ABSTRACT

India, a diverse and pluralistic nation, is built on the bedrock of its Constitution. The framers of the Constitution envisaged a democratic and inclusive society that safeguards the rights of all its citizens, irrespective of their religion, caste, or creed. One of the essential pillars supporting this edifice is the protection of minority rights. These rights not only reflect the commitment to diversity but also act as a robust safeguard against potential overreach, particularly during times of executive emergency.

Historical Perspective

To understand the significance of minority rights in India, it is essential to delve into the historical context. The partition of India in 1947, which led to the creation of Pakistan, resulted in a significant demographic shift. India became home to a diverse array of religious and ethnic communities, each with its distinct identity. Recognizing the potential challenges arising from such diversity, the framers of the Indian Constitution sought to establish a framework that protects the rights of minorities.

Constitutional Safeguards

The Indian Constitution, in its essence, is a document that not only guarantees fundamental rights to all citizens but also includes provisions specifically tailored to protect the interests of minorities. Articles 29 and 30 are prime examples of these safeguards.

INTRODUCTION

It is laudable that our constitution protects minorities in the country. The framers were quite conscious of the importance of minorities’ rights. In a pluralistic society minorities’ rights need to be protected. The idea of giving some special rights to nonages isn’t to treat them as a privileged section but to give a nonage a sense of security.[1] Special rights are handed not to produce inequalities but to bring about equivalency by icing preservation and furnishing autonomy in the matter of administration of nonage institutions.

Safeguard is in the form of fundamental rights. Article 29 and Article 30, accord special rights to the people who form religious or linguistic minorities. Articles 29 and 30 provide cultural and educational rights for minorities.

Cultural and educational rights of the nonages are veritably important and essential. It works as a tool for the upliftment of the minorities. Culture is very important for the congenial development of children and that is why the preservation of the language, culture, and script is important. Without education development of society is not possible and it has been found that there is a huge gap between the minority and majority community. For the better development and progress of the country, all communities must progress.

In the Indian Constitution, Article 29 and 30 provides the educational and cultural of minorities. The project is primarily concerned with the minorities’ educational rights and their relation with Article 29(2). It is discussed with the help of the landmark judgment T.M.A. Pai Foundation v. State of Karnataka[2].

CONCEPT OF MINORITY

It is found that the expression “minorities” has been used only in four places. Head note of Article 29, Article 30, and subclauses (1) & (2) of Article 30 use the word minorities. The expression minorities have been used in Article 30 in two senses one based on religion and the other based on language.

The term ‘minority’ as a concept has not been defined in the Constitution. Although mentioning religious and linguistic minorities, the constitution doesn’t provide details on the geographical and numerical specification of the concept. Even the specifics of religion and language are not mentioned.

According to Encyclopedia Britannica opposition means “group held together by ties of common descent, language or religious faith and feeling different in these felicitations from the tenant of a given political reality.”

The U.N. Sub – Commission on Prevention of Discrimination of Minorities has defined minority as under:

• The term “minority” includes only those non –document groups of the population that possess and wish to preserve stable ethnic, religious, or linguistic traditions or characteristics markedly different from those of the rest of the population;
• Similar minorities should duly include the number of persons sufficient by themselves to save analogous traditions or characteristics; and
• Similar nonages should be pious to the state of which they’re citizens.

In the debate in the constituent assembly on Article 23, Dr. Ambedkar[3] said:

It will be noted that the term minority was used therein not in the technical sense of the word ‘minority’ as we have been accustomed to using it for certain political safeguards, similar to representation in the Legislature, representation in the Services, and so on. The word is used not merely to indicate the minority in the technical sense of the word, it is also used to cover minorities who are not minorities in the technical sense, but who are nonetheless minorities in the cultural and linguistic sense. For case, for Article 23, if a certain number of people from Madras came and settled in Bombay for certain purposes, they would be, although not an opposition in the technical sense, cultural minorities…

In ‘In Re the Kerala Education Bill[4], the apex court suggested arithmetical tabulation of less than 50 % of the population for identifying a minority. If an act applies to the whole nation, then the minority group would be decided on the national population, and in case, the law is applicable in a state, the minority group would be decided based on the state population.

In the landmark case of the T.M.A. Pai Foundation, the court has specified the geographical entity of the state for consideration of the minority status for Article 30. As the reorganization of the states in India was on the linguistic lines, the unit, to determine minority status, will be the State and not the whole of India.

As far as language is concerned, the court in D.A.V. College, Jullunder v. State of Punjab[5] observed that a verbal nonage under Article 30(1) must at least have a separate spoken language.

Key Provisions Safeguarding Minority Rights:

1. Right to Equality: Article 14 guarantees equality before the law and equal protection of laws for all individuals, regardless of their religion, race, caste, sex, or place of birth. This provision ensures that minority communities are not discriminated against based on their identity.
2. Nondiscrimination: Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. It ensures that minority communities have equal access to public facilities, educational institutions, and employment opportunities.
3. Freedom of Religion: Article 25 guarantees the freedom of conscience and the right to profess, practice, and propagate any religion. This provision protects minority communities’ right to freely practice their religion without interference.
4. Protection of Cultural and Educational Rights: Articles 29 and 30 ensure the preservation of the distinct cultural and educational rights of minority communities. These provisions enable minority institutions to establish and administer educational institutions of their choice while protecting their language, script, and culture.

Upholding Minority Rights during Executive Emergency:

Executive emergency refers to a situation where the executive branch of the government assumes extraordinary powers to deal with a crisis or emergency. It is crucial during such times that minority rights are not unduly curtailed or violated in the name of maintaining law and order or national security.

The Indian judiciary has played a remarkable role in upholding minority rights even during emergency periods. The Supreme Court of India has consistently held that fundamental rights, including those of minorities, cannot be suspended or abrogated arbitrarily. It has served as a guardian of the Constitution, ensuring that minority communities are not subjected to discriminatory treatment or human rights abuses under emergency measures.

Additionally, civil society organizations and human rights activists have actively raised their voices against any encroachment on minority rights during executive emergencies. They have utilized various channels, including peaceful protests, media, and legal recourse, to highlight and challenge any discriminatory practices or policies.

MINORITIES EDUCATIONAL RIGHTS UNDER THE CONSTITUTION

The Constitution of India provides fundamental rights under Articles 15 – 17 and 25 – 30 and the directive principles of state policy under Articles 330 – 339 and 350 for the benefit of minorities. However, this project is concerned only with Article 30 which reads as follows:

• All minorities, whether grounded on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A)[6] In making any law furnished for the enforced attainment of any property of an educational institution established and administered by a minority, mentioned in clause (1), the state shall guarantee that the sum fixed by or determined under similar law for the attainment of such property would not limit or revoke the right guaranteed under that clause.

• The state shall not, in granting aid to educational institutions, distinguish against any educational institution on the ground that it is under the administration of a nonage, whether grounded on religion or language.

Educational Institutions of their Choice

In ‘In re the Kerala Education Bill[7],1957 Chief Justice stated:

The key to understanding the true meaning and recrimination of the composition under consideration is the words “of their own choice”. It is said that the dominant word is “choice” and the content of that composition is as wide as the choice of the particular nonage community may make it. There is no limitation placed on the subjects to be tutored in similar educational institutions. As the minorities will naturally ask that their children should be brought up duly and efficiently and be eligible for advanced university education and go out in the world completely equipped with such intellectual attainments as will make them fit…. educational institutions of their choice will unavoidably include institutions conducting general temporal education.

First in State of Bombay v. Bombay Education Society and Ors.,[8] and then in D.A.V. College Etc. v. State of Punjab & Ors.,[9]

Neither the University nor the State can afford to conduct education in a medium of instruction in a language and script which stifles the language and script of any Section of the citizens. However, “the State can provide for the study of the State language as a compulsory second language”

Indeed, the assisted educational institutions established by religious sections cannot conduct religious education unless a provision is specified in the trust deed. Unaided or partly supported minority institutions are free to impart religious instructions to the scholars.

ARTICLE 30(1)

Article 30(1): Rights of minorities to establish and administer educational institutions of their choice.

Article 30 (1) gives linguistic or religious minorities the following two rights:

1. Right to establish, and
2. Right to administer education Institutes of their choice.

As discussed above benefit is extended to linguistic and religious minorities only and the minority is to be decided based on the population of the state.

While interpreting Article 30 the question of regulation and autonomy has been important to be resolved by the judiciary during past decades.

In T.M.A. Pai’s Case, it has been overruled that no regulation can be cast in the interest of the nation. The right under Article 30(1) cannot override the national interest. Further, the court was of the view that no right can be absolute. No community can claim its interest to be above the public interest.

Therefore, a minority can claim the right to administer only if a minority institute has been established by it. The right to administer has been given to the minority so that it can administer it by its ideas of how the interest of the community, in general, will be best served.

RECOMMENDATIONS AND SUGGESTIONS

Strengthening the legal framework: One approach could be to strengthen the legal framework for protecting minority rights during times of executive emergency. This could include amending the Constitution to include more specific protections for minority communities, or enacting new legislation that outlines clear procedures and safeguards for protecting their rights.

Greater awareness and education: Another approach could be to increase awareness and education about minority rights and the potential impact of an executive emergency on these rights. This could involve targeted outreach and education campaigns, as well as the development of educational materials and resources.

International cooperation: International cooperation and support can also help protect minority rights during times of executive emergency. This could involve working with international organizations and governments to promote greater respect for human rights and minority rights, as well as providing financial and technical assistance to support domestic efforts.

Political engagement and participation: Finally, greater political engagement and participation by minority communities can also help protect their rights during times of executive emergency. This could involve encouraging greater participation in the political process, as well as working to address structural issues related to political representation and socio-economic inequality.

Overall, a combination of these approaches, tailored to the specific context and needs of minority communities in India, may be necessary to effectively address the challenges and issues related to minority rights under the Indian Constitution and the upsurge against executive emergency.

CONCLUSION

It appears from the above discussion that the Constitution makers aimed not to provide this fundamental right automatically but to make the minorities assert their demands. Even the wording of the Article was kept vague to facilitate regular interpretation of the rights by the courts of India. This makes the interpretation of Article 30 vague and subject to a constant struggle between the nonages and the State. But the Honorable Supreme Court of India in the capacity of the guardian of the Indian Constitution has tried its best to protect the educational rights of the nonages. This can be evidenced by the latest judgments of the honorable Court. Till T.M.A. Pai’s case, the position of educational rights of minorities was not very clear but in the subsequent cases, the Court has clarified at length the position of minorities regarding educational institutions.

BIBLIOGRAPHY

INTERNET SOURCE

• https://pdfs.semanticscholar.org/e3f6/3e90ec6f7406871a91cab83927a60fe24623.pdf
• https://www.researchgate.net/publication/306900458_Minority_Educational_Institutions_and_the_Supreme_Court_after_the_T_M_A_Pai_Judgment
• https://ccs.in/internship_papers/2006/Minority%20Educational%20Institutions%20-%20Molishree.pdf
• http://blog.mylaw.net/from-unnikrishnan-to-inamdar-the-story-of-how-the-supreme-court-first-strangled-and-then-liberated-private-higher-education/

 BOOKS

• MP Jain, The Indian Constitutional Law, 7^th
• Introduction to the Constitution of India, D.D. Basu.
• Constitution Law of India, H.M. Seeravi.

[1] Bakshi P.M., The Constitutional Law of India, Universal Law Publishing Company.

[2] (2002) 8 SCC 481

[3] The Constituent Assembly Debates, 1948-49: 922-923.

[4] AIR 1958 SC 956.

[5] AIR 1971 SC 1737.

[6] Inserted by the Constitution (Forty-fourth Amendment) Act, 1978, Section 4 (w.e.f. 20-6-1979).

[7] Supra note 5.

[8] AIR 1954 SC 561.

[9] AIR 1971 SC 1746.