The debate on minority rights should be lifted from its current framework of communalism versus secularism and placed in the theoretical field of democracy and substantive equality. Recognising the importance of minority rights, the UN General Assembly adopted a declaration on the ‘Rights of Persons Belonging to National, or Ethnic, Religious and Linguistic Minorities’ on December 18, 1992. This date is celebrated as Minority Rights Day all over the world. Minority rights are essential in a democratic polity because as Franklin Roosevelt reminds us “no democracy can long survive which does not accept as fundamental to its very existence the recognition of the rights of minorities”.
Origin of minority rights
Article 19 of the Austrian Constitutional Law (1867) acknowledged that ethnic minorities have an absolute right to maintain and develop their nationality and languages. Similar provisions were found in Hungary’s Act XLIV of 1868, and in the Constitution of the Swiss Confederation of 1874, which granted the three languages of the country equal rights in civil services, legislation and in courts. The provisions of the peace treaties after the First World War, focused particularly on the status of minorities. Minority protections were codified in the five treaties negotiated between the allied and associated powers on the one hand, and Poland, Czechoslovakia, Romania, Greece and Yugoslavia on the other. Special provisions for minorities were incorporated in the peace treaties with Austria, Bulgaria, Hungary and Turkey, while Albania, Finland and Iraq declared that they would protect their minorities. Article 27 of the Universal Declaration of Human Rights gives every individual a right to community — that is the right to enjoy their own culture and to participate in cultural forums, associations etc.
Debate in the Constituent Assembly
The framers of the Constitution showed profound sensitivity to the needs of minorities. Pandit G.B. Pant, moving the resolution to set up an Advisory Committee on Fundamental Rights and the Rights of Minorities, explicitly stated that the “satisfactory solution of questions pertaining to minorities will ensure the health, vitality and strength of the free State of India… now it is necessary that a new chapter should start and we should all realise our responsibility. Unless the minorities are fully satisfied, we cannot make progress; we cannot even maintain peace in an undisturbed manner.” The committee headed by Sardar Vallabhbhai Patel examined the issue of minority rights and accordingly Articles 25 to 30 were enacted in our Constitution. The underlying argument in these Articles is that individualistic universal rights are not of much use in a heterogeneous country such as India, and that one needs to have discussions on the basis of multiculturalism, difference, and the rights of minorities that mark contemporary political theory.
Rationale behind minority rights
The preservation of diversity is the rationale behind minority rights in the Indian Constitution. In fact, individualistic rights under Articles 14-18 (equality), 19 (free speech) and 25 (freedom of religion) are not enough for the conservation of language, script or culture which comes under Article 29. One may not be individually unjustly treated but it hurts if the group to which one belongs is subjected to ridicule or denied any value. This also undermines an individual’s right to dignity. An individual’s right to culture holds little meaning or significance, unless the community of which a person is a member of, or is identified with, is accorded the right to exist in a viable form. It requires not only the presence of a group that shares a common culture but a conducive environment in which such cultures can flourish. Thus, under Article 30 both religious and linguistic minorities are allowed to establish and administer institutions of their choice so that such a space is created in these institutions.
Recently, a seven judge Bench in Aligarh Muslim University (2024) in unequivocal terms described Article 30 as a ‘facet of equality and non-discrimination’. A nine judge Bench in St. Xavier’s College Society (1974) too had observed that “the whole object of conferring the right on 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.” In Keshavananda Bharati (1973), rights under Article 30 were held to be part of the basic structure which even Parliament cannot change through a constitutional amendment.
What are minority rights?
Interestingly, though the term ‘minority’ has been used in four places in the Constitution no definition of the term ‘minority’ has been given. The Supreme Court has consistently held that minorities are to be defined at the level of the State. Since Hindus are a religious minority in Punjab, Kashmir and in the northeastern States, they too are entitled to minority rights. There are hundreds of Hindu minority institutions in India.
Article 29(1) lays down that ‘any section of the citizens residing in the territory of India or any part thereof having a distinct language script or culture of its own shall have the right to conserve the same’. This provision signifies two vital dimensions. First, it concedes that different groups do have different cultures and that all people may not have just one culture. Since these linguistic and religious cultures are valuable for their members, they need to be given explicit rights to conserve their own culture especially since such minority cultures can face disadvantages in a majoritarian society. Secondly, the right to culture is an individualistic right, that is, individuals have been given the right to preserve their distinctive culture.
Article 30 guarantees that all religious and linguistic minorities shall have the right to establish and administer educational institutions of ‘their choice’. In the re Kerala Education Bill (1957), the Supreme Court said that the dominant word in Article 30 is ‘choice’ and minorities can expand their choice as much as they want. The court also said that the term ‘educational institution’ includes universities. The courts have also been consistent in extending protection under Article 30 to pre-Constitution institutions in cases like S.K. Patro (1969), St. Stephens (1992) and Azeez Basha (1967). In the latest judgment of Aligarh Muslim University (2024), the majority has held that even an institution of national importance can claim minority character.
Additionally, Article 350 A provides for instruction in the primary stages of education in the mother tongue, and Article 350 B for the appointment of a special officer for linguistic minorities. Their religion based personal laws have also been constitutionally protected, for example, the customary law of Nagas. There is no religious qualification attached to the holding of high constitutional positions. There is also a National Commission for Minorities and a National Commission For Minority Educational Institutions to deal with the problems of minorities.
Defining a minority
The 11 judge Bench in the TMA Pai Foundation (2002) case had left unanswered the question of the indicia of minority institutions. Former Chief Justice Dr D.Y. Chandrachud in a historic judgment in the Aligarh Muslim University (2024) case has now laid down the indicia.
Interestingly, on the issue of indicia there was broad agreement amongst the seven judges. They all preferred holistic, broad and flexible yardsticks such as ideation — looking at the genesis or ideation or brain behind the idea. Moreover, the person taking the initiative must belong to the minority community. His intent must be to found an institution ‘predominantly for the minority community’ and other factors to be considered would be the collection of funds, getting land, construction of buildings and governmental approvals. It is not necessary that the administration must be vested within the minorities themselves. Right to administer is the consequence of establishment.
Though there is no right to get governmental aid, Article 30(2) explicitly says that the State cannot discriminate against a minority institution while granting aid. In the re Kerala Education Bill (1957) case, Chief Justice S.R. Das held that the State cannot impose such ‘onerous’ conditions either in granting aid or in giving affiliation to minority institutions that require surrendering the minority character of their institutions.
Furthermore, the Supreme Court has consistently maintained that minorities have no right to maladminister their institutions, and that the government can come up with reasonable regulations to insist on proper safeguards against maladministration, to maintain fair standards of teaching, and to ensure “excellence of the institutions.” In St. Xaviers (1974), the top court explicitly observed that “under the guise of exclusive right of management, minorities cannot decline to follow the general pattern. In fact, they may be compelled to keep in step with others.”
Faizan Mustafa is a constitutional law expert and Vice-Chancellor of Chanakya National Law University, Patna.
Published – December 18, 2024 08:30 am IST
