The National Commission for Minorities

Section 12. The Central Government causes the annual report, together with a memorandum of action taken on the recommendations and the reasons for the non-acceptance of any of them, to be laid before each House of Parliament.

What it can and cannot do

Can. Summon, examine on oath, require documents, requisition public records, receive affidavit evidence, inquire, study, report and recommend.

Cannot. Make an order binding anybody, award compensation, prosecute, or compel a government to act on a recommendation.

The one real teeth in the Act is section 12. A refusal to accept a recommendation has to be explained in a memorandum laid before Parliament. That is accountability by publicity, and it is the same technique used for the other commissions in this book.

The comparison an examiner rewards

The point of the table. The Scheduled Castes and Scheduled Tribes Commissions are CONSTITUTIONAL bodies under articles 338 and 338A, and the Union AND THE STATES must consult them on all major policy matters affecting those communities. The Minorities Commission is statutory and its Act imposes no duty of consultation at all. Note the contrast within the statutory tier as well: section 16 of the National Commission for Women Act 1990 does require the CENTRAL Government to consult that Commission on major policy affecting women. So the Minorities Commission is the weakest placed of the four, and the demand for constitutional status for it rests on exactly that.

A worked example

A State refuses to give a minority-managed school the aid it gives comparable schools, and a complaint is made to the Commission.

Step one. The complaint is within section 9(1)(d), a specific complaint regarding deprivation of the rights and safeguards of minorities, article 30(2) being the safeguard.

Step two. The Commission may summon the officers concerned, require production of the sanction files and take evidence on affidavit under its civil court powers.

Step three. It may take the matter up with the appropriate authorities and recommend that aid be granted.

Step four, the limit. If the State declines, the Commission cannot compel it. What follows is a report, and if the recommendation is not accepted, a memorandum before Parliament under section 12.

Step five, the real remedy. A writ petition under article 226 for enforcement of article 30(2). The Commission is a route, and not the only one or the strongest.

What this does NOT mean

It does not mean the Commission is useless. Its reports are the principal published record of the treatment of minorities by governments, and they are used in litigation and in policy.

It does not mean minority status under the Act is the same as under article 30. It is not, and the distinction is made in [Who Is a Minority].

And it does not mean a complaint to the Commission suspends a limitation period or replaces a legal remedy. It does neither.

Quick revision

National Commission for Minorities Act 1992; predecessor non-statutory body from 1978. Section 2(c): a minority is a community notified by the Central Government; six notified, Muslims, Christians, Sikhs, Buddhists, Zoroastrians and, from 2014, Jains. Section 3: Chairperson, Vice-Chairperson and five Members, five including the Chairperson from minority communities, three-year terms. Section 9: evaluate development, monitor safeguards, recommend, look into complaints, cause studies, report. Section 9(4): civil court powers on inquiry. Section 12: annual report laid before Parliament with a memorandum of action taken and reasons for non-acceptance. Statutory, not constitutional, unlike the Commissions under articles 338 and 338A.

Test yourself

1. Under what statute is the Commission constituted, and how is it composed? The National Commission for Minorities Act 1992. A Chairperson, a Vice-Chairperson and five Members nominated by the Central Government from persons of eminence, ability and integrity, of whom five including the Chairperson must be from the minority communities, each holding office for three years.

2. Give four of its functions. Evaluating the progress of the development of minorities; monitoring the working of the safeguards in the Constitution and in laws; making recommendations for their effective implementation; and looking into specific complaints of deprivation of rights and safeguards and taking them up with the appropriate authorities.

3. What powers does it have, and what powers does it not have? It has the powers of a civil court on inquiry: summoning and examining on oath, requiring discovery and production of documents, receiving affidavit evidence, requisitioning public records and issuing commissions. It cannot make a binding order, award compensation, prosecute or compel a government to act.

4. What is section 12 for? It requires the Central Government to lay the Commission's annual report before each House of Parliament together with a memorandum of the action taken on its recommendations and the reasons for the non-acceptance of any of them, which makes a refusal to act a matter of public record.

5. State the standing criticism of the Commission. That it is statutory rather than constitutional, so unlike the Commissions for the Scheduled Castes and Scheduled Tribes under articles 338 and 338A there is no duty on the Union and the States to consult it on major policy matters affecting minorities. Its Act contains no consultation provision at all, where the National Commission for Women Act 1990 at least binds the Central Government by section 16, and its recommendations carry correspondingly less weight.