Re-defining Minority?

Prof. Rasal Singh
Senior advocate Ashwini Upadhyay has filed a writ petition before the Hon’ble Supreme Court challenging the constitutionality of Section 2(f) of The National Commission for Minority Educational Institutions Act, 2004 (NCMEI Act), and Section 2(c) of The National Commission of Minorities Act, 1992 (NCM Act), alleging that these acts give unbridled power to the Centre government to notify any community as a minority. He went on to term these acts “manifestly arbitrary, irrational, and offending articles 14, 15, 21, 29 and 30 of the Constitution of India”. The petitioner urged the Apex Court to declare these acts unconstitutional, if not, then at least give the benefit of these provisions to Hindus in those states where they are a ‘minority’. A just and an expedient demand was made by the petition to define the word ‘minority’ used in a specific context in the Constitution and to formulate clear guidelines and manuals for ascertaining the same. The word minority was used in Articles 29, 30 and 350 of the Constitution, however, it has not been explicitly explained there. Taking advantage of this, the Congress-led dispensation indulged in vote bank politics at the time of the formation of the Minorities Commission in 1992. Questioning the prevailing definition of minority and linguistic minorities, Ashwini Upadhyay said that according to the current definition, there should be hundreds of religious minority groups and thousands of linguistic minority groups in the country today. But why has this status been granted to only a handful of communities? Isn’t this a rare example of the politics of communal appeasement? The Muslim, Sikh, Buddhist, Parsi and Christian communities have been treated as minorities under Section 2(c) of the National Commission for Minorities. In 2014, the Jain community was also given minority status, but not the Hindus, though they are a minority in six States and three union territories.
In the context of this petition, the Ministry of Minorities Affairs, Government of India, while filing its affidavit in the Supreme Court, clarified that it is not only the Central Government that has the authority to grant minority status; rather the state government can equally give similar status to a community based on its numbers and socio-cultural status in that state. Based upon the data collated in the 2011 census, the Ministry of Minorities Affairs has further clarified that the population of Hindus is very less in the States/UTs like Jammu and Kashmir, Lakshadweep, Laddakh, Punjab, Mizoram, Nagaland, Meghalaya, Manipur, Arunachal Pradesh; Hence, they fulfill the eligibility to become a minority. The concerned State Government, if willing may grant privileges and protection to them by declaring them as minorities within the geographical limits of the state. The Maharashtra government has taken a lead in this direction by giving minority status to Jews in their state. On similar lines, the Gujarat government had also granted minority status to the Jain community.
In the light of the above, it is imperative to frame a comprehensive manual giving a more inclusive and rational definition of ‘minority’, so that the Centre / States do not misuse this provision arbitrarily. Ashwini Upadhyay based his petition on the historic judgment given in 2003 by an 11-member Constitution Bench of the Supreme Court in the case ‘TMA Pai Foundation Vs Union of India’. In this judgment, the Hon’ble Supreme Court made it clear that the unit determining the status of a religious or linguistic minority would be the State. Even for making laws related to minorities, the unit responsible will be the state(s), and not the whole of India. This judgment in the TMA Pai case since then has become the law of the land; hence the nomenclature of religious and linguistic minorities should be based on their population in the states, considering the state as a unit.
It is interesting yet unsettling that although the number of Muslims living in India (19.4 Crore) is more than those residing in Pakistan (18.4 Crore), yet they are still a minority in India; reasons for this are worth contemplating. Immediately after taking charge of the ministry of minority affairs in 2014, Najma Heptulla made a powerful comment on the minority status of Muslims. She said that since Muslims are in overwhelming numbers in India, they cannot be treated as a minority. Further in this context, the definition of ‘minority’ given by the United Nations is significant. According to the United Nations, “A community which has no social, economic and political influence and whose population is negligible, shall be called a minority.” Likewise, the Indian Constitution conceives ‘minority’ as an open category to protect the interests of various religious, linguistic, and culturally distinctive groups. The distinctiveness of a numerically inferior group is certainly recognised as a legal criterion to determine the minority status of any community. The constitution has no provision for granting rights to any specific community in general, rather it guarantees equal rights to all the communities. However, under the ambit of NCMEI and NCM Act, a wrong practice of giving special facilities, rights, and preference to a particular community by arbitrarily granting minority status has been in practice and is completely in violation of the spirit of the Constitution. Thus, taking into consideration the definition of minority given by the United Nations and in the true spirit of the constitution, does the Muslim community entitled to minority status in India?
Taking serious cognizance of the above facts, the Hon’ble Supreme Court should pass necessary rulings to prevent the misuse of the provisions of the National Commission for Minorities Act, 1992 and the Minority Educational Institutions Act, 2005. Affidavit of the Central Government proposes a viable alternative in this direction. Whereby the historical injustice incurred can be mitigated by the State Governments by identifying and naming religious minorities within the geographical boundaries of their State. So far, those who are in majority in terms of numbers in a particular state exist as a minority in the schemes of the state and central governments. However, for a complete solution to the problem, the hon’ble court should lay down just, logical, and clear guidelines to define minorities, grant this status to the communities that deserve it, and to ensure that privileges and protections under these acts are granted to them only. The idea of giving minority status at the district or sub-division level is also talked about, by making the population of the districts/sub-divisions as the base unit. However, this will not eradicate the problem; rather, it will further create chaos and disorder. India is a diverse country wherein the linguistic diversity is immense. Suggesting the language variations in India it is often said, “The water changes after each miles & the language after every four”. Therefore, the proposal to give minority status at the state level by making the population of the state as a unit is more reasonable and pragmatic. Apart from numbers, participation and presence in socio-cultural spaces, business and governance should also be made the basis of determining minority. In places like Lakshadweep (96.2%), Assam (34.2%), West Bengal (27%), Kerala (26.6%), Uttar Pradesh (19.3%) and Bihar (17%), the population and participation of the Muslim community is significant, from the legislatures to the bureaucracy and public life, they have proper participation in every sphere. While on the other hand, in states like Assam and West Bengal, the non-Muslim communities are fearful and insecure due to Muslim appeasement and their disproportionate share.
Taking grasp of the above facts, the Allahabad High Court, in a landmark judgment in 2005, stated that Muslims are no longer a minority owing to their numbers, and have significant representation in every sphere. They don’t even have an existential threat. It is henceforth imperative to keep in mind the basic spirit of the Constitution while formulating the definition of minority and the Directive Principles of the state policy. Furthermore, it is essential to recognize that though a feeble number is a basis for being a minority, it cannot be the soul rational for it. Also, while verifying scheduled castes, scheduled tribes, and backward classes just as the status of a particular caste varies from one state to the other, on the similar grounds why don’t the change in situation in case of minorities is considered? The Hon’ble Supreme Court needs to formulate an exact guideline to put the kibosh on all the prevailing discrepancies and ironies vis-à-vis minorities, so that Sabka Saath and Sabka Vikas can become a reality in every part of the country. Also, the constitutional provisions should be used to ensure proper participation of the communities concerned, and not for the appeasement of a particular community and vote bank politics. Certainly, Jammu and Kashmir is the prime example of misuse of these provisions.
(The author is Dean, Students’ Welfare, Central University of Jammu.)

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