Minority Laws In India

 The Abstract

Indian  Constitution  used the word ‘minority’ or its plural form in some Articles viz Article 20 to 30 and 350 A to 350 B, but it comes without any definition. The word remains vague in official sense . While interpreting ‘Minority Institution the Court proceeded on the basis that the community ranks as a minority in the country and the educational institution run by it has been found to be what may loosely be called a ‘minority’ institution, within the constitutional compass of Article 30. Article, 30(1) cannot be whittled down by reading it along with article 29(1).The differences between article 30(1) and 29(1) are unmistakable : while article 29 confers the fundamental right to “any section. of the citizens” which would include the majority section. Article 30(1) confers the right only on minorities.

As per  Census 2011 data indicates that Hinduism is professed by the majority of the population in India. The Hindu is majority in most States and UTs except in Manipur, Arunachal Pradesh, Mizoram, Nagaland, Meghalaya, Lakshadweep, Punjab and Jammu & Kashmir. As regards religious minorities at the national level, all those who profess a religion other than Hinduism are considered minorities.

Incidentally, ‘Scheduled Castes’ and ‘Scheduled Tribes’ are also to be identified at the State/UT level. Therefore this method should be applied in Case of ‘Minority’

When India became ‘Secular’ 

In Constituent assembly in 1946, K.T. Shah( Member from Bihar) proposed an amendment seeking to declare India as a “Secular, Federal, Socialist” nation. To oppose the amendment, Ambedkar  argued :-

“My objections, stated briefly are two. In the first place the Constitution …  is merely a mechanism for the purpose of regulating the work of the various organs of the State. It is not a mechanism where by particular members or particular parties are installed in office. What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether. If you state in the Constitution that the social organisation of the State shall take a particular form, you are, in my judgment, taking away the liberty of the people to decide what should be the social organisation in which they wish to live.
It is perfectly possible today, for the majority people to hold that the socialist organisation of society is better than the capitalist organisation of society. But it would be perfectly possible for thinking people to devise some other form of social organisation which might be better than the socialist organisation of today or of tomorrow. I do not see therefore why the Constitution should tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves. This is one reason why the amendment should be opposed. “

Therefore India became Secular on 1976 and secularism should not be mixed with the question of Minority , form the  inception of Constitution , minorities were protected without India being a secular country. Protection of Minority came due to Majority identity of the Indian nation after the division of the country following the two Nation Theory .

The Foundation

In D. A. V. College, Jullundur v. State of Punjab ( 1971 (2) SCC 269 , the College established by Arya Samaj in the State of Punjab claimed protection under Articles 29(1) and 30(1) of the Constitution. It was conceded by the State of Punjab that the Hindus of Punjab are a religious minority in the State though they may not be so in relation to the entire country. The claim of Arya Samaj to be a linguistic minority was, however, contested. This Court observed that linguistic minority for the purpose of Article 30(1) is one which must at least have a separate spoken language, but it is not necessary that that language should also have a distinct script of its own. The sections of people who speak a language which has no script will also be a linguistic minority entitled to protection of Article 30(1). Since Arya Samaj have a distinct script of their own, namely Devangri, this Court held that they are entitled to invoke the right guaranteed under Article 29(1) because they are a section of citizens having a distinct script. They are also held entitled to the right under Article 30(1) because of their being a religious minority in the State of Punjab.

A mere look at art. 29(1) and 30(1) would be sufficient to show that art. 29(1) cannot limit the width of art. 30(1). The right guaranteed to a religious or linguistic minority under art. 30(1) is the right to establish any educational institution of its choice. Whereas art. 29(1) confers the right not only upon a minority as understood in its technical sense but also upon a section of the citizens resident in the territory of India, which may not be a minority in its technical sense, the beneficiary of the right under art. 30 is a minority, either religious or linguistic. Secondly, whereas art. 29 does not deal with education as such. art. 30 deals only with the establishment and administration of educational institutions. It might be that in a given case the two might overlap. When a linguistic minority establishes an educational institution to conserve its language, the linguistic minority can invoke the protection of both the articles. When art. 30(1) says that a linguistic minority can establish and administer educational institutions of its choice, it means that it can establish and administer any educational institution. If a linguistic minority can establish only an educational institution to conserve its language then the expression “of their choice” in art. 30(1) is practically robbed of it meaning.

 The Doubt on the Minority claim

1. In Rajershi Memorial Basic Training School v. State of Kerala 1973 AIR(Ker) 87 : 1973 Ker(LJ) 76 : 1972 Ker LT 920) the Kerala High Court said that the mere fact that the school was founded by a person belonging to a particular religious persuasion is not at all conclusive on the question. The petitioner has to prove by production of satisfactory evidence that the school in question was one established and administered by a minority whether based on religion or language

2. In Chikkala Samuel v. District Educational Officer Hyderabad 1982 AIR(SC) 64 : (1982) 1 Andh LT 50 : (1981) 2 Andh WR 457) the Andhra a Pradesh High Court observed that minority institution imparting general secular education in order to claim the benefit of Article 30(1) must show that it serves or promotes in some manner, the interest of the minority community or a considerable section thereof. Without such proof, it was said that there would be no nexus between the institution and the minority as such

3. The word ‘minority’ in Article 30 did not mean a minority with reference to the world population but had reference to the population of the Indian Citizens. If aliens residing in India claiming to constitute a minority on the basis of religion or language want to establish and administer an educational institution, they cannot claim protection under Article 30, for, the benefit of Article 30 was confined to persons of Indian origin.

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National commission for Minorities

  • “Minority”, for the purposes of this Act, means a community notified as such by the Central Government’
  • .FUNCTIONS OF THE COMMISSION  AS PER SEC 9

The Commission shall perform all or any of the following functions, namely:-
evaluate the progress of the development of Minorities under the Union and States.
monitor the working of the safeguards provided in the Constitution and in laws enacted by Parliament and the State Legislatures.
make recommendations for the effective implementation of safeguards for the protection of the interests of Minorities by the Central Government or the State Governments.
look into specific complaints regarding deprivation of rights and safeguards of the Minorities and take up such matters with the appropriate authorities.
cause studies to be undertaken into problems arising out of any discrimination against Minorities and recommend measures for their removal.
conduct studies, research and analysis on the issues relating to socio-economic and educational development of Minorities.
suggest appropriate measures in respect of any Minority to be undertaken by the Central Government or the State Governments.
make periodical or special reports to the Central Government on any matter pertaining to Minorities and in particular the difficulties confronted by them.
any other matter which may be referred to it by the Central Government.
The Central Government shall cause the recommendations referred to in clause (c) of sub-section (1) to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.
Where any recommendation referred to in clause (c) of sub-section (1) or any part thereof is such with which any State Government is concerned, the Commission shall forward a copy of such recommendation or part to such State Government who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendation or part.
The Commission shall, while performing any of the functions mentioned in sub-clauses (a), (b) and (d) of sub-section (1), have all the powers of a civil court trying a suit and, in particular, in respect of the following matters, namely:-

  • summoning and enforcing the attendance of any person from any part of India and examining him on oath.
    requiring the discovery and production of any document.
    receiving evidence of affidavits.
    requisitioning any public record or copy thereof from any court or office.
    issuing commissions for the examination of witnesses and documents; and
    any other matter which may be prescribed.

CASE DECIDED BY THE  MINORITY COMMISSION 

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National Commission for Minority Educational Institutions

The National Commission for Minority Educational Institutions Act, 2004

Minority Educational Institution ” means a college or an educational  institution established and administered by a minority or minorities

DeviderNational commission for Minority commission Act 2015  ( PAKISTAN) 

Agreement Between India and Pakistan On Minorities 1950

Annexure -3

Agreement Between India and Pakistan On Minorities

A

THE GOVERNMENTS of India and Pakistan solemnly agree that each shall ensure, to the minorities throughout its territory, complete equality of citizenship, irrespective of religion, a full sense of security in respect of life, culture, property and personal honour, freedom of movement within each country and freedom of occupation, speech and worship, subject to law and morality. Members of the minorities shall have equal opportunity with members of the majority community to participate in the public life of their country, to hold political or other office, and to serve in their country’s civil and armed forces. Both Governments declare these rights to be fundamental and undertake to enforce them effectively. The Prime Minister of India has drawn attention to the fact that these rights are guaranteed to all minorities in India by its Constitution. The Prime Minister of Pakistan has pointed out that similar provision exists in the Objectives Resolution adopted by the Constituent Assembly of Pakistan. It is the policy of both Governments that the enjoyment of these democratic rights shall be assured to all their nationals without distinction. Both Governments wish to emphasise that the allegiance and loyalty of the minorities is to the Stat of which they are citizens, and that it is to the Government of their own State that they should look for the redress of their grievances.

B

In respect of migrants from East Bengal, West Bengal, Assam and Tripura, where communal disturbances have recently occurred, it is agreed between the two Government:
(i) That there shall be freedom of movement and protection in transit;
(ii) That there shall be freedom to remove as much of his moveable personal effects and household goods as a migrant may wish to take with him. Moveable property shall include personal jewellery. The maximum cash allowed to each adult migrant will be Rs. 150/- and to each migrant child Rs. 75/-;
(iii) That a migrant may deposit such of his personal jewellery or cash as he does not wish to take with him with a bank. A proper receipt shall be furnished to him by
the bank for cash or jewellery thus deposited and facilities shall be provided, as and when required, for their transfer to him, subject, as regards cash to the exchange regulations of the Government concerned;
(iv) That there shall be no harassment by the Customs authorites. At each Customs
post agreed upon by the Governments concerned liaison officers of the other Government shall be posted to ensure this in practice;
(v) Rights of ownership in or occupancy of the immoveable property of a migrant shall not be disturbed. If, during his absence, such property is occupied by another person, it shall be returned to him, provided that he comes back by the 31 st December, 1950. Where the migrant was a cultivating owner or tenant, the land shall be restored to him, provided that he returns not later than the 31 st December, 1950. In exceptional cases, if a Government considers that a migrant’s immoveable property cannot be returned to him, the matter shall be referred to the appropriate Minority Commission for advice.

Where restoration of immoveable property to the migrant who returns within
the specified period is found not possible the Government concerned shall
take steps to rehabilitate him.

(vi) That in the case of a migrant who decides not to return, ownership of all his immoveable property shall continue to vest in him and he shall have unrestricted right to dispose of it by sale, by exchange with an evacuee in the other country, or otherwise. A Committee consisting of three representatives of the minority and presided over by a representative of Government shall act as trustees of the owner. The Committee shall be empowered to recover rent for such immoveable property according to law. The Government of East Bengal, West Bengal, Assam and Tripura shall enact the necessary legislation to set up these Committees.
The Provincial or State Government, as the case may be, will instruct the District or other appropriate authority to give all possible assistance for the discharge of the Committee’s functions.

The provisions of this sub-paragraph shall also apply to migrants who may have left East Bengal for any part of India, or West Bengal, Assam or Tripura for any part of Pakistan, prior to the recent disturbances but after the 15 th August, 1947. The arrangement in this sub-paragraph will apply also to migrants who have left Bihar for East Bengal owing to communal disturbances or fear thereof.

C

As regards the Province of East Bengal and each of the States of West Bengal, Assam and Tripura respectively, two Governments further agree that they shall:

(1) Continue their efforts to restore normal conditions and shall take suitable measures to prevent recurrence of disorder.

(2) Punish all those who are found guilty of offences against persons and property and of other criminal offences. In view of their deterrent effect, collective fines shall be imposed, where necessary. Special Courts will, where necessary, be appointed to ensure that wrong-doers are promptly punished.
(3) Make every possible effort to recover looted property.

(4) Set up immediately an agency, with which representatives of the minority shall be associated, to assist in the recovery of abducted women.
(5) NOT recognize forced conversions. Any conversion effected during a period of communal disturbance shall be deemed to be a forced conversion. Those found guilty of converting people forcibly shall be punished.
(6) Set up a Commission of Enquiry at once to enquire into and report on the causes and
extent of the recent disturbances and to make recommendations with a view to preventing recrudescence of similar trouble in future. The personnel of the Commission, which shall be presided over by a Judge of the High Court, shall be such as to inspire confidence among the minority.

(7) Take prompt and effective steps to prevent the dissemination of news and
mischievous opinion calculated to rouse communal passion by press or radio or by
any individual or organization. Those guilty of such activity shall be rigorously dealt
with.

(8) Not permit propaganda in either country directed against the territorial integrity of the other or purporting to incite war between them and shall take prompt and effective action against any individual or organisation guilty of such propaganda.

D

Sub- paragraphs (1), (2) , (3), (4), (5), ( 7) and (8) of C of the Agreement are of general scope and applicable, according to exigency, to any part of India or Pakistan.

E

In order to help restore confidence, so that refugees may return to their homes, the two Governments have decided (i) to depute two Ministers, one from each Government to remain in the affected areas for such period as may be necessary; (ii) to include in the
Cabinets of East Bengal, West Bengal and Assam a representative of the minority community. In Assam the minority community is already represented in the Cabinet. Appointments to the Cabinets of East Bengal and West Bengal shall be made immediately.

F

In order to assist in the implementation of this Agreement, the two Governments have decided, apart from the deputation of their Ministers referred to in E, to set up Minority Commissions, one for East Bengal, one for West Bengal and one for Assam. These Commissions will be constituted and will have the functions described below.

(i) Each Commission will consist of one Minister of the Provincial or State Governments concerned, who will be Chairman, and one representative each of the majority and minority communities from East Bengal, West Bengal and Assam, chosen by and from among their respective representatives in the Provincial or State Legislatures, as the case may be.
(ii) The Two Ministers of the Governments of India and Pakistan may attend and
participate in any meeting of any Commission. A Minority Commission or any two
Minority Commissions jointly shall meet when so required by either Central Minister for the satisfactory implementation of this Agreement.

(iii) Each Commission shall appoint such staff as it deems necessary for the proper
discharge of its functions and shall determine its own procedure.
(iv) Each Commission shall maintain contact with the minorities in Districts and small administrative headquarters through Minority Boards formed in accordance with the Inter-Dominion Agreement of December, 1948.
(v) The Minority Commissions in East Bengal and West Bengal shall replace the
Provincial Minorities Boards set up under the Inter-Dominion Agreement of
December, 1948.
(vi) The two Ministers of the Central Governments will from time to time consult such persons or organizations as they may consider necessary. (vii) The functions of the Minority Commission shall be :-

(a) To observe and to report on the implementation of this Agreement and, for this purpose, to take cognizance of breaches or neglect.

(b) To advise on action to be taken on their recommendations.

(viii) Each Commission shall submit reports, as and when necessary, to the Provincial and State Governments concerned. Copies of such reports will be submitted simultaneously to the two Central Ministers during the period referred to in E.

(ix) The Governments of India and Pakistan, and the State and Provincial Governments, will normally give effect to recommendations that concern them when such recommendations are supported by both the Central Ministers. In the event of disagreement between the two Central Ministers, the matter shall be referred to the Prime Ministers of India and Pakistan who shall either resolve it themselves or determine the agency and procedure by which it will resolved.

(x) In respect of Tripura, the two Central Ministers shall constitute a Commission and shall discharge the functions that are assigned under the Agreement to the Minority Commissions for East Bengal, West Bengal and Assam. Before the expiration of the period referred to in E, the two Central Ministers shall make recommendations for the establishment in Tripura of appropriate machinery to discharge the functions of the Minority Commissions envisaged in respect of East Bengal, West Bengal and Assam.

G

Except where modified by this Agreement, the Inter-Dominion Agreement of December, 1948, shall remain in force.
JAWAHARLAL NEHRU. Prime Minister of India.
LIAQUAT ALI KHAN. Prime Minister of Pakistan.
NEW DELHI
April 8th , 1950

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