By Priyam Mittal

Introduction

On September 15, 2020, two PILS were filed in the High Courts of Gauhati and Meghalaya, challenging the 1992 Notification that nationally recognised Christians, Sikhs, Buddhists, Muslims and Parsis as minorities,[1] and to which Jains were also added in 2014.[2] The petitioners have requested that minority status be determined at the state level, and consequently, that Hindus be declared a minority in eight north-eastern states, since they constitute less than 50 per cent of the population.[3]

This is not the first time that such a claim has been made. In 2017, the same plea was filed by Bharatiya Janata Party leader Ashwini Kumar Upadhyay, and he was referred to the National Commission of Minorities (‘NCM’) by the Supreme Court (‘SC’).[4] The Committee, after a thorough perusal of the matter, concluded that the claims were unfounded, and status quo was to be maintained.[5] In 2019, upon reapplication by Upadhyay, a bench headed by CJI Bobde reiterated that the country as a whole, and not individual states, would be used to determine whether a community is a religious minority.[6] They reasoned that in India, states have been organised on linguistic lines. The request for a fresh criterion for identifying a minority was ultimately rejected.[7]

This blog seeks to analyse this situation from two perspectives. First, it looks at various judgments in the past to see if the courts have laid down the factors determining minority status, and if the same can be applied in the present situation. Consequently, it turns to scrutinising the issue from a sociological perspective. Finally, I conclude with suggestions for changes in the existing system of determination of minority status, so as to prevent such conundrums in the future.

The Lack of a Decisive Pronouncement

The matter of deciding the status of a community as a minority depends on a notification from the Centre, as prescribed under S.2(c) of the NCM Act, 1992.[8] The court can only be approached when the public is dissatisfied with the Centre’s policies in this regard, and not for encroaching upon the domain of the executive by suo motu making laws.[9] However, for argument’s sake, jurisdictional issues will be ignored in this blogpost.

Article 29 and 30 grant protection to linguistic and religious minorities in the country by providing safeguards for preserving their language, script and culture, and establishing and maintaining educational institutions of their own.[10] The word “minority”, while used here, has not been defined. This is why there is no clarity on how to decide whether a community can be classified as a minority, and the SC has adopted varied, highly contradictory stances on different occasions.  This dispute of whether the numerical strength was determinative of minority status, and whether such classification should take place pan-India or state-wise, was first brought to light in 1958 in the Kerala Education Bill case.[11] The judges took cognisance of the matter but moved ahead without answering it.

Next, the DAV college case attempted to answer this question.[12] The SC [R1] in this case held that the fact of the minority would be dependent on the legislation in question. A Central Act would take into account national minorities, while state legislation would count for a state-wise bifurcation. The ruling in DAV was counterintuitive, as it was based on the presumption that the status of a community in a state could change from legislation to legislation.[12]  What was required was a conclusive pronouncement that either amply defined “minority” or decided the level, centre or state, at which the determination would take place. By leaving matters open and fluctuating, DAV did not add anything to the issue except uncertainty.  

This matter was then referred to in TMA Pai[13]. While the main contention here was the extent of permissible state regulation in minority educational institutions,[14] petitioners in subsequent PILs relating to determination of minority status, including the latest one, have repeatedly resorted to TMA Pai for driving their points. Since states in India were reorganised on linguistic lines,[15] and both religious and linguistic minorities were treated at par in the Constitution, the SC in TMA Pai stated that both would be determined on the state-level. While the court was right in saying that linguistic minorities should be, and are determined on a micro level, conflating the same with religious minorities is antithetical to the national identity. In doing so, the court is essentially also assigning a religion to each state, and every other religion hence becomes a minority.

People speaking similar languages and dialects generally reside in a particular geographic area. State languages are officially recognised, and yet examples of linguistic strife, like the North-South divide, are plenty.[16] In times when language can be a divisive medium, further religious segregation is formula for disaster. There is no real nexus between a religious boundary and state borders, and the ramifications of such an artificial link are exactly what the Constitution makers feared.[17] Most of the opposition to provisions like Article 29 and 30 in the Constituent Assembly was because it tended to have a “divide and rule” nature and could result in the dismemberment of the country.[18] It comes as no surprise then, that Fali Nariman called this judgement “an unmitigated disaster for the minorities.”[19]

The Bal Patil judgement in 2005 was met with a lot of criticism for calling Jains a sub-sect of Hindus and refusing them minority status.[20] While the correctness of the decision remains beyond the scope of this piece, there is much to be learnt from the reasoning it employed to come to the conclusion that individual states should not be empowered to decide whether Jains should be treated as a minority or not . The SC rightly acknowledged several social conflicts due to divisive communal forces, and that a state-wise religious minority status would only exacerbate such division.[21] Further, it highlighted that the purpose of having ‘minority status’  was related to the protection and preservation of the linguistic and cultural rights of minorities, and not for bestowing additional benefits that would give rise to inequalities in the society.[22] It went on to hold that encouraging such claims would be in conflict with the secular nature of democracy. In doing so, it went against the 11 bench TMA Pai judgement. 

It is clear that there is no consistency in the way the courts have interpreted “minority.” While the SC has refused to entertain pleas demanding minority status for Hindus, it has not made any reference to the important rulings on this subject matter.

The Sociology of Minority Groups

Minority rights are an essential feature of all diverse societies. It is an egalitarian response to a potential disadvantage.[23] Socio-political majorities do not need special rights – minority status only secures what the majority has always had.[24] For such rights to be accorded, the word must be sufficiently described. Sociologist Louis Wirth was the first to analyse the term “minority”. According to him, it represents a group of people who are singled out from the mainstream population because of cultural differences and are subject to unequal treatment and discrimination.[25]  He constantly updated his definition during this work, and stressed on the objectively disadvantageous position that a group occupies, while rejecting the relationships between the numbers in a group and its minority status.[26] The most banal yet classic example of this paradox is Apartheid in South Africa. The 25 per cent of whites effectively subjugated the “numerical majority.”[27] Therefore, the term hints at substantial inferiority, and not just a numerical one, as has been succinctly put forth by political scientist Andre Liebich.[28]

Additionally, there is consensus that the term has connotations of a power structure, and have considered a deficiency of influence and hold as the central factor in granting minority status to a community.[29] This power is primarily exercised in the economic and socio-political arenas of life, and members of minority struggle with participation to the same degree as the majority.[30] This is also why words like exploitation, domination, oppression, and discrimination are routinely used when discussing minorities.[31] Lastly, sociology also looks at minorities as suffering from a lack of privilege, which benefits certain dominant communities and aids in oppression.[32] The importance of this power struggle and oppression is underscored by the fact that sociologists have suggested replacing the word minorities with the more accurate “oppressed groups.”[33]

Objectively applying these standards to the current debate makes it obvious that Hindus in no manner are a minority. There is no proof to suggest concentrated, systemic discrimination against Hindus in any part of the country, triggering a need for legal protection. The Ranganath Misra Committee’s report on Religious and Linguistic Minorities reported no subjugation faced by Hindus.[34] Isolated incidents, if any, can and should be individually tackled. For example, Ashwini Upadhyay relies on the Hindu Human Rights Report to support the claims of atrocities committed against Hindus.[35] This report makes use of dubious statistics to reach its conclusion, like including SC/ST specific violence within the scope of discrimination against Hindus.[36] The mere possibility of such incidents, especially when numerical strength is no real measure of whether a community is a minority, cannot reason classifying Hindus as a minority. 

Some authors claim that granting Hindus the minority tag will help quell their insecurities and put a stop to fear politics,[37] but this argument is flawed. The state-wise statistics cannot be viewed in dissonance with the overall numbers, and the political environment. Enlisting Hindus as a minority when a Hindu nationalist party is in power, with a brute majority in the Parliament, is bound to have far-reaching implications for the social fabric of the nation. Some amount of tensions between communities have always been a feature of the country, but addressing it through the grant of minority status is not the solution either.[38] Minority rights are a means of ensuring parity, and should not be toyed with.[39]

Conclusions & Recommendations:

The right to practice, profess and propagate one’s religion is granted to all individuals and does not need classification as a ‘minority’, to be properly enjoyed. All that Articles 29 and 30 grant is the right of minorities to set up educational institutions of their own, and so as to assure representation to unheard voices and a level playing field for students belonging to minority communities.[40] While the demand for minority status for Hindus is far from ideal, there is some merit in the additional assertions by Ashwini Upadhyay. As suggested in his petition, going forward, the use of minority status must be restricted.[41] The criteria for such minority status must be revised after considering and incorporating a functional sociological definition of the term. A mechanism needs to be devised for granting such rights only to those communities that meet the muster of the socio-political understanding of “inferiority.” That is, they are deprived of their socio-political and economic agency, and need protection to bolster their rights. Their numerical strength can be used as evidence to corroborate their relatively inferior status, but not as a decisive factor by itself. Furthermore, a scrutiny of whether the relative position of communities has improved in any manner is also essential, to avoid over-dependence on status quo, and to fully gauge what aspects of the system need revision. The ultimate goal, as also envisaged in Bal Patil,[42] is to create social conditions that ensure utmost parity, such that a minority status is not needed in the first place.  

Perhaps, a step in the right direction was The Constitution (103rd Amendment) Bill, 2004 and the NCM (Repeal) Bill, 2004, that were introduced in Lok Sabha.[43] They proposed to define what being a minority meant, and to revamp the pre-existing system for granting minority status. These bills sought to establish a constitutionally mandated NCM that would evaluate the progress of minorities, look into complaints of discrimination and address the various needs of minorities.[44] Additionally, it would also be charged with the responsibility of examining if the constitutional safeguards for protection of minorities were being implemented effectively, and submit periodic reports to the Central Government on these matters. An amendment of this nature would have gone a long way in bringing in greater consistency in the jurisprudence surrounding the matter, and would have conclusively settled the claims for minority status, often frivolous, that appear every now and then. These bills lapsed because of strong opposition by members of different minority groups. These communities were aware that they no longer fit the criteria of a typical minority, for they were adequately represented in mainstream society, and would likely be stripped of their minority status by the Commission as a result.

In conclusion, therefore, the foremost requirement is an overhaul of an outdated, outlived system that does not accurately reflect the widespread changes that have occurred in Indian society, since its inception.

The author, Priyam Mittal, is currently a law student at the National University of Juridical Sciences (NUJS), Kolkata.

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[1] Govt. of India, Ministry of Minority Affairs, F. No. l-11-1992-MC (1) (October 23, 1993). 

[2] Govt. of India, Ministry of Minority Affairs, F.No.1-1-2009-NCM (January 27, 2014).

[3]  Lydia Suzanne Thomas, Pleas in High Courts of Gauhati and Meghalaya seek minority status for Hindus in North East India, September 14, 2020, available at https://www.barandbench.com/news/litigation/plea-in-gauhati-meghalaya-high-courts-seeking-minority-status-for-hindus-north-east (Last visited on September 26, 2020);

According to the 2011 Census, states where Hindus are a minority are as follows — Lakshadweep (2.5 per cent), Mizoram (2.75 per cent), Nagaland (8.75 per cent), Meghalaya (11.53 per cent), Jammu and Kashmir (28.44 per cent), Arunachal Pradesh (29 per cent), Manipur (31.39 per cent) and Punjab (38.40 per cent).

[4] First Post, BJP leader Ashwini Kumar seeks minority status for Hindus in eight states, files PIL in Supreme Court, November 1, 2017, available at https://www.firstpost.com/india/bjp-leader-ashwini-kumar-seeks-minority-status-for-hindus-in-eight-states-files-pil-in-supreme-court-4187363.html (Last visited on September 26, 2020).

[5] Krishnadas Rajgopal, Minorities panel draws its remit, July 30, 2019, available at https://www.thehindu.com/news/national/minorities-panel-draws-its-remit/article28752654.ece (Last visited on September 26, 2020).

[6] Dhananjay Mahapatra, SC rejects PIL seeking minority status for Hindus in some states, December 18, 2019, available at https://timesofindia.indiatimes.com/india/sc-rejects-pil-seeking-minority-status-for-hindus-in-some-states/articleshow/72860951.cms (Last visited on September 26, 2020).

[7] Id.

[8] The National Commission for Minorities Act, 1992,  §2(c).

[9] Tahir Mahmood, Why Hindus cannot be seen as a religious minority in Kashmir (or anywhere else in India), December 24, 2017, available at https://scroll.in/article/862345/why-hindus-cannot-be-seen-as-a-religious-minority-in-kashmir-or-anywhere-else-in-india (Last visited on September 26, 2020).

[10] The Constitution of India, 1950, Art. 29, 30.

[11] In Re: The Kerala Education Bill, AIR 1958 SC 956.

[12] DAV. College Etc v. State of Punjab & Ors, AIR 1971 SC 1737.

[13] T.M.A Pai Foundation v State of Karnataka, (2002) 8 SCC 481.

[14] Supreme Court Observer, Determination of Minority Status, available at https://www.scobserver.in/the-desk/determination-of-minority-status?slug=t-m-a-pai-foundation-v-state-of-karnataka (Last visited on September 26, 2020).

[15] States Reorganisation Act, 1956.

[16] Deepak Saravanan, Hindi and the North-South divide, October 9, 2018,
available at https://www.deccanherald.com/opinion/perspective/hindi-and-north-south-divide-696931.html (Last visited on September 26, 2020).

[17] B Shiva Rao, The Framing of India’s Constitution – A Study 277 (1968).

[18] constituent assembly debates, Book No. 1, December 19, 1946, 114 (1999); constituent assembly debates, Book No. 2, January 24, 1947, 205, 285 (1999).

[19] South Asia Citizens Web, India: Full text of Fali Nariman’s Lecture ’Minorities at Cross Roads: Comments on Judicial Pronouncements’, September 14, 2014, available at http://www.sacw.net/article9565.html (Last visited on September 26, 2020).

[20] Bal Patil v. Union of India, (2005) 6 SCC 690.

[21] Bal Patil v. Union of India, (2005) 6 SCC 690, ¶37.

[22] Bal Patil v. Union of India, (2005) 6 SCC 690, ¶35.

[23] AG Noorani, Tricoloured Vision, March 21, 2006, available at https://www.hindustantimes.com/india/tricoloured-vision/story-c7k2aTIllHcBmS43sm7OLO.html (Last visited on September 26, 2020).

[24] Rajeev Bhargava, Are Minority Rights a Good Idea, June 25, 2017, available at https://www.thehindu.com/opinion/columns/are-minority-rights-a-good-idea/article19141464.ece?oldversion=80.0.1 (Last visited on September 26, 2020).

[25] The problem of minority groups in the science of man in the world crisis 347 (Ralph Linton, 1945).

[26] Id, 348.

[27] Leonard Bloom, The Social Psychology of Race Relations 198 (1971).

[28] Andre Leibich, Minority as inferiority: minority rights in historical perspective, 34 Review of International Studies 243-263 (2008); see also Wesley Morris, Is being a ‘Minority really just a matter of Numbers’, January 29, 2019, available at https://www.nytimes.com/2019/01/23/magazine/is-being-a-minority-really-just-a-matter-of-numbers.html (Last visited on September 26, 2020); Irfan Ahmed, Are India’s Muslims a Minority, June 5, 2014, available at https://www.aljazeera.com/opinions/2014/6/5/are-indias-muslims-a-minority/ (Last visited on September 26, 2020).

[29] the minority report: an introduction to racial, ethnic and gender relations (Gary Anthony Dworkin, Rosalind J. Dworkin, 2^nd ed., 1982); H.M. Blalock Jr, A power analysis of racial discrimination, 39 social forces 53-59(1960).

[30] Hans Van Amersfoot, Minority as a sociological concept, Ethnic and Religious Studies (2010).

[31] Judith Rita Kramer, The American Minority Community (1972)..

[32] Robert Blauner, Racial Oppression in America (1972)..

[33] Barton Meyers, Thematic Issue on Minorities and Social Movements, 32(1) Social Problems 12 (1984).

[34] Ranganath Misra Commission, Report of the National Commission for Religious and Linguistic Minorities (May 21, 2007).

[35] Debayan Roy, PIL in Supreme Court Seeks Minority Status for Hindus in Eight States, November 1, 2017, available at https://www.news18.com/news/india/pil-in-supreme-court-seeks-minority-status-for-hindus-in-eight-states-1563309.html (Last visited on October 18, 2020).

[36] Hilal Ahmed, Can India be a Hindu Rashtra—and Hindus a minority—at the same time?, January 11, 2019, available at https://theprint.in/opinion/can-india-be-a-hindu-rashtra-and-hindus-a-minority-at-the-same-time/176361/ (Last visited on September 26, 2020).

[37] Sagarneel Sinha, Are Hindus in 7 States Justified in Demanding ‘Minority’ Tag, June 14, 2019, available at https://www.thequint.com/news/politics/hindus-minority-status-northeast-punjab-jammu-kashmir-persecution-allegations (Last visited on September 26, 2020). 

[38] Faizan Mustafa, Can Hindus be minority, September 25, 2019, available at https://www.tribuneindia.com/news/archive/comment/can-hindus-be-minority-837807 (Last visited on September 26, 2020). 

[39] The Ahmedabad St. Xavier’s College Society & Anr. Ex. v. State of Gujarat & Anr, 1974 AIR 1389.

[40] Islamic Academy of Education & Anr. v. State of Karnataka & Ors., 2003 (6) SCC 697.

[41] Prathma Sharma, SC dismisses petition seeking guidelines on minority status, December 17, 2019, available at https://www.livemint.com/news/india/sc-dismisses-petition-seeking-guidelines-on-minority-status-11576588749854.html (Last visited on September 26, 2020). 

[42] Bal Patil v. Union of India, (2005) 6 SCC 690, ¶36.

[43] The Constitution (103rd Amendment) Bill, 2004; The NCM (Repeal) Bill, 2004.

[44] PRS India, The Constitution (103rd Amendment) Bill, 2004, available at https://www.prsindia.org/billtrack/the-constitution-one-hundred-and-third-amendment-bill-2004-172#:~:text=The%20National%20Commission%20for%20Minorities,protecting%20minorities%2C%20will%20be%20dissolved (Last visited on October 26, 2020).

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 [R1]Was it not an SC decision?

 [R2]Would request the author to elaborate