A public interest litigation has been filed before the Supreme Court to
declare Hindus as minorities in 8 states in India as they constitute numerical
minority in these states. These states are:- Lakshadweep, Nagaland, Mizoram,
Meghalaya, Arunachal Pradesh, Manipur, Punjab and Jammu & Kashmir. The
petitioner has cited the 2011 census data which shows that Hindus are minorities
in these states and as of now they are not considered minorities. So, they are
not beneficiaries of Union Government’s 20,000 scholarships in field of
technical education of minority students. The petitioner has also cited the one
instance on Jammu and Kashmir where Muslims are 68% of the total population yet
are allotted 717 out of 753 scholarships to them, but none to Hindu students.
These states are doing this on the basis of a notification on Minorities
communities issued in 1993 which does not declare Hindus as minorities. “The
Prime Minister’s 15 Points Programme/scheme meant for religious and linguistic
minorities is not being appropriately used, particularly in Arunachal Pradesh,
Assam, Goa, Jammu & Kashmir, Kerala, Lakshadweep, Manipur, Meghalaya, Mizoram,
Nagaland, Punjab, Tamil Nadu, Uttar Pradesh and West Bengal. Hindu’s legitimate
share is being siphoned off arbitrarily to unqualified sections of the
population, because of non- identification and non-notification of minorities at
State level. Although, it is duty of the Government to identify and notify
religious and linguistic minorities at State level so as to safeguard the rights
of minorities guaranteed under Articles 25-30.”
The abovementioned notification was issued by the central government under the National Commission for Minority Act 1992. This act does not define the term minorities but under section 2(c) it says that central government will notify who are minorities. As a result, Muslims, Sikhs, Buddhist, Parsis and Christians were declared as minorities but not Hindus as it was done on national level.
Where the lacuna lies?
The constitution mentioned the term ‘minority’ only on two occasions in Article 29 and in Article 30 but it nowhere defines the term and no effort was made to define it. It was left at the discretion of central government to determine what constitute minorities and they found five religious minorities in India not bothering itself that these minorities are in fact majority in few states. The definition provided by United Nations is “Any group or community which is socially, political and economically non-dominant and inferior in population are minorities”.
The petition argues that although the Hindus are minority in these 8 states yet the legitimate rights granted to minorities mentioned in the notification are arbitrarily and unreasonably siphoned-off from Hindus because the minorities are not determined at the state level. The petitioner has for form the basis of T.M.A Pai Foundation vs. State of Karnataka which clearly states that:
"What constitutes a linguistic or religious minority must be judged in relation to the State inasmuch as the impugned Act was a State Act and not in relation to the whole of India."
The court also said that linguistic minority are determined by taking the state as a unit so religious minority being on the same footing should be determined on the basis of state rather the whole country:
“As a result of the insertion of Entry 25 into List III, Parliament can now legislate in relation to education, which was only a State subject previously. The jurisdiction of Parliament is to make laws for the whole or a part of India. It is well recognized that geographical classification is not violative of Article 14. It would, therefore, be possible that, with respect to a particular State or group of States, Parliament may legislate in relation to education. However, Article 30 gives the right to a linguistic or religious minority of a State to establish and administer educational institutions of their choice. The minority for the purpose of Article 30 cannot have different meanings depending upon who is legislating. Language being the basis for the establishment of different States for the purposes ofArticle 30, a "linguistic minority" will have to be determined in relation to the State in which the educational institution is sought to be established. The position with regard to the religious minority is similar, since both religious and linguistic minorities have been put on a par in Article 30”.
The court further explains the term minority in context of Article 30 and states that:
“Linguistic and religious minorities are covered by the expression "minority" under Article 30 of the Constitution. Since reorganization of the States in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put on a par in Article 30, have to be considered statewise”.
In this judgment the court arrived at this conclusion by examining two cases pertaining to D.A.V College. In the case of D.A.V College vs. State of Punjab the question regarding to what constitutes religious or linguistic minorities and the criteria to define it. The court after referring many cases held that Arya Samaj is are minority in Punjab even though they may not be at the national level. In the case of D.A.V.College Bhatinda vs. State of Punjab the Supreme Court rejected the contention that since the Hindus are in majority in country they cannot be held as minority in the state. The courts in India have from time to time consistently held that state should be the unit to determine to what constitute minorities.
But the executive have not mustered the courage to determine the minority by taking state as the unit as it is a sensitive issue and it is very easy for the government to maintain the status quo.
Jain Community Conundrum
In the case of Bal Patil vs. Union of India the question before the Supreme Court was whether Jains can be declared as minorities under Section 2(c) of National Commission for Minorities Act, 1992. After T.M.A. Pai case the stand taken by the central government in this case is that the ball is in state government’s court to declare Jains as minority or not. This argument was countered by saying that the central government cannot shun its statutory duty under Section 2(c) of the abovementioned act. It was also argued that legal position explained in T.M.A. Pai that state shall be the unit of determining minority status does not render the Section 2(c) redundant.
The court held in this case:
“Before the Central Government takes decision on claims of Jains as a 'minority' under section 2(c) of the Act, the identification has to be done on a state basis. The power of Central Government has to be exercised not merely on the advice and recommendation of the Commission but on consideration of the social, cultural and religious conditions of the Jain community in each state. Statistical data produced to show that a community is numerically a minority cannot be the sole criterion.”
The court also held that the majority Jain community members are affluent business men, industrialists and belong to property class and they do not need the protection provided for minorities in the constitution because these provisions are mentioned to protection and preservation for minorities not to provide additional benefits and rewards thus creating inequality in the society. However, the state government of Gujarat had declared Jains as minorities, so the state government are practicing the law laid down the T.M.A. Pai and Central government also declared Jains as minority community in 2014 just before the general election.
Are Sikhs are minority in Punjab?
In the case of Sahil Mittal vs. State of Punjabthe question before the Punjab and Haryana High Court was whether Sikhs in Punjab are minority or not? The contention raised from the petitioner was that Sikhs are in majority in Punjab and holding strong political and influential position in the society hence they are not non-dominant group in Punjab. In the impugned notification of 1993, country was taken as a unit, which was not permissible after the T.M.A. Pai foundation case. There was no basis for holding the “Sikhs” to be minority in the State of Punjab. The respondent stressed that many communities which are believed to be Sikhs are not in fact Sikhs in strict sense and cited many religious document to further their claim.
But the High Court held that:
“the question is whether there is any iota of material justifying that in the State of Punjab, the Sikhs in general Act were such a group who deserved protection from deprivation of their rights by other communities, who may be in majority and who may gain political power. The answer clearly is in the negative. There is nothing to show from the written statement filed by the State of Punjab that it had any material or even a grievance that as a group, the Sikhs apprehended deprivation of their religious, cultural or educational rights in the State of Punjab from any other community, who may be in majority and who may gain political power in election”
The High Court cited the decision of Supreme Court in the case of The Ahmedabad St.Xavier's College Society and another Ex. v. State of Gujarat and another, where the apex court held that minority status is given to non-dominant group and the apex court further “referred to historical aspect of the matter and observed that the idea of giving some special rights to the minorities is not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence” . The High Court further cited the case of Islamic Academy of Education and another v. State of Karnataka and others, S.B.Sinha, J. “in the context of rights of minorities in professional educational institutions, observed that additional protection to minorities was to bring minorities on the same platform as that of non-minorities and the goal of equality could not be ignored”.
To sum up the High Court held that Sikhs are socially, politically and economically dominant group in Punjab and according to the intention of Constitution makers Sikhs as a community do not need protection or preservation because there is no apprehension of deprivation of their cultural or religious rights guaranteed in Articles 25-30 from the “dominant” groups. However, this decision was stayed by the Supreme Court and the case is pending since then in the Supreme Court.
After reading the cases involving Jains and Sikhs we can come to the conclusion that declaration of minorities at the national level is not in accordance to the equality principle enshrined in our constitution. One question however may arise that for example Hindus are in minority in Lakshwadeep so suppose minority status is granted to them in there and if he or she moves out from Lakshwadeep and settled in Mumbai will its minority status remain or not, this raises the question of feasibility of declaring a Hindu minority but to counter this situation one can say that the status of SC gets changed when a SC moves from Uttar Pradesh to Rajasthan or for that matter in any states where SCs and STs are different.
The Supreme Court in the Bal Patil case said that:
“All religions and religious groups have to be treated equally and with equal respect without interfering with their individual rights of faith and worship. Integrity and unity of India by gradually eliminating the minority and majority classes is the constitutional goal. Atmosphere of mutual fear and distrust can create threat to the integrity of the country and sow seeds of multi nationalism. The Constitution has accepted one common citizenship for every Indian” According to some reports in coming years India will become the home of world’s largest Muslim population and if we follow the same law then they will still be minority which may sounds counter-intuitive to some. If we are stern to maintain the status quo then some criteria for population has to be set below which a community will be called minority and above it will be not but to set the criteria is in itself very controversial as there will be very difficult to justify it.
The Supreme Court in its obiter of Bal Patil case said that:
“The constitutional goal is to develop citizenship in which everyone enjoys full fundamental freedoms of religion, faith and worship and no one is apprehensive of encroachment of his rights by others in minority or majority.” If we look at the reason for setting up for minority commission we can deduce that these commissions were setup to maintain integrity and unity of India by gradually eliminating the minority and majority classes. Hindus in the above-mentioned States are facing every situation which the constitutional makers tried to protect the minorities from by providing them which fundamental rights to protect and preserve their rights form dominant groups.
The petitioner in their petition has argued that:
“It is duty of the State to move beyond the minority-majority binary communal politics, which ironically passes for secularism in this country, has been the bane of our democracy. It can be traced back to the British policy of ‘divide and rule’, the result of which was partition. The Constitution was a repudiation of these ideas and the politics that perpetuated them. It rejected the suggestions for a separate electorate for the minorities and the proportional representation system, which it felt would lead to a perpetually enervated nation. However, in most policies that have been followed until now, we have seen furtherance of vote-bank politics.”
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