30(1) of the Constitution. Nowhere there is a mandate for compelling Colleges affiliated to it
either to study the religious teachings of Guru Nanak or to adopt in any way the culture of the
Sikhs.
Thus religious or linguistic minorities should be determined only in relation to the particular
legislation which is sought to be impugned, namely that if it is the State Legislature these
minorities is to be determined in relation to the population of the State.
It was held that, religious instruction is that which is imparted for inculcating the tenets, the
rituals, the observances, ceremonies and modes of worship of a particular sect or denomination.
To provide for academic study of life and teaching or the philosophy and culture of any great
saint of India in relation to or the impact on the Indian and world civilizations cannot be
considered as making provision for religious instructions. The State of Punjab is created as a
unilingual State with Punjabi as its language and if provision is made for study of Punjabi
language that does not furnish a ground for discrimination nor can the provision for study of the
life and teachings of Guru Nanak afford any cause for complaint on grounds of violation of art.
14 of the Constitution. The right to form association implies that several individuals get together
and form voluntarily an association with a common aim, legitimate purpose and having a
community of interest. The right extends inter alia to the formation of an association or Union.
Section 5 of the impugned Act does not effect the right of D.A.V. College Trust and Society to
form an association. Therefore, there is no infringement of art. 19(1)(c).
The right conferred on minorities is to establish educational institutions of their choice. It does
not say that minority based on religion should establish educational institutions for teaching of
their own language alone. The article leave it to their choice to establish such educational
institutions as will serve both the purpose, namely, the purpose of conserving their religion,
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language, or culture, and also the purpose of giving a thorough general education to their
children. Minorities are, however, not entitled to have educational institutions exclusively for
their benefit.
Clause (2):-
Clause (2) is only a phase of non-discrimination clause of the constitution and does not derogate
provisions made in clause (1). The clause is expressed in negative terms: the state is therefore
enjoined not to discriminate in granting aid to educational institutions on the ground that the
management of the institutions is in the hands of minority, religious or linguistic. The clause
does not mean that the state is competent otherwise to discriminate so as to impose restrictions
upon the substance of rights to establish and administer educational institutions by minorities.
The rights established by article 30 (1) is intended to be a real right for the protection of the
minorities in the matter of setting up of education institution of their choice.
Kerela Education Bill Case11:-
The article first came up for interpretation before a seven judge Constitution Bench constituted to
consider the reference made by the President under article 143 in In re Kerla Education Bill
sponsored by the Communist Government of the state which was stoutly opposed by Christians
and Muslims. Chief justice S.R. Das delivered the majority opinion. He spoke for six judges- the
sole dissent by justice Venkatarama Aiyar being confined to the question whether minority
institutions were entitled also to recognition and state aid as part of the right guaranteed by
article 30(1).C.J.Das held, interalia:
a) An institution, in order to be entitled to the protection, need not deny admission to members of
other communities.
b) It is not necessary that an institution run by religious minority should impart only religious
education or that one run by the linguistic minority should teach language only. Institution
imparting general secular education is equally protected. The minority has a right to give "a
thorough, good general education".
11 AIR 1958 SC 956
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c) Grant of aid or recognition to such institution cannot be made dependent on their submitting to
such stringent conditions as amount to surrendering their right to administer to them. However
the right to administer does not include the right to misadministration reasonable regulations can
be made.
d) Regulation prescribing the qualifications for teachers was held reasonable. Those relating to
protection and security of teachers and to reservation in favor of backward classes which covered
government schools and aided schools alike, were "perilously near violating that right", but "at
present advised" were held to be permissible regulations. Provision centralizing recruitment of
teachers through State Public Service Commission and taking over the collection of fees etc.
were held to be destructive of rights of minorities to manage the institutions.
Clauses of the Bill, which authorized the taking over of management in the event of specified
failings, in effect, annihilated the minorities' right to administer educational institutions of their
choice.
Minority Rights flow from Articles 14,15,19(1)(2) 21, & 26 (a)
Thus while it is true that it is only the minorities whose right to establish and administer
educational institutions is mentioned n article 30(i) it dos not follow the same is denied to the
majority communities. It was considered necessary like a special mentioned for the right of
minorities by way of extra assurance to it is not correct to say that minorities were considered
backward and needed concessions though article 30(i) to bring them up. The object was to make
that they will not be discriminated against. It was not intended to pamper as favored
communities. It should follow therefore form articles 14 and 15 majority communities have right
to similar treatment at the hands of the in the matter of recognition affiliation government aid or
non displacement management in respect of educational institutions established by majority as
accorded to minority institutions of course condition can and to be imposed in regard to aid,
affiliation and recognition in order to ensure standard of teaching but the same have to be
uniformly onerous and not be so drastic as to involve surrender by the community or founder or
management of its right to establish and administer the institution.
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The thesis that the majority in a system of adult franchise hardly needs any action it can look
after itself and protect its interests any measure wanted by majority can without much difficulty
be brought on the statute book because majority can bet that done by giving a mandate to the
elected representatives only the minorities who need protection is with the utmost respect to the
anguished judge to naive to command acceptance. Modern parliamentary democracy are run on a
party system which in India the more so in the post mandal is built largely on the basis of caste
and communal co9nbination Government are returned to power not on the basis of issues or
mandates. Managements functional institution do not for a vote bank wile their teachers do the.
Religions majority namely Hindus are not a homogeneous monolith. It is a much-divided
society. There are caster and sub caste division and the same court defense to the legislative and
executive wisdom on article has no made things easier electoral arithmetic has led to all sorts of
and combination.
Apart from articles 15 and 15(I) this right to establish and administer educational institutions also
flows as seen above form articles 19(i) (g) and 26(a), which make no distinction between
majority and minority communities. The right of students to education as a fundamental right
under article 21, also simples that they as well as their parents have the right to choice of
institutions in which they would like the former to be educated. Every community has a right to
found and administer educational and other charitable institutional and to run them according
subject perceptions of what is best of the community and for the institution subject of
perceptions of what is best for the community and for the distinction for religion or language
minority or majority.
The only consequence of this will be that provisions relating to displacing of managements
through statutory schemes of administration or through take over of institutions and appointment
of authorized controllers and also those divesting the management of the powers of appointment
and discipline pertaining to teachers will have to be treated as unconstitutional in so far as they
relate to majority institutions too to the same extent as they have been treated vis-à-vis minority
institutions and it will not be such a bad thing from the educational angle either the ground
reality is that just as nationalization of many private industries on ground of mismanagement by
industrialists has proved counter productive. so also has the taking over of the management
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institutions. The cause. for interference in each case was the acts of mismanagement and
dissipation on the party of private mil owners or school college managers. But the bureaucrats
displacing them have by and large not felt any commitment to the industry institution at all and
have succumbed to political pressures with the result that things have only worsened instead of
improving. That is why they are now being re-privatized it is only though de politicization of
control over the institutions that the management can be better and more evenly disciplined.
Deprivation of management of their power in regard to appointment and discipline of teachers
has likewise led to a steep fall in discipline and standard. Many teachers do not care to listen
even to their principal or head of department what to say of the management. Absenteeism
indulgence in private tuitions and running of coaching schools are the order of the day. Of course
regulatory provision to the same extent not more noels as have been accepted to be necessary for
the protection of teacher of minority institutions would in any case continue in relation to
teachers of majority institutions also. The trend the work over is now for less and less of
government. If misadministration can be prevented in the case of minority institutions without
emasculating the management the same should be minority institution too. As per Ray C.J. in St.
Xavier's and per Jag Mohan Reddy J. all institution irrespective of any denominational
distinction should be places of workshop of learning for students
The courts, however, seem to have been persuaded by practical compulsion rather than be
swayed away by a feeling of faithfulness to the spirit. Their course of opinion seems to have
been determined by some of the followings:
i. That provisions in question seeks to protect minorities against state action, which term includes
laws and also under them, executive actions.
ii. That ours being a federal democratic system, political and legislative processes operate not
only from the national center of power but also from the states.
iii. That these states are autonomous in their respective legislative spheres-and laws are passed
by majority votes.
iv. That minorities, considered as much on the national level, do constitute numerical majority in
some states.
v. That these majorities may, by their laws, deny the protection to the non-dominant group which
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the Constitution so emphatically seeks to secure.
vi. That these majorities may, by their numerically strength, overshadowed the distinct shadow
the distinct characteristics and individuality of the non-dominant groups, and the latter may have
to live under a psychological fear of being discriminated and overwhelmed.
vii. That it was this fear in some sections of some minorities at least, which had pervaded the
politics the politics of pre-partition India, and that it was on this premise that minority rights
were demanded and conceded in Constitution Assembly.
viii. That it is this fear, which still continues to be the core component of the minority
component.
ix. That the assurance to protection for minorities can tell its true meaning only when a non-
dominant group in a state is define and ascertain as 'minority' where the law in question is a state
law, eve though the group happens to be a part of the 'majority', considered a majority in the
context of the whole country.
x. That the same reason that became the basis for article 29 and 30 to find a place in the category
of justiciable Fundamental Rights must be valid in this situation also.
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CHAPTER- 7 : PURPOSE OF GRANTING CULTURAL AND EDUCATIONAL RIGHTS TO
THE MINORITIES IN INDIA
India is a land of myriad ethnic, religious, caste and linguistic minorities affiliated to distinct
belief systems, sub-cultures and regions. 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.
It is important to understand the condition of the minority in the present and past scenario.
Despite the several efforts by the government to improve the condition of the minority,
constitutional guaranteed rights, different institution and commission established to monitor,
failed. Minority faces discrimination, violence and atrocities. These cults have come into the
light many times whether it is Gujarat riots where more than 2000 Muslims were killed, or
following Indira Gandhi assassination led to the murder of 3000 Sikhs in Delhi. Atrocities
against dalit in Bihar, Jharkhand, Maharastra Gujarat, and in north eastern part of the India is
very common. We can see the results of this kind of ruthless discrimination in Maharastra in
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recent days. The purpose to guarantee these rights and to distinguish them from majority was not
creating such discrimination but to make them able, to diffuse them with the majority. Even the
foreigner residing in India and forming the well defined religious and linguistic minority also
fall under the preview of this Article. ‘Persons belonging to minorities have the right to
participate effectively in decisions on the national and, where appropriate, regional level
concerning the minority to which they belong or the regions in which they live, in a manner not
incompatible with national legislation.’
Before moving ahead we have to ponder over some of the concepts which are important. First
and foremost what is minority? Second what are the rights guaranteed to them? Who guarantee
them these rights? For what purpose these rights are bestowed to them? Is it serving its requisite
end?
The Constitution does not define the terms 'minority', nor does it lay down sufficient indicia to
the test for determination of a group as minority. Neither Motilal Nehru(1928) nor The Sapru
report has tried to define minority .The U.N. Sub-Commission on Prevention of Discrimination
and Protection of Minorities has defined minority as under:
1) The term 'minority' includes only those non-documents group of the 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;
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 first initial afford was in In Re Education bill 12by Supreme Court to define minority. Justice
S.R. Das C.J., suggested the techniques of the arithmetic tabulation, held that the minority means
a “community, which is numerically less than 50 percent” of the total population.
The definition refers to group of individual who are particularly smaller as the majority in a
defined area. Definition however does not indicate as to what factor of distinction, subjective or 12 Supra 7
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objective are to be taken as the test for distinguishing a group from the rest. Thus, while
considering 'minority', a numerically smaller group, as against the majority in a defined area,
some place emphasis upon certain characteristics commonly possessed by the members
constituting the minority and, to them, these characteristics serves as objective factors of
distinction. In this sense the term used to cover "racial, religious or linguistic sections of the
population within a State which differ in these respects from the majority of the population."
Distinction can be made on different basis; types of minority can be racial, religious or linguistic
minority. There have been different rights guaranteed to minorities by the constitution.
CHAPTER- 8 : JUDICIAL APPROACH
The constitution of India guarantees different rights to the minority. These are cultural and
educational rights which have been guaranteed under Article 29 and 30.
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.
The application of this Article is upon person having a distinct language, script or culture of its
own and it takes into the consideration two types of minority one linguistic and other religious
minority. If they have the same can be protect it. This right includes the rights “to agitate for the
protection of the language.” It also not subject to any reasonable restriction like other
fundamental rights and hence it is an absolute right. Under Article 29(1) any school or university
can promote education in regional language as far as it is done for minor and language of the
minor.
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In D.A.V school, Jullundur v. state of Punjab 13the above provision was challenged on the ground
that the college administered by the religious minority i.e. Arya Samaj and affiliated university
would be compelled to study the religious teaching of the Guru Nanak and this would mount to
violation of the Article 29.Supreme court declined the view and said that the there is no mandate
in the provision for compelling affiliated colleges either to study religious teaching of the Guru
Nanak, or to adopt in any way the culture of the Sikh. If the university includes the teaching and
life of the saint for the research and philosophical it can not be said that the affiliated colleges are
being required to compulsorily study his life and teaching.
The provision meant that for the promotion of the majority language minority should not be
stifle. If any body does it will be trespass on the rights of the sections of the citizens who have
distinct language or script and which they have a right to conserve through their own educational
institutions. So the minority institution affiliated to the Guru Nanak University to teach in the
Punjabi language, or in any way impeding their rights to conserve their language, script or
culture.
(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.
This Article is wide and unqualified. It confers a special right not on the minority but to the
majority also for the admission in the state maintained or aided educational institution. If it
would be only limited to the minority it would mean that majority has no right for the admission
in the state maintained or aided educational institution. This it is very clear trough these
provision that in any case no one can discriminate on the ground of the language, caste or
religion. Whether it is state maintained education institute or private aided institution. Now it is
important to know the application of the above Article. Dispute of its application was firstly
arisen in State of Maharastra v. Champakam . Communal G.O. of the state of Madras allotted
seats in medical and engineering college in the proportionately to the several communities. A
Brahmin candidate who could not be admitted to the engineering college challenged the G.O. as
13 AIR 1971 SC 1737
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being inconsistent with the Article 29(2). Supreme Court held that the classification on the
ground of the caste was inconsistent with the provision of the Article. Even though petitioner has
got much higher marks than those who secured by non Brahmin who were admitted in the seats
allotted to them, he could no admitted in any institution. The reason was that he was Brahmin. In
another case Supreme Court denied the view that intake of students on the ground language is
violating of the fundamental rights. In instant case Bombay Government by an order banned the
admission of those whose language is not English to a school using English as a mode of
instruction. Argument advanced by the state was that by doing it is trying to promote national
language. Court said that the view is right but could not be upheld as it is violating of the
fundamental rights. So there should not be any discrimination on ground of language in matter of
admission which has been clearly stated by the Hon’ble Supreme Court of the India.
Dividing sates in two regions and then allocating seats for medical and engineering college in the
state between these regions does not violate Article 29(2). Refusal of admission on grounds of
not possessing requisite academic qualification or because any one was expelled for the
indiscipline. Reservation for rural student passing class out of VIII was held bad decision in
Suneel Jitley v. State of Haryana. Supreme Court said that basis of reservation was irrational. As
student from the rural area can study in urban area still he would have been preferred. While a
student of urban area could have been studied in rural area and could have became entitled for
reservation. Also the education up to VIII standard does not make any difference to medical
education. Hence there was no nexus between the classification and object sought to achieve.
Relation between Article 29(2) with article 15(1) and 15(4)
Article 15(1) prohibits discrimination on grounds of religion, race, sex, caste or place of birth.
Still there is significant differences between these two articles, 15(1) protects all citizen against
discrimination by the state where as Article 29(2) extends protection against the state, or any
body who denies the right conferred. Article 15(1) is much broader than the 29(2) as it covers
numerous conditions where as article 29(2) only deal with the protection against only one wrong
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namely denial of admission in state aided or maintained educational institute. Article 15(1)
broader than 29(2), whenever second one is not applicable the first one is apply.
Article 15(4) was added by first amendment of the constitution. It was introduced for the
advancement of the socially and educationally backward classes of citizen or of SC and ST.
Rights guaranteed under Article 29(2) is limited by the Article 15(4) as it has provision of
reservation in an educational institute for some section of the Indian citizen.
If state prescribe a some percentage of reservation in any educational institute for a certain
section of the people under Article 15(4), but not increases more than the prescribed limited than
reservation of the rest can not be set aside as it would be violating of the fundamental right under
article 29(2). Any reservation of seats in an educational institute seats not justified under Article
15(4) cannot be valid.
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 (i), 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.
The benefit of Article 30(1) extends only to linguistic or religious minorities and not to any other
section of the Indian citizens. Article here sate linguistic and religious minority. Here minority
means that community which is less than 50 percent of the total population with the respects of
the population of the state.
The words in the article administer and established in the Article 30(1) have to be read together.
This means that the religious minority will have the right to establish the educational institution
and can administer it only. If it established by the other community or by any other person then
they cannot claim the right under this article. Like Aligarh Muslim university was established by
the statutory provision and hence can be designated as minority educational institute.
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The minority factor to attract Article. 30(1) is the establishment of the institution established by
the minority concerned. The Supreme Court has observed in Azeez Basha14 . Article 30(1)
postulates that the religious community will have the right to establish and administer education
institute of their choice meaning thereby where religious minority establishes an education
institution, it will have the right to administer institute of their choice provide that they have
established them not otherwise. It has to be proved by producing satisfactory evidence that the
institution was established by the minority claiming to administer it. The onus of the proof lies
on one who asserts an institution is a minority institution. It is sole decision of the court to decide
whether the institution is minor or not. Even the government has recognized it as minor institute.
In Yogendra Nath Singh v. State of uttar pradesh the Government recognized an institution as
minor institution. This order was challenged in the high court through a writ petition. Looking
into the antecedent history of the institution right from its inception , the court decide that the
institution was not established as minority institution, and, therefore, it could not granted the
minority status even though it presently it was managed by the minority community. Under this
Article both the condition “established and managed” should be read together and absence of
even one would unfit the institution for the status of the minority institution.
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(2) bars the state, while granting aid to educational institution on the ground that it is
under the management of a linguistic or a religious minority. Government aided educational
institute should not be discriminated by the state on the ground that it is under the management
of a minority, whether based on religion or language. Minority educational institute are entitled
to get financial assistance much the same way as the educational institutions run by the majority
community. This does not mean that the minority educational institution can claim state as a
matter of right. But there should not be discrimination while providing financial assistance.
14 AIR 1968 SC 662
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Purpose of Granting Cultural and Educational right
The Above rights have been granted by the Constitution with certain underlying purpose. Being
India as a secular state to maintain it and let the minority to mix with the main stream society.
And can also help in the development of the country. Other reason is that India is a country of
diverse culture, and every body is equal. Hence they have the equal opportunity to preserve it. As
Supreme Court in Ahmedabad St. Xavier College v. State of Gujarat15 pointed out that the spirit
behind the provision of the following article is conscience of the nation that the minorities,
religious as well as linguistic, are not prohibited from establishing and administering educational
institutes, of their choice for the purpose of giving their child the best general education to make
them complete man and women of the country.
The minorities have been given protection to preserve and strength the integrity of the country.
The sphere general secular education will develop the commonness of boys and girls of India.
This is the true spirit of liberty, equality and fraternity through medium of education. The
minority will fell isolated and separated if they are not given these rights. General secular
education will open doors of perception and act as the natural light of mind for our countrymen
to live in the whole. The rights to administer have been given to the minority, so that it can
mould the institution as it thinks fit, and accordance with its idea how the interest of the
community in general, and institution in particular, will be best served.
Rights of Christian Missionaries to Establish and Administer Educational Institutions-
It is well known that the standard of Christian missionary educational institutions was by and
large higher than the level of other institutions. Thanks to the dedication of Christian
missionaries, aided generously by the British rulers, the education as well as literacy average of
Christians is also higher than that of Hindus.
The facile assumption in St. Stephen's College v. University of Delhi16, made in the context of
preference to the Christians in the matter of admission to a Christian institution that minorities
15 AIR 1974 SC 138916 AIR 1992 SC 83
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are "underprivileged" communities and that the principle underlying article 16(4) is attracted in
the matter is with due respect, not based on any factual survey. The only circumstance cited in
support of this conclusion was that if admission were to be strictly on merit, not even ten percent
seats were secured by Christians in the total population of the country is much less, this can
hardly be a matter of alarm. Thus, the protected minorities are not required to confine admission
to their institutions to member of their minority community in order to earn constitutional
protection. Often, in minority institutions, the student belonging to the majority far out numbered
those belonging to the minority concerned. It cannot therefore be said that it was proposed
through article 30 to raise the educational standard of the minorities in order to make them equal
to others.
In Sidhajbai v. State of Gujarat , unanimous decisions of a six judge Constitution Bench. The
petitioners were again Christian missionaries who were running numerous primary schools and
also a training college for teachers which fed those schools. The state government ordered that
80 percent of the seats in that training college should be reserved for teachers deputed by the
government. The management were also directed to provide hostel accommodation for them.
Direction regarding observance of holidays were also issued. On refusal of the management its
grant were stopped. This was challenged by the management, Shah J. speaking for the court,
expressed the tentative view that under article 26(a) every religious denomination had a right to
establish and maintain institutions for religious and charitable purposes, "and in a larger sense an
educational institution may be regarded as charitable". The learned judges added that it was not
necessary to decide this question as article 30(1) itself was squarely attracted. There was hardly
any need for hesitation in expressing this view in basing this decision. As pointed out by Seervai:
In India as in England the advancement of education is also recognized head of charity; therefore
educational institutional would be covered by the words 'charitable institutions' in article 26(a).
Though the objective of training of teachers of schools of local bodies may be in the public
interest, the same could not be permitted to be achieved at the cost of the institutions. The
regulations, which may lawfully be imposed as a condition of receiving grant or recognition, it
was held, "must satisfy a dual test, the test of reasonableness and that it is regulative of the
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educational character of the institution and is conductive to making the institution an effective
vehicle of education for the minority community or other persons who resort to it".
In Rev. Father W. Proost v. State of Bihar , the petitioners were a Christian mission who were
running St. Xavier's College Ranchi. They complained against a new Act under which a
University Service Commission was established. Every appointment, dismissal, removal,
termination of service or reduction in rank of a teacher of an affiliated college was required to be
made by a governing body of the college on the recommendations of this Commission and
subject to the approval of the university. The Constitution Bench, speaking through Hidayatullah
C.J., held, following the earlier decision noted above, that this provision is destructive of the
right of the management. The institution was held entitled to the protection of an exemption
clause under which, in case of minority institution only, 'approval' of the Commission and the
university was required and not 'recommendation' of the Commission. In other words,
recruitment was to be made by the institution itself and not by the Commission for it. The
provision requiring 'approval' was apparently not challenged.
A nine Judge Bench of the Supreme Court exhaustively considered the extent and scope of
Article 30(1) in Ahmedabad St. Xavier's College Society v. State of Gujarat17 . The Society of
Jesus, the petitioners, was running the St. Xavier's College at Ahmedabad with the objective of
providing higher education to Christian students. However, children of all classes and creeds
were admitted to the college. The college was affiliated college under the Gujarat University Act,
1949. The petitioners challenged sections 33-A, 40, 41, 51-A and 52-A of the Gujarat University
Act, 1972 which provided for university nominees in the governing and selection bodies of all
colleges, conversion of all affiliated colleges to constituent colleges, approval of Vice Chancellor
for disciplinary action against members of teaching staff, and reference of dispute between the
staff and management to arbitration in which the umpire has to be Vice Chancellor's nominee.
The court held, that these provisions could not be applied to the minorities; the Court held that
these provisions could not be applied to minority colleges. The Court also emphasized that the
right conferred to the religious and linguistic minorities to administer educational institutions of
there is not an absolute right. The right is not free from regulation. Just as regulatory measures 17 AIR 1974 SC 1389
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are necessary for maintaining the educational character and content of minority institutions,
similarly regulatory measures are necessary for ensuring orderly, efficient and sound
administration. In the leading judgment Ray C.J. observed:
Permissible regulatory measures are those, whose which do not restrict the right of
administration but facilitate it and ensure better and more effective exercise of the right for the
benefit of the institution and through the instrumentality of management of the educational
institution and without displacing the management.
In All Saints High School v. Government of A.P. Fazal Ali, J. summarized three important tests
which would determine whether or not the action of government amounts to interference with the
management of the institution; (1) In order that the management of the institution is free from
outside control, the founder must be permitted to mould the institution as they think fit. (2) No
part of the management could be taken by the government and vested in another body without an
encroachment upon the guaranteed right enshrines in article 30(1) of the Constitution; (3) There
is however, an exception to this general rule which is that the government or the university can
adopt regulatory measures in order to improve the educational standards which concern the body
politic and the dictated by the consideration of the advancement of country and its people, so that
the minority institution may not under the guise of autonomy or exclusive right of management
be allowed to fall below the standard of excellence that is required of educational institution.
St. Stephen's Case a Wrong Assumption of Backwardness-
The minority institutions have however lost several battles against their teachers. The Frank
Anthony ruling in regard to the director approval for an order of suspension was unsuccessfully
assailed as contrary to lily Kurian in Y. Tehclamma V. union of India All Bihaer Christian
Schools Association State of Bihar Manohar Haries Walters V. Basel Mission Higher education
Center K.N. Singh J. n the Bihar Christian Schools case has indeed been at pains to stretch the
regulatory power of the state to their maximum in the process distinguishing all previous
decisions seeming to decide the contrary. On the other hand the constitution Bench (headed by
Kania J. as he then was and speaking through Shetty J. with Kasliwal J. dissenting) has in St.
Stephen's College v. University of Delhi bent over backwards in conceding the claim of the two
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government aided Christian institution to make admission according to their sweet will,
(specially on the basis of 100 per cent interview mark form out of candidate selected
preliminarily on the basis of their secondary school marks the number interviewed being about
five times the number of seats) in total disregard of the norms fixed by the university and giving
preference to students of their own community.
The court placed a limit of fifty per cent on reservation of seats for them applying in the process
decisions under article 16(4) by a process of reasoning which with the utmost respect is rather
confusing mixing up unrelated concept they sidetracked article 29(2) and distinguished earlier
decision on the subject such as D.A.V. college and Kerala Bill cases relating to reservation in
favor of backward classes of citizens were relied on and the minorities were assumed to be the
underprivileged Emphasis was placed on the minorities rights in their own educational institution
ands following Mathew J. In St. Xavier the parents right to have their children educated in
intuitions having an atmosphere congenial to their own religion preference to Christians in
admission was defended das being not solely on the basis of religion but to prefer their
community candidates in their educational institutions a rather baffling distinction which could
be made only by a court which must be right because it is final.
The Supreme court has further conceded to minority managements the power to give indirect
preference to candidates of their community in appointments of the posts principal and vice
principles by requiring that the candidates should fulfill over and above the qualifications laid
down by the university or a Board some additional lingual qualification and there by excluding
other candidates from the field of choice in Virendra Nath Gupta V. Delhi Administration it was
so decided in favor of a linguistic (Malayalam) minority institution and in the Karamat Girls
college of Lucknow case the same principle was applied even in the case of a secular education
institution run by a religious minority (Muslim) which prescribed Urdu as an additional
qualification for the post of principle. The latter case assumes without any discussion that
minority instructions do have such a right.
One Minority Opposing Another School-
In Mark Notto V. State of Kerala the Christian community was running a boys school It. was
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denied permission to admit girls to the school on the ground that there was already a girls school
run by the Muslim community in the neighborhood. The Muslims also objected to a
coeducational institution. The grounds for refusal of permission were held unsound and the
refusal of permission was held volatile of the Christians right under articles 30 (I). The Christian
community has a right to have schools of their choice for teaching their girls if they did not think
it in their interest to send them to the Muslim girls school. The rule under which the permission
had been denied was held inapplicable to minority schools. It was not considered necessary to
strike down the rule in its application to all.
Classification should be Rational not Communal-
The state or courts have no right that every institution of a majority community is run by crooks
or imbeciles and that all such institutions can be properly administered only through state
authorities. It is true that much management are corrupt and effective measures must be taken to
ensure that they are not allowed to misappropriate or dissipate the assists for the institutions or to
indulge in nepotism or discrimination in the matter of appointment f teachers admission of
student etc. But complaints are not confined to managements of majorities institutions only.
Excepting very few select old Christian missionary institutions like St. Stephens Loreto etc. most
minority institutions also (including even Christian intuitions) are not immune from similar
complaints including very often complaints form teacher parent sand other member of their own
community. Conversely there may be excellently managed institutions established by members
of majority community also say those by the Ramkrishan Mission Bharatiya Vidya Bhawan Birla
Education Trust etc. So whatever regulation and control be needed it should be objectively
decided in relation to each individual case and not on covertly communal (whether based on
religion or language) ground any classification should thus be primarily on the bases rationally
suggested by Dwivedi J. and secondarily on the basis of ratings ( as in the case of say debentures
or hotel etc.) with reference to availability of facilities past performance reputation credibility
standard of teacher infrastructure judge by a high powered autonomous body not on the ground
of its being established by a minority or the majority.
This project throws light on the rights given to the minorities in the Constitution of India. The
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analysis of diverse judgment can be categorized under the following heads:
1. The linguistic approach: this approach tries to construe the word "administer" so as to confine
it to good administration. The right to administration does not include the right to
maladministration an institution. This approach can be found in the judgment of the S.R. Das,
C.J. in Kerela Education Bill.18 .
2. The approach of autonomy: according to this approach, so long ass the autonomy of this
institution is preserved, regulation of its working is permissible. The exposition by Khanna J. in
St. Xaviers is not an outstanding example of this approach, because though it can be discerned
in earlier pronouncement he has elaborate in the ample measure.
3. The moral approach: it has been stated that if the minorities asserts a right of administration, it
is their duty to provide good administration.
4. The constitutional-cum-linguistic approach: according to this approach, what the constitution
in article 13 prohibits is a law, which "abridges" a fundamental right. Regulatory measures do
not abridge the fundamental rights guaranteed by article 30 and are therefore not hit by article
13. This approach was enunciated by Mathew J. in St. Xavier's,
5. The logical approach: legislative measures that do not directly impinge upon minority rights
are permissible, not withstanding that their indirect impact may be adverse to those rights. The
primary object is not interference with a fundamental right, than the fact that the secondary
impact of the challenged law may be to impair a fundamental right, is immaterial. Mathew J. in
St. Xavier's also suggests this approach..
This project also throws light on the right of the minority to establish and administer educational
institutions. Taking the power of J. Khanna enclosed by Krishna Iyer J. any privileged or
pampered section of the population It only want to ensure that minority are not discriminated
against welcome. For bringing this regionalism communalisms and linguist have to be
discouraged for preservation of the unit and integrity of India every citizen should be made to
feel that he is Indian first irrespective of other basis. In this view any measure at bringing about
equality should be welcome.
18 Supra 7
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Under eye of law majority or minority both should be treated equally and any citizen is Indian
first and then belongs to any particular community. Thus, grievance of the majority can be
redressed either by (i) extending the protection available under article 30 to cover all religions,
whether they be minority religions or majority religions or (ii) by removing article 30 from the
constitution and inserting 'educational' in article 26(a), which would place al religion at par.
The Supreme Court has observed in In re Kerala education bill19. ” the real import of the Article
29(2) and 30(1) seems to be that they clearly contemplate a minority institution with the
sprinkling of outsiders admitted into it.” the idea has been reinforced in the ST. Stephen college
case, Article 30(1) does not mean that the minority can establish an educational institution solely
for the benefit of its own community people. The minority are not entitled to establish such
institution for their exclusive benefit. The Court “every education 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 the students of different communities in all education
institutions. This means that a minority institution cannot refuse admission students of other
minority and majority communities.
The constitution bench of 11 Judges in the matter of T.M.A. Pai Foundation and others v. State
of Karnataka,20 2003 had a relook into the interpretation of the constitutional rights of the
religious and linguistic minorities to establish and administer educational institutions of their
choice. Apart from interpreting the content and extent of these rights and juxtaposing them with
the so called similar rights of non minorities, the judges went into the question what is the
meaning and content of the expression ‘minorities’ in Article 30? The expression “minority” has
been derived from the Latin word ‘minor’ and the suffix ‘ity’ which means “small in number”.
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. In the
19 AIR 1958 SC 95620 AIR 2003 SC 355
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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.
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 of India provides for special rights to both linguistic and religious minorities “to
establish and administer educational institutions of their choice” under Article 30. Hence no such
law can be framed as may discriminate against such minorities with regard to the establishment
and administration of the educational institutions vis-à-vis other educational institutions. Article
30 is a special right conferred on the religious and linguistic minorities because of their
numerical handicap and to inspire in them a sense of confidence. While upholding these rights,
the Supreme Court has, in the TMA Pai case, also endorsed the concept that there should be no
reverse discrimination and opines that “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 disfavoured or, for that matter, receive more favourable 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 Supreme Court has time and again, in many judgements, ruled that
minority status can be decided only by taking the state as a unit. It has reasoned that since
‘religious’ and ‘linguistic’ are mentioned at the same time in Article 30 of the constitution, and
since the states were carved out in India by taking language as the criterion, the classification of
‘minority’ cannot be based on some other principle. Accordingly, a state government can confer
minority status on an educational institute only after considering the socio-economic
backwardness of the minorities in that state. This is the reason why, even though 90 per cent of
the educational institutions (aided or unaided) in Kerala are run by person(s) belonging to the
minority communities, the same have not been accorded minority status.
The judgment delivered on October 31, 2002, in the T.M.A. Pai Foundation case on minority
educational institutions (MEIs) by an 11-member Constitution Bench of the Supreme Court has
elicited varied reactions. The court 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,
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but that the right to administer them is not absolute. The State and the universities could apply
regulatory measures in order to maintain educational standards and excellence in such
institutions, it held.
The judgment is important from the point of view of the interplay between Articles 29(2) and
30(1). Article 29(2) lays down that no citizen shall be denied admission to any educational
institution maintained by the state or receive aid out of state funds on grounds only of religion,
race, caste, language or any of them. Article 30(1) guarantees all minorities, whether based on
religion or language, the right to establish and administer educational institutions of their choice.
The intention of the Constitution-makers would not have been to let Article 29(2) prevail over
Article 30(1); that is, having allowed a minority community to establish an educational
institution receiving aid out of state funds, its right to administer it by admitting eligible students
from the minority community that the institution seeks to represent cannot be restricted, simply
because it would result in the denial of seats to students belonging to non-minority communities.
However, nine of the 11 Judges concluded that as long as MEIs permitted the admission of non-
minorities to a reasonable extent based on merit (what the reasonable extent is would be
determined by the State), it would not be an infraction of Article 29(2). This part of the judgment
invited noteworthy dissents by Justices Ruma Pal and S.S.M. Quadri.
The author of Minority Rights, M.P. Raju, a Supreme Court advocate and counsel for one of the
petitioners, observes that there can be no room for compulsory reservation or quota for non-
minority students as long as minority students are available. Only after students belonging to the
particular minority group have been given admission will the rigour of Article 29(2) become
applicable in an MEI, Raju explains, agreeing with the dissenting judgments of Justices Ruma
Pal and Quadri.
Raju notes that the majority judgment attempts to give restricted meaning to minority rights,
whereas the two dissenting judgments resort to a liberal interpretation in favour of the minority.
For students of the sociology of law, the judgment offers useful lessons on the possibility of the
effects of influences on the thinking and reasoning of the individual Judges. The fact that of the
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two dissenting Judges, one is a Muslim and the other a woman, `who belongs to a qualitative
minority being a non-dominant group', has its own significance, the author observes.
In the view of the majority Judges, "any regulation framed in the national interest must
necessarily apply to all educational institutions, whether run by the majority or the minority.
Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot
be such as to override the national interest or to prevent the government from framing
regulations in that behalf". Justice Quadri, in his detailed dissent (delivered on November 25,
2002) with this view, has pointed out that what Article 30 predicates is institutional autonomy on
the educational institutions established and administered in exercise of the right conferred
thereunder, which cannot be interfered with by the state except to the extent of framing
reasonable regulations in the interest of excellence of education and to prevent
maladministration.
The prejudices of the majority Judges have reflected in the form of obiter dicta, like the one
above. He calls it a reflection of the unconscious prejudice which the majority Judges had with
an implied premise that the minorities cannot have any fundamental right which is not available
to the majority community or non-minorities. Another obiter dicta referred to by Raju is this: "At
the same time, there also cannot be any reverse discrimination... No one type or category of
institution should be disfavoured or, for that matter, receive more favourable 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." Raju observes that such comments from the
majority Judges are the creation of Freudian slips or the reflection of constitutional philosophy
held by individual Judges. Although these comments, being part of the verdict, will not have any
binding value, they can be picked up and used before the High Courts and the Supreme Court,
Raju feels. To a lay reader, it is difficult to distinguish such comments from the general
complaint of the Hindu Right against the `appeasement' of minorities, as articulated by the
various wings of the Sangh Parivar.
The majority Judges have also held that even an aided institution should not become a
government-owned and controlled one, and that they have to incur revenue and capital expenses.
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They, therefore, felt that the decision on the fee to be charged must necessarily be left to the
private unaided educational institutions. This shows, according to Raju, that they seem to have
been influenced by the winds of liberalisation and globalisation, as opposed to the interests of the
student community.
An important flaw in the judgment, with reference to the unit for the determination of a linguistic
or religious minority. All Judges, except Justice Ruma Pal, held that the unit should be the State.
Raju disagrees with the majority Judges' view that linguistic reorganisation of the States meant
that for the purpose of Article 30, linguistic minorities ought to be determined in relation to State
alone. The rights under Article 30 is available not only to the linguistic minorities of the major
languages, relatable to the States, but also to the speakers of numerous minor languages that are
not represented by any State of their own.
He has pointed out that in a unitary federal country like India, linguistic groups, even if they
constitute a majority in a State, need protection under Article 30 against the legislative and
executive actions of the Union, in relation to which they may be minorities. Therefore he has
suggested that to determine minority character or status, the unit should be the one against which
protection is sought or whose action is impugned as offending Article 30. If the executive or
legislative action of the Union is under challenge, then the unit for the determination of minority
character should be the Union. If an executive or legislative action of a State concerned is under
challenge, then the unit to determine minority status should be the State. The majority Judges
have inadvertently concluded that since linguistic and religious minorities are dealt together
under Article 30, the unit should be the same. There is no incongruity in adapting two separate
criteria only because both are dealt with under the same Article together, Raju observes.
Considering the gaps in the 11-Judge verdict, there is still considerable scope for redefining and
enriching the concept of minority rights as guaranteed under the Constitution.
Our constitution believes that diversity is our strength. Therefore they guaranteed the right to
minority to maintain their culture. The minority status is not only dependent on the religion but
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linguistic and religious minorities are also included in this provision. Minorities are groups that
have common language or religion and in a particular part of the country or in the country as a
whole, they are outnumbered by some other social section. Such communities have the right to
conserve and develop these.
Now through these provision religious and linguistic minority an set up their own educational
institutes. By doing so, they can preserve and develop their culture. The Government will not
while granting aid to educational institutions, discriminate against any educational institution on
the basis that it is under the management of minority community.
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CHAPTER-9 : MINORITIES’ RIGHT TO ESTABLISH AND ADMINISTER EDUCATION
INSTITUTUON : A CRITIQUE
“Education is what survives when what has been learned has been forgotten.”
As starting with this quotation relevance and proximity of education in individual’ life can be
counted. Indian constitution draftsman believed that in order to be a welfare state various
fundamental rights should be endowed to citizens as to develop a sense of equality and unity and
right to education is the best developer of these principles. But the challenge of India's plurality
is enormous – eight major religions and myriad creeds, 800 languages of which 22 are 'official'
languages, 8% of the population are indigenous peoples, a social mosaic of castes and sub castes
and over 60 socio-cultural sub regions. In India minority generally consists of Christians (2.5%),
Sikhs (2%), Jain (1%) and Muslims (12%), which is world’ third largest. In India majority
consist of Hindus, their population includes more that 80% of India’ population. India is a
secular state but in virtual sense it’ an utopian concept because in a country where more than
80% of population consist of one single religion, so, its quite difficult to provide equal status to
minority. So, in order to provide equal status to these minorities special privileges are being
accorded to them in our constitution. As taking an example of Muslims in India, have a poverty
rate of 43% whereas the national average is 39% (National Sample Survey Organisation, 1999-
2000). In rural areas Muslim landlessness is 51% as compared to 40% for Hindus. Literacy rates
are substantially lower among Muslims, leading to deprivation of jobs in higher positions in
government offices and skilled professions in the service sector. In urban areas, 60% of the
Muslims have never gone to schools as against the national average of 20%. Only 5%of Muslim
women have completed high school education and the income of the average Muslim is 11 %
less than the national average. To this may be added the Kashmiri Muslim community, with its
distinct political history and its guaranteed status of self rule in past, is a testimony to the
betrayal of rights and the denial of justice to the Muslim population. So, still there is need of
further implementations of new laws in order to meet their drowning standards. The constitution
of India provides for special rights to both linguistic and religious minorities “to establish and
administer educational institutions of their choice” under Article 30. Hence no such law can be
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framed as may discriminate against such minorities with regard to the establishment and
administration of the educational institutions vis-à-vis other educational institutions. Article 30 is
a special right conferred on the religious and linguistic minorities because of their numerical
handicap and to instil in them a sense of confidence. In the St Xavier’s College case, the
Supreme Court has rightly pointed out, “The whole object of conferring the right on the
minorities under Article 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 denied equality.”
While upholding these rights, the Supreme Court has, in the TMA Pai case21, also endorsed the
concept that there should be no reverse discrimination and opines that “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 disfavoured or, for that matter, receive more favourable
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 Supreme Court has time and again, in many judgements, ruled that minority status can be
decided only by taking the state as a unit. It has reasoned that since ‘religious’ and ‘linguistic’
are mentioned at the same time in Article 30 of the constitution, and since the states were carved
out in India by taking language as the criterion, the classification of ‘minority’ cannot be based
on some other principle. Accordingly, a state government can confer minority status on an
educational institute only after considering the socio-economic backwardness of the minorities in
that state. This is the reason why, even though 90 per cent of the educational institutions (aided
or unaided) in Kerala are run by person(s) belonging to the minority communities, the same have
not been accorded minority status.
Constitutional right accorded to Minorities-
Right of a minority to establish educational institutions –
(a) Article–30 –
Article – 30(1) gives the linguistic or religious minorities the following two rights:
21
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(a) The right to establish, and
(b) The right to administer educational institutions of their choice.
Article – 30(2) bars the state, while granting aid to educational institutions, from discriminating
against any educational institution on the ground that it is under the management of a linguistic
or a religious minority. It mandates that in granting aid to educational institutions, the state shall
not discriminate against any educational institution on the ground that it is under the
management of a minority, whether based on religion or language.
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. This is in the true spirit of liberty, equality and fraternity
through the medium of education. The minorities will feel isolated and separate if they are not
given the protection of article 30 general secular education will open doors of perception and act
as the natural light of mind for our countrymen to live in the whole.
The Supreme Court has pointed out in Ahmedabad St. Xaviers College v. State of Gujarat 22 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 expression "minority" has been derived from the Latin word 'minor' and the suffix 'ity' which
means "small in number". According to Encyclopaedia 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. 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.22 AIR 1974 SC 1389
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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 Bill23,
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 the Kerala Education Bill24 has been reiterated by the Supreme Court in Guru
Nanak University case. 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 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.
The Court has pointed out that if various sections and classes of the Hindus were to be regarded
as ‘minorities’ under art. 30(1), then the Hindus would be divided into numerous sections and
classes and cease to be a majority any longer. The sections of one religion cannot constitute
religious minorities. The term ‘minority based on religion’ should be restricted only to those
23 AIR 1958 SC 95624 Supra
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religious minorities, e.g. Muslims, Christians, Jains, Buddists, Sikhs, etc., which have kept their
identity separate from the majority, namely, the Hindus.
(c) Establish And Administer
Article 30(1) postulate 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, and the
institution in particular, will be best served. For purpose of article 30(1), even a single
philanthropic individual from the concerned minority can found the institution with his own
means.
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 in some manner the interests of the minority
community by promoting its religious tenets, philosophy, culture, language or literature.
It has been observed by Supreme Court in the case of Azeez Basha25: “ Article 30(1) 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 article in our opinion clearly
shows that the minority will have the right to administer educational institutions of their choice
provided they have established them, but not otherwise,”
In S.P Mittal v. Union of India, 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.”
25 AIR 1968 SC 662
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In Andhra Pradesh Christian Medical Association v. Government of Andhra Pradesh, 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.
A society consisting of minority members, 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 Provincial. The court stated that : “It matters not if a single philanthropic
individual with his own mean, founds the institution or the community at large contributes the
funds. The position in law is the same and the intension in either case must be to found an
institution for the benefit of a minority community by a member of that community.”
In Ahemdabad St. Stephens College v. Government of Gujarat26, 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.
(d) Regulations of Minority Educational Institutions.
The provision of article 30(1) does not however mean that the state can impose no regulations on
the minority institutions. 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”. It has to be read with regulatory power of the
state. Regulations which do not affect the substance of the guaranteed rights, but ensure the
excellence of the institutions and its proper functioning in matters educational, are permissible.
(i) Government Grants/Recognition – At present, the situation is such that an educational
institution cannot possibly hope to survive, and function without government grants, noir can it
confer degrees without affiliation to a university. Although minorities establish and run their
educational institutions with a view to educate their children in an atmosphere congenial to the
conservation of their language or culture, yet that is not their only aim. They also desire that their 26 AIR 1992 SC 83
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students are well equipped for useful careers in life. The students of unrecognized institutions
can neither get admission in institutions of higher learning nor can they enter public service.
Therefore, without recognition, a minority run institution cannot fulfill its role effectively and the
right conferred by Article 30(1) would be very much diluted. A meaningful or real exercise of
the right under article 30(1) must, therefore, mean the right to establish effective educational
institutions which may sub serve the real needs of the minorities and the scholars who resort to
them. This necessarily involves recognition or affiliation of minority institutions, for without this
the institutions cannot play their role effectively and the right conferred on the minorities by
article 30(1) would be denuded of much of its efficacy. Article 30(2) debars the state from
discriminating against minority institutions in the matter of giving grants. In Managing Board,
M.T.M v. State of Bihar, 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.
Clarifying the position as regards the question of affiliation of, or grant to, minority institutions,
the Court observed: “There is, no doubt, no such thing as Fundamental Right to recognition by
the state but to deny recognition to the educational institutions except upon terms tantamount to
the surrender of their constitutional right of administration of the educational institutions of their
choice is in truth and in effect to deprive them of their rights under article 30(1). We repeat that
the legislative power is subject to the Fundamental Rights and the legislature cannot indirectly
take away or abridge the Fundamental Rights which it could not do directly.”
(ii) Conditions For Grants/Recognition – what conditions can be imposed on these institutions as
a requisite to giving grants, or according affiliation or recognition to them? This has proved to be
a complex and controversial problem. These conditions may be of two kinds. One type of
conditions may relate to such matter as syllabi, curriculum, courses, minimum qualifications of
teachers, their age of superannuation, library, conditions concerning sanitary, health and hygiene
of students, etc. The underlying purpose of such conditions is to promote educational standards
and uniformity and help the institutions and help the institutions concerned achieve efficiency
and excellence and are imposed not only in the interest of general secular education but also 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
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all educational institutions. A right to administer cannot be a right to maladminister. The matter
has been succinctly explained by the Supreme Court in In re Kerala Education Bill27: “The right
to administer cannot obviously include the right to maladminister. The minority cannot surely
ask for aid or recognition for an educational institution run by them in unhealthy surroundings.
Without any competent teachers possessing any semblance of qualification, and which does not
maintain even a fair standard of teaching or which teaches matters subversive of the welfare of
the scholars. It stands to reason, then, that the constitutional right to administer an educational
institution of their choice does not necessarily militate against the claim of the state to insist that
in order to grant aid the state may prescribe reasonable regulations to ensure the excellence of the
institutions to be aided…. Reasonable regulations may certainly be imposed by the state as a
condition for aid or even for recognition.”
(iii) Composition of Managing Bodies – In the composition of the managing bodies 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 28,
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.
(iv) Appointment of Teachers – The selection and appointment of teachers, and the head of the
institution, is regarded as pre-eminently a function of the administration. As K.K. Mathew, J.,
has observed supporting the majority view in Ahmedabad St. Xaviers College case: “It is upon
27 AIR 1958 SC 95628 AIR 1974 SC 1389
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the principal and teachers of a college that the tone and temper of an educational institution
depend. On them would depend its reputation, the maintenance of discipline and its efficiency in
teaching. The right to choose the principal and to have the teaching conducted by teachers
appointed by the management after an overall assessment of their outlook and philosophy is
perhaps the most important facet of the right to administer and educational institution.”
(v) Disciplinary Action Against The Staff And Salary of Teachers – A significant facet of the
administration of an educational institution is the maintenance of discipline among the members
of its staff and to decide over the salary of the teaching staff. The right of the minority institution
to take disciplinary action against the teachers and decide salary of teaching staff 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 article 30(1). Thus,
while fair procedural safeguards may be laid down for the purpose, the final power to take
disciplinary action and deciding the teaching staff must vest in the management of the institution
and be not subjected to the control or veto of any outside body.
(vi) Admission of Students and Fee structure – In the St. Stephen’s College v. University of
Delhi29, 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. This power also could be
regulated but the regulation must be reasonable just like any other regulation. It should be
conducive to the welfare of the minority institution or for the betterment of those who resort to
it.” There is also the question of fees chargeable by the unaided minority institution from its
students. It is clear that an unaided minority institution. The reason is that unaided institutions
have to meet the cost of importing education from their own resources and the main source can
29 AIR 1992 SC 83
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only be the fees collected from the students. But these institutions cannot be permitted to indulge
in commercialization of education. Therefore, it would not be unconstitutional for the
government to issue an order which places a restriction on the amount of fee chargeable by an
institution, if, on facts, the minority institutions indulge in commercialization of education and
maladministration of the educational institutions.
(vii) Medium of Instruction – 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. The result of reading article 29(1) and 30(1) together is that the minority has the
choice of medium of instruction and the power of the state to determine the medium of
instruction has, therefore, to yield ground, to the extent it is necessary to give effect to this
minority right. The most significant case on this point is the D.A.V College, Bhatinada v. State
of Punjab. By a notification, the Punjab Government compulsorily 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.
National Commission for Minority Educational Institutions Act, 2004
This 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.
Unfortunate Aspect of this Act –
According to this bill, any minority educational institutes seeking affiliation to a central
university will be granted such affiliation. The various central universities named for the
purpose, in the schedule of the bill, are: University of Delhi, Pondicherry University, North
Eastern Hill University, Assam University, Nagaland University and Mizoram University. If a
university named in the schedule denies affiliation to an institute, a three-member commission
(with all the three belonging to the minority community) would give the final and binding ruling.
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This committee will be headed by a High Court judge and vested with all relevant executive and
judicial powers. This commission can advise the central and state governments on any question
relating to the minorities’ education, which are referred to it. According to the bill, the
commission can “look into specific complaints regarding deprivation or violation of rights of
minorities to establish and administer educational institutions of their choice and any dispute
relating affiliation to a scheduled university and report its findings to the central government for
its implementation.” Only the central government shall have the powers to overrule the decisions
of the commission.
The National Common Minimum Programme (NCMP) of the United Progressive Alliance
(UPA) mentions that minority educational institutions will be given direct affiliation to central
universities. It is a known fact that during its tenure the BJP-led regime had discriminated against
and harassed many minority educational institutions. This discrimination was in line with the
BJP’s open opposition to the constitutional rights granted to the minorities under Article 30. It is
because of the discrimination meted out to the minority institutes in BJP-ruled state like Gujarat
and Madhya Pradesh that the UPA incorporated the said objective in its NCMP. Unfortunately,
instead of protecting the minority communities’ right to set up educational institutes of their
choice and thus cater to the interests of the whole communities, the bill seeks to protect the
interests of a select few. The latter are the very vested interests who run minority educational
institutes on self-financing basis, without taking into account many relevant and genuine
concerns raised by many concerned academics and sections over the past several years.
Does Article 30 violate Universal Declaration of Human rights?
India inherited its democratic system from the departing British in 1947 who ruled it for several
hundred years. It is far from clear whether India had a mature and able class of indigenous
people who could formulate a robust and consistent constitution. It now appears that Article 30
of Indian constitution not only violates the secular character of India, but also promotes religious
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discrimination of majority and may be in violation of Universal Declaration of Human Rights
- Adopted and proclaimed by United Nations General Assembly resolution 217 A (III) of 10
December 1948.
Article 30 of Indian constitution has certain provisions whereby minorities are exempt (are
allowed to discriminate on the basis of religion, unlike majority) from certain requirements in
running their own institutions .By and large, Hindus are not considered minority (even in areas
where they are a numerical minority such as Jammu and Kashmir) but Christians and Muslims
definitely are. For instance, according to Article 30, minority community may reserve up to 50
percent of the seats for the members of its own community in an educational institution
established and administered by it even if the institution is getting aid from the State.
Christian and Muslim-controlled educational institutions in India, encouraged by Article 30 of
Indian constitution, are found to discriminate heavily in favor of their religious compatriots in
employment and in student admissions .
But Christians and Muslims are not disadvantaged community in India. Indian Christian
community has among the highest literacy rates (53% Hindu literacy rate vs. 81% Christian
literacy rate; literacy also implies wealth) and Indian Muslims already have a 25% permanent
reservation of land, wealth and opportunities called Pakistan/Bangladesh – almost emptied of
Hindus due to massive ethnic cleansing and religious discrimination (and driven away to India).
Christian community was favored by British colonizers until sixty years ago.
Therefore, unlike America where blacks, discriminated for centuries, who are now given
employment preferences in the form of affirmative action, there is little justification for minority
reservations in India.
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Indeed, Islamic Partitioning of India in 1947 has already made Hindus the disadvantaged
community in India and these minority reservations for proselytizing religions such as
Christianity or Islam create conditions of majority Hindu religious genocide – by making the
majority poor by unfairly excluding them from employment and education.
This situation has already been created in Kerala where minorities have taken advantage of
Article 30 to exclude majority Hindus from education and employment and driven them to
poverty. The jihadi movement in Kashmir is strengthened by reservations in favor of Muslims
Article 23 of the Universal Declaration: “Everyone has the right to work, to free choice of
employment to just and favorable conditions of work and to protection against unemployment”.
The already disadvantaged majority Hindus being unfairly denied the right to work in religious
minority-controlled institutions in India because of their religious affiliation should also be
considered in violation of the above Declaration.
Article 26 of the Universal Declaration: “Everyone has the right to education…Technical and
professional education shall be made generally available and higher education shall be made
equally accessible to all on the basis of merit”. Religious minority-controlled institutions in India
give preferential admission to students of their faith that again is sanctioned by Article 30 of
Indian constitution. This again unfairly denies already disadvantaged majority Hindu students
access to education on the basis of merit.
The assertion by the then Indian HRD minister Arjun Singh defining Article 30 of Indian
constitution as “protecting minorities” is inappropriate. An appropriate interpretation of Article
30 is one of giving unfair preferences to Indian minorities but also of promoting majority
apartheid and discrimination. Such an Indian state can arguably, seen as an uncivilized one
(through its violation of Universal Declaration of Human Rights), despite calling itself as a
“secular democracy”. A detailed analysis shows that through constitutional based religious
discrimination of majority, the Indian state may be embarking on a collective suicide of itself and
its majority population – unless Article 30 is amended to make it free of religious discrimination.
Critical appreciation of other constitutional provision relating to minority rights:-
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The principle of non-discrimination and the concept of common citizenship are enshrined in all
provisions of the Indian Constitution. The first and foremost is the Right to Equality (Article 14)
which is an extension of the rights ensured in the Preamble to the Constitution. Article 14 of our
Constitution says:
The State shall not deny to any person equality before the law and shall provide equal protection
for every person within the territory of India.
Though this Article appears to be very short and simple, it is one of the greatest pillars of
democracy. It protects both minority and majority alike against the discriminatory conduct of the
government both negatively and positively. This provision embodies a concept which is a hall-
mark of democracy. However, to the question as to whether the Indian minorities really enjoy
this fundamental right to equality, the answer, unfortunately, is ‘no’. Because in the real sense,
Indian minorities do not fully enjoy some of the basic fundamental rights. The major problems
faced by the Christian minority with regard to fundamental rights are as given below.
The discrimination on grounds of religion is very clearly prohibited by Article 15 of our
Constitution which says in clause (1): “The state shall not discriminate against any citizen on
grounds of religion, race, caste, gender, place of birth etc.” This fundamental right against
discrimination on ground of religion is one of the most important rights for the flourishing of any
religiously pluralistic society as we have in our country.1 But unfortunately, we are till now
unable to implement what Article 15 last down. This mandate of “non-discrimination against any
person on grounds of religion” given in Article 15 of the Constitution has still not been enforced
totally, even though the Constitution was promulgated more than 58 years ago. This right, which
existed, in whatever little extent, before the promulgation of the Constitution, was lost when our
Constitution came into being.
The third paragraph of the Presidential Order of 1950 was amended by Parliament to extend
constitutional benefits to the ‘Dalit Sikhs’ (1956) and the ‘Buddhists’ (1990) along with the
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‘Hindus’, but similar benefit was refused to the Dalit Christians. The denial of justice to the Dalit
Christians is also against the letter and spirit of the Constitution of India on equal justice. The
Presidential Order, as it was interpreted, was not only communalistic, it was also anti-Dalit. It
tended to divide the Dalits on the basis of religioin. Regarding the criteria of amendment, the
point made by Ramvilas Paswan in 1990 needs to be noted. Paswan, who was the then Union
Minister of Welfare and Labour, while stating the objects and reasons for proposing to include
Buddhists of Scheduled Caste origin in the list of Scheduled Castes, said that the change of
religion does not alter social and economic conditions. But above all, the third paragraph of the
1950 Presidential Order is a direct contradiction of Articles 14, 15 and 25 of our Constitution
since it had used religion as the criterion to describe who will be a Scheduled Caste. This needs
to be deleted completely.
In India the opportunities for employment are very scanty and the state is the greatest employer.
The principle of non-discrimination and equality is also upheld in matters of public employment
in the Constitution. Article 16 says: “No citizen shall, on grounds of religion, race or caste, be
ineligible for, or discriminated against in respect of, any employment or office under the State.”
The Constitution in Article 16 gives equality of opportunity in matters of public employment.
But again, because of the Presidential Order of 1950 and the refusal of Shanker Dayal Sharma to
issue an ordinance3 for reservation for Christians during the time of P.V. Narashima Rao as the
PM the Article has been made infructuous. This has been made available to the Dalits in the fold
of Hinduism, Sikhism and Buddhism but not to those who are Christians. This also amounts to
discrimination on grounds of religion which the ‘state’ is forbidden to effect under Article 15.
The denial of justice to the Dalit Christians goes against the letter and spirit of Articles 14, 15, 16
and 25 of the Constitution of India on equal justice, equal opportunities and freedom of religion.
If a Scheduled Caste becomes a Christian, he loses all the reservation facilities, and if he
produces a certificate of Scheduled Caste he gets back all the benefits. Even the children of the
same Scheduled Caste parents, living under the same roof, sharing the same meals are
discriminated against on the basis of religion. Sohan Singh gets all the reservation facilities.
While his own brother Mohan Masih is denied all the benefits just because “Masih” happens to
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be a Christian. It is bad luck if any Christian symbol is noticed with him/her or at his/her
residence. He/she loses all the service benefits. This also amounts to violation of the
constitutional rights. Despite 59 years of our independence the Dalit Christians continue to be the
victims of all kinds of ill-treatment. The history of independent India is both pathetic and
shameful on the treatment meted out to Dalits.
The Mandal Commission’s report unambiguously stated that state assistance should be given to
all genuinely backward sections of people irrespective of religion or caste which many thought
would end discrimination against the poor among the minorities. But the ‘soft’ Communists or
secularists or religious fanatics in the majority community are now said to have found another
excuse to deprive the Christians of these facilities. The argument advanced is that the backwards
having “un-Indian sounding or Anglo-Saxon” names cannot claim such benefits. They can afford
to discriminate against Christians in this manner because they are a negligible “vote-bank”. This
is the way our rulers create divisions, frictions and differences in our country.
The other serious implication of the Presidential Order of 1950 is that it has also affected another
fundamental right of the Dalit Christians, the right meant to protect their personal life as well as
liberty. In the last 58 years of India’s independence, the country’s three largest minorities,
Muslims, Christians and Sikhs, have been targeted by fanatics of the majority community and
other vested interests, on the basis of their religious identity alone, resulting in a serious assault
on their basic rights, including the right to life itself. Article 21 of the Indian Constitution clearly
stipulates: “No person shall be deprived of his right of personal liberty except according to
procedure established by law.” The fact that the Dalit Christians are not getting protection of life
and personal liberty is manifest in the various government Acts and rules passed by Parliament
to give special protection to the Scheduled Castes but these are not applicable to the Christians of
Scheduled Caste origin during atrocities. These Acts and rules include Protection of Civil Rights
Act 1955, Protection of Civil Rights Rule 1977 and Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act 1989. All these Acts and rules are supposed to give the SC (Dalits)
special protection and rights against various kinds of atrocities and oppressions meted out to
them by the people of so-called upper castes of forward classes. But this protection is not made
available to Dalit Christians.
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Although under Article 21, the State is bound to protect the life and liberty of every human
being, it has failed to protect this right. There are a lot of violations. Such type of violations
threatens the very right to life, physical integrity and health of citizens. Here are some of the
headlines in the national media: “Persecution—Christians are now being systematically
targeted”. It referred to the recent move of the then BJP run Delhi Government to denotify
churches in Delhi as places of worship on the ground that “wine was served there”. “Saffron
Brigade strikes again in Gujarat”. “Christian missionary school attacked, copy of New Testament
burnt”—flashed Hindustan Times on July 22, 1998.
Article 25 of the Indian Constitution gives all citizens the “freedom of conscience and the right
freely to profess, practise and propagate religion”. The Christians have almost always faced
problems with this fundamental right specially with the last part of propagating its faith. A
number of States such as Orissa, Arunachal Pradesh, Madhya Pradesh, Gujarat and Tamil Nadu
have passed Acts through their legislature severely curbing this right. In many States like Punjab,
the concerned authorities refused to allow any venue and date for religious conversions or
religious conventions for preaching the teachings of Jesus Christ. This is undoubtedly a violation
of Article 25. Father T.K. John also expressed the feeling that the basic rights of the religious
minorities are violated in a number of ways.
(a) Although some Indian State governments did enact legislations entitled ‘Freedom of Religion
Bill’, these were full of ambiguities which were utilised by the state machinery to practise
discrimination against religious minorities.
(b) Refusal to grant official recognition to certain religious groups and religious communities.
© Legal bias against certain religious groups and religious communities.
(d) Restriction on public information about religious groups by describing only a preferred
religion in official text books and ignoring the others. In Gujarat, the State’s BJP Government is
also trying to impose some limitation on freedom of conscience and free profession of religion.
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Although Article 25 of the Indian Constitution gives wide opportunity to profess, practise and
propagate any religion, from time to time it has been interpreted by the various Courts of law
which have imposed many limitations. As the Supreme Court held in the case of Stainless versus
Madhya Pradesh (1977), the right to propagate does not mean the right to convert others forcibly.
However, he/she is entitled to accept or adopt another religion by his own choice and free will.
In recent times, some Hindu organisations have raised a hue and cry over this matter, and are in
favour of adding some amendments in Article 25. As L.K. Maitra said in the Constituent
Assembly,
The very foundation of society in India being religion, it will lose all her spiritual values and
heritage unless the right to practise and propagate any religion is recognised as a fundamental
right.
But the States were practical enough to make it a conditional right. So, when propagation affects
the religious sentiments of other communities or conversion involves some sort of force or fraud,
it goes against the letter and spirit of the Constitution.
An attempt was made in 1977, during the regime of the Janata Government through a Private
Member’s Bill at the Central level, for prohibition of conversion which, of course, could not win
legilsation sanction from the majority of members. In July 2001, Anant Gangaram Geeta, a Shiv
Sena MP, moved a Private Member’s Bill named the Prohibition on Religious Conversion Bill,
2001 in the Lok Sabha. The Bill was opposed by the Opposition and the Sangh Parivar failed to
muster enough support for it to get it through. Besides the above, the Christian Evangelists and
Church workers had to face consistent opposition to practising and propagating their faith. They
were also attacked physically many a time and harassed by the fanatic groups in a number of
States such as Gujarat, Madhya Pradesh, Orissa, UP, Maharashtra and Punjab. In December
1999, non-Christians organised a rally at Ahwa in Dangs district in the Gujarat State on
Christmas Day projecting the alleged conversion of tribals to Christianity by the missionaries. In
Punjab, religious conventions were disturbed at various places by the Sangh Parivar during the
Akali-BJP regime. But the government did not take serious note of this problem and even
refused to accept the recommendations of the National Minority Commission.
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Aritcle 26 of our Constitution has given to all the religious minorities the right
• to establish and maintain institutions for religious and charitable purposes,
• to manage their own affairs in matters of religion, in any manner they wish to administer and
maintain such property in accordance with the law.
In Gujarat, the State Education Department issued a circular to the government aided schools to
subscribe to a Gujarati magazine, Sadhana, which is wedded to the ideology of the RSS and
Sangh Parivar. This is a direct violation of Article 26 of the Indian Constitution. The violation of
Article 26 occurs when the freedom to establish religious institutions is curbed. The local
administration generally refused permission to build, enlarge or renovate places of worship of the
minority religious groups. This has become a major problem for the Christian community. To get
permission for building a Church has become a nightmarish experience for the Christian
applicants. The recent destruction of churches in certain parts of the country has further
aggravated the threat to the right, guaranteed in the Constitution, and granted to the Christian
community, along with other religious communities, to establish and maintain institutions for
religious and charitable purposes.
Article 29 offers protection to the cultural rights of minorities and Article 30 (1) gives them the
right to establish and administer educations institutions of their choice.
Clause 31(2) states 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.
But with regard to the rights provided on Article 29 and 30 also, the Christians continue to face
problems throughout the country. (Recently the Punjab Government enacted a law and imposed a
lot of limitations on minority institutions. The first major problem which the Christian
educational institutions are facing is the intervention of the State Education Department and
Universities at different levels. Questions are being raised whether a special place can be offered
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to the members of the Christian community as students or trainees. The government not only
discriminates against minority schools, colleges, nursing colleges, and hospitals in granting aid,
but also imposes many rules and restrictions to prevent minority institutions from appointing
their own candidates. When a vacancy comes up in schools and other institutions they are forced
to accept the State’s choice to fill it and on many occasions Christian educational institutions
have had to go to court to get justice.
Some of the fanatic groups are not in favour of a separate and distinct culture for minorities.
They want that all minorities in India must give up their separate culture as India is one country
and one culture. Prof Balraj Madhok suggested that the minorities must adopt Indian (Hindu)
names. In short, they must adopt the Indian culture-the national culture—in their religion. Their
religion should bend its loyalty towards Indian Nationalism.
The suggestion made by Madhok is totally against the rights guaranteed under Article 29 of the
Constitution which says:
Any section of citizens, residing in the territory of India, or any part thereof, having a distinct
language or culture of its own, shall have the right to conserve the same…all persons are equally
entitled to freedom of conscience and the right to profess, practise and propagate their religion.
In fact the Muslims, Christians and Sikhs each have their own separate and distinct culture. The
above utterances negate the guarantee given by the Constitution to conserve the culture of the
minorities. Such utterances have been in vogue for many decades. It is a shame that the leaders
of the largest democracy with a large number of religions allow the propagation of such mindless
thoughts (which clearly trample underfeet the constitutional rights) against such a minuscule
section of the population as Christians.
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CHAPTER- 10 : MINORITIES’ RIGHT AND CURRENT ISSUE
Notwithstanding a change in the Federal government in 2004, Indian security forces continued to
pursue policies inter alia of extra-judicial killings, detentions and torture. The implication of
such policies was particularly tragic for India's many segments of Muslim minorities-in
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particular Muslims of Jammu and Kashmir. Arbitrary practices of arrests, detentions and torture
was deployed against the Muslims in Jammu and Kashmir; Courts in Jammu and Kashmir were
reluctant to hear cases involving militant crimes and failed to act expeditiously on habeas corpus
cases. The conflict between Muslim Kashmiris and the Indian armed forces has been brutal
resulting in more 40,000 deaths within the past 15 years. Since April 2005 (with the visit of
Pakistan's Military leader Pervaiz Musharraf to India) some albeit slow progress has been made
in developing a peace-dialogue. In April 2005 a bus-service opened between the two parts of the
divided Kashmir. In June 2005, a number of Kashmiri leaders held talks with the Pakistani
leader, General Musharraf with a view to advancing the peace initiative. This was followed by
the decision at the end of August by the Indian Prime Minister Manmohan Singh to hold talks
with the Kashmiri separatists. The talks which were conducted with the moderate wing of the All
Parties Hurriyat Conference in Delhi on 5 September 2005 provide cause for optimism: the
leader of the Hurriyat-an umbrella group of parties opposed to Indian rule in Kashmir-agreed in
principle to denounce all forms of violence within Kashmir. However, in the light of the
intransigent stance of all the parties involved in the conflict and in the light of the continuing
violations of India security forces a resolution to the dispute appears distant. The role and status
of Kashmiri politicians in the present dialogue process also needs to be amplified as part of a
broader political process. The divisions between the Hurriyat and the hardliners in the
negotiating process has been a critical issue. This is manifest by a various killings of and attacks
on moderate Hurriyat leaders by Pakistan-based hardline militant groups in Kashmir over the last
few years.
In addition to the grievances emerging from Kashmir, Muslims of India claim to have suffered
persecution and genocide in the state of Gujarat. Muslim leaders condemn the failure of the
Gujarat government and the Indian Courts to prosecute those involved in the killing of over two
thousand Muslims at the hand of Hindu extremists. In many cases attempts to hold perpetrators
of Gujarat riots accountable were hampered by the allegedly defective manner in which police
recorded complaints. There were allegations made by the victims that the police failed to register
their complaints or recorded the details in such a way as to lead to lesser charges. Victims
complained that the police and governmental authorities deliberately failed to bring charges
against prominent people involved in attacks. No appropriate action has been undertaken against
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those involved in the Gujarat - the Best Bakery case exemplifies the situation. This case had to
be moved out of Gujrat High Court to neighbouring Maharashtra by the order of the Supreme
Court. A retrial was ordered in relation to the most serious instance of rioting in Godhra and
arrest warrants were issued for 10 of the 21 accused. Many other riot cases are awaiting hearing
from the Supreme Court as regards Gujarat. There was also the continuation of another related
sectarian Hindu-Muslim dispute over the sacred site of Ayodha. On 5 July 2005, six men
pretending to be tourists, used explosives to blast through the wall of the Ayodha site. Although
all the assailants were killed, Hindu nationalist parties such as the Vishwa Hindu Parishad (VHP)
called for retaliatory action to be taken against Muslim organizations and blamed Pakistan for
orchestrating the attack.
Further tensions emerged after the terrorist bomb blasts on 11 July 2006 in Mumbai (formerly
Bombay). These bombs blast which killed 209 people and seriously injured nearly 1000, were
blamed on Islamic extremists aggrieved at the treatment of Muslim in Kashmir and Gujarat.
Indian security services blamed Al-Qeeda and their Indian agents for the terrorist atrocity, and on
18 July three members of the Students Islamic Movement of India were arrested on suspicion of
masterminding the terrorist plot. This atrocity has led to further increasing the nervousness and
tensions for Indian Muslims and at the same time threatning to stall the peace talk with
neighbouring, Muslim majority Pakistan.
In July 2008, 21 bombs went off simultaneously in Ahmedabad, killing 53 and wounding around
200. Police and paramilitary forces poured into the area in the wake of the blasts. In August
2008, local human rights activists claimed that about 400 Muslim youths had been rounded up in
response to the bombings, but the government had not identified any perpetrators.
A recent report commissioned by the Congress government, the Justice (Retd) Rajinder Sachar
Committee Report, brings out the issues of income, education and employment related to Indian
Muslims. The Committee was set up by the Prime Minister as a High Level Committee under the
Chairmanship of Justice (retd) Rajinder Sachar to examine in comprehensive detail the social,
economic and education status of the Indian Muslim community as standing in 2006. The
findings of the Sachar Committee in 2006 have clearly indicated certain levels and forms of
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systemic discrimination and official prejudice operating in Indian society at almost all levels
against Muslims and some of the results have shocked the whole country. The Committee used
data tabulated indices for levels of education (matriculation, graduates and above), employment
(workers and formal sector), economic (poverty and land holdings) between Hindu and Muslim
Other Backward Classes (OBCs), Muslims in general and compared them with the standard all-
India average. Some of the key findings of the Report as regards Muslims in general and Muslim
OBCs are as below:
1. OBCs are generally below the all-India average when it comes to matriculation,
graduation and industry employment;
2. Surprisingly, Hindu OBCs averaged better than the national mean when it came to non-
formal employment, poverty levels and ownership in landholdings;
3. Muslim OBCs are placed poorer than Hindu OBCs in all major categories;
4. Muslims in general are the poorest and come behind Hindu and Muslim OBCs.
Economist Abusaleh Sharif, a Member Secretary of the Sachar Committee, has observed in an
Indian newspaper, The Indian Express, that, ‘(These) NSSO statistics demonstrate general
Muslims are well below the status of Hindu OBCs.' (See The Indian Express, 31st October,
2006).
The statistical figures for Muslims in rural areas are also deeply disturbing:
1. A whopping 94.9 per cent of Muslims in Below Poverty Line (BPL) families in rural
areas do not receive their entitlement of free foodgrains. Only 1.9 per cent of the Muslim
community benefit from the Antyodaya Anna Yojana Scheme (a government programme
meant to prevent starvation deaths by providing food grains at a subsidised rate);
2. A large percentage of rural Muslims-60.2 per cent-do not have any ownership of land;
3. Only 3.2 per cent of rural Muslims receive subsidised loans. The committee also found
shocking instances of discrimination against the community. These include cases of
Muslims not getting loans from even nationalised banks. ‘There is an implicit diktat that
loans should not be given in specific areas dominated by Muslims because of the high
probability of default', the Committee observed after a visit to Rajasthan;
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4. Only 2.1 per cent of Muslim farmers owning tractors (this is abysmal when seen in the
context of India having about 15,25,000 tractors in the country and having the 4th largest
tractor-owning population in the world after the US, Japan and Italy).
On the education front, only about 3.6 per cent of Muslims above the age of twenty are college
graduates according to recent data as collected in 2006 from the National Sample Survey
Organisation (NSSO). 54.6 per cent Muslims in villages and 60 per cent in urban areas have
never attended schools. There are 3.1 per cent of the Muslim community in urban areas who are
graduates and 1.2 per cent who are post-graduates. Only 0.8 per cent of Muslims in rural areas
are graduates. The Committee also found inadequate number of government schools in the
Muslim-dominated areas contributing to the low number of Muslim boys and girls attending the
schools. One of the most shocking revelations was that the share of Muslims in all state
government jobs - across all grades - in a dozen high-Muslim population states is just over 6 per
cent. The Report findings show that there is no state where the representation of Muslims
matches with their population share. The percentage of Muslims across all Public Sector Units
(PSUs) in India illustrate the point that Muslims are severely under-represented even in
government employment, including PSUs, compared to the percentage of their population in a
state. What makes this statistic even more shocking is when this figure of Muslim employment in
PSUs is seen in the context of some of the states like West Bengal and Bihar where the political
establishment has made Muslim welfare a key political and electoral rhetoric. West Bengal
provides a good example of duplicity and concealed systemic discrimination. While the Left
Front government there has professed secular policies as its key electoral rhetoric and has
enjoyed a three-decade reign of uninterrupted power, it has one of the lowest shares of Muslims
in government employment: just 4.2 per cent. This is where almost a quarter of the state's
population is Muslim. In fact, West Bengal reported zero percent of Muslims in higher positions
in state PSUs. The other states where the story is similar are Bihar, Maharashtra and Uttar
Pradesh where the ratio of Muslims employed in government jobs are extremely low - less than a
third of their share of population. The percentage of Muslims in higher positions in PSUs in
Maharashtra is only 1.9 percent.
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It is quite apparent that while the Left Front government in West Bengal and the Laloo Prasad
government in Bihar has successfully provided physical safety and security to Muslims through
the effective containment and prevention of communal riots, they have systematically failed to
politically empower Muslims by giving them jobs and education. This becomes quite shocking
when it is seen that that both the Left Front government and the Laloo Prasad government have
been in continuous power in office for long periods of time and have consistently used Muslim
upliftment as part of their electoral rhetoric.
Data received by the Sachar Committee show that representation of Muslims in jobs is less than
half of their population share in all states across the country. The state with the highest
percentage of Muslims employed in the government is Assam: 11.2 per cent Muslim population
percentage share is 30.9 per cent. The highest percentage of Muslims in higher positions in state
PSUs is in Kerala - 9.5 percent. Some of the states that have a relatively higher proportion of
Muslim representation in state government jobs are: a) Karnataka (Muslim population share:
12.2 per cent, share in jobs: 8.5); b) ironically Gujarat (Muslim population share 9.1 per cent,
share in jobs: 5.4 per cent); and c) Tamil Nadu (Muslim population share: 5.6 per cent, share in
jobs: 3.2 per cent). In Kerala, where literacy levels are highest in the country, it is shown that
only 10.4 per cent of state government employees are Muslim (less than half of the share of
Muslims in the population of the state). The percentage of Muslims in higher positions in state
government owned PSUs in Bihar and Karnataka is 8.6 per cent. Ironically, it is 8.5 per cent in
Gujarat, higher than most states, though not even fifty percent of the population share of
Muslims.
The 2006 Sachar Committee Report also found clear evidence that Muslims severely lacked
representation in the central elite civil services. Muslims in India constitute just over 3 per cent
of the Indian Police Service and 1.6 per cent of the Indian Foreign Service. There are only10 of a
total of 619 Indian Foreign Service (IFS) officers according to the Expenditure Reforms
Committee 1999-2000 documents. The senior-most Muslim IFS officer is Talmiz Ahmed, who is
presently Director General of Indian Council of World Affairs. The percentage of Muslims in the
Indian Police Service (IPS) is about 3.39 per cent. According to the IPS Civil List 2006 (as on
January 1), there are 109 Muslims out of a sum total of 3209 names. There is only one Muslim
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who is holds a sensitive intelligence post in the country-Asif Ibrahim-who heads the Delhi desk
of the Intelligence Bureau (IB). The percentage of Muslim intake in the Indian Administrative
Service is 2.2 per cent according to the Civil Services List of 2006 (as on January 1, 2006).
Again, there are about 108 Muslim IAS officers out of a sum-total of 4790 such officers in the
country. This figure also includes 1248 State Services Officers who have been promoted to the
IAS. Mohammed Riazuddin of the Kerala cadre is the senior most Muslim IAS officer in India.
The Committee also found an alarming low level of state-wise Muslim representation in all
levels of the judiciary as compared to the share of Muslim population. The overall figure of
Muslims in the judiciary in the 12 high-Muslim population states stands at only 7.8 per cent as an
average percentage. Again, Left Front-ruled West Bengal features as the lowest performer with
only 5 per cent of Muslims in the higher positions of the state judiciary (percentage of Muslims
in the state is 25.2 per cent). The position in neighbouring Assam is also quite similar. While the
state has a Muslim population percentage of 30.9 per cent, the percentage of Muslims in the
judiciary is only 9.4 per cent. The percentage of Muslims in the judiciary in Jammu and
Kashmir, the state with the highest Muslim population (66.97 per cent), is only 48.3 per cent.
Andhra Pradesh is the only state that has more Muslims in the judiciary in terms of proportional
representation - Muslims constitute 12.4 per cent of the judiciary (their population share is 9.2
per cent in the state).
Minority rights and national integrity:-
Before we discuss minority rights, we need to be clear about the concept of minority. The word ?
minority? has a substantive meaning only if special protection in the Constitution is to be
provided. If so, then a further question would arise as to who these minorities are, which would
require a definition of minority to identify them, and also what constitutional protection is to be
provided.
Such protection is required for the minority to be compensated for some historically acquired
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disability. Otherwise, it would be meaningless to have a discourse on minorities.
Therefore, present practice of regarding any group of less than 50 per cent of the population as
minorities is ridiculous. The Whites of South Africa are numerically a small number, but they
cannot be treated as ?minorities? deserving of special protection, reservations, or affirmative
action. Parsis in India despite being a microscopic minority numerically, have consistently
refused to ask for any constitutional safeguards. They are therefore not a minority in the
constitutional or statutory dimension.
Strange as it may sound, there is no definition of minority in the Indian Constitution (although
Articles 29 and 30 make provisions for a minority, religious and linguistic), nor is there a
definition in United Nations resolutions or a universally accepted definition in international
laws.
Some countries such as Thailand and Brazil refuse to accept that there are minorities in their
country. These nations have told the UN Sub-Commission on Prevention of Discrimination and
Protection of Minorities that they have no minorities to notify, despite being a multi-religious,
multi-racial society.
In 2001, an 11-judge constitutional bench delivered a judgment on the question of minority
rights in education (T.M.A. Pai Foundation case), but did not define the term ?minority?. What
they did do was to opine that minorities are not to be defined nationally but state-wise, thus
overturning their 1971 DAV College30 judgment. Subsequent judgments of the Supreme Court,
such as delivered by a five-judge constitutional bench in 2003 in the Islamic Academy case, and
a seven-judge constitutional bench in 2005 in the Inamdar case have also not defined the concept
of minority.
In 1992, India?s Parliament enacted the National Commission for Minorities Act, but did not
define a minority in it! Section 2(c) of the Act merely states that minority is what the government
30 AIR 1971 SC 1737
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of India will notify in the Gazette!! The government has notified, without reason or explanation,
Muslims, Christians, Sikhs and Parsis as religious minorities. Why they are so has not been
explained. Even the State Minorities Commissions have not bothered to define minorities.
In other words, the nation has been discussing minority rights for the last sixty years without
defining what or who can be the minorities. How can we identify minorities if we do not have a
definition of the term?
Hence, I shall begin with my definition of minority and then discuss what their rights can be in
the context of national integrity. In this connection, it is appropriate to quote from the judgment
of the three-judge Supreme Court bench in Bal Patil versus the Union of India case, delivered by
Justice Dharmadhikari in 2005:
?Such claims to minority status based on religion would increase the fond hope of various
sections of the people in getting special protections, privileges and treatment as part of the
constitutional guarantee. Encouragement to such fissiparous tendencies would be a serious jolt to
the secular structure of constitutional democracy. We should guard against making our country
akin to a theocratic State based on multinationalism.?
This is a severe indictment of the minorityism that has become today the bane of the nation.
Instead of heeding to the timely warning, the present UPA government at the centre has
embarked on further appeasement and placating of the religious ?minorities?. It is in this context
that the recent order of the single judge of the Allahabad High Court stating that Muslims of UP
are no longer to be regarded as a minority, needs to be taken seriously.
What we can therefore hold now is that if a group is numerically small, and substantially below
50 per cent of the population, then although it has the necessary attribute of a minority, that
attribute is not sufficient for it to be declared a minority for the purpose of constitutional or
statutory protection. Such a group must have sufficient other attributes as well, to be identified as
a minority.
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Based on the circumstances arising out of the Indian legacy, and in recognition of defining
events of Indian history, I would define a minority in India as follows:
?A collective of Indian citizens, constituting a numerical minority and situated in a non-dominant
position in society, endowed with characteristics which differ from those of the majority, having
suffered from imposed deprivation over a long period and thus have acquired disabilities, are a
minority if these disabilities cannot be removed except by providing special constitutional
protection and facilities for affirmative action.?
That is for sufficiency of attributes to qualify as a minority under the Constitution of India, it is
required that such a group be in a non-dominant position in society, have suffered deprivation for
a long period to have acquired disabilities which cannot be removed except by special
constitutional protection such as reservations in jobs and educational institutions.
By this definition, the Scheduled Castes and Scheduled Tribes would constitute a minority even
if they are a part of the numerical majority Hindu community. Their disabilities cannot be
removed except by specific affirmative action such as reservation in jobs, education, and in
legislatures. Backward castes of the Hindu community also suffer disabilities, but these can be
removed by special arrangements of education facilities and financial assistance. But due to our
political folly and selfishness, these backward castes have been given reservations in jobs and
education, which cannot now be taken away except by persuasion in the future. When world-
class primary and secondary education can be provided to all, it is possible that the youth of the
backward castes would prefer to compete rather than advance by availing of quotas. Since the
Indian DNA structure is the same for all castes, hence, competing on merit, if equally
empowered, is possible for the backward castes.
But Muslims and Christians cannot be considered minorities in Indian society because their
disabilities are not acquired from deprivation imposed on them. In fact, Muslims and Christians,
like the Whites of South Africa, have been ruling classes in India for a long period. Sequentially,
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these two religious groups have ruled India for over a thousand years, during which period they
practiced religious apartheid against the Hindus. Hence, for national integrity, patriotic Indians
should resist with all their might any attempt to introduce quotas in jobs and education, or for
anything else, for the benefit of Muslims and Christians. Those Muslims and Christians who
consider themselves patriotic Indians should also, like the Parsis, reject any offer by mischievous
politicians to introduce quotas for them. Instead they should ask for world-class primary and
secondary education to empower them to compete on a level playing field with the rest of the
society.
Whatever has now been incorporated in the Constitution for minority rights cannot be taken
away. Articles 29 and 30 are part of the Basic Structure of the Constitution and hence cannot be
amended out. Hence, minorities will continue to have the right to administer their own
educational institutions. But as the Supreme Court has held in the Islamic Academy case, the
unfettered right to administer does not include the right to mal-administer. Hence, minority-run
educational institutions, including unaided ones, must be subject to obtaining the government
approval for curriculum standards, faculty quality, and basic infrastructure, which should be
common to all. Sooner or later, we must require that all students including Muslims and
Christians, learn Sanskritised Hindi, whose vocabulary should be progressively Sanskritised till
the Hindi becomes indistinguishable from Sanskrit. Our long-term link language has to be
Sanskrit, because its vocabulary is in large measure in every language. Even Tamil has 40 per
cent of its vocabulary in common with Sanskrit.
The goal of minority rights in education has to be to further social justice. Towards this end, we
must strive for equal and high quality educational opportunity and create a mindset for national
unity and integration. Quotas and reservations are essential for Scheduled Castes and Scheduled
Tribes, but here too the concept of creamy layer must operate. But we cannot accept special
rights for religious minorities of Muslims and Christians, just as we cannot for Brahmins
although they are as poor a community as and Christians. The logic is the same?those who have
been ruling classes cannot claim minority status in the constitutional matrix of the nation.
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CHAPTER- 11 : CURRENT STATE OF MINORITIES AND INDIGENOUS PEOPLE
It is amply clear that various issues related to minorities have started putting pressure on the
policy formulation and implementation by the government. It also needs to be added that the
dominant heterogeneous groups are quite fragmented and that government policy cannot be
faulted for working to further the interests of any particular group as such. However, there are
substantial difficulties; these include problems with the implementation of policies currently
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dealing with property rights and interests and the restructuring of rights of religious minorities.
The plurality existing within the political framework and the pressures generated by the polity is
now seeing a continuous process of social churning affecting the position of minority groups.
In 2006, the Government has drawn up and implemented a reservation policy through a
legislative enactment in Parliament that will entitle members of Other Backward Classes
(OBCs), both Hindu and Muslim, to avail of fifty per cent of seats in all government educational
institutions and all government-aided and sponsored educational institutions. This is in
consonance with the objectives of the Ninth Five Year Plan (1997-2002) that chooses to enhance
‘growth with social justice and equity'. It needs to be mentioned that the Ninth Plan emphasizes
on the removal of historical social wrongs through the vehicle of private participation and private
ownership in industry. There is a-state driven-transfer of economic power that is slowly taking
shape from the urban, westernized, educated upper-castes to the rural masses and intermediary
castes. This has been manifest in various densely-populated states across the country like Bihar,
Uttar Pradesh, Jharkhand, Chattisgarh, Tamil Nadu and West Bengal. The politics of this newly
emerging constituent class has re-defined Indian politics since 1991 after the implementation of
the Mandal Commission Report (1990). In its report of 1980, the Commission endorsed the
affirmative action policies existing in Indian law whereby lower castes (also known as Other
Backward Classes and Scheduled Castes and Tribes) were provided with exclusive access to a
certain proportion in higher education and governmental jobs and recommend changes to the
quota system by increasing these to 49.5 per cent (a rise of 27 per cent).
The Mandal Report has been a significant factor that has influenced the recent changes in the
political map of the country both at the federal level and at the State level. At one level, Mandal
has brought in the demand for greater decentralisation and increased democratisation of political
power. At another level, it has been the reason for political expediency and the government
placing more emphasis on caste and religion in certain areas of policy-making. While
implementation of the Mandal Report by the V.P. Singh Government and the Rajiv Gandhi
Government in the early 1990s arguably has had a pronounced effect on the political
developments in the last decade in a positive way in some sense, it is also seen one of the reasons
for the meteoric rise of the right-wing Hindu party, the BJP. The recent move towards a fresh
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spate of reservation in educational institutions by the Congress Party in 2006 has again stoked
fears that the BJP may see a fresh lease of political life after it's last few years in political
wilderness.
The Dalits and the Adivasis continue to suffer from enormous discrimination and social
ostracism. At the same time, India's official discourse of equal rights for all religious minorities,
has increasingly been translated into the will the Hindu majority. The global war on terror has
raised substantial increased the leverage of right-wing Hindu fundamentalism to further
undermine the position of Muslim minorities. Muslims - in particular those seeking autonomy
and self-determination-in Kashmir are viewed as collaborators or terrorists. Within Kashmir,
there have been limited and piece-meal initiatives under taken by the present Congress
government for a lasting cession of violence. The position of Muslim minorities, on the whole,
continues to be precarious. Further tensions have emerged as consequence of the blasts which
shook Mumbai on 11 July 2006. These blasts resulting in the deaths of 209 have been blamed on
Islamic extremists aggrieved, with Indian security services suspecting Al-Qaeda and their Indian
agents. On 18 July three members of the Students Islamic Movement of India were arrested on
suspicion of masterminding the terrorist plot. This atrocity has led to further increasing the
nervousness and tensions for Indian Muslims.
Tensions also increased in Gujarat following blasts from 21 simultaneous bombs in the city of
Ahmedabad. The bombs killed 53 people and injured 200 more. In August 2008, local human
rights activists claimed that about 400 Muslim youths had been rounded up in the aftermath.
Muslim-Hindu tensions heightened again after a fatal assault in Mumbai in November 2008, in
which 166 were killed and many left wounded. The only survivor from 10 gunmen who,
according to the police, landed in Mumbai by boat from Pakistan faces 83 charges the State
made against him and a death sentence if found guilty. India suspended talks with Pakistan until
it took steps against the 38 people the Indian police have identified in connection with the attack.
In September 2008 an anti-Christian wave of violence spread in the state of Orissa, that has left
38 people dead and many injured. According to media reports tens of thousands of Christians
fled their homes. Pope Benedict condemned the incidents that also involved churches being set
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on fire. The Indian Supreme Court ordered the state government to ensure the security of the
refugees.
The impacts of recent governmental initiatives are as yet unclear. The Sachar Report on the
Status of Indian Muslim which was tabled in the Parliament on 30 November 2006 contains
revealing comments on the social, economic and educational status of the Muslim community; it
is as yet too early to assess the extent to which its recommendation will be implemented.
However, it is the first of its kind report and it puts forward recommendations to implement
comprehensive policies to ensure equality of opportunity to Muslims in the workplace and in
education. The current government also established a Ministry for Minority Affairs. However,
this ministry which was created in January 2006 is generally perceived as a political instrument
on the part of the Congress government to regain the confidence and sympathies of minorities
within India. There is as yet no significant impact of this ministry in the projection or promotion
of minority rights. In August 2007 the Minister of Minority Affairs published the government’s
15 point follow-up actions on the recommendations of the Sachar Committee. Actions include
targeted interventions to improve basic amenities and employment and economic opportunities
in specific towns and districts with a substantial Muslim minority population, a multi-pronged
strategy is foreseen to address educational backwardness and the setting up of an Equal
Opportunity Commission and a National Data Bank is recommended.
Ms. Asma Jahangir, United Nations Special Rapporteur on Freedom of Religion or Belief visited
India in March 2008 and released her report on religious freedom in India in January 2009. In her
report she positively commented on the Sachar Report, on the new 15 Point for Welfare of
Minorities report and on the work of the National Commission for Minorities and acknowledged
that a comprehensive legal framework to protect freedom of religion or belief exist. But she
expressed concern that when it comes to implementation of the law and policies, the level of
action at the regional and local level is unsatisfactory. She condemned ‘institutionalised impunity
for those who exploit religion and impose their religious intolerance on others’ and warned that
‘communal violence might happen again unless political exploitation of communal distinctions is
effectively prevented’. Recommendations include the delinking of Scheduled Caste status from
the individual’s religious affiliation and vigorous protection of religious minorities and
prevention of communal violence, including passing legislation to specifically deal with inter-
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religious violence.
Violence across the country marked the general elections in early 2009. According to media
reports at last two people were killed and dozens wounded in violent clashes in Calcutta, and in
Kashmir a petrol bomb was thrown at a police station and anti-India separatists clashed with
security forces. Results of the five-round elections are expected on 16 May 2009.
Communal conflicts have periodically plagued India since it became independent in 1947. The
roots of such strife lie largely in the underlying tensions between sections of its majority Hindu
and minority Muslim communities, which emerged under the Raj and during the bloody Partition
of India. Such conflict also stems from the competing ideologies of Hindu nationalism versus
Islamic fundamentalism and Islamism; both are prevalent in parts of the Hindu and Muslim
populations.
Alongside other major Indian independence leaders, Mahatma Gandhi and his shanti sainiks
("peace soldiers") worked to quell early outbreaks of religious conflict in Bengal, including riots
in Calcutta (now in West Bengal) and Noakhali District (in modern-day Bangladesh) that
accompanied Muhammad Ali Jinnah's Direct Action Day, which was launched on 16 August
1946. These conflicts, waged largely with rocks and knives and accompanied by widespread
looting and arson, were crude affairs. Explosives and firearms, which are rarely found in India,
were far less likely to be used.
Major post-independence communal conflicts include the 1984 Anti-Sikh riots, which followed
Operation Blue Star by the Indian Army; heavy artillery, tanks, and helicopters were employed
against the Sikh partisans inside the Harmandir Sahib, causing heavy damage to Sikhism's holiest
Gurdwara. According to the Indian government estimations, the assault caused the deaths of up
to 4,000 soldiers, 250 militants, and hundreds of civilians.
This triggered Indira Gandhi's assassination by her outraged Sikh bodyguards on 31 October
1984, which set off a four-day period during which Sikhs were massacred; The Government of
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India reported 2,700 Sikh deaths however human rights organizations and newspapers report the
death toll to be 10,000-17,000. In the aftermath of the riot, the Government of India reported
20,000 had fled the city, however the PUCL reported "at least" 50,000 displaced persons.
The most affected regions were neighborhoods in Delhi. Human rights organizations and the
newspapers believe the massacre was organized. The collusion of political officials in the
massacres and the failure to prosecute any killers alienated normal Sikhs and increased support
for the Khalistan movement. The Akal Takht, the governing religious body of Sikhism, most
definitely considers the killings to be a genocide.
Other incidents include the 1992 Bombay Riots that followed the demolition of the Babri
Mosque as a result of the Ayodhya debate, and the 2002 Gujarat violence that followed the
Godhra Train Burning—in the latter, more than 2,000 Muslims were killed.[89] Terrorist activities
such as the 2005 Ram Janmabhoomi attack in Ayodhya, the 2006 Varanasi bombings, the 2006
Jama Masjid explosions, and the 11 July 2006 Mumbai Train Bombings are often blamed on
communalism. Lesser incidents plague many towns and villages; representative was the killing
of five people in Mau, Uttar Pradesh during Hindu-Muslim rioting, which was triggered by the
proposed celebration of a Hindu festival.
India is a secular republic and the constitution guarantees equal rights to all its citizens
without any discrimination. The Indian constitution provides many legal safeguards to the
minority community and special provisions are made for their social and economic
growth. Despite these, minorities in India face all types of inequity in the public sphere.
Even the violence and human right violations of the minority community in India is a
common phenomenon. In this context, the note of UN Special Repporteur on Freedom
and Religious Belief Ms. Asma Jahangir, is pertinent when she praised India’s
secularism, human right activism, and strong legal protection for religious minorities at
the national level but also made the point that due to the federal structure of Indian state
the implementation of law varies from states to states. She said, “organized groups
claiming roots in religious ideologies have unleashed an all-pervasive fear of mob
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violence in many parts of the country”. Asma Jahangir, was making special reference to the
violence in Orissa, where Hindu fundamentalists attacked Christian and tribal
communities. The violence in Khandamal region of Orissa continued for a long period,
despite massive protest by activists and secular organizations.
Condition of Muslim Community: -
Amongst the minorities in India, Muslim is the largest community but still far behind the benefits
of development. This is true that every common citizen of the country is derived from the gains
of economic growth but the quotient of this deprivation is more amongst the Muslim community.
This came into light when Sachar committee report on the condition of minority community was
placed in the parliament. Some of the glaring findings of the report are as follows.
1) In the field of literacy the Committee has found that the rate among Muslims is very much
below than the national average. The gap between Muslims and the general average is greater in
urban areas and women. 25 per cent of children of Muslim parents in the 6-14 year age group
have either never attended school or have dropped out.
2) Muslim parents are not averse to mainstream education or to send their children to affordable
Government schools. The access to government schools for children of Muslim parents is
limited.
3) Bidi workers, tailors and mechanics need to be provided with social safety nets and social
security. The participation of Muslims in the professional and managerial cadre is low.
4) The average amount of bank loan disbursed to the Muslims is 2/3 of the amount disbursed to
other minorities. In some cases it is half. The Reserve Bank of India’s efforts to extend banking
and credit facilities under the Prime Minister’s 15-point programme of 1983 has mainly
benefited other minorities marginalizing Muslims.
5) There is a clear and significant inverse association between the proportion of the Muslim
population and the availability of educational infrastructure in small villages. Muslim
concentration villages are not well served with pucca approach roads and local bus stops.
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6) The presence of Muslims has been found to be only 3% in the IAS, 1.8% in the IFS and 4% in
the IPS.
7) Muslim community has a representation of only 4.5% in Indian Railways while 98.7% of
them are positioned at lower levels. Representation of Muslims is very low in the Universities
and in Banks. Their share in police constables is only 6%, in health 4.4%, in transport 6.5%.
8) For the Maulana Azad Education Foundation to be effective the corpus fund needs to be
increased to 1000 crores. Total allocation in the four years 2002 to 2006 for Madarsa
Modernization Scheme is 106 crores. The information regarding the Scheme has not adequately
percolated down. Even if the share of Muslims in elected bodies is low they and other
underrepresented segments can be involved in the decision making process through innovative
mechanisms.
9) Most of the variables indicate that Muslim-OBCs are significantly deprived in comparison to
Hindu-OBCs. The work participation rate (WPR) shows the presence of a sharp difference
between Hindu-OBCs (67%) and the Muslims. The share of Muslim-OBCs in government/ PSU
jobs is much lower than Hindu- OBCs.
The points made above are enough to reflect on the pathetic economic condition of Muslim
community in India. After the Sachar committee report comes in the public domain, national
debate started on the condition of Muslim in India. Government acknowledged the problem and
beneficial schemes are introduced, but still the per capita levels of investment for the community
is low. According to the report released by Anhad (a civil society group working on minority
affairs) after the national meet on the status of Muslims in Contemporary India, the per capita
level of investment from the side of government for the community are still low. The scheme for
investment in districts with high minority population, at best cover 30 percent of the total
population. The programmes are for area development rather than programmes focused on the
minorities; therefore they prove blunt instruments as much of the expenditure is on general
infrastructure and little to directly benefit deprived people of the community. They are not
consulted about their priorities. On the economic front Muslim community face problem but this
is equally true when we look at human right violations. In the recent past after every terrorist
attack Muslim community are targeted by the state apparatus and several time innocent youth are
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also arrested on false premises or just on suspicion without any substantial proof. Cases of illegal
detention are generally reported form States like Andhra Pradesh, Delhi, Maharashtra and Uttar
Pradesh. It came to light that Muslim youth are randomly pickedin Hyderabad (cyber city) and
from Azamgarh of Uttar Pradesh. Illegal detention of the Muslim community is accepted by the
Andhra Pradesh government when it paid compensation to 21 Muslim youth who are tortured in
the police custody after been wrongly held in 2007. India’s popular investigative magazine
Tehelka found than an overwhelming cases of arrest pertaining to minority community in
terrorist acts are based on non-existent and fraudulent evidences. Hundreds of people, mainly
Muslims and poor, were persecuted and falsely accused of terrorism. According to media reports,
Bar Associations in different parts of the country, Faizabad, Lucknow and Dhar among them,
have asked their members not to defend Muslim terror suspects.
The attributes of minority group is seen a relative perspective which characterized to the nature
of the group as being qualitatively weak, on-dominant and under privileged in global terms.
Since people, community or group differ in their qualitative and quantitative characteristics as
well, so there is always a possible certainty of being one superior and other inferior in a relative
comparison. These relative differences thus existing between the groups create a feeling of being
superior (majority group) and inferior (minority group).
Physical existence of majority and minority group is an outcome of the differential treatment
which the groups are experiencing; one group enjoys all or most of the privileges whereas other
enjoys a few or is deprived privileges. This differential treatment keeps one to feel as being the
member of either privileged or underprivileged groups. Privilege group here is an indicative of
majority groups and under privilege refers to the minority groups. As the term minority and
majority groups are always perceived to be in the relative terms and the formal is generally
characterized as being weak under privilege and victim of the later group, so the problem of
minority is a universal phenomenon irrespective of the affluent and backward states existing on
the globe.
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In every country, there are groups of people loosely or closely associated for some specific
reason or purpose, which may be racial linguistic cultural religious political economic etc or a
combination of these. In the quest for describing minority; United Nation Sub-commission on the
prevention of discrimination of minorities –suggested that the term should include only those
non dominant groups in population, which possess and wish to preserve stable, ethnic, religious,
linguistic traditions, characteristics, markedly different from those of the rest of the population.
The problems of issues of Indian sub continent have been very peculiar. Before British rule;
Muslims were ruling the Indian sub continent and they were forced out of power by Britishers.
This was followed by the division of Indian sub continent better known as partition on the
religious basis. Inspite of all that happened during the partition of independent India experienced
the beginning of the new era. India was declared a secular state where equality to all was
provided irrespective of caste creed and religion.
These rights clearly become the part of the constitution which is mentioned in Article 29 and 30.
Article 29 states, "any section of the citizen 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"
Article 30 acknowledges "the right of minorities based on religion or language to establish and
administer educational institution of their choice".
If these articles are put together it would appear that Indian constitution envisages three
categories of minorities- classified in terms of language, religion and culture for which all rights
are guaranteed to keep their identities intact. Differences on the ground of language or religion
are understandable but it is difficult to define the word culture. Culture means so many things
and there is so much cultural varity in India. It is difficult to culturally determine who is minority
and who is in majority. Culture, therefore being a vague and intangible phenomenon for the
determination of minorities. But if culture is understood to be the essence which is embedded in
the religion than culture and religion combined together form a rational basis for a relative
emergence of majority and minority groups.
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Language and religion (including caste) or combination of both provides equally stable basis for
the determination of minorities. The division is both at vertical and horizontal in majority and
minority groups as well.
So far as religious in the Indian sub continent are the Muslims Christians Sikhs Buddhist Jains
and very small minority of Persians. There is yet another minority recognized in the constitution
is of Anglo- Indians which is a combination of racial religious and linguistic characteristics.
Among all the above minorities Muslims are the largest single minority community in India.
There are number of problems and grievances of minorities in general and Muslims in particular,
some delicate and some complex, some real and some perceptible. The Muslim backwardness in
the country can evidently seen as they lack behind the majority community- both educationally
and economically.
There are two commonly prevalent explanations regarding educational backwardness among
Muslims in contemporary India. One explanation is that they have been slow to take advantage
of governmental liberal policy regarding education since the independence due to their particular
attitude or cultural ethos. There have been a slow tendency of the Muslims to respond positively
modern technical and professional education or take advantage of educational developments is
due to the account of their resistance to modern (scientific and professional education). They
generally prefer sending their children to a traditional Islamic educational institution rather than
to a modern institution. Such tendencies are gradually vanishing as enlightened Muslim or
Muslim institution are engaged in developing awareness among Muslim parents and their
children towards the acquisition of education starting from very basic Islamic traditional
schooling to the acquisition of education at college or university level. Presently Muslims in
comparison to the other communities in the country are almost proportionally equal in the pursuit
of modern education but still Muslims lack behind in terms of the acquisition of professional and
technical education. The admission to these courses requires competition, where Muslims
generally are not up to the mark in competing with the other community. It is a matter of reality
that Muslims have far below representation proportionately in a composition for professional and
technical courses. In other words there are fewer Muslims, in respect of their proportion,
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appearing for such courses. Thereby fair competition generating fair results do not allow the
Muslim ration to grow rather their percentage comes to such levels where even the single
Muslim fails to occupy a seat because of the un-proportionally unequal competition. This is one
of the major logical reasons of Muslim educational backwardness. There have been a general out
cry from the Muslim minority for the proportional reservation of seats in all walks of life either
education or employment. This idea is registered by some pseudo enlightened Muslims and
political exploiters in general, who suggested Muslims to equip themselves for entering to the era
of competition and grab their rights through their skills and talents to become more self reliant.
Such things are always suggested for the Muslims but since independence there have been
reservation which continues for scheduled caste and scheduled tribes. During the last one decade
reservation given to the backward classes still give an advantage to the majority community as it
can ensure reservation to the educationally and economically backward communities,
irrespective of their caste, creed and religion. Again the minority communities especially
Muslims in India are at the most dis-advantageous position compare to the majority community,
hence backwardness and the majority community becoming more and more affluent in the socio
economic set up.
The important reason which is purely psychological in nature is the perception of Muslim that
they are being discriminated in all spheres of competitive life against their counterparts. This
psychological feeling may some times help the minority feeling which sometimes help the
minority people to excel beyond the level of their competitive counterparts but mostly minority
members get discouraged and they reluctantly come in the fray and consequently they remain at
the un important position where they can not assert or exercise their authority and skills they
have development and expansion of the nation.
The important grievances of religious minorities relate, perhaps to the operation of the state
agencies of the law and order, welfare, education and health, public services, state contracts,
credits, licenses, and the judiciary. The grievances of the minority are not confined only to these
areas; formation other than state, such as political parties, certain so called social and cultural
societies, trade associations, caste and communal bodies and others may operate to create
material dis-abilities against religious minorities giving rise to such grievances.
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The most important grievances of the Muslim community is adequate representation in various
services under the control of govt. of India. Inspite of the fact that the constitution of India
provides equal opportunities to all irrespective of any discrimination on the basis of the religion
etc. The number of Muslims recruited to various services have never been above 5% and mostly
lower around two or three percent in the govt. service. The relative number of jobs held by
Muslims in govt. and in industrial and commercial undertakings has been a bone of contention
for a long time. There is a strong feeling among Muslims that this number has been steadily
declining. Among several reasons one important factor may be also the lack of quantitative
supply of really competent candidates from the Muslim community.
Another major problem facing the minorities is the continued eruption of large scale communal
riots from time to time. Regardless of which sites starts the riot, the Muslim generally suffers
relatives lose in terms of lives lost and property destroyed and in conjunction of each other keeps
the Muslim at the gross economic loss. This was clearly evident from Gujarat communal riot
2002, in which several Muslims were victimized as a result of Godhra incident.
No special efforts have been made to fulfill the need of education and training of the major
portion of Muslim population which belongs to the lower strata of society. Modern education
neither attracts them nor serves any of their functional needs. The Indian Muslims have been
caught in a vivacious circle as lack of modernization helps in perpetuating their economic
backwardness. The Indian Muslims today find it extremely difficult to come out of economic
backwardness lack of modernization backwardness syndrome. Muslim leaders are always eager
to strike a deal with this or that ruling party has relegated the important economic problems of
Indian Muslims to the background and projects the problems of religious and cultural identity as
the key problems.
The future of our people lies in unity and integration. The minority based on religion or language
should appreciate that no body is interested in encroaching on their religious and linguistic
rights. They should not take up in agitational posture. Already laws have been made to prevent
the use of religion for political purposes, such as election.
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The minorities will earn friendship and good feeling of others if they emphasis that they are part
of the whole and as such try to strengthen the composite culture which already exist, rather than
try to develop a separate culture in the country. By selling such healthy examples the minorities
will persuade the majority also to fraternize with them.
It is duty of all to be friendly with everyone and this requires encouragement of emotional
integration. We have got too many common points on which we can base our integration which
should be emphasized and strengthened rather than any of us trying to stress separately identity
of religious and linguistic community.
It is the constitutional responsibility of govt. to see that educational culture of any community
does not suffer from handicapped of any kind. All minorities can avail themselves of the
educational facilities available equally to all citizens in the publicly financed none
denominational institutions all over the country and at the same line handsome grants –in aid are
also give to the educational institution run by different minorities as per the right in short in the
Indian constitution. There are few universities in the country which were started by the
minorities for special purpose of promoting education among the members of their communities
along with their cultural and religious identities. Apart from various religious schools and other
minority schools colleges, Aligarh Muslim University at Aligarh, Jamia Usmania University at
Hyderabad, Jamia Milia Islamia at New Delhi, Jamia, New Delhi, Gurunanak Dev University at
Amritsar are few Muslim and Sikh minority centers of learning which have been playing vital
role in the service of educational and socio economical advancements of their respective
communities.
With the growing intellectual wisdom and technological advancement , see saw battle among the
different communities will remain prevalent as it embedded in human nature itself and
consequently the problems will grow and diminish in quick succession giving rise to another
problem but all will be set at a normal pace when the people of either of the communities are
tolerant and realistic to the nature of creation of the world and making their life styles in
combating conflicting situation through maintaining "unity among diversity" which our nation
father has promised to run the nation immediately after India won freedom.
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It is not difficult to see why Muslims who live as a minority in non-Muslim countries like India
or Israel are seen by them as a problem. The reasons are relatively simple. Wherever Muslims
live as minorities they increasingly face problems of discrimination.
These are partly due to historical and political factors, partly due to the media, which have
confirmed for many that Muslims are violent, unreliable and prone to anarchy. There is another
reason. Most non-Muslim countries in which Muslims live have an image of themselves as
plural, tolerant, secular and modern societies. Muslims somehow challenge this image. They
provoke the worst aspects of the state. In the main, instead of solving the problems of the
Muslims in a manner that would be mutually beneficial, the state tends to ignore or minimize
them. In the former state of Yugoslavia the Serbs went one step further with their Muslim
minority.
They systematically killed them and drove them from their homes in Bosnia. The world called it
'ethnic cleansing' and did nothing. Bosnia was added to the list of recent Muslim losses. What
offends Muslims living in a country as the minority community? What is the Muslim 'problem'?
There are two or three things that Muslims are most sensitive about. The most important is
religion. Muslims would like to be able to visit their mosques and say their prayers peacefully
without interruption, without being beaten up, without being picked up for interrogation. They
would also like privacy in their homes where they can lead their lives as Muslims.
They would like dignity and honour for their families - in particular, for the elderly, the women
and the children. They don't like police or paramilitary forces to burst into their homes and
humiliate their families. They would like some control over their lives, some perpetuation of
their own customs and values, the construction and maintenance of mosques which are the focus
of social and cultural life, the capacity to read the Qur'an and the chance to live as Muslims and
by Muslim traditions. These include family laws, inheritance, religious holidays and religious
festivals. When these are threatened, Muslims are threatened; confusion and anger ensue.
It is not difficult for non-Muslim rulers to concede these facilities to Muslims; when they have
been conceded, Muslims have lived harmoniously. History confirms this. It is the modern state
that creates the problem. Because the modern state is so centralized and because it often lacks
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imagination in dealing with its minorities, Muslims are constantly under pressure. Merely
wishing for the minimum, Muslims are seen as people who demand separation and indeed
secession.
There is a cultural problem also for Muslims living as a minority. Non-Muslim tourists visiting
Muslim holy places cause offence by eating there and loitering, playing loud music on their
radios. Islamic culture, adab, is directly challenged. In some cases there is a direct physical
threat to these holy places, such as the demolition of Babar's mosque in Ayodhya, India. The
inevitable religious clashes cost lives. There is also the more sinister danger of actual history
being changed and Muslim culture being depicted in official textbooks as barbaric and worthless
(as has happened in Spain). A discussion of Muslims as a minority is important for several
reasons. First, the populations we are discussing are large. Indeed, Muslims who live as a
minority constitute about a quarter of the total number of Muslims.
The problem is serious because it is ongoing and does not involve only one or two countries - it
is global. A list of countries in which Muslims live as a minority includes the USA, India,
Russia, the UK, France, Germany, Israel and Singapore. In India alone there are said to be
anywhere around 110 million Muslims. No religion in the world has so many people trapped in
an alien environment as the Muslims. Neither Christians nor Jews, nor Hindus, none of the major
world religions have such large numbers in so many countries dominated by people of other
religions.
The second reason is that the sharpest and most brutal political confrontation is taking place in
these societies. We learn of the most compelling stories of injustice and brutality as Muslims
struggle for self-dignity and identity. The images that are shown on television and the reports in
the press confirm for us the plight of the Muslims.
Thirdly, because of the notion of the ummah, because of the manner of the suppression of these
groups, Muslims in neighbouring countries are deeply concerned. The struggle of the Kashmiris
in South Asia and the Palestinians in the Middle East draws in large Muslim populations outside
the national borders. The geo-political situation remains tense; indeed it can escalate to war at
any time.
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It is well to recall that the major powers in both areas have gone to war three or four times
because of these Muslim minorities. Finally, some Islamic ideas place Muslims and the non-
Muslim majority on a confrontation course. The Islamic ideas are notions of the ummah, which
transcends national borders, and the idea of jihad, struggle, the need to fight for a just and correct
order. On the other hand, these non-Muslim nations need to respond to security requirements and
geopolitical strategy. The Muslim minority is often caught in the crossfire.
There are agonizing dilemmas facing Muslims living as a minority in certain areas. In a different
time, in a previous age, Muslims persecuted by the majority could do one of two things: they
could pack up and leave, that is, exercise the right to adopt hijra, or they could fight for their
rights, that is jihad. Today, because of the power, the highly centralized security and
administrative structures and the strongly manned borders of state, neither option is really
feasible. Besides, it would be difficult to exercise the option of hijra. As recent history shows us,
migrant communities do not settle down easily and merge; they take a long time to do so. Any
influx of large numbers of refugees causes all kinds of social and political problems to the host
community, however welcoming they may have been at first.
This leaves the option of jihad. That too is difficult in our age. A small deprived minority cannot
easily take on the power of the state, but it can try. The attempt to assert independence, to fight
for one's dignity and culture, explains what is going on in Kashmir and Palestine.
Communication between the government and these groups appears to have broken down. For
Muslims the state is represented by the brute force of soldier and policeman. The women in the
area live in dread of their honour and dignity being violated; young males are in the constant fear
of being picked up for interrogation and torture at any time on any flimsy pretext.
For the elders there appears to be no real alternative but to give free rein to the youth in their
attempt to break loose and create their own response to the world, whatever the costs. It is a
dreadful choice, full of pain and disruption. But when dialogue breaks down it appears to be the
only one open for the time being.
An important aspect of these movements is their direct involvement with the geo-politics of the
region. The Kashmir movement is seen in India as entirely a creation of Pakistan. This
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perception is simplistic and disregards numerous factors: the notion of the ummah which
generates sympathy for Muslims wherever they are in trouble (although the Kashmiri cause has
great sympathy in Pakistan, so does the Palestinian one); the strong feelings of injustice in
Pakistan regarding the legality of the state of Kashmir and the manner it was incorporated into
India; the many Kashmiris who have settled in Pakistan; the failure of the central government
over the last decades to integrate these areas into the larger body of the nation. All these factors
militate against integration.
There are also certain Muslims who out of enthusiasm or ignorance or even mischief would
make demands which not only clash with the state but suggest its disintegration. These create
problems for everyone concerned. For instance Dr Kalim Siddiqui's call for a Muslim parliament
created all kinds of doubts in Britain in the early 1990s. Did Muslims want to create their own
country in Britain? Did they want independence? Were their threats of forcing an Islamic order
on to Britain to be taken seriously? Such questions obviously cause resentment and anger in the
majority. This reaction, when fed into the existing stereotypes about the minority, creates
Religious violence
Violence against the minority community is also a feature and from time to time communal
hatred is spread amongst the people. The shocking example of this case is the blatantly
communal speech of Mr. Varun Gandhi, who had openly advocated violence against the Muslim
community in his election speech delivered on 18 March 2009 in Uttar Pradesh. Mr. Varun
Gandhi had contested the election for the Member of Parliament from Bhartiya Janta Party (BJP)
and he was not even once criticized by his party for a communal speech. This exposes ideology
of BJP which, is a Hindu right party and did not leave any opportunity to exploit communal
sentiment for political gains. There were widespread riots during the Partition of India in 1947,
with attacks on Muslim minorities by Hindu and Sikh mobs in response to attacks, killing, raping
and violence of Hindus and Sikhs in Pakistan.
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In 1992, the Babri Mosque was demolished by Hindu mob on the basis of their assertion that this
was built on the birthplace of God Raam (one of the most revered avatar of Vishnu) and a temple
existed at the site before the erection of the Mosque.
The Sangh Parivar family of organisations, has allegedly been involved in encouraging negative
stereotyping of Muslims. However most of these allegations were founded on historic facts
where Muslim rulers had destroyed temples and places of religious importance to Hindus. In
recent history also, Muslim terrorists in Kashmir had forced millions of Hindus out of their own
land in their own country.
The 2002 Gujarat violence was result of the Godhra train burning, in which 58 Hindus, returning
from pilgrimage and including 25 women and 15 children, were burnt alive, after the train had
been stopped by a Muslim mob.This perceived act of extreme violence against generally peaceful
Hindus provoked mass scale riots. One of the most serious instances of violence was the Best
Bakery incident, which incident involved the gruesome killing of 14 people. According to the
official report, in total the riots led to the death of 1044 people in total (including those from the
train fire), 754 Muslims and 290 Hindus.
Condition of Christians:-
In the year of 2008, violence against Christians in state of Orissa was criticized at every level.
The violence started after killing of a Hindu priest who was targeted by Maoist but Hindu
fundamentalist organizations in Orissa linked it with Christian community. Christians are killed,
their houses were torched, and they were forced to flee from the main their villages. Many of
them survived in the rescue camps, which are mad in the forests. It was expected that
government will act strongly and will bring all the guilty to justice. Unfortunately, the quests for
justice by the victims are yet not come to an end. According to the Archbishop of Cuttack –
Bhubneswar, “we want full reconciliation and lasting peace in Khandmal, which will be possible
when justice is transparent, lives are rebuilt and people return to their own villages without fear.
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We do not want any ghettoisation in the district”. The independent reports of NGO working in
the area point out that an estimated 12, 00 families have migrated from the immediate area, many
of them to Bhubanneswar and other parts of the country and still fear from returning to their
homeland. Government of Orissa failed to restore faith inside the Christian and due to this the
people are forced to live unpalatable life outside their villages and area of inhabitant. Attacks
against Christians in Orissa, have occurred in recent years in response to missionary activity by
evangelical Christians. Missionaries have allegedly been involved in "aggressive conversion"
techniques such as spreading offensive stories about Hindu gods and goddesses, along with tricks
of miraculous curing by Christian healers as claimed by Hindu groups. They also state that these
missionaries are rich in donations from other countries and use that money to lure people into
their faith.
On August 23, 2008, Orissa once again made the news after a Hindu religious preacher was
murdered in the eastern State of Orissa. Hindus in their response resorted to large scale, mob
violence against Christians. (See: Religious violence in Orissa) Within weeks attacks against
Christians spread to the south Indian state of Karnataka, where an Evangelical outfit called The
New Light Church distributed vulgar pamphlets about Hindu gods. In several cities throughout
the State, right-wing Hindu militant mobs attacked churches and Christian-owned businesses. In
Mangalore, Christians blocked roads and marched against police stations.
Justice to the Victim of 1984 Riots:-
It is commonly known that justice delayed is justice denied. This is well being seen in the
context of giving justice to the Sikh families who suffered loss of property and life in the 1984
anti-sikh riots. According to report of government some 2, 733 people are killed during the riots
and the unofficial figure keep it as much as 4,000. In Delhi alone the some 600 cases of rioting,
arson and killing are registered. The Nanavati Commission report on the riots named several
prominent political leaders of Congress party. Cases proceeded against them but still no one is
punished. In 2009, some of the cases are opened but the trails are still pending. Human right
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groups and activist are demanding from the government to ensure the speedy trail of all the
pending cases and to bring the guilty to justice.
Condition of Other Religious Minorities and Sects:-
The incident of violence and discrimination against Schedule Caste/Schedule Tribe (SC/ST),
and against other minority sects continued in India. There are several public instances to prove
this point and it was often reported in media as how SC community was discriminated in the
distribution of relief material in the aftermath of 2004 Tsunami devastation. There are many
instances even witnessed in 2008 when SC/ST community was severely discriminated in the
access of aid. It is a matter of concern that number of death of SC/ST community in the relief
camps was far higher than among other groups.
Similarly, discrimination against other sects is general phenomenon in India as seen in the case
of police excess against transsexual in India. In November 2008, Bangalore police arrested 100
of transsexual inhabitants of the city in a drive of ‘social cleansing’ in the city. On the other
hand, violence against tribal in India is still continuing and several draconian laws are adding
further to it. Armed Forces Special Power Act is amongst those laws which provide immunity to
the armed forces, which is used in the tribal belts excesses. Last year several fake encounters of
tribal youth are exposed by Indian Media.
Problems of Religious Minorities- A Big Challenge to the Secular Democracy in
India:-
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The problems of minorities, who are relatively lesser in numerical strength than the majority
community, have been gaining too much importance in the politics of many nations in the world.
Both the developed and developing countries are also caught in the problems associated with the
minorities. In many third world nations, nowadays, racial tensions, communal violence and
ethnic clashes make headlines almost daily. For instance, the ethnic conflict between the
Buddhists and the Tamils is still going on in Sri Lanka, which has put a major obstacle in the
way of economic development of that country.
India, which is known as a peace-loving nation, is also not spared by the problems of minorities.
India is a multi-religious country and her society is pluralistic in nature from the religious and
other points of view. Since a very long time, people belonging to various religious communities
have been living together in this country. Not only major religious communities are spread all
over the country, but the people belonging to all religious communities reside in each village and
town in the country. Religious minority groups in India are chiefly the Muslims, the Christians,
the Sikhs, the Jains and the Buddhists, who have been able to preserve their group identities and
have also stayed in the mainstream of national politics.
The Muslims in India constitute the largest religious minority in the country. Though a minority
in its numerical strength, it is as big as to make it the second biggest Muslim population in the
world, next to Indonesia. The Muslims constituted 13.4 per cent of the Indian population
according to the 2001 census, and form an important segment in the social fabric of the country.
But economically, Muslims are the most backward community with the lowest employment rate.
With such backward economic status, there was hardly any incentive for a modern secular
education.
Unlike the Muslims, the Christians are the second largest and oldest religious minority in the
country. It is chiefly spread in south India, particularly in Kerala. Consistent with the social
philosophy of their religion, the Christians, in India are well represented in the social welfare
activities of the country with particular concern for the service of the unprivileged. Their role in
the sphere of health and education is well recognised. But recently, some Christian missionaries
of the country have been alleged to be involved in conversion activities that led to communal
conflicts which witnessed large scale attacks on the churches and Christians in Gujarat, Orissa
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and several other states. The very recent attacks on Christians and churches in the Kandhamal
district of Orissa shook the entire Christian community of the world.
Similarly, the early part of the 20th century witnessed the rise of numerous Sikh sectarian
organisations that emphasised the distinct Sikh identity. Sikhism is another important religion in
India which is spread in different parts of the country, especially in Punjab, Delhi, Haryana,
Bihar, etc. Claiming Punjab as their motherland, the Sikhs have developed a very strong sub-
national identity, carrying with them the vital elements of the Punjabi culture. The Sikhs are
excellent cultivators in the rural areas; they have played a very significant role in the Green
Revolution of the country. In urban areas, most of them earn their livelihood in the trade and
commerce sectors. They have always maintained a larger share in defence forces of the country.
Like the Muslims, Sikhs and Christians, other religious minorities of the country, such as the
Jains and the Buddhists have also stayed in the mainstream of Indian politics.
The Constitution of India has provided the minority groups with some safeguards. 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 of religion and everyone is guaranteed full and equal freedom of
religion. Article 30 of the Indian Constitution states that the minorities have rights to establish
and administer educational institutions of their choice. This includes the right to choose the
medium of instruction, curricula, and subject to be taught. Minorities can impart instructions to
their children in their own languages. 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 conducts research and analysis on the question of avoidance of
discrimination against the minorities.
The minority communities have to face several problems in India. The minorities are not able to
integrate properly in the Hindu-dominated society. There is apprehension among some sections
that for enlarging its base, the Christian community is involved in converting the low caste
Hindus or tribes to its own community or religion, resulting in the killing and intense conflict
between the majority Hindus and the Christian minority. This has created too much insecurity
and fear among the Christian minority in India. The minorities claim that unlike their Hindu
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counterpart, they are relatively deprived in areas like employment, politics and social facilitation.
According to them, they are poorly represented in civil services as well as in medical and
engineering colleges. The serious communal riots especially after 1960s have instilled a sense of
insecurity among the Muslims and tend to push them into their narrow communal shell. The anti-
Muslim violence in Gujarat during February-May 2002 supposedly in retaliation to the Godhra
incident has shaken not only the Indian Muslims, but all the concerned Indian citizens. During
the caste conflicts, communal violence, etc., the minority groups seek police protection. But the
government in power also finds it difficult to provide such protection for all the members of
minorities. For instance, the Modi government in Gujarat was unable to provide protection for
the Muslims after the Gujarat massacre, in which huge numbers of Muslims were killed. Again,
the then Rajiv Gandhi government at the Centre was severely criticised for its failure to provide
adequate security for the Sikh community of Delhi because of the communal riots that broke out
after the assassination of Indira Gandhi in 1984. Now, secularism began to be used merely as a
slogan of opportunism. The politicians found it easy to align a large number of multi-cultural
citizens into culturally distinct groups for the realization of their vested interests. Most of the
communal riots in the country have been the handiwork of disgruntled politicians, anti-social
elements and criminals. Demolition of the Babri Masjid in December 1992, the Mumbai riots,
and the Godhra carnage and subsequent massacres in 2002 revealed the serious weakness and
susceptibility of India’s commitments towards democracy and secularism. Thus, the condition of
religious minorities in India continues to be very complex and critical.
In order to improve the condition of the religious minorities in India, the government in power
should make every effort to restore their confidence. It is also necessary to create conditions in
which the minorities are assured that their constitutional and legal rights are safeguarded. The
government should seriously respond to the real needs and requirements of the poor and needy
minority groups. The government should seriously consider the Sachar Committee Report
without any delay and implement its recommendations. People-to-people contact, social
consciousness, abolition of illiteracy etc. may prove useful confidence-building measures. The
secular values must be internalised by the people and political parties. No political party should
be permitted to contest election by exploiting the emotions of a particular community. Efforts
should also be made to promote liberal social reforms to deal effectively with communalism and
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the influence of communalist leaders. The secular political class of India should campaign for
widening the base of education for Muslims. The religious minorities have to be empowered
educationally and economically. The progress of the country can be achieved if all the religious
communities in India live in perfect harmony.
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CHAPTER- 12 : CONCLUSION:
In a vast country like India in order to provide equality and unity among its citizens, as there is a
wide difference between the minority and the majority special rights should be endowed to
minorities so that they can develop their personality to the maximum. In accordance to this view
various articles in our constitutions and acts are being enshrined, so, that these minorities can
compete majority. Among these articles article 30(1) and National Commission for Minority
Educational Institutions Act, 2004 provides minorities to establish, administer educational
institutes and to affiliate themselves to central universities. But various lacunas are being
observed since the birth of these rights and acts. It has been observed that these articles and acts
are unable to clear various facts like - (1) is there any right to create educational institutes for
minorities and if so under which provision? (2) In order to determine the existence of a religious
or linguistic minority in relation to article 30, what is to be the unit, the State or the country as a
whole? (3) To what extent can the rights of aided private minority institutions to administer be
regulated? Still answers to these questions are illusionary and ambiguous in nature. Even
National Commission for Minority Educational Institutions Act, 2004 defines a minority institute
as “a college or institution (other than a university) established or maintained by a person or
group of persons from amongst the minorities.” Thus, just on account of the minority identity of
the management, an institute is to be accorded the minority status, irrespective of whether or not
that particular institute is serving the interests of the minority community in its entirety. It is a
well known fact that majority of the institutes established in the name of minorities are not
serving the real interests of the minorities, especially those of the socially and economically
underprivileged sections. Students are admitted on the basis of their money power and not on the
basis of their merit or minority identity. That will further fasten this process and will serve the
interests of the economic minority instead of the religious and linguistic minorities. So, in order
to make these articles and acts free from ambiguity and illusionary nature help from Court
should be taken in a view to remove this ambiguity. It is very important as development,
equality, unity of our country relies on these articles and acts.
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REFERENCES :-
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Books referred–
(1) Prof. M.P Jain, Indian Constitutional Law, Wadhwa Publisher Nagpur, 5th edition reprint
2006.
(2) Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 43rd edition 2006.
(3) P.M. Bakshi, The Constitution Law of India, Universal Law Publishing Company, 8th
edition.
(4) ^ Manabendra Nath Roy (June 1999 reprint) The Radical Humanist vol 63, no. 3, p. 29 [1]
Websites–
(1)http://www.eurac.edu/Press/Publications/Monographs/0059701.htm
(2)http://www.sabrang.com/cc/archive/2005/sep05/edu3.html
(3)http://www.hinduonnet.com/2002/12/17/stories/2002121700891000.htm
(4) http://pd.cpim.org/2004/1226/12262004_ragesh.htm
Cases referred –
(1)T.M.A.Pai foundation v. State of karnataka, (AIR 2003 SC 355)
(2) Ahemdabad St. Xaviers College v. State of Gujarat, (AIR 1974 SC 1389.)
(3) ASE Trust v. Director Education, Delhi Adm., (AIR 1976 Del 207).
(4) Azeez Basha v. Union of India, (AIR 1968 SC 662.)
(5) D.A.V College Jullundher v. State of Punjab, (AIR 1971 SC 1737)
(6) In Re The Kerala Education Bill, (AIR 1958 SC 956).
(7) Managing Board, M.T.M v. State of Bihar, (AIR 1984 SC 1757).
(8) Manager, St. Thomas U.P. Schoool Kerala v. Commr. And Secy. to General Education dept.
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(AIR 2002 SC 756.)
(9) State of Kerala v. Mother Provisional, (AIR 1970 Sc 2079.)
(10) St. Stephens College v. University of Delhi, (AIR 1992 SC 83.)
(11) T.M.A PIA Foundation v. State of Karnataka, ( AIR 1994 SC 13)
(12) Suneel Jitley v. State of Haryana
(13) State of Maharastra v. Champakam
(14) Yogendra Nath Singh v. State of uttar Pradesh
(15) A.M.Patroni v. Kesavan
(16) S.P Mittal v. Union of India
(17) Andhra Pradesh Christian Medical Association v. Government of Andhra Pradesh
(18) State of Kerala v. Mother Provincial
(19) Ahemdabad St. Stephens College v. Government of Gujarat
(20) Managing Board, M.T.M v. State of Bihar
(21)D.A.V College, Bhatinada v. State of Punjab
(22) Gateppa v. Eramma and others ( AIR 1927 Madras 228)
(23) Hirachand Gangji v. Rowji Sojpal (AIR 1939 Bombay 377)
(24) The Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt ( AIR 1954 SC 282)
(25) Commissioner of Wealth Tax, West Bengal v. Smt. Champa Kumari Singhi & Others
( AIR 1968 Calcutta 74,)
(26) Arya Samaj Education Trust, Delhi & Others v. The Director of Education, Delhi
Administration, Delhi & Others (AIR 1976 Delhi 207)
(27) A.M. Jain College v. Government of Tamil Nadu (1993) 1 MLJ 140,
(28) Bal Patil vs. Union of India, Dec 2005
(29) Committee of Management Kanya Junior High School Bal Vidya Mandir, Etah, U.P. v.
Sachiv, U.P. Basic Shiksha Parishad, Allahabad, U.P. and Ors.
(30) D.C.Wadhwa .v. State of Bihar ( AIR 1987 SC 579 )
(31) P.A. Inamdar & Otrs v. State of Maharashtra (AIR 2005 SC 3226 )
(32) Unni Krishnan J.P & Otrs v. State of Andhra Pradesh ( AIR 1993 SC 2178 )
(33) State of Madras Vs Smt. Champakam Dorairajan, ( AIR 1951 SC 226. )
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(34) Bal Patil and Anr v. Union Of India, (2005) 6 SCC 690
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