Safeguards Provided in the Constitution for Minorities.

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Safeguards Provided in the Constitution for Minorities

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.

The most striking features of the Constitution in this respect are the secularism along with democratic egalitarianism and fundamental rights with special and additional safeguards for weaker sections of society like Scheduled Castes, Scheduled Tribes, the Other Backward Classes and minorities. As India is a conglomeration of minorities, the Constitution has taken special care of them.

‘Common Domain’ and ‘Separate Domain’ of rights of minorities provided in the Constitution ( It is for your understanding)

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.’

A survey of rights of minorities as enshrined in the Constitution reveals that the minorities derive their rights from four sources:

1. The ideals and values unequivocally declared in the Preamble of the Constitution.
2. Fundamental Rights as enshrined in part III.
3. Directive Principles of State Policy as enshrined in Part IV, and
4. Other provisions of the Constitution.

These sources are elaborated below

1) The Preamble of the Constitution (common domain)

The Preamble to the Constitution begins as

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a

SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC

And to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation.

The Preamble has declared India a Secular Democratic Republic. It means that the Indian Republic shall neither encourage nor discourage any religion. Instead, the State will observe neutrality as far as the religions are concerned.

Secularism: Basic Feature of the Constitution

It is also important to note that secularism has been declared as the ‘basic feature’ of the Constitution which cannot be amended. Moreover, the nation cannot be declared as theocracy based on any religion whatsoever.

The Preamble also makes it clear that all citizens of India shall be secured social, economic and political justice, liberty of thought, expression, belief, faith and worship, equality of status and of opportunity. The expression “all its citizens” emphasizes the principle of non-discrimination. Thus, these expressions in the Preamble give a sense of satisfaction to minorities and assure them of democratic egalitarianism and equal rights.

The Supreme Court of India has already declared that the objectives specified in the Preamble contain the basic structure of the Constitution and hence cannot be amended.

Rights of Minorities enshrined in Part III (common domain)

Part III of the Constitution, which contains Fundamental Rights, gives valuable guarantees to all citizens of India as well as minorities. These legally justiciable Fundamental Rights can be broadly classified into two categories in this context

A) Fundamental Rights available to all, including minorities, and

B) Specific Fundamental Rights relating to protection of interest of minorities.

A) Fundamental Rights

Right to Equality (article 14 to 18)

The Constitution specifically guarantees equality before the law and equal protection of the laws to every person within the territory of India.

It has been also ensured that the State shall not discriminate against any citizen on grounds only of religion caste, sex and place of birth.

Right to Freedoms

The Constitution has provided certain positive to all citizens in order to promote the ideal of liberty as expressed in the Preamble. The popularly known six freedoms include freedom of speech and expression, freedom of assembly, freedom of association, freedom of movement, freedom of residence and settlement, freedom of profession, occupation, trade or business. These freedoms are very important for realizing the goal of liberty and democracy, but they are subject to reasonable restrictions. In fact, without these reasonable restrictions, the above-mentioned freedoms will become a license. Thus, a number of exception clauses have been attached with these freedoms.

Right to Freedom of Religion (common domain)

The right to freedom of religion as guaranteed by the Constitution of India is an important pillar of secularism. It includes the right to profess, practice and the right to propagate one’s religion (article 25) – However, the exercise of this right is subject to restrictions by the State.

The implications of these rights are manifold.

• Firstly, it guarantees freedom of conscience, which means right to follow or not to follow any religion.
• Secondly, the right to profess religion implies the right of a person to profess his own religion or his right to adopt or to convert to any other religion of his choice.
• Thirdly, the religious practices of the communities are not to be interfered with unless causing problem for the public order and morality. It means reasonable restrictions can be imposed on the religious practices.
• Fourthly, the people are free not only to profess and practice religion but they can also propagate religion.

Article 26

The Constitution also provides every religious denomination or any section thereof the right to manage religious affairs and accordingly establish and maintain institutions for religious and charitable purposes, to own and acquire movable and immovable property and to administer such property in accordance with law.

The exercise of this right is also subject to public order morality and health and a State-made law can regulate the administration of property of religious endowment. However, such a law cannot take away the right of administration altogether.

Article 27

The constitutional guarantee of freedom as to payment of taxes for promotion of any particular religion also promotes secularism.

It is essential guarantee of neutrality of the State in the matters of religion. Thus, neither the State nor any body or individual can compel any person to pay taxes for the promotion of any religion whatsoever.

Article 28

Besides the above, freedom has been granted from attending religious instructions or religious worship in any educational institution recognized by the State or receiving aid out of State funds.

At the same time no religious instructions can be provided in any educational institution wholly maintained out of State funds.

(B) Specific Fundamental Rights (separate domain)

The guarantee of certain cultural and educational rights provided under Articles 29 and 30 of the Constitution have special significance for minorities.

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 have the right to conserve the same.
2. No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Article 29 grants protection to both religious minorities as well as linguistic minorities. However, the Supreme Court held that the scope of this article is not necessarily restricted to minorities only, as it is commonly assumed to be. This is because of the use of words ‘section of citizens’ in the Article that include minorities as well as majority.

The Supreme Court also held that the right to conserve the language includes the right to agitate for the protection of the language. Hence, the political speeches or promises made for the conservation of the language of a section of the citizens does not amount to corrupt practice under the Representation of the People Act, 1951.

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.

(1-A) 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.

Thus, the protection under Article 30 is confined only to minorities (religious or linguistic) and does not extend to any section of citizens (as under Article 29). However, the term ‘minority’ has not been defined anywhere in the Constitution.

The right under Article 30 also includes the right of a minority to impart education to its children in its own language.

Minority educational institutions are of three types:

(a) institutions that seek recognition as well as aid from the State;

(b) institutions that seek only recognition from the State and not aid; and

(c) institutions that neither seek recognition nor aid from the State.

The institutions of first and second type are subject to the regulatory power of the state with regard to syllabus prescription, academic standards, discipline, sanitation, employment of teaching staff and so on.

The institutions of third type are free to administer their affairs but subject to operation of general laws like contract law, labor law, industrial law, tax law, economic regulations, and so on.

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