Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERSITY
Lucknow

Faculty of Law

PROJECT ON

AN ANALYSIS OF THE CONSTITUTIONAL RIGHTS OF MINORITIES

IN INDIA

For

COURSE ON ‘INDIAN CONSTITUTIONAL LAW- THE NEW

CHALLENGES’

Submitted by:

ARCHITA DAYAL

LL.M (I SEMESTER)

Academic Session: 2020-21

Under the Guidance of:

Dr. Gulab Rai

(Assistant professor)

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 ACKNOWLEDGEMENT

I am highly indebted to Dr. Gulab Rai for his guidance and constant supervision as well as for
providing necessary information regarding the assignment. I am thankful to him for providing us
such an interesting project.
I also want to thank my classmates for helping me in this assignment.

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 TABLE OF CONTENTS

 INTRODUCTION……………………………………………………………………...4

 RIGHTS OF MINORITIES AND CONSTITUTIONAL

PROVISIONS……………………………………………………………………….…6

 RIGHTS OF MINORITIES AS HUMAN RIGHTS………………………………...9

 PROBLEMS OF RELIGIOUS MINORITIES IN CONTEMPORARY POLITICAL

DISCOURSE OF INDIA……………………………………………………………..10

 JUDICIAL INTERPRETATION ON MINORITIES

RIGHTS………………………………………………………………………………..13

 CONCLUSION………………………………………………………………………..14

 BIBLIOGRAPHY……………………………………………………………………..15

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 1. INTRODUCTION
The Constitution of India denotes minorities as religious and linguistic. Right of
minorities are well defined under the Constitution of India but who constitute a minority
is not defined anywhere under the Constitution. As the Supreme Court of India is
working as a final Interpreter of the Constitution under this power, the Court held that if a
community is less than 50% in the particular region to be considered as a “minority”, so
according to that Christians, Muslims and Anglo Indian would be minorities in Kerela1.
In Bal Patil v. Union of India 2 it was held that the identification of a community as
minority has to be done on a State basis and not all India basis. It was observed that the
word minority has not be defined in Article 29 & 30 of the Constitution but from
Preamble and Article 25 to 30, it is clear that it refers to identifiable group of people who
require protection from likely deprivation of their religious, cultural and educational
rights by the community which are in majority. The U.N Sub-Commission on Prevention
of Discrimination of Minorities has defined minority as under:

i. The term “minority” includes only those non-documents group of the population
which possess and wish to preserve stable ethnic, religious or linguistic traditions
or characteristic markedly different from those of the rest of the population;
ii. Such minorities should properly include the number of persons sufficient by
themselves to preserve such traditions or characteristic; and
iii. Such minorities should be loyal to the state.

According to Mahatma Gandhi, “The claim of a country to civilization depends on the

treatment it extends to the minorities”. The Constitution maker was aware about that so
they provided adequate provision for safeguarding the status of minorities. Constitution
of India provides six Fundamental Rights to its Citizen and some rights to Non-Citizen as
well. Some of them talks about Right to minorities. The founding father of the
Constitution tried to satisfy the hope, aspiration land desire of the minority by
safeguarding the educational rights of the minority. At the fifth session of the Constituent

1
In Re Kerela Education Bill AIR 1958 SC 956
2
AIR 2005 SC3172
4
 Assembly of India, The Chairman (The Honorable Dr Rajendra Prasad) assured the
minorities that: “To all the minorities in India we give the assurance that they will receive
fair and just treatment and there will be no discrimination against them. The religion,
their culture and their language are safe and they will enjoy all the right and privileges of
citizenship, and will be expected in their turn to render loyalty to the country in which
they live and its constitution. To all we give the assurance that it will be our endeavor to
end poverty and squalor and companions, hunger and disease, to abolish distinction and
exploitation and to ensure decent condition of living”.3

2. RIGHTS OF MINORITIES AND CONSTITUTIONAL PROVISIONS

3
Dr. Bhavana Sharma, The rights of minorities under the constitution of India: An analysis, 4 International Journal
of Law (2018), available at https://www.lawjournals.org, last seen on 22/02/2021

5
 Preamble of Constitution talks about the purpose for framing the Constitution and it
secures Justice- Social, Economic & Political, provides liberty of thoughts and worship,
equality in status to secure the unity and integrity of India. Part III of Indian Constitution
provides various rights to the minorities and justifies the aim and objectives of the
Constitution of India. In the case of Maneka Gandhi v. Union of India 4, Justice
Bhagvati said, “these Fundamental rights represent the basic value cherished by the
citizen of India since the Vedic times. The aim of the Fundamental right to protect the
dignity of the individuals. These rights are regarded as fundamental because they are
most essential to the individual to live a life with full dignity.” The object behind the
inclusion of Part III is to establish a “Government of Law or Rule of Law and not of
Man.5
 Article 14 of the Indian Constitution states that: the state shall not deny, to any
person equality before law or equal protection of law, within the territory of India.
The concept equality does not mean absolute equality. It is a concept which
provides absence of any special privilege by reason of birth, creed etc. in favour
of individuals.
 Article 15(1) directs the State not to discriminate against a citizen on the ground
only of religion, race, caste, sex and place of birth or any of them.
 Article 15(2) prohibits citizen as well as State from making such discrimination
with regard to access to shop, hotels and all the places of public entertainments, of
public resorts, well, tanks, roads etc. It is to be noted that while clause (1)
prohibits discrimination by the States but the Clause (2) prohibits both State as
well as individuals. The object of Article 15(2) is to eradicate the abuse of Hindu
Social System.
 Article 15(4) enables the State to make special provisions for the protection of the
interest of the Socially or Educationally backward classes of citizens.

4
AIR 1978 SC 597
5
Saika Sabir, CONSTITUTIONAL RIGHTS OF MINORITIES: A CRITICAL ANALYSIS, available at
https://www.lawjournals.org, last seen on 22/02/2021

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 In State of Madras v. Champakam Dorairajan 6, Madras Govt. has reserved
seats in state medical and engineering colleges for different communities in
certain proportions on the basis of religion, race and caste. The State defended the
law on the ground that it is purported to promote the social justice for all sections
of the people as required by Article 46 of Directive Principles of State Policy
(DPSP). It was observed that the law was void because it classified students on
the basis of caste and religion irrespective of merit. The Directive Principle of
State Policy (DPSP) cannot override the Fundamental Rights. To modify the
effect of the decision of the Supreme Court, Article 15 was amended by the 1st
Amendment Act 1951. Thus under Article 15(4), two things are to be determined:

i. Who are socially and educationally Backward Class?

ii. What is the limit of reservation?

Under the Article 15(5), nothing in Article 15 or in 19 (1) (g) shall prevent the
State from making any special provision by law, for the advancement of any
socially and educationally backward classes of citizens or for the Schedule Caste
and Schedule Tribe in so far as such special provision relate to admission to
educational institutions including private educational institutions whether aided or
unaided by the State, other than the minority educational institutions referred to in
Article 30(1).

This amendment has been enacted to nullify the effect of three decisions of the
Supreme Court i.e., T.M Pai Foundation v. State of Karnataka, Islamic
Academy v. State of Karnataka, P.A Inamdar v. State of Maharashtra.

In T.M. A Pai Foundation v. State of Karnataka7, it was observed that State

cannot make reservation of seats in admissions in privately run educational
institutions. There the admission can be done on the basis of common admission
test conducted by State and these institutions and on the basis of merit.
6
AIR 1951SC 226

7
AIR 2003 SC 355

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 In Islamic Academy v. State of Karnataka8, the Court held that State can fix
quota for admission to these educational institutions but it can’t fix fees and also
admissions can be done on the basis of common admission test and on the basis
of merit.

In P.A Inamdar v State of Maharashtra9, the court has overruled the Islamic
Academy ruling “to the effect that the state could fix the quota for admission to
private professional educational institutions. It was observed that State cannot
make reservation of seats in admissions in privately run educational institutions.
There the admission can be done on the basis of common admission test
conducted by State and these institutions and on the basis of merit.

In Balaji v State of Mysore,10 it was observed that sub classification made by the
order between backward classes & more backward classes was not justified under
Article 15(4) reservation should be less than 50% because if it will be more than
50% than it will not be in favour of rest of the Society.

In Naresh Agarwal v Bharat11, the petitioners who were Hindu students were
denied admissions to PG medical courses in AMU for the session 2005-06,
challenged the validity of rule which declared the AMU a minority institution and
allowed 50% reservation to Muslim Students. Allahabad high court held that
AMU was not a minority institution and struck down the amendment made to this
effect in the statute of AMU for reservation to Muslim students.

3. RIGHTS OF MINORITIES AS HUMAN RIGHTS

 Article 7 of Universal Declaration (UD) talks about equality before law.

8
AIR 2003 SC 3724
9
AIR 2005 SC 3226
10
AIR 1963 SC 649
11
AIR 2006 Alld.

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  Article 7 of Universal Declaration talks about prohibition of discrimination.
 Article 21 (2) of Universal Declaration provides Equality of opportunity.
 Article 3 of Universal Declaration provides protection of life and personal liberty.
 Article 22 of Universal declaration provides right to social security.
 Article 18 of UD gives Freedom of Conscience and religion.
 Article 23 (1) of UD provides right to work to just and favorable condition of
work.
 Art 23 (2) of UD gives right to equal pay for equal work.

In Keshvananda Bharti v. State of Kerela 12, the Supreme Court observed that the
universal declaration of Human Rights may not be a legally binding instrument but it
shows how India understood the nature of Human Right at the time of the
Constitution was adopted.13

4. PROBLEMS OF RELIGIOUS MINORITIES IN CONTEMPORARY

POLITICAL DISCOURSE OF INDIA

12
AIR 1973 SC
13
Justice Rajindar Sachar, HUMAN RIGHTS ISSUES OF MINORITIES IN CONTEMPORARY INDIA, Bharati Law
Review (2014), available at http://docs.manupatra.in, last seen on 23/02/2021

9
 The issue of religion continues to remain a remarkable salient feature for any adequate
understanding of the social reality of Independent India. The founding myth of “centrist
ideology” constructed out of the experience of the nationalist and the trauma of partition
has sustained even after independence. The contradiction in India’s concept of secularism
was its simultaneous commitment to communities and to equal citizenship. This
contradiction became more manifest when these commitments were challenged owing to
the political episode that took place in the post-independence phase, mounting distrust
amongst the Sikhs, Hindus and the Muslims. The rapid rise of Hindutva (Hindu
nationalism) in the late 1980s is an example of such fundamentalist surge. In 1989,
Bhartiya Janta Party (the electoral wing of Hindu right) won the general elections. This
party’s advent to power was followed by many violent and destructive riots between
Hindus and the Muslim minorities.14
The anatomization between these two communities deepened with the Babri Masjid
controversy in 1992. Babri Masjid, a mosque built in 1528 in Ayodha (a Hindu
dominated district of Uttar Pradesh, India) was also claimed by the Hindu right to be the
birthplace of god Ram. Later, on 6th December 1992, thousands of Hindutva volunteers
had demolished the mosque, which led to resurgence of the rivalries between these two
communities. As Tejani notes, “The violence of 1992 appeared to many in the Western
media as evidence that the Indians had fallen short in the task of over-writing their
“traditional” identities of religion and sect with the “modern” identities of nation, class
and occupation.” This event, thus marks the birth of the communal politics of the state,
which had left every Indian citizen with a dual identity-one identifying him/her with the
national community and the other to the particular religious community he/she belonged
to. In contemporary India, communalism has emerged as a discourse for articulating
differences. In the Parliamentary elections of 2014, the differences between the Hindus
and the Muslims of India was articulated through communal riots originating in
Muzaffarnagar district of Uttar Pradesh. The event which initially began with an
altercation in a locality of Muzaffarnagar, later led to a nationwide rage and claimed

14
Shabnum Tejani, Defining Secularism in the Particular: Caste and Citizenship in India, available at
http://lawtimesjournal, last seen on 21/02/2021

10
many innocent lives. Inflammatory speeches by right -wing Hindu leaders and allied
groups led to three days of mass violence and riot in most of the districts of Uttar
Pradesh. The violence ceased after a curfew was imposed and Indian army was deployed
to restore peace and order. The incidents had massive repercussion on the lives of the
local Muslims. Nearly hundreds were killed and Muslim citizens from almost 150
villages had to flee from their homes. The local groups working with victim has reported
that even today approximately 27000 Muslims from Muzaffarnagar and neighbouring
district remain displaced. Despite, their being a proper framework of rights and
safeguards for minority protection under the constitution, the failure of the state to
surmount this has resulted in failure of consensus. The distribution of the government
jobs and access to economic resources in the modern India is a reflection upon dramatic
inequities. Tracing from the colonial ear, the data shows that the Muslims who had 35%
jobs in the government offices now have only 3.5 % job in free India, likewise Christians
had 15% their figure has dropped to 1%. But the most striking contrast is in employment
of the Brahmins. Under the colonial administration the Brahmins had 3% employment in
government offices, fractionally less than the proportion of their 3.5% population. In
independent India the figures raised to 70% of government jobs. They do equally well in
electoral post, of the 503 Lok Sabha members 190 are Brahmins and of the 244 members
of Rajhya Sabha 89 are Brahmins. These figures clearly indicate that 3.5% of the
Brahmin community in India holds 36% to 63% of the plump jobs of the country. Apart
from the discrimination in access to resources, minorities in India have also been the
victim of hate politics. In an incident in October 2015, four Muslim men were killed by
Hind vigilante groups in separate incidents across the country, based on suspicion that
they had killed or stolen cows for beef. The violence was perpetrated by aggressive Right
wing Hindu groups who of their own accord undertook the task of protecting cows and
put a ban on beef consumption, because they are considered scared by Hindus. Similar
incidents of attack were reported against the Christian minorities in India. In 2015,
churches were attacked in several states of India, promoting fear of growing Hindu
militancy under the BJP government. Reportedly there were almost eighty five such
incidents across twenty states of India. These incidents were violent enough to claim life
of nearly eight thousand Christians. Invariably the Muslim and the Christian minorities

11
 have been the targets of hate politics in India. The violence against these communities
have existed ever since the formation of the Indian nation-state, however, the trajectories
of these recent incidents reveal that India’s commitment to communities versus India’s
commitment to equal citizenship, the political balancing act which worked well in the
first decades of the independence is proving impossible to sustain over the long haul. In
these recent cases violence against minorities are perpetuated and sustained by the State.
The present situation needs to be evaluated critically to give the minorities in
multicultural societies their perspective and place in democratic polity. Democracy is
significant not simply in terms of free speech and other things, it is significant because its
overall purpose is to bring different point of views, and different sensibilities into
constant creative interaction, as truth can only come out of intercultural dialogue. Modern
societies in the west have adhered to federalism, sub-national constitutions, regionalism
and affirmative action to protect the rights of minorities. But in the case of India where
the modernity of society is in quite early stage (remaining more as an illiberal society),
both the federal package and affirmative action politics are not designed to protect the
rights of minorities from majoritarianism. Many West European countries which are not
multicultural as India have been thinking seriously to be considerate to the rights of the
non-majority groups. Nicole. Participation rights are here understood as guaranteed and
institutionalised special influence on the decision making process in state institutions-
this could be proportional, over-proportional, or equal representation of the groups. The
adoption of rights and safeguards for minorities, the spirit of secularism and equality in
the constitution already fulfils this requirement. However, what we lack is the political
will of reinforcing these of constitutional values by strengthening and fortifying them.
Secularism and equality may not be able to stand as a foundational concept by itself;
hence there is a need for stronger political will in order to meet the challenges faced by
these concepts.15
5. JUDICIAL INTERPRETATION ON MINORITIES RIGHTS

15
Anupama Roy, The Rights of Religious Minorities, available at http://timesofindia.indiatimes.com, last seen on
22/02/2021
12
 In St. Xaviers college v. State of Gujrat16, it was observed that the word establish
indicates the right to bring into existence, while the right to administer an institution
means the right to effectively manage and conduct the institutions. It was also held that
the primary purpose of affiliation is that the students reading in the minority institutions
will have qualification in the shape of degree necessary for a useful career in the life.
Denial of the same would amount to make the fundamental right under Article 30
ineffective. The court also held that the university while granting affiliation can impose
regulations on the institutions with respect to quality of education, syllabi health,
laboratory or library etc.

In D.A.V College Bhatinda v. State of Punjab 17, it was held that the right of the
minority to establish and administer educational institution of their choice includes the
right to have a choice of medium of instruction also.

In State of Maharashtra v. Madhukar Narain 18, it was observed that the right to
privacy is available even to a woman of easy virtue and no one can invade her privacy.

In National human right commission v. State of Arunachal Pradesh 19, the Supreme
Court observed that the State is bound to protect the life and liberty of every being
whether citizen or non-citizen. It is the constitutional duty of the State to safeguard the
life, health and well-being of the Non-Citizen also.

6. CONCLUSION

16
AIR 1974 SC 717
17
AIR 1971 SC 1731
18
AIR 1991 SC
19
AIR (1996) SC
13
The judiciary is working very effectively for protecting Minority rights not only under
the interpretation for Article 29 & 30 but also making efforts to provide Social and
economic Justice to the minority section of the society and fulfilling the aim as enshrined
in the Preamble of the Constitution of India.
However, what we lack is the political will of reinforcing these of the constitutional
values by strengthening and fortifying them. Secularism and equality may not be able to
stand as a foundational concept by itself. Hence, there is a need for a stronger political
will.

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 BIBLIOGRAPHY

 STATUTE: THE CONSTITUTION OF INDIA, 1949

 BOOK: INDIAN CONSTITUTIONAL LAW BY MP JAIN.

 JOURNALS:

1. Dr. Bhavana Sharma, The rights of minorities under the constitution of India: An
analysis, 4 International Journal of Law (2018), available at
https://www.lawjournals.org, last seen on 22/02/2021

2. Justice Rajindar Sachar, HUMAN RIGHTS ISSUES OF MINORITIES IN

CONTEMPORARY INDIA, Bharati Law Review (2014), available at
http://docs.manupatra.in, last seen on 23/02/2021

 WEBSITES:

1. Saika Sabir, CONSTITUTIONAL RIGHTS OF MINORITIES: A CRITICAL

ANALYSIS, available at https://www.lawjournals.org, last seen on 22/02/2021

2. Anupama Roy, The Rights of Religious Minorities, available at

http://timesofindia.indiatimes.com, last seen on 22/02/2021

3. Shabnum Tejani, Defining Secularism in the Particular: Caste and Citizenship in

India, available at http://lawtimesjournal, last seen on 21/02/2021

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