Abstract: Recognition and protection of minority rights under a legal framework has two fold objectives –firstly to prevent state from being oppressive against the minorities as in a democratic setup government is run by majority, secondly to provide the minority a protective zone whereby they can preserve their separate identity while contributing in national development and progress. This Article analyses the concept of minority and minority rights in India by giving an insight to the constituent assembly stand on minority issues with special focus on religious and linguistic minorities. It also seeks to analyze the legal status of several other vulnerable minorities not expressly recognized under the constitution.
1. INTRODUCTION
“History has shown that there can be no stable equilibrium in any country so long as an attempt is made to crush a minority or to force it to conform to the ways of majority.”
Jawaharlal Nehru[1].
The term ‘Minority’ represent a group numerically inferior to the rest of the population of a state, and in a non-dominant position whose members - being nationals of the state poses ethnic, religious or linguistic characteristics differing from those of the rest of the dominant population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religions and language.[2]’ On a close analysis of Constitution we find that minorities have been conferred several rights which can be either placed in a common or separate domain. The rights which fall in the ‘common domain’ are those which are applicable to all citizens of our country. The rights which fall in ‘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 itself declares State to be Secular which indirectly protects 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.’
Though the Constitution of India uses the term ‘Minorities’ at two places under Article 29 and 30, it does not define the word ‘Minority’ anywhere and left it for the wisdom of future generation deliberately as the country had just come over the traumatic shock of communal violence & partition, and a growing tendency was visualized where different group, sect, religion were claiming special rights under different notion of ‘minority’ concept, endangering national unity. The constitution expressly recognizes only two kinds of minorities i.e. religious and linguistic, however several special provisions for weaker sections like SC/ST, women, disables etc. suggest that it also recognizes economic, sexual, and vulnerable minorities. India represent an unparalleled diversity where six major religions- Hinduism, Islam, Sikhism, Christianity, Buddhism and Zoroastrianism; two major language families, Aryan and Dravidian, with eighteen official languages and innumerable dialects and tribal tongues; three racial strains, Aryan, Dravidian, and proto-Australoid; and over two thousand castes, hierarchically ranked, endogamous and occupational[3] are found. Thus in a pluralistic society as of ours any monolithic definition of nationalism is bound to create a situation of conflict between the majority and the minorities. Visualizing it the constitution has mooted the concept of secularism on one hand and on the other hand imposed on the state under different general and special laws, positive and negative duties to ensure the effective realization of several rights conferred to different minorities.
2. HISTORICAL DEVELOPMENT OF MINORITY RIGHTS IN INDIA
Recognition and protection of minority rights in India was hardly an issue prior to the starting of twentieth century because of the hegemony of minority over majority and ruling class minorities unwillingness to interfere within the private, personal and religious matters of either group. All people had freedom to be governed by their religious and customary laws within their private affairs. The issue became relevant during early twentieth when Britishers gradually started power sharing with the Indian natives; and minorities especially Muslims led by Jinnah suspected their protection in the hands of majority Hindus. To address such fear Britishers along with certain princely states made special provisions for minority representation in legislature and government jobs. The Separate electorate system introduced by Britishers had two fold objectives – (1) to mobilize several communities especially of minorities in India to participate in power sharing; (2) to prevent the strong nationalism growing under the single umbrella of Congress. The separate electorate system whereas criticized by congress; minorities led by Jinnah welcomed this model. Dr.B.R. Ambedkar a dalit leader also started demanding for separate electorate system for dalits an oppressed category of Hindu society. However after an assurance given by congress and Mahatma Gandhi that in independent India special provisions shall be made for economic and social minorities he relinquished his demand of separate electorate for dalits.
2.1 Constitutional Assembly Stand on Minority Rights: Nation building is a dynamic process of integrating a plurality of social groups into a common framework of identity and loyalty ill a political community. While convincing to few representatives in constituent assembly who had created a little disagreement about the need for pluralism and special provision of justice for minorities Dr. B.R. Ambedkar said:
“To diehards who have developed a kind of fanaticism against minority protection I would like to say two things. One is that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the state. The history of Europe bears ample and appalling testimony to this fact. The other is that the minorities in India have agreed to place their existence in the hands of the majority. In the history of negotiations for preventing the partition of the Ireland, Redmond said to Carson "ask for any safeguard you like for the Protestant minority but let us have a United Ireland." Carson's reply was "Damn your safeguards, we don't want to be ruled by you." No minority in India has taken this stand. They have loyally accepted the rule of the majority, which is basically a communal majority and not a political majority. It is for the majority to realize its duty not to discriminate against minorities. Whether the minorities will continue or will vanish must depend upon this habit of the majority. The moment the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish.[4]”
Similar view was also expressed by Govind Ballabh Pant[5]. With this objective the Constituent Assembly set up an Advisory Committee under the chairmanship of Sardar Patel on the subject of Fundamental Rights including rights of minorities, with the twin objectives of eliminating the chance of religion exploiting the State and vice-versa. The Advisory Committee appointed five sub-committees. One was the minorities sub-committee headed by H.C. Mukherjee a Christian leader from Bengal. Though Initially the Advisory Committee recommended, as a general rule, that seats for the different recognized minorities like Muslims, Scheduled Castes, Sikhs, Anglo Indians, Indian Christians, Parsis and tribas living in the plains of Assam should be reserved in different legislatures on the basis of their population; At a Later stage it rejected separate electorates of any kind, as in the past they had sharpened communal differences and led to the partition of the country.
2.2 The Sub-Committee Report on Minorities: - This subcommittee after thorough analysis of present future aspect of minorities and country, prepared an interim report which dealt with the question of Fundamental Rights from the point of view of minorities. The report recommended –
1. All citizens are entitled to use their mother tongue and the script thereof, and to adopt study or use any other language and script of their choice.
2. Minorities in every unit shall be adequately protected in respect of their language and culture, and no government may enact any laws or regulations that may act oppressively or prejudicially in this regard.
3. No minority, whether of religion, community or language shall be deprived of its rights or discriminated against in regard to the admission into state educational institutions, nor shall any religious instruction be compulsorily imposed upon them.
4. Notwithstanding any custom, law, decree or usage, presumption or terms of dedication, no Hindu on grounds of caste, birth or denomination shall be precluded from entering in educational institutions dedicated or intended for the use of the Hindu community or any action thereof, and
5. No disqualification shall arise on account of sex in respect of public services or professions or admission to educational institutions saves and except that this shall not prevent the establishment of separate educational institutions for boys and girls.
The Advisory Committee accepted the recommendations partially and recommended the following clause to the Constituent Assembly:
1. Minorities in every unit shall be protected in respect of their language, script and culture, and no laws or, regulations may be enacted that may operate oppressively or prejudicially in this respect.
2. No minority whether based on religion, community or language shall be discriminated against with' regard to admission into state educational institutions, nor shall any religious instruction be compulsorily imposed on such minority.
3. (a) All minorities whether based on religion, community or language shall be free in any unit to establish and administer educational institutions of their choice.
(b) The State shall not, while providing state aid to schools, discriminate against schools under the management of minorities whether based on religion, community, or language[6].
The clause was incorporated as clause 24 with some drafting changes in the Draft Constitution prepared by the Constitutional Advisor. The Drafting Committee revised the text of clause 24 twice, the most significant change being the re-drafting of sub-clause (1). The clause finally took the shape as Article 23 of the Draft Constitution. The Drafting Committee, at the revision stage divided Article 23 into two separate Articles - Article 29 and 30 as now contained in the existing constitution. However other kind of language related issues were given the constitutional rights rather than fundamental rights. Thus except for a few concessions which the Assembly admitted for the Anglo-Indian community no other religious minority could secure any political rights. The concession to Anglo-Indians, as finally incorporated in the Constitution, comprised of provisions authorizing the President to nominate not more than two members of the Anglo-Indian community to the House of the People if in his opinion that community happened to be inadequately represented (Art. 331). A similar provision was made for nomination in the State Legislative Assemblies (Art. 333). Both the provisions were to remain in force for a period "of 30~years only (Art. 334), a provision for reservation in railways, customs and postal and telegraph services for ten years, the reservations being on the same basis on which they were made before 1947 (Art. 336). A special provision for continuance of special educational grants for a period of ten years which were available to that community in l948 (Art. 337). Due to the partition of country there was a strong feeling against the communal forces and hence no attempt was made on any occasion even to define the term "minority" in precise words. The feeling was so strong that the words "certain classes" were substituted for the word "minorities" wherever it occurred in the text of the Constitution. Not only is the use of the term minority in the Constitution very rare but also no group is mentioned explicitly as a minority therein. The term 'minority' is mentioned in only two Articles, 29 and 30. Here too the use of the term is not for definitional purposes. In one of the Articles it is used only in the sub-heading of the Article and not in the text of the Article. More so Article 366 of the Constitution, which is exclusively utilized to give the meaning of words and terms used in the text of the Constitution gives meaning to 30 such expressions. But here too the term "minority" is not covered. This attitude of the founding fathers with regard to “minority” term shows that they had grown allergic to the use of the term in the Constitution[7].
3. MEANING OF MINORITY UNDER INDIAN CONSTITUTION
As earlier said the Constitution neither defines the term minority nor provides details relating to the geographical and numerical specification of this concept though it talks about the rights of “minorities” under Article 29 and 30. . However The U.N. Sub-Committee on Prevention of Discrimination and Protection of Minorities has defined minority as[8] – “A group of citizens of a State, constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim it is to achieve equality with the majority in fact and in law.” As per the existing standard of human rights minority is a group which basically possess following characteristics [9]–
(1) Its members experience discrimination, segregation, oppression, or persecution by a dominant group;
(2) It is characterized by physical or cultural, linguistic etc traits that distinguish from the dominant group;
(3) It is a self-conscious social group
(4) Membership in a minority is generally involuntary; and
(5) The members of a minority, by choice or necessity, typically marry within their own group.
In order to clear the constitutional stands about the concept of minority first attempt was made in Re Kerela Education Bill where Supreme Court held that the minority means a community, which is numerically less than 50 percent of the total population.[10] However it does not gave the exact picture of geographical extent within which the criteria of 50% is to be determined. Later on in Guru Nanak University case, while rejecting the contention of the state of Punjab that a religious or linguistic minority should be determined in relation to the entire population of India, Supreme Court ruled that a minority has to be determined in relation to the particular legislation which is sought to be implemented. If it is a state law, the minorities have to be determined in relation to state the population.[11] The court has pointed out if various sections and classes of Hindus were to be regarded as “minorities” under article 30(1), then the Hindus would be divided into numerous sections and classes and ceases to be majority any longer. The sections of one religion can not constitute religious minorities. The term “minority based on religion” should be restricted only to those religious minorities, e.g., Muslims, Christians, Jains,Buddhists, Sikhs, etc, which have kept their identity separate from majority, namely, the Hindus.[12] In TMA Pai foundation case the eleven judge’s bench of the Supreme Court confirmed the position that minority status of a community is to be decided with reference to the state population.
Further the Supreme Court has ruled in S.K. Patro v. State of Bihar, that a minority claiming privilege under article 30 should be minority in person residing in India. Foreigners not residing in India do not fall within the scope of article.30.[13]
4. EXPRESSED MINORITIES UNDER THE CONSTITUTION
If we see the provisions of the constitution it talks about only two kinds of minorities’ i. e. religious and linguistic minority. India is a land of diversity and of different religions with Hindus in majority. According to the 2001 census the religious composition of the population is as follows-
4.1 Religious Composition of the Indian Population
| Religious group | Population (%) | Growth (%) | Sex Ratio(1991-2001) | Literacy (%) | Work participation | Sex ratio(rural) | Sex ratio (urban) | Sex ratio(child) |
| Hindu | 80.46 | 20.3 | 931 | 65.1 | 40.4 | 944 | 894 | 925 |
| Muslims | 13.43 | 36 | 936 | 59.1 | 31.3 | 953 | 907 | 950 |
| Christian | 2.34 | 22.6 | 1009 | 80.3 | 39.7 | 1001 | 1026 | 964 |
| Sikh | 1.87 | 18.2 | 893 | 69.4 | 37.7 | 895 | 886 | 786 |
| Buddhist | 0.77 | 18.2 | 953 | 72.7 | 40.6 | 958 | 944 | 942 |
| Jain | 0.41 | 26 | 940 | 94.1 | 32.9 | 937 | 941 | 872 |
| Others | 0.65 | 103.1 | 992 | 47 | 48.4 | 995 | 966 | 976 |
Thus we find that except Hindus all followers of other religion are minorities for a national Act or law, however in a state enactment the Hindus might also be in minority and national minorities might be in majority e.g. in Kashmir Hindus are in minority and Muslims in majority. Similarly Christians are in majority in some eastern states whereas Hindus and Muslims are in minority.
In order to ensure the protection of religious minorities the state has been constituted under the principle of secular notion and several religious rights has been granted to the people and religious institutions under Article 25 and 26 with certain restrictions. A secular State does not mean an irreligious State, it only means that in matters of religion it is 'neutral', the State can have no religion of its own, and the State protects all religions but interferes with none. In a secular State, the State is only concerned with the relation between man and man; it is not concerned with the relation of man with God. The concept of secularism is one facet of the right to equality[14] and implies that in matters of State, religion has no place, in other words state rights and benefits do not depend upon religion. Now ‘secularism’ has been elevated to the status of basic feature of the Constitution against which no law can be enacted and any State Government which acts against that ideal can be dismissed by the President[15].
The Courts have evolved the binary categories of ‘essential practices’ and ‘secular’ activities of religious denominations over the years in order to identify the permissible domain for governmental regulation over religious activities. Likewise, individual and group behavior rooted in religious beliefs is sought to be both protected and regulated at different times by relying on the various principles embodied in Part III such as ‘equal protection before the law’, exercise of civil liberties and the rights of minorities. In most cases the judiciary played a balancing game between the competing claims of governmental action and religious liberty (of individuals or groups) by expounding on a fairly complex understanding of ‘secularism’.
4.2 Linguistic Minorities: So far as linguistic minority is considered India has more than 1650 mother tongues, belonging to five different language families. They are rationalized into 216 mother tongues, and grouped under 114 languages by the 1991 Census: Austro-Asiatic (14 languages, with a total population of 1.13%), Dravidian (17 languages, with a total population of 22.53%), Indo-European (Indo-Aryan, 19 languages, with a total population of 75.28%, and Germanic, 1 language, with a total population of 0.02%), Semito-Harmitic (1 language, with a total population of 0.01%), and Tibeto-Burman (62 languages with a total population of 0.97%)[16]. Earlier the territorialities of provinces or states were done mostly for administrative convenience ignoring the ethnic, religious, social, and linguistic aspect of the society. The Constitution of India originally listed fourteen languages Assamese, Bengali, Gujarati, Hindi, Kannada, Kashmiri, Malayalam, Marathi, Oriya, Punjabi, Sanskrit, Tamil, Telugu, and Urdu, into its Eighth Schedule in 1950. Since then, this has been expanded thrice, to include Sindhi, Konkani, Manipuri and Nepali, Bodo, Santhali, Maithili and Dogri. The Language Policy of India relating to the use of languages in administration, education, judiciary, legislature, mass communication etc. is pluralistic in its scope. It is both language development oriented and language survival oriented. The language policy is intended to encourage the citizens to use their mother tongue in certain delineated levels and domains through some gradual processes, but the stated goal of the policy is to help all languages to develop into fit vehicles of communication at their designated areas of use, irrespective of their nature or status like major, minor, or tribal languages.
The Constitution has provided a definite space for minority protection under both the domains -common as well as separate.
5. SEVERAL RIGHTS CONFERRED TO THE LINGUISTIC AND RELIGIOUS MINORITIES UNDER THE COMMON DOMAIN
Under common domain all citizens whether they belong to minority group or not are entitled to certain constitutional rights on individual ground. E.g. all fundamental rights except granted under Article 29 and 30 is available to all citizens.
5.1 Equality before Law and Equal Protection of Law: Article 14 guarantees every person ‘equality before law’ and ‘equal protection of law’. In order to ensure the better protection of this right to the minorities, state is clearly directed under prohibitory articles like Arts. 15(1), 16(1), and 29(2) to not discriminate any person from availing the benefits of constitutional rights, on ground of religion or language amongst several other grounds. Over the years the court has also continuously observed that equality provisions under the constitution means not only dejure equality but also defacto equality and hence state is under constitutional mandate to ensure that minorities who usually belong to the weaker section of society are able to realize their rights and to ensure this mandate it is entitled for making favorable affirmative discrimination. Few such enabling provisions imposing state obligation for special treatment and protection to all weaker sections under common domain are –
1. Duty to make ‘special provision for the advancement of any socially and educationally backward classes of citizens[17]’
2. Duty to make ‘provision for the reservation of appointments or posts in favour of any backward class of citizens[18].
3. Duty ‘to endeavor to eliminate inequalities in status, facilities and opportunities’ amongst individuals and groups of people residing in different areas or engaged in different vocations[19];
4. Duty ‘to promote with special care’ the educational and economic interests of ‘the weaker sections of the people’ (besides Scheduled Castes and Scheduled Tribes)[20]; and
5. Duty of citizens’ to promote harmony and the spirit of common brotherhood amongst all the people of India ‘transcending religious, linguistic and regional or sectional diversities[21].
5.2. Freedom of Religion
Religion is essentially a matter of personal faith and belief. As earlier discussed the constitutional assembly has denied any political rights to the citizens based on religion so as to avoid religion being a dividing factor; however by adopting the socio, cultural aspect of religion within private spheres of life enshrined under Article 25-28, and forming the state based on secular principles, religious minorities were sufficiently protected from state or majority intrusion in their private religious domain. Articles 25 and 26 embody the principles of religious tolerance that has been the characteristic feature of Indian civilization from the very start of human history. However Article 25 deals with the religious freedom of individual and 26 with the religious freedom of institutions.[22]
5.2.1 Individual Religious Freedom
Article 25 provides that 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”[23].
Article 25 gives four basic religious freedom to every individual –
1. firstly Freedom of conscience which connotes a person's right to entertain beliefs and doctrines concerning matters which are regarded by him to be conducive to his spiritual well being;
2. secondly “right to profess religion” which implies right to declare freely and openly one's faith and belief by practical expression in any manner one likes;
3. thirdly right to 'practice religion’ which means right to perform the prescribed religious duties, rites and rituals;
4. fourthly the right to 'propagate' which means right to spread and publicize his religious views for the edification of others. However the right to propagate one's religion does not give a right to convert another person to one's own religion, as that would impinge on the "freedom of conscience" guaranteed to all persons[24] .
In Bijoe Emmanuel v State of Kerala[25] three children belonging to the 'Jehovah's witnesses' of Christian community were expelled from school for refusing to sing National Anthem. The Kerala High Court held that it was their Fundamental Duty under the Constitution to sing the National Anthem. The Supreme Court, however, held that there is no legal obligation for a citizen to sing national anthem. The freedom of speech and expression under Art. 19(l) (a) also includes the 'freedom to keep silence’. The court said that by standing up while the anthem was being sung, the children had shown proper respect to national anthem and had thus not violated the fundamental duty under Art. 51 A[26]. The Court observed:
“Art. 25 is an Article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under Constitution. The question is not whether a particular religious belief or practice appeals to our reason or sentiment, but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Thus, held that1 no person can be compelled to sing the national anthem if he has genuine conscientious religious objection".
5.2.1.1. Restrictions on Freedom of Religion: Freedom under article 25 is not absolute; it is subject to following restrictions -
(1) In the name of religion, no act can be done against public order, morality, and health of the public[27]. For example, in the name of religion untouchability or traffic in human beings' e.g. system of devadasis cannot be tolerated. The freedom of religion is also subject to the "other provisions of this Part" e.g., right to freedom of speech and expression, freedom of assembly and association, etc.
(2) The freedom to practice extends only to those activities which are the 'essence of religion[28]'. It does not cover secular, political or commercial activities associated with religious practice[29].Thus in Acharya Jagdishwaranand Vs. Commissioner of Police, Calcutta[30] held that the 'Tandava dance' in procession or at public places by Ananda Margis carrying lethal weapons and human skulls was not an 'essential' religious rite and hence the order prohibiting such procession was not violative of the right of petitioners under Articles 25 and 26.
(3) Article 25 can’t be used to deny state from its authority to eradicate social practices (viz. bigamy and polygamy under Hindu law) and dogmas which stand in the path of the country's onward progress[31]. Such laws do not affect the essence of any religion. This sub-clause ensures an individual's legal right to enter into a temple unobstructed irrespective of his caste, untouchability, social inequality, etc.
5.2.2. Collective Freedom of Religion: Article 26 gives subject to public order, morality and health every religious denomination or any section thereof, 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.
While, right guaranteed by Art. 25 is an individual right, the right guaranteed by Art. 26 is the right of an 'organized body'. The word 'religious denomination' in Art. 26 must satisfy three conditions:
(1) It must be a collection of individual who have a system of beliefs which they regard as conducive to their spiritual well being i.e. a common faith.
(2) It must have a common organization.
(3) It must be designated by a distinctive name.
Thus, in a large sense, Hinduism, Muslims, Christians are such denominations. In limited sense, the various philosophers governing the Hindu society such as Advaitas, Saivites, etc. are also denominations. Among Mohammedans, Hanafi, Shia or Chisti sects are separate denominations. Also, maths or the spiritual fraternity (a section of abomination) represented by it comes within this Article[32]. Under Art. 26 (b), the court has a right to determine whether a particular rite or ceremony is regarded as essential by the tenets of a particular religion. The right is also subject to the regulatory powers of State under Art. 25 (2) (b)[33].
The right of a religious denomination to manage its property (Art. 26(c) & (d)) has been placed on a different footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which can't be taken away except on grounds mentioned in Art. 25, the former can be regulated by laws which the Legislature can validly impose e.g. general property law. Also, Art. 26(c) is to be read subject to State's power to acquire private property under Art. 31. Thus, property of a denomination can be acquired by State. In Rati Lai v State of Bombay[34] and Commissioner Hindu Religious Endowment v L.T.[35], held that the law must leave the right of administration of property to religious denomination itself subject to such regulation as to improve the administration.”
In S.P Mittal v Union of India[36], the Aurobindo Society and an international cultural township- Auroville were held not to be religious institutions or denomination. The teachings of Sri Aurobindo only represented his philosophy and not a religion. In Bramchqri Sidheswar Shai v State of W.B[37]. held that the followers of Ramakrishna, who are collection of individuals, and who adhere to a system of beliefs, and who've an organization of definite name "Ramakrishna Math or Mission' can be regarded as a religious denomination within Hindu religion.
In M.. Ismail Faruqui v Union of India "Ayodhya Case" the court held that the right to practice, profess and propagate religion under Art. 25 does not necessarily include the right to acquire or own or possess property. While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or integral part of such religious practices unless the place has a particular significance for that religion so as to form an essential or integral part thereof.
In ERJ Swami v State of T.N.[38] , the T.N. Hindu Religious and Charitable Endowments (Amendment) Act, 1970 was questioned on the ground that it violated Articles 25 and 26 (i.e. by purporting to introduce social reforms in the matter of appointment of Archakas and pujaris, the State has really interfered with the religious faith and practices of saivite and vaishnavite temples). In this case Supreme court observed that Archaka is not regarded as a spiritual head, but rather a 'servant' subject to the disciplinary power of the trustee. He owes his appointment to a secular authority. The purposes of the Act are essentially secular, and not intended to effect a change in the rituals and ceremonies followed in temples. Like right conferred under Article 25, Article 26 is also subject to public order, morality, and health. Article 25 and 26 is also substantiated and promoted by Article 27 and 28. Art. 27 says that no person shall be compelled to pay any taxes for expenses on promotion or maintenance of any particular religion i.e. there could be no objection if the taxes were used for the promotion of all religions. Art. 28 on the other hand prohibit religious instructions in educational institution wholly maintained by the State. In case of other institutions recognized and aided by the State, there will be freedom for every person not to participate in religious instruction or worship. This is necessary so that neither state nor religious institutes could enforce any body to go against his religious sentiments.
6. MINORITY RIGHTS AND STATE OBLIGATION UNDER SEPARATE DOMAIN
Constitution besides giving several general rights to the minorities under common domain, also provides for certain specific rights to the minorities under separate domain. The idea of giving special rights to minorities is not to have a kind of a privileged or pampered section of the population but to give them a sense of security and feeling of confidence[39]. Under the constitution such specific rights conferred to minorities includes -
· Right to conserve its distinct language, script, or culture.
· right to establish and administer educational institutions of their choice
· Sikh community’s right of ‘wearing and carrying of kirpans[40];
6.1 State Obligation under Separate Domain for Protection and Promotion of Minority Rights Under separate domain the constitution provides following positive and negative obligations on state concerning minority -
(1) To not deny 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[41]’
(3) To provide for special provisions relating to the language spoken by a section of the population of any State[43];
(4) To provide facilities for instruction in mother-tongue at primary stage[44];
6.2 Cultural and Educational rights of minorities: Article 29 and 30 deals with the cultural and educational rights of minorities. Article 29 under the heading” Protection of interests of minorities “provides that-
(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script, or culture of its own shall have the right to conserve the same.
(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.
Thus we can see that Article 29 is not confined to the religious and linguistic minorities only; it can be claimed by any group even within the religious majority if it has a distinct language, script, or culture. A minority community can effectively conserve its language, script, or culture by and through educational institutions, as what is conferred by Art. 30(1). Article 29(2) is quite general and applies to all citizens, whether they belong to majority or minority groups. Therefore, a school run by minority, if it is aided by State funds, cannot refuse admission to boys of other communities. Also, the State cannot direct such school to restrict admission to their own community. However, nothing in Article 29(2) shall prevent the State from making reservations for backward classes under Art. 15.
6.3 Right of Minorities to Establish and Administer Educational Institutions: Article 30[46] while recognizing the institutional rights of minority group provides that –“All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”
The right conferred under Article 30 is available to only two kinds of minorities that is religious and linguistic. The word "establish” indicates the right to bring into existence, while the right to "administer" means the right to effectively manage and conduct the affairs of institution. The 'right to administer’ means the right to effectively manage and conduct the affairs of institution. The right to administer is said to consist of four principal matters[47]:
(1) right to choose its managing or governing body,
(2) right to choose its teachers who have compatibility with the aims and aspirations of institution,
(3) right to admit students of their choice subject to reasonable regulations about academic qualifications, and,
(4) right to use its properties and assets for benefit of institution.
However, right to administer is not an absolute right. The right to administer is not the right to maladminister. The regulatory measures aimed at making minority institutions effective instruments for imparting education, without nullifying management's right in substantial measures, are permissible[48]. The following regulatory measures are held to be permissible:
(1) measures which regulate the educational standards, the course of study, the qualifications and appointment of teachers,
(2) the conditions of the employment of employees,
(3) safeguards which must be observed before removal of employees,
(4) The academic qualifications for admission of students, health, and hygiene of students, facilities for libraries and labs, etc[49].
A minority institution cannot prescribe qualifications for admission of students, but can prescribe procedure for admission of students. In St. Stephen's College v University of Delhi[50], Supreme Court held that the "interview" is an integral part of the college's administration. The University cannot direct the college to dispense with its admission programme in the absence of proof of maladministration of the college. Also, held that minority aided institutions may reserve up to 50% seats for their community candidates and are entitled to prefer them in admissions as it is necessary to maintain the minority character of institutions.
In St. Xavier College case[51], Supreme Court further held that minority institutions have no fundamental right to affiliation, but to deny affiliation or recognition except upon certain terms and conditions amount to the surrender of their right to administer under Art. 30(1). When a minority institution applies to a university for affiliation, it expresses its choice to participate in the system of general education. Affiliation is for regulating the educational character and content of minority institutions.
6.4 Relationship between Art 29(1)1 (2) and Art 30(1)
Articles 29 and 30 create two separate rights though it is possible that the rights might meet in a given case. However following distinctions has been found between Article 29 and 30:
· Art. 29(1) confers right on any section of citizens, thus including majority whereas Art. 30(1) confers right only on religious or linguistic minorities.
· Art. 29(1) is concerned with only three subjects i.e. language, script or culture; whereas Art. 30(1) deals with minorities based on language or religion.
· Art. 29(1) is concerned with right to conserve language, etc.whereas Art. 30(1) deals with right to administer educational institutions.
· Art. 29(1) does not deal with education as such the sole criteria to preserve the language script or culture whereas Art. 30(1) deals as such.
Thus, conservation of language, script, or culture under Art. 29(1) may be by means wholly unconnected with the educational institutions and similarly, establishment and administration of educational institutions under Art. 30(1) may be unconnected with any motive to conserve language, script or culture. In St. Stephens College case, the court observed: "It is necessary to mediate between Art.29(2) and Art. 30(1), between fetter and spirit of these Articles, between traditions of past and the convenience of the person, between society’s need for stability and its need for change."
The second clause of Article 30 prohibits the state from discriminating against minority educational institutions in giving financial aid on the grounds that they are under the management of minorities.
Besides these general safeguards, the Indian Constitution includes a section titled Special Directives in which language and education issues beyond simple protection for minorities are explicitly addressed. Article 350 guarantees the right of all people to use a language they understand in “representations for redress of grievances.” In the Seventh Amendment to the Constitution made by the Constitution Act of 1956, two articles were added addressing linguistic minority issues encouraging instruction in mother-tongue[52] and appointing a special officer for redressal of the linguistic minorities grievances through president[53]. Further several other legislations also aims to secure minority and secular rights as Chapter XV of the Indian Penal Code, 1860 contains several important sections dealing with offences relating to religion as section 295 penalizes persons defiling, destroying or damaging place of worship or object with an intention or knowledge to insult any religion. Religious hate speeches are punishable conduct under Section 295-A and 159-A whereas disturbing of religious assembly is forbidden and punishable under Section 296. Trespassing of burial places and uttering of words or making of sound or gesture with deliberate Intention of wounding religious feelings are punishable under Sections 297 and 298. Section 123 of the Representation of People Act 1951 prohibits candidates from appealing to religion in order to get elected or to prejudice another candidate's chances to get elected. Section 123(3-A) specifically prohibits prejudicing another candidate by promoting "feelings of enmity or hatred between different classes of the citizens of India on the grounds of religion." Violation of these mandates amount to corrupt acts and incur disqualification[54].
The Religious Institutions (Prevention of Misuse) Act, 1988 prohibits the use of religious institutions for purposes such as promotion of political activity, harboring of criminals .etc which causes religious disharmony. The Places of Worship (Special Provisions) Act, 1991 aims to prohibit and punish illegal takeover of place of worship of one community by another community and to retain the status quo about religious character of the place of worship with reference to 15 August 1947. It’sviolation is punishable with three years' imprisonment and fine. The Acquisition of Certain Area under Ayodhya Act, 1993 had provided for acquisition of the disputed land and other adjacent lands and vested it to the trustees or the board of management created by official notification.
7. CRITICAL EVALUATION OF RELIGIOUS AND LINGUISTIC MINORITIES IN INDIA
However increasing majoritarianism as reflected in Babri mosque demolition and several communal violences like attacks against Christians in 1998-1999(killing of approximately above 50 Christians), Delhi anti Sikh riot between October 31st to November 4th 1984, (Around 2500 people mostly Sikhs were murdered), Mumbai riot 1992-1993 (1000 Muslims were killed)[55], Gujarat riot of 2002 (790 Muslims were recorded to be killed,223 people were reported missing, 61,000 Muslims fled their homes[56],however NGOs reports it to be much more as bodies are still recovered ) and violent minoritarianism in form of terrorist attacks in Swami Narayan temple in 2002, Ayodhya temple in 2005 , killing of Kashmir pundits etc as well as rigid resistance to social reforms as seen in Sahbano Begum Case; increasing demand for several new states on account of regionalism, ethnicity, economic misbalance, under development etc are issue of greater concern today. Further it has also been found by the Sachar Committee Report that muslims have very low literacy rate (59%),less employment and economic opportunity(38 % in urban and 27% in rural area are below poverty line), less participation in government jobs[57]etc . Such vulnerability is also faced by other religious minorities. Similarly it has been found that government is more concerned to protect only 22 recognized languages because of political mileages in concerned states, while many tribal languages are either extinguished or about to be extinguished.
8. NATIONAL COMMISSION FOR MINORITY
In order to preserve the country's secular traditions, to promote national integration and to remove any feeling of inequality and discrimination amongst minorities, the Government of India constituted a Minorities' Commission in 1978 through administrative order which was later on regularized by ‘The National Commission for Minorities Act, 1992.’ The Commission discharges the following' functions under Section 9 of the Act –
(a) evaluate the progress of the development of minorities;
(b) monitor the working of the safeguards provided in the Constitution and other enactments;
(c) make recommendations to appropriate government for the effective protection of the interests of minorities;
(d) look into specific complaints regarding deprivation of rights and safeguards of the minorities and take up such matters with the appropriate authorities;
(e) cause studies into problems arising out of any discrimination against minorities and recommend measures for their removal;
(f) conduct studies and researched analysis on the issues relating to socio-economic and educational development of minorities;
(g) suggest appropriate measures in respect of any minority to be under taken by the Appropriate government;
(h) make periodical or special reports to the Central Government on any matter relating to minorities and in particular difficulties faced by them; and
(i) any other matter which may be referred to it by the Central Government
As a nation's conscience keeper, a glimpse of the voluminous annual reports submitted by the Minorities Commission reflects that it has done a great job in collection of data, sensitization, prompt interference and in giving suitable suggestions. Besides it recently in the year 2005, the Parliament has also enacted the National Commission for Minority Educational Institutions Act for providing additional safeguards to the minority educational institutions.
9. STATUS OF OTHER VULNERABLE MINORITIES UNDER INDIAN CONSTITUTION
Besides the expressed religious and linguistic minorities the constitution also recognizes several vulnerable minorities who faces structural discrimination[58] from the dominant majority in the specific area. Such vulnerable groups include Women, Scheduled Castes (SC) and Scheduled Tribes (ST), Children, Aged, Disabled, Poor migrants, People living with HIV/AIDS and Sexual Minorities.
9.1 Economic Minorities: Scheduled castes and Scheduled tribes[59] mainly constitute economic minorities in India. They are presently facing several problems because of their socio-economic conditions. The main causes for vulnerability amongst Scheduled Caste[60] are interconnected such as - economic dependency on upper castes, landlessness[61] , joblessness[62], occupational diseases[63], illiteracy[64], malnutrition, inability to access public utilities[65] etc which results in their physical, psychological, emotional, and cultural abuse .
Schedule tribe with 8% of total population forms another economic minority who usually lives in forest or on hills. They also face almost same kind of vulnerability as faced by scheduled castes. However their condition is even worse than schedule castes because they were granted neither property rights, nor compensation in lieu of development induced displacement as forest and hills are usually considered by the government as common property owned by state. The health outcomes among the Scheduled Tribes are very poor even as compared to the Scheduled Castes. The Infant Mortality Rate among Scheduled Castes is 83 per 1000 live births while it is 84.2 per 1000 per live births among the Scheduled Tribes[66].Besides the general equality and non discriminatory provisions of Article 14,15(1)&(2),17 29(2) constitution has incorporated several special provisions[67] for SC/STs directly and indirectly such as special provision for admission in educational institution[68] ; favorable reservation in jobs , employment[69] , promotion[70]; preventing social injustice and other forms of exploitation[71]; giving autonomy in governance[72];providing special grants[73]; favorable reservation of seats House of the People[74] and Legislative Assemblies of the States[75]; establishing National Commission for the Scheduled Castes and scheduled tribes[76];preparation of the list of tribals[77]; and also for state specific protection of these people[78].Besides these general provisions of constitution several enactments has also separately protect their rights the most important amongst these are -Protection Of Civil Rights Act 1995 And Forest Rights Act 2006 which penalizes untouchability and gives land rights to tribals on forest land traditionally occupied by them.
9.2 Minorities based on Age: Improved medical knowledge has enabled the significant growth of elderly people above 60 years who are now constitute a significant vulnerable minority , their vulnerability occurs due to physical disability[79], illness[80], death of spouse, increased economic dependency on dependants for access to food, clothing and healthcare[81]. Children and aged people are vulnerable because of their age. So far as children are concerned their vulnerability is associated with their gender[82], caste, poor economic condition of parents[83], lack of nutritious food[84], health care etc. Children and aged people forms the weaker section of society so besides all equality principles. Besides equality articles, Art. 15(3)(state to make special provisions for children,24(prohibition of child employment in Hazardous activities), 39(e)&(f)(tender age of children is protected and adequate nutritional demand is supplied to them), 45 and 21-A (Right to education) etc of constitution and Prohibition of Child Labour Acts 1986 as amended in 2006 deals with several aspect of children. So far as Aged people are concerned Article 41(requires state to provide social security against unemployment, old age, sickness and disablement), Art.47 (state to provide standard living condition) of constitution makes special provisions for them. They are also benefitted from section 125 Cr.P.C, Hindu Adoption, and Maintenance Act 1956, Domestic Violence Act etc. The Maintenance and Welfare of Parents and Seniors Citizens Bill, 2007 seeks to comprehensively deal with aged people.
9.3 Minority Based on Disability and Migration: There are about 21.9 million disabled populations in India which faces several kind of vulnerability depending upon the nature of disability[85]. Amongst such disability the worst kind of problems are faced by people suffering from mental disabilities. Five out of ten leading causes of disability and premature death worldwide are due to psychiatric conditions[86]. Such people faces severe forms of human rights violations as they are kept in chains, denied basic needs like food, clothing and face different forms of physical and sexual abuse. The reason for their vulnerability is unskillful nature, economic dependency on family, and lack of medical facility on part of government.[87]
Migrants also form vulnerable minority groups. International illegal migrants are abused and exploited by employers, migration agents, corrupt bureaucrats, and criminal gangs. Internal migrants[88] are employed in cultivation and plantations, brick-kilns, quarries, construction sites, fish processing, informal manufacturing, construction, services, transport sectors etc as casual labourers, head loaders, rickshaw pullers, and Hawkers which are unsuitable to health[89]. Among the migrants most vulnerable people are Internally Displaced People ethnic conflicts, religious conflicts, political reasons, development projects, natural disaster etc. Inability to adjustment in new environment many times results in cardio-vascular stress, psycho-trauma, endocrine stress, musculo-skeletal stress, ulcers etc. The Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act 1995, Mental Health Act 1987 and several various labour laws relating to payment of wages, condition of work , absolute liability of owner in certain hazardous handling activities, as well as constitutional provisions relating to weaker sections of society like Article 41(requires state to provide social security against unemployment ,old age ,sickness and disablement),Art.47(state to provide standard living condition) deals with the disables and migrants.
9.4 Women as Minority: Women form a special class of minority who has low status as compared to men in Indian society and are considered generally political minority. They have little control on the resources and on important decisions related to their lives. Women face double discrimination being members of specific caste, class, or ethnic group apart from experiencing gendered vulnerabilities which includes infanticide, sexual violence, forced abortion etc[90]. In India, early marriage and childbearing affects women’s health adversely. About 28 per cent of girls in India get married below the legal age and experience pregnancy[91]. During infancy and growing years a girl child faces different forms of violence like infanticide, neglect of nutrition needs, education, and healthcare. As adults they face violence due to unwanted pregnancies, domestic violence, sexual abuse at the workplace and sexual violence including marital rape and honor killings[92]. Constitution besides under the general articles of equality and prohibition of discrimination based on sex under Article 14,15(1)&(2), also empowers the state for making special provision for women and children[93]. It also provides for adequate means of livelihood to women[94] , equal pay for equal work to sexes[95], health facilities, and maternity reliefs to women[96], fundamental duty of citizens to renounce practices derogatory to the dignity of women[97]. Besides all these articles 243-D and 243-T brought through 73rd and 74th amendment to the Constitution on year 1992 provides for reservation of seats for women in Panchayats and municipalities respectively. Besides it there are several provisions of I.P.C. (113-A, 498-A, 312,) and section 125 of Cr.P.C. several legislations specifically deals with women protection and empowerment[98]. Now there is ongoing consensus to reserve one third of the seats in legislature for women to grant them political justice.
9.5 Sexual Minorities: Sexual minorities include people suffering from sexual diseases as HIV/AIDS as well as people who are homosexuals. India’s National AIDS Control Organization estimated in 2005 that there were 5.206 million HIV infections in India, of which 38.4 per cent occurred in women and 57 % occurred in rural areas[99]. The causes for the vulnerability of people with HIV/AIDS are its sinful perception of disease in society[100], negative response from government[101], and health professionals[102], economic conditions, divorce, physical violence, and denial from property[103]etc. Sexual Minorities as generally understood are those identified as gay, lesbian, transgender, bisexual, kothi and hijra. These people usually suffers discrimination and vulnerability due to penal provisions[104], dominance of heterosexuals in society[105], religious stigma[106], police surveillance[107], limited support from government etc. However recently in the case of Naz Foundation Vs National Capital Territory of Delhi[108], the High Court of Delhi has declared section 377 of the IPC as being unconstitutional. The Court held that to the extent Section 377 IPC criminalized consensual non-vaginal sexual acts between adults; it violated an individual's fundamental rights to equality before the law, freedom from discrimination and to life and personal liberty under Articles 14, 15 and 21 of the Constitution of India[109].
10. CONCLUSION WITH SUGGESTIONS
Despite of some ups and downs recent celebration of 64th Independence Day in accordance with the settled democratic principles itself marks that multi-religious, multi-cultural, multi-lingual, and multi-racial Indian society, has been interwoven into an innate unity by the common thread of national integration where aspirations of minorities as well as those of majorities have been successfully achieved by adopting several constitutional, legal and progressive administrative policies.
However over the years the increasing majoritarianism and minoritarianism in Indian society as reflected in several communal violences and violent separatist or autonomy movement based on religion language ethnicity has divided the nation and affected the welfare and development of the society to a greater extent. Absence of a clear concept of minority under constitution has given ample chances for the orthodox people and judiciary to narrow down its broader concept and limiting it only up to the religious and linguistic minorities while excluding several other minorities like minorities based on economic, political, sexual vulnerabilities. Further even the condition of religious and linguistic minorities has not improved despite of their expressed recognition under the constitution as clearly reflected in recent Sachar Committee report and several other reports of the minority commission. They are still vulnerable and have a very limited sharing in community development. Regarding linguistic minorities several ancient languages has either extinguished are about to be extinguished due to the lack of government patronage which is more favorable to only languages recognized under VIIth schedule of the constitution. On ground of above observation I would like to put forward following suggestions-
· Concept of minority should be broadened by specific provisions in the constitution to include sexual, aged, migrants, disabled, and other several minorities.
· Unfortunately still we have no clear concept of secularism; it should be more specifically defined as secularism has become the mother of communalism. The various communal organizations relating to any community should be banned.
· A balanced development of all communities must be ensured. Under present model of development tribals have become sacrificial lambs who though form only 8% of population are 50% victim of development induced displacement.
· The growing regional disparity must be curbed by establishing separate fund for weaker and poor states and minorities living therein.
· Several valuable suggestions of Sachar Committee recommendation must be complied so far as they are compatible with the constitution.
· Provisions should be made to ensure unbiased proper review of several laws relating to the protection of minorities.
· Election commission must be given more powers to adjudicate and provide prompt decision as to whether a speech is communal or not.
· Leaders of communal antecedent should be barred from contesting elections.
· A separate commission for promotion and protection of extinguishing languages should be established.
In nutshell government must take the concept of minority in holistic way while formulating its policies and more positive steps should be taken to protect the minority’s rights.
BIBLIOGROPHY
Books Referred
1. Majeed, Akhtar,” NATION AND MINORITIES: India's Plural Society and Its Constituents,” 2002 Kanishka Publishers, Distributors,New Delhi
2. Pandey, Rajendra,”MINORITIES IN INDIA:Protection and Welfare,” 1997,APH Publishing Corporation,New Delhi
3. Seth D.L. & Gurpeet Mahajan “MINORITIES IDENTITIES AND THE NATION - STATE”, 1999, Oxford University Press New Delhi.
4. Madhav Tonapi, Dr. Veena “A SEMINAR APPROACH TO CONSTITUTIONAL PHILOSOPHY”, Karnatka Institute for Law and Parliamentry Reform ,Banglore Publication
5. Seervai, H.M, “CONSTITUTIONAL OF INDIA”, Vol. III. Fourth Edition, Universal Law Publishing Co.
6. Jain, M.P, “INDIAN CONSTITUTIONAL LAW”, Fifth Edition 2003, Wadhwa and Co Nagpur.
7. Shukla, V.N, “CONSTITUTION OF INDIA” Tenth Edition, Eastern Book Co, Lucknow.
8. Reddy ,.O. Chinappa,” THE COURT AND THE CONSTITUTION OF INDIA: Summits and Shallows” 2008 Oxford University Press New Delhi.
9. Viswal ,Tapan ,”HUMAN RIGHTS GENDER AND ENVIRONMENT,” 2006 Viva Books Pvt. Ltd New Delhi
10. Anand, C.L,”CONSTITUTIONAL LAW AND HISTORY OF GOVERNMENT OF INDIA”, Eighth Edition, Universal Law Publishing Co. Pvt. Ltd., NewDelhi.
11. Noorani, A.G,” CONSTITUTIONAL QUESTIONS AND CITIZEN’S RIGHTS”, Oxford University Press 2006.
Articles Referred
· Chatterjee, Chandrima & Gunjan Sheron,”VULNURABLE GROUPS IN INDIA”,The Center For Enquiry Into The Health And Allied Themes(CEHAT),Mumbai.
Websites Referred
[1] This quote has been taken from a note published in Young India on 15th May, 1930. See D.L Seth and Gurpreet Mahajan ,”Minorities identity and the Nation state” Oxford university press ,p.113.
[2] Capotorti, F., Study on the Rights of Persons Belonging to Ethnic, Religious, and Linguistic Minorities, Geneva, UN Center for Human Rights, 1991, UN Doc. E/CN.4/Sub.2/384/Add.1–7.
[3] Robert L. Hardgrave, Jr. & Stanley A. Kochanek, India: Government & Politics in a Developing Nation 26 (1993).
[4]Akhtar Majeed,” NATION AND MINORITIES: India's Plural Society and Its Constituents,” Kanishka Publishers, Distributors,New Delhi 2002 ,p.63
[5] Moving the resolution for the setting up the Advisory Committee, emphasized: "A satisfactory solution of the question pertaining to minorities will ensure the health, vitality and strength of the free state of India . So far the minorities have been incited and have been influenced in a manner which has hampered the growth of cohesion and unity. But now it is necessary that a new chapter should start and we should all realize our responsibility, Unless the minorities are fully satisfied, we cannot make progress; we cannot even make peace in an undisturbed manner.” See Constituent Assembly Debates, Vol. II, New Delhi: Lok Sabha Secretariat, 1950, pp. 310-11.
[6] B. Shiva Rao, The Framing of India's Constitution: Select Documents, Delhi: IIPA, 1968.
[8] E/CN.4/Sub.2/1985/31, para 181, from U.N. Sub-Committee on Prevention of Discrimination and Protection of Minorities 1985 meeting, quoted in Iván Gyurcsík, New Legal Ramifications of the Question of National Minorities, in Ian M. Cuthbertson, Jane Leibowitz, Eds., MINORITIES: THE NEW EUROPE’S OLD ISSUE 19-50, 22 (Westview Press 1993). Online Available at
[9] Rajendra Pandey,”MINORITIES IN INDIA:Protection and Welfare,” 1997,APH Publishing Corporation,New Delhi p. 55.50
[10] Kerela education bill (in re:) , AIR 1958 SC 956.
[11] D.A.V. College v. State of Punjab, AIR1971sc1737,1742
[12] A.S.E Trust v. Director, Education, Delhi administration, AIR 1976 del 207
[13] AIR 1970 sc 259: (1969) 1 SCC 964
[14] M Ismail Faruqui v Union of India (AIR 1995 SC 605
[15] S.R. Boomai vs. Union of India JT 1994(2) SCC. The court also observed that “No political party can simultaneously be a religious party, and, politics and religion cannot be mixed.”
[16] Online available at www.elda.org/en/proj/scalla/SCALLA2004/mallikarjunv3.pdf. last accessed on 15th of May 2010.
[17] Article 15(4) of the Indian Constitution 1950 .
[18]Id. Article 16(4)
[19] Id. Article 38 (2)
[20] Id. Article 46.
[21] Id Article 51-A(e)
[22] State tolerance of religion, does not make it either a religious or a theocratic State. Santosh Kumar v Secy., Ministry of Human Resources Development, AIR 1995 SC 293
[23] Religion is a matter of faith with individuals or communities and it is not necessarily theistic. A religion has its basis in a system of beliefs or doctrines, which are regarded by those who profess that religion as conducive to their spiritual well being. A religion may not only lay down a code of ethnical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship, which are regarded as integral parts of religion and these forms and observance might extend even to matters of food and dress. Commissioner, H.R.E. Vs. L.T. Swammiar
[24] Stainlaus v State of M.P. AIR 1977 SC 908
[25] (1986) 3 SCC 615
[26] Supreme court while delivering this judgment relied heavily on the decisions of Australian and American Supreme Courts in Minersville School v Gobitis 310 U.S. 586 (1940) and West Virginia Board of Education v Barnette 319 U.S. 624 (1943).
[27] Supra no. 17, Article 25(1)(a) .
[28] State of W.B. v Ashutosh Lahiri (1995) 1 SCC 189
[29] Supra no. 17 Article 25(2).
[30] (1984) 4 SCC 522
[31] Supra no. 29.
[32] L.T. Swamiar, AIR 1954 SC 282
[33] Saifuddin Saheb v Stale of Bombay AIR 1962 SC 853
[34] AIR 1954 SC 388
[35] Supra no. 32.
[36] AIR 1983 SC 1
[37] (1995) 4 SCC 646
[38] AIR 1972 SC 1586
[39] Frank Anthony Public School Employees Association v Union of India AIR 1987 SC 311
[40] Explanation 1 of Article 25 of Indian Constitution 1950.
[41] Id Article 29(2)]
[42] IdArticle30(2
[43] Id Article 347
[44] Id Article 350 A
[45] Ibid Article 350 B.
[46] “(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language” . Id Article 30.
[47] St. Xaviers College v State of Gujarat AIR 1974 SC 1389
[48] Supra no. 39.
[49] All Saints High School v State of A.R AIR 1980 SC 1042
[50] AIR 1992 SC 1630
[51] Supra no. 47.
[52] Facilities for instruction in mother-tongue at primary stage. It shall be the endeavor of every State and of every local authority within the State to provide adequate facilities for instruction in the mother-tongue at the primary stage 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. Supra no. 17, Article 350A.
[53] Special Officer for linguistic minorities.-(1) There shall be a Special Officer for linguistic minorities to be appointed by the President.(2) It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under this Constitution and report to the President upon those matters at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned (Constitution of India). Supra no. 17, Article 350- B.
[54] Manohar Joshi v. Nitin Bhaurao Patil, (1996) 1 SCC 169
[55] More than 1000 Muslims was killed in this riot. Srikrishna Commission of Enquiry was established to identify the cause and responsibilities of the violence. The report of this committee pointed out that 31 police officials and members of Shiv Sena political party were responsible. But none of them has been tried or convicted and all of them are free.
[57] According to a white paper, prepared by All India Milli council (AIMC) and presented to Prime Minister Inder Kumar Gujral, on the performance of Indian Union during last 50 years, there were only 116 Muslims out of a total of 3883 administrative officers (2.98%), 45 out of 1433 police service officers (3.14%) and 57 out of 2159 foreign service officers (2.64%). In central government, Muslims constitute 1.6% of all class I officers, 3.9% of all class II officers, and 4.4% of the technical supervisory staff. Online available at http://www.islamawareness.net/Asia/India/imuslims.html last accessed on 8th of May 2010.
[58]Structural discrimination refers to rules, norms, generally accepted approaches and behaviors in institutions and other social structures that constitute obstacles for subordinate groups to the equal rights and opportunities possessed by dominant groups. Such discrimination may be visible or invisible, and it may be intentional or unintentional. Chandrima Chatterjee & Gunjan Sheoran,” VULNURABLE GROUPS IN INDIA”, A survey report published byThe Centre for Enquiry into Health and Allied Themes (CEHAT), Mumbai p. 8. on line available at www.cehat.org/humanrights/vulnerable.pdf last accessed on 16th of May 2010.
[59] Scheduled Tribes means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342(under this article a list of STs is prepared by president) to be Scheduled Tribes for the purposes of this Constitution . See Supra no. 17, Art.366 (25).
[60] Scheduled castes means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341(it deals with president notification of schedule list) to be Scheduled Castes for the purposes of this Constitution. Id Aricle 366 (24).
[61]In rural India schedule caste members are landless poor agricultural labourers attached to rich landowners from generations or poor casual labourers doing all kinds of available work. Supra no 58 at
[62]Joblessness is a big issue amongst schedule castes groups . Most of them are generally employed as wage labourers at several work sites, beggars, vendors, small service providers, domestic help, etc. Supra no 58 at p 12.
[63] Schedule castes people are involved in low occupations like cobbler, scavenger, sweeper and they usually live in slums or segregated settlements of village which are unhygienic and inhabitable ; As a result they suffers from several dirt and occupational diseases. See supra no 58 at p. 12.
[64].National Commission Report for SC/ST, 2000. See also 2001 census according to which The Literacy rates among Dalits are only about 24 per cent.
[65] Dalits still have meager purchasing power; poor housing conditions; lack or have low access to resources and entitlements. Supra no 58 at p 12.
[66] Study quoted in, Advancing Right to Health: The Indian Context, by Sama: Resource Group for Women and Health, New Delhi, pg.26
[67] “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.” See supra no 17 , Article 15(4).
[68] “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." See Article 15(5) of Indian Constitution as amended by The Constitution (Ninety-Third Amendment) Act, 2005.
[69] Nothing in this article shall prevent the State from making 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. Id Article 16(4).
[70] “Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services underthe State.” Id. Article 16(4-A).
[71] “The State shall promote with special care theeducational and economic interests of the weaker sections of the people, and, in particular, ofthe Scheduled Castes and the Scheduled Tribes, and shall protect them from social injusticeand all forms of exploitation.” Id. Article 46.
[72] Id. Article 244 along with schedule V & VI of Indian Constitution.
[73] Id. Article 275 .
[74] Id.Article 330 .
[75] Id Article 332.
[76]Id. Article 338 & 338-A.
[77] Id. Article 342.
[78] Id. Article 371A-G.
[79] Visual impairment, mental illness, hearing & locomotor problem and also problems in speech are common forms of disability among elderly. National Sample Survey Organisation (1998), Report on Morbidity and Treatment of Ailments, NSS-52ndRound, Report No 441, Government of India.
[80] Ageing is often accompanied by multiple illnesses and physical ailments. Pain in the joints, followed by cough and blood pressure, piles, heart diseases, urinary problems, diabetics and cancer are the common ailments reported among elderly. National Sample Survey Organisation (1991), ‘Socio-Economic Profile of The Aged Persons: 42nd Round (July 1986-June 1987), Sarvekshana, 15(2), New Delhi..
[81] About 29 per cent of the elderly populations in India are reported to have received no medical attention before death. Supra no. 58 at p. 17.
[82] Child faces discrimination and differential access to nutritious food and gender based violence is itself evident from the falling sex ratio and the use of technologies to eliminate the girl child. Supra no 58 at p 15.
[83] Poor economic condition of parents often forces the children for child labour. According to the 2001 census 12.6 million children are engaged in hazardous occupations in India. Supra no 58 at p 15.
[84] Malnutrition and chronic hunger are the important causes of death among children from poor families. Diarrhoea, acute respiratory diseases, malaria and measles are some of the main causes of death among children, most of which are either preventable or treatable with low-cost interventions. Supra no 58 at p. 14.
[85] Supra no 58 at p. 18.
[86] World Health Organization , 2002.
[87] There are 42 mental hospitals in the country with bed availability of 20,893 in the government sector and another 5096 in the private sector hospital settings to take care of an estimated 1,02,70,165 people with severe mental illness and 5,12,51,625 people with common mental disorders. Psychiatric medicines are supplied only in a few primary health centers, community centers and district hospitals. Services like child guidance and rehabilitative services are also available only in mental hospitals and in big cities. Several states do not have mental hospitals (Mental Health in India-An Overview, 2007). Supra no 58 at p. 18.
[88] The National Commission on Rural Labour (NCRL) estimates the number of internal labour migrants in rural areas in India alone at around 10 million (including roughly 4.5 million inter-state migrants and 6 million intra-state migrants in 1999-2001). The 2001 Census, has recorded about 53.3 million rural to rural migration within the country.
[89] Allotey Pascale (2003), “Is Health a Fundamental Right for Migrants”, Guest Editorial Column in the journal Development, Vol 46, No 3, September. See also Supra no 58 at p. 20.
[90] Supra no 58 at p. 10.
[91] Id. See also Reproductive And Child Health – District level Household Survey conducted by CEHAT during 2002-04, August 2006).
[92] Id. at p. 11.
[93] Supra no 17, Article 15(3).
[94] Id. Article 39 clause (a) says “that the citizens, men and women equally, have the right to an adequate means of livelihood”.
[96] Id. Article 39(c) and 42.
[98] Examples of such legislations are - The Dowry Prohibition Act, 1961, The Maternity Benefit Act, 1961, Immoral Traffic Prevention Act, Indecent Representation of Women (Prohibition) Act, 1986 and other several labour laws.
[99] People think that HIV/AIDS are normally prevalent amongst people who have cheated their spouse. In addition to stigma based on morality & religion, Poor and illiterate people also think it as communicable disease. Supra no 58 at p. 22. Stigma is different than discrimination. It is more about attitude than practice. Discrimination is more overt than stigma. But stigma and discrimination are linked to each other as stigma permits or promote discrimination. NACO HIV/AIDS epidemiological Surveillance & Estimation report for the year
2005, on line available at http://www.nacoonline.org/fnlapil06rprt.pdf last accessed on 17th of May 2010.
[100]Since April 1, 2004,anti-retroviral treatment is provided free of cost in India, at government hospitals in the six high prevalence states of Tamil Nadu, Andhra Pradesh, Maharashtra, Karnakata, Manipur, and Nagaland. However, of the estimated 5.1 million people living with HIV/AIDS in 2005, 600,000 people needed antiretroviral therapy, but only 7,000 adults were receiving such treatment through the government programme. Besides anti-retroviral drugs there is shortage of several other drugs in the public facilities which are needed by persons living with HIV/AIDS. Ibid at p. 23.
[101] India’s National AIDS Control Organization (NACO) estimated in 2005 that there were 5.206 million HIV infections. Id. At p. 23.
[102] Negative attitudes from health professionals generate anxiety and fear among people living with HIV/AIDS, and as a result many do not reveal or seek treatment for their HIV status.
[103] Women whose husbands have died of AIDS are rejected by their own and their husband’s families and they are denied from property inheritance of their husbands.
[104] Under Section 377 of Indian Penal Code 1869 any sex against the order of nature is punishable with fine and imprisonment which may extend to 10 yrs.
[105] Due to the dominance of heteronomous sexual relations as the only form of normal acceptable relations within the society, individuals who are identified as having same-sex sexual preferences are ridiculed and ostracized by their own family and community upon whom they depend. Supra no. 58 at p. 24 .
[106] The basic philosophy enshrined under every religion behind sexual relation is the procreation of children and continuation of society which comes under threat by recognizing gay and sexual relations, hence such relations are considered as sin.
[107] Due to section 377 of Indian Penal Code 1869 often sexual minorities are surveillance and harassed by police .
[108] Delhi High Court strikes down Section 377 of Indian Penal Code 1869 . See The Hindu Front Page; Friday, July 03, 2009.
[109] The High Court did not strike down Section 377 completely – it held the section was valid to the extent it related to non-consensual non-vaginal intercourse or to intercourse with minors – and it expressed the hope that Parliament would soon legislatively address the issue. However this case is still pending before Supreme Court and hence is valid only in Delhi.
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