Between the Devil and the Deep Blue Sea – Are the Religious Minority safe in India?
November 20, 2023
The principles that are considered pillars of democracy – equality, liberty and fraternity as provided for in the Constitution, constitute the foundational philosophy behind the legislations passed in the country of India. Minority protection is guaranteed to ensure the transformation of society from the clutches of social evils and inequalities to social progress. The Constitution of India recognises the rights of minorities, prohibits discrimination and safeguards the interests of minority communities. However, when there is a need for further legislation and State actions to protect minority interests, society has upheavals.
In the current scenario of Indian society distressed by various communal violence and conflicts between majority and minority interests, implementation of legislation providing for minority protection is advocated for and proceeded with caution. This article explores the protection of the rights and interests of minorities under the Constitution and the existing obstacles to implementing legislation guaranteeing minority protection. It forwards observations regarding ways to reconcile the issue of protection of minority communities while securing dignity and equality for all.
India since independence, has taken the character of a democratic, secular country to accommodate the interests of the different communities present in its diverse society. The Constitution, the supreme law of the land, protects the rights of minority communities in India. Discrimination and oppression based on the grounds of race, sex, caste and religion are barred and condemned in the country. Autonomy to practice one’s religion and guarantee to manage religious affairs under the law is provided for in the Constitution. Essentially, a society that follows the majority rule while recognising and respecting the rights of the minority exists.
However, increasingly, communal violence and disharmony continue to torment Indian society. The rights and freedom of the minority are recognised and protected in the Constitution of India. Still, unrest and disorder exist. The improper implementation of laws existing in the country can be attributed as a factor for the failure to curb religious and communal violence in the country and foster unity and order. Political and social upheavals break out when debates arise regarding the idea of a national identity based on religion, increasing the divide between the communities.
It is essential to understand the rights provided for in the Constitution, the history and the legislative intent behind the same and the actions of the implementing authority to be sensitive to the interests of different communities and address the issues of the minority effectively. Stability and order can be ensured when the people of the society enjoy security and development in the country without any agitated reservations against one another.
This article aims to discuss the minority protection provided for in the Constitution and the legislative environment surrounding the passing of and implementation of legislation protecting the interests of the minority. By assessing various articles and reports, some of the obstacles to the implementation of legislation have been carved out, and observations regarding specific viable ways of addressing the issue have been made.
Minority Protection under Constitution and other Legislations
The term ‘minorities’ has not been defined in the Constitution. The National Commission for Minorities Act, 1992, also does not define the term. According to the United Nations, minority means any group or community with members having shared distinct cultures, religions, languages or all, not in the dominant position and present in less than half the population in numbers.
Hence, the basis for being termed as minorities could be the language used, caste, religion and even sexuality and so on in the context of the social framework of the country. Currently, minorities refer to Muslims, Christians, Sikhs, Buddhists, Parsis and Jains as recognised under Section 2(c) of the National Commission for Minorities Act, 1992. Essentially, the size of the population and the religious identity at the national level have been the basis for being declared as minority communities.
A good, efficient Government with a proactive legislature will ensure the proper protection of the rights of the minorities. Under the Constitution, discrimination based on race, religion, caste, creed, or sex is prohibited under Article 15. Article 16 ensures equal opportunity for employment for all and bars discrimination in public employment based on religion, caste, language, etc. Article 25 guarantees the fundamental right to freedom of religion to every person in so long as it does not harm public order, morality or health.
Article 26 provides for the freedom to manage religious affairs, and Article 27 provides for the freedom from compulsion to pay taxes, the proceeds of which are appropriated for the expenses relating to the promotion or maintenance of the religion. Article 28 forbids educational institutions funded by the State from engaging in religious preaching and instruction unless there is a requisite to impart religious instruction owing to the endowment or trust by which the institution has been established.
Article 29 provides for minority protection by protecting the right to conserve the distinct language, script or culture of their own and prohibiting discrimination in admission to public educational institutions based on religion, race, caste or language. Article 30 (1) provides for the right of all religious and linguistic minorities to establish educational institutions and administer education, and Article 30 (2) provides that there should not be any discrimination in the issue of receiving aid from the State for minority-managed educational institutions . This article expressly provides for the protection of the rights of minorities. Article 350-B specifically provides for appointing a special officer by the President of India for linguistic minorities to investigate issues regarding the safeguarding of the rights of linguistic minorities.
Hence, discrimination against minorities is prohibited. Cultural, educational, and right to religion of the minorities are protected in the Constitution.
The National Commission of Minorities Act, 1992
The National Commission on Minorities was established under the Act by the Union government to deal with matters directly and incidentally related to the issues of minorities, monitor the safeguard of interests of minorities, inspect complaints and investigate communal conflicts.
This Act has been enacted to give minority status to educational institutions based on the six religious minorities that have been recognised as such under the National Commission for Minorities Act, 1992.
The Citizenship (Amendment) Act was at the centre of debates and protests in 2019. It provides for obtaining citizenship by the persecuted minorities (Hindus (not a minority in India), Christians, Sikhs, Jains, Buddhists and Parsis (minorities in India)) from neighbouring countries of Pakistan, Bangladesh and Afghanistan who migrated before 2014.
Are there hindrances in protection of Religious Minorities?
Political Climate of the Country
The current political climate of the country with the cultural policy of the State involving a religious identity that stands at the centre of debate elicits passionate responses from the minority communities, mostly resulting in communal violence. The rule of the Government is received with apprehension of being ostracised by the minority. On the part of the majority, minority protection is seen as a threat. The interests of the majority and minority stand at a crossroads with one another. Legislation that involves any concern about religious practices (for instance, the Uniform Civil Code) is to be done with utmost significant consideration as both majority and minority communities are highly cautious of their interests being subjugated, either based on a valid concern or fabricated political apprehension.
Issue of Majoritarianism
Hesitation about the presence of the practices of the religion of the majority in the Parliament induces fear that any legislation passed is an act aiding majoritarianism. Underrepresentation is an issue that requires to be addressed while considering the passing of legislation that brings in reforms or protects the rights of minorities. But that is more a political concern than a legal one. Political equality continues to be a concern of the minority communities. Sanctions against entities engaging in the protection of minority interests are seen as an imposition of majoritarian rule.
At times, the fear of majoritarianism is reasoned to be the basis for agitating against others and the legislation that provides for equality. When such is the nature of particular communal upheaval, it is challenging to implement legislation that ensures constitutional morality. The credibility of legislation that conforms to the constitutional standards cannot be questioned legally on the grounds of the representation alone. This gives rise to debates and protests, and the implementation of the legislation remains suspended.
Lack of Proper Foundation
There is no effective, proper communication and education of the legislative direction to ensure that the minority communities feel secure and the majority community is sensitive to the interests of the minority while protecting their interests. Proper representation in areas where minority communities are under-represented while giving importance to majority interests and proper integration of the minority communities in the society with effective acceptance of all is necessary. Misunderstanding about tokenism and minority appeasements exists in the country. There is no uniform jurisprudence in the Judiciary while addressing the issues of minority protection and social evils present as well. Minority protection without jeopardising the equality and dignity of all can be safeguarded only when the commitment to democratic principles through various consultations can be understood.
There is no clear definition as to who is the minority community. In different States in India, different religious communities happen to be in inferior numbers. But the same has not been recognised. Other factors of identification of minority communities have also not been given importance. Hence, issues of inclusion and exclusion arise.
Absence of Implementation of Laws against Communal Violence
The main concern revolving around religious differences is the rise in communal violence. Violent upheavals break out in response to legislation being made by the Parliament when it touches upon the elements of religion or caste. There is an absence of legislation and proper enforcement of law and order mechanisms against communal violence to help prevent the same and punish the wrongdoers. The victims of such an act do not get justice. Problems in access to justice, unbiased decision-making in the Judiciary, and ensuring that the interests of the different communities involved are satisfied continue to be issues that further communal agitation. When the issue of communal violence proves to be a threat, legislation on the subject matter of minority interests cannot be effectively brought into existence and implemented.
Affirmative action is to be undertaken by the legislature to ensure no suffering on the part of any community due to social hierarchy. When this is in conformation with the constitutional principles enshrined, with sufficient historical backing, affirmative action should not be opposed based on improper understanding and apprehension alone. Proper political communication has to be undertaken. The organs of the Government have to ensure that equality and freedom of all are protected in the country.
It is the collective will of the people that guides the functioning of the democratic State. A particular group or community is not in power to guide the actions of the State. The will that the Parliament represents is the will of the people, of every individual who makes a choice and engages in the decision-making process by choosing a representative in politics. This needs to be understood by the different communities existing in India so that concerns about the overpowering of a particular community over another – as asserted by many who engage in communal violence – are addressed. Valid concerns regarding representation exist. However, this has to be resolved through a political process rather than upheavals and violence that only further communal tension and disorder.
The test about a valid religious or caste practice should be based on the religion’s principles and as by the Constitution. It should not be used as an avenue to pitch one religion, caste, or creed above another to protect interests that, in fact, harm others and ostracise the minority community. A uniform test of reasonability must be availed and not promote the moral superiority of a particular community. Proper education for society and training for personnel regarding equal treatment for all has to be undertaken. Discrimination and exercise of superiority should be condemned.
We have a strong Constitution in existence providing for the protection of the rights of minority communities. Its principles have to be implemented to ensure that minority protection is guaranteed. In the name of a national identity based on religion or for vote bank politics, communal disharmony and violence should not be encouraged. The combined efficiency of a fair electoral system, a competent Government legislating to protect minority interests and equality and dignity of people belonging to all communities and an independent Judiciary to protect the rights of all citizens ensures that the principles of democracy are guaranteed, and the majority and minority live in harmony.
Accountability for engaging in discriminatory, violent actions has to be assigned, and liability has to be enforced on the wrongdoers. Only when strict implementation of the law and guarantee of reparation to the victims and punishment of the offenders is ensured will justice prevail in the country. Violence by and against the minorities must be curbed.
Political equality plays a major role in ensuring public assurance in the democratic State. Transparency regarding the legislation being made and the intent behind the same through various consultations with the interested parties is needed to secure the confidence of the minority in the commitment of the Government. Minority protection should not be seen as a threat. It should be seen as a step taken to ensure that there is a transformation in society to secure social progress. This should be discussed and educated to all to ensure equality and peace are achieved. Good relations have to be fostered between the majority and the minority community through positive actions of the State.
There should be a dialogue between all the interested parties involved and inclusive legislation that secures minority rights and freedom has been promoted. Equal treatment must be ensured, and long-term constancy must be the goal. Commitment to protect minority interests must shine through, not simply promotion of an image of political correctness. Inclusivity of all minority communities, be it religious, caste or sexuality minority, must be promoted in the society to ensure equality and public order.
The preamble of the Constitution guarantees equality of status and opportunity to all and assures social, economic and political justice to the people of India. The lawmakers, implementing authorities and the Judiciary must be committed to the constitutional principles. The protection of minority rights is an essential facet of democracy, and to further the principles of a democratic government, the same has to be ensured. The commitment to equality and freedom must act as the driving forces behind legislation and decision-making. The constitutional and legal remedies available have to be availed to address any issue, and the Government and the Judiciary must ensure that the minority communities are secure about the protection of their rights and interests in the country while ensuring equality and harm to none to safeguard public order and harmony in India. Legal equality of all must be protected, and discrimination of any kind must be prohibited.
Submitted by Hassini R., 05th Year, B.A.LL.B., SASTRA University, Thanjavur, Tamil Nadu