TCN special: Misra Commission report excerpts- Part 2

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Rights of Minorities

The UN Declaration on the Rights of Minorities 1992 enjoins the States to protect the existence and identity of minorities within their respective territories and encourage conditions for promotion of that identity; ensure that persons belonging to minorities fully and effectively exercise human rights and fundamental freedoms with full equality and without any discrimination; create favorable conditions to enable minorities to express their characteristics and develop their culture, language, religion, traditions and customs; plan and implement national policy and programmes with due regard to the legitimate interest of minorities; etc.

In India, Articles 15 and 16 of the Constitution prohibit the State from making any discrimination on the grounds only of religion, race, caste, sex, descent place of birth, residence or any of them. … an absolute equality among all sections of the people regardless of specific handicaps would have resulted in perpetuation of those handicaps. There can be equality only among equals. Equality means relative equality and not absolute equality. Therefore, the Constitution permits positive discrimination in favour of the weak, the disadvantaged and the backward. It admits discrimination with reasons but prohibits discrimination without reason.

Article 15 permits the State to make “any special provisions” for women, children, “any socially and educationally backward class of citizen” and Scheduled Castes and Scheduled Tribes.

Article 16, too, has an enabling provision that permits the State for making provisions for the reservation in appointments of posts in favour of “any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”. … Article 16 speaks of “any backward class of citizens”.

The words ‘class’ and caste’ are not synonymous expressions and do not carry the same meaning. … positive discrimination on the ground of caste or religion coupled with other grounds such as social and educational backwardness is constitutionally permissible and, therefore, under a given circumstance it may be possible to treat a caste or religious group as a “class”. Therefore even though Article 15 does not mention minorities in specific terms, minorities who are socially and educationally backward are clearly within the ambit of the term “any socially and educationally backward classes” in Article 15 and ‘any backward class’ in Article 16.

The Supreme Court in Indira Sawhney & Ors. Vs. Union of India, has held that an entire community can be treated as a ‘class’ based on its social and educational backwardness. The Court noted that the Government of Karnataka based on an extensive survey conducted by them, had identified the entire Muslim community inhabiting that State as a backward class and have provided for reservations for them.

The Supreme Court had observed-
“It is, therefore, clear that economic criterion by itself will not identify the backward classes under Article 16(4). The economic backwardness of the backward classes under Article 16(4) has to be on account of their social and education backwardness. Hence, no reservation of posts in services under the State, based exclusively on economic criterion, would be valid under clause (1) of Article 16 of the Constitution.”

… in the chapter of the Constitution relating to Directive Principles of State policy, Article 46 mandates the State to “promote with special care the educational and economic interests of the weaker sections of the people…”

Legal Framework for Protection of Religious Minorities

The law enforcing agencies appear to be harbouring a misconception that the Protection of Civil Rights Act, 1955 has been enacted to protect only Scheduled Castes against enforcement of untouchability related offences. There is, thus, a case for sensitising the law enforcement authorities/agencies in this regard.

The Central Government had constituted a non-statutory Minorities Commission in 1978. in 1992, the National Commission for Minorities was enacted to provide for constitution of a statutory Commission. The National Commission for Minorities was set up under the Act in 1993. The functions of the Commission include:
(a) evaluating the progress of the development of Minorities under the Union and States.
(b) monitoring the working of the safeguards provided in the Constitution and in laws enacted by Parliament and the State Legislatures.
(c) making recommendations for the effective implementation of safeguards for the protection of the interests of Minorities by the Central Government or the State Governments.
(d) looking into specific complaints regarding deprivation of rights and safeguards of the Minorities and take up such matters with the appropriate authorities.
(e) causing studies to be undertaken into problems arising out of any discrimination against Minorities and recommend measures for their removal.
(f) conducting studies, research and analysis on the issues relating to socio-economic and educational development of Minorities.
(g) suggesting appropriate measures in respect of any Minority to be undertaken by the Central Government or the State Governments.
(h) making periodical or special reports to the Central Government on any matter pertaining to Minorities and in particular the difficulties confronted by them.
A Constitution Amendment Bill, viz. the Constitution (One Hundred and Third Amendment) Bill, 2004 has been introduced so as to add a new article, viz. Article 340A to constitute a National Commission for Minorities with a constitutional status. A Bill to repeal the National Commission for Minorities Act, 1992 has simultaneously been introduced.

In terms of Section 13 of the Act, the Central Government shall cause the annual report together with a memorandum of action taken on the recommendations contained therein, in so far as they relate to Central Government, and the reasons for non-acceptance, if any, of any recommendation….. as soon as may by after the report are received to be laid before each House of Parliament.

In the absence of a definite time frame for laying the annual report of the Commission, there has been considerable delay in tabling the annual reports of the Commission in the Parliament. The National Commission on Minorities has submitted twelve (12) annual reports for the years 1992-93 to 2004-05. The annual reports for the years 1996-97, 1997-98, 1999-2000, and 2003-04 have been tabled in the Parliament only recently… there appear to be a case for amendment of the Act so as to provide for a reasonable time frame for the recommendations to be laid, along with memorandum of action taken before the Parliament/State Legislature.

According to the provisions of Clause (9) of article 338 and 338A, the Union and every State Government shall consult the National Commission for Scheduled castes and the National Commission for Scheduled Tribes on all major policy matters affecting the Scheduled Castes and the Scheduled Tribes, respectively. … A corresponding provision does not exist in the National Commission for Minorities Act, 1992. … Therefore, the National Commission for Minorities Act, 1992 needs to be suitably amended with a view to incorporating in it a provision analogous to the provision in article 338(9) and 338A(9). This may instill a sense of confidence amongst minorities about protection of their interests.

A very important mechanism of ensuring the welfare of Scheduled Castes is constitution of a Parliamentary Committee on Scheduled Castes. The successive Committees have been doing yeoman’s work towards safeguarding the interests of Scheduled Castes. Such a mechanism… is expected to be an effective step for ensuring the welfare of religious minorities.

The National Commission for Minority Educational Institutions Act, 2004 was enacted to constitute a Commission charged with the responsibilities of advising the Central Government or any State Government on any matter relating to education of minorities… The Act also provides that if any dispute arises between a minority educational institution and a University relating to its affiliation to such University, the decision of the Commission thereon shall be final.

The Commission discussed the provisions of the Act as amended and felt the need to make clear-cut, concrete and positive recommendations for improving and streamlining the provision of the Act.

Linguistic Minorities

The term linguistic minority or minorities has not been defined. … it has been settled in TMA Pai Vs. Union of India (2002) that a linguistic minority is determinable with reference to the State as a unit.

Article 347 provides that on a demand being made in that behalf, the President may, if he is satisfied that a substantial proportion of the population of a State desire the use of any language spoken by them to be recognised throughout that State or any part thereof for such purpose as he may specify. Article 347 can, thus, be treated as a specific measure directed towards linguistic minorities inhabiting a State…Read in conjunction with article 347, article 350 also affords protection to the language spoken by linguistic minorities. It provides that every person shall be entitled to submit a representation for the redress of any grievance to any officer or authority of the Union or a State in any of the languages used in the Union or in the State, as the case may be.

Article 350-A … provides that “it shall be the endeavour of every State and every local authority within the State to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups… Article 350-A, thus, is an amplification of the cultural and educational rights guaranteed under article 29(1) and article 30(1).

Article 350-B provides for appointment of a Special Officer for linguistic minorities by the President. It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities…

The Commission discussed the applicability of Protection of Civil Rights Act, 1955 to non-Hindus and agreed that all cases of untouchability related offences regardless of religion fall within the purview of the Act. It was felt that the provisions of Prevention of Atrocities (SC/ST) Act, 1989 needs to be extended so as to cover OBCs, Minorities or the socially and economically backwards to protect them from discrimination and atrocities…

The Commission discussed the provisions of Article 29 and 30 and felt that a comprehensive law is required to protect and safeguard the rights of minorities.