Any discussion on the state of minority rights must precede with a general understanding of the term minority. Different international forums try to define and clarify the expression 'minority'. One of the notable was made by the Permanent Court of International Justice (PCIJ), which defined it as:
Group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united by the identity of such race, religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, securing the instruction and upbringing of their children in accordance with the spirit and traditions of their race and mutually assisting to one another[1]

With the emergence of the United Nations the issue of minority rights was started being treated as an issue of 'human rights' albeit neither UN charter nor Universal Declaration of Human Rights did specifically try to address the question of meaning of 'minorities'.

It is surprising that there is no universally agreed definition of the expression 'minority'. Even if not defined, it is generally sub-classified into religious, linguistic, ethnic and racial minorities.
The paper seeks to examine the state of minorities, particularly religious minorities, in India and Bangladesh and their legal and constitutional protection under their respective legal regime.

Case of India

India and minorities:

The concept of minority can be traced back to Vedic period. Through the caste system the Indian society was divided into four varnas[2]. The Brahmans that were the priest class, Kshatriyas the warrior class, Vaishyas the trading class and Shudras were the lowest of them. The three upper castes together formed the majority that subjected the Shudras to constant oppression.

Thus in ancient times the Shudras were the definition of minority in India. India has a long history of invasions and trade, which has changed the demographics of Indian society considerably. Mahmud of Ghazni attacked and plundered India during the late tenth and early eleventh centuries. Similarly Muhammad Ghori also attacked and plundered Indian rulers such as Prithviraj Chauhan.

This culminated in the establishment of the Mamluk dynasty also known as The Slave Dynasty. Islam began to spread in India, later Babur attacked the Lodhi dynasty and established Mughal rule in India. India remained under Muslim rule for a long time this gradually increased the Muslim population. After that various European such as Dutch, Portuguese, Britishers, French came to India for trading activities but they ended up creating India into one of their colonies.

The Britishers later captured and brought most of India under their own rule. These constant invasions and the European rule have changed the demographics of Indian society to a large extent. It would be important to discuss the British rule and its influence on Indian society as their policies had long lasting effects on our society. Under British rule the Christian missionaries were quite active, they were able to convert a large number of people into Christianity.

Christianity flourished during British rule. It won't be totally wrong to claim that it was the British that heard the issue of minorities and took the first step in building the concept of minority rights in India. The Indian Councils Act of 1909 is among such steps introduced by British raj. It was also known as Morley Minto Reforms .The aim of the act was to provide representation to Indian people in imperial and local legislative councils.

One Member from Muslim community and other from Hindu community were appointed for formulation of the Act[3] . The concept of separate electorate was introduced where only Muslims could vote for seats reserved for Muslims only. This system of separate electorate was further expanded under the government of India act 1919 under this act the communal representatives were increased and it also provided the same system to Sikh, Anglo Indians. During the British rule only the deep seated sense of fear of domination by Hindus started to grow among the minorities.

The Muslims made the Muslim league and supported the separate electorate idea which further developed into an aspiration for separate country and thus finally culminated in division of the country into India and Pakistan. Origin of Pakistan created a sense of fear among those Muslims who chose not to leave India, sometimes due to reasons not in their control. It was feared that partition might led to weakening of religious minorities voices in the constituent assembly.

Various Indian leaders tried to create confidence among the minorities that they would not be subjected to oppression and would not be discriminated against. The situation was tough at the time of formulation of the constitution as recent events such as partition of the country and growing religious divide made it more difficult to create a sense of protection and security among the religious minorities[4].

But the framers took the task at hand and were able to formulate the constitution in such a way that aspirations of the minority and their interests were given due protection and safeguards through strong minority rights provided in the constitution of India in the shape of fundamental rights and several other rights under various articles of the constitution.

The discussion on minority rights is prominently found in Nehru's Objective Resolution[5] of 13th December 1946 which undertook to give direction to the constitution making process and promised social, political and economic justice; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association to the people of India and also contemplated to provide adequate safeguards for minorities, backward and tribal areas, and depressed classes. Later, almost all the major resolutions of the Objective Resolution found their presence in the Constitution of India which came into effect three year after the resolution.

Constitutional and statutory status of minorities in India

There are several numbers of provisions in the Indian Constitution to safeguard minority rights. India was one of the first countries to give constitutional recognition to the minority communities The Constitution provided a wide range of rights to protect and safeguard minorities such as Article 14[6] talks of equality before law i.e. everyone is equal before law. Article 15[7] provides that there shall be no discrimination on religion, race, caste, sex and place of birth. Article 16[8] talks about equal opportunities for all in public employment.

Keeping in mind the Doctrine of Basic Structure and the Preamble of the Indian Constitution which states that India is a secular state and as a secular state, India is supposed to observe neutrality and impartiality towards all religions[9]. Article 25[10] provides all citizens freedom to practice religion of their choice, they are free to propagate their own religion. One can build the conscience that this article insures that the state would not subdue the religious minority.

Article 26[11] provides a sense of security to religious minorities as all are free to construct and maintain institutions that are religious or for charitable purpose and manage their own affairs regarding religion without any intervention from the government subject to restrictions. Article 27[12] following the line of secularism lays down that the state will not compel any citizen to pay any taxes for promotion or maintenance of any particular religion or religious institution.

Article 347[13] states that if there is demand on the part of a substantial proportion of the population of a state desiring the use of any language spoken by them to be recognized by that state, the President may direct that such language shall also be officially recognized in that state for such purpose as he may specify. Article 30[14] of the Constitution provides cultural and educational rights to both religious and linguistic minorities.

Article 30(1) ensures the right to all religious and linguistic minorities to establish and administer educational institutions of their choice. Article 30(2) provides that, in providing assistance to educational institutions, the state shall not discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. In the St Xavier's College case[15], the Supreme Court has rightly observed, The whole object of conferring the right on the minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality.

The National Commission for Minorities (NCM) was established in 1992 by the government of India under the National Commission for Minorities Act and Muslims, Christians, Sikhs, Buddhists, Zoroastrians, and Jains religious communities are designated as minorities by the government of India[16].

Under this special enactment, The National Commission for Minorities (NCM)[17] are supposed to perform various functions including evaluating the progress of the minorities, monitoring the working of the safeguards provided in the constitution, looking into specific complaints regarding deprivation of rights of minorities ect for the protection of minorities. Family matters like marriage, adoption, succession, maintenance are governed by personal law of an individual concerned. Deliberate acts perpetrated by persons of one religion persuasion for the insult or annoyance of another person of another persuasion have been made punishable. Offences against religion are covered by India Penal Code, 1860[18]

B. Case of Bangladesh

Bangladesh and Minorities

At the time of Independence and Partition of India and Pakistan, The leaders of Pakistan emphasised on the need for establishing a democratic regime which would cater to protection of the fundamental rights of the citizens, irrespective of the religious faiths they had. It was later observed that the Hindus, Christians and Buddhists who were seen as religious minorities in Pakistan faced oppression and humiliation. Later in 1970, Awami league won the elections in Bangladesh and the eventual creation of Bangladesh brought a status change for the Hindu community on a limited scale in the state.

This was one of the main reasons why Indian Government had extended their helping hands to Sheikh Mujibur Rahman, widely known as the founding father of Bangladesh and Bangabandhu (Friend of Bengal). The Indian government helped Bangladesh's liberation struggle on the condition of its being led by the Awami League, whose general ideology was similar to that of India's ruling party. Following the withdrawal of Pakistani military forces, the newly independent Bangladesh passed its first national Constitution in November 1972. It imbibed various fundamental principles for the state which paved the way for the peaceful co-existence of all the religious communities in the state. These principles were, 'nationalism, socialism and secularism.

The original 1972 Constitution of Bangladesh embodied the principle of secularism. Sheikh Mujibur Rahman in 1972 said[19] that secularism does not mean faithlessness, much less atheism. It simply allows the citizens of the country to practice their religion. He explained that the government does not and will never want to ban the practice of religion through the enactment of laws. He said the government would allow members of every religion-Islam, Hinduism, Buddhism, and Christianity-to practice their faith; nobody would prevent or stop them.

However, with the passage of time, the Parliament of Bangladesh has through various amendments to the constitution has diluted the principles of Secularism as encapsulated by Sheikh Abdullah in 1972. The population of religious minorities such as Hinduism, Buddhism, and Christianity has considerably decreased as compared from the time of their independence. As per 2011 National Census Report of Bangladesh, Muslim consist of 90.4%, while Hindus amounts to just 8.5, Buddhism to just 0.6%, Charistianity to just 0.3%, others 0.2%.

Constitutional and statutory status of minorities in Bangladesh:

The Constitution of Bangladesh identifies no minority in the country and fails to accommodate any special provision for its protection. Everyone in the state gets considered equal in the eyes of law[20]

The Fundamental Rights comprise from Article 26 to 47A in Bangladesh Constitution. Article 27 to 31 deals with the concept of Equality. Article 27 lays down the general principal. It is spelt out in greater detail in other articles. In furtherance of article 27, article 28 provides for non-discrimantion only on ground of religion, race, caste, sex or place of birth. Article 29 is limited to same aboresaid grounds while ensuring equality of opportunity in public employment.

This principle of equality could not be followed when the question of promotion of culture came. Article 23 encourages the State to ratify measures that will help in conserving the cultural traditions and heritage of the Bangladesh people.

In the same Article the possibility of the Bangladesh people to contribute towards and participate in the enrichment of the national culture has been guaranteed but unfortunately the national culture of Bangladesh gets identified by dominant majority Bangali Muslim culture and the other religious or ethnic minorities can hardly think to promote and improve their own language, literature or artworks.

It is unfortunate that no major step has yet been made to protect the traditions and heritage of the minority people in Bangladesh. It is true that all over the world the minority groups are in one or another way dominated by majoritarian however different States have come out different protection mechanisms in their Constitution as well as in other enactments. However it seems that the Bangladesh Constitution contains a very few such clauses and that is also not compulsory for the state to follow.

The State is empowered to make special provision for the advancement of any backward sections of the citizens[21] or the State is empowered to make laws for reservation of any backward sections of the citizens, if not adequately represented in the Service of the Republic or reserving appointments to the person of particular religion or denomination, if the office is in connection with the affairs of any religious or denominational institution[22] however no such major step has yet been taken to equip minorities with affirmative action.

Despite having a constitutionally protected right[23] against disfigurement, damage or removal of any monuments, objects or places of special artistic or historic importance or interest, the State has miserably failed to provide protection to temples and other places of religious importance which are constantly subject to damage, defacement and illegal occupation[24]. Further all these provisions appear of no use when anybody goes through Articles 8(1), 8(1A), 2A and 25(2) [25]. All these highly discriminatory articles for the minorities were not in the original Constitution of Bangladesh.

The later amendments, especially the 5th and 8th incorporated these highly discriminatory provisions. It would not require a genius to understand that all these provisions are insulting and humiliating for the minorities. Absolute trust and faith in the almighty Allah is a total denial of the freedom of other religions belief in the state[26] , which goes completely against the cause of secularism which the original Bangladesh Constitution subscribes to.

Another provision on the same line is that it becomes their constitutional responsibility to set absolute trust and faith in the almighty Allah while performing any any statutory action[27]. The intense aggression came in the 8th Constitutional amendment wherein Islam was declared as the state religion making the people believing in other religion as the second class citizen in their own country. Though It carries space for practicing other religions in peace and harmony, the concept of State religion was a great harm to the religious rights[28]

In a welcome development, High court of Bangladesh in Bangladesh Italian Marble Works Limited vs. Government of Bangladesh, commonly known as Fifth Amendment case, declared 5th amendment as void and illegal[29]. The honorable High court reinstated the secular principle which is enshrined in the Preamble of the constitution of Bangladesh. This decision was subsequently upheld by the supreme court of Bangladesh in 2010[30] A constitutional amendment was also passed in 2011, which was said to have restored the secular nature of the state. However the state religion of the republic remains intact i.e Islam. It appears difficult for a state having religion to remain secular.

The author is of the view that in a secular state any union of state with religion is an oxymoron as a secular state follows the principle of non-establishment of any religion. If a state has a religion, it becomes difficult to disassociate state affairs from religion, which would be against the essentials of secularism. It appears to be more attributed with a feature of a state with a single established religion than a secular state. Further Bangladesh has not yet come with any effectual steps for protection and welfare of the minorities. It has been witnessed that religious minorities in Bangladesh are not able to enjoy full religious rights. This all makes the claim of Bangladesh to be secular contentious.

Chapter XV of Bangladesh's Penal Code, 1860[31] deals with offenses related to religion. This chapter contains provisions which prohibit injuring or defiling a place of worship with an intention to insult the religion of any class, deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion and more importantly uttering words with deliberate intent to wound religious feelings.

Personal laws of an individual concerned governs family law matters like, divorce, marriage, guardianship, maintenance, adoption, etc. Muslim personal laws that are predominately based on Hanafi School regulates the majority Muslim population.

The most draconian law against Bangladesh religious minorities, particularly Hindus, was The Vested Property Act, 1972. This act mandated the government to take over the property of those who left the country and migrated to somewhere else. Despite being repealed in 1974[32], it has been alleged that the law was and still is being used by local and political elites to grab Hindus lands. In welcome development, The Bangladesh Parliament has passed the Vested Property Return (Amendment) Bill, 2011 which now enables those persons, who were deprived of their property, to reclaim it.

Conclusion:
The spirit of secularism found its rightful place in the draft constitution of India even after the body who drafted saw and experienced the monstrous face of communalism in the wake of partition. Minorities were given abundant protection by way of constitutional and other statutory means.. This is indeed a laudable feat which Iqbal A Ansari has very rightly acknowledged; “The framers of the Constitution deserve credit for having withstood their ground during the period March-April 1947 through Feb. 1948 till April 1949- a period which witnessed the history's worst communal holocaust in this part of the world[33]

Even after partition the then first prime minister of India and Pakistan entered into a bilateral treaty for protection of minority rights in their respective countries which is known as Nehru-Liaquat Pact where present day Bangladesh was also part of Pakistan until the latter's dismemberment in 1971. In 1947, India was partitioned on the basis of “two- nation theory and Pakistan came into existence as a Muslim state. But this Muslim state was left with a large non-Muslim minority, particularly in East Bengal (now Bangladesh). The non-Muslims were roughly about 14 percent of the entire population of Pakistan. Before 1947 the minorities, particularly the Hindus were politically and economically dominant in East Bengal. The emergence of Pakistan reversed their dominance.

The Hindu minority in East Bengal began their life in the new political regime in an atmosphere of communal hatred and disgrace. The emergence of Bangladesh in 1971 was considered as a victory of the secular forces and the minority communities took it as an end to the reign of terror and communal tension. However our neighbouring country Bangladesh which was originally East Bengal has failed miserably in protecting the rights of religious minorities. The minorities in this region had to first face oppression from the then dominant Pakistan (Before 1971 Bangladesh was part of Pakistan) which was openly an Islamic country and even after Bangladesh gained independence and became a secular country, no provision in the Constitution was done to safeguard the rights of minorities.

The time has reached that the leaders in Bangladesh are using religion to polarise the society and thereby gaining political advantages. The Prime Minister of Bangladesh, Sheikh Hasina, troubled with this problem, had once said that the phrase “Bismillah-ar-Rahman-ar-Rahim, the very opening words of constitution of Bangladesh, has been retained because it reflects the faith of the majority[34]. But she failed to understand that the real problem is not with the word Bismillah (which is in Arabic), but in the use of the word to gain political advantage and when religion is associated with politics it can lead to great destruction.

In the light of the above situation, the author believes that since the two nations have historically professed and shared the idea of secularism, it is unfortunate that Bangladesh has chosen a different path for dealing with minorities, which is hurting the minorities more than protecting them from majoritarianism. A constant decline of minority population is one of the testimony to this[35]. The minority have been victimized brutally, particularly religious minorities. It is really an odious act. Since independence in 1971, unfortunately no government has taken any major step towards protection of minority rights. If the Republic of Bangladesh really believes in secularism which they claim to be, instead of organizing festivals of minorities[36] it should take sincere efforts to resolve the long- standing demands of the minority in the country. Only then will it become a Secular State in the truest sense.

End-Notes:

1. 3 Greco-Bulgarian Communities, Advisory Opinion, 1930 PCIJ (ser. B). Available http:/ /www. worldcourts.com/pcij /eng /decisions/ 1930.07.31 greco-bulgarian.htm
2. F.M.Muller, The Sacred Books of the East, Oxford University Press (1967)
3. Indian Councils Act of 1909, access from www.britannica.com
4. Mohammad Mohibul Haque,The Rights of Minorities in India with Special Reference to the Role of the National Commission for Minorities (2009)
5. Constituent Assembly Debates [CAD], Vol. I, p.57.
6. India Const, article 14
7. India Const, article 15
8. India Const, article 16
9. B.L Fadia, Indian Government and Politics, Sahitya Bhavan Publications, 2004
10. India Const, article 25
11. India Const, article 26
12. India Const, article 27
13. India Const, article 347
14. India Const, article 30
15. Ahemdabad St.Xavier's College vs State of Guajrat, AIR 1974 SC 1389
16. Notification of Gazette of India by Ministry of Minority Affairs dated 27th January, 2014
17. National Commission for Minorities Act, section 9,Act no.9 of 1992, Acts of Parliament,1992 (India)
18. Indian Penal code, Section 295 to 298, Act no.45 of 1860, Acts of Parliament,1860 (India)
19. Meghna Guhathayurta & Willem Van Schende,The Bangladesh Reader: History,Culture, Politics (2013
20. Bangladesh Const, article 27
21. Bangladesh Const. article 28(2)
22. Bangladesh Const. article 29(3)(a)
23. Bangladesh Const.,article 24
24. Amena Mohsin,Rights of Minorities in Bangladesh,page no. 229 and 230, 2003
25. Bangladesh Const. article 2-A (The state religion), article 8 and 8(1A) (Fundamental principles), article 25 (2) (promotion of international peace, security and solidarity), article. 8, 8(1A), 25(2) omitted by 15th constitutional amendment Act, 2011.
26. Bangladesh Const., preamble and article 8
27. Bangladesh Const. ,article 8(a)
28. Bangladesh Const., article 2-A
29. DLR (AD) (2010)70
30. Khondker Delwar Hossain, secretary B.N.P.party vs Bangladesh Italian Marble Works Ltd.,Dhaka and other, DLR (AD) (2010) 298
31. Penal code, 1860,Section 295,295A,298, Act no. 45 of 1860,Acts of parliament (Bangladesh)
32. The Enemy Property(continuance of Emergency provision) (Repeal) Act, 1974, Act no.45,Acts Of Parliament (India)
33. Vol. II, Iqbal A Ansari, Readings on Minorities: Perspectives and Documents, Page no.26,1996
34. Amendment Empowered People: The DAILY STAR (Bangl.), July 1, 2011, at 1; Shakhawat Liton, JS Body Moves to Play Safe, DAILY STAR (Bangl.)
35. The Hindu Population came into 8.5 Percent from 22 Percent in 1951,National Population Census Report of Bangladesh-2011
36. Dipan roy, Sheikh Hasina government sets precedent in minority rights protection, from http//www.economictimes.com