Faizan Mustafa on how the Indian Constitution celebrates difference

Faizan Mustafa

Any constitution as a social contract is a sacred covenant between people and state. The Indian Constitution as a progressive and far-sighted document made provisions for the protection of minority rights, and the Supreme Court further widened the ambit of this protection. Why are minority rights important? What are these rights? How has judiciary interpreted them? What role do minority institutions play in the nation-building? Who benefits from these institutions?

“It is well known that during the Middle Ages, the accepted notion was that sovereigns were entitled to impose their own religion on their subjects, and those who did not conform to it could be dealt with as traitors. It was this notion that was responsible, during the 16th and 17th centuries, for numerous wars between nations and for civil wars in the continent of Europe, and it was only latterly that it came to be recognised that freedom of religion is not incompatible with good citizenship and loyalty to the state, and that all progressive societies should respect the religious beliefs of their minorities. It is this concept that is embodied in Articles 25, 26, 29 and 30 of the Constitution,” observed Justice Venkatarama Aiyar in the advisory opinion of the Supreme Court in the Kerala Education Bill (1957).

Celebration and preservation of diversity is the true rationale behind minority rights under the Indian Constitution. A culture can be conserved only when a supportive social and political environment is ensured along with the group that shares that particular culture. 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’. Since the right is available to every citizen, this right is not just for minorities. Then Article 30 guarantees that all religious and linguistic minorities shall have the right to establish and administer educational institutions of ‘their choice’. The courts have also been consistent in extending protection of Article 30 to pre-Constitution institutions in cases like S.K. Patro (1969) and St. Stephen’s (1992) and to a university in Azeez Basha (1968). In the judgment of Aligarh Muslim University case (2024), the majority has held that even an institution of national importance can claim the minority character. National does not mean non-minority.

An individual’s right to culture holds little meaning or significance unless the community of which a person is a member, or is identified with, is accorded the right to exist in a viable form. Neither garba nor Holi can be celebrated alone. Cultures are valuable as they provide unique answers to our problems. Group rights are needed to establish the preconditions of not only an individual’s right to culture, but also an individual’s right to live with human dignity and respect.

Minorities, too, are citizens of the country. Any provision to help them should not be termed as ‘appeasement’. The Supreme Court has consistently held that minority rights under the Indian Constitution are an integral part of right to equality. On November 8, 2024, on a petition filed by this author in 2006, a seven-judge bench in the Aligarh Muslim University case (2024) described Article 30 as a “facet of equality and non-discrimination”. A nine-judge bench in the St. Xavier’s College case (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”.

The term ‘minority’ occurs at four places in the Indian Constitution. The Supreme Court has laid down that since the expression ‘religious and linguistic minorities’ has been used together in Article 30 and since the states were carved out on linguistic basis, minorities are to be defined at the level of state. Accordingly, Hindus are a religious minority in Punjab, Kashmir, Lakshadweep and a few northeastern states. There are hundreds of Hindu minority educational institutions in India. Even in Delhi, some Sindhi institutions are run as minority institutions by the Hindus. Till September 30, 2024, the total number of religious minority institutions was 14,049, of which 7,800 were Christian institutions, 5,286 were Muslim, 574 were Jain, 307 Sikh, 67 Buddhist and 15 Parsi. As per a report by the National Commission for the Protection of Child Rights (2021), only 37.5 per cent students in these institutions are from the minority communities. This means minority institutions are doing great national service in educating non-minorities.

In states that have a higher number of minority institutions, the overall literacy rate and education levels are higher. Thus, Kerala, which has 4,719 minority institutions, tops the literacy numbers. Tamil Nadu, with 1,113 minority institutions, and Karnataka with 757 minority institutions, too, are ahead in literacy and higher education.

India’s dream of achieving the status of a developed country cannot become a reality if its minorities in general and Muslims in particular remain uneducated. It is indeed national interest that is involved in the protection of minorities’ rights.

Faizan Mustafa is a constitutional law expert and vice-chancellor of Chanakya National Law University, Patna