Over the course of several articles, we have seen how the makers of our Constitution never intended the Fundamental Rights related to practice of religion and administration of educational institutions to be discriminatory in nature i.e. they were never meant to be anti-majority. We have especially seen how the minority leaders themselves, during the Second Round Table Conference of 1932, asked for only equal rights and nothing more privileged.
In this post, let us look at one more reference document that will, once again, highlight the true intent of our leaders during the making of our Constitution.
Tej Bahadur Sapru was a well known lawyer who convened a ‘Non Party Conference’ in 1944. This conference consisted of many distinguished public figures. However, these personalities, at that time at least, were not associated with any of the main political parties – especially the Congress, Muslim League or the Communist Party. This conference set out to examine the question of communal and minority rights in the new Constitution that was to be created soon. A committee was formed to examine this issue. This – the ‘Sapru Committee‘ – consisted of 30 eminent personalities belonging to all religions. Some of the distinguished members of this committee, such as M.R. Jayakar, Gopalaswami Ayyagar, John Mathai, Frank Anthony and Sachidananda Sinha went on and became a part of the Constituent Assembly of Free India. Therefore, the intellectual capability of this committee, and its authority to make recommendations on the question of minority rights was indisputable.
The Sapru Committee constituted 4 sub-committees to examine various issues
- The General Sub-committee
- Scheduled Castes Sub-committee
- Minorities Sub-committee
- Economic Sub-committee
Out of these, the Minorities Sub-committee was tasked with coming up with proposals for dealing with the protection, and rights, of Christians, Sikhs and other non-Muslim minorities. This committee submitted a report that included a section on Fundamental Rights. The section was as below:
1. In India there is freedom of religion and conscience.
2. All inhabitants of India shall have equal right to practise, in public or in private any faith, religion or creed whatsoever, and to assemble for the conduct of religious service in public, in so far as the exercise of these rights does not violate the law or public order
and morality and they are exercised with due regard to the religious sentiments of other communities.
3. All inhabitants shall be entitled to establish, manage and administer at their own expense, religious, charitable and social institutions schools and other educational establishments and shall have the right to the free use of their own language and script if any and the free exercise of their own religion in such institutions. Pursuant to this right, they shall be entitled to acquire, own, transfer, hold in trust movable and immovable property subject to the general laws.
4. All inhabitants shall be free to preach their religion, so fact as they do not violate the law or public order and morality or offend the sentiments of other communities.
5. No inhabitant shall be deprived of his public rights by change of religion.
6. No citizen shall be subjected to any disability or prejudiced by religion, caste, creed, colour or sex in regard to public employment, in any office of power or honour or in the exercise of any trade or calling.
As highlighted above, the committee asked only for “equal” rights when it came to (a) practise of religion and (b) establishment of religious and educational institutions.
Just to highlight the validity of this demand, take a look at the members of this committee.
1. Raja Sir Maharaj Singh, Convener
2. The Metropolitan of India
3. Sardar Harnam Singh
4. Mr. B. L. Rallia Ram
5. Mr. Frank R. Anthony
6. Mr. Tushar Kanti Ghosh
7. Mr. Fazal Ibrahim Rahimtoola.
At least two of the members of this sub-committee went on to become part of the Constituent Assembly! So a highly distinguished panel representing minorities came up with a demand for “equal” rights!
Demand of the Sikhs
During the deliberations of the Sapru Committee, Sikh leaders were invited to present their point of view. They did so in the form of a memorandum that spelt out their demands in detail. On the question of Fundamental Rights, the Sikh delegation put forth their custom proposal. Let us look at a few relevant rights that they asked for:
- The State shall recognise the inalienable right of the Sikh community as such to the ultimate ownership, direction and control of all Sikh Gurudwaras, Shrines and religious endowments and the control and management of such institutions shall vest in the Sikh community in accordance with its declared will as expressed from time to time, collectively or regionally.
- The State shall protect the maintenance intact of all Gurudwaras, Shrines, religious institutions and the endowments attached to them as a fundamental right of the Sikh community as a whole, and none of the endowments or properties attached to these institutions shall be resumed or acquired by State action and the State shall not create, by financial assistance, or otherwise, any endowments or institutions out of taxes and proceeds not specifically and exclusively collected from the members of the religious community for the benefit of which such new endowments, etc., are sought to be created. Viceversa, no person may be compelled to pay taxes, the proceeds of which are to be appropriated in payment of purely religious expenses of any religious community or endowments, of which he himself is not a member
- All communities shall have a right to establish and maintain educational, charitable, religious and other institutions with full liberty to impart instruction in their own mothertongue. Such institutions shall receive grants-in-aid from the State on a uniform basis. The existing grants-in-aid, to denominational institutions shall not be reduced.
From the first two points, it becomes clear the Sikh community asked for absolute rights to run their religious institutions – the Gurudwaras. No intereference from the State would be tolerated.
However, when it came to running educational and charitable institutions, they too asked for “equal rights” as seen in the third bullet-point above.
Demand of the Hindu Board
A group of Hindus from the Punjab made a representation to the Committee and presented them with a memorandum. That memorandum included a draft section on Fundamental Rights. Let us look at the relevant sections from their demand:
- The culture, language and script of the minorities and of different linguistic areas shall be duly protected, i.e. (a) All minorities shall have equal right to establish, manage and control at their own expense charitable and religious institutions and start educational schools and colleges with freedom to use their own language to practise their own religion therein.
(b) If in any village or town demand is made on behalf of a prescribed number of children of a minority community for a separate primary school for them, the local authorities concerned shall set up a school for instruction in the language and script of the community.
(c) No child attending any school receiving State-aid shall be compelled to attend religious instruction imparted in that school or participate in religious observances of religion other than his own that may be imparted in that school.
- All schools, colleges, technical and other institutions established by the minorities, if complying with the prescribed rules and regulations, shall be entitled’ to the same assistance from the State and local funds and be subject to the same control, if any, as similar institutions for the general public or the majority community.
Again, two points stand out. They wanted that the minorities have an “equal right” when it came to educational institutions. Secondly, they wanted to see that the minority institutions are “subject to the same control, if any, as similar institutions for the general public or the majority community”. This particular group of Hindus seem to have spotted a potential issue with educational rights unless an explicit clause was inserted that brought both minorities and majority at the same level with respect to State control. How real their fears turned out to be!
The evidences gathered in this article, and in a number of articles cited at the beginning, prove one thing. That during the formative days of our Constitution there was not a single individual or institution, belonging to the minorities, who/which demanded an unequal or reverse-discriminatory right when it came to freedom of religion, and when it came to administration of educational institutions. All of them only demanded equal rights – the same as what the majority community would get.
In light of this, it is a real tragedy that the opaque wording of Article 30(1) has been interpreted, in the past 70 years, as granting special rights to the minorities that is over and above what the majority community gets.