Designation of ‘minorities’ is well-settled in law. The current debate is unnecessary
“Equality to all and appeasement of none” has been the BJP’s mantra, though contradictory signals are now visible and strangely, the majority community is presented as a victim of so-called “minority appeasement” even in Gujarat where elections are due in a few months. Minority rights are essential in a democratic, pluralistic polity because as Franklin Roosevelt reminded us, “no democracy can long survive which does not accept as fundamental to its very existence the recognition of the rights of minorities”.
Manmohan Singh, as Prime Minister, had said that minorities have the first claim to national resources. Najma Heptullah, former Minority Affairs minister in the Modi Government, in her very first statement had refused to even accept Muslims as a “minority”. Some years ago, the Allahabad High Court held that Muslims are not minority in Uttar Pradesh as there is “no threat to their extinction”. It said there is no minority in India. Even as to the Jains’ minority status, the Supreme Court (SC) had held that minority-majority is a legacy of past and no new community may now be recognised as a minority.
Last year, the Modi government asserted in the SC that a secular government cannot set up minority universities. The National Minority Commission is now headless and has just one out of the eight stipulated members. The National Commission for Minority Educational Institutions has been similarly headless for the last three years or so. The Modi government has now asserted in the apex court that Hindus are a minority in the state of Jammu and Kashmir. In a rare move of unanimity, both the Centre and the state government have agreed to resolve this issue together. J&K is currently ruled by the PDP-BJP alliance, so there is nothing surprising in this consensus particularly when Hindus are to be given minority status.
The expression “minorities” has been employed at only four places in the Indian Constitution. The headnote of Article 29 uses “minorities”. Then the expression “minorities or minority” has been employed in the headnote of Article 30 and in clauses (1) and (2) of Article 30. Interestingly, no definition of the term is given in the constitution.
Under International law, minorities are groups that possess distinct and stable ethnic, religious and linguistic characteristics. The crucial point is that these characteristics differ from the rest of the population, and that these groups wish to preserve their distinctive identity even if this identity does not conform to the norms and the values of the majority. Thus, a minority is a group that is numerically smaller in relation to the rest of the population, it is non-dominant to the extent that its values are either inadequately or not represented in the public sphere or in the constitution of societal norms, it has characteristics which differ from the majority group and more importantly, it wishes to preserve these characteristics. Thus, numerical inferiority or powerlessness is the test to determine minority status.
The SC has consistently maintained that minorities are to be defined on the basis of “numerical inferiority”. Since the constitution talks of both religious as well as linguistic minorities, courts have held that minorities are to be defined at the level of the state, as states were carved out on a linguistic basis. Thus, Hindus are certainly minority in J&K and no one should deny them this status. The current case is unnecessary as the law is well settled. The SC, in the D.A.V. College case did hold Hindus as a minority in Punjab. Hindus also have minority status in several Northeastern states.
Since the linguistic basis of state creation is no longer valid after the creation of Telangana, the apex court may re-examine this issue in the context of religious minorities. One approach can be to define religious minorities nationally and linguistic minorities on the basis of the state. But a better approach would be to accept the dissenting opinion of Justice Ruma Pal in the TMA Pai case under which minority status should be determined in relation to the source and territorial application of the particular legislation against which protection is claimed. If it is a parliamentary law, minorities must be defined nationally. On the other hand, if it is state law, minorities may be defined on the basis of numerical inferiority in the state.