Explained: Who is a ‘minority’ in India? What the Constitution says, how Supreme Court has ruled

The petition by Advocate Ashwini Upadhyay has contended that the 2011 census showed that Hindus have become a minority in Lakshadweep (2.5%), Mizoram (2.75%), Nagaland (8.75%), Meghalaya (11.53%), J&K (28.44%), Arunachal Pradesh (29%), Manipur (31.39%), and Punjab (38.40%), but were being denied minority benefits that are currently being enjoyed by the respective majority communities in these places.

The plea relies on the Supreme Court’s 2002 ruling in the TMA Pai Foundation case (TMA Pai Foundation & Ors vs State Of Karnataka & Ors) and the 2005 decision in the Bal Patil case (Bal Patil & Anr vs Union Of India & Ors).

What is the definition of minority under Indian laws?

The expression “minorities” appears in some Articles of the Constitution, but is not defined anywhere.

What does the Constitution say about minorities?

* Article 29, which deals with the “Protection of interests of minorities”, says that “any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same”, and that “no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them”.

* Article 30 deals with the “right of minorities to establish and administer educational institutions”.

It says that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. It says that “in making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority…, the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause”, and that “the state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language”.

* Article 350(A) says there shall be a Special Officer for linguistic minorities to be appointed by the President. “It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under this Constitution and report to the President upon those matters at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned”.

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So, who is a minority in India?

Currently, only those communities notified under section 2(c) of the National Minorities Commission Act, 1992, by the central government are regarded as minority.

And which are the minorities notified by the Government of India?

In the exercise of its powers under the Section 2(c) of the NCM Act, the Centre on October 23, 1993, notified five groups — Muslims, Christians, Sikhs, Buddhists and Parsis — as ‘minority’ communities. Jains were added to the list in January 2014.

What have courts said on the subject?

TMA PAI: In ‘TMA Pai’, an 11-judge bench of the Supreme Court dealt with the question of the scope of right of minorities to establish and administer educational institutions of their choice under the Constitution.

A majority ruling by six judges in 2002 referred to two other cases pertaining to the DAV College in Punjab, in which the SC had to consider whether Hindus were a religious minority in the State of Punjab.

It said, “in DAV College v. State of Punjab [1971]…the question posed was as to what constituted a religious or linguistic minority, and how it was to be determined. After examining the opinion of this Court in the Kerala Education Bill case [1958], the Court held that the Arya Samajis, who were Hindus, were a religious minority in the State of Punjab, even though they may not have been so in relation to the entire country.

“In another case, DAV College Bhatinda v. State of Punjab [1971]…the observations in the first DAV College case were explained, and at page 681, it was stated that “what constitutes a linguistic or religious minority must be judged in relation to the State in as much as the impugned Act was a State Act and not in relation to the whole of India.”

“This Court rejected the contention that since Hindus were a majority in India, they could not be a religious minority in the State of Punjab, as it took the State as the unit to determine whether the Hindus were a minority community. There can, therefore, be little doubt that this Court has consistently held that the unit to determine a religious or linguistic minority can only be the State.”

BAL PATIL: In 2005, the SC in its judgment in ‘Bal Patil’ referred to the TMA Pai ruling, and said:

“After the verdict in the eleven judges’ Bench in TMA Pai Foundation case (supra), the legal position stands clarified that henceforth the unit for determining status of both linguistic and religious minorities would be ‘state’….If, therefore, the State has to be regarded as the unit for determining “linguistic minority” vis-a-vis Article 30, then with “religious minority” being on the same footing, it is the State in relation to which the majority or minority status will have to be determined.

“The minority for the purpose of Article 30 cannot have different meanings depending upon who is legislating. Language being the basis for the establishment of different States for the purposes of Article 30, a “linguistic minority” will have to be determined in relation to the State in which the educational institution is sought to be established. The position with regard to the religious minority is similar, since both religious and linguistic minorities have been put on a par in Article 30.”

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