The curious case of declaring minorities in India

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In July 2019, the National Commission of Minorities sub-committee through its report refused to entertain a plea filed by Advocate and BJP leader Ashwini Kumar Upadhyay to declare Hindus a “minority community” in states where they don’t form the majority of the population.

As per 2011 census, Hindus are in minority in 8 states and union territories, namely: Jammu & Kashmir, Punjab, Nagaland, Mizoram, Meghalaya, Manipur, Arunachal Pradesh and Lakshadweep. The plea requested the Commission, established under the National Commission of Minorities Act (1992), to declare Hindus a minority community under Section 2(c) of the Act in States where they are in minority.

What was the response of the commission?

The Commission, while rejecting the plea, stated that the power to declare minorities lies solely with the Central Government and the Commission is only empowered to work and ensure the progress and development of minorities and safeguard their social, educational and cultural rights. The Commission further claimed that Section 2(c) of the Act clearly states that only the Central Government can notify a community as a “minority”. 

Further, the report by the sub-committee referred to the Supreme Court judgment in the case of Bal Patil v. Union of India (2005) in which the Court held that the Commission is not empowered to define minorities. Moreover, the Court also ordered the Commission to abstain from entertaining such pleas and instead focus on bridging the majority-minority divide.

Who are ‘minorities’ in India?

The term minority has nowhere been defined under the Indian Constitution. However, it is defined under Section 2(c) of the NCM Act, 1992 as a community which has been notified as such by the Central Government. Furthermore, International Law defines minorities as groups which possess distinct and stable ethnic, religious and linguistic characteristics.

That having being said, the word minority has been used in the Indian Constitution under Articles 29, 30, 350-A and 350-B but no clear definition has been provided as such. Articles 29 and 30 of the Indian Constitution primarily refer to social and cultural rights of linguistic and religious minorities in India.

Moreover, the Government through notifications in 1993 and 2004 has declared six religious minorities in the country, namely: Muslims, Sikhs, Christians, Jains, Buddhists and Parsis. However, the criterion for determining such minorities remains vague and ambiguous.

What is the constitutionality of declaring minorities in India?

In the case of The Kerala Education Bill (1958), the question of ascertaining the status of a minority community first arose in front of the Supreme Court. While the Court stated that a minority simply means a community which is numerically less than 50%, but 50% of what? The Court remained unclear whether such numerical inferiority is limited to the entire country, or an entire state or a part thereof. It is possible that a community might be in majority in a particular state (Muslims in J&K) but in majority in the country or vice versa.  

Further, in the case of TMA Pai v. State of Karnataka (2002), the Supreme Court took a more specific view regarding the status of minority communities in a state. The court opined that the status of a minority community should be determined on the basis of the state since states have been reorganised on linguistic basis. Therefore, the Court held that both linguistic and religious minorities have provided equal status under Article 30 and have to be determined state-wise. 

Finally, in the case of Bal Patil v. Union of India (2005), the Supreme Court stated linguistic and religious minorities are different from each other but concurred with the TMA Pai verdict that minorities should be determined state-wise. However, the Court clarified that only linguistic minorities should be declared state-wise and not religious minorities. The Court believed that it is pertinent to declare religious minorities nation-wise to preserve the unity and integrity of the nation. Moreover, the court held that the National Commission of Minorities is not empowered to declare a community as a minority and only the central government is empowered to do so.

The way forward

The status of religious and linguistic minorities still remains highly ambiguous and further clarity is required in order to create a clear distinction between the two. Moreover, the creation of the state of Telangana has further debunked the criteria that linguistic minorities should be determined state-wise since the creation of Telangana was not on linguistic basis. However, the formula devised in the Bal Patil case could be implemented to provide a distinction between linguistic and religious minorities.

Further, if a minority community is seeking protection in a State, then a law should be enacted by the state government to identify such community. On the other hand, if a minority community is seeking protection at the national level, then a parliamentary enactment should be passed.

Finally, a clear procedure should be introduced to determine the status of minorities both at state as well as national level to streamline the identification process. A robust and fair identification process would allow such communities to avail their legitimate share in the state resources.

This article is brought to you in collaboration with Ritwik Sharma from Amity Law School, Delhi.

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