An Expert Explains | Hindus as minority: Govt’s affidavit is consistent with the Constitution

Government’s affidavit

BJP has been talking of “justice for all and appeasement of none” to oppose minority rights. On the day she took over as Minister for Minority Affairs in May 2014, Najma Heptulla had said there were too many Muslims in India for them to be called a minority. The government has now had a welcome change of mind — it is not averse to granting minority status to Hindus in Kashmir, Ladakh, Punjab, a few Northeastern states, and Lakshadweep.

The government has sought the dismissal of the petition filed in 2020 by lawyer Ashwini Upadhyay — the affidavit says Hindus can be declared a minority in a few states, and minority welfare schemes are not in violation of Article 15 that prohibits discrimination “only on the basis of religion”; the schemes are for the benefit of the poorer sections among minorities, and the government has a duty under Articles 38 and 46 to protect the interests of the weaker sections of the people.

The government has also defended Parliament’s jurisdiction to enact The National Commission for Minorities Act, 1992, and The National Commission for Minority Educational Institutions Act, 2005. The affidavit says minorities are defined both nationally and at the level of states.

In an earlier petition filed by Upadhyay in the same matter, the Supreme Court had referred the issue of grant of minority status to Hindus to the NCM. A subcommittee set up by the NCM had in 2019 rejected all the prayers, viz., declaration of Hindus as a minority in states where they are not in majority; declaration that the 1993 notification of Muslims, Christians, Sikhs, Parsis etc. as minorities under The NCM Act, 1992, as ultra vires the Constitution; framing of guidelines for the declaration of minorities at the state level; and defining minorities in terms of the 1992 UN Declaration on Rights of Minorities.

The government’s affidavit this week suggests it has now gone against the views of the NCM.

The definition of minority

“Minorities” (or “minority”) appears at four places in the Constitution — in the headnotes of Articles 29 and 30, and clauses (1) and (2) of Article 30. The Constitution does not define “minority”.

The most obvious definition of minorities (and majorities) is in terms of numbers — a minority is a group that is numerically smaller than the majority in a society. But the preponderance or the lack of numbers alone is not a guide to any authoritative definition. In apartheid South Africa, minorities exercised power and domination over the rest of the society.

In some countries, the numerical line dividing minority and majority is so thin that it may be impossible to delineate a minority group. Alternatively, a society may be composed of different groups, none of which forms a minority, numerically speaking. The criterion of numbers may be important, but it is not a sufficient condition for any definition of a minority.

A second component of the definition of minority is that the group must be non-dominant in society and the polity. A group can be conceptualised as a minority when its values and worldviews are either not reflected at all, or are insufficiently reflected in the public sphere and in the constitution of societal norms. These factors reinforce each other — marginalisation and exclusion are extremely important. Muslims satisfy both the tests, viz. numerical inferiority and non-domination. Their representation in Parliament and state Assemblies is at an all-time low.

But numerical size and non-dominance may not necessarily result in a minority/majority problem. A group may be numerically smaller than the others, and its values may be incompletely reflected in dominant political or social norms, but this may not lead to despondency or a feeling of exclusion. Parsis are a good example.

The Constitution talks of only religious and linguistic minorities. It does not recognise sexual minorities such as LGBTQ+. Also, the Supreme Court has accepted only the numerical inferiority test, i.e., less than 50% in a state’s population, for a group to be recognised as minority under Article 30(1).

Supreme Court judgments

This author has long maintained that the PILs for the recognition of Hindus as minority were not required. These petitions have been filed to create needless public discussion on issues that have already been settled in authoritative judgments of the Supreme Court.

In ‘Re: The Kerala Education Bill’ (1958) a seven-judge bench explicitly rejected districts as a unit to determine the minority status of a group within the state of Kerala. The apex court took the “state” as a unit to determine the minority status of groups claiming themselves as minorities.

The 11-judge bench in ‘TMA Pai Foundation’ (2003) laid down that in the absence of any special definition of “minorities”, any community, religious or linguistic, which is numerically less than 50 per cent of the population of a state is entitled to the protection of minority rights.

The Supreme Court has consistently observed that minorities are to be defined at the level of states, which were carved out on linguistic basis, as Article 30 uses the words “minorities, whether based on religion or language”. This author has argued for years that Hindus are entitled to the status of minority community in Kashmir, Punjab and several Northeastern states. A Tamil Brahmin can set up a minority educational institution in a state other than Tamil Nadu — in fact, as linguistic minorities, Hindu groups are running hundreds of educational institutions.

Thus, Hindus are entitled to recognition as a linguistic minority in the whole of India, what to speak of just the seven states/UTs that this particular PIL mentions. The Centre’s affidavit mentions several linguistic minorities that the government of Karnataka recognises. The Supreme Court had held more than a half century ago in ‘DAV College’ (1971) that Hindus are a minority in the state of Punjab, on whom the Punjabi medium of instruction cannot be imposed.

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Religious, linguistic minority

Article 30 gives the same rights to religious and linguistic minorities, but does not say that these minorities must necessarily be determined at the level of the state. In its 2019 report, the NCM said that under section 2 of the NCM Act, 1992, the Centre alone is entitled to notify a community as a religious minority. This was not consistent with the law laid down by the apex court, and the Centre’s March 25 affidavit has cited the example of the Maharashtra government under Devendra Fadnavis, which in 2016 recognised Jews as a minority in the state.

Two views are possible as to the recognition of minorities. One approach can be to define religious minorities nationally and linguistic minorities on the basis of the state. The Government of India under the NCM Act has already notified some religious groups as religious minorities for the entire country.

The second approach can be to accept the dissenting opinion of Justice Ruma Pal in TMA Pai Foundation. The learned judge had observed that whether or not a group is a minority must be determined in relation to the source and territorial application of the particular legislation against which protection is claimed. If a law of Parliament is being challenged, minorities must be defined nationally; if it is a state law, then minorities must be determined at the state level keeping in view numerical inferiority within the state concerned.

In an erroneous decision in 2005, the Allahabad High Court held that Muslims are not a minority as they are too many in number, and also quite powerful. The ‘threat of extinction’ test is not relevant here. The court also held that no one is a minority in India, and thus made minority rights irrelevant. In a controversial judgment, the Supreme Court had in ‘Bal Patil’ (2003) refused to recognise Jains as a minority. A three-judge bench not only went against larger bench judgments but also negated the constitutional vision of the preservation of distinctive identities.

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The court said that no new religious group is to be recognised as a minority, and that the NCM must work towards reducing the list of religious minorities and finally do away with it altogether. This was a call for assimilation — but our Constitution wants integration, not assimilation. Article 25 does not give freedom of religion only in respect of existing religions. It does not bar the birth of new religions. New religions can come into existence, and such groups may be recognised by the government as religious minorities.

In 1930, the erstwhile Permanent Court of International Justice (PCIJ) had defined community not in terms of numbers, but in terms of shared religious, racial, and linguistic traditions, traditions that the group wished to preserve and perpetuate through rituals, education, and socialisation of the young. The existence of a community is not dependent upon recognition by law, the PCIJ observed. In N Ammad (1998), the Supreme Court rightly held that minority status is a matter of fact, and does not require state recognition or declaration.