Lack of consistency in the provisions of the Constitution of India and other Laws

Adv. Sudhir Gupta

A democratic country is governed by its Constitution. The Constitution of India says that India is a ‘Secular’ country, where : 1. The principle of Secularism will be adhered to throughout the country, 2. Every elected Government will treat all citizens equally, 3. People will not be discriminated against on the basis of religion, race or caste. Despite this, unfortunately, the Constitution of India has some special provisions for the benefit of some specific sections of society. It is ironic that followers of some faiths get special treatment in a ‘Secular’ India.

It is no wonder that the political class has exploited this discrepancy. Since Independence, political parties have treated specific sections of society as a ‘vote bank’ and accordingly appeased them to get their leaders elected. Thanks to appeasement politics, Indian society now stands divided into two broad groups : The minority and the majority. Religious polarization and the subsequent tense environment have become the new norm in many parts of the country. Other than India, we do not observe this division anywhere in the world.

India’s current predicament – the divide-and-rule policy – is a parting gift from its erstwhile rulers. Indian political parties have exploited this issue, which they inherited from the British and leveraged it further to fulfil their myopic political goals. The political class often impresses upon our minds that the Constitution of India treats all citizens equally. However, it conveniently refrains from educating us on how unfair it is for the majority.

Hence, it becomes critical to understand some inconsistent provisions of the Constitution of India and how they contradict each other.

1. Provisions of the Indian Constitution that are legally inconsistent

A. Article 14 of the Indian Constitution guarantees equality before the law. It says that the State should neither deny equality before the law to anyone in its jurisdiction nor refuse protection equally to all.
B. Article 15 (1) clarifies that the State should not discriminate against anyone based on religion, race, caste, sex or place of birth.
C. Despite such provisions, Article 30 (1) confers the right to the minority sections of society (based on religion or language) to establish and administer educational institutions of their choice.
D. Articles 26 to 29 of the Constitution have special provisions and concessions solely based on religion. Hence, these Articles are not consistent with Article 14 and Article 15 (1).

2. Special treatment to some sections of society despite a lack of clarity on what constitutes a minority, is a betrayal of Hindus

A. The Constitution mentions the word ‘minority’ about 5-6 times. However, it does not clarify who constitutes a minority, nor does it provide any high-level guidelines in this regard. Hence, it is essential to understand – 1. What’s the threshold (as a percentage of the overall population) below which a particular section of society can be considered a minority ?, 2. Will the minority status be determined and applied to the entire country, a State, a District or a Village ? The Government must clarify these questions as the percentage of citizens differs for various religions, and this percentage varies from one place to another.
B. After Independence, the Union Government unilaterally started treating Muslims, Christians and Parsis as minorities without a discussion or declaration in the Parliament.
C. The Union Government enacted the National Minority Commission Act in 1992. Section 2 of this Act gave the Union Government the right to declare any community / section of society as a minority. Accordingly, the Union Government exercised this right in 1993 and proclaimed Muslims, Christians, Buddhists, Sikhs and Parsis as minority communities. In 2005, the Union Government added Jains to the list.
D. We must note that Article 25 (2) explains what constitutes Hinduism as a religion. Sub-clause (b) of clause (2) of this Article mentions that Sikhism, Jainism and Buddhism are considered parts of the broader Hindu community. It implies that the educational institutions set up by the followers of these sects will be Hindu as opposed to minority educational institutions. Hence, the then Union Government’s decision to include Sikh, Jain and Buddhist communities as minorities becomes unconstitutional.
E. The National Minority Commission Act does not clarify what constitutes a religious or linguistic minority. The Union Government has not specified the threshold below which a particular section of the society will be deemed a minority.

3. Special provisions for the so-called minority communities : Catalyst for a majority-minority divide

Thanks to the special provisions granted by the Constitution based on the religious identity, India has a host of issues to deal with. It has resulted into a clear division between the majority and minority communities. In 2006, the Union Government constituted the Ministry of Minority Affairs to address the issues faced by the so-called minority communities. Every year, this Ministry spends crores of Rupees supposedly to help the minority communities in the name of providing a better life. In 2021-22, the Union Government made a budgetary provision of Rs 5,000 crore for the Ministry of Minority Affairs. So far, this Ministry has implemented more than 43 welfare schemes for the upliftment of the so-called minority communities. It provides monetary as well as non-monetary assistance such as educational assistance, scholarships, job placement support, Public Service Commission examination assistance, etc. The irony is that in the secular India, the downtrodden Hindus are given a cold shoulder, while those from the so-called minority communities enjoy these generous benefits with taxpayers’ money.

Another irony is that there are many States and Union Territories where the so-called minority communities are in the majority. However, minority Hindus in those States and Union Territories are denied the benefits that the so-called minorities enjoy in other States. This is deliberate discrimination against the Hindus. The table given ahead provides the percentage of Hindu population in these States and Union Territories.

4. States and Union Territories where Hindus are a religious minority

We must note that Hindus constitute a fraction of the total population in these States and Union Territories. However, they are deprived of all the benefits the so-called minority communities enjoy in other States and Union Territories.

5. The number of educational institutions administered by the so-called minority communities has increased by more than 5,000 in the past 3 years

A. Article 30 of the Constitution confers the right to the minority sections of society to establish and administer schools, colleges, management institutions and medical colleges for their communities. Moreover, this provision allows these educational institutions to impart religious, cultural and other education to their students. These religious or linguistic minority institutions are legally treated as autonomous institu-tions. However, we must note that this provision does not mandate these so-called minority institutions to impart religious or cultural education to their students.
B. Article 28 (1) of the Constitution prohibits educational institutes that receive State funds to impart religious education. However, sub-section (2) exempts some religious institutions from this requirement if they are established under an endowment or a trust and if they are administered by the State Government.
C. Article 30 (2) states that the Government would not discriminate against minority institutions (religious and linguistic) while providing grants to educational institutions. It implies that the institutions run by minorities are still eligible for Government grants. However, Hindu institutions will not be eligible for such benefits if they impart religious education. The number of so-called minority institutions that received Government grants increased from 13,000 in 2009 to more than 18,000 in 2022. Hindus should take cognizance of this alarming trend.

6. Some Constitutional provisions confer special rights to the minority communities to run private educational institutions

A. The principle behind Article 30 of the Constitution is to protect the fundamental rights of minorities and treat them equally without any discrimination. However, in reality, this Article has conferred special privileges on minorities, and they have immensely benefited. Let us understand this with an example. If the Government decides to run all educational institutions, no organisation or community would establish a private institute nor run it independently. However, this will apply only to the majority community.

And the minority communities could still set up educational institutes and run them independently, thanks to the special provisions in Article 30 as it treats such action as their fundamental right.

Moreover, Article 30 also states that during any emergency, the Government can take administrative control of educational institutions set up by the majority community (read – Hindu). However, the so-called minority institutions will continue to enjoy their autonomy.
B. In 2009, the Government enacted the Right of Children to Free and Compulsory Education Act to provide free education to children through public or private schools. The Government amended the first section of this Act in 2012 and added four sub-clauses. These sub-clauses exclude Articles 29-30 and the associated provisions; and hence, minority institutions are exempt from these provisions to provide free education to all children.

7. Over 4,000 educational institutions administered by Hindus were closed owing to Government restrictions on providing free education to the downtrodden

The above provision in the Right of Children to Free and Compulsory Education Act does not mandate the so-called minority educational institutions to provide free education to the children from the economically weaker section of society. On the contrary, the majority (read – Hindu) educational institutions are mandated to create a 25% quota for poor children and provide them with free education.

This ‘secular’ (read – sickular) Act does not provide any clarity for the following obvious questions :

A. Why educational institutions run by the minority communities are exempt from providing free education to poor students ?
B. Why educational institutions run by the majority community are mandated to provide free education to poor students from minority communities ?

Right of Children to Free and Compulsory Education Act, 2009, and other provisions in the Constitution have created a divide among Indian citizens, and the Nation has paid a high price.

Owing to these constricting mandates, over 4,000 Hindu educational institutions were forced to close down since they could not bear the additional financial burden of providing free education to 25% of their students.

8. The lack of consistency between the Land Acquisition Act (1894) and the Amendments to the Waqf Act (1995)

A. Articles 14 and 15 (1) of the Constitution say that the State should not discriminate against anyone based on religion, race, caste, sex or place of birth. However, the Amendments to the Waqf Act (1995), incorporated in 2013, are inconsistent with this fundamental principle. This amendment confers an absolute right on the Waqf Board to declare any land belonging to a Muslim or non-Muslim (Hindu, Sikh, Christian or Buddhist) citizen as the property of the Waqf Board. Moreover, the Amendment states that any High Court or the Supreme Court cannot interfere in a property dispute concerning the Waqf Board. The complainant should take any such dispute to the Waqf Court as they are supposedly more competent to address such issues.

We must note that the Civil Courts in this country are competent enough to resolve any property dispute. Moreover, the complainant can appeal in any High Court or even the Supreme Court if he is dissatisfied with the Lower Court’s verdict. However, the Amendments to the Waqf Act have curtailed this right. The Civil Courts have no jurisdiction over the Waqf Board in cases which involve a disagreement over the title of property claimed by the Waqf Board. Before this Amendment, the Waqf Board could acquire land owned by Muslims only; however, after this Amendment in 2013, the Board could snatch the property of non-Muslims (read – Hindus) as well.

B. The law of the land states that any individual in possession of a property for the past 20 years is deemed the legal owner of that property. Also, a relevant provision of the Constitution states that no one can force such a person to give up his right to the said property. The irony is that despite such constitutional provisions, this principle does not legally apply to the properties acquired (read – grabbed) by the Waqf Board under Section 107 of the Waqf Act. Hence, it implies that the Waqf Board can even snatch the property of an individual/family who has been its rightful owner for many centuries.

C. In the past ten years, the Waqf Board has exploited this provision at a fast pace to snatch lakhs of properties and declare them ‘Waqf properties’. The Waqf Management System of India falls under the purview of the Ministry of Minority Affairs, Government of India. Official data reveals that 6,59,877 properties were registered as Waqf properties till July 2020. This also implies that the Waqf Board owns 8 lakh acres of land in this country, which makes it the third largest entity to own most land in India after the Indian Railways and the Army.
These inconsistent and contradictory constitutional provisions have created a great divide between the majority and the minority communities. All are equal before the law, and equal and fair treatment is the fundamental right of every citizen. However, such provisions undermine this fundamental right. Hence, the Government should remove these inconsistent provisions from the Constitution and other laws that go against the basic principle of Democracy – Equality for all. If this happens, every Indian citizen will be treated equally in the true sense. We must not forget that no other country treats the majority community like second-class citizens as is in India.

It is the need of the hour that the Government removes the inconsistent and contradictory provisions from the Constitution and enact the Uniform Civil Code across the country.

– Advocate Sudhir Gupta (Senior Advocate and Academician, Moradabad, Uttar Pradesh)

• It is critical to understand some inconsistent provisions of the Constitution of India and how they contradict each other !
• Why should institutions run by the majority provide free education to poor students from minority communities ?