This post is part 2 of a 2-part series. Read the 1st one here.
Article 23 in the Draft Constitution
When the Constitution was being drafted, the Rights under Articles 29 and 30 were clubbed under a common Article 23. This Article had 3 clauses. Clause 3 had 2-sub-clauses. The entire Article consisted of clause 23(1), 23(2) and 23(3)(a) and 23(3)(b).
Two crucial amendments to Draft Article 23
On the 8th of December 1948, Pandit Thakurdas Bhargava moved 2 important amendments to the above draft. In a significant development, both these amendments were accepted in full by Dr B R Ambedkar.
The first amendment proposed a re-write of sub-clause 2. The proposed wording was
“No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them“
While justifying this amendment, Pandit Bhargava laid down his arguments on 3 different aspects
1) The first change was to replace the word ‘minority’ with ‘any section of the citizens’. This was proposed because Pandit Bhargava felt that when it came to educational rights, there should NOT BE any discrimination between majority and minority
“In educational matters, I cannot understand, from the national point of view, how any discrimination can be justified in favour of a minority or a majority”
2) The second change was to include institutions which received State aid, in addition to those institutions which were run by the State
3) The third, and *critical* change, was to remove the word ‘community’ from the clause and replace it with ‘race or caste’. This was done because Pandit Bhargava felt that whatever was conveyed by the word ‘community’ was already fully captured by the words ‘religion’ and ‘language’. His full explanation on this aspect is given below
“Now, Sir, the word ‘community’ is sought to be removed from this provision because ‘community’ has no meaning. If it is a fact that the existence of a community is determined by some common characteristic and all communities are covered by the words religion or language, then ‘community’ as such has no basis. So the word ‘community’ is meaningless and the words substituted are ‘race or caste’. So this provision is so broadened that on the score of caste, race, language, or religion no discrimination can be allowed”
As noted above, this entire amendment was accepted by Dr B R Ambedkar and the same was included in the Constitution as Article 29(2)
This was a change to Article 23(3)(a) which eventually became Article 30(1). Let us look at the ‘before’ and ‘after’ versions of this clause.
“All minorities, whether based on religion, community or language, shall have the right to establish and administer educational institutions of their choice”
“All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice”
As highlighted, the key, and only, change made here was the deletion of the word ‘community’.
Pandit Bhargava, while debating this amendment, made the following submission
“This is an amendment to amendment No. 690. There is not much to be said. The word ‘community’ as I said before has no meaning. No common characteristic can differentiate one community from another which is not covered by the words ‘religion or language’. These words sufficiently cover the field that is sought to be covered by the word ‘community’. Therefore the word ‘community’ has no meaning in that provision and therefore it should be deleted.”
The key part of the submission here is the referral to the explanation of the previous amendment. Pandit Bhargava said that the purpose of removal of ‘community’ was because it was sufficiently covered in the remaining words itself.
Dr B R Ambedkar’s explanation of the term ‘minorities’
While finally discussing inclusion of these 2 amendments, some relevant portion of Dr Ambedkar’s speech is extremely important.
While initiating the discussion on the amendments, he said thus
“Sir, of the amendments which have been moved to article 23, I can accept amendment No. 26 to amendment No. 687 by Pandit Thakur Dass Bhargava. I am also prepared to accept amendment No. 31 to amendment No. 690, also moved by Pandit Thakur Dass Bhargava”
Thus, at the outset, he accepted the two amendments.
Then, Dr Ambedkar gave a detailed explanation of the term minorities. Instead of paraphrasing it, I reproduce relevant portions as-is
“The first point that I would like to submit to the House as to why the Drafting Committee thought it necessary to alter the language of paragraph 18 of the Fundamental rights is this. On reading the paragraph contained in the original Fundamental Rights, it will be noticed that the term “minority” was used therein not in the technical sense of the word “minority” as we have been accustomed to use it for the purposes of certain political safeguards, such as representation in the Legislature, representation in the services and so on.
The word is used not merely to indicate the minority in the technical sense of the word, it is also used to cover minorities which are not minorities in the technical sense, but which are nonetheless minorities in the cultural and linguistic sense. For instance, for the purposes of this article 23, if a certain number of people from Madras came and settled in Bombay for certain purposes, they would be, although not a minority in the technical sense, cultural minorities…..
The article intends to give protection in the matter of culture, language and script not only to a minority technically, but also to a minority in the wider sense of the terms as I have explained just now. That is the reason why we dropped the word ‘minority’ because we felt that the word might be interpreted in the narrow sense of the term, when the intention of this House, when it passed article 18, was to use the word ‘minority’ in a much wider sense, so as to give cultural protection to those who were technically not minorities but minorities nonetheless…”
I have supplied emphasis in the above quotes to the most important portions of the speech. The following can be gathered from the speech.
By stating that the meaning of minorities is NOT THE SAME as in political safeguards, Dr Ambedkar has clearly stated that the term here goes beyond religious minorities and SC/STs since the entire discussion around guaranteed representation in legislature and services was based on religion (Muslims and Sikhs, especially) and to SCs and STs.
Dr Ambedkar has also clearly stated that these rights are for those who are minorities in the cultural and linguistic sense. Since all religions apart from Hinduism have already been covered under Article 30(1) anyways, the term ‘cultural minority’ would be redundant for them and therefore it is referring to Hindu communities only.
In the third portion of the speech quoted, the highlighted part shows that Dr Ambedkar feared that the word minority would be interpreted in the narrow sense of the term i.e as non-Hindus. Hence he kept referring to the phrase ‘technically not minorities but minorities nonetheless”
We should also remember that when all these discussions took place, all the clauses and sub-clauses were under one single Draft Article (23). Therefore, the explanation of the term minorities provided by Dr Ambedkar is fully relevant to what eventually became a separate Article 30.
One additional point. When Pandit Bhargava defended the removal of the word ‘community’ from Article 30(1), he said his explanation for this was exactly the same as it was for Article 29(2) which means it was meant to be ‘race and caste’ also which was covered under the umbrella term of ‘religion’.
Based on all this distinct evidence, we can safely conclude that the phrase ‘based on religion’ in Article 30(1) not only means minorities when compared across religions, but ALSO MINORITIES WITHIN A RELIGION.
Therefore, communities such as Lingayats, Vokkaligas, Brahmo Samaj and others, who form a distinct minority ‘community’ under the broader Hindu religion also qualify for Rights under Article 30(1) WITHOUT HAVING TO MOVE OUT OF HINDUISM.
- Constituent Assembly Debates, Volumes V and VII
- The Framing of India’s Constitution, A Study – By B Shiva Rao, First Published 1968
Very iffy explanation from PTBhargava on deleting the word ‘community’ . Do you see how religious and linguistic minorities covers all communities?
In any case , these were smart people. If they wanted to place minority religions on a higher pedestal than HIndus in the domain of edu they would have said so directly.
What they assumed at that time was that Hindus would dominate Edu using their permanent political majority hence the Christians / Muslims needed protection. That whole theory was shattered to pieces in KL Edu case a few years down the line. In SL around the same time as Kerala case Sirimavo took over Catholic edu and ensured state aid to Buddhist Edu was pro-rated.
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Agree it would take a bit of effort to define community using just religion and language.
But for me the clearest indication is from Dr Ambedkar’s statement that definition of minority in this clause is different from the one used in deliberation around political safeguards.
I feel definition of religious minority was meant to be ‘any community which is a cultural minority when measured on religious parameters’ and not just a ‘religion which is in numerical minority’.
It would be very interesting if the Govt made a presidential reference to the Supreme Court detailing these things and seeking clarity if minority definition under 30(1) can be applied to a ‘community’ of people measured on religious parameters.