Minority Rights: A Case Study of India

Author(s): MANOJ KUMAR SINHA

Source: International Journal on Minority and Group Rights , 2005, Vol. 12, No. 4
(2005), pp. 355-374
Published by: Brill

Stable URL: http://www.jstor.com/stable/24675308

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International Journal on Minority and Group Rights 12: 355-374, 2005. 355
© Koninklijke Brill NV. Printed in the Netherlands.

Minority Rights: A Case Study of India

MANOJ KUMAR SINHA*

1. Introduction

The protection and promotion of human rights are important for the development
world public order and of an equitable national order.' Human rights instruments both
at the universal as well at the regional levels contain various lists of inalienable cor
rights.2 These core rights are guaranteed by every society through its Constitution
no matter whether it is written or not. The State has the obligation under both con
ventional and customary law to protect these rights.3 It is the duty of States to uphol
human rights for all citizens irrespective of amongst others religion, race and eth
nicity.4 If the basic rights are protected without any prejudice by the State organ
then the likelihood of violations of human rights, and especially minority rights, will
be very small.5

* Visiting Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund
Sweden. My sincere thanks to my wife Preet Kumar Sinha for her support and encouragement. Special
thanks to Dr. Noelle Ouenivet for her valuable suggestions.
' See generally, H. Lauterpacht, International Law and Human Rights (Praeger, New York, 1950);
T. Meron (cd.) Human Rights in International Law: Legal and Policy Issues (Clarendon Press, Oxford,
1984); J. Cassese, Human Rights in Changing World (Temple University Press, Philadelphia, 1990);
M. Cranston, What are Human Rights? (Bodley Head, London, 1973); G. Alfredsson, 'The United
Nations and Human Rights', 25 International Journal of Legal Information (1997) pp. 17-34.
2 G. Alfredsson and A. Eide (eds.), The Universal Declaration of Human Rights: a Common Standard
of Achievement (Martinus Nijhoff, The Hague, 1999); J. Orra, Human Rights in State of Emergency in
International Law (Clarendon Press, London, 1995); M. K. Sinha, Implementation of Basic Human Rights
(Manak Publications, New Delhi, 1999); R. P. Claude and B. H. Weston, Human Rights in the World
Community-Issues and Action (University of Pennsylvania, Philadelphia, 1989).
3 Sinha, supra note 2, pp. 100-182.
4 See generally, G. Alfredsson (ed.), International Human Rights Monitoring Mechanisms: Essays in
Honour of Jakob Th. Möller (Martinus Nijhoff Publishers, The Hague, 2001); A. H. Robertson (ed.),
Human Rights: In National and International Law (Oceana Publications, Manchester, 1968); K. P.
Saksena, Human Rights: Perspectives and Challenges (Lancers Books, New Delhi, 1994).
5 P. Thornberry, International Law and the Rights of Minorities (Clarendon Press, Oxford, 1991);
A. Phillips and A. Rosas (eds.) Universal Minority Rights (Âbo Akademi University Institute for Human
Rights and Minority Rights Group, London, 1995); F. de Varennes, Language, Minorities and Human
Rights (Martinus Nijhoff Publishers, The Hague, 1996); Catherine Brölmann (ed.), Peoples and
Minorities in International Law (Martinus Nijhoff Publishers, Dordrecht, 1993); M. Nowak, 'The
Evolution of Minority Rights in International Law', in C. Brölmann (ed.), Peoples and Minorities in
International Law (Martinus Nijhoff Publishers, Dordrecht, 1993) p. 105.

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 356 MANOJ KUMAR SINHA

India has a long history of the rise and fall

dynasties, foreigners coming onto its soil and
country.6 The Aryans,7 the Muslims8 and th
India at different periods of time.10 India w
ple of different castes, ethnic divides and r
lasted for nearly eight hundred years.12 Th
enteen century provided an opportunity to th
present in the western part of India and likely
end of the seventeenth century British rule
English rulers did nonetheless little to break
from the past.15 In reality, when they gave th
mid twentieth century,16 the minority-major
of India caused great anguish, pain, bitternes
munities living in India.18 The minority-maj
is the legacy of a historical past extending th

1.1. Minorities in India

In India, generally the term 'minority' refers to those who are not Hindu, a conception
which implies that the dominant core of Indian identity is Hinduism.19 However, it is
not just the religious groups who regard themselves as minorities in this country;

6 P. Spear, A History of India (Penguin, London, 1956) vol. 2, R. Thapar, A History of India (Penguin,
London, 1966); A. L. Basham, The Wonder that was India (Grove Press, New York, 1954).
' The Aryans came to the subcontinent from Central Asia and gave them a new religion of caste rid
den social class division nearly three thousand millennium ago.
8 The first reference of Muslims could be traced from the 8th century onwards in India.
' The British came to India in the early 17th century.
10 R. C. Majumdar, An Advanced History of India (MacMillan, Madras, 1988).
" K. A. Nilkanta Sastri, History of South India from Pre Historic Times to the Fall ofVijaynagar
(Oxford University Press, Madras, 1976).
12 1. Habib (ed.), Medieval India (1200-1750) (Oxford University Press, New Delhi, 1992) See also
Majumdar, supra note 10.
13 J. Sarkar, Fall of the Mughal Empire (Orient Longman, Bombay, 1972); Paul Goalen, From Mughal
Empire to British Raj (Cambridge University Press, Cambridge, 1993).
14 Majumdar, supra note 10.
15 Ibid.

16 The British granted Independence to India on 15 August 1947 and on 14 August 1947 Pakistan was
created from India. Two regions with Muslim majorities, a large one in the northwest (West Pakistan) and
a smaller one in the northeast (East Pakistan), were partitioned from the predominantly Hindu areas and
became the separate nation of Pakistan. East Pakistan broke away from Pakistan in 1971 to form the inde
pendent nation of Bangladesh. The 'two-nation' theory was espoused by Mohammad Ali Jinnah and other
leaders of the Muslim League. 'Pakistan' meaning 'land of the pure' was coined in the 1930s by
Muhammad Iqbal. B. Chandra, Essays on Contemporary India (Har Anand, New Delhi, 1993).
17 M. N. Das, India under Morley Minto: Politics Behind Revolution. Repression and Reforms (Allen
and Unwin, London, 1964).
18 S. Sarkar, Modern India, 1885-1947 (Macmillan, Delhi,1983).
" M. P. Raju, Minority Rights Myth or Reality: A Critical Look at the II Judge Verdict with Full Text.
(Media House, Delhi, 2002).

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 MINORITY RIGHTS: A CASE STUDY OF INDIA 357

caste, tribal, linguistic as well as religious groups also define th

ties.20 The Indian Constitution identifies two categories of minor
religious.21 The government of India has officially recogni
Communities as minorities: (1) Muslims, (2) Christians (3) Sikhs
(5) Zoroastrians.22 It was the Ministry of Social Justice and Emp
tified these groups under section 2(c)23 of the Statute of the Nat
Minorities24 (hereinafter referred to as NCM). The NCM Statut
ward a definition of the term minority. Looking at practice, it is n
the Government of India (GOI) used the population and religion
identification of minorities in India.25
Regrettably, there is no widely accepted definition of the term
international level either. However, attempts have been made by s
appointed by international bodies. Francesco Capotorti, the Uni
Rapporteur on Sub-Commission on the Prevention of Discr
Protection of Minorities,26 suggested a definition which is frequ
legal scholars. According to him,

"A minority is a group which is numerically inferior to the rest of t

a State, in a non-dominant position, whose members—being nationals
possess ethnic, religious or linguistic characteristics differing from t
of the population and show, if only implicitly, a sense of solidarity, d
preserving their culture, traditions, religion or language".

1.1.1. Linguistic Minorities

India's problem in attaining national integration and political c

complicated by the existence of strong sub-national identities based
cultural characteristics.27 The Constitution of India under Sched

20 M. N. Srinivas, Caste in Modem India and Other Essays (Asia Publishing H

21 D. D. Basu, Human Rights in Constitutional Law (Prentice Hall, New Delhi
22 Annual Report, 'Ministry of Social Justice and Empowerment Governme
p. 29, <www.socialjustice.in>, visited on 22 December 2004.
23 Sec. 2(c) "Minority", for the purposes of this Act, means a community noti
tral government.
24 The setting up of a minorities commission was envisaged in the Ministry of H
of 12 December 1978 which specifically mentioned that, "despite the safe
Constitution and the laws in force, there persists among the Minorities a feeling o
nation". This Resolution highlights the urgency and importance to safeguard the
India to maintain its secular traditions. To fulfil the Constitutional obligations and ef
of the government policies and administrative schemes enunciated from time
Commission was established. The Commission was renamed as National Commission
first statutory Commission was constituted on 17 May 1993. cf. <www.ncm.nic.in
visited on 7 January 2005.
25 Annual Report, supra note 22, pp. 29-36.
26 F. Capotorti, Study of the Rights of Persons Belonging to Ethnic, Re
Minorities, Sub-Commission on Prevention of Discrimination and Protection of M
30th Sess., para. 568, U.N. Doc. E/CN.4/Sub. 2/384/REV 1 (1979).
27 R. Kothari, Politics and the People: In Search of a Humane India (Ajanta Publi

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 358 MANOJ KUMAR SINHA

eighteen major languages.28 Linguistic and

among the regions that are far away from
1950 Hindi was chosen as the official langua
decided that Hindi was to become the sole o
Constitution had been in force for 15 years
voked large-scale demonstration in south In
Hindi language. As a result of violent oppo
ment of India agreed in 1965 to an indefin
official language of the country.31 Since mo
guage, those who speak another language as
as belonging to a linguistic minority.32 Un
tain articles, namely, Articles 347,33 350,34
tain guarantees for the linguistic minorities

1.1.2. Religious Minorities

Hinduism is the religion practiced by the

other important religions that coexist in I
Christianity, Buddhism and Zoroastrianism

28 Hindi, Benagli, Telugu, Marathi, Tamil, Urdu

Assamese, Kashmiri, Sanskrit, Sindhi, Nepali, Manip
29 Kothari, supra note 27.
30 Ibid.
31 Ibid
32 Ibid
33 Article 347 of the Constitution stipulates that, "on a demand being made in that behalf the President
may, if he is satisfied that a substantial proportion of the population of State desire the use of any language
spoken by them to be recognized by that State, direct that such language shall also be officially recognized
throughout that State or any part thereof for such purpose as he may specify".
34 Article 350 of the Constitution stipulates that, "[ejvery person shall be entitled to submit a repre
sentation for the redress of any grievance to any officer or authority of the Union or a State in any of the
language used in the Union or in the State, as the case may be".
35 Article 350 A of the Constitution stipulates that, "it shall be the endeavor 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."
36 Article 350 B of the Constitution stipulates that, "[tjhere shall be a Special Officer for linguistic
minorities to be appointed by the President;
1. It shall be the duty of the special officer to investigate all matters relating to the safeguards
provided for linguistic minorities under this Constitution and report to the President upon
those matters at such intervals as the President may direct, and the President shall cause all
such reports to be laid before each House of Parliament, and sent to the Governments of
States concerned."
32 P. M. Bakshi, The Constitution of India, Selective Comments (Universal Law Publishing Co., Delhi,
2002).
38 T. N. Maddan, Modern Myths, Locked Minds Secularism and Fundamentalism in India (Oxford
University Press, Delhi, 1997).

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 MINORITY RIGHTS: A CASE STUDY OF INDIA 359

2001,39 the population of India, stood at 1,027,015,247.40 If the num

to 1028 million, 828 million (80.5 per cent) are Hindus, 138 million
Muslim, 24 million (2.4 per cent) Christians, 19 million ( 1.9 per cent)
(0.8 per cent) Buddhists and 4.2 million (0.4 per cent) Jain.41 An addit
belong to other religions and persuasions42 including tribal religion
not included in the six main religions mentioned above. India consi
ethnic groups and fifty-two major tribes, six major religions and 6
sub-castes; eighteen major languages and 1,600 minor languages and

2. International Law and the Law of Minorities

The protection of minorities is one of the oldest concerns of international law.44

Recently, international law's normative response to questions of minority-majority
relations has tended to swing between an individual rights focus that implicitly favour
integration of minorities into the larger society of their States, and a quasi-collectiv
rights focus that stresses the protection and promotion of minority identities.4
Accompanying this normative dichotomy are a host of enduring practical issues, suc
as the relative roles to be played by universal, regional, and local actors, and the appro
priate balance between judicial and political responses to minority rights issues.46

2.1. Minority Protection After World War I

In the aftermath of World War I, the claims of both large and small national groups do
inated the international legal agenda.47 After World War I the international communit
developed a so-called protection system that consisted of the adoption of internation
and national instruments, which were based on either bilateral or multilateral treaties.4

39 In India once every 10 years a census is conducted. Last census was conducted in year 1991.
40 Census of India 2001, Provisional Population Totals, Chapter 3, web edition, <www.censusindia.net\
results>, visited on 30 December 2004.
41 <www.censusindia.net\religiondata>, visited on 30 December 2004.
42 Jews, Parsis, Satnami, Kabirpanthi, Nat worship, Kumbhipattia, Garo, Khasi, religions belonged to
this category.
43 T. M. A. Pai Foundation and Ors v. State of Karnataka and Ors., 2002 SOL Case No. 599, para 15
44 Thomberry, supra note 5.
45 Ibid.
46 Ibid.

47 F. Ermacora, 'The Protection of Minorities before the UN', 182 Recueil des cours (1983)
pp. 257-367.
48 The treaties on minority protection signed at the Paris Peace Conference were the following: (i) Treaty
between the Allied and Associated Powers and Poland of 28 June 1919; (ii) Treaty between the Allied and
Associated Powers and the Kingdom of Serbia, Slovenia and Crotia of 10 September 1919; (iii) Treaty
between the Allied and Associated Powers and Czechoslvakia of 10 September 1919; (iv) Treaty between
the Allied and Associated Powers and Romania of 9 December 1919; (v) Treaty between the Allied and
Associated Powers and Greece of 10 August 1920. Cf. Felix supra note, 47, p. 258.

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 360 MANOJ KUMAR SINHA

The treaties contained provisions relating to na

liberty to all people within a State, the protecti
to public offices and cultural autonomy.49 The
from by the State.50 If a State wished to am
approval of the majority of the Council of the
agreement between Council members and a Stat
minority provisions, the dispute was subm
International Justice, which automatically had
nism for petitions by individuals or associations
existed from 1920 onwards.53 The League of Na
mittees to examine petitions; in many cases the
governments concerned on behalf of the affecte
Covenant did not incorporate any provisions fo
system adopted was based on specific instrumen

2.1.1. Minority Protection After World War II

The end of World War II put an end to the stru

Nations to protect minorities.55 A significant s
could easily be found in the various instrument
The focus during this period was on the need to
fore, maintain international peace, by promoti
between minority and majority populations.57
Charter opted to pursue a different approach to
adopting a set of special protections for minor
designated countries, they devised a general sy
respect of universally applicable individual right
For all these reasons, the post-war legal framew
to minority rights as such.60 The United Nations
for human rights generally, and for the princip

49 N. Lerner, 'The Evolution of Minority Rights in Interna

pp. 77-103.
50 Ibid., p. 85.
51 Ibid.
52 Ibid.
53 Ibid.
54 Ibid.

55 Thornberry, supra note 5, pp. 53-54.

56 G. Alfredsson and E. Ferrer, Minority Rights: A Guide to United Nations Procedures and Institutions
(Minority Rights Group International, Raoul Wallenberg Institute of Human Rights and Humanitarian
Law, London, 1998).
57 Thornberry, supra note 5.
511 Ibid., pp. 118-123.
59 Ibid.
60 Ibid.

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 MINORITY RIGHTS: A CASE STUDY OF INDIA 361

does not mention minority rights.61 Similarly, minority rights are wh

the Universal Declaration of Human Rights.62
The Convention on the Prevention and Punishment of the Crime of Genocide
adopted in 1948 is the first instrument which has some bearing on minority protec
tion.63 Other important instruments, which have provisions for protecting minorities,
include, the Indigenous and Tribal Peoples Convention (1989), the Framework
Convention for the Protection of National Minorities, the International Covenant on
Civil and Political Rights (ICCPR) and the International Convention on the
Elimination of All Forms of Racial Discrimination.64 Article 27 of the ICCPR is
exclusively devoted to the protection of minorities; however, the language used
emphasizes that the rather tepid protections offered should be understood as pre
dominantly individual rather than collective rights.65
Further, although the Commission on Human Rights (CHR) was authorized66 to
create separate sub commissions on the protection of minorities and the prevention
of discrimination, only one has been established.67 The Sub-Commission on the
Prevention of Discrimination and the Protection of Minorities,68 attempted to define
the term minority and prepared a draft text of Article 27 of the ICCPR. Special
Rapporteur Francesco Capotorti was appointed to undertake a comprehensive study
on minorities.69 While submitting his study in 1979 on the rights of persons belong
ing to ethnic, religious and linguistic minorities, he recommended the preparation of
a draft Declaration70 for minorities. The Sub-Commission recommended the elabo
ration of a declaration on minority rights on the basis of a draft submitted by
Yugoslavia. On 21 February 1992 the draft declaration was approved by the CHR
and the Economic and Social Council. Finally on 18 December 1992 the UN
Declaration on the Rights of National or Ethnic, Religious and Linguistic Minorities
was adopted by the General Assembly (hereinafter referred to as UN Declaration on
Minorities).71

" Ibid.
62 Ibid., pp. 133-137.
63 Ibid., pp. 59-84.
M Ibid., pp. 257-271.
65 Ibid., pp. 240-254.
66 G. A. Res.9(l 1) 1946.
67 Thornberry, supra note 5, p. 124.
68 The Sub-Commission is the main subsidiary body of the Commission on Human Rights. It was
established by the Commission at its first session in 1947 under the authority of the Economic and Social
Council (ECOSOC). In 1999 the Economic and Social Council changed its title from Sub-Commission
on Prevention of Discrimination and Protection of Minorities to Sub-Commission on the Promotion and
Protection of Human Rights.
69 Capotorti, supra note 26.
70 Ibid.

71 UN General Assembly Resolution 47/135 of 18 December 1992.

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 362 MANOJ KUMAR SINHA

2.2. India and International Law

The Indian Constitution contains human rights provisions in Parts III and IV. While
the former guarantees fundamental rights to the individual, the latter gives direction
to the State to provide economic and social rights to its people in specified matters.
Together, they constitute the conscience of the Constitution.
The Constitution of India lays down clearly the bases on which foreign policy
should be framed and respected,72 Article 51 of the Indian Constitution highlights
this principle.
Article 51 stipulates:

"The State shall endeavour to:

(a) promote international peace and security;
(b) maintain just and honourable relations between nations;
(c) foster respect for international law and treaty obligations in the dealings of
organised peoples with one another; and
(d) encourage settlement of international disputes by arbitration."

The key provision to the Directive Principles of State Policy is found in Article 37
which states:

"The provisions contained in this part shall not be enforceable by any Court, but the
principles therein laid down are nevertheless fundamental in the governance of the
country it shall be the duty of the State to apply these principles in making law."

The reason behind making these principles judicially non-enforceable appears to be

that the Directive Principles impose positive obligations on the State to secure a new
socio-economic order for the promotion of the welfare of the people of India and that
this cannot be achieved immediately. It is clear from Article 12 that the term "the
State" for the purpose of Parts III and IV of the Constitution, includes the constituent
states of the Union of India. The basic thrust of Article 51 is international peace and
security, international relations and international obligations, matters which, under
the Indian Constitution, fall exclusively within the domain of the Union.73 In reality
Article 51(c) does not deal with the enforcement of treaties, it only obligates the
State to foster respect for "international law and treaty obligations" in inter-state
relations. It does not specify that international treaties or agreements entered into by
India shall have the force of municipal law without appropriate legislation imple
mented under Article 253 which declares:

"Notwithstanding anything in the foregoing provisions of this Chapter, Parliament

has power to make any law for the whole or any part of the territory of India for imple
menting any treaty agreement or convention with any other country or countries or
any decision made at any international conference, association or other body".

72 P. C. Rao, The Indian Constitution and International Law (Taxman, New Delhi, 1993) p. 3.
73 Articles 73, 254(2) and 253 and entries 1 and 10 to 21 of the Union list in the Seventh schedule to
the Constitution. For details see, Rao, ibid., pp. 126-78.

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 MINORITY RIGHTS: A CASE STUDY OF INDIA 363

This Article is in conformity with the objectives of Article 51(c), i.e

implementation of treaties. Article 51(c) does not deviate from the
principle that every State is bound by the principles of international l
Technically speaking, obligations arising from treaties are not jud
able in India unless backed by legislation.74 Nevertheless, a numbe
have shown that there is no need to incorporate a treaty into law i
tion is possible at the administrative level and without legislative en
The State is directed to promote the welfare of the people by secu
in which justice, social, economic and political, shall form the instit
life. The Directive Principles are intended to ensure dignity of hum
Parliament and State Legislatures are to secure these objectives.

3. Protection of Minorities under the Indian Constitution

The principles of secularism and pluralism have proved to be resilient in

India despite aggressive onslaughts by fundamentalist forces claiming to represent
the majority community, primarily because of the constitutional protection
guaranteed to minorities to preserve their language, religion and culture.76 The
rights of the minorities to their culture and religion and the right to be protected
against majoritarianism, were recognised as far back as 1928 in the Motilal
Nehru Draft Constitution.77 The Indian Constitution includes various provisions for
the welfare of the minorities, namely, Articles 15,78 16,79 25,80 26,81 27,82 28,83

74 See Stale of West Bengal v. Jugal Kishore, AIR 1969 SC 1171; State of Gujarat v. Vora Fiddali, AIR
1964 SC 1043; Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470; Birma v. State of Rajasthan,
AIR 1951 Raj. 129; C.R. V. Committee, S.L.S.R.C.C.L. v. Union of India, AIR 1983, Knt. 85.
75 State of Gujarat v. Voru Fiddali, AIR 1969 SC 1051 ; Maganbhai v Union of India, MR, 1969 SC 783.
76 Maddan, supra note 38.
77 Neera Chandoke, 'Why Minority Rights?' The Hindu, 27 July 2002 available at <www.hindunews
paper.com>, visited on 22 December 2004.
78 Article 15 provides - Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or
Place of Birth.

79 Article 16 - Equality of Opportunity in Matters of Public Employment.

80 Article 25 - Freedom of Conscience and Free Profession, Practice and Propagation of Religion:
1. Subject to public order, morality and health, all persons are equally entitled to freedom of con
science and the right freely to profess, practice and propagate religion.
81 Article 26 - Freedom to Manage Religious Affairs.
82 Article 27 - Freedom as to Payment of Taxes for Promotion of any Particular Religion.
83 Article 28 - Freedom as to Attendance at Religious Instruction or Religious Worship in Certain
Educational Institutions

"1. No religious instructions shall be provided in any educational institutions wholly main
tained out of State funds

2. Nothing in clause (1) shall apply to an educational institution which is administered by the
State but has been established under any endowment or trust which requires that religious
instruction shall be imparted in such institutions

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364 MANOJ KUMAR SINHA

29,84 and 30.85 Article 15 provides that the

of religion, race, caste, sex or place of birt
that no citizen shall be denied public empl
caste, sex, descent, place of birth or reside
State to take special measures for the back
tions, if they are not adequately represente
freedom of conscience and the right to prof
religion. This right is nevertheless not abs
words of Article 25(1 )86 makes this right sub
and also to other provisions of Part III of
religious affairs is provided by Article 26.8
religious denomination, or any section there
However, again, this right has to be exercise
public order, morality, and health.
Therefore, Article 26 can be said to be com
specifies that no person shall be compelled
are specifically allocated for the payment o
nance of any particular religion or religiou
Article 28(1)89 prohibits any educational i
out of State funds, to provide religious inst
is a secular State. On the other hand, mora
inational doctrine is not prohibited. The so

3. No person attending any educational institution, r

of State funds shall be recognized by the State o
required to take part in any religious instruction t
any premises attached thereto unless such person o
has given his consent thereto."
4 Article 29 - Protection of Interests of Minorities
" 1. Any section of the citizens residing in the territ
tinct language, script or culture of its own shall h
2. No citizen shall be denied admission into any e
State or receiving aid out of State funds on groun
or any of them."
5 Article 30 - Right of Minorities to Establish and A
"1. All minorities, whether based on religion or lang
administer educational institutions of their choice
2. In making any law providing for the compulsor
tional institution established and administered by
State shall ensure that the amount fixed by or dete
of such as would not restrict or abrogate the right
3. The State shall not, in granting aid to educationa
cational institution on the ground that it is under
based on religion or language."
s See supra note 81.
7 See supra note 82.
* See supra note 83.
' See supra note 84.

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 MINORITY RIGHTS: A CASE STUDY OF INDIA 365

in Article 28(2)90 which deals with cases where, by an endowment o

tution is established, and the terms of the endowment or the trust req
ing of religious instruction, and where that institution is administered
such a case, the prohibition contained in Article 28(1) does not appl
28(1) and 28(2) relate to institutions that are completely funded by t
28(3)91 deals with an educational institution that is recognized by the S
some aid out of State funds. Article 28(3) gives the person attending
institution the right not to take part in any religious instruction
imparted by an institution recognized by the State, or receiving aid
Articles 2992 and 3093 concern cultural and educational rights. Art
the right to any group of the citizens residing in India or any part th
a distinct language, script or culture of its own, to preserve the sam
essentially refers to sections of citizens who have a distinct languag
ture even though their religion may not be the same. The common
through Article 29(1) is language, script or culture, and not religion
in any part of the country, there is a section of society that has a d
they are entitled to preserve that language, even though the pers
language may profess different religions. Article 29( 1 ) gives the rig
of citizens, whether they are belong to a minority recognized by th
not, to preserve their language, script or culture. In the exercise of
serve the language, script or culture that section of the society can s
institutions. This right is necessarily concomitant to the right conf
30. The right under Article 30 is not absolute. Article 29(2) stipulates
educational institution is maintained by the State or receives aid ou
no citizen shall be denied admission on the grounds only of religion
language.
The Indian Constitution neither defines the terms "minority", nor provides suffi
cient elements to elaborate upon a test determining whether a particular group con
stitutes a minority. The drafters of the Indian Constitution did not put any effort into
defining the term minority. Thus, this task has been left to the judiciary. The initial
courtroom attempt to articulate a definition of the notion of minority was made in In
re Kerala Education BilPs where the Supreme Court held that a minority means a
"community, which is numerically less than 50 percent" of the total population. The
Kerela High Court in A. M. Patroni v. Kesavan96 also adopted this statistical criterion.
The concept of minority consequently refers to a group of individuals who are
numerically smaller than the majority in a defined area. It however does not indicate

90 Ibid.
91 Ibid.

92 See supra note 85.

93 See supra note 86.
94 See supra note 85.
s Re Kerala Education Bill, 1957, 1959 SCR 595.
s A. M. Patoni v. Kesvan, AIR 1965 Kerala 975.

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 366 MANOJ KUMAR SINHA

what factors of distinction, be they subj

account when determining whether a gro
considering a 'minority' to be a numerica
in a defined area, some place emphasis up
sessed by the members constituting the m
serve as objective factors of distinction. I
gious, and linguistic sections of the popu
respects from the majority of the populat

3.1. Muslim Personal Laws and Uniform

A major political issue confronting the co

Uniform Civil Code versus the Personal
Shariat (Shariah/Shariath) law popularly k
which designates the rules and regulation
mainly from the Quran and Hadit." The M
of political contention in India,100 which
and aggravated relations especially between
the question ultimately relates to how on
the Indian social order with a demand for
vance as the notion of legal uniformity i
gates the very spirit of cultural diversity
espoused since the Constituent Assembly
codified in Article 44104 of the Constitution which directs the State to endeavor to
secure a uniform civil code for all citizens and even the Supreme Court in the Sarla
Mudgal105 case has supported this view. Indian Muslims view the constitutional com
mitment to a Uniform Civil Code as stipulated in Article 44 as an attempt to dilute
the cultural identity of the Muslim community.106
The Courts in India have issued various rulings about Muslim family law, in par
ticular in cases in which litigants claimed that some element of Islamic law contra
dicted the constitution.107 However, very few Muslims, especially Muslim women,

97 Ibid.
98 S. Kazi, Muslim Women in India (Minority Rights Group, London, 1999).
99 Mulla, Principles of Mohammedan Law (N. M.Tripathi, Bombay, 1990) (19th ed.).
100 R. Upadhyay, 'Muslim Law: Should it be Politicised?', <www.saag.org\papers7\paper666.html>, vis
ited on 17 January 2005; T. Mahmood, Muslim Law of India (Lexis Nexis Butterworths, New Delhi, 2002).
"" Ibid.
102 A. A. Engineer, 'Uniform Civil Court: An Indian Perspective' (Centre for the Study of Society and
Secularism, Bombay, 1995).
103 Ibid.

104 Article 41 of the Indian Constitution stipulates that "the State shall endeavour to secure the citizens
a Uniform Civil Code throughout the territory of India".
105 Sarla Mudgal v. Union of India, AIR 1995 SC 1537.
106 Upadhyay, supra note 100.
107 Don Morrison, 'Don't Drink and Divorce', 60 Legal Affairs (2004).

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 MINORITY RIGHTS: A CASE STUDY OF INDIA 367

would approach a civil court over a family matter, so the opportunit

become involved have been limited.108
On the few occasions where the courts have issued judgments, t
sparked protest. A 1985 ruling in Mohammad Ahmed Khan v. Shah
Others,109 by the Supreme Court of India created an uproar among
case the Court held that Shah Bano had a right to financial support fro
who divorced her after 43 years of marriage and threw her from ho
a second wife."0 The court relied on Section 125 of the Criminal Procedure Code
(Cr.PC), which requires husbands to pay 'maintenance' to their wives, including
their ex-wives, until the wives remarry or die."1 By citing India's criminal code,
which applies to all Indians, the Shah Bano decision superseded Muslim law and
sparked widespread protests."2
A storm broke loose when the judgment was announced. Except for a small num
ber of committed individuals and organisations, all major Muslim parties, organisa
tions and leaders came together in intense fury to protest the ruling, which they
viewed as a violation of their sacrosanct Shari'ah.m There were strikes and demon
strations in the streets of all the major cities and many turned violent.114 Protest meet
ings were commonplace and several Muslim MPs demanded that Parliament amend the
law in order to render null and void the decision of the Supreme Court.115 Eventually, in
May 1986, the government introduced and passed the Muslim Women (Protection of
Rights on Divorce) Bill, which effectively prevented Muslim women from being able to
obtain relief under Section 125 of Cr.PC.116 The Indian law makers did so in the name
of protecting the group rights of a religious minority, the Muslims.117

108 Ibid.

109 Mohammad Ahmed Khan v. Shah Bano Begum and Others, AIR 1995 SC 1537. Background of the
Shah Bano case: Shah Bano was a daughter of a head constable and was married at the age of 16 to
Mohammed Khan. After 43 years of married life, Khan threw Shah Bano out of his house and took a sec
ond wife. For two years he paid her Rs 200 per month as maintenance, then stopped. In 1978, Shah Bano
sought relief in a local court under the Prevention of Vagrancy and Destitution Law and asked for the max
imum monthly allowance of Rs 500. The case was still outstanding when Khan divorced Shah Bano, after
depositing with the court Rs 3,000 that he owed her as her mehr. He then claimed that he was no longer
obliged to pay her anything. The magistrate, however, ruled that Khan should pay Shah Bano Rs 25 per
month. On appeal by Shah Bano, that amount was raised by the Madhya Pradesh High Court to Rs 179
per month. Mohammed Khan then appealed to the Supreme Court against the judgment of the Madhya
Pradesh High Court. He claimed that as a Muslim he was governed solely by his religious law, the
Shari'ah, under which he was required to pay Shah Bano her maintenance during the period designated
as 'idda ' (3 months), and that he had already done. It was in consideration of this appeal that appeared
before the Supreme Court of India.
110 C. M. Nairn, 'Minority Rights or Human Rights ?', XII:2 South Asian Bulletin (1992).
Shah Bano, supra note 109.
112 Ibid.

113 Seema, supra note 98, pp. 20-22.

114 Ibid.
115 Ibid.
116 Ibid.

117 N. Subramanian, 'Legal Pluralsim, Legal Change and Gender Inequality: Changes in Muslim
Family Law in India', <www.profs-polisci.mcgill.ca\subramanian\papers>, visited on 25 January 2004.

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368 MANOJ KUMAR SINHA

3.2. Important Decisions on Minorities

India is a land of diversity of different caste

gions and culture. Although these people en
part of the population is still illiterate and
most effective tool for the upliftment and p
education. The State is supposed to provide q
nately, one must admit it has failed to produ
against this background of a lack of quality
schools and colleges that, private educationa
gious and linguistic minorities.
The landmark decision rendered by the Sup
T. M. A. Pai Foundation & Others v. State of
most significant in terms of its reach, complex
of running and administering minority edu
by the Constitution Bench of 11 judges as it
mining who constituted a 'minority' and sub
right mentioned in Article 30(1) of the Const
cational institutions of their choice".120 As d
in India implies that the group is numerically
both linguistic and religious minorities are co
The bench was unanimous in accepting the f
and linguistic minorities the right to establis
of their choice including professional educati
the rights of linguistic and religious minoriti
set up educational institutions of their choic
administer them is not absolute.122 For exam
apply regulatory measures in order to mainta
in such institutions.123 However, the decision
to unaided minority educational institutions
university if the procedure is transparent and
dents is part of the right to administer educa
The judgment is also important from the po
Articles 29(2) and 30(1). Article 29(2) holds
sion on grounds only of religion, race, caste
tion maintained by the State or that receive

118 T. M. A Pai Foundation, supra note 43.

N. R. M. Menon, 'Minority Rights and Education', T
120 T. M. A Pai Foundation, supra note 43.
121 Ibid.
122 Ibid.

123 Ibid.
124 Ibid.
125 Ibid.

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 MINORITY RIGHTS: A CASE STUDY OF INDIA 369

guarantees all minorities, whether based on religion or language, the

lish and administer educational institutions of their choice.126 The di
respect of the nature and scope of Government control over minority e
tions in the context of the non-discrimination principle under Article 2
in the Unnikrishnan v. State of Andhra Pradesh,127 However, nine ou
in the T. M. Pai case agreed that an aided minority educational instit
required to admit a reasonable extent of non-minority students so th
under Article 30(1) are substantially maintained while the citizens'
Article 29(2) are not infringed.128 However, the Court left it to the Sta
and publicize the percentage of non-minority students.129
The minority right to establish and administer educational institut
been governed by the law laid down in the famous St. Stephen's Colleg
of Delhi130 case. This judgment allowed full freedom to minority ins
vided 50 per cent of the available seats were given to non-mino
However, the Court in the T. M. Pai case found that keeping a rigid pe
desirable in law or in practice.131 The non-minority component shoul
having regard to the type of institution, the size of the minority and
needs of the minorities.132 Again, there is scope for States to limit
minority rights which, judged by past experience, can be a constant s
tion and conflict.

In the view of the majority of judges, "any regulation framed in the

est must necessarily apply to all educational institutions, whether ru
ity or the minority.133 Such a limitation must necessarily be read into
right under Article 30(1) cannot be such as to override the national in
vent the government from framing regulations in that behalf.'"34 The
oped in this decision implies that minorities cannot have any funda
which are not available to the majority community or non-minorities.
land, including rules and regulations, must apply equally to majority a
minority institutions.
A major flaw in the judgment is the reference to the body responsible
mination of a linguistic or religious minority. The majority judges hel
should be the State.136 The majority of the judges agreed that the lin
isation of the States meant that, for the purpose of Article 30, lingui

126 Menon, supra note 119.

127 Unnikrishnan v. State ofAndhra Pradesh (1993) 1 SCC 645.
128 Raju, supra note 19, pp. 19^44.
129 Ibid.

130 St. Stephen's College v. University of Delhi 1992 (1) SCC 588.
1:11 Menon, supra note 119.
132 Raju, supra note 19, pp. 19-44
133 Ibid.

134 Ibid
135 Ibid.
136 Ibid

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 370 MANOJ KUMAR SINHA

ought to be determined in relation to the S

Article 30 are available not only to the offi
in a minority position in States in which th
also to the speakers of numerous minor la
State of their own.138
It is nonetheless difficult to agree fully w
when looking at the country as a whole. T
the policy of liberalisation, the politics of
ocratic governance.139 Minority institutio
tional institutions in the spirit of service an
fear from the judgment, if they do not re
fore, are totally free from any control ex
transparency.140 In the event they receiv
requires the government and the university
necessary to maintain certain standards and
minority students.141

4. National Commission for Minorities

A Minorities Commission was established by the resolution of 12 December 1978 of

the Ministry of Home Affairs.142 The Minorities Commission was set up to safeguard
the interests of minorities whether based on religion or language. The Minorities
Commission was later renamed the National Commission for Minorities (NCM),
which was constituted on 17 May 1993.143 Presently fourteen Indian States have also
established the State Minorities Commissions.144
The NCM is composed of a Chairperson, a Vice Chairperson and five members145
who are nominated by the central government for three years.146 Section 9 of the
NCM Act spells out the functions of the NCM. The NCM is vested with the power
to monitor the implementation of Constitutional guarantees offered to minorities and
also legislation adopted by the various union and state governments in this regard.

137 Ibid.
138 Ibid.

139 Menon, supra note 119.

140 Ibid
141 T. M. A Pai Foundation, supra note 43.
142 See supra note 24.
143 Ibid.
144 The fourteen States are as follows: Andhra Pradesh, Assam, Bihar, Gujarat, Haryana, Karnataka,
Madhya Pradesh, Rajasthan, Tamil Nadu, Uttar Pradesh, Maharashtra, West Bengal, Chattisgarh, Delhi.
145 Section 3 of the NCM Act. Act is available on <www.ncm.nie.in\html\ncmact.html>,visited on
7 January 2005.
146 Section 4(1) of the NCM Act.

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 MINORITY RIGHTS: A CASE STUDY OF INDIA 371

The other functions include conducting and promoting research, recomm

the government measures to effectively implement safeguards for the pr
the interests of the minorities and to report to the central government on
pertaining to minorities on a periodical or ad hoc basis. The late Prime
Indira Gandhi had formulated a 15-Point Programme on Minorities147 and
it to the National Integration Council. It is intended to ensure fuller part
the minorities in all aspects of national life.
The NCM functions like a civil court148 in respect to the following m
summoning and enforcing the attendance of any person from any part
examining him under oath; (b) requiring the discovery and production of
ment; (c) receiving evidence of affidavits; (d) requisitioning any public
copy thereof from any court or office; (e) issuing commissions for the
of witnesses and documents; and (f ) any other matter which may be pre
NCM received approximately 2900 complaints during the period from 1 M
to 31 March 2003.149 The cases broadly related to atrocities committed by
service matters, minority educational institutions and disputes relating
places. After taking cognisance of the complaints, reports were called fo
concerned authorities. The NCM then made recommendations after studying
submitted by the concerned authorities. Although, the recommendatio
legally binding they are taken seriously and implemented by the State. In
the Commission failed miserably to intervene in a timely manner to prot
and property of minorities. In the case of the riots in Gujarat, it was Nat
Rights Commission,150 which intervened and submitted a report putting in
role of the State in protecting the minorities during the riots.

4.1. Special Officer for Linguistic Minorities

The office of the Special officer for linguistic minorities also kno
Commissioner for Linguistic Minorities,151 was created in July 1957, in
with Article 350 B of the Constitution.152 The office of the Commissioner for
Linguistic Minorities takes up all matters relating to grievances arising out of the non
implementation of the Constitutional and nationally agreed scheme of safeguards
offered to linguistic minorities.153 It also examines the representations and complaints
received from various institutions, bodies, and individuals belonging to linguistic

147 15-Point Programme is available on <www.ncm.nic.in\html\fr_pmprog.html>, visited on 19 January

2005.

148 Section 9(4) of the NCM Act.

149 Annual Report (2003-04), Ministry of Social Justice & Empowerment, Government of India, the
report is available on <www.socialjustice.nic.in>, visited on 18 January 2005, p. 29.
150 <www.nhrc.nic.in/Gujarat.htm>, visited on 18 January 2005.
151 At present the Commissioner for Linguistic Minorities consists of its Headquarters in Allahabad and
the three Regional Offices at Kolkata, Chennai and Belgaum.
152 Supra note 36.
153 Annual Report, supra note 150.

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 372 MANOJ KUMAR SINHA

minorities for redressing their grievances. Furthe

to the Government154.

5. Minorities and Indigenous People

Indigenous peoples have been living in India from

ognized as indigenous peoples by the governme
people are identified as 'Scheduled Tribes'. T
appeared in the Constitution of India. Article 3
defines scheduled tribes as "such tribes or tribal
within such tribes or tribal communities as are deemed under Article 342 to be
Scheduled Tribes for the purposes of this constitution".155 Article 342 of the Indian
Constitution empowers the President of India to declare through public notification,
which tribes of a State or union territories are scheduled tribes. The essential char
acteristics of these communities are (1) primitive traits (2) geographical isolation
(3) a distinct culture (4) limited contact with the community at large (5) economically
disadvantaged.156
According to the 2001 census the total population of tribal people is around
84,326,240, which accounts for 8.2 per cent of the total national population.157
Almost all Indian states have tribal population within their territories.158 However,
the tribal population varies considerably from state to state, for example, 90 per cent
of the population are tribal people in the north eastern states of Meghalaya,
Mizoram, and Nagaland.159 There are 624 communities recognized by the govern
ment as Scheduled Tribes within the country.160
The government of India has formed a separate Ministry of Tribal Affairs in
October 1999 to accelerate tribal development within the country.161 The Ministry
has drafted a national policy on tribal people for their development. The draft
national policy recognises that a majority of Scheduled tribes continue to live below
the poverty line, have poor literacy rates, suffer from malnutrition and disease and
are vulnerable to displacement. It also acknowledges that Scheduled Tribes in gen
eral are repositories of indigenous knowledge and wisdom in certain aspects.162

154 So far Commissioner for Linguistic Minorities submitted 39 Annual Reports. All the reports have
been tabled in the Parliament and sent to the concerned Ministries/Departments of the Central
Government and the Governments of States, Union Territories for follow up action. See Report, supra note
150, p. 30.
155 <www.tribal.nic.in>, visited on 2 February 2005.
156 <www.tribal.nic.in/indexl.html>, visited on 2 February 2005.
157 <www.censusindia.net/t_00_005.html>, visited on 2 February 2005.
158 Except Punjab, Flaryana, <http://www.censusindia.net/t_00_005.html>, visited on 2 February 2005.
159 <www.censusindia.net/t_00_005.html>, visited on 2 February 2005.
160 <www.tribal.nic.in/indexl .html>, visited on 2 February 2005.
161 Ibid.

162 <www.wildlifeofindia.com/issuetribals.htm>, visited on 2 February 2005.

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 MINORITY RIGHTS: A CASE STUDY OF INDIA 373

However, there is an urgent need to protect some of the tribes,

verge of the extinction, for example the Jarwa tribes of Andaman
Jarwas belong to the Negrito group of tribal communities includin
Great Andamanese and the Sentinelese living on the Andaman Isla
communities that have lived and flourished here for at least 20,000
end could be just around the corner.164 During the British rule the
estimated to be at least 5,000.165 Today, while the total population
and Nicobar Islands has risen to 356,152,166 all four tribes added tog
sist of more than 500 people,167 of these the Jarwas are about 250.168
The Scheduled Tribes are less in number in comparison with ma
ties in India, but their problems are entirely different from the majo
ties communities. There is a need to protect their identity, their c
home in the name of development. Indigenous people should not be
identity, which makes them unique from the rest of the population.

6. Conclusion

The end of the twentieth century169 and the beginning of the twenty first century1
have witnessed a number of major communal riots in which hundreds of innoce
people from both majority and minority communities have died or been render
homeless.171 The rise of communal violence in the last two decades has undermin
secular law and violated constitutional ideals of religious non-discrimination,172 p
tection of human rights, implementation of social justice and the equality of al
Indian citizens as well as principles of international human rights law.173 These rio
have created fear in minority communities, though sufficient constitutional and l
islative guarantees are available to minorities in India they are not implemented
effectively, otherwise these riots would have not taken place.174 Unfortunately, thes
incidents clearly reflect that the government was unable to prevent these riots a

163 R. Dhavse, 'The Road to Destruction' <www.Indiatogether.org\2003\oct\gtroad.htm>, visited

2 February 2005.
164 Ibid.
165 Ibid.

166 <www.censusindia.net\andaman\ani_summary.html>, visited on 2 February 2005.

Dhavse, supra note 163.
168 Ibid.

169 Bomaby riots in 1993.

1,0 Gujarat riots in 2002.
171 'From Babri Masjid to Gujarat', <www.inowindow.com\akhbar\archives.php>, visited on
18 December 2004.

172 R Patnaik, 'A Decade of Reaction', <www.inowindow.com\akhbar\archives.php>, visited on

18 December 2004.
173 Kazi, supra note 98, p. 31.
174 D. Gupta, 'Limits to Tolerance: Prospects of Secularism in India after Gujarat', <www.inowindow.com\
akhbar\archives.php>, visited on 18 December 2004,

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 374 MANOJ KUMAR SINHA

that the role it played subsequently did not

nities in India.175 The demolition of Babri
to the brink.176 The modern democratic po
being neutral to all religions and equally pr
multicultural society for a long time and n
ticulturalism, which can only be sustained

175 Ibid.

176 H. Berglund, 'Religion and Nationalism Politics of BJP\ Economic and Political Weekly, 6 March
2004, <www.epw.org.in> visited on 23 December 2004.

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