Recognising minorities

• This week, the Government of India submitted a detailed affidavit in the Supreme Court on the issue of who is a minority, and how minorities are defined in the Constitution.

Background

• In January 1947, Pandit G B Pant said in the Constituent Assembly: “A satisfactory solution of questions pertaining to minorities will ensure the health, vitality and strength of the free State of India. The question of minorities has been used so far for creating strife, distrust and cleavage. Now it is necessary that a new chapter should start. Unless the minorities are fully satisfied, we cannot make any progress.”

Government’s affidavit

• BJP has been talking of “justice for all and appeasement of none” to oppose minority rights.
• Former Minister for Minority Affairs, Najma Heptulla had said there were too many Muslims in India for them to be called a minority.
• The government now asserted that it is not averse to granting minority status to Hindus in Kashmir, Ladakh, Punjab, a few Northeastern states, and Lakshadweep.
• Minority welfare schemes do not violate Article 15 that prohibits discrimination “only on the basis of religion”;, 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.

The definition of minority

• “Minorities” (or “minority”) appears at four places in the Constitution — in 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.
• 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.

Supreme Court judgments

• 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.
• ‘TMA Pai Foundation’ (2003) -The 11-judge bench laid down that in the absence of any special definition of “minorities”, any community, religious or linguistic which is numerically < 50% 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”.

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
• The Maharashtra government under Devendra Fadnavis 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 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.