Protection Op Minority Interests Under the Indian Constitution
Total Page:16
File Type:pdf, Size:1020Kb
PROTECTION OP MINORITY INTERESTS UNDER THE INDIAN CONSTITUTION By George Thomas Luis, B. Com,(Madras), LL. M.(Bombay), Advocate, High Court, Bombay Thesis submitted to the University of London for the degree of Ph.D. in the Paculty of Laws School of Oriental and African Studies, University of London, London W.C.l January, 1970 ProQuest Number: 11010625 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 11010625 Published by ProQuest LLC(2018). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 2 ABSTRACT This thesis deals with the provisions of the Indian Constitution which seek to protect minority interests and secure equality of political and civil rights. Chapter I outlines the Indian problem in the larger perspective of minorities generally. It explains the nature of the minorities* problems, defines mino rities and indicates their characteristics. It discu sses the role of law in the protection of minority inte rests, gives the historical background, and evaluates the principle of equality as a basis for the protection of minority interests. Chapter II considers the scheme of political equality envisaged in the Indian Constitution in three principal areas of citizenship, political representation, and the public services. Chapter III deals with the religious interests of minorities, in the context of Indian secularism. The chapter defines religious minorities and religious 3 interests. Autonomy in religious affairs, the right to propagate religion, education, and the safeguarding of communal interests are discussed at length. Chapter IY discusses linguistic and cultural interests. The chapter begins with a general background of the language problem in India, followed by the defi nition of linguistic minorities. Specific minority issues dealt with include the conservation of their lan guage and culture, education, employment, and the use of minority languages for official purposes. The need for a review of safeguards is indicated. Chapter Y deals with socio-economic interests, a relatively new factor in the present context but of special significance in India. The chapter discusses the problem of defining fbackward classes* and considers the measures proposed and implemented for the removal of backwardness. Attention is focused on two issues of particular importance, the removal of social disabilities by law, and the use of protective discrimination to achieve equality. This is followed, in Chapter VI, by concluding remarks. 4 TABLE OP CONTENTS Page 10 • Abstract ... ... 2 Acknowledgement ... ... 10 Abbreviations ... ... 11 Chapter I Introduction ... ... 13 I Nature of the problem of minorities 14 Social aspect •• • • • • 16 Political aspect ... ... 17 II Definition and characteristics of minorities 22 "National*1 minorities ... ... 24 Other minorities ... ... 26 Collective status ... ... 29 Social status and marginal location 30 Quantitative and qualitative aspect 31 Permanence as a condition 33 Types of minorities ... ... 35 Minorities and minority interests m India ... ... 36 5 III The protection of minority interests ... 43 A. The role of law ... ... 43 Individuals interests and group interests ... ... 46 Constitutional guarantees and minority interests ... 50 Law and social change ... 55 B. A brief historical background of the protection of minority interests 59 General background ... 59 Historical background of the Indian Constitution ... 68 17 The principle of equality as a basis for the protection of minority interests ... 74 Chapter II Equality of Political Rights ... ... 88 Definition of political rights ... 89 Democracy and minorities ... 91 I Citizenship ... ... 94 Citizen and the state ... ... 98 Structural aspect of the state ... 99 Secular democracy ... ... 101 Single citizenship and communalism 102 6 II Political participation ... ... 106 A* Universal franchise ... 106 B. Representation in government ... 110 The system of proportional representation ... ... 113 Separate communal electorates 116 Reservation of seats ... 119 The working of the compromise 124 C. Special arrangements .•• 128 Reservation of seats ... 129 Special administration •.• 132 Nomination ... ... 136 Ill Public rvices ... ... 137 i fi i i i Chapter III Religious Interests ..• ... 146 I Equality through secularism * • • • • • 146 Nature of the state in India •.. 150 Extent of religious freedom ... 151 II Definition of religious minorities ••• 155 Population according to the Census 157 The implications of the definition of 1Hindu* • .. 160 7 III Religious interests of the minorities ... 164 The definition of 'religious interests' 164 1. Autonomy in religious affairs ... 166 The definition of 'religion1 168 Autonomy and the state powers of regulation ... ... 173 Regulation of secular activities 184 Social welfare and reform ... 189 2. The propagation of religion ... 193 Conversions and civil rights 199 3. Education ... ... 205 Religious instruction in schools 218 4. Safeguard of communal interests 222 Personal law ... ... 225 language and culture ... 233 Property and institutions ... 238 Chapter IV Linguistic and cultural Interests ... 244 I General background ... 244 Language groups and their strength 244 Unique nature of the Indian problem 246 A brief historical background ... 249 8 II Linguistic minorities and the linguistic issues 254 The minority problem in a political setting ... .•. 254 States and minorities •.. .•. 257 III Protection of the interests of linguistic minorities ... ... 261 1. Conservation of minority language and culture ... ... 267 2. Education ... ... 275 Non-discrimination in admission to educational institutions ... 276 Right to educational institutions 281 Instruction in the mother-tongue 285 Primary education ... 287 Secondary education ... 291 3. Employment ... ... 295 Domiciliary requirements ... 296 Language medium of examinations and proficiency tests ... 298 4. The use of minority languages for official purposes ... 302 IV Agency for the enforcement of safeguards: the need for a review ... ... 309 Chapter Y Socio-Economic Interests ... ... 317 I Definition of fbackward classes1 ... 320 9 Scheduled Castes ... ... 322 Scheduled Tribes ... ... 323 Other backward classes ... ... 327 II Measures for the removal of backwardness 331 III Removal of social disabilities ... 336 Social inequalities and the caste system ... ... 337 Abolition of untouchability ... 342 IV Protective discrimination ... ... 350 Criteria for eligibility of benefits 355 Determination of ’class1 ... 357 Test of backwardness ... ... 363 The scope and extent of protective discrimination ... ... 369 A eritique of the policy: the need for a reappraisal ... ... 381 Chapter VI Concluding Remarks ... ... 392 Amendment of the Constitution ... 395 The future of democracy ... 403 Table of Cases ... ... 407 Table of Statutes ... ... 415 Bibliography ... ... 424 10 ACKKOWXEDGEMENT I am grateful to all persons who have been of assistance to me in any way in the course of preparation of this work. In particular, the Institute of Advanced legal Studies, whose Visiting Research Fellowship during the year 1965-66 enabled me to come to London and undertake this study; Professor A. Gledhill, Emeritus Professor of Oriental laws in the University of London, my supervisor till his retirement, for his assistance and encouragement till this work was finally typed; Professor J. D. M. lerrett, Professor of Oriental laws in the University of London, my supervisor, who has been a source of inspiration and encouragement to me; and Professor P. K. Irani, Professor of Constitutional law and of International law in the University of Bombay, my former teacher, who has taken a keen interest in this work, while he was in the University of London on a tea ching assignment from January 1967 to October 1969* London, January, 1970. Gr. T. 1. Shenoy 11 ABBREVIATIONS A.I.R. All India Reporter All. Allahabad All • Jr. J • Allahabad Law Journal A.P. Andhra Pradesh Bom. Bombay Bom. L.R. Bombay Law Reporter C.A.D. Constituent Assembly Debates Cal. Calcutta Cmd. Command Cmnd. Command Guj. Gujarat Hyd. Hyderabad I.C.l.Q. International and Comparatiye Law Quarterly X «L .R • Indian Law Reports I.Y.B.I.A. Indian Year Book of International Affairs J.& K. Jammu and Kashmir J.I.L.I. Journal of the Indian Law Institute Ker. Kerala Law ed. Lawyer s1 edition 12 L.S.D. Lok Sabha Debates Mad. Madras M. Bh. Madhya Bharat M.P. Madhya Pradesh M.P.L.J• Madhya Pradesh Law Journal 'Sag. Nagpur Or. Orissa Pat. Patna Pun j. Punjab Raj. Rajastan S.C. Supreme Court S . C. J. Supreme Court Journal S.C.R. Supreme Court Reports i.e. Travancore-Cochin U.P. Uttar Pradesh U.S. United States of America Wis. L.Rev. Wisconsin Law Review Y.U.N. Year Book of the United Nations 13 Chapter I INTRODUCTION India, a vast country with an immense popu lation, is a land of tremendous diversity. The lines that divide the population are many and overlapping, inevitably giving rise to majority and minority groups of every kind. The Indian Constitution seeks to achieve unity amid this diversity through the common