Divided by Religion

THE SUBSTRATA of Articles 25-30 of the Indian Constitution have always been at the heart of Bharat’s national discourse even before the Constitution came into force on January 26th, 1950. This should come as no surprise given that faith has been central to the history of this ancient land, as recognised even by the framers of the Constitution. Therefore, contemporary debates and controversies surrounding Articles 25-30 are but a continuum of a civilisational legacy.

It would not be inaccurate to state that faith has acquired an even more important status in Bharat’s national life ever since Sir Syed Ahmed Khan, the founder of Muhammadan Anglo-Oriental College (now known as Aligarh Muslim University), spoke of Hindus and Muslims as two separate nations in 1883. It could even be argued that the skewed and severely truncated approach to majority and minority rights in independent Bharat is but a continued impact of the two-nation theory. Such an approach has contributed to the rapidly vanishing layers of nuance not only in political dialogue but also in constitutional discussions, much to the exclusion and detriment of several markers of identity and vast swathes of citizens.

For instance, the implicit acceptance of the two-nation theory has the invisible yet inevitable consequence of negating the fact that of the two so-called ‘nations’, at least one, namely Bharat, was and remains a living civilisation. Therefore, its trajectory cannot mimic the Euro-normative script of a nation state, regardless of the path adopted by the other ‘nation’, namely Pakistan. This is because the theory of minority rights, as is currently advocated, is premised on the European construct of a nation state, wherein the majority of the population, namely the ‘nation’, is bound by either language or ethnicity or religion or all three, thereby othering as ‘national minorities’ those who do not share the identity markers of the nation. As a limited digression to the discussion, it needs to be appreciated that group migration has altered the identity of European nation states as well as of Europe as a continent, which impacts the idea of a European civilisation. How this development has affected the understanding of majority and minority rights in Europe is yet to be fully understood even by scholars who study the continent.

Coming back to Bharat, in stark contrast to conventional European nation states, it is the successor state to a diverse and ancient yet living civilisation, which contains within it a plethora of subcultures and identities based on language, script, culture and religion, but not limited to religion. At this juncture, it becomes relevant to underscore the fact that even on the subject of religion, the indigenous faith systems of this land do not subscribe to a Judeo-Abrahamic and Romanised conception of religion. Therefore, unlike a largely monochromatic European nation state, the indigeneity and diversity of this land call for a sui generis treatment of majority and minority rights to ensure that each of its subcultures and identities is protected.

This sui generis civilisational approach, which is inherently and patently Indic, is perhaps the reason for the expansive language of Articles 29 and 30 of the Constitution, in particular the former. Article 29(1) expressly states 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’. What is pertinent is that although the title of the Article, known as ‘marginal note’ in constitutional parlance, speaks of ‘Protection of interests of minorities’, the word ‘minority’ is absent in the said provision, and there is certainly no reference to religion whatsoever in the text of the provision.

Unlike a largely monochromatic European nation state, the indigeneity and diversity of this land call for a sui generis treatment of majority and minority rights to ensure that each of its subcultures and identities is protected

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Going by the clear language of the provision, ‘any section of the citizens’, regardless of its status as religious majority or minority, either at the national level or the state level, has the right to conserve its distinct language, script or culture. Article 29(2) further makes it abundantly clear that such section of citizens may establish educational institutions to exercise the right under Article 29(1). This right is, of course, subject to the restriction that when such institutions are maintained by the state or receive aid out of state funds, no citizen shall be denied admission to them on grounds only of religion, race, caste, language or any of the said criteria.

Notwithstanding the restriction, which applies to minority and majority institutions alike, Article 29(1) busts the myth that is often purveyed in political and popular discourse that religious minorities alone have been guaranteed a greater set of rights by the Constitution to conserve their language, script and culture through the establishment of educational institutions. That said right is equally available to the majority or any section of it is evident not only from the language of Article 29(1) but also from its history. This position was endorsed by the Supreme Court in the landmark judgment of T.M.A. Pai Foundation & Ors vs State Of Karnataka & Ors (2002), which was delivered by a historic 11-judge bench. In this judgment, the court recognised that communities often conserve their language, script and culture through educational institutions and that this right is available to any section of citizens, not just to linguistic or religious minorities.

There is another lesser known aspect addressed in the judgment. The judges recognised that religious denominations, within the meaning of Article 26, of all faiths have the right to establish educational institutions under ‘religious and charitable purposes’ in Article 26(b). Since this right is equally available to religious majorities and minorities, even independent of Article 29(1), religious denominations within the majority faith can establish educational institutions under Article 26(b).

IN ADDITION, since a religious denomination of any faith may also constitute ‘any section of the citizens having a distinct culture’, within the meaning of Article 29(1), such groups within the majority faith, too, can draw support from Article 29(1) to set up educational institutions for the conservation of their culture. Every ‘Sampradaya’ within the Hindu fold, which is the Indic translation for a religious denomination, can rely on both Articles 26(b) and 29(1) to establish educational institutions to preserve its distinct culture. This reinforces the point made earlier that Article 29(1) is agnostic to the status of a group as a religious majority or minority, whether at the national level or within a state. This is in keeping with the civilisational approach to cultural and educational rights.

In contrast to Article 29(1), Article 30(1) specifically speaks of the right of linguistic and religious minorities to establish educational institutions of their choice. In interpreting the provision, the Supreme Court held in the very same TMA Pai judgment that whether a group constitutes a linguistic or religious minority for the purposes of Article 30 will have to be determined in relation to the state in which the educational institution is sought to be established. Clearly, Article 30 is not based on the concept of a ‘national minority’, but requires a state-to-state determination.

Critically, the Supreme Court clarified that what has been granted to linguistic and religious minorities under Article 30(1) is a right which is equal to the rights enjoyed by the majority community, namely, to establish and administer educational institutions of their choice at their own cost. This is precisely why the court was of the view that the right of linguistic and religious minorities under Article 30(1), too, was subject to Article 29(2). That is, those institutions of such minorities, which are maintained by the state or receive aid out of state funds, shall not deny admission to any citizen on grounds only of religion, race, caste, language or any of the said criteria. Thus, the scope of rights available and limitations on the rights were the same for minority and majority institutions.

Until 2006, the position laid down in TMA Pai continued to be the law on Article 30. However, the 93rd Amendment to the Constitution, which amended Article 15, effectively altered this position since it exempted educational institutions of linguistic and religious minorities under Article 30 from the application of the Right to Education Act, 2009 (RTE Act). When the exemption was challenged on constitutional basis in Pramati Educational and Cultural Trust and Others Vs Union of India and Others (2014), a five-judge bench of the Supreme Court, whose strength was less than the 11-judge bench of TMA Pai, held that the 93rd Amendment was valid.

The reason offered for this conclusion was that, according to the five-judge bench, non-exemption of the educational institutions of linguistic and religious minorities from the application of the RTE Act would have led to the dilution of their fundamental rights under Article 30. In other words, according to the Supreme Court, educational institutions of linguistic and religious minorities were constitutionally meant to be more immune from the dilution of their character than other institutions. They were more equal than their non-minority counterparts.

Apart from the patent unfairness and unreasonableness of the finding, the court’s reasoning was directly at loggerheads with the history of Article 30 as well as the verdict of a much larger Bench in TMA Pai. Predictably, the 93rd Amendment and the apex court’s endorsement of it have led to a greater clamour for the minority tag on the part of groups in order to protect their respective cultural and religious identities, and their educational institutions. It would not be a stretch to contend that the 93rd Amendment has balkanised Indian society along communal lines even more than it was before.

The 93rd Amendment has led to a greater clamour for the minority tag on the part of groups to protect their respective cultural and religious identities, and their educational institutions. The Amendment has balkanised Indian society along communal lines

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Prior to the 93rd Amendment to the Constitution, there was no basis to support the constant trope that was trotted out in the public domain that religious minorities have been constitutionally guaranteed a greater set of rights to protect their culture through the establishment of educational institutions. Clearly, this is no more the case. Unfortunately, for reasons best known to it and despite the existence of a critical mass of public opinion against the 93rd Amendment, the current dispensation at the Centre has not shown the will to undo the damage caused by the 93rd Amendment and the RTE Act.

Since the current dispensation claims to be keen on undoing the historic mistakes of its predecessor, following are a few questions it must attempt to address, apart from the issue of the 93rd Amendment and the RTE Act, which too have a bearing on the question of minority rights:

1. If Article 30 mandates a state-to-state determination of linguistic and religious minorities, what justifies the continued existence of the National Commission for Minorities Act, 1992 (‘the NCM Act’) which empowers the Central Government, and not state governments, to notify as to which communities constitute ‘minorities’?

2. What justifies the continued existence of notifications dated October 22nd, 1993 and January 27th, 2014 issued under the NCM Act to notify Muslims, Christians, Sikhs, Buddhists, Zoroastrians and Jains as minorities?

3. Why have only religious minorities been notified under the NCM Act?

4. What was the basis for the creation of the Minority Affairs Ministry in 2006? Why hasn’t the post of Minister of Minority Affairs seen any diversity in its appointments since its creation in 2006?

5. Why is there no representation of linguistic or cultural minorities in the National Commission for Minorities?

6. Assuming that the NCM Act is based on the United Nations’ Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities dated December 18th, 1992, why have initiatives taken under the Act focused primarily and perhaps solely on religious minorities?

Addressing these questions could also help to address certain faultlines in Indian society which have festered for decades and threaten to grow deeper and wider. Since the current dispensation has publicly declared its commitment to inclusivity on several occasions, it must address systemic and structural inequities that are designed to achieve the opposite of inclusivity. One hopes that such issues feature in the dispensation’s list of priorities.

About The Author

J Sai Deepak

J Sai Deepak is a commercial and constitutional litigator who practises as a counsel before the Supreme Court of India, the High Court of Delhi, the NCLAT and the CCI. He is the author of India that is Bharat: Coloniality, Civilisation, Constitution, and India, Bharat and Pakistan: The Constitutional Journey of a Sandwiched Civilisation

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