Minority Rights in Crosshairs: Eyes on Our Future

Violations of International Treaties and Conventions

If implemented as prayed, the sweeping state intrusion, forced secularization of theological institutions, and restriction on community-run education would place India in direct violation of several core international conventions to which it is a signatory.

International Covenant on Civil and Political Rights (ICCPR)

• Article 27 (Minority Rights): Expressly guarantees that persons belonging to ethnic, religious, or linguistic minorities shall not be denied the right to enjoy their own culture, profess and practise their own religion, or use their own language. Forbidding or crippling community-run primary theological education violates this positive duty of non-interference.
• Article 18(4) (Freedom of Thought, Conscience, and Religion): Obligates States to undertake to have respect for the liberty of parents and legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. Mandating that children under 14 cannot receive focused religious instruction directly breaches parental rights under Article 18(4).
• Article 26 (Non-Discrimination and Equality Before the Law): Guarantees equal protection and prohibits discrimination on grounds of religion. Regulatory overreach whose burden falls predominantly on institutions serving a marginalized minority offends this baseline equality standard.

UN Convention on the Rights of the Child (UNCRC)

• Article 14(2) & 14(3) (Religious Freedom of the Child): Mandates that States respect the rights and duties of parents to provide direction to the child in the exercise of their right to freedom of religion. Freedom to manifest one’s religion may be subject only to such limitations as are prescribed by law and are strictly necessary : not used to dismantle religious schooling outright.
• Article 30 (Minority Children’s Rights): Explicitly protects children of religious minorities: “A child belonging to such a minority… shall not be denied the right, in community with other members of his or her group, to enjoy his or her culture, to profess and practise his or her own religion…”
• Article 29(1)(c) (Aims of Education): Declares that the education of the child shall be directed to the development of respect for the child’s parents, their cultural identity, language, and values.

International Covenant on Economic, Social and Cultural Rights (ICESCR)

• Article 13(3) & 13(4) (Educational Liberty): Expressly obligates States to respect the liberty of parents to choose for their children schools other than those established by the public authorities, to ensure religious and moral education, and guarantees the liberty of individuals and bodies to establish and direct educational institutions.

1981 UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief

• Article 5(2): Affirms that every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of their parents.
• Article 6(e): Expressly recognizes the right to “teach a religion or belief in places suitable for these purposes,” directly encompassing seminaries, madrasas, and religious schools.

The Fundamental Contradiction

The constitutional architecture conceived by the Constituent Assembly gave special status to Article 30 precisely because minorities required an explicit guarantee against majoritarian legislative encroachment. Transforming Article 30 into an ordinary Article 19(1)(g) occupational right, while using Article 21A to shut down or criminalize primary religious instruction, would convert protective rights into instruments of forced assimilation : a result fundamentally antithetical to both Indian constitutionalism and international human rights law.

Litigation of this kind sits uneasily under the label of “Public Interest Litigation.” Where the ostensible or seemingly innocuous relief masks far-reaching constitutional consequences : where one constitutional principle is deployed to effectively undermine another : the proceeding might more accurately be described as a Minority Rights Dilution Litigation, or a Forced Cultural, Religious, Ethnic and Linguistic Homogenisation & Assimilation Litigation (an MRDL or FCRELH&AL), whatever the subjective intent of the person who files it. This is a category of proceeding the Supreme Court ought to actively discourage, as it does in certain instances by imposing heavy exemplary costs.

The Supreme Court would do well to appreciate that the rules of Constitutional interpretation require full effect to be given to all provisions, read harmoniously, and that interpreting one in a manner that negates, dilutes, or destroys guarantees provided by another is not acceptable at all.

In fact, in such cases, the Court must strictly insist on the impleadment of all primary stakeholders : madrasa federations, statutory state boards, stakeholder NGOs, parent associations : and must direct an audit of what the consequences of its order can lead to.

The importance of this audit stems from the fact that when a disinterested State or acquiescent departmental officials simply look away, the risk is that a far-reaching precedent takes shape through executive concession rather than adjudication, affecting the rights of crores of citizens. Community stakeholders cannot remain spectators; they must actively intervene through caveats and counter-petitions to ensure that policy cannot be shaped by unrepresented executive concessions.

Constitutionally guaranteed rights are not to be treated lightly, or eroded. Justice Krishna Iyer’s notable statement : “Legislative futility is to be eliminated so far as interpretative possibility permits” : is a classic, and applies with even greater force to the Constitution than to statutes.

The Supreme Court should refuse to entertain so-called public interest litigations of this nature on foundational grounds of constitutional jurisprudence, separation of powers, and the established rules governing PIL maintainability, recognizing these as proceedings whose structural effect runs contrary to settled constitutional guarantees, operating as an indirect curtailment of minority autonomy under the guise of child welfare, or an indirect abuse of due process.

Separation of Powers and Policy Preemption

• Exclusively Legislative Domain: Deciding how educational systems are structured, harmonizing religious instruction with secular curricula, and setting administrative standards are matters of complex social policy and legislative judgment. Under Article 32, the Court does not possess the institutional capacity or mandate to draft broad educational codes or legislate from the bench. If an overwhelming majority of citizens are of one faith, or if state officials turn a blind eye to consequences, the institutions of state may not be reliable watchdogs on their own, and the balance must be struck with consequence audits by non-State stakeholders, bringing to bear on the sensitive subject expertise from around the world. The minds of future generations are the nation’s greatest asset, and their education cannot be allowed to be steered in directions that minorities themselves find unacceptable.
• Impermissible Judicial Mandamus: Settled law dictates that a writ of mandamus cannot be issued to direct the legislature to enact a law or amend existing statutes (such as the RTE Act, 2009, or minority board frameworks). Directing the executive to formulate regulatory frameworks for thousands of non-formal religious institutions usurps functions constitutionally reserved for the Union and State legislatures.

Subversion of Settled Constitutional Jurisprudence

• Rewriting Article 30 Contra Larger Bench Precedent: Eleven-judge and seven-judge Constitution Benches : most notably in In Re: The Kerala Education Bill (1958), St. Xavier’s College (1974), and T.M.A. Pai Foundation (2002) : have repeatedly affirmed that Article 30(1) is an independent, specialized fundamental right designed as an armour of security for minorities, not a redundant extension of Article 19(1)(g).
• Limits of Article 32 Jurisdiction: A two-judge bench cannot be invited via PIL to whittle down, dilute, or conflate distinct fundamental rights established by Constitution Benches. Entertaining pleas that effectively demand constitutional re-interpretation through PIL sits ill with judicial discipline and the doctrine of stare decisis.

The Court’s Own PIL Guidelines

• The Balwant Singh Chaufal Caution: The Supreme Court’s landmark rulings on the PIL mechanism : such as State of Uttaranchal v. Balwant Singh Chaufal (2010) : laid down strict checks against “publicity interest litigation” and private or political agendas disguised as public causes. Sequential, omnibus petitions on sensitive minority affairs are exactly the kind of filings those checks were meant to be applied to, and the Court should apply them here.
• Lack of Adversarial Balance and Affected Parties: Petitions of this kind typically fail to implead the real stakeholders : minority education boards, parent representatives, and community-run institutions : offending basic principles of natural justice by seeking sweeping declarations behind the backs of those directly affected.

Mischaracterization of Constitutional Harmony

• Harmonious Construction vs. Erasure: Fundamental rights under Part III must be read harmoniously, not used to cannibalize each other. Parliament explicitly enacted Sections 1(4) and 1(5) of the RTE Act to exclude madrasas and Vedic pathshalas, and institutions primarily imparting religious instruction, from the operation of the Act. Those exemptions, introduced by the 2012 amendment, reflect a deliberate legislative judgment that the mandate of Article 21A (Right to Education) was not to extinguish the religious freedoms guaranteed under Articles 25, 26, 29, and 30. Using Article 21A to eliminate primary religious instruction destroys that constitutional balance and overrides the very accommodation Parliament chose to make.
• Disruption of Federal Architecture: Education falls under the Concurrent List, and madrasa administrations are governed primarily by State-level statutory boards (such as the UP Board of Madarsa Education, Bihar State Madarsa Education Board, etc.). Broad petitions before the Supreme Court seeking blanket Union-level mandates ignore the federal distribution of powers.

Entertaining such petitions risks transforming Article 32 from a mechanism designed to protect marginalized groups into a forum for eroding established minority protections.

Jai Hind