Constitutional Provisions for Minorities
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Author : Arshad Shaikh
Arshad Shaikh examines various provisions in our Constitution that exist for guarding the rights of minorities in India. However, the challenge lies in their effective implementation that is a function of both an alert citizenry and just governance.
This article has been republished with permission from
Radiance Viewsweekly..
Dr.N.C.Asthana IPS Retd Former DGP has recently come out with a book titled – “State Persecution of Minorities and Underprivileged in India”. Summarizing his book in an article for ‘The Force’ magazine, Asthana says: “Minorities in today’s India have a lot to despair of and much more to be afraid of as they face the ‘double whammy’ – the combined might of the ‘hostile’ majority and the State using every trick in the book to debase them, to humiliate them, to injure their dignity and self-respect so much that they accept their existence as ‘vanquished people’, if not sub-humans, the Untermensch of the Nazis – surviving at the mercy of the majority in a land they are ‘historically’ not entitled to stand on.” These are strong words coming from a police officer who reached the highest rank in his professional career that spanned several decades and who was privy to both the official and inner working of the state machinery. But, how were the minorities in India (read Muslims) regulated to this position of debasement and humiliation? Does the Constitution of India not protect its minorities? Did not the framers of our Constitution foresee such an eventuality and insert provisions in the Constitution to protect its minorities and safeguard their rights. Let us examine some provisions and analyze the steps required to ensure that these Constitutional Provisions for Minorities are implemented in letter and spirit.

Who are minorities?

Typically, minority implies a group that is less than half the population that has a different religion, ethnicity, language, culture or even political persuasion from the majority group. Adopted by consensus in 1992, the United Nations Minorities Declaration in its article 1 refers to minorities as based on national or ethnic, cultural, religious and linguistic identity, and provides that States should protect their existence. As far as religious minorities in India are concerned, those who profess a religion other than the Hindu religion are considered minorities. According to the 2011 Census, 79.8% of the population of India practices Hinduism, 14.2% adheres to Islam, 2.3% adheres to Christianity, 1.72% adheres to Sikhism, 0.7% adheres to Buddhism, and 0.37% adheres to Jainism. Some say that the Constitution of India does not define the word minority anywhere and it is only used in its plural form in certain sections like 29, 30 and 350A and 350B. However, this does not dilute in any way the protection it offers to the minorities by way of various Constitutional Provisions and guarantees.

Some important provisions for minorities

Part III – Fundamental Rights – Right to Equality, Article 15(1) says, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. Article 15(2) states: “No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to..” Article 16(2) states that: “No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State”. Continuing under Part III – Fundamental Rights – Right to Freedom of Religion, Article 25(1) says: “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”. Article 26 states: “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right – (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law”. Articles 28(1) states: “No religious instruction shall be provided in any educational institution wholly maintained out of State funds”. However, immediately 28(2) clarifies that: “Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution”. There are three important provisions pertaining to the Cultural and Educational Rights of Minorities. These are: “29. (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. 30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. 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”.

The lag

Notwithstanding such powerful provisos in our Constitution, the first comprehensive survey carried out by the government of India to assess the status of the Muslim community in India in 2005, namely the Sachar Committee Report gave a very damning report about how the Muslim community of India lagged behind others in the socio, economic and educational indices. It helped bust the myth of minority-appeasement in India. The Amitabh Kundu Report, which was a Post Sachar Evaluation Committee, concluded that Muslims continue to lag in both government jobs and the urbanization wave. The most devastating setback for Muslims in India has been the string of communal riots or anti-Muslim violence, which more often than not ended in the Muslims enduring the most of these incessant communal conflagrations. Some riots were actually pogroms aimed at the annihilation of Muslims in a particular locality/area with a larger aim at forcing them to move away from their homes and villages to other places. Names like Meerut- Maliana, Moradabad, Bhopal Gas Tragedy, Bombay riots, Gujarat riots, Babri Masjid have become permanent scars on the collective psyche of Indian Muslims. The recent North East Delhi riots showed that the menace of anti-Muslim violence still exists. Attempts by the government to implement the NRC in Assam and proclamations to roll it out on a pan-India basis made the Muslims insecure fearing the worst and suspecting it to be the first step towards initiating large-scale genocide against Muslims and making them second-class citizens permanently.

Being pro-active

The MHA established the National Minorities Commission of India in 1978. It was stated that: “Despite the safeguards provided in the Constitution and the laws in force, there persists among the minorities a feeling of inequality and discrimination…the Government of India.. is of the firm view that effective institutional arrangements are urgently required for the enforcement and implementation of all the safeguards provided for the minorities in the Constitution, in the Central and State Laws and in the government policies and administrative schemes enunciated from time to time”. Thus, it is apparent that at the institutional level, there is a lot for the welfare and safeguarding of the rights of minorities. The challenge lies in translating these safeguards and commitments both in letter and spirit in demonstrable outcomes that will lead to quantitative changes in the socio-economic and education indices of Muslims. For this Muslim leadership will have to take the lead and first educate the community on how to claim their legitimate rights in a peaceful and democratic manner. Forming a team of activists backed a large group of community volunteers to work for the community are the essentials. The road is long and arduous But that is the only way.

Constitutional Provisions for Minorities

  • Government reports with empirical data shows that Muslims lag on all socio-economic-education indices in India
  • Muslims in India do not feel secure, going by the history of communal riots and attempts by the government to discriminate on religious grounds.
  • The challenge lies in ensuring that all the mechanisms of governance must be used to ensure that these provisions do not remain only on paper but they are implemented in letter and spirit.
  • The first step is to create awareness regarding them on a massive scale and then create an entire class of informed citizenry who actively pursue the rights of minorities.

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