Abdul Bari Masoud examines the situation minorities in India have been facing, in the light of the Constitutional provisions and other documents and reports.

The country observed the 72nd ‘Constitution Day’ on November 26. It reminds us that democracy requires minority rights equally as it does majority rule. Even Dr. B.R. Ambedkar once noted, “In the name of democracy there must be no tyranny of the majority over the minority.”  Ambedkar was a firm believer in the protection of minority rights who served as the chairman of the Drafting Committee of the Constitution of India. His words appear to be prophetic as what the country is witnessing under the present regime that adopted laws and policies that systematically discriminate against minorities.

Although, the Constitution of India does not allow any discrimination on the basis of religion, caste, creed, colour and even on the ground of minority or majority, but it does not define who a minority is. There is also no internationally agreed upon definition as to which groups constitute minorities. It is often stressed that the existence of a minority is a question of fact and that any definition must include both objective factors (such as the existence of a shared ethnicity, language or religion) and subjective factors (including that, individuals must identify themselves as members of a minority).

However, in India the basic ground for a community to be nominated as a religious minority is the numerical strength of the community. For example, the Hindus are the majority community. As India is a multi-religious, multi-cultural and multi-lingual country, it becomes important for the government to conserve and protect the religious minorities of the country.

Section 2, clause (c) of the National Commission for Minorities Act, 1992, declares six communities as minority communities. They are: Muslims, Christians, Buddhists, Sikhs, Jains and Zoroastrians (Parsis).

The Constitution also does not speak about any minority-specific rights as such except in the two Articles 29 and 30.

Both the Articles 29 and 30 guarantee certain rights to the minorities.

Article 29 protects the interests of the minorities by making a provision that any citizen/ section of citizens having a distinct language, script or culture has the right to conserve the same. It mandates that no discrimination would be done on the ground of religion, race, caste, language or any of them.

Article 30 of the Indian Constitution states the right of minorities to establish and administer educational institutions.

It says: “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

FEATURES OF ARTICLE 30

It consists of provisions that safeguard various rights of the minority community in the country, keeping in mind the principle of equality as well.

Article 30(1) says that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

Article 30(1A) deals with the fixation of the amount for acquisition of property of any educational institution established by minority groups.

Article 30(2) states that the government should not discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language, while giving aid.

While Articles 29 and 30 of the Constitution do not specify ‘minorities’ in India, it is classified into religious minorities and linguistic minorities.

Besides, India is also signatory to the various international instruments on minority rights, including the United Nations Minorities Declaration (UNMD), 1992.

The United Nations’ publication ‘Minority Rights: International Standards and Guidance for Implementation’ traces the history of minority rights worldwide.

According to the publication, “Efforts by non-dominant groups to preserve their cultural, religious or ethnic differences emerged with the creation of nation States in the eighteenth and nineteenth centuries. The recognition and protection of minority rights under international law began with the League of Nations through the adoption of several “minority treaties”. When the United Nations was set up in 1945 to replace the League of Nations, it, too, gradually developed a number of norms, procedures and mechanisms concerned with minorities.”

It also sheds light on the genesis of the UNMD. 

“In particular, the 1966 International Covenant on Civil and Political Rights and the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (hereinafter: United Nations Minorities Declaration) recognise and protect the rights of persons belonging to minorities. In practice, however, these rights are far from being realised. The promotion and protection of the rights of minorities require particular attention to be paid to issues such as the recognition of minorities’ existence; efforts to guarantee their rights to non-discrimination and equality; the promotion of multicultural and intercultural education, nationally and locally; the promotion of their participation in all aspects of public life; the inclusion of their concerns in development and poverty-reduction processes; disparities in social indicators such as employment, health and housing; the situation of women and the special concerns of children belonging to minorities.

“Minorities around the world are also often the victims of armed conflicts and internal strife. The situation of refugees and internally displaced persons from minority backgrounds, in particular women and children, is of special concern. Persons belonging to national or ethnic, religious and linguistic minorities are also often victims of multiple discrimination and they may lack access to, among other things, adequate housing, land and property, and even a nationality. Since country engagement and a human rights-based approach constitute key elements in identifying durable solutions to address the plight of minorities.”

This publication was prepared by the Office of the United Nations High Commissioner for Human Rights (OHCHR) to raise additional awareness, among its staff and colleagues in other UN organisations and specialised agencies, of minority rights and the impediments minorities face in the enjoyment of these rights.

Based on the experiences of minority communities worldwide, and on the contents of the UNMD and other international standards relating to minority rights, the experts identified survival and existence, promotion and protection of the identity of minorities, equality and non-discrimination, and effective and meaningful participation as major concerns.

SURVIVAL AND EXISTENCE

According to the Commentary of the UN Working Group on Minorities, any action for the protection of minorities should focus primarily on the protection of the physical existence of persons belonging to minorities, including protecting them from genocide and crimes against humanity.

The 2001 Durban Declaration affirms that “the ethnic, cultural, linguistic and religious identity of minorities, where they exist, must be protected and that persons belonging to such minorities should be treated equally and enjoy their human rights and fundamental freedoms without discrimination of any kind” (para. 66).

PROMOTION, PROTECTION OF IDENTITY OF MINORITIES

Central to the rights of minorities are the promotion and protection of their identity. Promoting and protecting their identity prevent forced assimilation and the loss of cultures, religions and languages – the basis of the richness of the world and therefore part of its heritage. Non-assimilation requires diversity and plural identities to be not only tolerated but protected and respected.

EQUALITY AND NON-DISCRIMINATION

The right not to be discriminated against is paramount in protecting the rights of persons belonging to minorities in all regions of the world. Minorities everywhere experience direct and indirect, de jure and de facto discrimination in their daily lives. Non-discrimination and equality before the law are two of the basic principles of international human rights law.

There is no requirement to demonstrate discriminatory intent. The phrase “purpose or effect” refers to legislation and/or policies which may be textually neutral but are interpreted in a manner that results in discrimination. International human rights law prohibits both direct and indirect discrimination. Indirect discrimination is more subtle and, therefore, harder to recognise.

EFFECTIVE AND MEANINGFUL PARTICIPATION

The participation of persons belonging to minorities in public affairs and in all aspects of the political, economic, social and cultural life of the country they live in is in fact essential to preserving their identity and combating social exclusion.

Adopted by consensus in 1992, the UNMD in its Article 1 refers to minorities as based on national or ethnic, cultural, religious and linguistic identity, and provides that States should protect their existence.

It is in this context, international rights organisations have been criticising the Indian government on the violation of minority rights.

Recently Human Rights Watch’s report alleged, “Prejudices embedded in the government of the ruling Hindu nationalist Bharatiya Janata Party (BJP) have infiltrated independent institutions, such as the police and the courts, empowering nationalist groups to threaten, harass, and attack religious minorities with impunity.”

“The BJP’s embrace of the Hindu majority at the expense of minorities has seeped into government institutions, undermining equal protection of the law without discrimination,” said Meenakshi Ganguly, South Asia director at HRW.

However, the National Commission for Minorities (NCM), an official watchdog body to protect minorities, is still in denial mood. Its newly appointed chairman Iqbal Singh Lalpura insists that the minorities are “100 per cent secure” under Prime Minister Narendra Modi’s government and the narrative that hate incidents have gone up during the present dispensation is “wrong”.

“If there is a feeling of insecurity that has to be set right. First of all we are Indians, we are here by choice and we should work for the development of the country. No person, whichever religion he or she may belong to, is to be harassed for their religion,” Lalpura asserted.

Similar Posts