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This Article “A Critical Analysis of Minorities Human Rights in India” is written by Tshewang Dema, a fifth-year BALLB student at the School of Law, LPU.


ABSTRACT

“The majority is always wrong; the minority is rarely right”.

~ Henrik Ibsen

Human rights can be defined as the minimum equal and inalienable rights compulsorily obtainable by every human for being a member of global human community regardless of gender, ethnicity, language, race, religion, nationality or any other ground. The Constitution of India also recognizes these rights in form of various fundamental rights and guarantees equal rights to both men and women without any discrimination yet the actual condition of the minority’s human rights in India cannot be said satisfactory.

There exists a huge gap between de facto and de jure condition due to the present structure of Indian society and practices prevalent in it. The concept of majority rule and respect for minority rights is demonstrated in several constitutions of the world. Oppression by the majority of the minority is barred by articles of these respective constitutions. Today, democracy is mostly a method of government of the people that is ruled by the people. The issue of minority rights is at the center of the concept of civic rights. Minority protection, thus, operates on the hypothesis that religious, cultural, and linguistic affiliations are essential features of the very notion of a civic, just society.

Among those groups that have missed the opportunities of sharing the benefits of growth, religious minorities are a prominent group. The minorities in India are concerned about their distinct identities such as their religious symbols, cultural mores, prayer halls, burial grounds, dress, food, language and living styles. They would like to protect it and seek security against possible vandalization. The desire to preserve their identity and to be extra-ordinarily protective of it in a measure alienates the minorities from the mainstream of the society. The alienation thus endangered through a subtle system of discrimination causes them to be socially, economically and politically excluded. This research attempt to analyze the importance of human rights of Minorities in India with different Human Rights that they posses with some case laws and this paper also try to explain the problem with which kind of minorities are facing of.

Key Word: Human Rights, Minorities, Rights, Constitution, Commission, UDHR

INTRODUCTION

“Truth always rests with the minority, and the minority is always stronger than the majority, because the minority is generally formed by those who really have an opinion, while the strength of a majority is illusory, formed by the gangs who have no opinion — and who, therefore, in the next instant (when it is evident that the minority is the stronger) assume its opinion… while truth again reverts to a new minority.”[1]

~Soren Kierkegaard

India has given the world an incredible legacy. In teaching the world the ways of non-violence, Gandhi and others disrupted traditional power dynamics and taught people that they did not have to resort to violence to see the world and their lives change. This legacy has influenced many, from Martin Luther King and the civil rights movement in the United States, to Nelson Mandela and the anti-apartheid movement in South Africa, to the music of John Lennon and the Beatles – the nonviolence movement is one of the most exceptional stories of the 20th century.[2]

But there’s another side to India’s 21st century. Religious minorities in India are experiencing escalating human rights violations as Hindu extremism gains ground; a situation fuelled by an environment of impunity and, in certain instances, complicity from state actors. This complicity ranges from participatory violence, to inciting violence through hate speech, and refusing to investigate incidents properly after they have occurred.

Minorities protection –an issue still evolving legally- is being enforced mostly by bilateral or multilateral international agreements. Under international and domestic law minorities indulge the opportunity for equal rights or even special protection in proportion to the majority. As the years go by, minorities’ protection issues have succeeded in gaining constant attention and progress – at least at theoretical level.[3]

Rights of minorities have always been one of the most complex and debatable issue and dilemma of human civilization from the beginning of history and especially from the start of this century. In spite of media boom, globalization, widespread education, enlightenment and constitutional guarantees which are written practically in every constitution of the world, ethnic, religious, linguistic and cultural minorities are not yet free from harassment, discrimination and persecution in every corner of this world.

STATEMENT OF THE PROBLEM

Human Rights being essential for all-round development of the personality of the individual in the society by necessarily protected and be made available to all the individuals. They must be preserved, cherished, and defended if peace and prosperity are to be achieved. Rights of minorities have always been one of the most complex and debatable issue and dilemma of human civilization from the beginning of history and especially from the start of this century.

Despite dilemma, still minorities owe every human rights that majority owes and the promotion and protection of the rights of minorities require particular attention to be paid to issues such as the recognition of minorities’ existence; efforts to guarantee their rights to non-discrimination and equality; the promotion of multicultural and intercultural education, nationally and locally; the promotion of their participation in all aspects of public life; the inclusion of their concerns in development and poverty-reduction processes; disparities in social indicators such as employment, health and housing; the situation of women and the special concerns of children belonging to minorities.

OBJECTIVES OF THE STUDY
  • To study the importance of minorities rights
  • To understand the various kind of minorities human rights 
  • To understand the function and role of International Law and Municipal law respective to India
RESEARCH METHODOLOGY

This analysis was carried out using a desk review research and doctrinal method to find out the fact-situations and grounds related to the topic of the research. The methodology adopted in the preparation of the research report is mainly based on secondary sources. The study will be made by use of various secondary sources such as books, journals, newspaper articles, online sources, research articles, statutes etc which are available relating to the concerned study. The proposed research follows an Analytical Methodology. The methods used were pure of a qualitative nature to generate a deeper understanding of the subject matter. A rigorous content analysis technique was employed to develop and generate themes which informed the analysis. The Researcher will refer to various statutory laws and Law Commission Report of India in relation to the concerned topic to come to a certain conclusion relating to the study.

WHAT IS HUMAN RIGHTS?

Dr. Justice Durga Das Basu defines “Human Rights are those minimal rights, which every individual must have against the sate, or other public authority, by virtue of his being a ‘member of family’ irrespective of any consideration”.[4] This definition brings out the essence of human rights.

Human beings are born equal in dignity and rights. These are moral claims which are inalienable and inherent in all individuals by virtue of their humanity alone, irrespective of caste, colour, creed and place of birth, sex, cultural difference or any other consideration. These claims are articulated and formulated in what is today known as human rights. Human rights are sometimes referred to as fundamental rights, basic rights, inherent rights and birth rights.

DEFINITION OF MINORITY

According to the international Encyclopedia of social sciences, it sates that contemporary sociologist generally define a minority as a group of people- differentiated from other in the same society by race, nationality, religion or language- who both think of themselves as a differentiated group and are thoughts of by the others as a differentiated group with negative connotations.[5] Thus minority group of people are these with distinct in race, religion, language or nationally from other members of the society in which they live in.

The Constitution of India used the term “minority” without defining it but under Article 30 (1)[6] use the term ‘linguistic’ or ‘religion’ minorities. The word or means that a minority may either be linguistic or religious and that it does not have to be both, it is sufficient if it is any one of them. However, to determine, if a state law extending to the whole of a state is question, then the minority must be determined with reference to the entire population for the purpose of article 30(1) of the Indian Constitution.

Rights of minorities are well defined under the Constitution of India but who constitute a minority is not defined anywhere under the Constitution of India. As Supreme Court of India is working as a final interpreter of the Constitution under this power court held if a community is less than 50% in the particular region to be considered as “minority”. So according to according to that, Christians, Muslims and Anglo-Indian would-be minorities in Kerala.[7]

In Bal Patil v Union of India[8] it was held that the identification of a community as minority has to be done on a state basis and not all India basis. It was observed that the word minority has not be defined in Article 29 and 30 of the constitution but from Preamble and Article 25 to 30 of the Indian Constitution, it is clear that it refers to identifiable group of people who require protection from likely deprivation of their religious, cultural and educational rights bu the community which are in majority.

The U.N Sub- Commission on Prevention of Discrimination of Minorities had defined minority as under:[9]

  1. The term “minority” includes only those non-documents group of the population which posses and wish to preserve stable ethnic, religious or linguistic traditions or characteristic markedly different from those of the rest of the population;
  2. Such minorities should properly include the number of person sufficient by themselves;
  3. Such minorities should be loyal to the state of which they nationals
 WHO IS MINORITY IN INDIA?[10]

There is no precise definition who is minorities in India but Muslims, Sikhs, Christians, Buddhists, Jain and Zorastrians (Parsis) have been notified as minority communities under Section 2 (c) of the National Commission for Minorities Act, 1992. As per the Census 2011, the percentage of minorities in the country is about 19.3% of the total population of the country. The population of Muslims are 14.2%; Christians 2.3%; Sikhs 1.7%, Buddhists 0.7%, Jain 0.4% and Parsis 0.006%.

Other minority and indigenous groups include Dalits (‘scheduled castes’) 201 million (16.6 per cent), Adivasis (‘scheduled tribes’) 104.3 million (8.6 per cent) [2011 Census] Anglo-Indians, Andaman Islanders. Amidst India’s cultural traditions is a rigid caste structure, a continuing symbol of identification and social stratification. 16.6 per cent of the total population of India consists of the scheduled castes which includes ‘Dalits’ also known as Harijans, or ‘Untouchables’. The Indian Constitution requires the government to define a list or schedule of the lowest castes in need of compensatory programmes. There are also within India, a significant population of 8.6 per cent indigenous peoples, the Adivasis, who are constitutionally described as ‘scheduled tribes’.[11] 

Unlike the large Muslim minority, besides Christians, Buddhists do not suffer high levels of discrimination and are not specifically targeted as minorities. Even within the broader Hindu tradition however, many groups have suffered discrimination and persecution. A prime example of the systematic discrimination to which a group may be subjected within Hinduism is evident from the case of the Dalits. The term Dalit, which means ‘the oppressed’, is an assertive term of self-identification, and as noted above, refers to what in strict legal and constitutional terms are known as the ‘scheduled castes’.[12]

India’s indigenous peoples, Adivasis, like many other indigenous communities, might, with justification, claim that they remain victims under alien and colonial domination, even after the departure of the white colonizers. Adivasis of India do not represent a homogenous or unified community. There is a huge amount of diversity amongst the Adivasis: Nagas, although having indigenous claims, have nonetheless a distinct existence and differing political and constitutional aspirations from other Adivasi peoples, as do Boros of Assam (1.5 million, 2011 Census), given the fact that their control over land and natural resources, as well as their culture, is protected under special constitutional and administrative measures specific to tribes in north–eastern India (under the 6th Schedule of the Constitution that create ‘autonomous’ political territories). Adivasis in the rest of India are governed by the 5th Schedule of the Constitution that allows only very limited protection for them.[13]     

While the exploitation of Adivasis has been a historical as well as a contemporary phenomenon, and their exploitation has gained no respite from developments in post-colonial India, other ethnic and religious minorities became particular casualties of the march towards independence. The two most significant are the Kashmiris and the Sikhs; the issue of their right to existence and to self-determination has resulted in large-scale bloodshed, with tragic consequences. The numerous smaller minorities include Jews (approximately 4,000), Anglo-Indians (estimated 125,000) and Andaman Islanders.[14]

Religious context: India Numbers Percentages
Christian Muslim Hindu Buddhist Ethno-religionist Jewish Baha’i Atheist Agnostic Other65,061,000 195,379,000 981,730,000 10,008,000 50,938,000 11,300 2,092,000 2,187,000 16,104,000 30,538,8004.8 14.4 72.5 0.7 3.8 0.0 0.2 0.2 1.2 2.2
PROBLEMS OF MINORITIES

Minorities among themselves have social divisions. Muslims are divided into Sunnis and Shias. The former is found all over India and latter are found in Bangalore, Mysore and Bijapur. Among the Muslims there are two social groups, The educated elite groups and the group which are engaged in low caste occupations who may be described as Dalit Muslims. Similarly, Christians have two groups one being the elite Christians who are also incidentally rich and are found in Mangalore and Bangalore. But the so-called Dalit Christians whose members are large are converted Christians from low Hindu castes are concentrated in the southern belt of Karnataka bordering Tamilnadu and Andhra Pradesh.[15]

Among Jains also there are two groups Swetambar and Digambar Jains. Since the Parsis have their origin from Persia and since Buddhists are entirely converts from Hindu-Dalit castes, fortunately they do not appear to have any divisions among them.

The minority groups face two sets of problems, one is common to all of them and the other is specific to a particular minority. The common problems are high incidence of poverty, unemployment, discrimination in the society and in Government offices where they seek government benefits; another common problem is low level of and inadequate access to education, health, housing and municipal services.

Coming to the specific problem, Muslims are targeted with tag of terrorism and earn epithet of deshadrohi. Their Dargah flag is similar to Pakistan flag[16] and their mother tongue is Urdu, their food habits, dress worn by men and women cause them to be socially excluded. The social policing by Hindu right wing outfits in the coastal Karnataka not to allow interacting with Hindu girls is another example of social exclusion. Their separate residential areas consequent to social exclusion are easily identifiable and are subject to discrimination by authorities in matter of providing municipal amenities.

The Christian communities too face similar problems. Dalit Christians are excluded not only by other communities but also by the elite Christians. They live in separate areas which are nothing short of ghettos where municipal amenities are sparsely available. More recently there have been attacks on priests on suspicion that they are converting Hindus into Christians;[17] there have been attacks on churches particularly in south Canara as reported in Newspapers.

The outwardly appearance of Sikh males betrays their identity and some kind of prejudice is created in the mind of Hindu community. Sikhs were attacked in person and in their Gurudwaras. Buddhists and Jains are offshoot of Hinduism, they exhibits similar features of rituals. But they constitute separate religious groups. They are in a sense socially excluded because they are primarily members of erstwhile Dalits. Obviously Hindu community treats them as Dalits even today notwithstanding the social and cultural change.

Some minority communities, especially Muslims and Christians, due to their specific socio-cultural background, their food habits differ from rest of the citizens of the country, the reference should be made to the beef eating habit of the two communities. Some Muslims are engaged in cow slather and sale of beef. Since the member of the majority community respect and worship cow, they look down upon them a s criminal and undesirable persons.

As a matter of fact in some states cow slaughter is totally prohibited as in Maharashtra. In Karnataka it is regulated. Since beef is a source of high protein and also price wise low compared to mutton this is a convenient way of ensuring portentous food to poor people who cannot afford mutton.[18] Since some members of Muslim community is engaged in the business of animal slaughter and sale of beef, any move towards banning cow-slaughter and sale of beef would throw these persons out of business.

RIGHTS OF MINORITIES AS HUMAN RIGHTS IN INDIA
  • UNDER INTERNATIONAL LEVEL

Under that conception of the term minority one can define a variety of minority groups even within the most conceptualized homogeneous nations, namely: women, indigenous people, children, persons with disabilities, refugees, migrant workers, prisoners, homosexuals etc. Under the wider conception of the term minority all States have minorities. Human rights point beyond actual condition of existence; they are less about the way people are, in the sense of what has already been realized, than how people might live, a possibility that may be viewed as a deeper moral reality imagined or constructed or both.

There are various of International Human Rights Instrument and one of the most important is the Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10th December 1948.[19] The Universal Declaration of Human Rights tells us little about what life is like in most countries, but it sets out minimum conditions for the furtherance of a dignified life. Without the creation of a milieu that is conducive for the enjoyment of human rights, one may philosophically be estranged from one’s nature “moral” nature, that is. Thus, human rights are regularly held to be inalienable, not in the sense that one cannot be denied the enjoyment of these rights, for every repressive regime daily alienates its people from their human rights; but in the sense that losing these rights may be morally reprehensible, one cannot lose these rights and “live worthy” of a human being at least in human rights viewpoint

Article 7 of the UDHR[20] talks about the equality before law and prohibition of discrimination. Everybody is equally protected by law where even the minorities are protected by law and are equal before law hence there shouldn’t be any discrimination on bases of cast, sex, religion, color, political or other opinion, national or social origin, property, birth or other status.

Article 23(1) of the Universal Declaration of Human Rights states that: “Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.” So, the denial to free choice of employment is a violation of this important human rights provision. This policy also violates Article 19 (g) of Indian Constitution that guarantees a citizen’s right “to practice any profession, or to carry on any occupation, trade or business.”

The International Covenant on Civil and Political Rights and, in particular, Article 27 inspired the contents of the United Nations Minorities Declaration. It states that:

“In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”[21]

This article protects the rights of persons belonging to minorities to their national, ethnic, religious or linguistic identity, or a combination thereof, and to preserve the characteristics which they wish to maintain and develop. Although it refers to the rights of minorities in those States in which they exist, its applicability is not subject to official recognition of a minority by a State. States that have ratified the Covenant are obliged to ensure that all individuals under their jurisdiction enjoy their rights; this may require specific action to correct inequalities to which minorities are subjected.

The International Covenant on Economic, Social and Cultural Rights mentions explicitly in article 2 (2) that “the States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

General comment No. 14 (2000) of the Committee on Economic, Social and Cultural Rights on the right to the highest attainable standard of health states that health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, including ethnic minorities. Furthermore, all health facilities, goods and services must be culturally appropriate, for instance respectful of the culture of minorities. “States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including […] minorities, to preventive, curative and palliative health services”.[22]

Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination defines discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

Article 30 of the Convention on the Rights of the Child provides thatin those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language”.

The Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by General Assembly resolution 60/147 of 16 December 2005, states that “restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.” This principle could be broadly interpreted to include the right to have one’s status as indigenous person or person belonging to a minority restored, in particular where this is provided for under national legislation and if such status is lost as a consequence of displacement.

In Keshwanand Bharti v State of Kerela,[23] Supreme Court observed that the universal declaration of Human Rights may not be a legally binding instrument, but it shows how India understood the nature of Human Right at the time of the Constitution was adopted.

In Chairman Railway Board & others v Ms Chandrima Das,[24] Supreme Court observed that the declaration has the international recognition as the moral code of conduct having The applicability of the universal declaration of human rights and principles thereof may have to be read if need be, into the domestic jurisprudence. In a number of cases the declaration has been referred to in the decision of the Supreme Court and the State High Courts.

In Golak nath v State of Punjab,[25] Justice Subba Rao said that Fundamental rights are the modern name for what have been traditionally known as natural right. National Commission for Minority Educational Institutions Act, 2004 has been passed in the year 2004 for providing quality education to the minority. This act allows direct affiliation of minority educational institutes to central universities.

  • UNDER PROVISION OF CONSTITUTION OF INDIA

In any discussion on ‘Human Rights Issues of Minorities in Contemporary India’ one has necessarily to be reminded of the aspirations that our founding fathers and mothers had. This vision they encompassed in the Constitution of India. Any stocktaking must therefore be judged by how far we have carried out this mandate.

Preamble of Constitution itself talks about the purpose for framing the Constitution and it secure Justice-Social, Economic and Political, provide liberty of thought and worship, equality in status to secure the unity and integrity of India. Part III of Indian Constitution provides various rights to the minorities and justifies the aim and objective of the constitution of India. In the case of Maneka Gandhi V Union of India,[26] Justice Bhagvati said that “the Fundamental Rights represent the basic value cherished by the citizen of India since the verdict times. The aim of the Fundamental rights is to protect the dignity of the individuals. These rights are regarded as fundamental because they are most essential to the individual to live a life with full dignity”. The aim of the Fundamental rights is to protect the dignity of the individual.

The object behind the inclusion of Part III[27] is to establish as Government of Law or Rule of Law and not of Man”. Following Articles under Indian Constitution talk about the rights of Minorities.

  • Article 14 of the Indian Constitution: the state shall not deny, to any person equality before law or equal protection of law, within the territory of India. The concept equality does not mean absolute equality. It is a concept provides absence of any special privilege by reason birth, creed, etc.. in favour of individual
  • Article 15(1) direst the state not to discriminate against a citizen on ground only of religion, race, caste, sex and place of birth or any of them
  • Article 15(2) prohibits citizen as well as state from making such discrimination with regards to access to shop, hotels and all places of public entertainments, of public resorts, well, tanks roads, etc.. It is to be noted that while clause (1) prohibits discrimination by the states by the states but the clause (2) prohibits both state as we as individuals. The object of the Article 15 is to eradicate the abuse of Hindu Social System.
  • Article 15 (4) enables the state to make special provision for the protection of the interest of the society of educationally backward classes of citizens

In the State of Madras v Champakam Dorairajan,[28] Madras Govt. has reserved seats in state medical and engineering colleges for different communities in certain proportions on the basis of religion, race and caste. The State defended the law on the ground that it is purported to promote the social justice for all sections of the people as required by Article 46[29] of Directive Principles of State Policy (DPSP). It was observed that the law was void because it classified students on the basis of caste and religion irrespective of merit. The Directive Principle of State Policy (DPSP) cannot override the Fundamental Rights. To modify the effect of the decision of the Supreme Court, Article 15 was amended by the 1st Amendment Act 1951 Thus under Article 15 (4), two things are to be determined:

  • Who are socially and educationally Backward Class?
  • What is the limit of reservation?

Article 15 (5): nothing in Article 15 or in 19 (1) (g) 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 Schedule Caste and Schedule Tribe in so far as such special provision relate to admission to educational institutions including private educational institutions whether aided or unaided by the State, other than the minority educational institutions referred to in Article 30 (1).

This amendment has been enacted to nullify the effect of three decisions of the Supreme Court i.e. T.M Pai Foundation v State of Karnataka, Islamic Academy v State of Karnataka, P.A Inamdar v State of Maharashtra.

In T.M. A Pai Foundation v State of Karnataka,[30] it was observed that State cannot make reservation of seats in admissions in privately run educational institutions. There the admission can be done on the basis of common admission test conducted by State and these institutions and on the basis of merit.

In Islamic Academy v State of Karnataka,[31] the Court held that State can fix quota for admission to these educational institutions but it can’t fix fees and also admissions can be done on the basis of common admission test and on the basis of merit.

In P.A Inamdar v State of Maharashtra,[32] The court has overruled the Islamic Academy ruling “to the effect that the state could fix the quota for admission to private professional educational institutions. it was observed that State cannot make reservation of seats in admissions in privately run educational institutions. There the admission can be done on the basis of common admission test conducted by State and these institutions and on the basis of merit.

In Balaji v State of Mysore,[33] it was observed that sub classification made by the order between backward classes & more backward classes was not justified under Article 15(4) reservation should be less than 50% because if it will be more than 50% than it will not be in favour of rest of the Society

  • Article 16(1) & 16(2): citizens’ right to ‘equality of opportunity’ in matters relating to employment or appointment to any office under the State – and prohibition in this regard of discrimination on grounds of religion, race, caste, sex or place of birth.
  • Article 25(1): people’s freedom of conscience and right to freely profess, practice and propagate religion – subject to public order, morality and other Fundamental Rights.
  • Article 21: No person shall be deprived of his life or Personal liberty except according to procedural established by law.

A person can be deprived of his life and personal liberty if two conditions are satisfied

  • firstly, there must be a law and
  • secondly, there must be a procedure prescribed by that law, provided that the procedure is just, fair and reasonable.

In Meneka Gandhi v Union of India,[34] Justice Bhagwati observed “the expression personal liberty in Art 21 is of widest amplitude and it covers a verity of rights which go to constitute the personal liberty. Court says the procedure which is established must satisfy the requirement of NATURAL JUSTICE i.e. it must be just, fair and reasonable.”

  • Article 26: right of ‘every religious denomination or any section thereof – subject to public order, morality and health – to establish and maintain institutions for religious and charitable purposes, ‘manage its own affairs in matters of religion’, and own and acquire movable immovable property and administer it ‘in accordance with law.
  • Article 27: prohibition against compelling any person to pay taxes for promotion of any particular religion.
  • Article 28: people’s ‘freedom as to attendance at religious instruction or religious worship in educational institutions’ wholly maintained, recognized, or aided by the State
  • Article 29 (2): restriction on denial of admission to any citizen, to any educational institution maintained or aided by the State, ‘on grounds only of religion, race, caste, language or any of them’.
  • Article 30(1): right of all Religious and Linguistic Minorities to establish and administer educational institutions of their choice.
  • Article 30(2): freedom of Minority-managed educational institutions from discrimination in the matter of receiving aid from the State.

The rights conferred by this clause on two types id Minorities i.e religious and linguist minorities. In St. Xaviers College v State of Gujrat,[35]it was observed that the word established indicate the rights to bring into existence, while the right to administer an institution means the right to effectively manage and conduct the institution. Article 29 of Indian Constitution, extends to all sections of citizens, which will include the majority section also, While Article 30 confers the right only on minorities based on religion or language, Article 29 is a general right to conserve their distinct language, culture or script while Article 30 is Only the right to establish and administer educational institutions.

In D.A.V College Bhatinda v State of Punjab,[36] it was observed that the right of the minority to establish and administer educational institution of their choice includes the right to have a choice of medium of instruction also.

In Naresh Agarwal v Bharat[37] the petitioners who were Hindu students were denied admissions to PG medical courses in AMU for the session 2005-06, challenged the validity of rule which declared the AMU a minority institution and allowed 50% reservation to Muslim Students. Allahabad high court held that AMU was not a minority institution and struck down the amendment made to this effect in the statute of AMU for reservation to Muslim students.

  • Provision Other Than Fundamental Right under Constitution of India
  • Art 38(1) provides that the State shall make great efforts to promote the welfare of the people by securing and protecting Social, Economic and Political Justice.
  • Art 38(2)22 The State shall in particular strive to minimize the inequalities in income, in status, facilities and opportunities not only amongst individuals but also amongst group of people residing in different areas or engaged in different vocation.

This new clause provides equality in all sphere of life.

  • Article 51 (A)(e):To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women.
  • According to Article 350: Every person shall be entitled to submit a representation for the redress of any grievance to any officer or authority of the union or a state in any of the languages used in the union or a state in any of the languages used in the union or in the state.
  • Article 350 A provides Facilities for instruction in mother tongue at primary stage.
  • Article 350 B talks about Special officer for linguistic minorities.
  • Article 13 of the Constitution gives the power to Judiciary for the purpose of judicial review (post and pre-Constitutional law).

If State is framing any law in the Contradiction of Fundamental Right Citizen of India is having a right to go directly to the Supreme Court or High Court under Article 32 and 226 respectively for issuing a writ of appropriate nature if there is any violation of their fundamental right and under Article 226 for the violation of other Constitutional rights as well.[38]

  • UNDER THE PROVISION OF NATIONAL AND STATE HUMAN RIGHTS COMMISSIONS

The NHRC, India is a statutory, autonomous body constituted under the Protection of Human Rights Act, 1993, and is mandated, inter alia, to enquire suo-motu or on a petition presented to it regarding violations of human rights, review the safeguards provided under the Constitution and domestic laws, study international human rights treaties, promote research in the field of human rights, spread human rights literacy among various sections of society,[39] and synergise the efforts of NGOs and institutions working in the field of human rights. It also has the authority to grant interim relief, recommend payment of compensation or damages and the initiation of proceedings for prosecution or disciplinary action against errant public officials.

As per Section 3(3) of the Protection of Human Rights Act (Amendment), 2019, the Chairperson of the National Commission for Minorities, National Commission for Scheduled Castes, National Commission for Scheduled Tribes, National Commission for Women, National Commission for Protection of Child Rights, National Commission for Backward Classes and Chief Commissioner for Persons with Disabilities shall be deemed to be Members of the Commission for the purpose of discharge of function specified in clauses (b) to (j) of Section 12 of the Protection of Human Rights Act, 1993 and the programmes and projects taken up in the discharge of these functions.

NHRC remains committed to not only the protection and promotion of human rights in the society but also the prevention of human rights violations of the people, especially the marginalized sections of society. Together with all stakeholders, the Commission is playing a pro-active role in mainstreaming a culture of human rights in the society.

  • UNDER THE PROVISION OF NATIONAL COMMISSION FOR MINORITIE

In addition to these safeguards provided in the Constitution and the laws in force, a National Commission for Minorities has been established as a statutory body under the National Commission for Minorities Act, 1992. As per Section 9(1) of the Act, the Commission is required to perform functions that, inter alia, include, monitoring of the working of the safeguards for minorities provided in the Constitution and in laws enacted by Parliament and the State Legislatures; making recommendations for effective implementation of safeguards for the protection of the interests of minorities by the Central Government or the State Governments; looking into specific complaints regarding deprivation of rights and safeguards of minorities and taking up such matters with the appropriate authorities, etc.

  • UNDER SCHEMES/ INITIATIVES

India has undertaken numerous initiatives to empower all sections of society without any discrimination. Particular focus has been given to the rights of women; education of children; skill development; and protect and promote culture, especially for minority communities.

Some of the initiatives being implemented since 2014 include:

  • EDUCATIONAL EMPOWERMENT

Several Schemes for coaching, studies abroad, Government Jobs, etc., have been implemented. Between 2014-2018, over 300 thousand students from minority communities have benefitted from the aforementioned schemes relating to educational empowerment.

For example:- “Naya Savera” (New Dawn) Free Coaching and Allied Scheme to enhance skills and knowledge of students and candidates for employment through competitive examination and admission in technical and professional courses. And “Padho Pardes” Scheme (Study Abroad Scheme) for interest subsidy on educational loans for overseas studies in technical and professional courses.[40]

  •  SUPPORT TO MINORITY INSTITUTIONS

Government of India has granted Grants-in-Aid to Maulana Azad Education Foundation (MAEF) for implementation of education and skill related schemes. Equity to National Minorities Development and Finance Corporation (NMDFC) for providing loans at concessional interest rates to minorities for self-employment and income generating activities. INR 19.79 billion amount concessional loans were disbursed to minority communities for education and employment in 2017-18.

  • INFRASTRUCTURE DEVELOPMENT

Government is implementing Pradhan Mantri Jan Vikas Karyakram (PMJVK), a multi-sectoral development programme in identified Minority Concentration Blocks, Minority Concentration Towns, Minority Concentration District Headquarters & Cluster Villages for Infrastructural Development.

  • SPECIAL NEEDS:

 Hamari Dharohar Scheme to preserve rich heritage of minority communities under the overall concept of Indian Culture. Another is Swachh Vidyalaya is a scheme under which, schools/ institutions that does not have the facility of toilets in their premises are provided grants to construct the separate toilet blocks for girls and boys.

  • OTHER AFFIRMATIVE ACTION FOR THE WELFARE OF MINORITIES

 In a major step towards women empowerment, the Parliament on 30 July 2019 passed the Muslim Women (Protection of Rights on Marriage) Bill 2019, to abolish the practice of Triple Talaq thereby extending gender justice and gender equality to Muslim women. And most latest one is the Citizenship Amendment Act 2019 enacted on 12 December 2019 provides for expedited consideration for Indian citizenship to certain persecuted religious minorities such as Hindu, Sikhs, Buddhist, Jain, Parsi and Christian communities from Pakistan, Afghanistan and Bangladesh which are already in India so that their basic human rights are met.

SUGGESTION AND CONCLUSION ON Minorities Human Rights

Discussion on solutions to the human rights dilemma of this grouping in society may be visualized from two fronts. The first is religious and the second political. Let it suffice to say that it is a fait accompli that the issue of untouchability as a way of life in the overall caste formation[41] is furthered by the theory of privilege—i.e. those in a position of privilege, and enjoy its fruits, will not give it up without a resistance. Thus, as long as the caste structure is rooted in the culture and religious beliefs of the dominant class who stand to benefit from it, this system that marginalizes the Dalits is likely to remain intact for some time to come[42] and may be eradicated gradually through education and moral persuasion.

At the socio-religious level, the entrenchment of the caste configuration in the republic issues ñ-om the fact that the practice has been in vogue for several centuries nurtured by Hindu religious beliefs and teaching. That this discriminatory practice is arguably archaic is a given in modem deliberation. The question today is on how to carefully change a philosophy that states that some groups are “theologically” superior and others are inferior. By way of comparison, India is not unique in the application of this religious precept.

In addition to empowering law enforcement contraptions already on the books for assailing human right abuses, the state needs to undertake a number of welfare schemes to ameliorate the poor condition of these minorities and bring them into the mainstream of economic development.

Following are the suggestion that would atleast make difference with the human rights of minorities in India:

  • There should be a special drive by all concerned state government to complete records of the rights in all minorities area in a time bound manner with active participation of Gram Panchayat and Gram Sabha
  • To provide a sense of security and the feeling of confidence to the minorities by giving special rights and privileges in a democratic country.
  • Regular checks and balances safeguards and guarantees to protect the rights of minorities in terms of cultural and educational rights and others must be done.
  • The minority group should be given the right to manage and govern a body related to education.
  • Besides giving rights to minorities it is also important to take care that those rights are not being misused.
  • Scheduled castes, Scheduled Tribes and other backward classes admissions to any institution shall be allowed to be run by minorities.
BIBLIOGRAPHY
  • Book
  • Dr, H.O Agarwal, International Law & Human Rights (22nd Edition, Central Law Publication, Allahabad
  • Dr. S.K Kapoor, International Law & Human Rights (22nd Edition, Central Law Agency, Lucknow
  • WEBSITES:
  • https://www.academia.edu/12991393/Human_Rights_in_India
  • https://www.researchgate.net/publication/295726240_Minority_Rights_as_Human_Rights_Hegemonic_Media_Representation_of_Minority_Groups_in_Pakistan
  • https://blog.ipleaders.in/minority-rights-constitution-india/
  • http://www.legalservicesindia.com/articles/judi.htm

[1] Minority Quotes, available at: https://www.goodreads.com/quotes/tag/minority (visited on November 16, 2021).

[2] Human Rights in India, available at: https://www.academia.edu/12991393/Human_Rights_in_India (visited on November 16, 2021)

[3] Ibid: Minorities Human Rights

[4] Human Right Education, available at: http://www.himpub.com/documents/Chapter883.pdf (visited on November 16, 2021).

[5] Racial, Ethnic, and Minority Groups, available at: https://courses.lumenlearning.com/sociology/chapter/racial-ethnic-and-minority-groups/ (visited on November 16, 2021).

[6] The Constitution of India

[7] In Re Kerela Education Bill, AIR 1958 S.C. 956

[8] AIR 2005 SC 3172

[9] Sub-Commission on the Promotion and Protection of Human Rights, available at: https://www.ohchr.org/en/hrbodies/sc/pages/subcommission.aspx (visited on November 16, 2021).

[10] National Commission for Religious and Linguistic Minorities, available at: https://www.minorityaffairs.gov.in/sites/default/files/volume-2.pdf (visited on November 16, 2021).

[11] Supra 20

[12] Indian Constitution and Rights of Minorities: An Overview, available at: https://lovelyprofessionaluniversity.codetantra.com/secure/tla/jnr.jsp?m=da4d9873-6729-3f00-9254-2a223879e026 (visited on November 17, 2021).

[13] Ibid

[14] Minority Rights – The Judicial Approach, available at: http://www.legalservicesindia.com/articles/judi.htm (visited on November 18, 2021).

[15] Main Problems faced by Minorities In India, available at: https://www.yourarticlelibrary.com/sociology/3-main-problems-faced-by-minorities-in-india/31418 (visited on November 18, 2021).

[16] Increase the understanding of minority issues in the context of promoting social inclusion and ensuring stable societies, available at: https://www.ohchr.org/EN/Issues/Minorities/SRMinorities/Pages/Increasetheunderstanding.aspx (visited on November 18, 2021).

[17] Essay on Problems of Minorities in India, available at: Minorities Human Rightshttps://www.shareyouressays.com/essays/essay-on-problems-of-minorities-in-india/87317 (visited on November 18, 2021).

[18] Supra 17: Minorities Human Rights

[19] Dr. H.O Agarwal, International Law & Human Rights 766 (Central Law Publication, Allahabad, 22nd Edn.,2019).

[20] The Universal Declaration of Human Rights, 1948

[21] International Covenant on Civil and Political Rights, 1976

[22] CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), available at: https://www.refworld.org/pdfid/4538838d0.pdf (visited on November 19, 2021).

[23] AIR 1973 SC SC 1461

[24] AIR 2000 SC 2979

[25] AIR 1967 SCR (2) 762

[26] AIR 1978 SC 597

[27] The Constitution of India

[28] AIR 1951 SC 226

[29] Supra 27: Minorities Human Rights

[30] AIR 2003 SC 355

[31] AIR 2003 SC 3724

[32] AIR 2005 SC 3226

[33] AIR 1963 SC 649

[34] AIR 1978 SC 597

[35] AIR 1979 SC 1398

[36] AIR 1971 SC 1731

[37] 2005 (4) AWC 3745, 2005 (4) ESC 2489

[38] Minorities in India : rights and legal status, available at: https://blog.ipleaders.in/minorities-in-india-rights-and-legal-status/ (visited on November 20, 2021). Minorities Human Rights

[39] National Commission of Human Right, India, available at: https://nhrc.nic.in/about-us/vision-and-mission (visited on November 20, 2021). Minorities Human Rights

[40] HUMAN RIGHTS ISSUES OF MINORITIES IN CONTEMPORARY INDIA, available at: http://niu.edu.in/slla/Human-Rights-and-Minorities-in-India.pdf (visited on November 20, 2021)

[41] L. Elayapemmal, Report of the Committee on Untouchability, Economic and Educational Development of the Scheduled Castes. (New Delhi: Dept. of Social Welfare Publication, 1969), p. 1.

[42] A. Michaels and B. Harshav, Hinduism: Past and Present. (Princeton: Princeton University Press, 2004), p. 163 Minorities Human Rights

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