8 Protection of Interests of Minorities And Constitutional Safeguards

Dr.Shilpa Jain

INTRODUCTION:

Minority rights have gained greater visibility and relevance all over the world. India is no exception to it being a multi-ethnic, multi-religious, multi-linguistic and multi-cultural society. Diversity of all types is the very soul of India. It is in this context that minority rights have assumed added significance in post-independence India. When India attained independence after its division on religious lines, religious minorities became very apprehensive of their identity.

The prevention of discrimination seeks to secure that everyone, as individuals, are treated on an equal basis. In the human rights system the state is the nexus or the focal point, where the rights are organized and balanced. The duty of the state imposes an obligation on the state not to discriminate, protect individuals against social discrimination and to take affirmative action in order to compensate for past discriminations.

After World War II, the world’s minorities locked within the state have increased tremendously rather than decreasing in numbers. So far as our nation is concerned, the trajectory reveals that India has almost always had a complex nature of population. The Constitution of India has give recognition to a number of languages in the Eighth Schedule and there exists five religious groups which have been given the statutory status of National Minorities to the communities namely, Muslims, Jains, Sikhs, Buddhists and Parsees. The framers of the Constitution bestowed considerable thought and attention upon the minority problem in all its facets and provided constitutional and statutory safeguards; yet the issue has evaded solution till today. Consequently, the progress of minorities in India is beset with problems including those of prejudice and discrimination.

QUESTIONS ABOUT PROBLEMS BETWEEN THE MAJORITY AND MINORITIES THAT ARISE ARE:-

• What status has the polity granted to its minorities?
• What are the problems faced by the minorities especially in the context of inclusion and exclusion in state- building in post-colonial India?
• How are they able to assert themselves?
• What is the role and extent of their participation in politics and socio-economic developments?
• What is the extent of prejudice and discrimination faced by them?

Today minority rights have introduced two new magnitudes into democracy. First, they made community a legitimate subject of political dialogue; and second, they placed the issue of inter-group equality on the agenda. The Indian experience also reveals that minority rights present two important tribulations for a democratic polity. One, minority rights privilege the community’s cultural practices over the principle of equal rights for all citizens. Two, recognised minorities are not always sensitive to the plight of internal minorities. Thus, while special safeguards provided to identified minorities curb the hegemony of any one community or the nation-state, they do not guarantee free and equal status to all groups and communities in society.

Almost all States have one or more minority groups within their national territories, characterized by their own ethnic, linguistic or religious identity which differs from that of the majority population. Harmonious relations among minorities and between minorities and majorities and respect for each group’s identity are a great asset to the multi-ethnic and multi-cultural diversity of our global society. Meeting the aspirations of national, ethnic, religious and linguistic groups and ensuring the rights of persons belonging to minorities acknowledges the dignity and equality of all individuals, furthers participatory development, and thus contributes to the lessening of tensions among groups and individuals.

Minority rights have acquired greater concern and relevance all over the world. India is no exception to it being a multi-ethnic, multi-religious, multi-linguistic and multi-cultural society. Diversity of all types is the very soul of India. It is in this context that minority rights have assumed added significance in post-independence India. When India attained independence after its division on religious lines, religious minorities became very apprehensive of their identity. In order to compensate the members of discriminated groups who were placed at a disadvantage Article 15 (1) 2 of the constitution of India specifically bars the State from discriminating against any citizen of India on grounds only of religion, race, caste, sex, place of birth or any of them. Further, Article 29(2) also guarantees protection to citizens against State action which discriminates admission to educational institutions on ground of religion, race, caste or any of them. This being the position, soon after the coming into the force of the constitution, challenges were made to governmental programmers aimed at making special provision for weaker sections of society in the field of education and housing.

DEFINING MINORITY:

The term ‘minority’ shall include only those non dominant groups in a population which possess and wish to preserve ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the population.

Louis Wirth defined a minority group as “a group of people who, because of their physical or cultural characteristics, are singled out from the others in the society in which they live for differential and unequal treatment, and who therefore regard themselves as objects of collective discrimination.”

According to Francesco Capotorri UN Special Rapporteur in his report5 has laid down what constitutes a minority: A group, numerically inferior to the rest of the population of a State, in a non-dominant position, whose members- being nationals of the State- possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.

CONCEPTUALIZATION OF SCHEDULED CASTE AND BACKWARD CLASSES

The earliest reference to the Caste System is found in Rig Veda in which it mentioned that there exists four castes which originated from Brahma, the Supreme Being. The Brahmin came from mouth, Kshatriyas from his arms, Vaishyas from his thighs and Sudras from his feet. This meant that Brahmins were the instructors of mankind, Khastriyas were the warrior class and Vaishyas and Sudras were agriculturalists and servants respectively.6 There existed a great difference between the first three and the last one. The present day Scheduled Castes were included in the category of Sudras. Sudras were associated with unclean occupations like night soil and throwing of dead animals etc. that time the whole caste system was on the basis of occupations carried on by people but gradually the whole system became very rigid and came to be conferred by birth which cannot be changed till the death of the person. With the advent of Britishers in India they played a dominant role in the awakening of India towards the plight of these Scheduled Castes. They ushered the principles of complete equality and justice irrespective of race, colour, caste, creed, religion etc. Subsequently, after the independence of India with the coming of Constitution of India efforts were made to uplift the social status of the minorities.

The Constitutional Assembly was very much concerned about the issue of protection of minorities and other weaker sections of this country. The Constitutional Advisory Committee envisaged in the Cabinet Mission Plan and chaired by Sh. Vallabh bhai Patel, was appointed on January 24, 1947 with adequate representation from all communities and sections of the society. The Committee deliberated various matters in two Sub- Committees; the Fundamental Rights Sub- Committee and Minority Sub-Committee. The Assembly accordingly provided representation on the basis of proportional representation and for the Swiss style protected reservation in the Legislative Assemblies and the House of People for the Anglo- Indian Minority, the Scheduled Castes and the Scheduled Tribes. Scheduled Castes and Scheduled Tribes and Backward Classes have also provided Constitutional Protection in certain matters.

A Caste can be and more often it is a Social Class of a person. It is a status of a person acquired by him from his birth. Caste is unchangeable. One is not allowed to change his Caste by adoption or marriage. Scheduled Caste includes such castes, races, tribes who have been classes by society as ‘Untouchables’. 7 The institution of slavery followed in the form of a caste system which is followed by untouchability which has no parallel in the history of human ace anywhere else in this world. The term ‘Scheduled Class’ was adopted for the first time in the year, 1935, when the lowest ranking Hindu castes was enlisted in schedule appended to the Government of India Act for the purpose of statutory safeguards and other benefits to them. But these people were called by various names in the society such as exterior classes, depressed classes, outcastes, untouchables and dalits etc. This whole grievances of minorities owes its origin to an age old varna system whereby various castes in the society have concrete and measurable boundaries and had peculiar characteristics like fixed occupations and rituals and practices etc.

These ‘untouchables’ are legally freed but not yet liberated of socio- economic inequalities. Whether a caste is a Scheduled Caste or not is exclusively decided by an order of the President of India. However, the order by President may be modified by the law made by Parliament.

On the other hand, Backward Classes belong to the “socially and educationally backward”9 section of the Indian population. Caste can also be classified as a class, if that class as a whole is socially and educationally backward; reservation can be made in favour of such a caste. The criterion for identification of Backward Classes is different from the criterion for identification of Scheduled Castes. The Backward Classes can be identified by the Central and State Governments on the basis of criteria recommended by Commission or Committee constituted under Article 340 of the Constitution of India, 1950. The Kelkar Commission (1955) and Mandal Commission (1980) were accordingly constituted under Article 340 to identify these classes in the country. No fixed criteria for identification of “Other Backward Classes” had been provided by the Kelkar Commission. The Mandal Commission held that “socially and educationally backward” need not necessarily “economically backward classes”. The Commission found that class backwardness was a phenomenon of low caste. Hence, the criterion for deciding backwardness of a class has been fixed as follows:

• Low social position in the traditional caste hierarchy of the Hindu society;
• Lack of general educational opportunities for the major section of a backward class or community;
• Inadequate or no opportunity in the matters of public service; and
• Inadequate representation in trade, commerce and industry.

The “Other Backward Classes” as per Government of India’s Notification dated September 8, 1993, comprise Castes and Communities which are found common in the list of the Mandal Commission and the individual State governments.

CONSTITUTIONAL PROVISIONS GUARANTEEING PROTECTION OF SCHEDULED CASTES AND BACKWARD CLASSES

Recognizing the special needs of Scheduled Castes and Backward Classes, the Constitution of India not only guarantees then equality before law (Article 14) but also enjoins the State to make special provisions in the favour of Scheduled Castes, Scheduled Tribes and Backward Classes for their upliftment in the society [Article 15(4)]. It also empowers the State to make provision for reservation in appointments or posts in the favour of any backward class citizens [Article 16(4)].

Protection of Social Interests:

• Equality before law (Article 14)
• Special provision for the advancement of any socially and educationally backward classes including SCs and STs [Article 15(4)]
• Abolition of  ‘untouchability’  and  its  protection  in  any  form  is  forbidden (Article 17)
• Appointment of Commission to investigate the conditions of socially and educationally backward classes (Article 340)
• The right of all minorities to establish and administer educational institutions of their own choice (Article 30)
• To specify the castes and tribal communities deemed to be SCs and STs (Article 341 and 342).

Protection of Economic Interests:

• To promote with special care the educational and economic interests of the weaker sections and in particular to the SCs and STs and protect them from any social injustice and all forms of exploitation (Article 46)
• Special Financial Assistance Fund is charged from the Consolidated Fund of India each year as grant-in-aid for promoting the welfare of STs and the development of Scheduled Areas [Article 275(1)]
• The claims of SCs and STs to appointment in services (Article 335)

Protection of Political Interests:

• Administration and control of the Scheduled Areas and Scheduled Tribes in any State (Article 244 and 339)
• Reservation of seats for SCs and STs in the House of People and Legislative Assemblies of the States (Article 330 and 332)
• Likewise, a number of Constitutional provisions exist for protection and promotion of the interests of these socially disadvantaged groups.

Article 21 of the Indian Constitution clearly stipulates: “No person shall be deprived of his right of personal liberty except according to procedure established by law.” The fact that the Minorities are not getting protection of life and personal liberty is manifest in the various government Acts and rules passed by Parliament to give special protection to the Scheduled Castes but these are not applicable to the Minorities of Scheduled Caste origin during atrocities. These Acts and rules include Protection of Civil Rights Act 1955, Protection of Civil Rights Rules, 1977 and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. All these Acts and rules are supposed to give the SC (Dalits) special protection and rights against various kinds of atrocities and oppressions meted out to them by the people of so-called upper castes of forward classes. But this protection is not made available to Minorities.

PROTECTION AND PROMOTION OF MINORITY RIGHTS: ROLE PLAYED BY INDIAN JUDICIARY

The Indian Judiciary is playing the role of safeguarding the rights of the forty nine who are in minority in India and have been on disadvantaged position .When the Constitution of India under Article 15 (1) and further under Article 29(2) gave protection to the minorities challenges were made to governmental programmers aimed at making special provision for weaker sections of society in the field of education and housing. Two judicial decisions, one of the Supreme Court and the other of the Bombay High court led to the first Amendment of the constitution in 1951.

The first Supreme Court decision in State of Madras v. Champakam Dorairajan10

This case was with regard to admission of students to the Engineering and Medical Colleges of the State, the Province of Madras had issued an order (known as the Communal G. O.) that seats should be filled in by the selection committee strictly on the following basis, i.e., out of every 14 seats, 6 were to be allotted to Non-Brahmin (Hindus), 2 to Backward Hindus, 2 to Brahmins, 2 to Harijans. 1 to Anglo-Indians and Indian Christians and 1 to Muslims:

It was held by the Full Court that the Communal G.O. constituted a violation of the fundamental right guaranteed to the citizens of India by Art. 29 (2) of the Constitution, namely, that “no citizen shall be denied admission to any educational institution maintained by the State or receiving aid out of the State funds on grounds only of religion, race, caste, language or any of them and was therefore void under Art.13.The directive principles of State policy laid down in Part IV the Constitution cannot in any way override or abridge the fundamental rights guaranteed by Part III. On the other hand they have to conform to and run as subsidiary to the fundamental rights laid down in Part III.

In Jagwant Kaur v. State of Bombay11 In this case an order of the collector of Poona under Sec 5 of the Bombay Land Requisition Act for requisitioning Some land in Poona for establishment of a Harijan camp was challenged as violation of Article 15(1). The basis of challenge was that a colony intended for the benefit only of Harijans was discriminative under the above Constitutional provision. Further it was held that Article 46 could not over ride a fundamental right. Consequently the order was declared void.

At the time of decision in the case (18-2-1952) presumably, the first amendment had not come into effect Chief Justice Chagla had observed, “we may that after the amendment it would be possible for the State to set up a Harijan colony in order to advance the interest of the backwards class. But till that amendment was enacted as Article 15 stood, it was not competent for the State to discriminate in favour of any caste or community. Thus it may be pointed out that it was these two decisions, which led to the amendment of Article 15. The first amendment incorporated clause 4 to Article 15 empowering the State, to make special provisions for the advancement of any socially educationally backward classes of citizens or for the Schedule Castes and Schedule Tribes, despite Article 15(1) or clause(2) of Article 29. The object of first constitutional amendment was to bring Article 15 and 29 in line with Article 16(4) which empowers the State to make Special Provisions for the Backward classes in matters of public employment.

The addition of clause (4) to Article 15 opened doors for several petitions before the court and the courts have wavered on the interpretation of this clause in several cases. The reason behind this is that the constitution does not state who are to be covered under “backward classes” and there can be how much reservation. But the constitution is not silent it allows the president to set up a commission to investigate into the condition of people in states and then classify them as backward under art 34012, as required. Additionally Art 33513 says that special provisions for SC/STs should be taken into consideration, consistently with the efficiency of the services.

CONTRIBUTION OF JUDICIARY IN CHANGING THE DIRECTION OF RESERVATION IN INDIA:

There has been a series of cases after the addition of clause 4 to Article 15 and these cases gave rise or directions to Reservation system in India. In Balaji v. State of Mysore14 it was held that reservation cannot be more than 50%, the classification of backward and more backward is invalid and caste cannot be the only criteria for reservation because Art 15(4) talks about class and class is not synonymous with caste. So other factors such as poverty should also be considered.

Further Supreme Court held the “carry forward rule” as unconstitutional in the case of Devedason v. Union of India 15.As per carry forward rule posts that could not be filled due to lack of candidates in backward classes would be filled by regular candidates but the same number of additional posts would be reserved in the next year. This caused the amount of reservation to go above 50%. SC held that power of Art. 16(4)16 could not be used to deny equality of opportunity for non-backward people.

In Janki Prasad v.. State of J&K 17 the Supreme Court did not consider poverty as exclusive test for judging socially and educationally backward classes because that would convert a large portion of population of India to backward classes of citizens.

In State of M.P. v. Kumari Nivedita Jain18 the order of State Govt. for saving even then Minimum Percentage of marks for candidates of Sc/ Stc and weaker sections in admitting them for M.B.B. S Classes was not considered as volatile of Article 14 and 15 . But in Miss Arti Sapru v. State of J&K19 the 25% reservation made in favor of SCs/STs and educationally backward class candidates classifications within the meaning of Article 15. The Court further held that the state has not provided any intelligible data or material through which such wisdom was applied for the inspecting of the Court. Hence the reservation on the basis of region is invalid.

The court in State of U.P. v. Pradeep Tandon20 did not approve reservation for the rural areas as justifiable reservations because 80% people live in rural areas and it cannot be a homogenous class by itself. The rural element does not make it a class, so on the basis of poverty alone backwardness cannot be judged since poverty is found in all parts of India.

In the case State of Kerala v. N M Thomas SC held that the relaxation of 2 years given to SC/STs in State of Kerala for passing certain test for promotion is valid. It held that the relaxation does not cause reduction in the efficiency because such people will have to pass the test anyway. It further held that special provisions for SC/STs could be made even under 16(1) and not only under Article 16 (4). This is because the classification has a clear and reasonable nexus with the aim and objectives of the upliftment of the backward classes of population of India. Building upon the case of N M Thomas, in Akhil Bhartiya Soshit Karamchari Sangh (Rly) v. Union of India21 SC upheld that reservation could be done even without 16(4) because art 16(1) has to be read in light of art 14, which permits classification based on intelligible differentia and a justifiable nexus with the objective. It further held that “carry forward rule” is valid if the reservation does not become excessive. It held that exact mathematical calculation of 50% is not required in solving human problems but reservation should not be excessive. In this particular situation, 64.4% was not considered excessive. 50% limit was not a strict limit but only a guideline.

Further in Indra Sawhney v. Union of India22popularly known as Mandal Commission Case it was mandated that reservation ordinarily should not exceed 50% upholding carry forward rule subject to overall ceiling of 50%. It is submitted that this view is correct as reservation is an exception to the general principle of equality and as such an exception cannot exceed the main principle. Moreover even the founding fathers of Indian Constitution envisaged reservation much below than 50%23. Another important contribution of the Judiciary has been to limit reservation to initial appointment and not to apply it to further promotions.

Another connected issue with promotion is the determination of seniority .This issue cropped up in Union of India v. Virpal Singh Chauhan24The court held that when a person is promoted on the basis of reservation, he shall not be entitled to seniority in the feeder category and as soon as a general candidate having seniority in feeder category is promoted , he regains his seniority. In D.G. Vishwanath v. State Of Mysore 25 the reservation made for backward bases on the basis of occupation, income ,residence and caste was challenged and the court held that such an order was unjustified .In Chitralekha v. State Of Mysore 26 the Supreme Court held that though the caste of a group of citizen might be a relevant circumstance for ascertaining their social backwardness, it could not be the sole or dominant test in this behalf. The court respected the criteria adopted by the Mysore government for ascertaining the backwardness that should be social and educational backwardness, similar to backwardness from which the scheduled castes and scheduled tribes have suffered.

The SC departed from the Chirtalekha approach with the passage of time in P. Rajendra v. State Of Madras27 the rules adopted by the govt. of madras for regulating admission to medical colleges provided for reservation of seats for socially and educationally backward classes specified in the appendix to that order the order was challenged as violative of article 14&15 on the ground that list in that order was nothing but actually a list of certain castes only. the supreme court held that was nothing but actually a list of certain castes only the supreme court held that a must not be forgotten that a caste is also a class of citizen and if the caste as a whole is socially and educationally backward reservation be made is favor of such a caste on the ground that it is socially and educationally backward class of citizens within the meaning of Art 15(4) the court further held that in the present case the list of socially and educationally backward classes has been specified by caste it does not necessarily mean that caste is the sole consideration .If the entire caste is found socially and educationally backward on the basis of relevant facts, the caste as a whole may be regarded as backward class.

The Supreme Court, after considering the various aspects of reservation in series of cases analyzed, examined, scrutinized and reviewed the constitutionality of the reservation system under Article 15(4), 16(4) and 340 in modern perspective in well reasoned and elaborate case of K.C. Vasanth Kumar Vs. State of Karnataka28 in which a bench of the Supreme Court consisting to Y.V. Chandrachud, J.J. D.A. Dasai, O. Chinappa Reddy, A.P. Sen and E.S. Kenkaratamiah, J.J. held that the reservations in favour of scheduled castes, scheduled Tribes and Backward classes must continue as it is in the present form and for a further period not exceeding fifteen years. But the policy of reservation in employment, education and legislative Institutions should be reviewed after five year or so.

The criterion to judge the backwardness should be the economic backwardness and reservation should not cross a reasonable limit of preference and discrimination. Recently the Supreme Court in Dr. Fazal Gaffar’s case held that there should not be any reservation in the field of specialties. If however, preference has to be given, it should not exceed 35% of total quota.

CONCLUSION

An analysis of the series of cases stated above it can be stated that the comparison of socially and educationally backward classes with the scheduled castes and scheduled tribes in Article 15(4) the reference to scheduled castes and scheduled tribes were to be construed as including such backward classes as the President may by order specify on receipt of the report of the Commission appointed under Article 340(1) shows that in the matter of backwardness they are compared to Scheduled Castes and Scheduled Tribes. The concept of backward classes is not relative in the sense that any class which is backward in relation to the most advanced class in the community must be included in it. Hence the division of backward classes into backward is unconstitutional. The backwardness should be social and educational and not either social or educational.

Article 15(4) refers to backward classes and not backward castes. The test of caste would break down in respect of communities which have no caste. In the present India Society caste, of course is a relevant factor in determining social backwardness but it is not the sole or dominant test. In the light of the latest decision of the Supreme Court (State of U.P. v. Pradeep Tandon) caste is not a synonym for class. This case reiterated the Balaji approach. The Socially and educationally backward classes of citizens are groups other than groups based on caste. Classes of citizens mean a homogenous group of people with some common traits and who are identifiable by some common attributes. The homogeneity of the class of citizens is social and educational backwardness. A classification based only on caste without regard to other relevant factors is not violative of Article 15(4). The onus is on the state to prove that the criteria it has adopted in classifying backward classes are constitutionally permissible. Both castes and poverty are important in determining the backwardness.

The occupation followed by certain classes of people which are looked down upon as inferior or unclean and place of habitation may contribute to social backwardness. Rural population as a whole cannot form socially and educationally backward class

The proportion of population of backward classes to the total population of the state for the purpose of reservation for admission to Professional institutions has been held valid. The inclusion of a class in the list of backward classes should not be perpetual, otherwise the whole purpose of reservation would be defeated. Hence the list should be under constant periodical review by the state. The quantum of reservation to be made is primarily a matter for the state to decide. However, it should be limited.

It can thus be concluded that from Champakam Dorairajan to Arun Kumar the facets of reservation scheme has undergone several changes and Judiciary has played a very important and crucial role in shaping this policy and bringing about social justice.

WEB LINKS:

1.TheOriginsofJudicialActivismintheProtectionofMinoritieshttp://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3691&context=fss_papers

2.ConstitutionalandLegislativeProvisionsregardingtheMinoritieshttp://www.sabrang.com/cc/archive/2010/apr10/chapter2.pdf

3.MinorityRights:InternationalStandardsandGuidanceforImplementationhttp://www.ohchr.org/Documents/Publications/MinorityRights_en.pdf