THe should remove the debate on minority rights from the current communalism versus secularism structure and place it in the theoretical area of democracy and objective equality. Recognizing the importance of minority rights, the United Nations General Assembly on December 18, 1992 adopted the Declaration on the Rights of Persons Belonging to National, or Ethnic, Religious and Linguistic Minorities. This date is celebrated worldwide as Minority Rights Day. . Minority rights are essential in democratic politics because as Franklin Roosevelt reminded us “no democracy can long survive which does not accept the recognition of minority rights as fundamental to its existence”.
Origins of Minority Rights
Article 19 of the Austrian Constitutional Law (1867) recognizes that ethnic minorities have the absolute right to maintain and develop their nationalities and languages. Similar provisions were found in Hungary’s Act XLIV of 1868 and in the Constitution of the Swiss Confederation of 1874, which granted the three languages of the country equal rights in the civil service, law and courts. The provisions of the peace treaties after World War I focused specifically on the status of minorities. Minority protections were codified in five treaties negotiated between the Allied and Associated Powers on the one hand and Poland, Czechoslovakia, Romania, Greece and Yugoslavia on the other. Peace treaties with Austria, Bulgaria, Hungary, and Turkey included special provisions for minorities, while Albania, Finland, and Iraq declared that they would protect their minorities. Article 27 of the Universal Declaration of Human Rights gives every person the right to community – that is, the right to enjoy his culture and to participate in cultural forums, associations, etc.
Debates in the Constituent Assembly
The framers of the constitution showed keen sensitivity to the needs of the minorities. Pandit G. B. Pant moved the proposal to set up an Advisory Committee on Fundamental Rights and Minority Rights and clearly stated that “satisfactory settlement of minority issues will ensure the health, vitality and strength of the independent Indian state. Now a new chapter must begin and we all must do our part. We cannot make progress unless the minorities are fully satisfied.” The committee headed by Sardar Vallabhbhai Patel examined the issue of minority rights And accordingly Articles 25 to 30 were enacted in our Constitution. The underlying argument in these articles is that individualistic universal rights are of little use in a heterogeneous country like India, and that it needs to be discussed on the basis of multiculturalism, diversity, and the rights of minorities that characterize contemporary political theory.
The reasoning behind minority rights
Protection of diversity is the rationale behind minority rights in the Indian Constitution. Indeed, individual rights under Articles 14-18 (equality), 19 (freedom of speech) and 25 (freedom of religion) are not sufficient to protect language, script or culture under Article 29. Individuals cannot be unjust. Treatment is done but it hurts if anyone in a group is subjected to ridicule or denied any value. It also undermines the right to dignity of the individual. A person’s right to culture has no meaning or significance unless the community of which a person is a member or identifies with is given a viable right to exist. This requires not only the presence of a group that shares a common culture but also a conducive environment in which such cultures can flourish. Therefore, under Article 30, both religious and linguistic minorities are allowed to establish and operate institutions of their choice thereby creating such space in those institutions.
Recently a seven-judge bench Aligarh Muslim University (2024) described Article 30 in clear terms as ‘an aspect of equality and non-discrimination’. A bench of nine judges St. Xavier’s College Society (1974) also observed that “the whole purpose of granting rights to minorities under Article 30 is to ensure equality between the majority and the minorities. If the minorities do not have such special protection, they will be deprived of equality.” Kesavananda Bharti (1973) held that the rights under Article 30 were part of the basic structure which could not be changed even by Parliament by amending the Constitution.
What are minority rights?
Interestingly, although the word ‘minority’ has been used in four places in the constitution, no definition of the word ‘minority’ has been given. The Supreme Court has consistently maintained that minorities should be defined at the state level. As Hindus are a religious minority in Punjab, Kashmir and North Eastern states, they are also entitled to minority rights. There are hundreds of Hindu minority organizations in India.
Article 29(1) states that ‘any part of the citizens residing in the territory of India or any part of it having its own distinct language, script or culture shall have the right to its protection’. This provision refers to two important dimensions. First, it acknowledges that different groups have different cultures and that not all people have the same culture. Since these linguistic and religious cultures are valuable to their members, it is necessary to give them a clear right to preserve their culture because such minority cultures may face disadvantages in the majority society. Second, the right to culture is an individualistic right, meaning that individuals are given the right to preserve their specific culture.
Article 30 guarantees that all religious and linguistic minorities shall have the right to establish and run educational institutions of their choice. in Re: Kerala Education Bill (1957) the Supreme Court held that the key word in Article 30 is ‘choice’ and the minority can extend its choice as much as it wants. The court said that the term ‘educational institution’ also includes universities. Courts have also continued to deal with issues such as providing protection under Article 30 to pre-constitutional institutions. SK calendar (1969), St. Stephen’s (1992) and Aziz Basha (1967). In the latest judgment of Aligarh Muslim University (2024), the majority is of the view that institutions of national importance can also claim minority character.
Additionally, Article 350 A provides for instruction in the primary stages of education in the mother tongue and Article 350 B provides for the appointment of a special officer for linguistic minorities. Personal laws based on their religion are also constitutionally protected, for example, the customary laws of the Nagas. There is no religious qualification attached to holding high constitutional posts. There is also a National Commission for Minorities and a National Commission for Minority Educational Institutions to address the problems of minorities.
Defining Minorities
A bench of 11 judges TMA Pie Foundation (2002) case left unanswered the question of the signification of minority institutions. Former Chief Justice Dr. DY Chandrachud delivered the historic judgment Aligarh Muslim University (2024) case now holds the signal.
Interestingly, there was a broad consensus among the seven judges in Indicia’s case. They all preferred holistic, broad, and flexible criteria such as ideology — looking at the origin or thought or mind behind the idea. Also, the initiator must belong to a minority community. His intention should be to find an institution ‘mainly for the minority community’ and other factors are fundraising, land acquisition, building construction and government approvals. Administration does not have to be vested in the minority. The authority of the administration is the result of the establishment.
Although there is no right to receiv
e government assistance, Article 30(2) clearly states that the state should not discriminate when giving assistance to minority organizations. in Re: Kerala Education Bill (1957) case, Chief Justice SR Das held that the State cannot impose such ‘harsh’ conditions on grants or affiliations to minority institutions which have to surrender the minority character of their institutions.
Moreover, the Supreme Court has consistently held that minorities do not have the right to abuse their institutions, and that the government should insist on reasonable safeguards against maladministration, maintain fair standards of education, and ensure “excellence”. can bring rules. Institutions.” In St. Xavier’s (1974), the Supreme Court clearly observed that “under the guise of special rights of management, minorities cannot refuse to follow the general pattern. In fact, they may be compelled to keep in step with others.”
Faizan Mustafa is a constitutional law expert and Vice-Chancellor of Chanakya National Law University, Patna.
published – December 18, 2024 at 08:30 PM IST