This article is an excerpt from Justice Suryakant’s judgment in ‘Aligarh Muslims University v. Naresh Aggarwal (2024).
History of minority rights
The basis of defining the term ‘minorities’ and bestowing associated rights on them have varied significantly across different eras and regions. Indicators such as religion, nationality, ethnicity, and race frequently emerge as markers of minority status across the world. In contrast, the Indian perspective on minorities is broadly categorized as religious and linguistic minorities.
Global history of minority rights
The idea of minority rights can generally be traced back to the ‘Peace of Westphalia’, a set of treaties concluded in the mid-17th century, which sought to give rights to certain religious minorities in newly ceded territories post-war. Hence, globally, the concept of minority rights broadly emerged along the fault lines of religion.
However, the focus on religion changed subsequently with the rise of nationalism in Europe. Since national identities emerged as the primary means of distinguishing insiders from outsiders, the concept of minorities in different instruments—such as the 1815 Final Act of Congress of Vienna—was defined in terms of national groups.
As national identities began to take shape, the notion of minority rights became increasingly intertwined with the quest for international legitimacy. By the time of the 1878 Congress of Berlin, the question of minorities had become a crucial factor in the emergence of new nation-states beyond Western Europe. These States, requiring international recognition, were accordingly required to demonstrate a willingness to comply with a ‘standard of civilization’, which included the protection of minority rights.
This was not merely a moral obligation but a strategic tool for gaining acceptance within the global community. Nations such as Greece, for example, were compelled by powers like France, Great Britain, and Russia to uphold minority rights as a condition for their recognition and support. This momentum of bestowing rights to minorities continued to gain further traction across Europe. For instance, Hungary’s Parliament first proclaimed minority rights in July 1849, followed by their formal codification into Austrian law in 1867.
Similarly, Belgium joined the movement in 1898. Although this era did not achieve universal respect for minority rights, it marked a pivotal shift, with these categories of rights increasingly taking centre stage in international negotiations and settlements, particularly in the aftermath of conflicts.
The mid-19th century also witnessed the gradual upliftment of historically-oppressed groups, such as the African-Americans, who constituted the largest minority in the United States. The American Civil War of the 1860s culminated in the issuance of the Emancipation Proclamation by Abraham Lincoln in 1863. This landmark decree effectively abolished slavery and guaranteed freedom to all African-Americans. This progress was further bolstered by the 14th Amendment of 1868, which granted various civil rights to all citizens.
This trajectory of liberation extended into the early 20th century, with the League of Nations making the establishment of a minority state system one of its key priorities. The new Nation-States that emerged in East-Central Europe post-1919 were so ethnographically diverse that recognising minority rights became essential. The victorious powers understood that ethnic dissatisfaction with the territorial status quo could potentially escalate into domestic and even international violence.
Thus, the rights of minorities became a prerequisite for independence, as well as a condition for war reparations or admission into the League of Nations. A notable example is the Polish Minority Treaties of 1918, which granted special and presumably temporary rights in areas such as education, allowing minorities to read and learn their preferred languages.
The growing significance of minority rights during this period is further exemplified by several cases before the Permanent Court of International Justice (PCIJ). In a 1923 case of the Rights of Minorities in Upper Silesia, the PCIJ affirmed that individuals should have the autonomy to decide their minority affiliation.
Similarly, in the 1930 Greco-Bulgarian communities case, the PCIJ emphasized the rights of minorities to uphold and preserve their traditions, clarifying that a ‘community’ under the subject-Convention referred to a group united by race, religion, language, and traditions, and that such a community could possess property distinct from any individual comprising it.
Further, in Minority Schools in Albania, decided in 1935, the PCIJ explored the interrelation between minority status and cultural identity while addressing the religious and educational autonomy enjoyed by the Greek communities of Albania. The PCIJ concluded that the essence of minority treaties was to ensure de facto equality for minorities, thus enabling them to maintain their cultural distinctiveness through a specialized minority regime.
In this manner, the historical development of minority rights from the 16th to 20th centuries illustrates a progressively advancing standard of rights accorded to these groups. Initially, minority status was primarily defined by religious affiliation; however, over time, nationality and linguistic identity became key criteria. This evolution reflects a broader international understanding of minority groups. There have been instances where the dominant majority has also actively sought to empower these minorities, highlighting the complex interplay between oppression and advocacy throughout history.
Minority rights in India
The trailing analysis put forth hereinabove sets the context to hereafter understand the Indian experience with minority rights. However, any discussion of minority rights in India must begin with appreciating its unique and vibrant nature, characterized by its rich mosaic of cultures, religions, and languages.
As a melting pot of cultures, India is home to a diverse array of different communities. One such example is the Parsis, who came to India from Persia—escaping persecution by the then Arab conquerors—and have since established themselves as one of the most prosperous communities in India. Another important minority is the Sikhs, who follow Sikhism, which “is believed to be a deep synthesis of divine virtues, ceaseless, remembrance, relentless service of mankind, equality of mind, and ephemeral nature of the world besides the defiance of tyranny and fighting for righteousness”.
These instances, among others, provide ample historical evidence supporting India’s tradition of tolerance, as embodied in the notion of ‘Vasudeva Kutumbakam’, where all communities have flourished and seamlessly integrated into Indian culture. It was only with the advent of British rule in India that longstanding religious, caste, linguistic and regional ethnic tribal entities that had existed in India for centuries began to receive renewed scrutiny.
The late 19th century, particularly after the Revolt of 1857, saw an increasing incorporation of Indians into the colonial government. This increasing inclusion of Indians in British institutions forced imperialists to address how Indians were to be represented, leading to the concept of group-based representation. They were initially defined by religious terms—evident in the first Indian Census of 1872, which classified Indians by religion—the representation later expanded to include caste and racial categories. Subsequent censuses further sought to amalgamate oppressed castes of India into a single all-India category of ‘Depressed Classes’.
The concept of linguistic minorities
History indicates that during the British Rule, Hindi was sought to be projected as the language of the majority community. In this vein, the British decided to introduce the permissive use of the Devanagari script in the Courts of the North-Western Provinces and Oudh, with a view to undermine the influence of the Mughal elites.
From the late 19th century onwards, there seemed to be murmurs against the perceived imposition of Hindi language, in regions where other languages were spoken. These concerns were endeavoured to be redressed by reorganising and carving out new States, predominantly on linguistic considerations, such as, for instance, the division of the States of Bihar and Odisha.
The reorganization of the States based on linguistic differences gained momentum with the appointment of the Indian Statutory Commission, and subsequently, in April 1938, when a resolution was passed by the Madras Legislative Assembly, unsuccessfully recommending the establishment of four new Provinces from the former Madras Presidency. Ultimately, the States Reorganisation Act, 1956 enabled the division of States on a linguistic basis, aligning administrative boundaries with the linguistic identities of the population.
The concept of religious minorities
In addition to linguistic minorities, the question of rights and privileges for religious minorities also gained prominence. The genesis of this category of minority rights in India can be traced back to the 1909 Morley-Minto Constitutional Reforms, which introduced separate electorates and reserved quotas to protect the interests of one of the minority communities within the evolving political framework.
Following this development, the British government extended similar provisions to other communities, as well as the Depressed Classes, thereby institutionalizing measures for their representation and protection. Subsequently, political organisations seeking to leverage the 1919 Montagu-Chelmsford reforms played a crucial role in consolidating minority identities. The principle that eventually emerged for Indian representation in colonial institutions was that minority groups should be represented in proportion to their population size.
The primary demand of these groups was to secure safeguards against potential dominance by the Congress or the majority community in Indian politics. The 1928 Simon Commission further solidified the foundation of minority rights by recommending the continuation of separate electorates.
At the same time, the 1928 Nehru Report, which influenced the framing of a Constitution for India, laid great emphasis on the safeguards of minorities. However, in a significant departure from the 1916 Lucknow Pact, the Committee rejected the Muslim League’s demands for separate electorates, noting that communal protection was no longer necessary for Hindus and Muslims.
Historical events reveal that after the failure of Round Table Conference of 1930 and 1932, the Colonial Government firstly proposed the Communal Award followed by the Government of India Act, 1935, which was the last major colonial constitutional exercise prior to Independence. This Act reserved seats in Provincial Legislatures for a total of thirteen communal and socio-economic categories. The 1940s then witnessed intense political debates centred on the ‘minority question,’ with various parties negotiating the extent of concessions to be granted to minority communities.
Deliberations by the Constituent Assembly of India
The developments of the last few decades of British rule in India vis-à-vis minority rights directly contributed to the discussions in the Constituent Assembly Debates and the formalisation of safeguards for minorities within the Indian Constitution. In fact, it strengthened the belief of the makers of the Indian Constitution that the Indian State must be formally committed to protecting the distinct cultural, linguistic and religious practices of various communities.
Thus, to streamline the complex task of drafting the Indian Constitution, the Constituent Assembly decided to work through specialized committees. Among these, the Advisory Committee on Fundamental Rights, Minorities, etc., was formed under the leadership of Sardar Vallabhbhai Patel, having proportional representation from all major minority groups. Given the broad mandate of this Committee, it was further divided into five Sub-Committees, one of which was the Minorities Sub-Committee, chaired by Dr. H.C. Mookherjee, a prominent Christian leader.
Soon after, the Advisory Committee prepared the ‘Report on Minority Rights’, which recommended that elections to all legislatures be conducted on the basis of joint electorates, with reservations for specified minorities. Additionally, the Report also proposed reservation in recruitment for minorities. The Report further incorporated suggestions for establishing Constitutional and Administrative mechanisms to address the challenges faced by minorities in India.
The discussions on the Draft Constitution, initiated by Dr. Ambedkar on 21.02.1948, intended to give special attention to minority rights. This then led to the insertion of ‘Special Provisions Relating to Minorities’ (Part XIV – Articles 292 to 301) into the Draft Constitution. This was in addition to the protections granted to all citizens under the Chapter of Fundamental Rights. The proposed Part XIV instead intended to provide political reservations for Muslims, Indian-Christians, Anglo-Indians, Scheduled Castes, and Scheduled Tribes.
Additionally, it envisioned special protection for Anglo-Indians with respect to educational institutions and also addressed minority claims in the realm of public recruitment. Finally, it sought to include administrative checks to ensure the effective implementation and functioning of these constitutional safeguards.
However, these provisions sought to be incorporated under Part XIV were short-lived. The harsh realities of the communal violence following the partition of the Indian subcontinent into India and Pakistan greatly impacted one and all. The conflicts, violence, exploitation, general public disorder and lawlessness during the migration exercise resulted in the deaths of almost one million people, with an estimated displacement of approximately ten to twenty million people.
Naturally, the aftermath of these events sent shockwaves throughout the country. It profoundly affected the Constituent Assembly and the Drafting Committee, particularly in regard to the recognition of communal minority rights. Prior to the Partition, the Assembly had granted religious reservations in legislative bodies. However, these reservations were done away with post-Partition.
The prevailing sentiment was that such measures could foster separatist tendencies and were inconsistent with the principles of a Secular Democratic State. This view was also supported by various Muslim members of the Constituent Assembly. For instance, Mohammad Ismail Khan stated:
46 “[…] Because this reservation of seats would only keep alive Communalism and would be ineffectual as a safeguard for the Muslim minorities or for the matter of that for any other minorities. I congratulate the majority community, that they have not taken advantage of their superiority in numbers, by utilising this device for their own purposes.
The Muslims have been thinking for some time that this reservation was wholly incompatible with responsible Government and I may say that when Provincial autonomy was introduced in the provinces for the first time the Muslims soon began to realize the separate representation was not going to be an effective safeguard for the protection of their interests […]”
Similarly, Tajamul Hussain also emphatically voiced:
“Mr. President, Sir, reservation of seats in any shape or form and for any community or group of people is, in my opinion, absolutely wrong in principle. Therefore I am strongly of opinion that there should be no reservation of seats for anyone and I, as a Muslim, speak for the Muslims. There should be no reservation of seats for the Muslim community. (Hear, Hear). I would like to tell you that in no civilised country where there is parliamentary system on democratic lines, there is any reservation of seats. […]”
Eventually, the Constituent Assembly dropped the proposals to grant varied rights to linguistic and religious minorities, and retained only Articles 29 and 30 to assuage their concerns. These two Fundamental Rights under Part III nonetheless represent a watershed moment in the jurisprudence of minority rights worldwide.