1

Research work

Of

Comparative public law

ON

Topic: Evolution of minority rights and the UDHR and Indian

constitution

SUBMITTED BY: SUMMITTED TO :

SAIBY KHAN PROF. SHALINi SAXENA

1stTRIMESTER

LLM

IMS UNISON UNIVERSITY

SCHOOL OF LAW
2

CONTENT OF SYNOPSIS :
 Introduction
 Aim and object
 Research methodology
 Research question
 The UDHR and Indian constitution :A comparison.
 Minority Group: Meaning and Scope.
 Purpose ofthe Study.
 Rights of minorities (supreme court judgement)
 Conclusion
 Bibliography
3

1.Introduction:

There is hardly any country in the world that does not have minorities with in its
territory characterised by their ethnic religious identify didence from that of the
majority population .although there are no accurate statistics ,the united nations
estimate suggest that 10 to 20 percent of the world population belong to minority
group. In most cases minorities are among the most disadvantage group in society and
thrie member to often subjected to injustice and socio economic discrimination . they
are also excluded from meaningful participation in public and political life .The
central thread woven through this Digest is the concept of vulnerability. Minority
status, broadly construed, represents a core characteristic that carries with it particular
human rights implications. Historically, minorities are frequently targeted for
exploitation and scapegoated when things go badly. Without the capacity to protect
themselves and without spokespersons to stand with them in solidarity, minority
groups are specifically susceptible to gross exercises of power and abuse and too
often denied access to channels through which to make claims and demand redress.
Violations of minority rights are commonly structural in nature, as discriminatory
practices are built into political and economic systems to deny fundamental rights,
such as to vote or to own property. Violence and deprivation that disproportionately
affect minority groups are symptomatic of the inequality and humiliation that human
rights seek to remedy. Minority rights, as a category of rights, are intended to direct
special attention to the plight of those people under attack by virtue of their
vulnerability. ‘Minority rights’ as a concept consists of more than a numeric
determination, however. Distinction as a minority group refers to the group’s lack of
dominance within society, not necessarily tied to its status as less-than-half of the total
population. Traditional minority groups include ethnic, cultural, national, and
linguistic categories that constitute cohesive, selfidentifying units. Digest entries that
feature the plight of the Roma in Europe, Tibetans in India, and indigenous
movements in Latin America fall neatly into familiar conceptions of minority groups.
Additionally,
children are the focus of two entries. This inclusion represents an expansion of the
conception of “minority” because age-based discrimination is not commonly thought
of in this context. However, access to education and vulnerability in a warzone, for
instance, speak to concrete human rights issues that affect children in unique ways.
4

Dalits in India constitute a class-based perspective on questions of minority rights

often overlooked and, finally, sexuality and gender comprise two more new lenses
through which to highlight abuse; The Lesbian, Gay, Bisexual, and Transgender
(LGBT) community strives to be recognized as a minority group demanding
protection, and the designation of women as a minority group is influential, but not
without its controversy. Often the subject of feminist critique, it is argued that, as a
vulnerable majority, women require separate distinction and are done a disservice to
be included with minority groups.1
Human rights are derived from the principle of natural law. Human rights are being
essential for the all-round development of the personality of individuals in the society,
being necessarily protected and being made available to all individuals. When human
rights are guaranteed by the written Constitution, they are called fundamental rights
because a written the Constitution is a fundamental law of the State.These rights
provide suitable conditions for the material and moral uplift of the people because of
their immense significance to the human beings.

2.Aim and objects.

The aim of the research paper is to present a detail study on the minority
rights and UDHR and Indian constitution

It should be highlighted that minority rights do not constitute privileges, but

act to ensure equal respect for members of different communities. In other
words, their aim is to ensure that persons belonging to a national minority
enjoy effective equality with those persons belonging to the majority.and2

1
Mehta, P.L. & Verma, Neena, Human Rights under Indian Constitution, (New Delhi: Deep & Deep Publication Pvt.
Ltd., 2000)

2
Seervai, H.M., Constitutional Law of India, 155, (New Delhi: Universal Book Traders, I, 4th ed., 1999)
5

3.Research methodology.

The research methodology adopted is UDHR. Through my project I aim to

describe and analyze the comparison that exists between UDHR and Indian
constitution and also discuss the whole Evolution of minority rights. The
sources of data in the project include - books, websites, discussions on the topic
with the , seniors and friends.3

 Sources of data :- the researcher has relied on the following secondry

source of data :-
 Books
 Websites

4. Research question

 The UDHR and Indian constitution :A comparison

5.Minority Group: Meaning and Scope.

Minority Group means a group of people sharing common ethnic, racial, orreligious
backgrounds, especially when constituting a comparatively small proportion ofa given
population in a society. Minority groups often have fewer rights and less powerthan
majority groups. A'primary factor in the existence ofminorities is immigration,
butsettlement by one people can also result in the indigenous or conquered people
3
Ibid
6

becominga minority,It is an open-ended research since various enforcement and

implementation machineries on minorities will not be discussed at length.

6.Purpose ofthe Study.

The purpose ofthis study is to know:-

 How does the Indian Constitution protect minority rights?

 How the Framers of our Constitution thought to safeguard the educational

and cultural rights of minorities in India.4
 What is the meaning and content of the expression of ‘minorities’ in
Article 29 andArticle 30 ofthe Constitution ofIndia?
 .What is the scope of right of minorities to establish and administer
educationalinstitutions oftheir choice under Article 30(1).
Articles 14,15,28,29 and 30 of the constitution have protected the intrests
of the minority communities in India. ARTICLE 14 provides equality
before law and equal protection which provide protection against
discrimination irrespective of religion or caste.5

7.Rights of minorities (supreme court judgement)

 Minorities - 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 .

4
Mehta, P.L. & Verma, Neena, Human Rights under Indian Constitution, (New Delhi: Deep & Deep Publication Pvt.
Ltd., 2000)

5
Ibid
7

 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 the State funds on grounds only of religion, race,
caste, language or any of them.

 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 (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 the 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.6

1. Reasons for granting Constitutional rights to minorities:

 Reservation

 Separate electorate

 Educational rights

 Equality – Children of Bharat Matha with handicap

 Secularism

6
Jaswal, Paramjit & Nishita, Human Rights and the Law, (New Delhi: APH Publishing Co., 1996)
8

2. Education of students – States’ responsibility

 Quality High Standard – of education must be maintained by the State

3. In ability of the government to give quality education.

4. Role of private educational institutions in giving quality education.
5. Problem faced by private and minority educational institutions from State Government
(unreasonable control over them)
6. Every citizen has the right to establish and administer educational institutions of their
choice.
 Under Article 19 – right to occupation (to practice any profession, or to carry on any
occupation, trade or business)

 Education is an occupation

 Education is charitable in nature

7. Every religious denomination or section thereof has the same right to establish and
administer educational institutions – as charitable institutions under Article 26(a)
 Article 26. Freedom to manage religious affairs – Subject to public order, morality
and health, every religious denomination or any section thereof shall have the right –

 To establish and maintain institutions for religious and charitable purpose;

8. Areas of Government Control

 Administration – no absolute right

 Government can regulate to maintain quality education, welfare of students and

employees.

9. Government can frame regulations for –

 Affiliation

 Recognition

 Syllabus

 Examination
9

 Qualification of – Teachers/Headmaster/ Principal

 Welfare of students/staff(service rules)

10. Control of Administration

 Admission of students

 Welfare of students/staff(service rules)

 Appointment of Headmaster/Teachers/Principal

 Disciplinary action against (staff)

 Governing body

11. Maximum autonomy for unaided educational institutions.

12. Less autonomy for aided educational institutions
 No right to demand aid [see Article 30(2)]

 Government cannot take away your minority rights because of aid

7.The UDHR and Indian constitution :A comparison.

The Child of the Freedom Movement

The Indian Independence Movement was unique in its character and content. The abiding
faith of the leaders of the movement, particularly Mahatma Gandhi, in the core values of
Indian culture and use of ahimsa and satyagraha (non violence and quest for truth) as tools
against an oppressive Empire set this movement apart from anything that the world had ever
seen for achieving independence till then. More importantly, believers and non-believers,
orthodoxy and rebellious across the world found a robust moral character in the movement
that set standards everywhere else – be it the American Civil Rights Movement of the 60’s or
the Anti Apartheid Movement in South Africa. With the imminence of Independence, the
Indian leaders set about drafting their Constitution also with same moral and ethical
convictions. Indian Constitution adopted on 26 January 1950 is as unique as the freedom
movement.7

7
Blackstone’s International Human Rights Documents, (P.R. Gandhi Ed., New Delhi: Universal Law Publishing Co.,
1999)
10

It is the longest written constitution in the world. It also is one of the foremost Constitutions
to have a separate chapter on Fundamental Rights signifying sovereign obligations to uphold
human rights and freedoms to its citizens. Among its unique features, is the supremacy of the
constitution and Supreme Court over every other institution, including legislatures, when it
comes to upholding rights. Unique again is the power vested in the Supreme Court to strike
down any other law, Union or State, which is against the spirit of the Constitution.
The drafters of Indian Constitution had undertaken a careful comparison of the Constitution
of the United States, Ireland and the UDHR and ingrained their principles that had stood the
test of time. The Supreme Court of India have on their part, religiously and diligently, upheld
the spirit of the constitution and have expanded the meaning of its provisions to apportion
larger freedoms to citizens and non-citizens as well.
The Preamble 8
It is important to remember the Preamble to the Indian Constitution in order to appreciate the
true import of its guarantees. The preamble reads thus:
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;
Fraternity assuring the dignity of the individual and the unity and integrity of the nation;
In our constituent assembly, this twenty-sixth day of November, 1949, do hereby adopt, enact
and give unto ourselves this Constitution.
The Spirit of the Constitution
From the above it may be noticed that Justice, Liberty, Equality and Fraternity are the four
fundamental pillars of the Constitution. The wordings have attained a status of a touchstone
that is used by the Indian courts wherever the intent and purport of a particular Act is
question. In the Keshavananda Bharathi2 case, a majority of the full bench of the Supreme
Court held that the objectives specified in the preamble contain the basic structure of the
Constitution which cannot be amended in exercise of the power under Art 368 (amendment to
Constitution). From then on, Indian courts have held the Preamble as containing the basic

8
Sen, Shanker, Human Rights in a Developing Society, (New Delhi: APH Publishing Corporation, 1998)
11

structure of the Constitution and have used it to validate an act or its provisions as
constitutional or unconstitutional.
Through Indira Gandhi election case, Minerva Mills case and Waman Rao case, Supreme
Court of India has clarified the basic feature of the Constitution and held that they are beyond
the power of parliament to amend even though the parliament had such power under Art 368.
Art 32 and 226 of the Constitution are of special relevance in the context of upholding human
rights. These articles concern with the power of Supreme Court and High Court to issue
certain writs.
The UDHR and Indian Constitution
The Indian Constitution drew on the principles enshrined in UDHR, not merely because of
their philosophical value but because the founders of the country realized that the social-
political-economic exploitation of the masses of India in the hands of centuries of foreign rule
cannot but otherwise be rectified than by Constitutional guarantees. In incorporating them
into the letter and spirit of the Constitution, they also made certain fundamental rights like
Right to Life, absolutely non-derogable than through due process of law. Later, in
Keshavananda Bharathi, Menaka Gandhi, and a couple of more cases referred earlier, the
Supreme Court of India expanded the Right to Life into ‘Right to Life with dignity’. The
import of such an interpretation is truly unique in the annals of Constitutional Law anywhere
in the world. A comparative list of freedoms listed in the UDHR and Articles of Indian
Constitution is provided below:

UDHR (Article Number) Indian Constitution

1. All people are entitled to rights without
distinction based on race, color, sex, language,
religion, opinion, origin, property, birth or
residency.
2. All Human beings are free and equal in
dignity and rights
3. Right to life, liberty and security of person.
Art. 14 (equality before the law and equal
protection of the laws), as limited by Art. 31C.
Art. 16 (1) (equality of public employment), as
limited by Art 16(3)-16(5).
Art. 15 (on the basis of religion, race, caste,
sex, or place of birth), except under Arts. 15(3)
and 15(4) (special provisions for women and
children, and affirmative action). Art. 15
applies to all state action, and to private action
restricting access to public places and facilities.
Art. 17 (abolition of untouchability); and Art.
16(2) (employment discrimination on the basis
of religion, race, caste, sex, descent, place of
birth, and residence), as limited by Art 16(3)-
16(5).
Art. 21 (Right to life with dignity, no
extrajudicial executions). Art. 23 (prohibition
of traffic in human beings and forced labor);
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4. Freedom from slavery
5. Freedom from torture
6. Right to be treated equally by the law
7. Right to equal protection by the law
8. Right for all to effective remedy by
competent tribunal
9. Freedom from arbitrary arrest.
10. Right to a fair public hearing by
independent tribunal
11. Right to presumption of innocence until
proven guilty at public trial with all guarantees
necessary for defense
12. Right to privacy in home, family and
correspondence
13. Freedom of movement in your own country
and the right to leave and return to any
countries
14. Right to political asylum in other countries
15. Right to nationality
16. Right to marriage and family and to equal
rights of men and women during and after
Marriage
17. Right to own property
18. Freedom of thought and conscience and
religion
19. Freedom of opinion and expression and to
seek, receive and impart information
20. Freedom of Association and assembly
21. Right to take part in and select government
Art. 24 (prohibition of hazardous labor by
children under age 14); Art. 17, Abolition of
Untouchability
Art 17 and Art 23, 24. Specific Act of
Parliament exists for abolition of Bonded
labour.
Art 20, 21, 22
Art 14
Art 14, Art 39A
Art 14, 20, 21,22
Art 22
Art 20, 21, 22, 39A
Art 20, 21,22, 39A
Though not specific, Art 21 is invoked
Though not covered specifically, Art 21 is
invoked. Menaka Gnadhi v. UOI is a classical
case.
N/A
Art. 19(1)(d) as to movement, and (e) at to
residence, as limited by Art. 19(5) (reasonable
restrictions in the interests of the public or of a
"scheduled tribe").
Covered by separate Acts, specific to cultures
and religions.
Art 31
Art 19, 25, 26, 27, 28
Art. 25 (freedom of religion and of conscience,
"subject to public order, morality and health"),
though under Art. 25(2) any level of
government may restrict economic activities
related to religion. Special mention is made of
the religious practices of the Sikh religion.
Under Art. 26, all religious orders have limited
powers to establish places of worship and
teaching, while Art. 28 ensures the separation
of religious and state education.
In addition, The Right To Information Act
2005
Art. 19(1) (b) (freedom of peaceful assembly),
as limited by Art. 19(3) (reasonable restrictions
to advance national security).
There are numerous provisions, throughout the
text of the Constitution, including those
13

relating to election of the President, local

village committees (Panchayats), and detailed
rules for elections, eligibility for public service,
etc.
22. Right to social security and realization of Art 29, 30, 43
economic, social and cultural rights
23. Right to work, to equal pay for equal work Art 19, 39, 42
and to form and join trade unions
24. Right to reasonable hours of work and paid Art 42, 43
holidays
25. Right to adequate living standard for self Art 47, and other Provisions of Part IV of
and family, including food, housing, clothing, Constitution
medical care and social security
26. Right to education Art 45
27. Right to participate in cultural life and to Art 29, 30
protect intellectual property rights
28. Right to social and international order Art 38
permitting these freedoms to be realized
29. Each person has responsibilities to the Art 48A, Art 51A
community and others as essential for a
democratic society
30. Repression in the name of rights is Art 32, 32 A, 33-35, Art 226
unacceptable.
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8.Conclusion.
Minorities - 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 .As can be seen above in the table, the Constitution of India has
absorbed and reflected the basic spirit and intent of the important provisions of
UDHR, thereby reflecting the will of the Indian State in being a part of the wider
comity of nations to promote Human Rights and Justice everywhere, not merely in
words but in its spirit. The provisions of the Constitution are part of a dream that the
founder-fathers of India shared. The dream of a world where all humans will enjoy
their freedoms guaranteed by the collective will of the people. In his Gitanjali,
Rabindranath Tagore spells out the dream in the following words:
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9.BIBLIOGRAPHY.

 Rabindranath Tagore Omnibus I, Rupa & Co., New Delhi, 2003, p 15.
The Author is currently a Ph D scholar with UMISARC, Pondicherry
University, India.
 Blackstone’s International Human Rights Documents, (P.R. Gandhi Ed.,
New Delhi: Universal Law Publishing Co., 1999)
 Jaswal, Paramjit & Nishita, Human Rights and the Law, (New Delhi:
APH Publishing Co., 1996)
 Mangalwadi, Vishal, India: The Grand Experiment, (Surrey: Pippa Rann
Books, 1997)
 Mehta, P.L. & Verma, Neena, Human Rights under Indian Constitution,
(New Delhi: Deep & Deep Publication Pvt. Ltd., 2000)
 Seervai, H.M., Constitutional Law of India, 155, (New Delhi: Universal
Book Traders, I, 4th ed., 1999)
 Sen, Shanker, Human Rights in a Developing Society, (New Delhi: APH
Publishing Corporation, 1998)