7 National Commission for Minorities: Protecting the Legal and Constitutional Rights of Minorities in India

Dr. M. Mohibul Haque

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Learning Outcomes:

  1. This chapter will introduce students to an important constitutional body for the protection of minority rights in India, that is, National Commission for Minorities.
  2. The students would learn about its genesis, establishment, mandate, functions, composition and the reporting process of the Commission.
  3. The chapter also introduces students to the complaints mechanism, constitution of state minorities’ commission and the critical aspects around its functioning.

Introduction

Inclusion of constitutional and legal safeguards for protecting the rights and interests of minorities and other vulnerable groups and institutional mechanism to monitor their effective enforcement are the most important principles of governance in all inclusive democracies. India, which is also described as a ‘confederation of minorities’ provides institutional arrangements for protecting the interests of different vulnerable segments of its population. The National Commission for Minorities is such an institutional arrangement for monitoring the enforcement of legal and constitutional safeguards provided to religious minorities in India.

Genesis

Although the Minorities Commission came into existence in 1978 through a government resolution, the genesis of this body can be traced to pre-independence days. In fact, it was Sir Tej Bahadur Sapru Committee of 1945 which proposed the establishment at the centre and in each of the provinces an independent Minority Commission. The functions assigned to the proposed Commission were:

  • To keep a constant watch over the interests of minority communities in the area;
  • Without attempting to deal with stray administrative acts or individual grievances, to call for such information as the commission may consider necessary for discharging their functions;
  • To review periodically – for example once every six months – the policy pursued by the legislature and the executive in regard to the implementing of non-justifiable fundamental rights assured by the Constitution to minority communities and to submit a report to the Prime Minister.

After the lapse of the Sapru Committee the creation of a body for protecting the rights of minorities was discussed in detail in the Constituent Assembly of India. The questionnaire on Minority Rights (drafted by K.M. Munshi and circulated among the members of the Sub-Committee on Minorities) contained a question about the setting up of machinery to supervise the efficacy of the safeguards provided to minorities. Subsequently, the issue of administrative machinery to ensure protection of rights of minorities was taken up by the Sub-committee. Several proposals were brought before it for consideration including the establishment of ‘a Minority Commission whose findings should be mandatory on government’ (proposed by Mr. Khandekar). Mr. Anthony suggested a Minority Commission with the right to make a report only, However, both these proposals were defeated by majority in the Sub-Committee. Dr. Ambedkar’s proposal for the appointment of an independent officer by the President at the centre and by the Governors in the provinces to report to the union and provincial legislatures respectively about the working of the safeguards provided to minorities was accepted but dropped before the final stage of the adoption of the Constitution. Thus there was no special/separate institutional arrangement for safeguarding the interests of religious minorities in India before 1978.

Establishment of the Minorities’ Commission

The idea of a Minorities Commission was first conceived in the State of Uttar Pradesh in 1960 when a one-man Minorities Commission was created at Lucknow. Then the Government of Bihar set up a multi-member Minorities Commission in 1971. Following the examples of U.P and Bihar, the Government of Gujarat created a state Minorities High Powered Committee in 1977. All these three institutional arrangements were made with the purpose of securing effective implementation and enforcement of the safeguards provided to minorities in the Constitution.

The minorities in independent India are provided certain safeguards (general as well as specific) in the Constitution but there prevailed among minorities a general sense of dissatisfaction about the effective enforcement of those safeguards. The greatest challenge faced by them was to come out of the feeling of discrimination and constant threat to their life and property and the alleged failure of the government in providing them protection during turbulent situations like communal riots. Under these circumstances the Government of India decided to set up a central Minorities Commission at New Delhi in 1978 and accordingly moved a resolution stating:

Despite the safeguards provided in the Constitution and the laws in force, there persists among the minorities a feeling of inequality and discrimination. In order to preserve secular traditions and to promote national integration the Government of India attaches the highest importance to the enforcement of the safeguards provided for the minorities and is of the firm view that effective institutional arrangements are urgently required for the enforcement and implementation of all the safeguards provided for the Minorities in the Constitution, in the Central and State laws and in Government policies and administrative schemes enunciated from time to time. The Government of India has therefore, resolved to set up a Minorities Commission to safeguard the interests of the Minorities whether based on religion or language.

Interestingly the Minorities Commission created in 1978 was attached to the Ministry of Home Affairs and was envisaged to monitor the enforcement and implementation of the constitutional and legal safeguards provided both to the religious and linguistic minorities. On the completion of its first term in 1984 it was detached from the Ministry of Social Welfare (now Ministry of Social Justice and Empowerment). In 1988, the Ministry of Welfare amended the Ministry of Home Affairs Resolution

No. II-16012/2/77-NID (D) dated January 12, 1978 under which the Minority Commission had been established. Consequently, the Minorities Commission was now concerned only with the rights and safeguards of the Minorities based on religion and the Special Officer for Linguistic Minorities (SOLM) appointed under Article 350B of the Constitution would not function as Secretary of the Commission as originally envisaged. Since the creation of the Ministry of Minority Affairs in 2006, the National Commission for Minorities has been placed under it.

Attempts to Grant a Constitutional Status to the Minorities Commission

The Government of India made many attempts (although abortive) to make the Commission effective by granting constitutional status to it.   The Government showed its sincerity with regard to the Minorities Commission when it introduced in the Lok Sabha 46th Constitutional Amendment Bill on 3 August 1978.  The purpose of the Bill was to abolish the office of the Special Officer for Linguistic Minorities provided for in Article 350-B, and to add Article 338-A to make room for a constitutionally sanctioned Minorities Commission.

While introducing the Amendment Bill in the Lok Sabha, the Government in the Statement of Objects and Reasons said:

“The Government are of the view that appointment of a Commission to safeguard the interests of all Minorities, whether based on religion or language would provide a more satisfactory institutional arrangement for achieving the desired objective. A Minorities Commission was, therefore, set up by an executive order. Such a Commission would, if set up in pursuance of constitutional provisions, inspire greater confidence among the Minorities”.

Unfortunately, the Bill lapsed due to lack of interest showed by the members of the ruling coalition and apathy of the opposition. The Government however made another attempt to grant Minorities Commission a constitutional status by bringing in Fifty-First Amendment Bill in 1979 with the same purpose and objects. This time the Bill was extensively debated in the Lok Sabha but failed to get the required support and could not be passed. Thus, the Government failed in its attempt to grant the constitutional status to the Commission. However, the Morarji Government should be appreciated to demonstrate political will to create a body like Minorities Commission for the protection of the rights of minorities in India.

Statutory Status

In 1992 the central government decided to grant statutory status to the existing Minorities Commission by an Act of Parliament and accordingly the “National Commission for Minorities Bill” was introduced in the Lok Sabha on 4th May 1992. The statement of objects and Reasons of the Bill stated:

The Minorities Commission with a statutory status would infuse confidence among the Minorities about the working and effectiveness of the Commission. It would also carry more weight with the State Governments/ Union Territory Administrations and the Ministries/ Departments and other organizations of the Central Government.

The Commission got statutory status with the enactment of the National Commission for Minorities Act, 1992 and was renamed as the National Commission for Minorities.

This Act consists of five chapters. Chapter I of the Act deals with title, extent and definitional aspects. The Act has declared that “it extends to the whole of India except the state of Jammu and Kashmir”, and for the purposes of the Act, Minority means” a community notified as such by the Central Government.

Chapter II deals with the composition of the Commission, term of office and conditions of service of chairperson and members and procedure of removal of chairperson and members, salaries and allowances of its employees and officers. Chapter III deals with Powers and functions of the Commission.

Chapter IV and V deal with Finance, Accounts and Audit, and Miscellaneous matters respectively.

Communities Covered under the Commission

Section 2 (c) of the NCM Act 1992 stipulates that ‘Minority’ for the purposes of the Act, means a community notified as such by the Central Government. Therefore, all functions of the Commission as laid down in Section 9(1) of the Act are related to the six notified communities. Five religious communities, viz, Muslims, Christians, Sikhs, Buddhist and Zoroastrians (Parsis) were originally notified as minority communities by the Union Government. Further vide notification detail 27th January 2014, Jains have also been notified as a minority community.  It is also important to mention that the NCM had recommended to grant minority status to Hindus in five states(Jammu & Kashmir, Mizoram, Meghalaya, Nagaland, and Punjab) and in the Union Territory of Lakshadweep.

Composition of the NCM

The Commission consists of a Chairperson, a Vice Chairperson and five Members to be nominated by the Central Government from amongst persons of eminence, ability and integrity; provided that five Members including the Chairperson shall be from amongst the minority communities. As Jains have also been notified as the minority in 2014, one may expect suitable amendment in the NCM Act soon for giving representation to them in the composition of the Commission.

Functions and Powers of NCM

The powers and functions assigned to the Commission under Chapter III of the NCM Act 1992 are as follows:

The commission shall perform all or any of the following functions, namely:

  • Evaluate the progress of the development of minorities under the Union and the States;
  • Monitor the working of the safeguards provided in the Constitution and in laws enacted by the Parliament and the state Legislatures;
  • Make recommendations for the effective implementation of safeguards for the protection of the interests of minorities by the Central Government or the State Governments;
  • Look into specific complaints regarding deprivation of rights and safeguards of the minorities and take up such matters with the appropriate authorities;
  • Cause studies to be undertaken into problems arising out of any discrimination against minorities and recommended measures for their removal;
  • Conduct studies, research and analysis on the issues relating to socio-economic and educational development of minorities;
  • Suggest appropriate measures in respect of any minority to be undertaken by the Central Government or the State Governments;
  • Make periodical or special reports to the Central Government on any matter pertaining to minorities and on particular difficulties confronted by them : and
  • Any other matter which may be referred to it by the Central Government.

2) The Central Government shall cause the recommendations referred to in clause ( c) of sub-section (1) to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non- acceptance, if any, of any of such recommendations.

3) Where any recommendation referred to in clause (c) of sub-section (1) or any part thereof is such with which any State Government is concerned, the Commission shall forward a copy of such recommendation or part to such State Government who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken of proposed to taken on the recommendation relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations or part.

4) The Commission shall, while performing any of the functions mentioned in sub-clauses (a), (b) and (d) of sub-section (1) , have all the powers of a civil court trying a suit and, in particular, in respect of the fallowing matters , namely:

  1. Summoning and enforcing the attendance of any person from any part of India and examining him on oath;
  2. Requiring the discovery and production of any document;
  3. Receiving evidence on affidavits;
  4. Requisitioning any public record of copy thereof from any court or office;
  5. Issuing commissions for the examinations of witnesses and documents; and
  6. Any other matter which may be prescribed.

Complaints and Monitoring Mechanism

The members of the notified communities can directly approach the Commission for redressal of their grievances. The Commission maintains a Complaint Monitoring System and regularly updates the status of the complaints at its official websites. The Commission receives hundreds of complaints every year. These complaints are mostly related to police atrocities, service matters, minority educational institutions and encroachments to religious properties. The Commission received 15134 complaints during 2000-2005. It received 2439, 2127, 2639 complaints during the years 2011-12, 2012-13 and 2013-14 respectively. The number of complaints received by the Commission shows people’s trust in it. At the same time, it also highlights the fact that minorities need special institutional arrangement for redressal of their grievances. However, if we compare the number of complaints brought before the NCM with the National Human Rights Commission (NHRC) which receives about one lakh complaints every year it is lesser. One of the reasons for this is the fact that the NCM does not have enough powers to deal with the complaints to the satisfaction of the people. NHRC attached with the Ministry of Home Affairs and with wide powers of investigation and inquiry carries more weight. The Commissions for SCs and STs with constitutional status are better placed to discharge their duties as the departments and agencies of the government cannot afford to easily ignore to respond to the communications of the constitutional bodies.

State Minorities Commissions

Out of 29 states in India 16 have constituted State Minorities Commissions. Andhra Pradesh, Assam, Bihar, Chhattisgarh, Delhi, Jharkhand, Karnataka, Maharashtra, Madhya Pradesh, Manipur, Rajasthan, Tamil Nadu, Uttarakhand, Uttar Pradesh and West Bengal have also set up State Minorities Commissions in their respective States. Their offices are located in the State capitals. The functions of these Commissions, inter-alia, are to safeguard and protect the interests of minorities provided in the Constitution and laws enacted by Parliament and the State Legislatures. As minorities are dispersed in all states of India, it is important that all remaining states make institutional arrangements for redressal of genuine grievances of minorities.

NCM and Powers of Inquiry and Investigation

The NCM under the National Commission for Minorities Act, 1992 is required to evaluate the progress of the development of minorities under the Union and the States; to monitor the working of the safeguards provided in the Constitution and in laws enacted by the Parliament and the state Legislatures; to make recommendations for the effective implementation of safeguards for the protection of the interests of minorities by the Central Government or the State Governments; and to look into specific complaints regarding deprivation of rights and safeguards of the minorities and take up such matters with the appropriate authorities. It is quite easily discernable that discharge of these functions and responsibilities requires powers of inquiry and investigation for the Commission. The NCM itself has been feeling the need and recommending to ‘arm it with the powers exercisable under the Commissions of Inquiry Act 1952’. However, this repeated recommendation of the NCM never found favour from the government and the Commission continues to remain a toothless watchdog of minority rights. In the absence of the powers of inquiry and investigation the powers of a civil court granted to the Commission under the Act of 1992 do not carry much weight as the Commission has to rely fully on the reports made and inquiries conducted by the agencies which are often blamed for anti-minority biases.

Annual Reports submitted by the NCM

The Government obligated the Commission to submit an Annual Report to the President detailing its activities and recommendations. The Commission was also authorized to submit Special Reports to the Government at any time they consider necessary on the matters within their scope of work. The Government on the other hand ensured in the Resolution that the Annual Report together with a Memorandum outlining the action taken on the recommendations and explaining the reasons for non-acceptance of a recommendation, if any, in so far as it relates to the Central Government, will be laid before each House of Parliament.

The National Commission for Minorities Act 1992, which provided statutory status to the Commission besides retaining the provision of submission of Annual Report by the Commission and tabling of such Reports in the Parliament by the Government also included inter alia:

Where any recommendation referred to in Clause (c) of Sub-Section (1) or any part thereof in such with which any state Government is concerned, the Commission shall forward a copy of such recommendation or part to such state Government who shall cause it to be laid before the legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendation relating to the State and the reasons for the non-acceptance, if any, of such recommendation or part.

Thus, the Annual Reports submitted by the Commission are in fact the progress report of the Commission. Hence, one of the ways to evaluate the performance of the Commission is to critically examine its Annual Reports. These Reports are also the index of minority situation in our country and the action taken by the Government is an exposition of its sincerity towards minorities and their problems.

The annual reports of the NCM are sometimes criticised for being too inadequate to compress the genuine problems of minorities. Moreover, the Commission’s reports generally lack data and statistics and comparative analysis. For instance, the NCM does not maintain separate data of members of minorities killed in police custody, alleged fake encounters, and police firing etc., although it is often blamed that disproportionately high number of members of minorities are killed in fake encounters. It is also important to note that the NCM failed to submit its annual report of 1992-93.The year 1992-93 was unique and perhaps sad in the history of the Minorities Commission. During this period the Commission functioned without a Chairman and unfortunately no Annual Report was ever prepared for this financial year. Tahir Mahmood noted this malfunction of the Commission and observed that:

“It was during this year, 1992-93, that the status of the Minorities suffered the biggest and most violent jolt in Independent India- in the form of the anti-Constitutional vandalism and wanton sacrilege leading to daylight destruction of the religio-historic monument in the holy city of Ayodhya, known as the Babri Masjid. The Commission had nothing to say or report about this most heinous crime against the Nation’s honour. Was it, then, just a lapse or deliberate escapism? There is no justification at all why 1992-93 was treated as Zero year and no report was ever submitted for it not even by the next Commission”.

Despite all these there is no doubt in it that the Commission has highlighted very important issues of religious minorities in India through its annual reports and special studies. Many of its recommendations got the attention of the government and necessary actions were taken. However, the delay in tabling of the reports before the Parliament and lack of enthusiasm of the members of Parliament in initiating discussions and debates on the issues highlighted in these reports are often criticised by the media and the Commission itself.

Role of NCM

An authentic account of the role and functions discharged and challenges faced by the Commission is found in the pioneering book of Tahir Mahmood titled “Minorities Commission: Minor Role in Major Affairs”. Since the book has been authored by a person who himself chaired the Commission, it must be taken as an authentic exposition of the role and functions discharged and challenges faced by the Commission. Besides, the Government of India has obligated the Commission to submit Annual Report to the President of India detailing its activities and recommendations. Hence, these annual reports are the index of the Commission’s performance and progress made by the minorities under the aegis of the Commission. The Commission was also authorised by the Government to submit special reports on the matters within their scope of work. The Central Government on the other hand has to table these reports before each House of Parliament along with a memorandum explaining the action taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any of such recommendations. Thus the Government’s treatment of these reports and action taken on the recommendations is an exposition of its sincerity towards minorities and their problems.

It is often complained that the annual reports of the Commission and special studies conducted by it do not get due attention of the government. These reports are not tabled in the Parliament on time. Its recommendations are also not given due attention. In fact, there is lacuna in the NCM Act 1992 as it does not prescribe any time limit under which the annual report of the Commission is to be compulsorily tabled in the Parliament with Action-Taken report by the Government. As a result the annual reports of the Commission gather dust in the store houses of the concerned Ministry and the Commission respectively. This has greatly undermined the prestige of the Commission and therefore it has been reduced to the status of an ornamental body to provide lip service to the oppressed and aggrieved minorities. Unless the reports are tabled in the Parliament, they cannot be made public. Therefore, nothing can be known about the problem of minorities through the NCM in this situation.

Moreover, the Commission faces problem in discharging its duty of safeguarding the rights of minorities as it does not possess adequate powers. It can be easily understood that the nature of the work assigned to the NCM demands that it must possess the power of investigation. However the Commission has not been given any such power despite the statutory recommendation for suitably amending the NCM Act, 1992 to confer powers of investigation to the Commission’ on the pattern of those given in the Protection of Human Rights Act, 1993. 29The NHRC is also a statutory body like the NCM but the former has powers of investigation and inquiry which makes it more effective and performing body and the later in the absence of the same is reduced to a toothless watchdog of minority affairs.

Conclusion

The foregoing discussion leads us to conclude that the root of the NCM lies in our freedom struggle. In fact, the leading actors of the freedom struggle were convinced that an additional institutional arrangement was necessary in independent India to allay the fears of minorities and ensuring the enforcement of constitutional safeguards proposed to be provided to minorities. The Partition of the country in 1947 resulted first in the abolition of the real safeguards of quota in public bodies and government services and second to their marginalisation in all walks of life. Whatever other rights were guaranteed by the Constituent Assembly remained also unrealized. However, the demand for institutional arrangement for ensuring the effective implementation of the safeguards to minorities remained a major issue during the Constituent Assembly debates even after the Partition of India. The demand remained an unrealized dream until 1978 when the Government of India created a central Minorities Commission by a Resolution. The NCM Act, 1992 provided it a statutory status. During this period (1978-1992), the Government made some half-hearted abortive attempts to accord a constitutional status to the NCM.

The debates in Parliament on the Bill to give a statutory status to the Minorities Commission reflect the misgivings and unfounded apprehensions towards the very idea of any special institutional arrangement for the minorities. The debates that followed the introduction of the Bill are also reflective of ignorance of most of the honourable members regarding minority rights and their postulates. Many members, however, showed their insight on minority issues and their commitment to promote the cause of the minorities. The Bill finally became the NCM Act 1992. The Act so passed is quite encouraging for the minorities but it suffers from many weaknesses rendering the National Commission for Minorities ineffective. As the bill for granting a constitutional status to the NCM has already been introduced in the lower house of Indian Parliament and subsequently referred to the Parliamentary Standing Committee on Social Justice and Empowerment one may hope that the Government will make the Commission an effective body to deal effectively with the issues and challenges faced by the minorities in India.

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Reference

  1. Constitutional Provisions of the Sapru Committee, Padma Prakashan, Bombay, 1945.
  2. B. Shiva Rao, The Framing of India’s Constitution: Select Documents, Vol. II
  3. Manju Subhash, Rights of Religious Minorities in India, National Book Organization, New Delhi, 1988
  4. Tahir Mahmood, Minor Role in Major Affairs, Pharos Media & Publishing, New Delhi, 2001.