ADMINISTRATION AND ESTABLISHMENT ARTICLE 29 & 30.docx

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RIGHTS OF RELIGIOUS MINORITIES IN INDIA: ISSUES AND TRENDS

TABLE OF CONTENTS

ACKNOWLEDGEMENT……………………………………………………………………………………………………………………..……4

INTRODUCTION………………………………………………………………………………5 INTRODUCTION………………………………………………………………………………5 CONCEPT OF MINORITIES…………………………………………………………… MINORITIES……………………………………………………………... ...…...8 …...8 RELIGIOUS MINORITIES IN INDIA…………………………………………………… INDIA…………………………………………………… ......13 RELIGIOUS FREEDOM IN INDIA ……………………………………………………… .....25 RELIGIOUS MINORITIES AND INDIAN CONSTITUTION……………………………….30 CONSTITUTION……………………………….30 RIGHT TO RELIGIOUS FREEDOM TO MINORITIES…………………………………… MINORITIES……………………………………..37 ..37 PURPOSE OF GRANTING CULTURAL AND EDUCATIONAL RIGHTS TO THE MINORITIES IN INDIA………………………………………………………………………58 INDIA ………………………………………………………………………58 JUDICIAL APPROACH ………………………………………………………………………………………………………………………….60

MINORITIES’ RIGHT TO ESTABLISH AND ADMINISTER EDUCATION INSTITUTUON : A CRITIQUE……………………………………………………………………………… CRITIQUE……………………………………………………………………………… .….77 MINORITIES’ RIGHT AND CURRENT ISSUE………………………… ISSUE……………………………………… ……………..……98 CURRENT STATE OF MINORITIES AND INDIGENOUS PEOPLE…………………….110 PEOPLE…………………….110 CONCLUSION.…………………………………………………………………………………………………………………………………..134 REFERENCES…………………………………………………………………………………………………………………………………….136

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CHAPTER- 1 : INTRODUCTION

India is a land of myriad ethnic, religious, caste and linguistic minorities affiliated to distinct  belief systems, sub-cultures and regions. Integration of these diverse communities, some large enough to aspire to a regional homeland and others content to remain as part of the Indian state has been a central preoccupation of Indian governments since 1947. It is important to understand the condition of the minority in the present and past scenario. Despite the several efforts by the government to improve the condition of the minority, constitutional guaranteed rights, different institution and commission established to monitor, failed. Minority faces discrimination, violence and atrocities. These cults have come into the light many times whether it is Gujarat riots where more than 2000 Muslims were killed, or following Indira Gandhi assassination led to the murder of 3000 Sikhs in Delhi. Atrocities against dalit in Bihar, Jharkhand, Maharastra Gujarat, and in north eastern part of the India is very common. We can see the results of this kind of ruthless discrimination in Maharastra in recent days. The purpose to guarantee these rights and to distinguish them from majority was not creating such discrimination but to make them able, to diffuse them with the majority. Even the  foreigner residing in India and forming the well defined religious and linguistic minority also  fall under the preview of this Article. ‘Persons belonging to minorities have the right to  participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation. India is a secular republic and the constitution guarantees equal rights to all its citizens 2

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without any discrimination. The Indian constitution provides many legal safeguards to the minority community and special provisions are made for their social and economic growth. Despite these, minorities in India face all types of inequit y in the public sphere. Even the violence and human right violations of the minority community in India is a common phenomenon A minority religion is a religion held by a minority of the population of a country, state, or region. Minority religions may be subject to stigma to stigma or  discrimination. An  discrimination. An example of a stigma is using the term cult with its extremely negative connotations for certain new religious movements.  movements.  People who belong to a minority religion may be subject to discrimination and  prejudice, especially when the religious differences correlate with ethnic with ethnic differences. Laws are made in some countries to protect the rights of religious minorities, such as protecting the minorities' culture and to promote harmony with the majority.

Current state of minorities and indigenous peoples It is amply clear that various issues related to minorities have started putting pressure on the  policy formulation and implementation by the government. It also needs to be added that the dominant heterogeneous groups are quite fragmented and that government policy cannot be faulted for working to further the interests of any particular group as such. However, there are substantial difficulties; these include problems with the implementation of policies currently dealing with property rights and interests and the restructuring of rights of religious minorities. The plurality existing within the political framework and the pressures generated by the polity is now seeing a continuous process of social so cial churning affecting the position of minority groups.

Various religion in india:-

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India is the birth place of four of the world's major religious traditions;  namely Hinduism, Jainism, Buddhism and Sikhism. Throughout its history, religion has been an important part of the country's culture. Religious diversity and religious tolerance are both established in the country by law and custom. A vast majority of Indians associate themselves with a religion. Religions of India-

Religion

Population

All religions

1,028,610,328 100.00%

Hindus

827,578,868

80.5%

Muslims

138,188,240

13.4%

Christians

24,080,016

2.3%

Sikhs

19,215,730

1.9%

Buddhists

7,955,207

0.8%

Jains

4,225,053

0.4%

Bahá'ís

1 953 112

0.18%

Others

4,686,588

0.32%

Religion not stated 727,588

Percent

0.1%

According to the 2001 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 of India. This diversity of religious belief systems existing in India today is a result of,  besides existence and birth of native religions,  assimilation and social integration of religions  brought to the region by traders, travelers, immigrants, and even invaders and conquerors. Zoroastrianism and Judaism also have an ancient history in India and each has several thousand Indian adherents. India has the largest population of people adhering to Zoroastrianism and Bahá'í Faith anywhere in the world. Many other world religions also have a relationship with 4

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Indian spirituality, like the Baha'i faith which recognizes Lord Buddha and Lord Krishna as manifestations of God Almighty. Indian diaspora in the West have popularized many aspects of Hindu philosophy like yoga (meditation), Ayurvedic medicine, divination, vegetarianism, karma and reincarnation to a great extend. The influence of Indians abroad in spiritual matters has been significant as several organizations such as the Hare Krishna movement, the Brahma Kumaris, the Ananda Marga and others spread by Indian spiritual figures. The Muslim population in India is the third largest in the world. The shrines of some of the most famous saints of   Sufism like Moinuddin Chishti and Nizamuddin Auliya are in India and attract visitors from all over the world.. India is also home to some of the most famous monuments of Islamic architecture like the Taj Mahal and the Qutb Minar.  Civil matters related to the community are dealt with by the Muslim Personal Law, and constitutional amendments in 1985 established its primacy in family matters. The Constitution of India declares the nation to be a secular republic that must uphold the right of citizens to freely worship and propagate any religion or faith (with activities subject to reasonable restrictions for the sake of morality, law and order, etc.). The Constitution of India also declares the right to freedom of religion as a fundamental right. Citizens of India are generally tolerant of each other's religions and retain a secular outlook, although inter-religious marriage is not widely practiced. Inter-community clashes have found little support in the social mainstream, and it is generally perceived that the causes of religious conflicts are political rather than ideological in nature.

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CHAPTER –  2 : CONCEPT OF MINORITY

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;

3) Such minorities should be loyal to the state of which they are nationals.

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The first initial afford was in In Re Education bill 1 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 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 1

 AIR 1958 SC 956

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 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, co nsumer 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 0.8%and Parsis 0.007%.

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CHAPTER –  3 : RELIGIOUS MINORITIES IN INDIA

Muslims

So far different statistics have been given on the population of Indian Muslims. Based on these figures about 15 percent of the Indian people are Muslims. Thus the Indian Muslims not only form the largest Muslim minority in the world but they are considered the largest Muslim population after Indonesia and Pakistan. In India the four main Islamic occasions namely Eid-al- Adha, Eid-al- Fetr, the Birth anniversary of Prophet Mohammad (Blessing of God upon him and his progeny) and Ashura day are considered as official holidays. Although Muslims in India form a minority but in terms of their active role in the ancient civilization and culture of India they have left behind valuable works. The huge and  beautiful Taj Mahal building, the Red Castle near Delhi and Delhi Jame' Mosque (the largest Indian mosque) are considered among masterpieces of architecture during the rule of Muslims in India. There are about 600 historical mosques in India but the Indian government does not allow Muslims to hold religious ceremonies inside them and this has turned into a problematic issue  between them and the government. The promotion of Farsi and Urdu languages in India and the spread of knowledge and art have been among other positive cultural acts of Muslims in this country.

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 No doubt the current situation of Indian Muslims is different from the past. Over the past years, India has achieved considerable economic progress but Muslims have hardly benefited from them. In the past few years the average economic growth of India has stood at 8 percent and according to experts this country has turned into one of the major economic powers.  Nevertheless during the years 2004- 2005, 27.7 percent of the Indians lived under poverty line one third of whom were Muslims. Based on another research conducted by the US Maryland University, out of every 10 Muslims in India, 3 live under poverty line. Experts of Indian issues consider certain factors to be involved in the poverty and deprivation of Indian Muslims. The first one is the policy of the British colonialists who attempted to deprive Muslims of their economic and commercial rights and place them in bottlenecks. The other factor is related to the way Pakistan got its independence from India. During this separation poor Muslims stayed in India.  Nevertheless, what intensifies poverty and discrimination against the Indian Muslims is the educational injustice in the Indian community, because illiterate Muslims cannot have any access to good jobs and thus they will have a lower level of life. Over 60 percent of Indian people above 15 years can read and write whereas this figure is less among Muslims; especially the level of literacy of Muslim women is very low. On the other hand the number of Muslims at schools and universities is very low as compared to their large pop ulation. In addition to the Muslims' deprivation in India, the hostilities of Hindus towards them should also be mentioned. Attacks on Muslims and their sanctities have been common since the past. Every now and then the extremist Hindus attack Muslims under illusive pretexts and kill some of them. Of course in the recent years the extremist Hindus' attacks on Muslims have decreased but the anti-Islamic propagandist atmosphere is seen in India. Some media intensify the poisonous atmosphere and portray Muslims as terrorists. 10

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Several Islamic organizations act in India to defend the rights of Muslim minority in this country. The two main Islamic parties in the Indian subcontinent are Jama’at Islami and Jam’iat Ulema-eIslam or Assembly of Islamic Clergy. Shiite school is one of the major Islamic schools of India. Based on some figures the number of the Shiites is estimated to be more than 30 million people. A large number of Shiites also live in Kashmir. Although the Indian Muslims enjoy no considerable economic and social situation, the Shiites condition is much worse. The Shiites enjoy low and limited presence at schools, universities and offices. However the Indian Shiites have certain groups and organizations which work for upgrading their situation in the Indian community. Despite the brilliant record of Islam and Muslims in the history and civilization of India, now the Indian Muslims live in discriminative situation. These conditions not only have pressured this large minority of India but have deprived the county from the huge capacity of Muslims who have shown their efficiency throughout history. It is evident that preventing Hindu extremists from launching attacks and insults against Mulims and a just treatment of Muslims pave the way for removing discrimination against Muslims.

Though Islam came to India in the early 7th century with the advent of Arab traders, it started to  become a major religion during the Muslim conquest in the Indian subcontinent. Islam's spread in India mostly took place under the Delhi Sultanate (1206 – 1526) and the Mughal Empire, greatly aided by the mystic Sufi tradition.

Muslims constitute the second largest religious group in India and are thus the largest minority. The 2001 census enumerated India's Muslim population at over 138 million, and by 2006 the Muslim population would be over 150 million. India's Muslim population is amongst the largest in the world, exceeded only by Indonesia's and close to the Muslim populations of Pakistan and Bangladesh. Moreover, it is larger than the total populations of most countries of the world. India

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is considered an overpopulated country and India's population policy seeks to achieve replacement level fertility by 2010. The Muslims are the majorities among the minorities, which means Muslims constitute a large  part of the minority community both in India an d in Delhi. Going through throu gh various researches and surveys its prominently seen that education is one of the most lacking aspect in the Muslim community. Its because of this that after so many years after independence the community lacks in major fields in the country even though they constitute the second largest group in the  population. Major problems 1. Muslims are behind other religious communities in the area of literacy and education, industrial promotion and economic pursuits. They lack technical and vocational education as well as training in trades in demand. 2. The village and districts having concentration of Muslim populations often lack markets for their products. 3. The Muslims in Delhi are not able to avail of the facilities of Wakf resources in the absence of  proper management. Only 2.3% rate is been returned by the registered 4.9 lakh wakfs in India. 4. The work participation rate among Muslim women is found to be low affecting the quality of their life. On surveying and on reviewing people’s view these are some of my m y suggestions: 7. A district wise Muslim Minority Development Board should be created with adequate representation of the Muslim community which should oversee the implementation of welfare  projects aimed at improving the educational and economic status of Muslims like providing training for entrepreneurship, advancing interest free loans for Muslims entrepreneurs, marketing of products of artisans, waving taxes for at least 5 yrs for new industries set up by Muslims, creating infrastructure like water, sewage system, electricity, dispensary, schools, roads, banks etc. 8. The Delhi govt with the help of the Delhi Minority Commission should identify key areas of development like education, industrial development, and special project should be formulated and implemented within a particular frame work for the socio economic development of the Muslim community. 9. Modernisation of madrasa should be carried c arried out at a fast rate.

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CHRISTIANS Christianity was introduced in India in 1st Century by St. by St. Thomas one of the twelve disciples of Jesus Christ.  Christ.  Christianity is the first foreign religion in India which was introduced to natives after been initially introduced to the Jewish diaspora in Kerala. Christianity in India has different denominations, like Roman like Roman Catholicism, oriental Catholicism, oriental Orthodox Christianity and Protestantism. and Protestantism. Roman Catholic is a denomination practiced by over 17.3 million people in India which represents less than 2% of the total population. Most Catholics reside in South India. Goa is home to Roman Catholics. The state known for its Christian population. Christianity was introduced to Indians twice. Possibly in the 1st century by St. Thomas,  Thomas,  and by Europeans. Europeans brought Catholicism in the 13. Century (Portuguese)  (Portuguese)  and Protestantism in the 18. Century (British and American missionaries). It became popular following European colonisation and Protestant and Protestant missionary efforts. The Christians constitute about 2.3% of the total Indian population, in which 34% are urbanresidents. Christians have a higher literacy level (80%) as compared to other religious minorities and above national literacy rate of 65%. They are generally engaged in service sector except in some states. Christians are more concerned about health and have better level of wellbeing. The Christians have the highest per capita income and per capita expenditure among the minorities. Unemployment among Christian community is also significantly lower than amongst Muslims and Sikhs. Though Christianity does no recognize a caste caste system, nonetheless caste system system is practiced among Christians in large large parts of the country. Christians in Delhi are a very small section section of minorities, according to the survey done by b y the Indian Social Institute these are the figures: Christian being very less in number are neglected by both the state and the Delhi Minority Commission. But with the help of individual organizations associated with the churches the socio-economic conditions of the community is taken care of. Another issue is the allocation of land for religious constructions. Its well seen that due to the lack of institutional land in the city the DDA is very strict in land allocation, and according to 13

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Rev Fr. Dominic Immanuel, the Catholic representative, the DDA should allocate land on the  basis of their need. According to him the th e Christian community comes in large numbers and have h ave a tradition of congregational worship so the need for larger land is there. Although this issue has  been raised a number of times in the DDA but yet no consideration has been shown. Another important problem is lack of burial grounds in Delhi. Presently there are 3 main cemeteries in Delhi- one in Paharganj, another at Prithviraj road and the war cemetery near Dhaula Kuan. But the major problem is the lack of space in these cemeteries. Discussions are going on for the procurement of more lands for burials which is nearly impossible in Delhi due to lack of landin the city. One of the alternatives would be the installation of cell like structure inside the cemeteries to accommodate more and more dead bodies within a less space. This cell structure is very well working in many southern states especially in all parts of Kerala. Due to the lack of land in Delhi this would be an apt solution to the existing problem of lack of  burial grounds A major problem is also faced by the recognised minority institutions. Even though they are given the minority status, no rules and policy consideration has been given to them and these institutions, especially schools, are considered same as other public schools.

SIKHS

Sikhism originated in fifteenth century  Northern India with the teachings of  Nanak and nine successive gurus.  gurus.  The principal belief in Sikhism is faith in Vāhigurū —   represented by the sacred symbol of ēk of ēk ōaṅ kār [meaning kār  [meaning one god]. Sikhism's traditions and teachings are distinctly associated with the history, society and culture of the  the  Punjab. Adherents Punjab. Adherents of Sikhism are known as Sikhs ( students or  students or disciples) disciples) and number over 23 million across the world. Guru Nanak (1469 – 1539) 1539) was the founder of Sikhism.  Sikhism.  The Guru Granth Sahib was first compiled by the fifth Sikh guru, Guru guru, Guru Arjan Dev, from Dev, from the writings of the first five Sikh gurus and others saints who preached the concept of universal brotherhood, including those of the Hindu and Muslim faith. Before the death of Guru Gobind Singh, the  the  Guru Granth Sahib was declared the eternal guru. Sikhism recognizes all humans as equal before Waheguru, Waheguru,[28] 14

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regardless of colour, caste or lineage. Sikhism rejects the beliefs of idol worship and circumcision. Guru Nanak's preachings were directed with equal force to all humans regardless of their religion. Guru Nanak defines the transformation of man to a permanent union with God as part of his preaching against communalism summarized by the famous phrase, "There is no Hindu and no Muslim".

Sikhism is a monotheistic faith which was founded in the 15th century in the region of Punjab, northwest India. It is recognized as the youngest of world religions. The Sikh religion toda y has a following of over 20 million people worldwide and is ranked as the world’s fifth largest religion. One of the major problem faced by the Sikh community in Delhi is the declining sex ratio in the community. It is especially high in a particular section of the community called the jatedars. Some of the suggestions to support the girl child would be to implement the medical scheme in government hospitals and financial support for girl child in primary and secondary level education. Another major problem is rehabilitation of riot victims of 1984; the government hasn’t yet made arrangements for the rehabilitation of or  compensation to the riot victims.

Jainism and Buddhism Both Jainism and Buddhism spread throughout India during the period of the Magadha empire. Scholars Jeffrey Brodd and Gregory Sobolewski write that "Jainism shares many of the basic doctrines of Hinduism and Buddhism." and scholar James Bird writes, " But when  primitive  Buddhism originated from Hindu schools of philosophy, it differed as widely from that of later times, as did the Brahmanism of the Vedas from that of the Puranas and Tantras." Buddhism in India spread during the reign of Asoka the Great of the Mauryan Empire,  who  patronised Buddhist teachings and unified the Indian subcontinent in the 3rd century BCE. He

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sent missionaries abroad, allowing Buddhism to spread across Asia. Jainism began its golden  period during the reign of Emperor  Kharavela of  Kalinga in the 2nd century BCE. Both Jainism and Indian Buddhism started declining following the rise of Puranic Hinduism during the Gupta dynasty. Buddhism continued to have a significant presence in some regions of India until the 12th century. Jainism continues to be an influential religion and Jain communities live in Indian states Gujarat, Rajasthan, Madhya Pradesh, Maharashtra, Karnataka and Tamil  Nadu.  Jains authored several classical books in different Indian languages for a considerable  period of time. Jainism is considered as a legally distinct religion in India.  Many others consider it a reformist movement that is a part or sub-sect of  Hinduism, historically and legally. The Supreme Court of India has made several pronouncement on the question, most recently observing that Jainism is "indisputably is not a part of Hindu Religion". The question is politically charged because the Jains if recognized as a religious minority would be eligible for a series of benefits granted to minority groups by the Constitution of India. Since India became a Republic in 1950, the Constitution has brought the various social con tracts such as marriage and inheritance of all Jains fully under the purview of Hindu Laws, a status that remains unchanged today.. The Union of India does not accord Jains, Buddhists and Sikhs the status of a religious minority even as some States have passed judgments pronouncing such a status at the state level. The National Minorities Commission arrived at their recommendation that the Jain community be declared as a minority religious community. It was in consideration of the following: 

the relevant constitutional provisions,



various judicial pronouncements,



the fundamental differences in philosophy and beliefs (theism vs.atheism principally) visa-vis Hinduism, and



the substantial number of Jain population in the country.

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It resolved to recommend to the Government of India that the Jains deserve to be recognised as a distinct religious minority, and that, therefore the Government of India may consider including them in the listing of "Minorities." The Bal Patil Judgement:In 2005, the Supreme Court of India declined to issue a writ of Mandamus towards granting Jains the status of a religious minority throughout India. The Court however left it to the respective states to decide on the minority status of Jain religion. In one of the observations of the Supreme Court, not forming part of the judgment, the Court said: “ 

Thus, 'Hinduism'  can be called a general religion and common faith of India whereas 'Jainism' is a special religion formed on the basis of quintessence of Hindu religion. Jainism places greater emphasis on non-violence ('Ahimsa') and compassion ('Karuna'). Their only difference from Hindus is that Jains do not  believe in any creatorlike God but worship only the perfect human-being whom they called Tirthankar.  LordMahavir was one in the generation of Thirthankars. The Tirathankars are embodiments of perfect human-beings who have achieved human excellence at mental and physical levels. In philosophical sense, Jainism is a reformist

movement

amongst

Hindus

like Brahamsamajis, Aryasamajis and Lingayats.  The three main principles of Jainism are Ahimsa, Anekantvad and Aparigrah. The

Supreme

Court

also

noted:

"

…

” that

the

State

Governments

of  Chhatisgarh, Maharashtra,Madhya Pradesh, Uttar Pradesh and Uttarakhand have already notified Jains as 'minority' in accordance with the provisions of the respective State Minority Commissions Act." This cast a doubt on the independent standing of Jain religion. Scholars in the Jain tradition, as well as several groups amongst the Jain community protested, and emphasised that Jain religion stands as a religion in its own right. While Hinduism as a mode of living, and as a

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culture is to be found across various religions in India because of several common customs, traditions and practices, but as religions Hindu religion and Jain religion are distinct. U.P. Basic Shiksha Parishad Judgment:In 2006, the Supreme Court opined that "Jain Religion is indisputably is not a part of Hindu Religion". "Buddhism and Jainism were certainly not Hinduism or even the Vedic Dharma. Yet they arose in India and were integral parts of Indian life, culture and philosophy. A Buddhist or Jain, in India, is a hundred per cent product of Indian thought and culture, yet neither is a Hindu by faith. It is, therefore, entirely misleading to refer to Indian culture as Hindu culture."

Chronological order of various court judgments on Jainism as a separate religion 1927 - As early as 1927 Madras High Court in Gateppa v. Eramma and others2 held that "Jainism as a distinct religion was flourishing several centuries before Christ". Jainism rejects the authority of the Vedas which form the bedrock of Hinduism and denies the efficacy of the various ceremonies which Hindus consider essential. 1939 - In Hirachand Gangji v. Rowji Sojpal3, it was observed that "Jainism prevailed in this country long before Brahmanism came into existence and held that field, and it is wrong to think that the Jains were originally Hindus and were sub sequently converted into Jainism." 1951 - A Division Bench of the Bombay High Court consisting of Chief Justice Chagla and Justice Gajendragadkar in respect of Bombay Harijan Temple Entry Act, 1947 (C.A. 91 of 1951) held that Jains have an independent religious entity and are different from Hindus. 1954 - In The Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt reported 4 this Court observed that there are well known religions in India like Buddhism and Jainism which do not believe in God, in any Intelligent First Cause. The 2

 AIR 1927 Madras 228  AIR 1939 Bombay 377 4  AIR 1954 SC 282 3

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Court recognized that Jainism and Buddhism are equally two distinct religions professed in India in contrast with Vedic religion. 1958 - In well known Kerala Education Bill's case5, this Court held that to claim the minority rights, the Community must be numerically a minority by reference to the entire population of the State or country where the law is applicable. In that way also, the Jain Community is eligible for the claim. 1968 - In Commissioner of Wealth Tax, West Bengal v. Smt. Champa Kumari Singhi & Others6 a Division Bench of the Calcutta High Court observed that "Jains rejected the authority of the Vedas which forms the bedrock of Hinduism and denied the efficacy of various ceremonies which the Hindus consider essential. It will require too much of boldness to hold that the Jains, dissenters from Hinduism, are Hindus, even though they disown the authority of the Vedas". 1976 - In Arya Samaj Education Trust, Delhi & Others v. The Director of Education, Delhi Administration, Delhi & Others 7, it was held as follows: "Not only the Constitution but also the Hindu Code and the Census Reports have recognized Jains to belong to a separate religion." In the said judgment, the Court referred to the observations of various scholars in this behalf. The Court quoted Heinrich Zimmer in "Philosophies of India" wherein he stated that "Jainism denies the authority of the Vedas and the orthodox traditions of Hinduism. Therefore, it is reckoned as a heterodox Indian religion". The Court also quoted J. N. Farquhar in "Modern Religious Movements in India" wherein he stated that "Jainism has been a rival of Hinduism from the  beginning". In the said judgment, in conclusion, the Court held that "for the purpose of Article 30(1), the Jains are a minority based on religion in the Union Territory of Delhi". 1993 - In A.M. Jain College v. Government of Tamil Nadu8 , the Court observed that it is also an admitted fact that the Jain community in Madras, Tamil Nadu is a religious and linguistic minority.

5

 AIR 1958 SC 956  AIR 1968 Calcutta 74 7  AIR 1976 Delhi 207 8 1993 (1 ) MLJ 140 6

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In a judicial reminder, the Indian Supreme Court observed Sikhism and Jainism to be sub-sects or  special   faiths within the larger Hindu fold, and that Jainism is a denomination within the Hindu fold. Although the government of British India counted Jains in India as a major religious community right from the first Census conducted in 1873, after independence in 1947 Sikhs and Jains were not treated as national minorities. In 2005 the Supreme Court of India declined to issue a writ of Mandamus granting Jains the status of a religious minority throughout India. The Court however left it to the respective states to decide on the minority status of Jain religion. However, some individual states have over the past few decades differed on whether Jains, Buddhists and Sikhs are religious minorities or not, by either pronouncing judgments or passing legislation. One example is the judgment passed by the Supreme Court in 2006, in a case  pertaining to the state of Uttar Pradesh, which declared Jainism to be undisputably distinct from Hinduism, but mentioned that, "The question as to whether the Jains are part of the Hindu religion is open to debate. However, the Supreme Court also noted various court cases that have held Jainism to be a distinct religion. Another example is the Gujarat Freedom of Religion Bill, that is an amendment to a legislation that sought to define Jains and Buddhists as denominations within Hinduism. Ultimately on July 31, 2007, finding it not in conformity with the concept of freedom of religion as embodied in Article 25 (1) of the Constitution, Governor Naval Kishore Sharma returned back the Gujarat Freedom of Religion (Amendment) Bill, 2006 citing the widespread protests by the Jains

as

well as Supreme Court's extrajudicial observation that Jainism is a "special religion formed on the basis of quintessence of Hindu religion by th e Supreme Court"

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CHAPTER- 4 : RELIGIOUS FREEDOM IN INDIA

Freedom of religion in India is a fundamental right guaranteed by the country's constitution. Freedom of religion is established in tradition as  Hinduism doesn't recognise labels of distinct religions and has no concept of blasphemy.  Every citizen of India has a right to practice and  promote their religion peacefully. However, there have been many incidents of religious intolerance which have resulted in riots and pogroms. These incidents have been condemned by the governmental administrations, private businesses, and judicial systems. India is one of the most diverse nations in terms of religion. Even though Hindus form close to 80 percent of the population, the Indian Muslims form the third largest Muslim population in the world, and the country also has large Sikh, Christian and Zoroastrian populations. It is home to the holiest shrines of four world religions: Hinduism, Buddhism, Jainism and Sikhism. Modern India came into existence in 1947 as a secular nation and the Indian constitution's  preamble states that India is a secular state. India has a Hindu President (Pratibha Patil), Muslim Vice President (M. Hamid Ansari), a Sikh Prime Minister (Manmohan Singh)  and an atheist (Christian  by birth, Defence Minister   A. K. Antony). The leader of the largest party, the Indian National Congress, Sonia Gandhi is a Christian, while the leader of the opposition is Sushma Swaraj, a Hindu. India's ex-President APJ Abdul Kalam was a Muslim. Out of the 12 Presidents of India since Independence, three have  been Muslims. India had a prominent former Defence Minister (George Fernandes), a Christian 21

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(though not practicing) and a Hindu minister controlling foreign affairs. India's Air Force Chief, Fali H. Major, is a Parsi.

What is Meant by Religious Rights The Church in each place must be free to define the mission it believes it has received from God. Likewise, individual Christians and other believers must be free to practice their faith in whatever manner they believe necessary, commensurate with their not violating the same freedom of others. In addition, we affirm the understanding of religious freedom embodied in the Universal Declaration of Human Rights (1948) and other international covenants. While some actions taken in the name of religious rights may be ambiguous and will have to be addressed on a case-by-case basis, we believe that religious rights include at least the following: 

Every person has the right to determine his or her own faith and creed according to conscience.



Every person has the right to the privacy of his belief, to express his religious beliefs in worship, teaching, and practice, and to proclaim the implications of his beliefs for relationships in a social or political community.



Every person has the right to associate with others and to organize with them for religious  purposes.



Every religious organization, formed or maintained by action in accordance with the rights of individual persons, has the right to determine its policies and practices for the accomplishment of its chosen purposes, which implies the right: o

to assemble for unhindered private or public worship

o

to formulate its own creed

o

to have an adequate ministry 22

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to determine its conditions of membership

o

to give religious instruction to its youth, including preparation for ministry

o

to preach its message publicly

o

to receive into its membership those who desire to join it

o

to carry on social services and to engage in missionary activity both at home and abroad

o

to organize local congregations

o

to publish and circulate religious literature

o

to control the means necessary to its mission and to secure support for its work at home and abroad

o

to cooperate and to unite with other believers at home and abroad

o

to use the language of the people in worship and in religious instruction

o

to determine freely the qualifications for professional leadership of religious communities, freely naming their religious lead

Historical tradition of religious freedom-

The plural nature of Indian society in the 3rd century BCE was encapsulated in an inscription of Ashoka: "King Piyadasi (Ashoka)  dear to the Gods, honours all sects, the ascetics (hermits) or those who dwell at home, he honours them with charity and in other ways. But the King, dear to the Gods, attributes less importance to this charity and these honours than to the vow of seeing the reign of virtues, which constitutes the essential part of them. For all these virtues there is a common source, modesty of speech. That is to say, One must not exalt one’s creed discrediting all others, nor must one degrade these others Without 23

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legitimate reasons. One must, on the contrary, render to other creeds the honour befitting them.” King Kharvela (born in the family of Rajarshi Vasu) declares himself in his inscription (approximately 2nd century BCE):  sava pasaNDa-puujako, sava devaayatan-sa.nskaarako Translation: I am worshipper of all sects, restorer of all shrines. Kharvela's self-description must be contrasted with other rulers around the world, who took pride in calling themselves "but-shikan" or "defender of the (only true) faith" Badayuni in his Muntakhab-ut-Tawáríkh reports that the Mughal Emperor Akbar,  who had established the Din-i-Ilahi faith, decreed the following in AH 1000 (1551-1552 CE): "Hindus who, when young, had from pressure become Musalmans, were allowed to go  back to the faith of their fathers. No man should be interfered with on account of his religion, and every one should be allowed to change his religion, if he liked. ...People should not be molested, if they wished to build churches and prayer rooms, or idol temples, or fire temples."  Refuge from religious persecution India, with its traditional tolerance, has served as a refuge for groups that have encountered  persecution elsewhere. 

Jews: Jews in India were granted lands and trading rights.The oldest of the three longestestablished Jewish communities in India, traders from Judea and Israel arrived in the city of Cochin, in what is now Kerala, 2,500 years ago and are now known as Cochin Jews. According to recordings by Jews, the date of the first arrival is given at 562 BC. In 68 AD, more Jews fled to Kerala to escape attacks by the Romans on Jerusalem.



Christians: Christianity is believed to have come to India in the 1st century.

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Parsi:  The Zoroastrians from Iran arrived in India fleeing from religious persecution in their native Iran in the 9th century. They flourished in India and in 18-19th centuries intervened on behalf of their co-religionists in still in Iran. They have produced India's  pioneering industrialist house of   Tatas and one of the only two Indian Field Marshals in S. F. Manekshaw.

Tibetan Buddhists:  India is now home to the Dalai Lama,  the revered head of the Vajrayana Buddhism of  Tibet.

Present position:-

Right to freedom of  religion, covered in Articles 25, 26, 27 and 28, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice. Religious communities can set up charitable institutions of their own. However, activities in such institutions which are not religious are performed according to the laws laid down by the government. Establishing a charitable institution can also be restricted in the interest of public order, morality and health. No person shall be compelled to pay taxes for the promotion of a  particular religion. A State run institution cannot impart education that is pro-religion. Also, nothing in this article shall affect the operation of any existing law or prevent the State from making any further law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice, or providing for social welfare and reform.

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CHAPTER- 5 : RELIGIOUS MINORITIES AND INDIAN CONSTITUTION

The Constitution of India - the world's most diverse democracy - is a remarkable document,  balancing the freedoms and rights of citizens who represent all of the major world religions. After introducing the constitutional basis for religious freedom in India and articulating the distinctive character of Indian secularism, this Article turns to two major issues of religious freedom in contemporary India - the rights of religious minorities, and the right to convert to a different religion. Debates over these rights juxtapose divergent arguments that invoke religious freedom

and

highlight

the

multiple

facets

and

meanings

of

religious

freedom.

Minority rights in India include the right of members of various religious communities to use their own religious civil law in certain family law cases. This is known as "personal law," and the future of this system is the subject of ongoing and heated debate. Is personal law essential to the freedom of religious communities, or does it impede the freedom and equality of women within

religious

communities?

Can

these

freedoms

be

reconciled?

A second minority rights debate in India is the question of exactly who constitutes a minority. Legal disputes over which religious groups should be recognized by the government as "minorities," and which individuals within those groups should be recognized as members of religious minorities, demonstrate that the very definition of "minority" is a minority-rights issue. This issue brings other freedoms into tension as well. For example, how should the state balance an individual's freedom ...

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Constitutional rights and safeguards provided to the minorities in India:1. Constitutional safeguards for religious and linguistic minorities of India Though the Constitution of India does not define the word ‘Minority’ and only refers to ‘Minorities’ and speaks of those ‘based on religion or language’, the rights of the minorities have  been spelt out in the Constitution in detail. 2. ‘Common Domain’ and ‘Separate Domain’ of rights of minorities provided in the Constitution The Constitution provides two sets of rights of minorities which can be placed in ‘common domain’ and ‘separate domain’. The rights which fall in the ‘common domain’ are those which are applicable to all the citizens of our country. The rights which fall in the ‘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 declares the State to be ‘Secular’ and this is a special relevance for 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.’ 2.1 ‘Common Domain’, the Directive Principles of State  Policy  –   Part IV of the Constitution

The Constitution has made provisions for the Fundamental Rights in Part III, which the State has to comply with and these are also judicially enforceable. There is another set of non-justiciable rights stated in Part IV, which are connected with social and economic rights of the people. These rights are known as ‘Directive Principles of State Policy’, which legally are not binding upon the State, but are “fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws”. (Article 37). Part IV of the Constitution of India, containing non-justiciable Directive Principles of State Policy, includes the following  provisions having significant implications for the Minorities :-

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i.

obligation of the State ‘to endeavour to eliminate inequalities in status, facilities and opportunities’ amongst individuals and groups of people residing in different areas or engaged in different vocations;[Article 38 (2) ]

ii.

obligation of State ‘to promote with special care’ the educational and economic interests of ‘the weaker sections of the people’ (besides Scheduled Castes and Scheduled Tribes); [Article 46] and

2.2 ‘Common Domain’, the Fundamental Duties –  Part IVA of the Constitution Part IVA of the Constitution, relating to Fundamental Duties as provided in Article 51 A applies in full to all citizens, including those belonging to Minorities. Article 51A which is of special relevance for the Minorities stipulates as under :i.

citizens’ duty to promote harmony and the spirit of common brotherhood amongst all the  people of India ‘transcending religious, linguistic and regional or sectional diversities; and

ii.

citizens’ duty to value and preserve the rich h eritage of our composite culture.’

2.3 ‘Common Domain’, the Fundamental Rights –  Part III of the Constitution The Constitution has provided a definite space for both the ‘domains’ i.e. ‘common’ as well as ‘separate’. In Part III of the Constitution, which deals with the Fundamental Rights is divided into two parts viz. (a) the rights which fall in the ‘common domain’ and (b) the rights which go to the ‘separate domain’. In the ‘common domain’, the following fundamental rights and freedoms are covered: i.

 people’s right to ‘equality before the law’ and ‘equal protection of the laws’; [Article 14]

ii.

 prohibition of discrimination against citizens on grounds of religion, race, caste, sex or  place of birth; [Article 15 (1) & (2)]

iii.

authority of State to make ‘any special provision for the advancement of any socially and educationally backward classes of citizens’ (besides the Scheduled Castes and Scheduled Tribes); [Article 15 (4)] 28

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iv.

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 16(1)&(2)]

v.

authority of State to make ‘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; [Article 16(4)]

vi.

 people’s freedom of conscience and right to freely profess, practice and propagate religion –  subject to public order, morality and other Fundamental Rights; [Article 25(1)]

vii.

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 26]

viii.

 prohibition against compelling any person to pay taxes for promotion of any particular religion’; [Article 27]

ix.

 people’s ‘freedom as to attendance at religious instruction or religious worship in educational institutions’ wholly maintained, recognized, or aided by th e State.[Article 28]

2.4 ‘Separate Domain’ of Minority Rights The Minority Rights provided in the Constitution which fall in the category of ‘Separate Domain’ are as under:i.

right of ‘any section of the citizens’ to ‘conserve’ its ‘distinct language, script or culture’; [Article 29(1)]

ii.

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 29(2)]

iii.

right of all Religious and Linguistic Minorities to establish and administer educational institutions of their choice;[Article 30(1)]

iv.

freedom of Minority-managed educational institutions from discrimination in the matter

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of receiving aid from the State;[Article30(2)] v.

special provision relating to the language spoken by a section of the population of any State;[Article 347]

vi. vii.

 provision for facilities for instruction in mother-tongue at primary stage;[Article 350 A]  provision for a Special Officer for Linguistic Minorities and his duties; and [Article 350 B]

viii.

Sikh community’s right of ‘wearing and carrying of kirpans; [Explanation 1 below Article 25]

3. India’s multi-culturalism interwoven in the Constitution The various Articles of the Constitution providing rights to the minorities, clearly and firmly  point out to only one direction: that of a multi-religious, multi-cultural, multi-lingual and multiracial Indian society, interwoven into an innate unity by the common thread of national integration and communal harmony. By the yardstick adopted by the framers of the Constitution and crystallized into its provisions the Indian Nation is not just a conglomeration of individual inhabitants of this State; it comprises of two distinct categories of constituents. The two-tier commonwealth of Indian Nation includes, on one hand, every citizen of India individually and, on the other hand, the multitude of religious, linguistic, cultural and ethnic groups among its citizens. The Indian Nation is an enormous coparcenary in which the individual citizens are also members of their own respective branches taking the form of religious, cultural, linguistic and ethnic groups. And all these groups, like all individuals, have the same Fundamental Rights to enjoy and the same Fundamental Duties to discharge. 4. Protection of weaker sections in Indian pluralistic society The social pluralism of India, as fortified by the unique Constitutional concept of secularism, raises the need for the protection and development of all sorts of weaker sections of the Indian citizenry – whether this ‘weakness’ is based on numbers or on social, economic or educational status of any particular group. The Constitution, therefore, speaks of Religious and Linguistic Minorities, Scheduled Castes, Scheduled Tribes and Backward Classes and makes  –   or leaves

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room for making –  for them special provisions of various nature and varying import.

Such Various provisions of constitution:-

Article 14: The State shall not deny to any person equality before the law or the equal Protection of the laws within the territory of India.

Article 15: (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) 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 —  (a) Access to shops, public restaurants, hotels and p laces of public entertainment; or (b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained Wholly or partly out of State funds or dedicated to the use of the general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children. 1[(4) 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.] 2[(5) 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 31

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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.]

Article 21: No person shall be deprived of his life or personal liberty except according to  procedure established by law.

Article 25: (1) 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. (2) Nothing in this article shall affect the operation of an y existing law or prevent the State from making any law —  (a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I. — the wearing and carrying of kirpans shall be deemed to be included in the  profession of the Sikh religion. Explanation II. — in sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion and the reference to Hindu religious institutions shall be construed accordingly.

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Article 26: 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.

Article 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 he State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 30: (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. 1[(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.

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Article 350A: It shall be the endeavour 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.

CHAPTER -6 : RIGHT TO RELIGIOUS FREEDOM TO MINORITIES

 Now altogether there are five religious categories in India that are granted Minority Rights by its Constitution, the Christians and the Muslims the most populous among them. Articles 29 and 30 that give expression to these Minority Rights (MRs) are as follows. Article 29, defines the protection of interest of the minorities: Article 29 (1) Any section of the citizen 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. 29 (2)No citizen shall be denied admission into any educational institution maintained by the State receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 30 defines the right of the minorities to establish and administer educational institutions: 30(1). All minorities, whether based on religion or language, shall have the right to establish and administer institutions of their choice. 30(1-A) In making any law providing for the compulsory acquisition of any property of an educational institution to establish by the minority, referred in clause (1), the State shall ensure that the amount fixed by or determined under such a law for the acquisition of such property is such as would not restrict or abr0gate the right guaranteed under that clause. 30(2) The State shall not, in granting aid to educational institutions, discriminate any

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educational institution on the ground that it is the management of a minority, whether based on religion or language. A little bit of history On July 1946, India’s Constituent Assembly (CA) was elected into power in accordance with the Cabinet Mission Plan of colonial Britain made on 16 May the same year. The CA was assigned with the task of formulating India’s Constitution which it finalized and submitted to the Parliament and to the nation on January 26, 1950. There was a stipulation in the Cabinet Mission Plan that`the cession of sovereignty to the Indian  people on the basis of a constitution framed by the Assembly would be conditional on adequate  provisions being made for the protection of minorities’. This adequate protection meant to give ‘political safeguards’ to religious minorities, Scheduled Castes and Tribes. This stipulation was based on Britain’s notion ”that India was a conglomeration of communities rather than a nation”. Political safeguards were to ”adjust the balance between different communities in representative bodies, public services and other arenas.” In the initial deliberations in the CA, approval was given to this British position. However, in the final draft of the Constitution ”religious minorities were excluded from the purview of all  political safeguards” which made the only the scheduled Castes and tribal groups eligible for it. This momentous development, argues Rochana Bajpai was made because in the nationalist discussions, ”the political ideals of secularism, democracy, justice and national unity were construed in ways that precluded political safeguards for minority groups.” . You can read it here. That is any preferential treatment in the name of religion was seen undermining the ideals of secularism, discussed at length in the CA. So then what remained was the question of SC and ST. Arguments for compensatory justice and preferential treatment for both these ”referred to a history of exploited Hindu”.

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But what had happened in the further discussions in the CA was that the term ‘minority’ took a narrow term by which the historical minorities were also excluded from the purview of political safeguard. This was followed by an amendment by K.M.Munshi. He said “…my amendments seeks to clarify the position that so far as the Scheduled Castes are concerned, they are not minorities in the strict meaning of the term; that Harijans are part and parcel of the Hindu community, and that safeguards are given to them to protect their rights only till they are completely absorbed in the Hindu Community” (my emphasis). Reservation was given to them as a protective right to attain equality with the privileged caste Hindus.  Not only that, by Article 25 (b) Sikhs, Jains and the Budhists were deemed to be Hindus.Other  backward Castes about which CA made no mention so far were also made Hindus. Minority –  majority. Promotion of the harijans and the rest of the Indian religions into the Hindu community that instantly transformed it into India’ s numerical majority might appear to be an act of solidarity by the caste brahmins who played a central role in India’s caste discrimination as well as in the CA (one fourth of the 403 members in the CA came from 5% brahimin castes). But the following definition of ‘Hinduism” by Vinayak Damodar Savarkar, the prominent proponent of Hinduthva, makes one doubtful about it. ‘‘Hinduthva: Savarkar claimed that the term Hinduism includes all religions of Hindus, such as Bhuddhists, Jains, Sikhs, and even tribal communities. He was almost close to the idea that if any one wants to be an Indian he or she should be a Hindu” Earlier, following the Aryan supremacist position and the propaganda India received as the cultural home of Europe from the romantic poets of the 18th century Europe, Hinduism had attained a new global fame. Inspired by that fame and the ideals of  European Oriental-ism was framed Hinduthva on a new set of political, cultural and religious fundamentals. Most importantly it instantly bared the minority’s fears and their vulnerability. It was to alleviate those fears that MRs were granted to protect their d istinct religious and linguistic feature. 36

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The constitution of India guarantees different rights to the minority. These are cultural and educational

rights

which

have

been

guaranteed

under

Article

29

and

30.

Article 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 he State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 30: (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. 1[(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.

Who are the persons of inherence of the rights under Article 30 of the Indian Constitution? This right secures to religious and linguistic minorities a right to establish and administer educational

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institutions of their choice. Whenever, therefore, a group seeks its protection by challenging a law or executive action before a court, the foremost question that the court must dispose of a  preliminary step is whether the group seeking protection is in fact a minority definable in terms of the article. The probe would require an enquiry into two questions, (i) What is a minority? (ii) How is minority to be ascertained in a given situation? The Constitution nowhere defines the terms 'minority', nor does it lay down sufficient indicia to the test for determination of a group as minority. Confronted, perhaps, with the fact that the concept of minority, lie its problem, was intercalate, the framers made no efforts to bring it within the confines of a formulation. Even in the face of doubts being expressed over the advisability of leaving vague justiciable rights to undefined minorities, the members of the Constituent Assembly made no attempt to define the term while article 23 of the Draft Constitution, corresponding to present articles 29 and 30, was being debated, and, presumably left it to the wisdom of the courts to supply suppl y the omission. However, as the following would show, the opinions of the courts on the first question appear to  be the result of a half-hearted attempt, and, only indicate the futility of depending dep ending on them in any an y search for an answer to the second question.

The word minority has not been defined in the Constitution. The Motilal Nehru Report (1928) showed a prominent desire to afford protection to minorities, but did not define the expression. The Sapru Report (1945) also proposed, inter alia, a Minorities Commission but did not 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;

3) Such minorities should be loyal to the state of which they are nationals.

38

and

Bhartiya Vidhyapeeth University, Pune

The initial courtroom attempt to answer the first question was made in In re Education Bill 9 where the Supreme Court, through S.R. Das C.J., suggesting the techniques of arithmetic tabulation, held that the minority means a "community, which is numerically less than 50  percent" of the total population. This statistical criterion prevail with the Kerela High Court also which, in A.M.Patroni v. Kesavan , defined minority to mean the same thing as it meant to the Supreme Court. The 'definition' refers to group of individual who are particularly smaller as the majority in a defined area. It 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 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." Minority in other sense also means, a group constituting a minority group have a feeling of  belonging to one common unit, a sense of akinness or community, which distinguishes from those belonging to the majority of the inhabitants. They are "group held together by ties of common descent, language or religious faith and feeling themselves different in these respects from the majority of the inhabitants of the given political entity." There are also those who define minority in terms of relationship between the dominant groups and minority. To them it is much more important "to understand the genesis of the relationship between dominant group and minority then it is to know the marks by the possession of which people is identified as member of either." Rose defined minority as a "group of people differentiated from others in the same society by race, nationality, religion, or language - who both think of themselves as a differentiated group and are though of by others as a differentiated group with negative connotation."

9

AIR 1958 SC 956

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Thus most of the definitions explained above place emphasis either upon certain common characteristics present among the members of the groups which serve as the marks of distinction and such objective test, and it is only in some cases that the factor of relationship between the dominant and non dominant group is regarded as the main determinant of minority status which, in turn, at least some cases, renders relative numbers in and out of the group concerned as irrelevant for definitional purpose. A 'consciousness' of the difference with the majority on the basis of certain characteristics is, therefore, considered as a distinguishing mark, and as such a subjective element. thus, the definition which lays emphasis upon certain subjective factors such as 'feeling' or 'consciousness'  provide a test which is too vague and uncertain, and more psychological in nature than real. Every situation may not necessarily involve the assumption that the group in order to deserve the title of 'minority' must be distinguishable from the majority by the presence of the feeling or consciousness of its being different from the majority. A group distinguishable from others by the possession of certain objective characteristics, such as language, may not have a feeling or consciousness of its distinct status of being counting as minority. The most acceptable definitions, given by the Human Rights Commission, is not beyond the reach of argument. That definition appears to be confined to those non dominant groups only which, apart from having certain objective characteristics that are distinctively of their own, wish to preserve the distinctive identities and are not willing to be assimilated with the rest of the population.  No definition comes out to be comprehensive to cover all the varied situations, illustrates the difficulty experienced in assigning limits to concept of minority. This must remain the possible explainable reason why courts have not ventured to formulate a general definition. Indeed, as far as the limited purpose of article 30 is concerned, such a venture would have been rather unnecessary too. For, religion and language being the criteria indicated in article 30, a precondition for the latter acceptability, the Constitution itself tends to confine the tasks of the courts to the ascertainment whether the group claiming constitutional protection is the group identifiable by the characteristics of religion or language and is numerically non dominant. The

40

Bhartiya Vidhyapeeth University, Pune

courts have therefore, only to be sure for themselves that the basis of claim to protection is ether religion or language. Interpreting the words, "based on religion" in article 30, the Delhi High Court rightly pointed out that the words would mean that "the only or the principal basis pf the 'minority' must be their adherence to one of the many religions…and that the other features  of the minority are subordinate to the main feature, namely, its separateness because of the religion." A similar interpretation can also be placed on the words 'based on language'. That being so, it can be concluded that for the purpose of article 30, a majority means a non-dominant collectively distinguishable from the majority of population by the objective factors of religion or language or language or a combination of both.

Constituent

Assembly

Debate:-

The whole debate in the Constituent Assembly on article 23 of the Draft Constitution which later assumed the shape of the present article 29 and 30, revolve round this issue: what rights could or should be conceded to minorities? The reference to minorities was a reference to none other than Indian minorities existing in India. The original draft of the fundamental rights submitted to the Constituent assembly on April 16, 1947 by the Sub-Committee on Fundamental Rights did not contain any provision corresponding to article 30(1) and did not even refer to the word minority. The letter submitted by K.M. Munshi to the Minorities Sub-Committee on the same date when, along with some other rights, the rights now forming part of article 30(1) was proposed, made a reference on the term "national minorities". The Drafting committee, however, sought, to make a distinction between the rights of any section of the citizen to conserve its language, script or culture and the right of the minorities  based on religion or language to establish and administer educational institutions of their choice and for this the committee omitted the word 'minority' in the earlier part of the draft article 23

41

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corresponding to article 29, while it retained the word in the latter part of the draft article 23 which now forms part of the article 30(1). Ambedkar sought to explain the reason the reason for substitution in the Draft Constitution of the word minority by the words "any section" observing: It will be noted that the term minority was used therein not in the technical sense of the word 'minority' as we have been accustomed to use it for the purpose of certain political safeguards, such as representation in the Legislature, representation in the service and so on. The word is used not merely to indicate the minority in the technical sense of the word, it is also used to cover minorities which are not minorities in the technical sense, but which are nonetheless minorities in the culture and linguistic sense. That is the reason why we dropped the word "minority" because we felt that the word might be interpreted in the narrow sense of the term when the intention of this House….was to use the word 'Minority' in a much wider sense so as to give cultural protection to those who were technically not minorities but minorities nonetheless.

Ambedkar's explanation that the right was available not only to minorities in the 'technical sense'  but also to minorities in the 'wider sense' has an obvious reference only to that part of Draft article 23 which now forms part of article 29(1) and not to that which is now clause (1) of article 30. His expiation, therefore, may be taken to be an attempt to broaden the scope of clause (1) of article 29 only so as to include within the term 'minority' other minority groups also, as contemplated and illustrated by him, and thus to confine article 30(1) to those minorities which he described as minorities in the technical sense, were politically recognized and the most  prominent amongst them were represented in the Constituent Assembly also. The whole problem, as far as this part of constitution is concerned, that engaged considerable time and efforts of the framers was to achieve a consensus an a constitutional arrangement,  between the numerically dominant majority considered as such on the national scene and the minorities referred to above- a solution which could give the minorities a feeling of security against discrimination, and security against interference with those characteristics which had

42

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divided them apart from the majority. And, it is too obvious to be noted that, at no stage was any section of this majority ever treated as 'minority'. If these assumptions as accepted as truly reflecting the intention of those who drafted and incorporate these provision in the constitutional document, with a wishful hope that they were rendering a constitutional solution to the problem of Indian minorities, it may be argued that where a minority is the historical or national context and its claim is based on religion it must be defined and ascertain in terms of the population of the whole country, irrespective of its being in numerical majority in any particular state; and, where a group in not a minority considered as such in the national context, but is still definable as 'minority' under Ambedkar's stretched meaning of the term, it may be ascertained with reference to the population of the state concerned. The argument is correct, it is submitted, if the provision in the question are viewed against the historical prospective in which they were adopted, and are construed to carry into effect the true spirit and intention of the constitution.

Protection

of

Interest

of

Minorities:

Article 29 of the Constitution of India defines the protection of interest of minorities: 1) Any section of the citizen residing in the territory of India or any part thereof having a distinct language,

script

or

culture

of

its

own

shall

have

right

to

conserve

the

same.

2) No citizen shall be denied admission into any educational institution maintained by the State receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Clause (1):Clause (1) gives protection to every section of the citizens having distinct language, script or culture by guaranteeing their right to conserve the same. If such section desires to preserve their own language and culture, the state would not stand in their way. A minority community can effectively conserve its language, script or culture by and through educational institutions and therefore necessary concomitant to the right to conserve its distinctive language, script or culture 43

Bhartiya Vidhyapeeth University, Pune

and that is what is conferred on all minorities by article 30(1). But article 29(1), neither controls the scope of article 30(1) nor is controlled by that article. The scope of the two is different. Article 29(1) is not confined to minorities but extends to all sections of citizens. Similarly article 30(1) is not confined to those minorities, which have 'distinct language, script or culture' but extends to all religious and linguistic minorities. Further, article 30(1) gives only the right to establish and administer educational institutions of minorities' choice while article 29(1) gives a very general right 'to conserve' the language, script or culture. Thus, the right under article 30(1) need not be exercised for conserving language, script or culture. Clause (2):Clause (2) relates to admission into educational institutions, which are maintained or aided by state funds. No citizen shall be denied admission in such institutions on grounds only of religion, race, caste, language or any of them. Article 15 prohibits discrimination against citizen on ground of religion, etc. but the scope of two articles is different. Firstly, article 15(1) protects all citizens against the state where as the protection of article 29(2) extends to the state or anybody who denies the right conferred by it. Secondly, article 15 protects all citizens against discrimination generally but article 29(2) is a  protection against a particular species of wrong, namely, denial of admission into educational institutions maintained or aided by the state . Finally, the specific grounds on which discrimination is prohibited are not the same in two articles. 'Place of birth' and 'sex' do not occur in article 29(2), while 'language' is not mentioned in article 15. The right to admission into an educational institution is a right, which is an individual citizen, has as a citizen and not as a member of a community or class of citizen. Hence a school run by a minority, if it is aided by state funds, cannot refuse admission to children belonging to other communities. But the minority community may reserve up to 50 percent of the seats for the members of its own community in an educational institution established and administered by it even if the institution is getting aid from the State. The state, however, cannot direct minority educational institutions to restrict admission to the members of their own communities. Article 29(2), however, does not confer a legal right on the members belonging to other communities to

44

Bhartiya Vidhyapeeth University, Pune

freely profess, practice and propagate their religion within the precincts of a college run by a minority community . Article 29(2) cannot be invoked where refusal of admission to a student is on the ground of his not possessing requisite qualifications or where a student is expelled from an institution for acts of indiscipline. To overcome the conflict with article 15 as well as article 29 the Constitution (First Amendment) Act, 1951, added clause (4) to article 15 to the effect that nothing in article 15 and article 29(2) shall prevent state from making any special provision for the advancement of any socially and educationally backward classes of citizen or for the schedule caste and the schedule tribes. The state is empowered to reserve seats in state colleges for socially and educationally backward classes of citizen or for SC and ST. Rights

of

Minority

to

Establish

and

Administer

Educational

Institutions

Article 30 of the Constitution of India defines Rights of Minority to Establish and Administer Educational

Institutions:

-

1) All minorities, whether based on religion or language, shall have the right to establish and administer

educational

institutions

of

their

choice.

[1-A) In making any law providing for the compulsory acquisition of any property of an educational institution establish and administered by a minority, referred 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. Clause (1):Clause (1) gives rights to all minorities based on religion or language the right to establish and administer educational institution of their own choice. Article 29 and 30 are grouped together it will wrong to restrict the rights of minority to establish and administer educational institution concerned with language script and culture of the minorities. The reasons are: Firstly, article 29 confers the fundamental rights on any section of the citizen which will include the majority also

45

Bhartiya Vidhyapeeth University, Pune

where as article 30(1) confers all rights on all minorities. Secondly, article 29(1) is concerned with language, script or culture, whereas article 30(1) deals with minorities based on religion or language. Thirdly, article 29(1) is concern with the right to conserve language, script or culture, whereas article 30(1) deals with right to establish and administer educational institutions of the minorities of their choice. Fourthly, the conservation of language, script or culture under article 29(1) may be by means wholly unconnected with educational institutions, and similarly establishment and administer educational institutions by a minority under article 30(1) may be unconnected with any motive to conserve language, script or culture. A minority may administer an institution for religious education, which is wholly unconnected with any question of conserving language, script or culture. It may be that article 29(1) and article 30(1) overlap, but the former cannot limit the width of the latter. The scope of article 30 rests on the fact that right to establish and administer educational institution of their own choice is guaranteed only to linguistic or religious minorities, and no other section of citizens has such a right. Further article 30(1) gives the right to linguistic minorities irrespective of their religion. It is, therefore, not at all possible to exclude secular education from article 30. The expression 'minority' in article 30 remains undefined though the court has observed that it refers to any community which is numerically less than 50 percent of the population of a  particular state as a whole when a law in consideration of which the question of minority right is to be determined as a State law. A community, which is minority in specific area of the State though a majority in the state as a whole, would not be treated as minority for the purpose of this article. A minority could not also be determined in relation to entire population of the country. If it was a state law, the minorities must be recognized in relation of that state. But the fact that the expression minority an article 30(1) is used to distinct from 'Any section of citizen' in article 29(1) lends support to the view that article 30(1) deals with national minorities or minorities recognized in the context of entire nation. In that case, however, article 30(1) would become inapplicable to the national majority even if it is a minority in any particular state, e.g., Hindus in Punjab or Jammu and Kashmir. Although article 30(1) does not speak of citizens, the minority competent to claim the protection of that article must be a minority of person residing in India. 'The minority under article 30 must 46

Bhartiya Vidhyapeeth University, Pune

necessarily mean those who farm a distinct and identifiable group of citizen in India'. Article 30(1) does not confer upon foreigners not residents in India the right to set up educational institutions of their choice. The right conferred on minorities is to establish educational institutions of their choice. It does not say that minority based on religion should establish educational institutions for teaching of their own language alone. The article leave it to their choice to establish such educational institutions as will serve both the purpose, namely, the  purpose of conserving their religion, language, or culture, and also the purpose of giving a thorough general education to their children. Minorities are, however, not entitled to have educational institutions exclusively for their benefit. In D. A. V. College v. State Of Punjab10  , it was observed that, a linguistic minority for the  purpose of art. 30(1) is one which must at least have a separate spoken language. It is not necessary that that language should also have a distinct script for those who speak it to be a linguistic minority. Religious or linguistic minorities should be determined only in relation to the  particular legislation which is sought to be impugned, namely that if it is the State Legislature these minorities have to be determined in relation to the population of the State. Arya Samajis have a distinct script of their own, namely Devnagri therefore they are entitled to invoke the right guaranteed under art. 29(1) because they are a section of citizens having a distinct script and under art. 30(1) because of their being a religious minority. Sub-sections (2) and (3) of s. 4 do not in our view offend by themselves any of the rights of the petitioners either under art. 29(1) or art. 30(1) of the Constitution. Nowhere there is a mandate for compelling Colleges affiliated to it either to study the religious teachings of Guru Nanak or to adopt in any way the culture of the Sikhs. Thus religious or linguistic minorities should be determined only in relation to the particular legislation which is sought to be impugned, namely that if it is the State Legislature these minorities is to be determined in relation to the population of the State. It was held that, religious instruction is that which is imparted for inculcating the tenets, the rituals, the observances, ceremonies and modes of worship of a particular sect or denomination. 10

AIR 1971 SC 1737

47

Bhartiya Vidhyapeeth University, Pune

To provide for academic study of life and teaching or the philosophy and culture of any great saint of India in relation to or the impact on the Indian and world civilizations cannot be considered as making provision for religious instructions. The State of Punjab is created as a unilingual State with Punjabi as its language and if provision is made for study of Punjabi language that does not furnish a ground for discrimination nor can the provision for study of the life and teachings of Guru Nanak afford any cause for complaint on grounds of violation of art. 14 of the Constitution. The right to form association implies that several individuals get together and form voluntarily an association with a common aim, legitimate purpose and having a community of interest. The right extends inter alia to the formation of an association or Union. Section 5 of the impugned Act does not effect the right of D.A.V. College Trust and Society to form an association. Therefore, there is no infringement of art. 19(1)(c). The right conferred on minorities is to establish educational institutions of their choice. It does not say that minority based on religion should establish educational institutions for teaching of their own language alone. The article leave it to their choice to establish such educational institutions as will serve both the purpose, namely, the purpose of conserving their religion, language, or culture, and also the purpose of giving a thorough general education to their children. Minorities are, however, not entitled to have educational institutions exclusively for their benefit. Clause (2):Clause (2) is only a phase of non-discrimination clause of the constitution and does not derogate  provisions made in clause (1). The clause is expressed in negative terms: the state is therefore enjoined not to discriminate in granting aid to educational institutions on the ground that the management of the institutions is in the hands of minority, religious or linguistic. The clause does not mean that the state is competent otherwise to discriminate so as to impose restrictions upon the substance of rights to establish and administer educational institutions by minorities. The rights established by article 30 (1) is intended to be a real right for the protection of the minorities in the matter of setting up of education institution of their choice.

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Kerela Education

Bill

Case11:-

The article first came up for interpretation before a seven judge Constitution Bench constituted to consider the reference made by the President under article 143 in In re Kerla Education Bill sponsored by the Communist Government of the state which was stoutly opposed by Christians and Muslims. Chief justice S.R. Das delivered the majority opinion. He spoke for six judges- the sole dissent by justice Venkatarama Aiyar being confined to the question whether minority institutions were entitled also to recognition and state aid as part of the right guaranteed by article 30(1).C.J.Das held, interalia:

a) An institution, in order to be entitled to the protection, need not deny admission to members of other

communities.

 b) It is not necessary that an institution run by religious minority should impart only religious education or that one run by the linguistic minority should teach language only. Institution imparting general secular education is equally protected. The minority has a right to give "a thorough,

good

general

education".

c) Grant of aid or recognition to such institution cannot be made dependent on their submitting to such stringent conditions as amount to surrendering their right to administer to them. However the right to administer does not include the right to misadministration reasonable regulations can  be

made.

d) Regulation prescribing the qualifications for teachers was held reasonable. Those relating to  protection and security of teachers and to reservation in favor of backward classes which cov ered government schools and aided schools alike, were "perilously near violating that right", but "at  present advised" were held to be permissible regulations. Provision centralizing recruitment of teachers through State Public Service Commission and taking over the collection of fees etc. were held to be destructive of rights of minorities to manage the institutions.

11

AIR 1958 SC 956

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Bhartiya Vidhyapeeth University, Pune

Clauses of the Bill, which authorized the taking over of management in the event of specified failings, in effect, annihilated the minorities' right to administer educational institutions of their choice. Minority

Rights

flow

from

Articles

14,15,19(1)(2)

21,

&

26

(a)

Thus while it is true that it is only the minorities whose right to establish and administer educational institutions is mentioned n article 30(i) it dos not follow the same is denied to the majority communities. It was considered necessary like a special mentioned for the right of minorities by way of extra assurance to it is not correct to say that minorities were considered  backward and needed concessions though article 30(i) to bring them up. The object was to make that they will not be discriminated against. It was not intended to pamper as favored communities. It should follow therefore form articles 14 and 15 majority communities have right to similar treatment at the hands of the in the matter of recognition affiliation government aid or non displacement management in respect of educational institutions established by majority as accorded to minority institutions of course condition can and to be imposed in regard to aid, affiliation and recognition in order to ensure standard of teaching but the same have to be uniformly onerous and not be so drastic as to involve surrender by the community or founder or management of its right to establish and administer the institution. The thesis that the majority in a system of adult franchise hardly needs any action it can look after itself and protect its interests any measure wanted by majority can without much difficulty  be brought on the statute book because majority can bet that done by giving a mandate to the elected representatives only the minorities who need protection is with the utmost respect to the anguished judge to naive to command acceptance. Modern parliamentary democracy are run on a  party system which in India the more so in the post mandal is built largely on the basis of caste and communal co9nbination Government are returned to power not on the basis of issues or mandates. Managements functional institution do not for a vote bank wile their teachers do the. Religions majority namely Hindus are not a homogeneous monolith. It is a much-divided society. There are caster and sub caste division and the same court defense to the legislative and executive wisdom on article has no made things easier electoral arithmetic has led to all sorts of and combination. 50

Bhartiya Vidhyapeeth University, Pune

Apart from articles 15 and 15(I) this right to establish and administer educational institutions also flows as seen above form articles 19(i) (g) and 26(a), which make no distinction between majority and minority communities. The right of students to education as a fundamental right under article 21, also simples that they as well as their parents have the right to choice of institutions in which they would like the former to be educated. Every community has a right to found and administer educational and other charitable institutional and to run them according subject perceptions of what is best of the community and for the institution subject of  perceptions of what is best for the community and for the distinction for religion or language minority or majority. The only consequence of this will be that provisions relating to displacing of managements through statutory schemes of administration or through take over of institutions and appointment of authorized controllers and also those divesting the management of the powers of appointment and discipline pertaining to teachers will have to be treated as unconstitutional in so far as they relate to majority institutions too to the same extent as they have been treated vis-à-vis minority institutions and it will not be such a bad thing from the educational angle either the ground reality is that just as nationalization of many private industries on ground of mismanagement by industrialists has proved counter productive. so also has the taking over of the management institutions. The cause. for interference in each case was the acts of mismanagement and dissipation on the party of private mil owners or school college managers. But the bureaucrats displacing them have by and large not felt any commitment to the industry institution at all and have succumbed to political pressures with the result that things have only worsened instead of improving. That is why they are now being re-privatized it is only though de politicization of control over the institutions that the management can be better and more evenly disciplined. Deprivation of management of their power in regard to appointment and discipline of teachers has likewise led to a steep fall in discipline and standard. Many teachers do not care to listen even to their principal or head of department what to say of the management. Absenteeism indulgence in private tuitions and running of coaching schools are the order of the day. Of course regulatory provision to the same extent not more noels as have been accepted to be necessary for the protection of teacher of minority institutions would in any case continue in relation to teachers of majority institutions also. The trend the work over is now for less and less of 51

Bhartiya Vidhyapeeth University, Pune

government. If misadministration can be prevented in the case of minority institutions without emasculating the management the same should be minority institution too. As per Ray C.J. in St. Xavier's and per Jag Mohan Reddy J. all institution irrespective of any denominational distinction should be places of workshop of lea rning for students

The courts, however, seem to have been persuaded by practical compulsion rather than be swayed away by a feeling of faithfulness to the spirit. Their course of opinion seems to have  been

determined

by

some of

the

followings:

i. That provisions in question seeks to protect minorities against state action, which term includes laws

and

also

under them, executive

actions.

ii. That ours being a federal democratic system, political and legislative processes operate not only

from

the

national

center

of

power

but

also

from

the

states.

iii. That these states are autonomous in their respective legislative spheres-and laws are passed  by

majority

votes.

iv. That minorities, considered as much on the national level, do constitute numerical majority in some states. v. That these majorities may, by their laws, deny the protection to the non-dominant group which the

Constitution

so

emphatically

seeks

to

secure.

vi. That these majorities may, by their numerically strength, overshadowed the distinct shadow the distinct characteristics and individuality of the non-dominant groups, and the latter may have to

live

under

a

psychological

fear

of

being

discriminated

and

overwhelmed.

vii. That it was this fear in some sections of some minorities at least, which had pervaded the  politics the politics of pre-partition India, and that it was on this premise that minority rights were

demanded

and

conceded

in

Constitution

Assembly.

viii. That it is this fear, which still continues to be the core component of the minority component. ix. That the assurance to protection for minorities can tell its true meaning only when a nondominant group in a state is define and ascertain as 'minority' where the law in question is a state law, eve though the group happens to be a part of the 'majority', considered a majority in the context

of

the

whole country. 52

Bhartiya Vidhyapeeth University, Pune

x. That the same reason that became the basis for article 29 and 30 to find a place in the category of justiciable Fundamental Rights must be valid in this situation also.

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CHAPTER- 7 : PURPOSE OF GRANTING CULTURAL AND EDUCATIONAL RIGHTS TO THE MINORITIES IN INDIA

India is a land of myriad ethnic, religious, caste and linguistic minorities affiliated to distinct  belief systems, sub-cultures and regions. Integration of these diverse communities, some large enough to aspire to a regional homeland and others content to remain as part of the Indian state has been a central preoccupation of Indian governments since 1947. It is important to understand the condition of the minority in the present and past scenario. Despite the several efforts by the government to improve the condition of the minority, constitutional guaranteed rights, different institution and commission established to monitor, failed. Minority faces discrimination, violence and atrocities. These cults have come into the light many times whether it is Gujarat riots where more than 2000 Muslims were killed, or following Indira Gandhi assassination led to the murder of 3000 Sikhs in Delhi. Atrocities against dalit in Bihar, Jharkhand, Maharastra Gujarat, and in north eastern part of the India is very common. We can see the results of this kind of ruthless discrimination in Maharastra in recent days. The purpose to guarantee these rights and to distinguish them from majority was not creating such discrimination but to make them able, to diffuse them with the majority. Even the  foreigner residing in India and forming the well defined religious and linguistic minority also  fall under the preview of this Article. ‘Persons belonging to minorities have the right to  participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.’ Before moving ahead we have to ponder over some of the concepts which are important. First and foremost what is minority? Second what are the rights guaranteed to them? Who guarantee them these rights? For what purpose these rights are bestowed to them? Is it serving its requisite end? 54

Bhartiya Vidhyapeeth University, Pune

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 12 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 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.

12

Supra 7

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CHAPTER- 8 : JUDICIAL APPROACH

The constitution of India guarantees different rights to the minority. These are cultural and educational

rights

which

have

been

guaranteed

under

Article

29

and

30.

Article 29 Protection of interests of minorities. (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 hav e the right to conserve the same. The application of this Article is upon person having a distinct language, script or culture of its own and it takes into the consideration two types of minority one linguistic and other religious minority. If they have the same can be protect it. This right includes the rights “to agitate for the  protection of the language.” It also not subject to any reasonable restriction like other fundamental rights and hence it is an absolute right. Under Article 29(1) any school or university can promote education in regional language as far as it is done for minor and language of the minor. In D.A.V school, Jullundur v. state of Punjab

13

the above provision was challenged on the

ground that the college administered by the religious minority i.e. Arya Samaj and affiliated university would be compelled to study the religious teaching of the Guru Nanak and this would mount to violation of the Article 29.Supreme court declined the view and said that the there is no mandate in the provision for compelling affiliated colleges either to study religious teaching of the Guru Nanak, or to adopt in any way the culture of the Sikh. If the university includes the teaching and life of the saint for the research and philosophical it can not be said that the affiliated colleges are being required to compulsorily study his life and teaching.

13

 AIR 1971 SC 1737

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The provision meant that for the promotion of the majority language minority should not be stifle. If any body does it will be trespass on the rights of the sections of the citizens who have distinct language or script and which they have a right to conserve through their own educational institutions. So the minority institution affiliated to the Guru Nanak University to teach in the Punjabi language, or in any way impeding their rights to conserve their language, script or culture. (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. This Article is wide and unqualified. It confers a special right not on the minority but to the majority also for the admission in the state maintained or aided educational institution. If it would be only limited to the minority it would mean that majority has no right for the admission in the state maintained or aided educational institution. This it is very clear trough these  provision that in any case no one can discriminate on the ground of the language, caste or religion. Whether it is state maintained education institute or private aided institution. Now it is important to know the application of the above Article. Dispute of its application was firstly arisen in State of Maharastra v. Champakam . Communal G.O. of the state of Madras allotted seats in medical and engineering college in the proportionately to the several communities. A Brahmin candidate who could not be admitted to the engineering college challenged the G.O. as  being inconsistent with the Article 29(2). Supreme Court held that the classification on the ground of the caste was inconsistent with the provision of the Article. Even though petitioner has got much higher marks than those who secured by non Brahmin who were admitted in the seats allotted to them, he could no admitted in any institution. The reason was that he was Brahmin. In another case Supreme Court denied the view that intake of students on the ground language is violating of the fundamental rights. In instant case Bombay Government by an order banned the admission of those whose language is not English to a school using English as a mode of instruction. Argument advanced by the state was that by doing it is trying to promote national language. Court said that the view is right but could not be upheld as it is violating of the

57

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fundamental rights. So there should not be any discrimination on ground of language in matter of admission which has been clearly stated by the Hon’ble Supreme Court of the India. Dividing sates in two regions and then allocating seats for medical and engineering college in the state between these regions does not violate Article 29(2). Refusal of admission on grounds of not possessing requisite academic qualification or because any one was expelled for the indiscipline. Reservation for rural student passing class out of VIII was held bad decision in Suneel Jitley v. State of Haryana. Supreme Court said that basis of reservation was irrational. As student from the rural area can study in urban area still he would have been preferred. While a student of urban area could have been studied in rural area and could have became entitled for reservation. Also the education up to VIII standard does not make any difference to medical education. Hence there was no nexus between the classification and object sought to achieve.

Relation

between

Article

29(2)

with

article

15(1)

and

15(4)

Article 15(1) prohibits discrimination on grounds of religion, race, sex, caste or place of birth. Still there is significant differences between these two articles, 15(1) protects all citizen against discrimination by the state where as Article 29(2) extends protection against the state, or any  body who denies the right conferred. Article 15(1) is much broader than the 29(2) as it covers numerous conditions where as article 29(2) only deal with the protection against only one wrong namely denial of admission in state aided or maintained educational institute. Article 15(1)  broader than 29(2), whenever second one is not applicable the first one is apply. Article 15(4) was added by first amendment of the constitution. It was introduced for the advancement of the socially and educationally backward classes of citizen or of SC and ST. Rights guaranteed under Article 29(2) is limited by the Article 15(4) as it has provision of reservation in an educational institute for some section of the Indian citizen. If state prescribe a some percentage of reservation in any educational institute for a certain section of the people under Article 15(4), but not increases more than the prescribed limited than reservation of the rest can not be set aside as it would be violating of the fundamental right under 58

Bhartiya Vidhyapeeth University, Pune

article 29(2). Any reservation of seats in an educational institute seats not justified under Article 15(4) cannot be valid. Article 30. Right of minorities to establish and administer educational institutions. (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 (i), 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. The benefit of Article 30(1) extends only to linguistic or religious minorities and not to any other section of the Indian citizens. Article here sate linguistic and religious minority. Here minority means that community which is less than 50 percent of the total population with the respects of the population of the state. The words in the article administer and established in the Article 30(1) have to be read together. This means that the religious minority will have the right to establish the educational institution and can administer it only. If it established by the other community or by any other person then they cannot claim the right under this article. Like Aligarh Muslim university was established by the statutory provision and hence can be designated as minority educational institute. The minority factor to attract Article. 30(1) is the establishment of the institution established by the minority concerned. The Supreme Court has observed in Azeez Basha14  . Article 30(1)  postulates that the religious community will have the right to establish and administer education institute of their choice meaning thereby where religious minority establishes an education institution, it will have the right to administer institute of their choice provide that they have established them not otherwise. It has to be proved by producing satisfactory evidence that the institution was established by the minority claiming to administer it. The onus of the proof lies

14

 AIR 1968 SC 662

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on one who asserts an institution is a minority institution. It is sole decision of the court to decide whether the institution is minor or not. Even the government has recognized it as minor institute. In Yogendra Nath Singh v. State of uttar pradesh the Government recognized an institution as minor institution. This order was challenged in the high court through a writ petition. Looking into the antecedent history of the institution right from its inception , the court decide that the institution was not established as minority institution, and, therefore, it could not granted the minority status even though it presently it was managed by the minority community. Under this Article both the condition “established and managed” should be read together and absence of even one would unfit the institution for the status of the minority institution. 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. Article 30(2) bars the state, while granting aid to educational institution on the ground that it is under the management of a linguistic or a religious minority. Government aided educational institute should not be discriminated by the state on the ground that it is under the management of a minority, whether based on religion or language. Minority educational institute are entitled to get financial assistance much the same way as the educational institutions run by the majority community. This does not mean that the minority educational institution can claim state as a matter of right. But there should not be discrimination while providing financial assistance. Purpose

of

Granting

Cultural

and

Educational

right

The Above rights have been granted by the Constitution with certain underlying purpose. Being India as a secular state to maintain it and let the minority to mix with the main stream society. And can also help in the development of the country. Other reason is that India is a country of diverse culture, and every body is equal. Hence they have the equal opportunity to preserve it. As Supreme Court in Ahmedabad St. Xavier College v. State of Gujarat15 pointed out that the spirit  behind the provision of the following article is conscience of the nation that the minorities,

15

 AIR 1974 SC 1389

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Bhartiya Vidhyapeeth University, Pune

religious as well as linguistic, are not prohibited from establishing and administering educational institutes, of their choice for the purpose of giving their child the best general education to make them complete man and women of the country. The minorities have been given protection to preserve and strength the integrity of the country. The sphere general secular education will develop the commonness of boys and girls of India. This is the true spirit of liberty, equality and fraternity through medium of education. The minority will fell isolated and separated if they are not given these rights. General secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole. The rights to administer have been given to the minority, so that it can mould the institution as it thinks fit, and accordance with its idea how the interest of the community in general, and institution in particular, will be best served.

Rights of Christian Missionaries to Establish and Administer Educational InstitutionsIt is well known that the standard of Christian missionary educational institutions was by and large higher than the level of other institutions. Thanks to the dedication of Christian missionaries, aided generously by the British rulers, the education as well as literacy average of Christians is also higher than that of Hindus. The facile assumption in St. Stephen's College v. University of Delhi16, made in the context of  preference to the Christians in the matter of admission to a Christian institution that minorities are "underprivileged" communities and that the principle underlying article 16(4) is attracted in the matter is with due respect, not based on any factual survey. The only circumstance cited in support of this conclusion was that if admission were to be strictly on merit, not even ten percent seats were secured by Christians in the total population of the country is much less, this can hardly be a matter of alarm. Thus, the protected minorities are not required to confine admission to their institutions to member of their minority community in order to earn constitutional  protection. Often, in minority institutions, the student belonging to the majority far out numbered

16

 AIR 1992 SC 83

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those belonging to the minority concerned. It cannot therefore be said that it was proposed through article 30 to raise the educational standard of the minorities in order to make them equal to others. In Sidhajbai v. State of Gujarat , unanimous decisions of a six judge Constitution Bench. The  petitioners were again Christian missionaries who were running numerous primary schools s chools and also a training college for teachers which fed those schools. The state government ordered that 80 percent of the seats in that training college should be reserved for teachers deputed by the government. The management were also directed to provide hostel accommodation for them. Direction regarding observance of holidays were also issued. On refusal of the management its grant were stopped. This was challenged by the management, Shah J. speaking for the court, expressed the tentative view that under article 26(a) every religious denomination had a right to establish and maintain institutions for religious and charitable purposes, "and in a larger sense an educational institution may be regarded as charitable". The learned judges added that it was not necessary to decide this question as article 30(1) itself was squarely attracted. There was hardly any need for hesitation in expressing this view in basing this decision. As pointed out by Seervai: In India as in England the advancement of education is also recognized head of charity; therefore educational institutional would be covered by b y the words 'charitable institutions' in article 26(a). Though the objective of training of teachers of schools of local bodies may be in the public interest, the same could not be permitted to be achieved at the cost of the institutions. The regulations, which may lawfully be imposed as a condition of receiving grant or recognition, it was held, "must satisfy a dual test, the test of reasonableness and that it is regulative of the educational character of the institution and is conductive to making the institution an effective vehicle of education for the minority community or other persons who resort to it". In Rev. Father W. Proost v. State of Bihar , the petitioners were a Christian mission who were running St. Xavier's College Ranchi. They complained against a new Act under which a University Service Commission was established. Every appointment, dismissal, removal, termination of service or reduction in rank of a teacher of an affiliated college was required to be made by a governing body of the college on the recommendations of this Commission and 62

Bhartiya Vidhyapeeth University, Pune

subject to the approval of the university. The Constitution Bench, speaking through Hidayatullah C.J., held, following the earlier decision noted above, that this provision is destructive of the right of the management. The institution was held entitled to the protection of an exemption clause under which, in case of minority institution only, 'approval' of the Commission and the university was required and not 'recommendation' of the Commission. In other words, recruitment was to be made by the institution itself and not by the Commission for it. The  provision

requiring

'approval'

was

apparently

not

challenged.

A nine Judge Bench of the Supreme Court exhaustively considered the extent and scope of Article 30(1) in Ahmedabad St. Xavier's College Society v. State of Gujarat17 . The Society of Jesus, the petitioners, was running the St. Xavier's College at Ahmedabad with the objective of  providing higher education to Christian students. However, children of all classes and creeds were admitted to the college. The college was affiliated college under the Gujarat University Act, 1949. The petitioners challenged sections 33-A, 40, 41, 51-A and 52-A of the Gujarat University Act, 1972 which provided for university nominees in the governing and selection bodies of all colleges, conversion of all affiliated colleges to constituent colleges, approval of Vice Chancellor for disciplinary action against members of teaching staff, and reference of dispute between the staff and management to arbitration in which the umpire has to be Vice Chancellor's nominee. The court held, that these provisions could not be applied to the minorities; the Court held that these provisions could not be applied to minority colleges. The Court also emphasized that the right conferred to the religious and linguistic minorities to administer educational institutions of there is not an absolute right. The right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly regulatory measures are necessary for ensuring orderly, efficient and sound administration. In the leading judgment Ray C.J . observed: Permissible regulatory measures are those, whose which do not restrict the right of administration but facilitate it and ensure better and more effective exercise of the right for the

17

 AIR 1974 SC 1389

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 benefit of the institution and through the instrumentality of management of the educational institution and without displacing the management. In All Saints High School v. Government of A.P. Fazal Ali, J. summarized three important tests which would determine whether or not the action of government amounts to interference with the management of the institution; (1) In order that the management of the institution is free from outside control, the founder must be permitted to mould the institution as they think fit. (2) No  part of the management could be taken by the government and vested in another body without an encroachment upon the guaranteed right enshrines in article 30(1) of the Constitution; (3) There is however, an exception to this general rule which is that the government or the university can adopt regulatory measures in order to improve the educational standards which concern the body  politic and the dictated by the consideration of the advancement o f country and its people, so that the minority institution may not under the guise of autonomy or exclusive right of management  be allowed to fall below the standard of excellence that is required of educational institution. St.

Stephen's

Case

a Wrong

Assumption of

Backwardness-

The minority institutions have however lost several battles against their teachers. The Frank Anthony ruling in regard to the director approval for an order of suspension was unsuccessfully assailed as contrary to lily Kurian in Y. Tehclamma V. union of India All Bihaer Christian Schools Association State of Bihar Manohar Haries Walters V. Basel Mission Higher education Center K.N. Singh J. n the Bihar Christian Schools case has indeed been at pains to stretch the regulatory power of the state to their maximum in the process distinguishing all previous decisions seeming to decide the contrary. On the other hand the constitution Bench (headed by Kania J. as he then was and speaking through Shetty J. with Kasliwal J. dissenting) has in St. Stephen's College v. University of Delhi bent over backwards in conceding the claim of the two government aided Christian institution to make admission according to their sweet will, (specially on the basis of 100 per cent interview mark form out of candidate selected  preliminarily on the basis of their secondary school marks the number interviewed being about five times the number of seats) in total disregard of the norms fixed by the university and giving  preference to students of their own community.

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The court placed a limit of fifty per cent on reservation of seats for them applying in the process decisions under article 16(4) by a process of reasoning which with the utmost respect is rather confusing mixing up unrelated concept they sidetracked article 29(2) and distinguished earlier decision on the subject such as D.A.V. college and Kerala Bill cases relating to reservation in favor of backward classes of citizens were relied on and the minorities were assumed to be the underprivileged Emphasis was placed on the minorities rights in their own educational institution ands following Mathew J. In St. Xavier the parents right to have their children educated in intuitions having an atmosphere congenial to their own religion preference to Christians in admission was defended das being not solely on the basis of religion but to prefer their community candidates in their educational institutions a rather baffling distinction which could  be made only by a court which must be right because it is final. The Supreme court has further conceded to minority managements the power to give indirect  preference to candidates of their community in appointments of the posts principal and vice  principles by requiring that the candidates should fulfill over and above the qualifications laid down by the university or a Board some additional lingual qualification and there by excluding other candidates from the field of choice in Virendra Nath Gupta V. Delhi Administration it was so decided in favor of a linguistic (Malayalam) minority institution and in the Karamat Girls college of Lucknow case the same principle was applied even in the case of a secular education institution run by a religious minority (Muslim) which prescribed Urdu as an additional qualification for the post of principle. The latter case assumes without any discussion that minority instructions do have such a right. One

Minority

Opposing

Another

School-

In Mark Notto V. State of Kerala the Christian community was running a boys school It. was denied permission to admit girls to the school on the ground that there was already a girls school run by the Muslim community in the neighborhood. The Muslims also objected to a coeducational institution. The grounds for refusal of permission were held unsound and the refusal of permission was held volatile of the Christians right under articles 30 (I). The Christian community has a right to have schools of their choice for teaching their girls if they did not think it in their interest to send them to the Muslim girls school. The rule under which the permission 65

Bhartiya Vidhyapeeth University, Pune

had been denied was held inapplicable to minority schools. It was not considered necessary to strike down the rule in its application to all. Classification should be

Rational

not

Communal-

The state or courts have no right that every institution of a majority community is run by crooks or imbeciles and that all such institutions can be properly administered only through state authorities. It is true that much management are corrupt and effective measures must be taken to ensure that they are not allowed to misappropriate or dissipate the assists for the institutions or to indulge in nepotism or discrimination in the matter of appointment f teachers admission of student etc. But complaints are not confined to managements of majorities institutions only. Excepting very few select old Christian missionary institutions like St. Stephens Loreto etc. most minority institutions also (including even Christian intuitions) are not immune from similar complaints including very often complaints form teacher parent sand other member of their own community. Conversely there may be excellently managed institutions established by members of majority community also say those by the Ramkrishan Mission Bharatiya Vidya Bhawan Birla Education Trust etc. So whatever regulation and control be needed it should be objectively decided in relation to each individual case and not on covertly communal (whether based on religion or language) ground any classification should thus be primarily on the bases rationally suggested by Dwivedi J. and secondarily on the basis of ratings ( as in the case of say debentures or hotel etc.) with reference to availability of facilities past performance reputation credibility standard of teacher infrastructure judge by a high powered autonomous body not on the ground of its being established by a minority or the majority.

This project throws light on the rights given to the minorities in the Constitution of India. The analysis

of

diverse

judgment

can

be

categorized

under

the

following

heads:

1. The linguistic approach: this approach tries to construe the word "administer" so as to confine it to good administration. The right to administration does not include the right to maladministration an institution. This approach can be found in the judgment of the S.R. Das,

66

Bhartiya Vidhyapeeth University, Pune

C.J.

in

Kerela Education

Bill.18

.

2. The approach of autonomy: according to this approach, so long ass the autonomy of this institution is preserved, regulation of its working is permissible. The exposition by Khanna J. in St. Xaviers is not an outstanding example of this approach, because though it can be discerned in

earlier

pronouncement

he

has

elaborate

in

the

ample

measure.

3. The moral approach: it has been stated that if the minorities asserts a right of administration, it is

their

duty

to

provide

good

administration.

4. The constitutional-cum-linguistic approach: according to this approach, what the constitution in article 13 prohibits is a law, which "abridges" a fundamental right. Regulatory measures do not abridge the fundamental rights guaranteed by article 30 and are therefore not hit by article 13.

This

approach

was

enunciated

by

Mathew

J.

in

St.

Xavier's,

5. The logical approach: legislative measures that do not directly impinge upon minority rights are permissible, not withstanding that their indirect impact may be adverse to those rights. The  primary object is not interference with a fundamental right, than the fact that the secondary impact of the challenged law may be to impair a fundamental right, is immaterial. Mathew J. in St. Xavier's also suggests this approach.. This project also throws light on the right of the minority to establish and administer educational institutions. Taking the power of J. Khanna enclosed by Krishna Iyer J. any privileged or  pampered section of the population It only want to ensure that minority are not discriminated against welcome. For bringing this regionalism communalisms and linguist have to be discouraged for preservation of the unit and integrity of India every citizen should be made to feel that he is Indian first irrespective of other basis. In this view any measure at bringing about equality should be welcome. Under eye of law majority or minority both should be treated equally and any citizen is Indian first and then belongs to any particular community. Thus, grievance of the majority can be redressed either by (i) extending the protection available under article 30 to cover all religions, whether they be minority religions or majority religions or (ii) by removing article 30 from the constitution and inserting 'educational' in article 26(a), which would place al religion at par. 18

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67

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The Supreme Court has observed in In re Kerala education bill19. ” the real import of the Article 29(2) and 30(1) seems to be that they clearly contemplate a minority institution with the sprinkling of outsiders admitted into it.” the idea has been reinforced in the ST. Stephen college case, Article 30(1) does not mean that the minority can establish an educational institution solely for the benefit of its own community people. The minority are not entitled to establish such institution for their exclusive benefit. The Court “every education institution irrespective of community to which it belongs is a melting pot in our national life and that it is essential that there should be a proper mix of the students of different communities in all education institutions. This means that a minority institution cannot refuse admission students of other minority and majority communities. The constitution bench of 11 Judges in the matter of T.M.A. Pai Foundation and others v. State of Karnataka,20 2003 had a relook into the interpretation of the constitutional rights of the religious and linguistic minorities to establish and administer educational institutions of their choice. Apart from interpreting the content and extent of these rights and juxtaposing them with the so called similar rights of non minorities, the judges went into the question what is the meaning and content of the expression ‘minorities’ in Article 30? The expression “minority” has  been derived from the Latin word ‘minor’ and the suffix ‘ity’ which means “small in number”. 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. Article 30(1) uses the terms ‘linguistic’ or ‘religious’ minorities. The word ‘or’ means that a minority may either be linguistic or religious and that it does not have to be both  –   a religious minority as well as linguistic minority. It is sufficient of it is one or the other or both. The

19

 AIR 1958 SC 956  AIR 2003 SC 355

20

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constitution of India provides for special rights to both linguistic and religious minorities “to establish and administer educational institutions of their choice” under Article 30. Hence no such law can be framed as may discriminate against such minorities with regard to the establishment and administration of the educational institutions vis-à-vis other educational institutions. Article 30 is a special right conferred on the religious and linguistic minorities because of their numerical handicap and to inspire in them a sense of confidence. While upholding these rights, the Supreme Court has, in the TMA Pai case, also endorsed the concept that there should be no reverse discrimination and opines that “the essence of Article 30(1) is to ensure equal treatment  between the majority and the minority institutions. No one type or category of institution should  be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The Supreme Court has time and again, in many judgements, ruled that minority status can be decided only by taking the state as a unit. It has reasoned that since ‘religious’ and ‘linguistic’ are mentioned at the same time in Article 30 of the constitution, and since the states were carved out in India by taking language as the criterion, the classification of ‘minority’ cannot be based on some other principle. Accordingly, a state government can confer minority status on an educational institute only after considering the socio-economic  backwardness of the minorities in that state. This is the reason why, even though 90 per cent of the educational institutions (aided or unaided) in Kerala are run by person(s) belonging to the minority communities, the same have not been accorded minority status. The judgment delivered on October 31, 2002, in the T.M.A. Pai Foundation case on minority educational institutions (MEIs) by an 11-member Constitution Bench of the Supreme Court has elicited varied reactions. The court held that the rights of linguistic and religious minorities (as well as the majority community) to set up educational institutions of their choice are unfettered,  but that the right to administer them is not absolute. The State and the universities could apply regulatory measures in order to maintain educational standards and excellence in such institutions, it held. The judgment is important from the point of view of the interplay between Articles 29(2) and 30(1). Article 29(2) lays down that no citizen shall be denied admission to any educational 69

Bhartiya Vidhyapeeth University, Pune

institution maintained by the state or receive aid out of state funds on grounds only of religion, race, caste, language or any of them. Article 30(1) guarantees all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice. The intention of the Constitution-makers would not have been to let Article 29(2) prevail over Article 30(1); that is, having allowed a minority community to establish an educational institution receiving aid out of state funds, its right to administer it by admitting eligible students from the minority community that the institution seeks to represent cannot be restricted, simply  because it would result in the denial of seats to students belonging to non-minority communities. However, nine of the 11 Judges concluded that as long as MEIs permitted the admission of nonminorities to a reasonable extent based on merit (what the reasonable extent is would be determined by the State), it would not be an infraction of Article 29(2). This part of the judgment invited noteworthy dissents by Justices Ruma Pal and S.S.M. Quadri. The author of Minority Rights, M.P. Raju, a Supreme Court advocate and counsel for one of the  petitioners, observes that there can be no room for compulsory reservation or quota for nonminority students as long as minority students are available. Only after students belonging to the  particular minority group have been given admission will the rigour of Article 29(2) become applicable in an MEI, Raju explains, agreeing with the dissenting judgments of Justices Ruma Pal and Quadri. Raju notes that the majority judgment attempts to give restricted meaning to minority rights, whereas the two dissenting judgments resort to a liberal interpretation in favour of the minority. For students of the sociology of law, the judgment offers useful lessons on the possibility of the effects of influences on the thinking and reasoning of the individual Judges. The fact that of the two dissenting Judges, one is a Muslim and the other a woman, `who belongs to a qualitative minority being a non-dominant group', has its ow n significance, the author observes. In the view of the majority Judges, "any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot  be such as to override the national interest or to prevent the government from framing 70

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regulations in that behalf". Justice Quadri, in his detailed dissent (delivered on November 25, 2002) with this view, has pointed out that what Article 30 predicates is institutional autonomy on the educational institutions established and administered in exercise of the right conferred thereunder, which cannot be interfered with by the state except to the extent of framing reasonable

regulations

in

the

interest

of

excellence

of

education

and

to

prevent

maladministration. The prejudices of the majority Judges have reflected in the form of obiter dicta, like the one above. He calls it a reflection of the unconscious prejudice which the majority Judges had with an implied premise that the minorities cannot have any fundamental right which is not available to the majority community or non-minorities. Another obiter dicta referred to by Raju is this: "At the same time, there also cannot be any reverse discrimination... No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions." Raju observes that such comments from the majority Judges are the creation of Freudian slips or the reflection of constitutional philosophy held by individual Judges. Although these comments, being part of the verdict, will not have any  binding value, they can be picked up and used before the High Courts and the Supreme Court, Raju feels. To a lay reader, it is difficult to distinguish such comments from the general complaint of the Hindu Right against the `appeasement' of minorities, as articulated by the various wings of the Sangh Parivar. The majority Judges have also held that even an aided institution should not become a government-owned and controlled one, and that they have to incur revenue and capital expenses. They, therefore, felt that the decision on the fee to be charged must necessarily be left to the  private unaided educational institutions. This shows, according to Raju, that they seem to have  been influenced by the winds of liberalisation and globalisation, as opposed to the interests of the student community. An important flaw in the judgment, with reference to the unit for the determination of a linguistic or religious minority. All Judges, except Justice Ruma Pal, held that the unit should be the State.

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Raju disagrees with the majority Judges' view that linguistic reorganisation of the States meant that for the purpose of Article 30, linguistic minorities ought to be determined in relation to State alone. The rights under Article 30 is available not only to the linguistic minorities of the major languages, relatable to the States, but also to the speakers of numerous minor languages that are not represented by any State of their own. He has pointed out that in a unitary federal country like India, linguistic groups, even if they constitute a majority in a State, need protection under Article 30 against the legislative and executive actions of the Union, in relation to which they may be minorities. Therefore he has suggested that to determine minority character or status, the unit should be the one against which  protection is sought or whose action is impugned as offending Article 30. If the executive or legislative action of the Union is under challenge, then the unit for the determination of minority character should be the Union. If an executive or legislative action of a State concerned is under challenge, then the unit to determine minority status should be the State. The majority Judges have inadvertently concluded that since linguistic and religious minorities are dealt together under Article 30, the unit should be the same. There is no incongruity in adapting two separate criteria only because both are dealt with under the same Article together, Raju observes. Considering the gaps in the 11-Judge verdict, there is still considerable scope for redefining and enriching the concept of minority rights as guaranteed under the Constitution.

Our constitution believes that diversity is our strength. Therefore they guaranteed the right to minority to maintain their culture. The minority status is not only dependent on the religion but linguistic and religious minorities are also included in this provision. Minorities are groups that have common language or religion and in a particular part of the country or in the country as a whole, they are outnumbered by some other social section. Such communities have the right to conserve and develop these.  Now through these provision religious and linguistic minority an set up their own educational institutes. By doing so, they can preserve and develop their culture. The Government will not 72

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while granting aid to educational institutions, discriminate against any educational institution on the basis that it is under the management of minority community.

CHAPTER-9 : MINORITIES’ RIGHT TO ESTABLISH AND ADMINISTER EDUCATION INSTITUTUON : A CRITIQUE

“Education

is

what

survives

when

what

has

been

learned

has

been

forgotten.”

As starting with this quotation relevance and proximity of education in individual’ life can be counted. Indian constitution draftsman believed that in order to be a welfare state various

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fundamental rights should be endowed to citizens as to develop a sense of equality and unity and right to education is the best developer of these principles. But the challenge of India's plurality is enormous –   eight major religions and myriad creeds, 800 languages of which 22 are 'official' languages, 8% of the population are indigenous peoples, a social mosaic of castes and sub castes and over 60 socio-cultural sub regions. In India minority generally consists of Christians (2.5%), Sikhs (2%), Jain (1%) and Muslims (12%), which is world’ third largest. In India majority consist of Hindus, their population includes more that 80% of India’ population. India is a secular state but in virtual sense it’ an utopian concept because in a country where more than 80% of population consist of one single religion, so, its quite difficult to provide equal status to minority. So, in order to provide equal status to these minorities special privileges are being accorded to them in our constitution. As taking an example of Muslims in India, have a poverty rate of 43% whereas the national average is 39% (National Sample Survey Organisation, 19992000). In rural areas Muslim landlessness is 51% as compared to 40% for Hindus. Literacy rates are substantially lower among Muslims, leading to deprivation of jobs in higher positions in government offices and skilled professions in the service sector. In urban areas, 60% of the Muslims have never gone to schools as against the national average of 20%. Only 5%of Muslim women have completed high school education and the income of the average Muslim is 11 % less than the national average. To this may be added the Kashmiri Muslim community, with its distinct political history and its guaranteed status of self rule in past, is a testimony to the  betrayal of rights and the denial of justice to the Muslim population. So, still there is need of further implementations of new laws in order to meet their drowning standards. The constitution of India provides for special rights to both linguistic and religious minorities “to establish and administer educational institutions of their choice” under Article 30. Hence no such law can be framed as may discriminate against such minorities with regard to the establishment and administration of the educational institutions vis-à-vis other educational institutions. Article 30 is a special right conferred on the religious and linguistic minorities because of their numerical handicap and to instil in them a sense of confidence. In the St Xavier’s College case, the Supreme Court has rightly pointed out, “The whole object of conferring the right on the minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such specia l protection they will be denied equality.”

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While upholding these rights, the Supreme Court has, in the TMA Pai case21, also endorsed the concept that there should be no reverse discrimination and opines that “the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions.” The Supreme Court has time and again, in many judgements, ruled that minority status can be decided only by taking the state as a unit. It has reasoned that since ‘religious’ and ‘linguistic’ are mentioned at the same time in Article 30 of the constitution, and since the states were carved out in India by taking language as the criterion, the classification of ‘minority’ cannot be based on some other principle. Accordingly, a state government can confer minority status on an educational institute only after considering the socio-economic backwardness of the minorities in that state. This is the reason why, even though 90 per cent of the educational institutions (aided or unaided) in Kerala are run by person(s) belonging to the minority communities, the same have not been accorded minority status. Constitutional right

accorded

to

Minorities-

Right of

minority

to

establish

(a)

a

educational

Article – 30

institutions

 –   – 

Article  –   30(1) gives the linguistic or religious minorities the following two rights: (a)

The

right

to

establish,

and

(b) The right to administer educational institutions of their choice. Article –   30(2) bars the state, while granting aid to educational institutions, from discriminating against any educational institution on the ground that it is under the management of a linguistic or a religious minority. It mandates that in granting aid to educational institutions, the state shall not discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

21

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The minorities have been given protection under article 30 in order to preserve and strengthen the integrity and unity of the country. The sphere of general secular education will develop the commonness of boys and girls of India. This is in the true spirit of liberty, equality and fraternity through the medium of education. The minorities will feel isolated and separate if they are not given the protection of article 30 general secular education will open doors of perception and act as the natural light of mind for our countrymen to live in the whole. The Supreme Court has pointed out in Ahmedabad St. Xaviers College v. State of Gujarat22 that the spirit behind article 30(1) is the conscience of the nation that the minorities, religious as well as linguistic, are not prohibited from establishing and administering educational institutions of their choice for the purpose of giving their children the best general education to make them complete men and women of the country.

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. Article 30(1) uses the terms ‘linguistic’ or ‘religious’ minorities. The word ‘or’ means that a minority may either be linguistic or religious and that it does not have to be both  –   a religious minority as well as linguistic minority. It is sufficient of it is one or the other or both. The constitution uses the term ‘minority’ without defining it. In re The Kerala Education Bill23, the Supreme Court opined that while it is easy to say that minority means a community which is numerically less than 50 per cent, the important question is 50 % of what? Should it be of the 22

 AIR 1974 SC 1389 AIR 1958 SC 956

23

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entire population of India, or of a state, or a part thereof? It is possible that a community may be in majority in a state but in a minority in the whole of India. A community may be concentrated in a part of a state and may thus be in majority there, though it may be in minority in the state as a whole. If a part of a state is to be taken, then the question is where to draw the line and what is to be taken into consideration a district, town, a municipality or its wards. The ruling in the Kerala Education Bill24  has been reiterated by the Supreme Court in Guru  Nanak University case. In that case, the Supreme Court rejected the contention of the state of Punjab that a religious or linguistic minority should be a minority in relation to the entire  population of India. The Court has ruled that a minority has to be determined, in relation to the  particular legislation which is sought to be impugned. If it is a state law, the minorities have to be determined in relation to the state population. The Hindus in Punjab constitute a religious minority. Therefore, Arya Samajistis in Punjab also constitute a religious minority having their own distinct language and script. It is within the realm of possibility that the population of a state may be so fragmented that no linguistic or religious group may by itself constitute 50 percent of the total state population. In such a situation, every group will fall within the umbrella of Art. 30(1) without there being a majority group in the state against which minorities need to claim  protection. The Court has pointed out that if various sections and classes of the Hindus were to be regarded as ‘minorities’ under art. 30(1), then the Hindus would be divided into numerous sections and classes and cease to be a majority any longer. The sections of one religion cannot constitute religious minorities. The term ‘minority based on religion’ should be restricted only to those religious minorities, e.g. Muslims, Christians, Jains, Buddists, Sikhs, etc., which have kept their identity separate from the majority, namely, the Hindus. (c)

Establish

And

Administer

Article 30(1) postulate that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. The right 24

  Supra

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to administer has been given to the minority, so that it can mould the institution as it thinks fit, and in accordance with its ideas of how the interest of the community in general, and the institution in particular, will be best served. For purpose of article 30(1), even a single  philanthropic individual from the concerned minority can found the institution with his own means. A minority institution may impart general secular education; it need not confine itself only to the teaching of minority language, culture or religion. But to be treated as a minority institution, it must be shown that it serves or promotes in some manner the interests of the minority community by promoting its religious tenets, philosophy, culture, language or literature. It has been observed by Supreme Court in the case of Azeez Basha25: “ Article 30(1) postulates that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. The article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice  provided they have established them, but not otherwise,” In S.P Mittal v. Union of India, the Supreme Court has stated : “ In order to claim the benefit of Article 30(1), the community must show: (a) that it is religious/linguistic minority, (b) that the institution was established by it. Without satisfying these two conditions it cannot claim the guaranteed rights to administer it.” In Andhra Pradesh Christian Medical Association v. Government of Andhra Pradesh, it was held  by the court that the institution in question was not a minority institution. The court classified that the protection of Article 30(1) is not available if the institution is a mere cloak or pretension and the real motive is business adventure. A society consisting of minority members, or even a single member of a minority community, may establish an institution. The position has been clarified by the Supreme Court in State of Kerala v. Mother Provincial. The court stated that : “It matters not if a single philanthropic 25

 AIR 1968 SC 662

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individual with his own mean, founds the institution or the community at large contributes the funds. The position in law is the same and the intension in either case must be to found an institution for the benefit of a minority community by a m ember of that community.” In Ahemdabad St. Stephens College v. Government of Gujarat26, it was observed by the court that : “Every educational institution irrespective of community to which it belongs is a ‘melting  pot’ in our national life” and that it is essential that there should be a “proper mix of students of different communities in all educational institutions.” This means that a minority institution cannot refuse admission to students of other minority and majority communities. (d)

Regulations

of

Minority

Educational

Institutions.

The provision of article 30(1) does not however mean that the state can impose no regulations on the minority institutions. In the famous Kerala Education Bill[, the Supreme Court has observed: “The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right”. It has to be read with regulatory power of the state. Regulations which do not affect the substance of the guaranteed rights, but ensure the excellence of the institutions and its proper functioning in matters educational, are permissible. (i) Government Grants/Recognition  –   At present, the situation is such that an educational institution cannot possibly hope to survive, and function without government grants, noir can it confer degrees without affiliation to a university. Although minorities establish and run their educational institutions with a view to educate their children in an atmosphere congenial to the conservation of their language or culture, yet that is not their only aim. They also desire that their students are well equipped for useful careers in life. The students of unrecognized institutions can neither get admission in institutions of higher learning nor can they enter public service. Therefore, without recognition, a minority run institution cann ot fulfill its role effectively and the right conferred by Article 30(1) would be very much diluted. A meaningful or real exercise of the right under article 30(1) must, therefore, mean the right to establish effective educational institutions which may sub serve the real needs of the minorities and the scholars who resort to them. This necessarily involves recognition or affiliation of minority institutions, for without this 26

AIR 1992 SC 83

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the institutions cannot play their role effectively and the right conferred on the minorities by article 30(1) would be denuded of much of its efficacy. Article 30(2) debars the state from discriminating against minority institutions in the matter of giving grants. In Managing Board, M.T.M v. State of Bihar, the Supreme Court has emphasized that the right to establish educational institutions of their choice must mean the right to establish real institutions which will effectively serve the needs of their community and the scholars who resort to them. Clarifying the position as regards the question of affiliation of, or grant to, minority institutions, the Court observed: “There is, no doubt, no such thing as Fundamental Right to recognition by the state but to deny recognition to the educational institutions except upon terms tantamount to the surrender of their constitutional right of administration of the educational institutions of their choice is in truth and in effect to deprive them of their rights under article 30(1). We repeat that the legislative power is subject to the Fundamental Rights and the legislature cannot indirectly take away or abridge the Fundamental Rights which it could not do directly.” (ii) Conditions For Grants/Recognition –  what conditions can be imposed on these institutions as a requisite to giving grants, or according affiliation or recognition to them? This has proved to be a complex and controversial problem. These conditions may be of two kinds. One type of conditions may relate to such matter as syllabi, curriculum, courses, minimum qualifications of teachers, their age of superannuation, library, conditions concerning sanitary, health and hygiene of students, etc. The underlying purpose of such conditions is to promote educational standards and uniformity and help the institutions and help the institutions concerned achieve efficiency and excellence and are imposed not only in the interest of general secular education but also are necessary to maintain the educational character and content of minority institutions. Such conditions cannot be regarded as violative of article 30(1) and should, therefore, be followed by all educational institutions. A right to administer cannot be a right to maladminister. The matter has been succinctly explained by the Supreme Court in In re Kerala Education Bill27: “The right to administer cannot obviously include the right to maladminister. The minority cannot surely ask for aid or recognition for an educational institution run by them in unhealthy surroundings. Without any competent teachers possessing any semblance of qualification, and which does not

27

AIR 1958 SC 956

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maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars. It stands to reason, then, that the constitutional right to administer an educational institution of their choice does not necessarily militate against the claim of the state to insist that in order to grant aid the state may prescribe reasonable regulations to ensure the excellence of the institutions to be aided…. Reasonable regulations may certainly be imposed by the state as a condition for aid or even for recognition.” (iii) Composition of Managing Bodies  –   In the composition of the managing bodies Supreme Court has invariably invalidated provisions seeking to regulate the composition and personnel of the managing bodies of minority institutions. A provision interfering with the minorities’ choice of managing body for an institution has been held to violate article 30(1). The Gujarat University Act provided that the governing body of every college must include amongst its members a representative of the University nominated by the Vice-Chancellor, representatives of teaching and non-teaching staff and of the college students. In the celebrated St. Xavier’s College Case28, the Supreme Court declared the provision as non-applicable to minority institutions because it displaced the management and entrusted it to a different agency; autonomy in administration was lost and new elements in the shape of representatives of different types were brought in. The court emphasized that while the University could take steps to cure maladministration in a college, the choice of personnel of management was a part of administration which could not be interfered with. (iv) Appointment of Teachers –   The selection and appointment of teachers, and the head of the institution, is regarded as pre-eminently a function of the administration. As K.K. Mathew, J., has observed supporting the majority view in Ahmedabad St. Xaviers College case: “It is upon the principal and teachers of a college that the tone and temper of an educational institution depend. On them would depend its reputation, the maintenance of discipline and its efficiency in teaching. The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is  perhaps the most important facet of the right to administer and educational institution.”

28

 AIR 1974 SC 1389

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(v) Disciplinary Action Against The Staff And Salary of Teachers –   A significant facet of the administration of an educational institution is the maintenance of discipline among the members of its staff and to decide over the salary of the teaching staff. The right of the minority institution to take disciplinary action against the teachers and decide salary of teaching staff is a very vital aspect of the management’s fundamental Right to administer the institution. Any rule taking away or interfering with this right cannot be regarded as compatible with article 30(1). Thus, while fair procedural safeguards may be laid down for the purpose, the final power to take disciplinary action and deciding the teaching staff must vest in the management of the institution and be not subjected to the control or veto of any outside body. (vi) Admission of Students and Fee structure  –  In the St. Stephen’s College v. University of Delhi29, the Court ruled out that college was established and administered by a minority community, viz., the Christian community which is indisputably a religious minority in India as well as in the union territory of Delhi where the college is located and hence enjoys the status of a minority institution. On the question of admission of students of the concerned minority community, the court has ruled that, according to article 30(1), the minorities whether based on religion or language have the right “to establish and administer” educational institutions of their  choice and the right to select students for admission is a part of administration. On this point, the court has observed: “It is indeed an important facet of administration. This power also could be regulated but the regulation must be reasonable just like any other regulation. It should be conducive to the welfare of the minority institution or for the betterment of those who resort to it.” There is also the question of fees chargeable by the unaided minority institution from its students. It is clear that an unaided minority institution. The reason is that unaided institutions have to meet the cost of importing education from their own resources and the main source can only be the fees collected from the students. But these institutions cannot be permitted to indulge in commercialization of education. Therefore, it would not be unconstitutional for the government to issue an order which places a restriction on the amount of fee chargeable by an institution, if, on facts, the minority institutions indulge in commercialization of education and maladministration of the educational institutions.

29

AIR 1992 SC 83

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(vii) Medium of Instruction  –   The right of a minority to establish and administer educational institutions of its choice also carries with it the right to impart instruction to its children in its own language. The result of reading article 29(1) and 30(1) together is that the minority has the choice of medium of instruction and the power of the state to determine the medium of instruction has, therefore, to yield ground, to the extent it is necessary to give effect to this minority right. The most significant case on this point is the D.A.V College, Bhatinada v. State of Punjab. By a notification, the Punjab Government compulsorily affiliated certain colleges to the Punjab University which prescribed Punjabi in the Gurumukhi script as the sole and exclusive medium of instruction and examination for certain courses. The Supreme Court declared that it violated the right of the Arya Samajists to use their own script in the colleges run  by them and compulsorily affiliated to the University.

 National

Commission

for

Minority

Educational

Institutions

Act,

2004

This act was passed in year 2004 for giving more teeth to minority education in India. This act allows direct affiliation of minority educational institutes to central universities. This act was enacted in order to provide quality education in minority institutes. Unfortunate

Aspect

of

this

Act

 – 

According to this bill, any minority educational institutes seeking affiliation to a central university will be granted such affiliation. The various central universities named for the  purpose, in the schedule of the bill, are: University of Delhi, Pondicherry University, North Eastern Hill University, Assam University, Nagaland University and Mizoram University. If a university named in the schedule denies affiliation to an institute, a three-member commission (with all the three belonging to the minority community) would give the final and binding ruling. This committee will be headed by a High Court judge and vested with all relevant executive and  judicial powers. This commission can advise the central and state governments on any question relating to the minorities’ education, which are referred to it. According to the bill, the commission can “look into specific complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice and any dispute relating affiliation to a scheduled university and report its findings to the central government for 83

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its implementation.” Only the central government shall have the powers to overrule the decisions of the commission. The National Common Minimum Programme (NCMP) of the United Progressive Alliance (UPA) mentions that minority educational institutions will be given direct affiliation to central universities. It is a known fact that during its tenure the BJP-led regime had discriminated against and harassed many minority educational institutions. This discrimination was in line with the BJP’s open opposition to the constitutional rights granted to the minorities under Article 30. It is  because of the discrimination meted out to the minority institutes in BJP-ruled state like Gujarat and Madhya Pradesh that the UPA incorporated the said objective in its NCMP. Unfortunately, instead of protecting the minority communities’ right to set up educational institutes of their choice and thus cater to the interests of the whole communities, the bill seeks to protect the interests of a select few. The latter are the very vested interests who run minority educational institutes on self-financing basis, without taking into account many relevant and genuine concerns raised by many concerned academics and sections over the past several years. Does Article 30 violate Universal Declaration of Human rights?

India inherited its democratic system from the departing British in 1947 who ruled it for several hundred years. It is far from clear whether India had a mature and able class of indigenous  people who could formulate a robust and consistent constitution. It now appears that Article 30 of Indian constitution not only violates the secular character of India, but also promotes religious discrimination of majority and may be in violation of Universal Declaration of Human Rights  Adopted and proclaimed by United Nations General Assembly resolution 217 A (III) of 10  December 1948.

Article 30 of Indian constitution has certain provisions whereby minorities are exempt (are allowed to discriminate on the basis of religion, unlike majority) from certain requirements in 84

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running their own institutions .By and large, Hindus are not considered minority (even in areas where they are a numerical minority such as Jammu and Kashmir) but Christians and Muslims definitely are. For instance, according to Article 30, minority community may reserve up to 50  percent of the seats for the members of its own community in an educational institution established and administered by it even if the institution is getting aid from the State.

Christian and Muslim-controlled educational institutions in India, encouraged by Article 30 of Indian constitution, are found to discriminate heavily in favor of their religious compatriots in employment and in student admissions .

But Christians and Muslims are not disadvantaged community in India. Indian Christian community has among the highest literacy rates (53% Hindu literacy rate vs. 81% Christian literacy rate; literacy also implies wealth) and Indian Muslims already have a 25% permanent reservation of land, wealth and opportunities called Pakistan/Bangladesh –   almost emptied of Hindus due to massive ethnic cleansing and religious discrimination (and driven away to India). Christian community was favored by British colonizers until sixty years ago. Therefore, unlike America where blacks, discriminated for centuries, who are now given employment preferences in the form of affirmative action, there is little justification for minority reservations in India. Indeed, Islamic Partitioning of India in 1947 has already made Hindus the disadvantaged community in India and these minority reservations for proselytizing religions such as Christianity or Islam create conditions of majority Hindu religious genocide  –   by making the majority poor by unfairly excluding them from employment and education. This situation has already been created in Kerala where minorities have taken advantage of Article 30 to exclude majority Hindus from education and employment and driven them to  poverty. The jihadi movement in Kashmir is strengthened by reservations in favor of Muslims

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Article 23 of the Universal Declaration: “Everyone has the right to work, to free choice of employment to just and favorable conditions of work and to protection against unemployment”. The already disadvantaged majority Hindus being unfairly denied the right to work in religious minority-controlled institutions in India because of their religious affiliation should also be considered in violation of the above Declaration. Article 26 of the Universal Declaration: “Everyone has the right to education…Technical and  professional education shall be made generally available and higher education shall be made equally accessible to all on the basis of merit”. Religious minority-controlled institutions in India give preferential admission to students of their faith that again is sanctioned by Article 30 of Indian constitution. This again unfairly denies already disadvantaged majority Hindu students access to education on the basis of merit. The assertion by the then Indian HRD minister Arjun Singh defining Article 30 of Indian constitution as “protecting minorities” is inappropriate. An appropriate interpretation of Article 30 is one of giving unfair preferences to Indian minorities but also of promoting majority apartheid and discrimination. Such an Indian state can arguably, seen as an uncivilized one (through its violation of Universal Declaration of Human Rights), despite calling itself as a “secular democracy”. A detailed analysis shows that through constitutional based religious discrimination of majority, the Indian state may be embarking on a collective suicide of itself and its majority population –  unless Article 30 is amended to make it free of religious discrimination.

Critical appreciation of other constitutional provision relating to minority rights:-

The principle of non-discrimination and the concept of common citizenship are enshrined in all  provisions of the Indian Constitution. The first and foremost is the Right to Equality (Article 14) which is an extension of the rights ensured in the Preamble to the Constitution. Article 14 of our Constitution says:

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The State shall not deny to any person equality before the law and shall provide equal protection for every person within the territory of India. Though this Article appears to be very short and simple, it is one of the greatest pillars of democracy. It protects both minority and majority alike against the discriminatory conduct of the government both negatively and positively. This provision embodies a concept which is a hallmark of democracy. However, to the question as to whether the Indian minorities really enjoy this fundamental right to equality, the answer, unfortunately, is ‘no’. Because in the real sense, Indian minorities do not fully enjoy some of the basic fundamental rights. The major problems faced by the Christian minority with regard to fundamental rights are as given below. The discrimination on grounds of religion is very clearly prohibited by Article 15 of our Constitution which says in clause (1): “The state shall not discriminate against any citizen on grounds of religion, race, caste, gender, place of birth etc.” This fundamental right against discrimination on ground of religion is one of the most important rights for the flourishing of any religiously pluralistic society as we have in our country.1 But unfortunately, we are till now unable to implement what Article 15 last down. This mandate of “non-discrimination against any  person on grounds of religion” given in Article 15 of the Constitution has still not been enforced totally, even though the Constitution was promulgated more than 58 years ago. This right, which existed, in whatever little extent, before the promulgation of the Constitution, was lost when our Constitution came into being. The third paragraph of the Presidential Order of 1950 was amended by Parliament to extend constitutional benefits to the ‘Dalit Sikhs’ (1956) and the ‘Buddhists’ (1990) along with the ‘Hindus’, but similar benefit was refused to the Dalit Christians. The denial of justice to the Dalit Christians is also against the letter and spirit of the Constitution of India on equal justice. The Presidential Order, as it was interpreted, was not only communalistic, it was also anti-Dalit. It tended to divide the Dalits on the basis of religioin. Regarding the criteria of amendment, the  point made by Ramvilas Paswan in 1990 needs to be noted. Paswan, who was the then Union Minister of Welfare and Labour, while stating the objects and reasons for proposing to include Buddhists of Scheduled Caste origin in the list of Scheduled Castes, said that the change of

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religion does not alter social and economic conditions. But above all, the third paragraph of the 1950 Presidential Order is a direct contradiction of Articles 14, 15 and 25 of our Constitution since it had used religion as the criterion to describe who will be a Scheduled Caste. This needs to be deleted completely. In India the opportunities for employment are very scanty and the state is the greatest employer. The principle of non-discrimination and equality is also upheld in matters of public employment in the Constitution. Article 16 says: “No citizen shall, on grounds of religion, race or caste, be ineligible for, or discriminated against in respect of, any emplo yment or office under the State.” The Constitution in Article 16 gives equality of opportunity in matters of public employment. But again, because of the Presidential Order of 1950 and the refusal of Shanker Dayal Sharma to issue an ordinance3 for reservation for Christians during the time of P.V. Narashima Rao as the PM the Article has been made infructuous. This has been made available to the Dalits in the fold of Hinduism, Sikhism and Buddhism but not to those who are Christians. This also amounts to discrimination on grounds of religion which the ‘state’ is forbidden to e ffect under Article 15. The denial of justice to the Dalit Christians goes against the letter and spirit of Articles 14, 15, 16 and 25 of the Constitution of India on equal justice, equal opportunities and freedom of religion. If a Scheduled Caste becomes a Christian, he loses all the reservation facilities, and if he  produces a certificate of Scheduled Caste he gets back all the benefits. Even the children of the same Scheduled Caste parents, living under the same roof, sharing the same meals are discriminated against on the basis of religion. Sohan Singh gets all the reservation facilities. While his own brother Mohan Masih is denied all the benefits just because “Masih” happens to  be a Christian. It is bad luck if any Christian symbol is noticed with him/her or at his/her residence. He/she loses all the service benefits. This also amounts to violation of the constitutional rights. Despite 59 years of our independenc e the Dalit Christians continue to be the victims of all kinds of ill-treatment. The history of independent India is both pathetic and shameful on the treatment meted out to Dalits. The Mandal Commission’s report unambiguously stated that state assistance should be given to all genuinely backward sections of people irrespective of religion or caste which many thought 88

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would end discrimination against the poor among the minorities. But the ‘soft’ Communists or secularists or religious fanatics in the majority community are now said to have found another excuse to deprive the Christians of these facilities. The argument advanced is that the backwards having “un-Indian sounding or Anglo-Saxon” names cannot claim such benefits. They can afford to discriminate against Christians in this manner because they are a negligible “vote- bank”. This is the way our rulers create divisions, frictions and differences in our country. The other serious implication of the Presidential Order of 1950 is that it has also affected another fundamental right of the Dalit Christians, the right meant to protect their personal life as well as liberty. In the last 58 years of India’s independence, the country’s three largest minorities, Muslims, Christians and Sikhs, have been targeted by fanatics of the majority community and other vested interests, on the basis of their religious identity alone, resulting in a serious assault on their basic rights, including the right to life itself. Article 21 of the Indian Constitution clearly stipulates: “No person shall be deprived of his right of personal liberty except according to  procedure established by law.” The fact that the Dalit Christians are not getting protection of life and personal liberty is manifest in the various government Acts and rules passed by Parliament to give special protection to the Scheduled Castes but these are not applicable to the Christians of Scheduled Caste origin during atrocities. These Acts and rules include Protection of Civil Rights Act 1955, Protection of Civil Rights Rule 1977 and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. All these Acts an d rules are supposed to give the SC (Dalits) special protection and rights against various kinds of atrocities and oppressions meted out to them by the people of so-called upper castes of forward classes. But this protection is not made available to Dalit Christians. Although under Article 21, the State is bound to protect the life and liberty of every human  being, it has failed to protect this right. There are a lot of violations. Such type of violations threatens the very right to life, physical integrity and health of citizens. Here are some of the headlines in the national media: “Persecution— Christians are now being systematically targeted”. It referred to the recent move of the then BJP run Delhi Government to denotify churches in Delhi as places of worship on the ground that “wine was served there”. “Saffron

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Brigade strik es again in Gujarat”. “Christian missionary school attacked, copy of New Testament  burnt”— flashed Hindustan Times on July 22, 1998. Article 25 of the Indian Constitution gives all citizens the “freedom of conscience and the right freely to profess, practise and propagate religion”. The Christians have almost always faced  problems with this fundamental right specially with the last part of propagating its faith. A number of States such as Orissa, Arunachal Pradesh, Madhya Pradesh, Gujarat and Tamil Nadu have passed Acts through their legislature severely curbing this right. In many States like Punjab, the concerned authorities refused to allow any venue and date for religious conversions or religious conventions for preaching the teachings of Jesus Christ. This is undoubtedly a violation of Article 25. Father T.K. John also expressed the feeling that the basic rights of the religious minorities are violated in a number of wa ys. (a) Although some Indian State governments did enact legislations entitled ‘Freedom of Religion Bill’, these were full of ambiguities which were utilised by the state machinery to practise discrimination against religious minorities. (b) Refusal to grant official recognition to certain religious groups and religious communities. © Legal bias against certain religious groups and religious communities. (d) Restriction on public information about religious groups by describing only a preferred religion in official text books and ignoring the others. In Gujarat, the State’s BJP Government is also trying to impose some limitation on freedom of conscience and free profession of religion. Although Article 25 of the Indian Constitution gives wide opportunity to profess, practise and  propagate any religion, from time to time it has been interpreted by the various Courts of law which have imposed many limitations. As the Supreme Court held in the case of Stainless versus Madhya Pradesh (1977), the right to propagate does not mean the right to convert others forcibly. However, he/she is entitled to accept or adopt another religion by his own choice and free will.

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In recent times, some Hindu organisations have raised a hue and cry over this matter, and are in favour of adding some amendments in Article 25. As L.K. Maitra said in the Constituent Assembly, The very foundation of society in India being religion, it will lose all her spiritual values and heritage unless the right to practise and propagate any religion is recognised as a fundamental right. But the States were practical enough to make it a conditional right. So, when propagation affects the religious sentiments of other communities or conversion involves some sort of force or fraud, it goes against the letter and spirit of the C onstitution. An attempt was made in 1977, during the regime of the Janata Government through a Private Member’s Bill at the Central level, for prohibition of conversion which, of course, could not win legilsation sanction from the majority of members. In July 2001, Anant Gangaram Geeta, a Shiv Sena MP, moved a Private Member’s Bill named the Prohibition on Religious Conversion Bill, 2001 in the Lok Sabha. The Bill was opposed by the Opposition and the Sangh Parivar failed to muster enough support for it to get it through. Besides the above, the Christian Evangelists and Church workers had to face consistent opposition to practising and propagating their faith. They were also attacked physically many a time and harassed by the fanatic groups in a number of States such as Gujarat, Madhya Pradesh, Orissa, UP, Maharashtra and Punjab. In December 1999, non-Christians organised a rally at Ahwa in Dangs district in the Gujarat State on Christmas Day projecting the alleged conversion of tribals to Christianity by the missionaries. In Punjab, religious conventions were disturbed at various places by the Sangh Parivar during the Akali-BJP regime. But the government did not take serious note of this problem and even refused to accept the recommendations of the National Minority Commission. Aritcle 26 of our Constitution has given to all the religious minorities the right • to establish and maintain institutions for religious and charitable purposes,

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• to manage their own affairs in matters of religion, in any manner they wish to administer and maintain such property in accordance with the law. In Gujarat, the State Education Department issued a circular to the government aided schools to subscribe to a Gujarati magazine, Sadhana, which is wedded to the ideology of the RSS and Sangh Parivar. This is a direct violation of Article 26 of the Indian Constitution. The violation of Article 26 occurs when the freedom to establish religious institutions is curbed. The local administration generally refused permission to build, enlarge or renovate pl aces of worship of the minority religious groups. This has become a major problem for the Christian community. To get  permission for building a Church has become a nightmarish experience for the Christian applicants. The recent destruction of churches in certain parts of the country has further aggravated the threat to the right, guaranteed in the Constitution, and granted to the Christian community, along with other religious communities, to establish and maintain institutions for religious and charitable purposes.

Article 29 offers protection to the cultural rights of minorities and Article 30 (1) gives them the right to establish and administer educations institutions of their choice. Clause 31(2) states that 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. But with regard to the rights provided on Article 29 and 30 also, the Christians continue to face  problems throughout the country. (Recently the Punjab Government enacted a law and imposed a lot of limitations on minority institutions. The first major problem which the Christian educational institutions are facing is the intervention of the State Education Department and Universities at different levels. Questions are being raised whether a special place can be offered to the members of the Christian community as students or trainees. The government not only discriminates against minority schools, colleges, nursing colleges, and hospitals in granting aid,  but also imposes many rules and restrictions to prevent minority institutions from appointing 92

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their own candidates. When a vacancy comes up in schools and other institutions they are forced to accept the State’s choice to fill it and on many occasions Christian educational institutions have had to go to court to get justice. Some of the fanatic groups are not in favour of a separate and distinct culture for minorities. They want that all minorities in India must give up their separate culture as India is one country and one culture. Prof Balraj Madhok suggested that the minorities must adopt Indian (Hindu) names. In short, they must adopt the Indian culture-the national culture — in their religion. Their religion should bend its loyalty towards Indian Nationalism. The suggestion made by Madhok is totally against the rights guaranteed under Article 29 of the Constitution which says: Any section of citizens, residing in the territory of India, or any part thereof, having a distinct language or culture of its own, shall have the right to conserve the same…all persons are equally entitled to freedom of conscience and the right to profess, practise and propagate their religion. In fact the Muslims, Christians and Sikhs each have their own separate and distinct culture. The above utterances negate the guarantee given by the Constitution to conserve the culture of the minorities. Such utterances have been in vogue for many decades. It is a shame that the leaders of the largest democracy with a large number of religions allow the propagation of such mindless thoughts (which clearly trample underfeet the constitutional rights) against such a minuscule section of the population as Christians.

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CHAPTER- 10 : MINORITIES’ RIGHT AND CURRENT ISSUE

 Notwithstanding a change in the Federal gove rnment in 2004, Indian security forces continued to  pursue policies inter alia  of extra-judicial killings, detentions and torture. The implication of such policies was particularly tragic for India's many segments of Muslim minorities-in  particular Muslims of Jammu and Kashmir. Arbitrary practices of arrests, detentions and torture was deployed against the Muslims in Jammu and Kashmir; Courts in Jammu and Kashmir were reluctant to hear cases involving militant crimes and failed to act expeditiously on habeas corpus 94

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cases. The conflict between Muslim Kashmiris and the Indian armed forces has been brutal resulting in more 40,000 deaths within the past 15 years. Since April 2005 (with the visit of Pakistan's Military leader Pervaiz Musharraf to India) some albeit slow progress has been made in developing a peace-dialogue. In April 2005 a bus-service opened between the two parts of the divided Kashmir. In June 2005, a number of Kashmiri leaders held talks with the Pakistani leader, General Musharraf with a view to advancing the peace initiative. This was followed by the decision at the end of August by the Indian Prime Minister Manmohan Singh to hold talks with the Kashmiri separatists. The talks which were conducted with the moderate wing of the All Parties Hurriyat Conference in Delhi on 5 September 2005 provide cause for optimism: the leader of the Hurriyat-an umbrella group of parties opposed to Indian rule in Kashmir-agreed in  principle to denounce all forms of violence within Kashmir. However, in the light of the intransigent stance of all the parties involved in the conflict and in the light of the continuing violations of India security forces a resolution to the dispute appears distant. The role and status of Kashmiri politicians in the present dialogue process also needs to be amplified as part of a  broader political process. The divisions between the Hurriyat and the hardliners in the negotiating process has been a critical issue. This is manifest by a various killings of and attacks on moderate Hurriyat leaders by Pakistan-based hardline militant groups in Kashmir over the last few years. In addition to the grievances emerging from Kashmir, Muslims of India claim to have suffered  persecution and genocide in the state of Gujarat. Muslim leaders condemn the failure of the Gujarat government and the Indian Courts to prosecute those involved in the killing of over two thousand Muslims at the hand of Hindu extremists. In many cases attempts to hold perpetrators of Gujarat riots accountable were hampered by the allegedly defective manner in which police recorded complaints. There were allegations made by the victims that the police failed to register their complaints or recorded the details in such a way as to lead to lesser charges. Victims complained that the police and governmental authorities deliberately failed to bring charges against prominent people involved in attacks. No appropriate action has been undertaken against those involved in the Gujarat - the Best Bakery case exemplifies the situation. This case had to  be moved out of Gujrat High Court to neighbouring Maharashtra by the order of the Supreme Court. A retrial was ordered in relation to the most serious instance of rioting in Godhra and 95

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arrest warrants were issued for 10 of the 21 accused. Many other riot cases are awaiting hearing from the Supreme Court as regards Gujarat. There was also the continuation of another related sectarian Hindu-Muslim dispute over the sacred site of Ayodha. On 5 July 2005, six men  pretending to be tourists, used explosives to blast through the wall of the Ayodha site. Although all the assailants were killed, Hindu nationalist parties such as the Vishwa Hindu Parishad (VHP) called for retaliatory action to be taken against Muslim organizations and blamed Pakistan for orchestrating the attack. Further tensions emerged after the terrorist bomb blasts on 11 July 2006 in Mumbai (formerly Bombay). These bombs blast which killed 209 people and seriously injured nearly 1000, were  blamed on Islamic extremists aggrieved at the treatment of Muslim in Kashmir and Gujarat. Indian security services blamed Al-Qeeda and their Indian agents for the terrorist atrocity, and on 18 July three members of the Students Islamic Movement of India were arrested on suspicion of masterminding the terrorist plot. This atrocity has led to further increasing the nervousness and tensions for Indian Muslims and at the same time threatning to stall the peace talk with neighbouring, Muslim majority Pakistan. In July 2008, 21 bombs went off simultaneously in Ahmedabad, killing 53 and wounding around 200. Police and paramilitary forces poured into the area in the wake of the blasts. In August 2008, local human rights activists claimed that about 400 Muslim youths had been rounded up in response to the bombings, but the government had not identified any perpetrators. A recent report commissioned by the Congress government, the Justice (Retd) Rajinder Sachar Committee Report, brings out the issues of income, education and employment related to Indian Muslims. The Committee was set up by the Prime Minister as a High Level Committee under the Chairmanship of Justice (retd) Rajinder Sachar to examine in comprehensive detail the social, economic and education status of the Indian Muslim community as standing in 2006. The findings of the Sachar Committee in 2006 have clearly indicated certain levels and forms of systemic discrimination and official prejudice operating in Indian society at almost all levels against Muslims and some of the results have shocked the whole country. The Committee used data tabulated indices for levels of education (matriculation, graduates and above), employment

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(workers and formal sector), economic (poverty and land holdings) between Hindu and Muslim Other Backward Classes (OBCs), Muslims in general and compared them with the standard allIndia average. Some of the key findings of the Report as regards Muslims in general and Muslim OBCs are as below: 1. OBCs are generally below the all-India average when it comes to matriculation, graduation and industry employment; 2. Surprisingly, Hindu OBCs averaged better than the national mean when it came to nonformal employment, poverty levels and ownership in land holdings; 3. Muslim OBCs are placed poorer than Hindu OBCs in all major categories; 4. Muslims in general are the poorest and come behind Hindu and Muslim OBCs. Economist Abusaleh Sharif, a Member Secretary of the Sachar Committee, has observed in an Indian newspaper, The Indian Express, that, ‘(These) NSSO statistics demonstrate general Muslims are well below the status of Hindu OBCs.' (See The Indian Express, 31st October, 2006). The statistical figures for Muslims in rural areas are also deeply disturbing: 1. A whopping 94.9 per cent of Muslims in Below Poverty Line (BPL) families in rural areas do not receive their entitlement of free foodgrains. Only 1.9 per cent of the Muslim community benefit from the Antyodaya Anna Yojana Scheme (a government programme meant to prevent starvation deaths by providing food grains at a subsidised rate); 2. A large percentage of rural Muslims-60.2 per cent-do not have any ownership of land; 3. Only 3.2 per cent of rural Muslims receive subsidised loans. The committee also found shocking instances of discrimination against the community. These include cases of Muslims not getting loans from even nationalised banks. ‘There is an implicit diktat that loans should not be given in specific areas dominated by Muslims because of the high  probability of default', the Committee observed after a visit to Rajasthan; 4. Only 2.1 per cent of Muslim farmers owning tractors (this is abysmal when seen in the context of India having about 15,25,000 tractors in the country and having the 4th largest tractor-owning population in the world after the US, J apan and Italy). 97

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On the education front, only about 3.6 per cent of Muslims above the age of twenty are college graduates according to recent data as collected in 2006 from the National Sample Survey Organisation (NSSO). 54.6 per cent Muslims in villages and 60 per cent in urban areas have never attended schools. There are 3.1 per cent of the Muslim community in urban areas who are graduates and 1.2 per cent who are post-graduates. Only 0.8 per cent of Muslims in rural areas are graduates. The Committee also found inadequate number of government schools in the Muslim-dominated areas contributing to the low number of Muslim boys and girls attending the schools. One of the most shocking revelations was that the share of Muslims in all state government jobs - across all grades - in a dozen high-Muslim population states is just over 6 per cent. The Report findings show that there is no state where the representation of Muslims matches with their population share. The percentage of Muslims across all Public Sector Units (PSUs) in India illustrate the point that Muslims are severely under-represented even in government employment, including PSUs, compared to the percentage of their population in a state. What makes this statistic even more shocking is when this figure o f Muslim employment in PSUs is seen in the context of some of the states like West Bengal and Bihar where the political establishment has made Muslim welfare a key political and electoral rhetoric. West Bengal  provides a good example of duplicity and concealed systemic discrimination. While the Left Front government there has professed secular policies as its key electoral rhetoric and has enjoyed a three-decade reign of uninterrupted power, it has one of the lowest shares of Muslims in government employment: just 4.2 per cent. This is where almost a quarter of the state's  population is Muslim. In fact, West Bengal reported zero percent of Muslims in higher positions in state PSUs. The other states where the story is similar are Bihar, Maharashtra and Uttar Pradesh where the ratio of Muslims employed in government jobs are extremely low - less than a third of their share of population. The percentage of Muslims in higher positions in PSUs in Maharashtra is only 1.9 percent. It is quite apparent that while the Left Front government in West Bengal and the Laloo Prasad government in Bihar has successfully provided physical safety and security to Muslims through the effective containment and prevention of communal riots, they have systematically failed to  politically empower Muslims by giving them jobs and education. This becomes quite shocking when it is seen that that both the Left Front government and the Laloo Prasad government have 98

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 been in continuous power in office for long periods of time and have consistently used Muslim upliftment as part of their electoral rhetoric. Data received by the Sachar Committee show that representation of Muslims in jobs is less than half of their population share in all states across the country. The state with the highest  percentage of Muslims employed in the government is Assam: 11.2 per cent Muslim population  percentage share is 30.9 per cent. The highest percentage of Muslims in higher positions in state PSUs is in Kerala - 9.5 percent. Some of the states that have a relatively higher proportion of Muslim representation in state government jobs are: a) Karnataka (Muslim population share: 12.2 per cent, share in jobs: 8.5); b) ironically Gujarat (Muslim population share 9.1 per cent, share in jobs: 5.4 per cent); and c) Tamil Nadu (Muslim population share: 5.6 per cent, share in  jobs: 3.2 per cent). In Kerala, where literacy levels are highest in the country, it is shown that only 10.4 per cent of state government employees are Muslim (less than half of the share of Muslims in the population of the state). The percentage of Muslims in higher positions in state government owned PSUs in Bihar and Karnataka is 8.6 per cent. Ironically, it is 8.5 per cent in Gujarat, higher than most states, though not even fifty percent of the population share of Muslims. The 2006 Sachar Committee Report also found clear evidence that Muslims severely lacked representation in the central elite civil services. Muslims in India constitute just over 3 per cent of the Indian Police Service and 1.6 per cent of the Indian Foreign Service. There are only10 of a total of 619 Indian Foreign Service (IFS) officers according to the Expenditure Reforms Committee 1999-2000 documents. The senior-most Muslim IFS officer is Talmiz Ahmed, who is  presently Director General of Indian Council of World Affairs. The percentage of Muslims in the Indian Police Service (IPS) is about 3.39 per cent. According to the IPS Civil List 2006 (as on January 1), there are 109 Muslims out of a sum total of 3209 names. There is only one Muslim who is holds a sensitive intelligence post in the country-Asif Ibrahim-who heads the Delhi desk of the Intelligence Bureau (IB). The percentage of Muslim intake in the Indian Administrative Service is 2.2 per cent according to the Civil Services List of 2006 (as on January 1, 2006). Again, there are about 108 Muslim IAS officers out of a sum-total of 4790 such officers in the

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country. This figure also includes 1248 State Services Officers who have been promoted to the IAS. Mohammed Riazuddin of the Kerala cadre is the senior most Muslim IAS officer in India. The Committee also found an alarming low level of state-wise Muslim representation in all levels of the judiciary as compared to the share of Muslim population. The overall figure of Muslims in the judiciary in the 12 high-Muslim population states stands at only 7.8 per cent as an average percentage. Again, Left Front-ruled West Bengal features as the lowest performer with only 5 per cent of Muslims in the higher positions of the state judiciary (percentage of Muslims in the state is 25.2 per cent). The position in neighbouring Assam is also quite similar. While the state has a Muslim population percentage of 30.9 per cent, the percentage of Muslims in the  judiciary is only 9.4 per cent. The percentage of Muslims in the judiciary in Jammu and Kashmir, the state with the highest Muslim population (66.97 per cent), is only 48.3 per cent. Andhra Pradesh is the only state that has more Muslims in the judiciary in terms of proportional representation - Muslims constitute 12.4 per cent of the judiciary (their population share is 9.2  per cent in the state).

Minority rights and national integrity:-

Before we discuss minority rights, we need to be clear about the concept of minority. The word ?minority? has a substantive meaning only if special protection in the Constitution is to be  provided. If so, then a further question would arise as to who these minorities are, which would require a definition of minority to identify them, and also what constitutional protection is to be  provided.

Such protection is required for the minority to be compensated for some historically acquired disability. Otherwise, it would be meaningless to have a discourse on minorities.

Therefore, present practice of regarding any group of less than 50 per cent of the population as minorities is ridiculous. The Whites of South Africa are numerically a small number, but they 100

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cannot be treated as ?minorities? deserving of special protection, reservations, or affirmative action. Parsis in India despite being a microscopic minority numerically, have consistently refused to ask for any constitutional safeguards. They are therefore not a minority in the constitutional or

statutory

dimension.

Strange as it may sound, there is no definition of minority in the Indian Constitution (although Articles 29 and 30 make provisions for a minority, religious and linguistic), nor is there a definition in United Nations resolutions or a universally accepted definition in international laws.

Some countries such as Thailand and Brazil refuse to accept that there are minorities in their country. These nations have told the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities that they have no minorities to notify, despite being a multi-religious, multi-racial

society.

In 2001, an 11-judge constitutional bench delivered a judgment on the question of minority rights in education (T.M.A. Pai Foundation case), but did not define the term ?minority?. What they did do was to opine that minorities are not to be defined nationally but state-wise, thus overturning their 1971 DAV College30 judgment. Subsequent judgments of the Supreme Court, such as delivered by a five-judge constitutional bench in 2003 in the Islamic Academy case, and a seven-judge constitutional bench in 2005 in the Inamdar case have also not defined the concept of

minority.

In 1992, India?s Parliament enacted the National Commission for Minorities Act, but did not define a minority in it! Section 2(c) of the Act merely states that minority is what the government of India will notify in the Gazette!! The government has notified, without reason or explanation, Muslims, Christians, Sikhs and Parsis as religious minorities. Why they are so has not been explained. Even the State Minorities Commissions have not bothered to define minorities.

30

AIR 1971 SC 1737

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In other words, the nation has been discussing minority rights for the last sixty years without defining what or who can be the minorities. How can we identify minorities if we do not have a definition

of

the

term?

Hence, I shall begin with my definition of minority and then discuss what their rights can be in the context of national integrity. In this connection, it is appropriate to quote from the judgment of the three-judge Supreme Court bench in Bal Patil versus the Union of India case, delivered by Justice Dharmadhikari

in

2005:

?Such claims to minority status based on religion would increase the fond hope of various sections of the people in getting special protections, privileges and treatment as part of the constitutional guarantee. Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy. We should guard against making our country akin

to

a

theocratic

State

based

on

multinationalism.?

This is a severe indictment of the minorityism that has become today the bane of the nation. Instead of heeding to the timely warning, the present UPA government at the centre has embarked on further appeasement and placating of the religious ?minorities?. It is in this context that the recent order of the single judge of the Allahabad High Court stating that Muslims of UP are

no

longer

to

be

regarded

as

a

minority,

needs

to

be

taken

seriously.

What we can therefore hold now is that if a group is numerically small, and substantially below 50 per cent of the population, then although it has the necessary attribute of a minority, that attribute is not sufficient for it to be declared a minority for the purpose of constitutional or statutory protection. Such a group must have sufficient other attributes as well, to be identified as a

minority.

Based on the circumstances arising out of the Indian legacy, and in recognition of defining events

of

Indian

history,

I

would

define

102

a

minority

in

India

as

follows:

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?A collective of Indian citizens, constituting a n umerical minority and situated in a non-dominant  position in society, endowed with characteristics which differ from those of the majority, having suffered from imposed deprivation over a long period and thus have acquired disabilities, are a minority if these disabilities cannot be removed except by providing special constitutional  protection

and

facilities

for

affirmative

action.?

That is for sufficiency of attributes to qualify as a minority under the Constitution of India, it is required that such a group be in a non-dominant position in society, have suffered deprivation for a long period to have acquired disabilities which cannot be removed except by special constitutional

protection

such

as

reservations

in

jobs

and

educational

institutions.

By this definition, the Scheduled Castes and Scheduled Tribes would constitute a minority even if they are a part of the numerical majority Hindu community. Their disabilities cannot be removed except by specific affirmative action such as reservation in jobs, education, and in legislatures. Backward castes of the Hindu community also suffer disabilities, but these can be removed by special arrangements of education facilities and financial assistance. But due to our  political folly and selfishness, these backward castes have been given reservations in jobs and education, which cannot now be taken away except by persuasion in the future. When worldclass primary and secondary education can be provided to all, it is possible that the youth of the  backward castes would prefer to compete rather than advance by availing of quotas. Since the Indian DNA structure is the same for all castes, hence, competing on merit, if equally empowered,

is

possible

for

the

backward

castes.

But Muslims and Christians cannot be considered minorities in Indian society because their disabilities are not acquired from deprivation imposed on them. In fact, Muslims and Christians, like the Whites of South Africa, have been ruling classes in India for a long period. Sequentially, these two religious groups have ruled India for over a thousand years, during which period they  practiced religious apartheid against the Hindus. Hence, for national integrity, patriotic Indians should resist with all their might any attempt to introduce quotas in jobs and education, or for anything else, for the benefit of Muslims and Christians. Those Muslims and Christians who

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consider themselves patriotic Indians should also, like the Parsis, reject any offer by mischievous  politicians to introduce quotas for them. Instead they should ask for world-class primary and secondary education to empower them to compete on a level playing field with the rest of the society.

Whatever has now been incorporated in the Constitution for minority rights cannot be taken away. Articles 29 and 30 are part of the Basic Structure of the Constitution and hence cannot be amended out. Hence, minorities will continue to have the right to administer their own educational institutions. But as the Supreme Court has held in the Islamic Academy case, the unfettered right to administer does not include the right to mal-administer. Hence, minority-run educational institutions, including unaided ones, must be subject to obtaining the government approval for curriculum standards, faculty quality, and basic infrastructure, which should be common to all. Sooner or later, we must require that all students including Muslims and Christians, learn Sanskritised Hindi, whose vocabulary should be progressively Sanskritised till the Hindi becomes indistinguishable from Sanskrit. Our long-term link language has to be Sanskrit, because its vocabulary is in large measure in every language. Even Tamil has 40 per cent

of

its

vocabulary

in

common

with

Sanskrit.

The goal of minority rights in education has to be to further social justice. Towards this end, we must strive for equal and high quality educational opportunity and create a mindset for national unity and integration. Quotas and reservations are essential for Scheduled Castes and Scheduled Tribes, but here too the concept of creamy layer must operate. But we cannot accept special rights for religious minorities of Muslims and Christians, just as we cannot for Brahmins although they are as poor a community as and Christians. The logic is the same?those who have  been ruling classes cannot claim minority status in the constitutional matrix of the nation.

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CHAPTER- 11 : CURRENT STATE OF MINORITIES AND INDIGENOUS PEOPLE

It is amply clear that various issues related to minorities have started putting pressure on the  policy formulation and implementation by the government. It also needs to be added that the dominant heterogeneous groups are quite fragmented and that government policy cannot be faulted for working to further the interests of any particular group as such. However, there are substantial difficulties; these include problems with the implementation of policies currently dealing with property rights and interests and the restructuring of rights of religious minorities. The plurality existing within the political framework and the pressures generated by the polity is now seeing a continuous process of social churning affecting the position of minority groups.

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In 2006, the Government has drawn up and implemented a reservation policy through a legislative enactment in Parliament that will entitle members of Other Backward Classes (OBCs), both Hindu and Muslim, to avail of fifty per cent of seats in all government educational institutions and all government-aided and sponsored educational institutions. This is in consonance with the objectives of the Ninth Five Year Plan (1997-2002) that chooses to enhance ‘growth with social justice and equity'. It needs to be mentioned that the Ninth Plan emphasizes on the removal of historical social wrongs through the vehicle of private participation and private ownership in industry. There is a-state driven-transfer of economic power that is slowly taking shape from the urban, westernized, educated upper-castes to the rural masses and intermediary castes. This has been manifest in various densely-populated states across the country like Bihar, Uttar Pradesh, Jharkhand, Chattisgarh, Tamil Nadu and West Bengal. The politics of this newly emerging constituent class has re-defined Indian politics since 1991 after the implementation of the Mandal Commission Report (1990). In its report of 1980, the Commission endorsed the affirmative action policies existing in Indian law whereby lower castes (also known as Other Backward Classes and Scheduled Castes and Tribes) were provided with exclusive access to a certain proportion in higher education and governmental jobs and recommend changes to the quota system by increasing these to 49.5 per cent (a rise of 27 per cent). The Mandal Report has been a significant factor that has influenced the recent changes in the  political map of the country both at the federal level and at the State level. At one level, Mandal has brought in the demand for greater decentralisation and increased democratisation of political  power. At another level, it has been the reason for political expediency and the government  placing more emphasis on caste and religion in certain areas of policy-making. While implementation of the Mandal Report by the V.P. Singh Government and the Rajiv Gandhi Government in the early 1990s arguably has had a pronounced effect on the political developments in the last decade in a positive way in some sense, it is also seen one of the reasons for the meteoric rise of the right-wing Hindu party, the BJP. The recent move towards a fresh spate of reservation in educational institutions by the Congress Party in 2006 has again stoked fears that the BJP may see a fresh lease of political life after it's last few years in political wilderness.

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The Dalits and the Adivasis continue to suffer from enormous discrimination and social ostracism. At the same time, India's official discourse of equal rights for all religious minorities, has increasingly been translated into the will the Hindu majority. The global war on terror has raised substantial increased the leverage of right-wing Hindu fundamentalism to further undermine the position of Muslim minorities. Muslims - in particular those seeking autonomy and self-determination-in Kashmir are viewed as collaborators or terrorists. Within Kashmir, there have been limited and piece-meal initiatives under taken by the present Congress government for a lasting cession of violence. The position of Muslim minorities, on the whole, continues to be precarious. Further tensions have emerged as consequence of the blasts which shook Mumbai on 11 July 2006. These blasts resulting in the deaths of 209 have been blamed on Islamic extremists aggrieved, with Indian security services suspecting Al-Qaeda and their Indian agents. On 18 July three members of the Students Islamic Movement of India were arrested on suspicion of masterminding the terrorist plot. This atrocity has led to further increasing the nervousness and tensions for Indian Muslims. Tensions also increased in Gujarat following blasts from 21 simultaneous bombs in the city of Ahmedabad. The bombs killed 53 people and injured 200 more. In August 2008, local human rights activists claimed that about 400 Muslim youths had been rounded up in the aftermath. Muslim-Hindu tensions heightened again after a fatal assault in Mumbai in November 2008, in which 166 were killed and many left wounded. The only survivor from 10 gunmen who, according to the police, landed in Mumbai by boat from Pakistan faces 83 charges the State made against him and a death sentence if found guilty. India suspended talks with Pakistan until it took steps against the 38 people the Indian police have identified in connection with the attack. In September 2008 an anti-Christian wave of violence spread in the state of Orissa, that has left 38 people dead and many injured. According to media reports tens of thousands of Christians fled their homes. Pope Benedict condemned the incidents that also involved churches being set on fire. The Indian Supreme Court ordered the state government to ensure the security of the refugees. The impacts of recent governmental initiatives are as yet unclear. The Sachar Report on the

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Status of Indian Muslim which was tabled in the Parliament on 30 November 2006 contains revealing comments on the social, economic and educational status of the Muslim community; it is as yet too early to assess the extent to which its recommendation will be implemented. However, it is the first of its kind report and it puts forward recommendations to implement comprehensive policies to ensure equality of opportunity to Muslims in the workplace and in education. The current government also established a Ministry for Minority Affairs. However, this ministry which was created in January 2006 is generally perceived as a political instrument on the part of the Congress government to regain the confidence and sympathies of minorities within India. There is as yet no significant impact of this ministry in the projection or promotion of minority rights. In August 2007 the Minister of Minority Affairs published the government’s 15 point follow-up actions on the recommendations of the Sachar Committee. Actions include targeted interventions to improve basic amenities and employment and economic opportunities in specific towns and districts with a substantial Muslim minority population, a multi-pronged strategy is foreseen to address educational backwardness and the setting up of an Equal Opportunity Commission and a National Data Bank is recommended. Ms. Asma Jahangir, United Nations Special Rapporteur on Freedom of Religion or Belief visited India in March 2008 and released her report on religious freedom in India in January 2009. In her report she positively commented on the Sachar Report, on the new 15 Point for Welfare of Minorities report and on the work of the National Commission for Minorities and acknowledged that a comprehensive legal framework to protect freedom of religion or belief exist. But she expressed concern that when it comes to implementation of the law and policies, the level of action at the regional and local level is unsatisfactory. She condemned ‘institutionalised impunity for those who exploit religion and impose their religious intolerance on others’ and warned that ‘communal violence might happen again unless political exploitation of communal distinctions is effectively prevented’. Recommendations include the delinking of Scheduled Caste status from the individual’s religious affiliation and vigorous protection of religious minorities and  prevention of communal violence, including passing legislation to specifically deal with interreligious

violence.

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reports at last two people were killed and dozens wounded in violent clashes in Calcutta, and in Kashmir a petrol bomb was thrown at a police station and anti-India separatists clashed with security forces. Results of the five-round elections are expected on 16 May 2009.

Communal conflicts have periodically plagued India since it became independent in 1947. The roots of such strife lie largely in the underlying tensions between sections of its majority Hindu and minority Muslim communities, which emerged under the Raj and during the bloody Partition of India.  Such conflict also stems from the competing ideologies of Hindu nationalism versus Islamic fundamentalism and Islamism;  both are prevalent in parts of the Hindu and Muslim  populations. Alongside other major Indian independence leaders, Mahatma Gandhi and his  shanti sainiks ("peace soldiers") worked to quell early outbreaks of religious conflict in Bengal, including riots in Calcutta (now in West Bengal)  and  Noakhali District (in modern-day Bangladesh) that accompanied Muhammad Ali Jinnah's Direct Action Day,  which was launched on 16 August 1946. These conflicts, waged largely with rocks and knives and accompanied by widespread looting and arson, were crude affairs. Explosives and firearms, which are rarely found in India, were far less likely to be used. Major post-independence communal conflicts include the 1984 Anti-Sikh riots, which followed Operation Blue Star by the Indian Army; heavy artillery, tanks, and helicopters were employed against the Sikh partisans inside the Harmandir Sahib,  causing heavy damage to Sikhism's holiest Gurdwara. According to the Indian government estimations, the assault caused the deaths of up to 4,000 soldiers, 250 militants, and hundreds of civilians. This triggered Indira Gandhi's assassination by her outraged Sikh bodyguards on 31 October 1984, which set off a four-day period during which Sikhs were massacred; The Government of India reported 2,700 Sikh deaths however human rights organizations and newspapers report the death toll to be 10,000-17,000. In the aftermath of the riot, the Government of India reported 20,000 had fled the city, however the PUCL reported "at least" 50,000 displaced persons. 109

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The most affected regions were neighborhoods in Delhi.  Human rights organizations and the newspapers believe the massacre was organized. The collusion of political officials in the massacres and the failure to prosecute any killers alienated normal Sikhs and increased support for the Khalistan movement.  The Akal Takht,  the governing religious body of Sikhism,  most definitely considers the killings to be a genocide. Other incidents include the 1992 Bombay Riots that followed the demolition of the Babri Mosque as a result of the Ayodhya debate,  and the 2002 Gujarat violence that followed the Godhra Train Burning — in the latter, more than 2,000 Muslims were killed.[89] Terrorist activities such as the 2005 Ram Janmabhoomi attack in Ayodhya, the 2006 Varanasi bombings, the 2006 Jama Masjid explosions,  and the 11 July 2006 Mumbai Train Bombings are often blamed on communalism. Lesser incidents plague many towns and villages; representative was the killing of five people in Mau, Uttar Pradesh during Hindu-Muslim rioting, which was triggered by the  proposed celebration of a Hindu festival.

India is a secular republic and the constitution guarantees equal rights to all its citizens without any discrimination. The Indian constitution provides many legal safeguards to the minority community and special provisions are made for their social and economic growth. Despite these, minorities in India face all types of inequity in the public sphere. Even the violence and human right violations of the minority community in India is a common phenomenon. In this context, the note of UN Special Repporteur on Freedom and Religious Belief Ms. Asma Jahangir, is pertinent when she p raised India’s secularism, human right activism, and strong legal protection for religious minorities at the national level but also made the point that due to the federal structure of Indian state the implementation of law varies from states to states. She said, “organiz ed groups claiming roots in religious ideologies have unleashed an all-pervasive fear of mob violence in many parts of the country”. Asma Jahangir, was making special reference to the violence in Orissa, where Hindu fundamentalists attacked Christian and tribal communities. The violence in Khandamal region of Orissa continued for a long period,

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despite massive protest by activists and secular organizations.

Condition of Muslim Community: -

Amongst the minorities in India, Muslim is the largest community but still far behind the b enefits of development. This is true that every common citizen of the country is derived from the gains of economic growth but the quotient of this deprivation is more amongst the Muslim community. This came into light when Sachar committee report on the condition of minority community was  placed in the parliament. Some of the glaring findings of the report are as follows. 1) In the field of literacy the Committee has found that the rate among Muslims is very much  below than the national average. The gap between Muslims and the general average is greater in urban areas and women. 25 per cent of children of Muslim parents in the 6-14 year age group have either never attended school or have dropped out. 2) Muslim parents are not averse to mainstream education or to send their children to affordable Government schools. The access to government schools for children of Muslim parents is limited. 3) Bidi workers, tailors and mechanics need to be provided with social safety nets and social security. The participation of Muslims in the professional and managerial cad re is low. 4) The average amount of bank loan disbursed to the Muslims is 2/3 of the amount disbursed to other minorities. In some cases it is half. The Reserve Bank of India’s efforts to extend banking and credit facilities under the Prime Minister’s  15-point programme of 1983 has mainly  benefited other minorities marginalizing Muslims. 5) There is a clear and significant inverse association between the proportion of the Muslim  population and the availability of educational infrastructure in small villages. Muslim concentration villages are not well served with pucca approach roads and local bus stops.

6) The presence of Muslims has been found to be only 3% in the IAS, 1.8% in the IFS and 4% in the IPS.

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7) Muslim community has a representation of only 4.5% in Indian Railways while 98.7% of them are positioned at lower levels. Representation of Muslims is very low in the Universities and in Banks. Their share in police constables is only 6%, in health 4.4%, in transport 6.5%. 8) For the Maulana Azad Education Foundation to be effective the corpus fund needs to be increased to 1000 crores. Total allocation in the four years 2002 to 2006 for Madarsa Modernization Scheme is 106 crores. The information regarding the Scheme has not adequately  percolated down. Even if the share of Muslims in elected bodies is low they and other underrepresented segments can be involved in the decision making process through innovative mechanisms. 9) Most of the variables indicate that Muslim-OBCs are significantly deprived in comparison to Hindu-OBCs. The work participation rate (WPR) shows the presence of a sharp difference  between Hindu-OBCs (67%) and the Muslims. The share of Muslim-OBCs in government/ PSU  jobs is much lower than Hindu- OBCs. The points made above are enough to reflect on the pathetic economic condition of Muslim community in India. After the Sachar committee report comes in the public domain, national debate started on the condition of Muslim in India. Government acknowledged the problem and  beneficial schemes are introduced, but still the per capita levels of investment for the community is low. According to the report released by Anhad (a civil society group working on minority affairs) after the national meet on the status of Muslims in Contemporary India, the per capita level of investment from the side of government for the community are still low. The scheme for investment in districts with high minority population, at best cover 30 percent of the total  population. The programmes are for area development rather than programmes focused on the minorities; therefore they prove blunt instruments as much of the expenditure is on general infrastructure and little to directly benefit deprived people of the community. They are not consulted about their priorities. On the economic front Muslim community face problem but this is equally true when we look at human right violations. In the recent past after every terrorist attack Muslim community are targeted by the state apparatus and several time innocent youth are also arrested on false premises or just on suspicion without any substantial proof. Cases of illegal detention are generally reported form States like Andhra Pradesh, Delhi, Maharashtra and Uttar Pradesh. It came to light that Muslim youth are randomly pickedin Hyderabad (cyber city) and

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from Azamgarh of Uttar Pradesh. Illegal detention of the Muslim community is accepted by the Andhra Pradesh government when it paid compensation to 21 Muslim youth who are tortured in the police custody after been wrongly held in 2007. India’s popular investigative magazine Tehelka found than an overwhelming cases of arrest pertaining to minority community in terrorist acts are based on non-existent and fraudulent evidences. Hundreds of people, mainly Muslims and poor, were persecuted and falsely accused of terrorism. According to media reports, Bar Associations in different parts of the country, Faizabad, Lucknow and Dhar among them, have asked their members not to defend Muslim terror suspects.

The attributes of minority group is seen a relative perspective which characterized to the nature of the group as being qualitatively weak, on-dominant and under privileged in global terms. Since people, community or group differ in their qualitative and quantitative characteristics as well, so there is always a possible certainty of being one superior and other inferior in a relative comparison. These relative differences thus existing between the groups create a feeling of being superior (majority group) and inferior (minority group). Physical existence of majority and minority group is an outcome of the differential treatment which the groups are experiencing; one group enjoys all or most of the privileges whereas other enjoys a few or is deprived privileges. This differential treatment keeps one to feel as being the member of either privileged or underprivileged groups. Privilege group here is an indicative of majority groups and under privilege refers to the minority groups. As the term minority and majority groups are always perceived to be in the relative terms and the formal is generally characterized as being weak under privilege and victim of the later group, so the problem of minority is a universal phenomenon irrespective of the affluent and backward states existing on the globe. In every country, there are groups of people loosely or closely associated for some specific reason or purpose, which may be racial linguistic cultural religious political economic etc or a combination of these. In the quest for describing minority; United Nation Sub-commission on the  prevention of discrimination of minorities  – suggested that the term should include only those

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non dominant groups in population, which possess and wish to preserve stable, ethnic, religious, linguistic traditions, characteristics, markedly different from those of the rest of the population. The problems of issues of Indian sub continent have been very peculiar. Before British rule; Muslims were ruling the Indian sub continent and they were forced out of power by Britishers. This was followed by the division of Indian sub continent better known as partition on the religious basis. Inspite of all that happened during the partition of independent India experienced the beginning of the new era. India was declared a secular state where equality to all was  provided irrespective of caste creed and religion. These rights clearly become the part of the constitution which is mentioned in Article 29 and 30. Article 29 states, "any section of the citizen 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" Article 30 acknowledges "the right of minorities based on religion or language to establish and administer educational institution of their choice". If these articles are put together it would appear that Indian constitution envisages three categories of minorities- classified in terms of language, religion and culture for which all rights are guaranteed to keep their identities intact. Differences on the ground of language or religion are understandable but it is difficult to define the word culture. Culture means so many things and there is so much cultural varity in India. It is difficult to culturally determine who is minority and who is in majority. Culture, therefore being a vague and intangible phenomenon for the determination of minorities. But if culture is understood to be the essence which is embedded in the religion than culture and religion combined together form a rational basis for a relative emergence of majority and minority groups. Language and religion (including caste) or combination of both provides equally stable basis for the determination of minorities. The division is both at vertical and horizontal in majority and minority groups as well. So far as religious in the Indian sub continent are the Muslims Christians Sikhs Buddhist Jains and very small minority of Persians. There is yet another minority recognized in the constitution 114

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is of Anglo- Indians which is a combination of racial religious and linguistic characteristics. Among all the above minorities Muslims are the largest single minority co mmunity in India. There are number of problems and grievances of minorities in general and Muslims in particular, some delicate and some complex, some real and some perceptible. The Muslim backwardness in the country can evidently seen as they lack behind the majority community- both educationally and economically. There are two commonly prevalent explanations regarding educational backwardness among Muslims in contemporary India. One explanation is that they have been slow to take advantage of governmental liberal policy regarding education since the independence due to their particular attitude or cultural ethos. There have been a slow tendency of the Muslims to respond positively modern technical and professional education or take advantage of educational developments is due to the account of their resistance to modern (scientific and professional education). They generally prefer sending their children to a traditional Islamic educational institution rather than to a modern institution. Such tendencies are gradually vanishing as enlightened Muslim or Muslim institution are engaged in developing awareness among Muslim parents and their children towards the acquisition of education starting from very basic Islamic traditional schooling to the acquisition of education at college or university level. Presently Muslims in comparison to the other communities in the country are almost proportionally equal in the pu rsuit of modern education but still Muslims lack behind in terms of the acquisition of professional and technical education. The admission to these courses requires competition, where Muslims generally are not up to the mark in competing with the other community. It is a matter of reality that Muslims have far below representation proportionately in a composition for professional and technical courses. In other words there are fewer Muslims, in respect of their proportion, appearing for such courses. Thereby fair competition generating fair results do not allow the Muslim ration to grow rather their percentage comes to such levels where even the single Muslim fails to occupy a seat because of the un-proportionally unequal competition. This is one of the major logical reasons of Muslim educational backwardness. There have been a general out cry from the Muslim minority for the proportional reservation of seats in all walks of life either education or employment. This idea is registered by some pseudo enlightened Muslims and 115

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 political exploiters in general, who suggested Muslims to equip themselves for entering to the era of competition and grab their rights through their skills and talents to become more self reliant. Such things are always suggested for the Muslims but since independence there have been reservation which continues for scheduled caste and scheduled tribes. During the last one decade reservation given to the backward classes still give an advantage to the majority community as it can ensure reservation to the educationally and economically backward communities, irrespective of their caste, creed and religion. Again the minority communities especially Muslims in India are at the most dis-advantageous position compare to the majority community, hence backwardness and the majority community becoming more and more affluent in the socio economic set up. The important reason which is purely psychological in nature is the perception of Muslim that they are being discriminated in all spheres of competitive life against their counterparts. This  psychological feeling may some times help the minority feeling which sometimes help the minority people to excel beyond the level of their competitive counterparts but mostly minority members get discouraged and they reluctantly come in the fray and consequently they remain at the un important position where they can not assert or exercise their authority and skills they have development and expansion of the nation. The important grievances of religious minorities relate, perhaps to the operation of the state agencies of the law and order, welfare, education and health, public services, state contracts, credits, licenses, and the judiciary. The grievances of the minority are not confined only to these areas; formation other than state, such as political parties, certain so called social and cultural societies, trade associations, caste and communal bodies and others may operate to create material dis-abilities against religious minorities giving rise to such grievances. The most important grievances of the Muslim community is adequate representation in various services under the control of govt. of India. Inspite of the fact that the constitution of India  provides equal opportunities to all irrespective of any discrimination on the basis of the religion etc. The number of Muslims recruited to various services have never been above 5% and mostly lower around two or three percent in the govt. service. The relative number of jobs held by

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Muslims in govt. and in industrial and commercial undertakings has been a bone of contention for a long time. There is a strong feeling among Muslims that this number has been steadily declining. Among several reasons one important factor may be also the lack of quantitative supply of really competent candidates from the Mu slim community. Another major problem facing the minorities is the continued eruption of large scale communal riots from time to time. Regardless of which sites starts the riot, the Muslim generally suffers relatives lose in terms of lives lost and property destroyed and in conjunction of each other keeps the Muslim at the gross economic loss. This was clearly evident from Gujarat communal riot 2002, in which several Muslims were victimized as a result of Godhra incident.  No special efforts have been made to fulfill the need of education and training of the major  portion of Muslim population which belongs to the lower strata of society. Modern education neither attracts them nor serves any of their functional needs. The Indian Muslims have been caught in a vivacious circle as lack of modernization helps in perpetuating their economic  backwardness. The Indian Muslims today find it extremely difficult to come out of economic  backwardness lack of modernization backwardness syndrome. Muslim leaders are always eager to strike a deal with this or that ruling party has relegated the important economic problems of Indian Muslims to the background and projects the problems of religious and cultural identity as the key problems. The future of our people lies in unity and integration. The minority based on religion or language should appreciate that no body is interested in encroaching on their religious and linguistic rights. They should not take up in agitational posture. Already laws have been made to prevent the use of religion for political purposes, such as election. The minorities will earn friendship and good feeling of others if they emphasis that they are part of the whole and as such try to strengthen the composite culture which already exist, rather than try to develop a separate culture in the country. By selling such healthy examples the minorities will persuade the majority also to fraternize with them.

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It is duty of all to be friendly with everyone and this requires encouragement of emotional integration. We have got too many common points on which we can base our integration which should be emphasized and strengthened rather than any of us trying to stress separately identity of religious and linguistic community. It is the constitutional responsibility of govt. to see that educational culture of any community does not suffer from handicapped of any kind. All minorities can avail themselves of the educational facilities available equally to all citizens in the publicly financed none denominational institutions all over the country and at the same line handsome grants – in aid are also give to the educational institution run by different minorities as per the right in short in the Indian constitution. There are few universities in the country which were started by the minorities for special purpose of promoting education among the members of their communities along with their cultural and religious identities. Apart from various religious schools and other minority schools colleges, Aligarh Muslim University at Aligarh, Jamia Usmania University at Hyderabad, Jamia Milia Islamia at New Delhi, Jamia, New Delhi, Gurunanak Dev University at Amritsar are few Muslim and Sikh minority centers of learning which have been playing vital role in the service of educational and socio economical advancements of their respective communities. With the growing intellectual wisdom and technological advancement , see saw battle among the different communities will remain prevalent as it embedded in human nature itself and consequently the problems will grow and diminish in quick succession giving rise to another  problem but all will be set at a normal pace when the people of either of the communities are tolerant and realistic to the nature of creation of the world and making their life styles in combating conflicting situation through maintaining "unity among diversity" which our nation father has promised to run the nation immediately after India won freedom. It is not difficult to see why Muslims who live as a minority in non-Muslim countries like India or Israel are seen by them as a problem. The reasons are relatively simple. Wherever Muslims live as minorities they increasingly face problems of discrimination.

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These are partly due to historical and political factors, partly due to the media, which have confirmed for many that Muslims are violent, unreliable and prone to anarchy. There is another reason. Most non-Muslim countries in which Muslims live have an image of themselves as  plural, tolerant, secular and modern societies. Muslims somehow challenge this image. They  provoke the worst aspects of the state. In the main, instead of solving the problems of the Muslims in a manner that would be mutually beneficial, the state tends to ignore or minimize them. In the former state of Yugoslavia the Serbs went one step further with their Muslim minority. They systematically killed them and drove them from their homes in Bosnia. The world called it 'ethnic cleansing ' and did nothing. Bosnia was added to the list of recent Muslim losses. What offends Muslims living in a country as the minority community? What is the Muslim 'problem'? There are two or three things that Muslims are most sensitive about. The most important is religion. Muslims would like to be able to visit their mosques and say their prayers peacefully without interruption, without being beaten up, without being picked up for interrogation. They would also like privacy in their homes where they can lead their lives as Muslims. They would like dignity and honour for their families - in particular, for the elderly, the women and the children. They don't like police or paramilitary forces to burst into their homes and humiliate their families. They would like some control over their lives, some perpetuation of their own customs and values, the construction and maintenance of mosques which are the focus of social and cultural life, the capacity to read the Qur'an and the chance to live as Muslims and  by Muslim traditions. These include family laws, inheritance, religious holidays and religious festivals. When these are threatened, Muslims are threatened; confusion an d anger ensue. It is not difficult for non-Muslim rulers to concede these facilities to Muslims; when they have  been conceded, Muslims have lived harmoniously. History confirms this. It is the modern state that creates the problem. Because the modern state is so centralized and because it often lacks imagination in dealing with its minorities, Muslims are constantly under pressure. Merely wishing for the minimum, Muslims are seen as people who demand separation and indeed secession.

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There is a cultural problem also for Muslims living as a minority. Non-Muslim tourists visiting Muslim holy places cause offence by eating there and loitering, playing loud music on their radios. Islamic culture, adab, is directly challenged. In some cases there is a direct physical threat to these holy places, such as the demolition of Babar's mosque in Ayodhya, India. The inevitable religious clashes cost lives. There is also the more sinister danger of actual history  being changed and Muslim culture being depicted in official textbooks as barbaric and worthless (as has happened in Spain). A discussion of Muslims as a minority is important for several reasons. First, the populations we are discussing are large. Indeed, Muslims who live as a minority constitute about a quarter of the total number of Muslims. The problem is serious because it is ongoing and does not involve only one or two countries - it is global. A list of countries in which Muslims live as a minority includes the USA, India, Russia, the UK, France, Germany, Israel and Singapore. In India alone there are said to be anywhere around 110 million Muslims. No religion in the world has so many people trapped in an alien environment as the Muslims. Neither Christians nor Jews, nor Hindus, none of the major world religions have such large numbers in so many countries dominated by people of other religions. The second reason is that the sharpest and most brutal political confrontation is taking place in these societies. We learn of the most compelling stories of injustice and brutality as Muslims struggle for self-dignity and identity. The images that are shown on television and the reports in the press confirm for us the plight of the Muslims. Thirdly, because of the notion of the ummah, because of the manner of the suppression of these groups, Muslims in neighbouring countries are deeply concerned. The struggle of the Kashmiris in South Asia and the Palestinians in the Middle East draws in large Muslim populations outside the national borders. The geo-political situation remains tense; indeed it can escalate to war at any time. It is well to recall that the major powers in both areas have gone to war three or four times  because of these Muslim minorities. Finally, some Islamic ideas place Muslims and the nonMuslim majority on a confrontation course. The Islamic ideas are notions of the ummah, which 120

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transcends national borders, and the idea of jihad , struggle, the need to fight for a just and correct order. On the other hand, these non-Muslim nations need to respond to security requirements and geopolitical strategy. The Muslim minority is often caught in the crossfire. There are agonizing dilemmas facing Muslims living as a minority in certain areas. In a different time, in a previous age, Muslims persecuted by the majority could do one of two things: they could pack up and leave, that is, exercise the right to adopt hijra, or they could fight for their rights, that is  jihad.  Today, because of the power, the highly centralized security and administrative structures and the strongly manned borders of state, neither option is really feasible. Besides, it would be difficult to exercise the option of hijra. As recent history shows us, migrant communities do not settle down easily and merge; they take a long time to do so. Any influx of large numbers of refugees causes all kinds of social and political problems to the host community, however welcoming they may have been at first. This leaves the option of jihad . That too is difficult in our age. A small deprived minority cannot easily take on the power of the state, but it can try. The attempt to assert independence, to fight for one's dignity and culture, explains what is going on in Kashmir and Palestine. Communication between the government and these groups appears to have broken down. For Muslims the state is represented by the brute force of soldier and policeman. The women in the area live in dread of their honour and dignity being violated; young males are in the constant fear of being picked up for interrogation and torture at any time on an y flimsy pretext. For the elders there appears to be no real alternative but to give free rein to the youth in their attempt to break loose and create their own response to the world, whatever the costs. It is a dreadful choice, full of pain and disruption. But when dialogue breaks down it appears to be the only one open for the time being. An important aspect of these movements is their direct involvement with the geo-politics of the region. The Kashmir movement is seen in India as entirely a creation of Pakistan. This  perception is simplistic and disregards numerous factors: the notion of the ummah  which generates sympathy for Muslims wherever they are in trouble (although the Kashmiri cause has great sympathy in Pakistan, so does the Palestinian one); the strong feelings of injustice in 121

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Pakistan regarding the legality of the state of Kashmir and the manner it was incorporated into India; the many Kashmiris who have settled in Pakistan; the failure of the central government over the last decades to integrate these areas into the larger body of the nation. All these factors militate against integration. There are also certain Muslims who out of enthusiasm or ignorance or even mischief would make demands which not only clash with the state but suggest its disintegration. These create  problems for everyone concerned. For instance Dr Kalim Siddiqui's call for a Muslim parliament created all kinds of doubts in Britain in the early 1990s. Did Muslims want to create their own country in Britain? Did they want independence? Were their threats of forcing an Islamic order on to Britain to be taken seriously? Such questions obviously cause resentment and anger in the majority. This reaction, when fed into the ex isting stereotypes about the minority, creates

Religious violence Violence against the minority community is also a feature and from time to time communal hatred is spread amongst the people. The shocking example of this case is the blatantly communal speech of Mr. Varun Gandhi, who had openly advocated violence against the Muslim community in his election speech delivered on 18 March 2009 in Uttar Pradesh. Mr. Varun Gandhi had contested the election for the Member of Parliament from Bhartiya Janta Party (BJP) and he was not even once criticized by his party for a communal speech. This exposes ideology of BJP which, is a Hindu right party and did not leave any opportunity to exploit communal sentiment for political gains. There were widespread riots during the Partition of India in 1947, with attacks on Muslim minorities by Hindu and Sikh mobs in response to attacks, killing, raping and violence of Hindus and Sikhs in Pakistan. In 1992, the Babri Mosque was demolished by Hindu mob on the basis of their assertion that this was built on the birthplace of God Raam (one of the most revered avatar of Vishnu) and a temple existed at the site before the erection of the Mosque. The Sangh Parivar family of organisations, has allegedly been involved in encouraging negative stereotyping of Muslims. However most of these allegations were founded on historic facts 122

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where Muslim rulers had destroyed temples and places of religious importance to Hindus. In recent history also, Muslim terrorists in Kashmir had forced millions of Hindus out of their own land in their own country. The 2002 Gujarat violence was result of the Godhra train burning, in which 58 Hindus, returning from pilgrimage and including 25 women and 15 children, were burnt alive, after the train had  been stopped by a Muslim mob.This perceived act of extreme violence against generally peaceful Hindus provoked mass scale riots. One of the most serious instances of violence was the Best Bakery incident, which incident involved the gruesome killing of 14 people. According to the official report, in total the riots led to the death of 1044 people in total (including those from the train fire), 754 Muslims and 290 Hindus.

Condition of Christians:-

In the year of 2008, violence against Christians in state of Orissa was criticized at every level. The violence started after killing of a Hindu priest who was targeted by Maoist but Hindu fundamentalist organizations in Orissa linked it with Christian community. Christians are killed, their houses were torched, and they were forced to flee from the main their villages. Many of them survived in the rescue camps, which are mad in the forests. It was expected that government will act strongly and will bring all the guilty to justice. Unfortunately, the quests for  justice by the victims are yet not come to an end. According to the Archbishop of Cuttack –  Bhubneswar, “we want full reconciliation and lasting peace in Khandmal, which will be possible when justice is transparent, lives are rebuilt and people return to their own villages without fear. We do not want any ghettoisation in the district”. The independent repor ts of NGO working in the area point out that an estimated 12, 00 families have migrated from the immediate area, many of them to Bhubanneswar and other parts of the country and still fear from returning to their homeland. Government of Orissa failed to restore faith inside the Christian and due to this the  people are forced to live unpalatable life outside their villages and area of inhabitant. Attacks against Christians in Orissa, have occurred in recent years in response to missionary activity by 123

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evangelical Christians. Missionaries have allegedly been involved in "aggressive conversion" techniques such as spreading offensive stories about Hindu gods and goddesses, along with tricks of miraculous curing by Christian healers as claimed by Hindu groups. They also state that these missionaries are rich in donations from other countries and use that money to lure people into their faith. On August 23, 2008, Orissa once again made the news after a Hindu religious preacher was murdered in the eastern State of Orissa. Hindus in their response resorted to large scale, mob violence against Christians. (See: Religious violence in Orissa)  Within weeks attacks against Christians spread to the south Indian state of   Karnataka, where an Evangelical outfit called The  New Light Church distributed vulgar pamphlets about Hindu gods. In several cities throughout the State, right-wing Hindu militant mobs attacked churches and Christian-owned businesses. In Mangalore, Christians blocked roads and marched against police stations.

Justice to the Victim of 1984 Riots:-

It is commonly known that justice delayed is justice denied. This is well being seen in the context of giving justice to the Sikh families who suffered loss of property and life in the 1984 anti-sikh riots. According to report of government some 2, 733 people are killed during the riots and the unofficial figure keep it as much as 4,000. In Delhi alone the some 600 cases of rioting, arson and killing are registered. The Nanavati Commission report on the riots named several  prominent political leaders of Congress party. Cases proceeded against them but still no one is  punished. In 2009, some of the cases are opened but the trails are still pending. Human right groups and activist are demanding from the government to ensure the speedy trail of all the  pending cases and to bring the guilty to justice.

Condition of Other Religious Minorities and Sects:-

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The incident of violence and discrimination against Schedule Caste/Schedule Tribe (SC/ST), and against other minority sects continued in India. There are several public instances to prove this point and it was often reported in media as how SC community was discriminated in the distribution of relief material in the aftermath of 2004 Tsunami devastation. There are many instances even witnessed in 2008 when SC/ST community was severely discriminated in the access of aid. It is a matter of concern that number of death of SC/ST community in the relief camps was far higher than among other groups. Similarly, discrimination against other sects is general phenomenon in India as seen in the case of police excess against transsexual in India. In November 2008, Bangalore police arrested 100 of transsexual inhabitants of the city in a drive of ‘social cleansing’ in  the city. On the other hand, violence against tribal in India is still continuing and several draconian laws are adding further to it. Armed Forces Special Power Act is amongst those laws which provide immunity to the armed forces, which is used in the tribal belts excesses. Last year several fake encounters of tribal youth are exposed by Indian Media.

Problems

of

Religious

Minorities- A Big Challenge to the Secular Democracy in

India:-

The problems of minorities, who are relatively lesser in numerical strength than the majority community, have been gaining too much importance in the politics of many nations in the world. Both the developed and developing countries are also caught in the problems associated with the minorities. In many third world nations, nowadays, racial tensions, communal violence and ethnic clashes make headlines almost daily. For instance, the ethnic conflict between the Buddhists and the Tamils is still going on in Sri Lanka, which has put a major obstacle in the way of economic development of that country.

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India, which is known as a peace-loving nation, is also not spared by the problems of minorities. India is a multi-religious country and her society is pluralistic in nature from the religious and other points of view. Since a very long time, people belonging to various religious communities have been living together in this country. Not only major religious communities are spread all over the country, but the people belonging to all religious communities reside in each village and town in the country. Religious minority groups in India are chiefly the Muslims, the Christians, the Sikhs, the Jains and the Buddhists, who have been able to preserve their group identities and have also stayed in the mainstream of national politics. The Muslims in India constitute the largest religious minority in the country. Though a minority in its numerical strength, it is as big as to make it the second biggest Muslim population in the world, next to Indonesia. The Muslims constituted 13.4 per cent of the Indian population according to the 2001 census, and form an important segment in the social fabric of the country. But economically, Muslims are the most backward community with the lowest employment rate. With such backward economic status, there was hardly any incentive for a modern secular education. Unlike the Muslims, the Christians are the second largest and oldest religious minority in the country. It is chiefly spread in south India, particularly in Kerala. Consistent with the social  philosophy of their religion, the Christians, in India are well represented in the social welfare activities of the country with particular concern for the service of the unprivileged. Their role in the sphere of health and education is well recognised. But recently, some Christian missionaries of the country have been alleged to be involved in conversion activities that led to communal conflicts which witnessed large scale attacks on the churches and Christians in Gujarat, Orissa and several other states. The very recent attacks on Christians and churches in the Kandhamal district of Orissa shook the entire Christian community of the world. Similarly, the early part of the 20th century witnessed the rise of numerous Sikh sectarian organisations that emphasised the distinct Sikh identity. Sikhism is another important religion in India which is spread in different parts of the country, especially in Punjab, Delhi, Haryana, Bihar, etc. Claiming Punjab as their motherland, the Sikhs have developed a very strong subnational identity, carrying with them the vital elements of the Punjabi culture. The Sikhs are excellent cultivators in the rural areas; they have played a very significant role in the Green

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Revolution of the country. In urban areas, most of them earn their livelihood in the trade and commerce sectors. They have always maintained a larger share in defence forces of the country. Like the Muslims, Sikhs and Christians, other religious minorities of the country, such as the Jains and the Buddhists have also stayed in the mainstream of Indian politics. The Constitution of India has provided the minority groups with some safeguards. The Preamble of the Constitution describes the concept of secularism which means that the State has no religion of its own, and there is equal respect for and protection to all religions. No one is to be discriminated on grounds of religion and everyone is guaranteed full and equal freedom of religion. Article 30 of the Indian Constitution states that the minorities have rights to establish and administer educational institutions of their choice. This includes the right to choose the medium of instruction, curricula, and subject to be taught. Minorities can impart instructions to their children in their own languages. The National Commission for Minorities undertakes review of the implementation of the policies formulated by the Union and state governments with regard to minorities. It looks into specific complaints regarding deprivation of rights and safeguards of minorities, and conducts research and analysis on the question of avoidance of discrimination against the minorities. The minority communities have to face several problems in India. The minorities are not able to integrate properly in the Hindu-dominated society. There is apprehension among some sections that for enlarging its base, the Christian community is involved in converting the low caste Hindus or tribes to its own community or religion, resulting in the killing and intense conflict  between the majority Hindus and the Christian minority. This has created too much insecurity and fear among the Christian minority in India. The minorities claim that unlike their Hindu counterpart, they are relatively deprived in areas like employment, politics and social facilitation. According to them, they are poorly represented in civil services as well as in medical and engineering colleges. The serious communal riots especially after 1960s have instilled a sense of insecurity among the Muslims and tend to push them into their narrow communal shell. The antiMuslim violence in Gujarat during February-May 2002 supposedly in retaliation to the Godhra incident has shaken not only the Indian Muslims, but all the concerned Indian citizens. During the caste conflicts, communal violence, etc., the minority groups seek police protection. But the government in power also finds it difficult to provide such protection for all the members of

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minorities. For instance, the Modi government in Gujarat was unable to provide protection for the Muslims after the Gujarat massacre, in which huge numbers of Muslims were killed. Again, the then Rajiv Gandhi government at the Centre was severely criticised for its failure to provide adequate security for the Sikh community of Delhi because of the communal riots that broke out after the assassination of Indira Gandhi in 1984. Now, secularism began to be used merely as a slogan of opportunism. The politicians found it easy to align a large number of multi-cultural citizens into culturally distinct groups for the realization of their vested interests. Most of the communal riots in the country have been the handiwork of disgruntled politicians, anti-social elements and criminals. Demolition of the Babri Masjid in December 1992, the Mumbai riots, and the Godhra carnage and subsequent massacres in 2002 revealed the serious weakness and susceptibility of India’s commitments towards democracy and secularism. Thus, the condition of religious minorities in India continues to be very complex and critical. In order to improve the condition of the religious minorities in India, the government in power should make every effort to restore their confidence. It is also necessary to create conditions in which the minorities are assured that their constitutional and legal rights are safeguarded. The government should seriously respond to the real needs and requirements of the poor and needy minority groups. The government should seriously consider the Sachar Committee Report without any delay and implement its recommendations. People-to-people contact, social consciousness, abolition of illiteracy etc. may prove useful confidence-building measures. The secular values must be internalised by the people and political parties. No political party should  be permitted to contest election by exploiting the emotions of a particular community. Efforts should also be made to promote liberal social reforms to deal effectively with communalism and the influence of communalist leaders. The secular political class of India should campaign for widening the base of education for Muslims. The religious minorities have to be empowered educationally and economically. The progress of the country can be achieved if all the religious communities in India live in perfect harmony.

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CHAPTER- 12 : 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 129

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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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REFERENCES :-

Books referred –  (1) Prof. M.P Jain, Indian Constitutional Law, Wadhwa Publisher Nagpur, 5th edition

reprint

2006. (2) Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency, 43rd edition 2006. (3) P.M. Bakshi, The Constitution Law of India, Universal Law Publishing Company, 8th edition. (4) ^ Manabendra Nath Roy (June 1999 reprint) The Radical Humanist  vol 63, no. 3, p. 29 [1] 131

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Websites –  (1)http://www.eurac.edu/Press/Publications/Monographs/0059701.htm (2)http://www.sabrang.com/cc/archive/2005/sep05/edu3.html (3)http://www.hinduonnet.com/2002/12/17/stories/2002121700891000.htm (4) http://pd.cpim.org/2004/1226/12262004_ragesh.htm

Cases referred

(1)T.M.A.Pai

 – 

foundation

v.

State

of

karnataka,

(AIR

2003

SC

355)

(2) Ahemdabad St. Xaviers College v. State of Gujarat,

(AIR

1974

SC

(3) ASE Trust v. Director Education, Delhi Adm.,

(AIR

1976

Del

207).

(4) Azeez Basha v. Union of India,

(AIR

1968

SC

662.)

(5) D.A.V College Jullundher v. State of Punjab,

(AIR

(6) In Re The Kerala Education Bill,

(AIR

(7) Managing Board, M.T.M v. State of Bihar,

(AIR

1389.)

1971

SC

1737)

1958

SC

956).

1984

SC

1757).

(8) Manager, St. Thomas U.P. Schoool Kerala v. Commr. And Secy. to General Education dept. (AIR (9) State of Kerala v. Mother Provisional,

(AIR

2002

SC

1970

Sc

(10) St. Stephens College v. University of Delhi,

(AIR

(11) T.M.A PIA Foundation v. State of Karnataka,

( AIR 1994 SC 13)

(12) Suneel Jitley v. State of Haryana (13) State of Maharastra v. Champakam (14) Yogendra Nath Singh v. State of uttar Pradesh (15) A.M.Patroni v. Kesavan (16) S.P Mittal v. Union of India 132

1992

756.)

SC

2079.) 83.)