The many faces of India’s minority
As the meaning of minority changes from one state to another, is there a need to redefine it, asks Manavi Kapur
As the meaning of minority changes from one state to another, is there a need to redefine it, asks MANAVI KAPUR
When Ashwini Upadhyay, Supreme Court advocate and Bharatiya Janata Party’s Delhi spokesperson, filed a public interest litigation in the apex court, it seemed he knew exactly which petition would grab headlines. In a three-prayer petition, Upadhyay’s final petition — that Hindus be granted minority status in the eight states where they are in minority — was the one that became a talking point. While the Supreme Court asked Upadhyay to make a representation to the National Commission for Minorities and not its own bench, what seemed like a ludicrous demand for a Hindu-majority nation raised pertinent questions about the definition of minorities and the rights that they are granted.
This isn’t the first time, though, that the Supreme Court has been faced with the question of defining minorities. In 2002, the court ruled in the TMA Pai Foundation vs State of Karnataka case that the unit to determine whether a community is in minority or not should be the state and not the entire country. “The problem is, our states are divided linguistically and our definition of minorities is on the basis of religion,” explains Upadhyay. For this reason, his plea also included a section on defining minorities linguistically.
The question, though, has been left unanswered and open-ended in several Supreme Court decisions pertaining to cases on the rights of minorities. This is also because the Constitution itself is not entirely specific in its definition of what constitutes a minority community. While it talks about protecting minority rights, only articles 29 and 30 of the Constitution lay out what those rights are. “These are restricted to the setting up of educational institutions and protecting a community’s freedom to practice its religion freely,” says Upadhyay. He adds that in the absence of a coherent understanding of what a minority is, the international definition could be a viable alternative. “If it is challenging to identify minorities linguistically, then the guidelines should notify minorities based on their population and their social, economic and political non-dominance.” The challenge, though, is that internationally, too, minorities remain open to interpretation. “There is no internationally agreed definition as to which groups constitute minorities. It is often stressed that the existence of a minority is a question of fact and that any definition must include both objective factors (such as the existence of a shared ethnicity, language or religion) and subjective factors (including that individuals must identify themselves as members of a minority),” reads the section on minorities on the United Nations Human Rights Commission’s website. Defining minority But Wajahat Habibullah, former chairperson of the National Commission for Minorities and the first chief information commissioner of India, suggests that the present definition of the minorities is sufficient. “As far as the cultural, religious and educational rights of the minorities are concerned, the Constitution is quite succint.” Habibullah points to another Supreme Court ruling that raised an equal number of questions as it answered. The 2005 judgment in the Bal Patil case denied Jains the status of a minority community because the court considered them to be a part of Hinduism. While Jains were later notified as a minority in 2014, Habibullah says that the court observed that India is a “nation of minorities”. “There is only one central law governing the rights of minorities. One cannot disagree with the idea that a more nuanced application is required.” For instance, he says, Hindus are a minority in Jammu and Kashmir. “But, they are dominant in one region, while Muslims and Buddhists are in majority in the other two regions. In the case of J&K particularly — where the state has its own Constitution — it can effectively set up a state minorities commission. They would need a complex regional law to genuinely protect the rights of minorities,” he says.
Both Habibullah and Upadhyay point out the inherent contradictions in the laws pertaining to the minorities: while they are governed by the Centre, a chunk of the law actually pertains to state functions such as education and the protection of religious practices and shrines. Central government functions, such as reservations for recruitment to the Indian Administrative Services or the armed forces, are not covered under the gamut of protections offered to the minorities.
“Muslims, despite being the largest minority, have poor representation in government jobs. The only way to truly uplift the community is to have reservation in these jobs like the Scheduled Castes and Scheduled Tribes, who have progressed only because of this reservation policy,” says Praveen Davar, a former member of the National Commission for the Minorities and former secretary of the All India Congress Committee. “We talk about reservations for Jats and Patidars, but what we need is another Sachar Committee-like report that can examine the real state of economic backwardness of each community and then provide reservation proportionate to their numbers,” he adds.
Affluence and economic well-being was a factor that was put forth in the argument against giving the Jains a minority status. “But that is a misrepresentation of facts. Over 30 per cent Jains are below the poverty line,” says Lalit Gandhi, national president of the All India Jain Minority Federation. Experts, though, believe that their backward status in terms of education was what tipped the scales in the Jains’ favour. “The government granted us a minority status not because we asked for it. It has always been our Constitutional right that was finally being granted to us,” he says. The benefits of being in the minority While educational reservations and the autonomy to practice their religion peacefully seem rather innocuous, the several benefits afforded to a minority community speak volumes about the fight for a minority status. In the three years since the Jains were granted minority status, over 150,000 girl students have received educational scholarships from the Centre. “Low-interest business loans are granted to small entrepreneurs and students studying abroad receive a subsidy on the interest of loans from the central government,” explains Gandhi.
There are, then, many aspirants for the minority status, outside of the six notified religious communities — Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains. Keeping the definition of a minority community fluid also helps keep the clamour for this status at bay.
“I think the Supreme Court decisions in these matters have laid sufficient ground. The Supreme Court bases its judgments on the Constitution, which leaves little room for any radical change or upheaval,” says Panna Lal Punia, Rajya Sabha MP and former chairperson of the National Commission for Scheduled Castes. For now, though, experts say that barring a few hiccups, the definition of minorities should in itself be left untouched. Habibullah, while agreeing that a state-specific approach could prove fruitful in the long run, believes that for a country as diverse as India, it is difficult to prescribe a formula for what constitutes a minority.
“Communities could even be minorities temporarily. But unless there is a demand from the communities themselves, a major change in the interpretation can open the door for peculiar ideas, of which there is no paucity,” he says.
But for Upadhyay, this is not the end of the road. “The law should protect minorities. If we are not clear about who and what constitutes a minority, the law becomes meaningless,” he says. The Hindus remain a majority for now, even where they are not.
“As far as the cultural, religious and educational rights of the minorities are concerned, the Constitution is quite succint“