Minorities (rights): India

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Minority's major issues in India; The hue and cry of the Muslim population growth overshadows the real issues; Muslims lag on most of social and economic indicators; Graphic courtesy: [From the archives of “India Today”]

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Definition of ‘Minority’

From the archives of The Times of India 2007, 2009

Constitution and Supreme Court Have Never Attempted To Define ‘Minority’

Dhananjay Mahapatra | TNN

New Delhi: Did the Allahabad High Court, by ruling that Muslims are not a minority in Uttar Pradesh, go into a territory which both the Constitution and the Supreme Court had never ventured into?

Who is a minority? Is it on the basis of the numerical strength of persons practising a certain religion or on the basis of the language spoken by a group of people? The Constitution under a group of Articles from 25 to 30 provides for the fundamental rights enjoyed by minority groups — be it linguistic or religious. But the framers of the Constitution, fresh from the division of the country on religious lines, never attempted to define the expression ‘minority’. The Supreme Court did debate the issue on numerous occasions. Yet, it too did not attempt to give a concrete definition of the word ‘minority’ but appears to have relied on the numeric strength of a community in a particular state to classify them as minority.

Former attorney general Soli J Sorabjee, who was also a member of the UN Sub-Commission on Protection of Minority Rights, feels that the numeric classification to identify majority and minority groups has been taken as a universal standard. ‘‘Prima facie, the high court judgment appears to be absurd,’’ he said.

One of the major attempts to give a comprehensive meaning to the expression ‘minority’ and the rights they enjoyed was undertaken by an 11-judge Bench of the apex court in the famous T M A Pai Foundation case in 2002. The contentious subject created sharp divisions within the Bench and it gave as many as four judgments — the majority by six judges and the other three by single judges, one of them concurring with the majority decision. The majority judgment did not give a precise meaning of ‘minority’ but ruled that identification of a minority community — linguistic or religious — has to be done separately for each state.

‘‘Linguistic and religious minority are covered by the expression ‘minority’ under Article 30 of the Constitution. Since reorganisation of the states in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit has to be the state and not the whole of India. Thus, religious and linguistic minorities, who have been put on a par in Article 30, have to be considered statewise,’’ the 11-judge Bench’s majority verdict said.

The question of minority came up before a three-judge Bench of the apex court in 2005 in the case of Bal Patil vs Union of India. It ruled: ‘‘Minority as understood from the constitutional scheme signifies an identifiable group of people or community who were seen as deserving protection from likely deprivation of their religious, cultural and educational rights by other communities who happen to be in majority and likely to gain political power in a democratic form of government based on election.’’

From these two judgments, it is clear that the court envisaged a situation where a religious or linguistic group is in minority on the numerical strength without putting any benchmark, beyond which a community will lose its minority tag. However, it did not deter the three-judge Bench from stating that ‘‘ideal of a democratic society, which has adopted right of equality as its fundamental creed, should be elimination of majority and minority and the so-called forward and backward classes’’.


Constitution does not define minorities: Govt


The Times of India 2013/08/13

New Delhi: The Constitution does not define the term “minorities” anywhere but only mentions it in some Articles, the Centre said on Monday. “The Constitution of India used the word minority or its plural form in some Articles, 29 to 30 and 350A to 350B, but does not define it anywhere,” minister of state for minority affairs Ninong Ering said in Rajya Sabha.

He said though Article 29 refers to “minorities” in its marginal heading, it speaks of “any section of citizens having a distinct language, script and culture”.

An entire community or a group within a majority community could thus be seen as a minority.

Article 30 speaks about two categories of minorities — religious and linguistic — while Article 350 relates to linguistic minorities only, the minister said.

Ering clarified that the National Commission for Minorities Act has declared five communities — Muslims, Christians, Sikhs, Buddhists and Parsis — as religious minorities

Minorities: Statute ensures minority rights

The Times of India

Dhananjay Mahapatra | TNN

New Delhi: Why is the expression ‘minority’ — such a touchy word — undefined under the Constitution? Is it because a large number of benefits are conferred on minority communities through a series of inviolable fundamental rights?

The Supreme Court takes them as a protective arrangement. In its 2005 judgment in Bal Patil vs Union of India, the court said: ‘‘The group of Articles 25 to 30 of the Constitution, as the historical background of partition of India shows, was only to give guarantee of security to the identified minorities and thus to maintain integrity of the country.’’

Article 25: Freedom of conscience and free profession, practice and propagation of religion

Article 26: Freedom to manage religious affairs

Article 27: Freedom as to payment of taxes for promotion of any particular religion

Article 28: Freedom as to attendance at religious instruction or religious worship in certain education institutions

Article 29: Protection of interests of minorities

Article 30: Right of minorities to establish and administer educational institutions

The apex court, in its 2005 judgment, felt that the special guarantees and protection to the religious, cultural and educational rights of minorities was guaranteed as a fundamental right in the Constitution, in the backdrop of the bloody partition, to allay apprehensions and fears in the minds of Muslims and other religious communities.

‘‘Such protection was found necessary to maintain unity and integrity of free India because even after partition, communities like Muslims and Christians in greater numbers living in different parts of India opted to live in India as children of its soil,’’ the court had said.

It said the minorities initially recognised, were based on religion and on a national level, for example Muslims, Christians, Anglo-Indians and Parsis. However, it had sounded a warning against votebank politics based on divisive tactics and underlined that ‘‘the constitutional ideal, which can be gathered from the group of articles in the Constitution under Chapters Fundamental Rights and Fundamental Duties, is to create social condition where there remains no necessity to shield or protect rights of minority or majority.’’


Minority institutions

‘Age bar doesn’t curb minority school rights’

Rosy Sequeira , Sep 30, 2019: The Times of India

The fundamental right of a minority institution is not infringed merely because the state government has prescribed the maximum age limit to appoint nonteaching staff, the Bombay High Court has held.

“The right to choose and appoint an employee in the non-teaching staff still rests with the petitioner… (prescribing maximum age limit) in no manner can be construed as putting fetters on the right to choose and appoint an employee of the choice of minority institution,” said a bench of justices Satyaranjan Dharmadhikari and Makarand Karnik. Its September 27 verdict came on a petition filed in 2012 by St Isabel High School, Mazgaon, challenging a November 25, 2005 government resolution which prescribes a maximum age of 33 years for shikshan sevaks/junior clerks in private schools. It had urged the court to set aside the education inspector’s order of January 12, 2011 not granting approval to a junior clerk who was 38 years old when appointed. The school’s advocate Arvind Kothari argued that being a minority institution it had the right to choose and select staff of its own choice and any restriction would be gross violation of Article 30 (1) of the Constitution. Also, the GR violates Rule 9 (4) (b) of Maharashtra Employees of Private Schools Rules which stipulate a minimum age of 18 years, but not a maximum age.

State’s advocate Ajay Shastri countered that notwithstanding the absolute rights under Article 30 (1), the state can make regulations to advance it. The judges agreed with him that for purpose of grant-in-aid and releasing salary grants, the state has formulated a revised structure and norms which are in consonance with the MEPS Act and Rules. “The fundamental right guaranteed under Article 30 (1) cannot be said to be infringed merely on a prescription made by the state government stipulating maximum age limit for approving the appointment of a non-teaching staff,” said justice Karnik wrote for the bench.

The judges said the state, while issuing the GR, has not tinkered with the minimum age prescribed by the rules. “As the rules are silent on prescription of the maximum age limit for non-teaching employees, the GR provides for a maximum age limit in pursuance to the policy prescribing revised structure and norms as a condition for approval. By doing so, it cannot be said the GR is contrary to the Act or the Rules,’’ they added.

The judges noted that salary grant of the non-teaching employees is to be released only if the appointment of the employee is approved. “There is no embargo on the petitioner-institution in making appointment of an employee of their choice even beyond a maximum age limit, but if the petitioner is seeking approval for the purpose of releasing salary grant, then…the school has to necessarily comply with norms prescribed by the GR,” the bench said.

The right to choose & appoint an employee in the non-teaching staff still rests with the petitioner… (prescribing maximum age limit) in no manner can be construed as putting fetters on the right (of a minority institution) to choose.”

Must follow government policy

Rajesh Kumar Pandey, Minority institutions must toe state policy: HC, Dec 23, 2016: The Times of India

The Allahabad HC on held that unaided minority institutions cannot admit students by adopting a mechanism of their own while ignoring any policyregulations framed by the government.

Dismissing a petition by Sankalp Institute of Education, a minority in stitution affiliated with Chaudhary Charan Singh University , Meerut, Justice Suneet Kumar gave this deci sion. The institute had moved court with the argument that the university was not allowing students admitted under minority quota to appear in B.Ed examination.

NCMEI can grant minority status to education institutions: SC

AmitAnand Choudhary, NCMEI can grant minority tag to education institutions: SC, April 19, 2018: The Times of India

The Supreme Court has ruled all questions relating to conferring minority status on educational institutions are to be decided by the National Commission for Minority Educational Institutions (NCMEI) and quashed the order of the Calcutta high court, which had said the body had no original jurisdiction on the issue.

A bench of Justices A K Goel and R F Nariman on Wednesday settled the law on the issue in view of contradictory verdicts given by different high courts and said the NCMEI Act empowered the Commission to decide all questions on the status of an institution as a minority educational institution. It said only the Commission has the power to decide on granting a ‘no objection’ certificate to an institution that wanted to convert into a minority institution.

The court passed the order on an appeal filed by NCMEI and Kolkata-based society, Sisters of St. Joseph of Cluny, challenging the verdict that set aside the decision of the Commission to confer minority status to Cluny Women’s College. The HC had held that NCMEI had no original jurisdiction to declare the minority status.

Other high courts had also taken contradictory stand on the power of the Commission in granting minority status to educational institutions. Besides Calcutta HC, Bombay HC and Punjab & Haryana HC have also taken the view that the Commission had no original power to decide on minority status. On the other hand, the Allahabad HC had held that Commission had jurisdiction to decide the issue.

Nursery schools

Delhi: HC stays neighbourhood criteria

Minority-run schools receive nursery relief, Jan 21, 2017: The Times of India

HC Stays Norm On Neighbourhood Criteria

The Delhi high court stayed the government's nursery admission notification that made it mandatory for private unaided minority schools to admit students in the unreserved category on the basis of neighbourhood criteria. The order has come as a relief for minority-run schools.

Justice Manmohan, who had warned a day earlier that the notification appeared flawed with respect to forcing the neighbourhood criteria on these schools, stayed the notification, reminding the AAP government to first bring its own schools up to the mark before trying to impose their admission norms on private institutions.

“Your (Delhi government) public schools...are pathetic, where teachers do not even come. People don't want to study in them even if they are free of cost,“ the court observed, saying the Supreme Court judgments on minority educational institutions make it clear they have full autonomy in fixing admission criteria.

Staying the January 7 notification with respect to minority schools, the court said “they are free to devise their own procedures and should be treated differently .“ Directorate of Education (DoE) had earlier defended the LG's notification, arguing that such schools can fill minority children under their own criteria but while admitting children from general category , the neighbourhood norm must be followed.

However, the high court noted that “prima facie the Delhi government notification, dated January 7, 2017, is contrary to the constitutional mandate.This court is also of the prima facie view that the fundamental right of minority schools cannot be interfered with and their right to admit students cannot be taken away . Minority schools have the right of maximum administration which cannot be taken away by any terms of contract.“ The high court clarified that minority schools are entitled to admit students in their own manner as long as there is no mismanagement. It also rapped DoE for issuing such a notification “at the eleventh hour, putting everyone in a chaos-like situation“ and stressed that in future, DoE should “make an endeavour to frame such policy , if any , at least six months in advance, if not earlier“.

Appearing for the minority schools advocate Romy Chacko had argued that keeping in view the decision of the apex court and HC, such schools are entitled to admit students according to their own procedures as long as they are fair and transparent.

The court has now fixed the petitions for further hearing on March 21 and asked Delhi government to file their reply.

Representation in government jobs, region-wise

2017: Under-represented in Delhi Police, DDA

Few minorities in govt jobs: report, Jan 19, 2017: The Hindu

`Not enough minorities in police, DDA' , Jan 19, 2017: The Times of India

Members of minority communities constitute a minuscule percentage, not more than 5%, in Delhi Police, DDA and even in departments like tourism and transport, a government report has said, flagging concern on the situation.

The Delhi Minorities Commission has shared the findings in its annual report (2015-16), which was on Wednesday submitted to deputy CM Manish Sisodia, who promised action based on the recommendations.

However, there was confusion around figures related to Delhi Metro in this regard.DMRC termed as “incorrect“ the report's claim that out of its “80,683 employees, 282 belong to minority communities“.

“The figure is not correct.We have around 8,500 regular employees and even if we add the contractual staff the number would not be that large,“ a DMRC official said.

Only 2,993 of the 77,397 Delhi Police personnel belong to the minority communities

People from the minority communities account for five per cent of the workforce in various government departments and the Delhi Police. The figures were shared by the Delhi Minorities Commission in its annual report, which was submitted to Deputy Chief Minister Manish Sisodia.

Under the head ‘Representation of Minorities in Government Services’, the report said only 2,993 of the 77,397 Delhi Police personnel belong to the minority communities, which comes to around 3.8 per cent.

Similarly, out of the 6,031 employees of the Delhi Development Authority (DDA) only 295 are minorities, while only 32 out of the 741 employees working with the Delhi Tourism and Transportation Department are from such communities.

Action needed

“There should be a sense of security among minorities. But the report paints a dismal picture. We need to find out whether it is deliberate or on grounds of merit. Either way, we need to take action and it has to be fixed. The recommendations will be studied and steps taken,” Mr. Sisodia said.

The Delhi Minority Commission was set up as a statutory body by an enactment called the Delhi Minority Commission Act 1999 and its chairman is Qamar Ahmad, who handed over the report to Mr. Sisodia.

The functions of the panel are related to the welfare of the six notified communities based on religion: Muslim, Sikh, Christian, Jain, Buddhist, and Parsi.

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