Minority rights

Topic: Secularism: Western and Indian Models · NCERT: Class 11, Ch 6 "Citizenship"; Class 11, Ch 7 "Nationalism"; Class 11, Ch 8 "Secularism"

Meaning

Minority rights are protections in the Constitution for groups that are smaller in number. Arts. 29-30 protect sections of citizens with their own language, script or culture, and religious and linguistic minorities. They let these groups keep their identity and run their own educational institutions, and majority voting cannot take these rights away.

They matter because in a democracy the bigger group usually wins the vote. If every question were settled by vote, a small group could lose its language, culture or schools. Minority rights keep these basic interests out of reach of a vote.

Explanation

Why minorities need special protection

• Majority rule has a blind spot.
• In elections and in law-making, the side with more votes wins.
• A small group can be outvoted on every question, even on its most basic interests.

• So some interests are written into the Constitution as Fundamental Rights. An ordinary majority vote cannot override them.

• Equal treatment alone is not always enough.

• Arts. 14, 15(1) and 16 stop the State from discriminating on grounds of religion.
• But a group's language, script or culture can still fade away if the group has no institutions of its own.

• Arts. 29-30 fill this gap. They protect the group, not only the individual.

• Link to the Indian model of secularism.

• Under Western-style separation, the State stays out of religion.
• In India, the State keeps a principled distance instead. It may reform religion, for example through temple entry under Art. 25(2)(b), and it also protects group rights under Arts. 26 and 29-30.

The two Articles and their parts

• Art. 29(1), the right to conserve: any section of citizens with its own language, script or culture has the right to conserve it (keep it alive).

• This covers any such section of citizens, not only minorities.

• Art. 29(2), the admission rule: no citizen can be denied admission to a State-run or State-aided institution because of religion, race, caste or language.

• Art. 30(1), the right to set up schools and colleges: religious and linguistic minorities have the right to establish and administer educational institutions of their choice.
• "Establish" means set up. "Administer" means run and manage.

• This right belongs only to religious and linguistic minorities. A group that is set apart only by its culture does not get Art. 30.

• Art. 30(2), fair aid: when the State gives grants, it must not discriminate against an institution because a minority runs it.

Who counts as a minority

• The Constitution does not define "minority". The courts and Parliament have filled this gap.
• State-by-state test: in T.M.A. Pai (2002, eleven judges), the Supreme Court held that minority status is decided state by state.
• A group's share of the population in that State decides the question, not its share across India.

• Example: a community that is large across India can still be a minority in one State.

• Notified minorities (NCM Act, 1992): the Centre notifies minority communities under s. 2(c) of the National Commission for Minorities (NCM) Act [4].

• Muslims, Christians, Sikhs, Buddhists and Parsis (Zoroastrians) were already notified [4].
• The Union Cabinet approved adding Jains in January 2014 [4].
• That makes six notified minorities today [4].

When an institution is "established" by a minority

• The old rule: S. Azeez Basha (1967) said that an institution created by a statute (a law passed by a legislature) is not "established" by a minority.
• The new rule: in AMU v. Naresh Agarwal (8 November 2024, seven judges, 4:3), the Court overruled Azeez Basha [3].
• The three-part test, called the indicia (signs) [3]:
• Idea: the idea came from a member or group of the minority community.
• Purpose: the institution was set up mainly for the minority's benefit.

• Implementation: members of the minority took the steps to set it up.

• Management also counts: the way the institution is run must confirm its minority character [3].

In the Constitution and practice

• Where the rights sit: Arts. 29-30, in Part III (Fundamental Rights), under the heading "Cultural and Educational Rights".
• Related equality provisions:
• Art. 15(1): no discrimination on grounds of religion.
• Art. 16(5): an office in a religious or denominational institution can be kept for people of that religion.
• Art. 325: one general electoral roll for each constituency, with no separate roll based on religion. This ended the colonial system of separate electorates, in which the voters of one community chose their own representatives.

• Minority rights in India work through group rights such as schools and culture, not through separate voting.

• Related freedoms:

• Art. 26: a religious denomination can manage its own religious affairs and run its institutions.

• Art. 28: no religious instruction in schools wholly funded by the State.

• Law and institutions: under the NCM Act, 1992, s. 2(c), the Centre notifies minority communities. Jains were added in 2014, making six notified minorities [4].

• Landmark cases:
• St. Xavier's College (1974): secularism is "neither anti-God nor pro-God". The State keeps an equal distance from all religions.
• T.M.A. Pai (2002, eleven judges): minority status is decided state by state.
• AMU v. Naresh Agarwal (2024, seven judges, 4:3):
  • Azeez Basha (1967) was overruled. Being created by a statute does not by itself end an institution's minority character [3].
  • The Court set the idea–purpose–implementation test [3].
  • AMU's own status was not decided. The case was sent to a regular bench to apply the new test [3].
• S.R. Bommai (1994, nine judges): the Court held that secularism is part of the basic structure. The basic structure is the core of the Constitution, which Parliament can amend but cannot destroy [2]. This gives the wider secular framework, which includes minority protection, a strong shield.

Don't confuse with

• Art. 29 vs Art. 30: Art. 29(1) protects any section of citizens with its own language, script or culture, including a majority group. Art. 30 gives the right to set up and run educational institutions only to religious and linguistic minorities.
• Art. 25 (freedom of religion): Art. 25 is for all persons, including foreigners. Arts. 29-30 are for citizens and minorities. Trap: a foreigner has Art. 25 rights but cannot claim Art. 30.
• Art. 26 (religious denominations): Art. 26 lets a religious denomination manage its religious affairs and property. Art. 30 is about educational institutions, and it also covers linguistic minorities, which Art. 26 does not.
• Art. 29(2) vs Art. 15(1): Art. 29(2) bars denial of admission to State-run or State-aided institutions on grounds of religion, race, caste or language. Art. 15(1) is a general bar on State discrimination on grounds of religion, race, caste, sex or place of birth.

Prelims Hooks

• Art. 30(1): only religious and linguistic minorities may establish and administer educational institutions of their choice. Trap: "cultural minorities" is a wrong option for Art. 30.
• Art. 29(1): any section of citizens with its own language, script or culture can conserve it. Art. 29(2): no denial of admission to State-run or State-aided institutions on grounds of religion, race, caste or language.
• Art. 30(2): the State must not discriminate in giving aid because an institution is run by a minority.
• T.M.A. Pai (2002, eleven judges): minority status is decided state by state, not across India.
• NCM Act 1992, s. 2(c): six notified minorities: Muslims, Christians, Sikhs, Buddhists, Parsis and Jains. Jains were added in January 2014 [4].
• AMU v. Naresh Agarwal (2024, seven judges, 4:3): Azeez Basha (1967) was overruled. Creation by a statute does not end minority character. The test is idea, purpose and implementation. AMU's own status went to a regular bench [3].

Mains Points

• Minority rights vs majority rule. Arts. 29-30 keep minorities' core interests out of reach of majority votes. This shows that Indian democracy is not just "the majority decides everything". But the State still needs to regulate education, for example on standards and admissions under Art. 29(2). T.M.A. Pai's state-wise test and the 2024 AMU test try to balance a minority's freedom to run its institutions with State regulation.
• Open questions on who is a minority. The Constitution does not define "minority". Because status is decided state by state, there is a debate on whether Hindus who are a minority in some States can be notified as minorities there. AMU's final status is also still undecided after the 2024 reference to a regular bench [3].
• Minority rights as part of Indian secularism. India's model is "neither anti-God nor pro-God" (St. Xavier's, 1974). It mixes State reform of religion (Art. 25(2)(b)) with protection of group rights (Arts. 26, 29-30), and a single electoral roll (Art. 325) replaced separate electorates. Critics call group rights "appeasement". Supporters say these rights are what make equal citizenship real for small groups. S.R. Bommai (1994) made secularism part of the basic structure, which protects this balance [2].

Read more

• Secularism in the Constitution and the courts