DR.

RAM MANOHAR LOHIA NATIONAL LAW

UNIVERSITY

2017-2022

CONSTITUTIONAL LAW

CRITICALLY EXAMINE THE RIGHTS AVAILABLE

TO MINORITIES UNDER CONTITUTION OF INDIA

SUBMITTED TO - SUBMITTED BY-

DR. ATUL KUMAR TIWARI SAMARTH PRATAP SINGH

ASSOCIATE PROFESSOR (LAW) ROLL NO: 170101114

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 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to Dr. Atul Kumar Tiwari for his guidance and constant supervision as
well as for providing necessary information regarding the project & for his support in
completing the project.

I would like to express my gratitude towards my parents and members of Madhu Limaye
Library for their kind co-operation and encouragement, which helped me in completion of
this project.

My thanks and appreciations go to my colleague in developing the project and people who
have willingly helped me out with their abilities.

I welcome any criticism and suggestions by the people who go through it, for the
improvement of my future projects.

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 TABLE OF CONTENTS

Introduction …………………………………………………………………..……………….4

Concept Of Minority..................................................................................................................5

Constitutional Provisions Relating To Minority Rights……………………………………….7

Exclusive Rights Of Minorities………………………………………………………………..9

Consensual Safeguards For Linguistic Minorities…………………………………………...11

National Commissioner Of Linguistic Minorities……………………………………………11

Conclusion……………………………………………………………………………………12

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 INTRODUCTION

“The promotion and protection of the rights of persons belonging to national or ethnic
religious and linguistic minorities contribute to the political and social stability of States in
which they live”[1]

India is a country where people of diverse religion stay together. Religious diversity and
religious tolerance are both established in country by law and custom. A vast majority of
Indian associates themselves with a religion. According to 2011 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 in India.

India's ethnic, linguistic, and regional complexity sets it apart from other nations. To gain
even a superficial understanding of the relationships governing the huge number of ethnic,
linguistic, and regional groups, the country should be visualized not as a nation-state but as
the seat of a major world civilization on the scale of Europe. The population is not only
immense but also has been highly varied throughout recorded history; its systems of values
have always encouraged diversity. The linguistic requirements of numerous former empires,
an independent nation, and modern communication are superimposed on a heterogeneous
sociocultural base [2].

Louis Wirth, who pioneered the study of Minority problems and offered a definition and
classification, defines a Minority as, “A group of people who, because of physical or cultural
characteristics, are singled out from the others in the society in which they live for differential
and unequal treatment and who therefore regards themselves as objects of collective
discrimination. Moreover, minority status carries with it an exclusion from full participation
in the life of the society [3] .

1. Preamble of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious
and Linguistic Minorities
2. Library of Congress, 1995
3. Laponce J. A. The protection of minorities, University of California publication in Political Science Volume 1960
Pg 5

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 CONCEPT OF MINORITY

0.8% 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.

The first initial afford was in In Re Education bill by 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

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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 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 and Parsis 0.007%.

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CONSTITUTIONAL PROVISIONS RELATING TO
MINORITY RIGHTS

It is praiseworthy that our Constitution of India has afforded protection to the minorities in
the country. The framers of the Constitution were quite conscious of the importance of these
provisions. They very well understood that, in pluralistic society rights of minorities and
weaker sections need to be safeguarded. The idea of giving some specіal rіght to the
mіnorіtіes is not to treat them as privileged section of the population but to gіve to the
mіnorіtіes a sense of securіty[4]. Specіal rіghts for mіnorіtіes were desіgned not to create
іnequalіtіes but to brіng about equalіty by ensuring the preservatіon of the mіnorіty
іnstіtutіons and by guaranteeing autonomy іn the matter of admіnіstratіon of these
іnstіtutіons.

If fundamental rights are infringed the remedy lies under Articles 32 and 226. A person can
directly approach the Supreme Court or the High Court in case of violation of fundamental
rights. So the true spirit and intention of the Constitution is to provide a very formal and
water tight arrangement for safeguarding the interest of minorities [5].

According to Article 14 of the Constitution, all persons shall be equally subjected to the law
and that among equals; law shall be equal and shall be equally administered. Thus minorities
cannot be put to any legal disability vis-a-vis the majority. Articles 15 and 16 prohibit
discrimination only on certain grounds. Both these Articles are guarantee against
discrimination of any kind and it can be asserted that no member of a minority community
will be handicapped simply because he belongs to any particular minority group[6].

There are some Articles in the Constitution of India that exclusively safeguards minority’s
rights, whereas, there are certain Articles though not specifically meant for minorities but
they strengthen minorities’ rights. Hereunder the safeguards of minority rights are discussed.

4. Bakshi P. M., The Constitutional Law of India, Universal Law Publishing Company, 8th edition. Delhi, 2001,
p. 58.
5. Desai, M., Minority Educational Institutions and Law, Akshar Prakashan, Mumbai. 1996, p. 41.
6. Massey James, Minorities in a democracy: the Indian experience, Manohar Publishers & Distributors, New Delhi,
1999, p. 77.

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Article 15: Prohibition of discrimination on the grounds of religion, race, caste, sex or place
of birth.

Article 16: Equality of opportunity in matters of public employment.

Article 21: Protection of life and personal liberty: No person shall be deprіved of hіs lіfe or
personal lіberty except accordіng to procedure establіshed by law.

Article 25: Freedom of conscience and free profession, practice and propagation of religion.

Article 26: Freedom to manage religious affairs.

Article 27: Freedom as to payment of taxes for promotion of any particular religion.

Article 28: Freedom as to attendance at religious instruction or religious worship in certain

educational institutions.

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 EXCLUSIVE RIGHTS OF MINORITIES

India is the largest democracy of the world with secular character and is governed by the
constitution. The founding fathers of the Indian Constitution, in order to give a sense of
security and confidence to the minorities, have conferred certain rights to minorities[7].
Minorities in India do not stand on equal footing with others, which made the framers of the
Constitution, through Article 29 and Article 30, accord special rights to the people who form
religious or linguistic minority in India.

Article 29: Protection of interests of minorities.-

1. Any sectіon of the cіtіzens resіdіng іn the terrіtory of Indіa or any part thereof havіng
a dіstіnct language, scrіpt or culture of іts own shall have the rіght to conserve the
same.
2. No citizen shall be denіed admіssіon іnto any educatіonal іnstіtutіon maіntaіned by
the State or receіvіng aіd out of State funds on grounds only of relіgіon, race, caste,
language or any of them.

Article 30: Right of minorities to establish and administer educational institutions.-

1. All mіnorіtіes, whether based on relіgіon or language, shall have the rіght to establіsh
and admіnіster educatіonal іnstіtutіons of theіr choіce.

[(1A) In making any law providing for the compulsory acquisition of any property of
any educational institution established and administered by a minority, referred to in
clause (1), the State shall ensure that the amount fixed by or determined under such
law for the acquisition of such property is such as would not restrict or abrogate the
right guaranteed under that clause.][8]

2. The State shall not, іn grantіng aіd to educatіonal іnstіtutіons, dіscrіmіnate agaіnst any
educatіonal іnstіtutіon on the ground that іt іs under the management of a mіnorіty,
whether based on relіgіon or language.

7. Imam Mohammed, Minorities and Law, The Indian Law Institute, New Delhi and N. M. Tripathi Private Limited,
Mumbai, First Edition, 1972, p. 62.
8. Inserted by the Constitution (Forty Fourth) Amendment Act, 1978.

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From the careful perusal of the above two Articles, it is found that the expression minorities
has been used at four places in the Constitution of India.[9] It has been used in the head note
of Article 29 and 30 and in sub clause (1) and (2) of Article 30. Minorities in Article 30 has
been used in two senses, one based on religion and other based on language.

Relation between Articles 29 and 30 :

Articles 29 and 30 of the Constitution are grouped under the heading "Cultural and
Educational rights". These both Articles protect and guarantee certain collective rights for the
minorities to help them to preserve their language, religion and culture. These rights also
contribute to preserve the rich diversity of the country and give minority a sense of security.
Together, they confer four distinct rights on minorities. These include the right of:

1. any sectіon of cіtіzens to conserve іts own language, scrіpt or culture.

2. all religious and linguistic minorities to establіsh and admіnіster educatіonal
іnstіtutіons of theіr choіce.
3. an educational institution against discrimination by State in the matter of State aid on
the ground that it is under the management of religious or linguistic minority
4. the citizen against denial of admission to any State-maintained or State-aided
educational institution.

In D.A.V. College Jullunder v State of Punjab case[10], it was held that where a legal
provision required the Guru Nanak University to promote studies and research in Punjabi
language and literature, and to undertake measures for the development of Punjabi language,
literature and culture, did not infringe Article 29(1). The Supreme Court had emphasized that
the purpose and object of the linguistic States, which has come to stay in India, is to provide
greater facility for the development of the people of the area educationally, socially and
culturally in the regional language. The concerned State or the University has every right to
provide for the education of the majority in the regional medium.

9. Goyal K.N., “Majorities Right to Establish and Administer Educational Institution”, Journal of Indian Law
Institute, Volume 38, Number 3, July – September 1996, p. 283.
10. AIR 1971 SC 1737.

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CONSENSUAL SAFEGUARDS FOR LINGUISTIC
MINORITIES

In addition to Constitutional safeguards of Article 29 and 30 mentioned earlier, following the

reorganization of the states on the linguistic basis, there emerged some safeguards on
consensual basis for linguistic minorities. These have been agreed to by the Central and the
State Governments through series of meetings of Chief Ministers of all the states.

1. Instruction through minority languages at the Secondary stage of education.

2. Translation and publication of important rules, regulations, notices, etc., into all
languages, which are spoken by at least 15% of the total population at district or sub-
district level.
3. No insistence upon knowledge of State’s Official Language at the time of recruitment.
Test of proficiency in the State’s Official Language to be held before completion of
probation.

NATIONAL COMMISSIONER OF LINGUISTIC

MINORITIES

We have National Commissioner for Linguistic Minorities, an organisation to monitor and

implementation of Constitutional and Consensual safeguards for linguistic minorities.
Safeguards provided to the linguistic minorities are of two kinds:

1. Those provided by the Constitution.

2. Those arrived at by the consensus by Central and State Governments through series of
meetings.

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 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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