Minority Rights are fundamental rights

The issue of minority rights is linked to the theory of democracy and substantive equality. 

-Article 27 of the Universal Declaration of Human Rights gives every individual a right to community — that is the right to enjoy their own culture and to participate in cultural forums, associations etc.

- Articles 25 to 30 were enacted in the Constitution of India to recognize minority rights. The term ‘minority’ has been used in four places in the Constitution. 

-Conservation of language, script or culture  comes under Article 29. 

-Under Article 30 both religious and linguistic minorities are allowed to establish and administer institutions of their choice so that such a space is created in these institutions.

-Supreme Court has held that minorities are to be defined at the level of the State. Since Hindus are a religious minority in Punjab, Kashmir and in the northeastern States, they too are entitled to minority rights. There are hundreds of Hindu minority institutions in India.

-Article 29(1) lays down that ‘any section of the citizens residing in the territory of India or any part thereof having a distinct language script or culture of its own shall have the right to conserve the same’. This provision signifies two vital dimensions. It concedes that different groups do have different cultures and that all people may not have just one culture. Since these linguistic and religious cultures are valuable for their members, they need to be given explicit rights to conserve their own culture especially since such minority cultures can face disadvantages in a majoritarian society. The right to culture is an individualistic right, that is, individuals have been given the right to preserve their distinctive culture.

UN Minorities Declaration

On 18 December 1992, the UN General Assembly adopted, without a vote, the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The 1992 Declaration is the only UN law instrument which is entirely devoted to minority rights and its key provisions have notably influenced subsequent legal developments. 

-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. 

-The major concerns are: survival and existence, promotion and protection of the identity of minorities, equality and non-discrimination, and effective and meaningful participation.

-A 9-judge Constitution Bench in St. Xavier’s College Society vs. State of Gujarat (1974) too had observed that “the whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection, they will be denied equality.” In Keshavananda Bharati (1973) case, rights under Article 30 were held to be part of the basic structure which even Parliament cannot change through a constitutional amendment. 

-Article 30 guarantees that all religious and linguistic minorities shall have the right to establish and administer educational institutions of ‘their choice’. 

-In the re Kerala Education Bill (1957), the Supreme Court said that the dominant word in Article 30 is ‘choice’ and minorities can expand their choice as much as they want. The court also said that the term ‘educational institution’ includes universities. The courts have also been consistent in extending protection under Article 30 to pre-Constitution institutions in cases like S.K. Patro (1969), St. Stephens (1992) and Azeez Basha (1967). 

-In Aligarh Muslim University (2024) case, the majority has held that even an institution of national importance can claim minority character.

-Article 350 A provides for instruction in the primary stages of education in the mother tongue, and Article 350 B for the appointment of a special officer for linguistic minorities. Their religion based personal laws have also been constitutionally protected, for example, the customary law of Nagas. There is no religious qualification attached to the holding of high constitutional positions. There is also a National Commission for Minorities and a National Commission For Minority Educational Institutions to deal with the problems of minorities.

-The 11-judge Constitution Bench in the TMA Pai Foundation (2002) case had dealt with the question of the minority institutions. 

Article 30(2) states that the State cannot discriminate against a minority institution while granting aid. 

In the re Kerala Education Bill (1957) case, Chief Justice S.R. Das held that the State cannot impose such ‘onerous’ conditions either in granting aid or in giving affiliation to minority institutions that require surrendering the minority character of their institutions.

Supreme Court has consistently maintained that minorities have no right to maladminister their institutions, and that the government can come up with reasonable regulations to insist on proper safeguards against maladministration, to maintain fair standards of teaching, and to ensure “excellence of the institutions.” 

In St. Xaviers (1974), the court explicitly observed that “under the guise of exclusive right of management, minorities cannot decline to follow the general pattern. In fact, they may be compelled to keep in step with others.”

The 7-judge Constitution Bench in Aligarh Muslim University (2024) case has described Article 30 of the Indian Constitution as a "facet of equality and non-discrimination."