Author: Gurpreet Mahajan
Publication: The Indian Express
Date: April 14, 2007
URL: http://www.indianexpress.com/story/28333.html
Earlier this month a single judge of the Allahabad
High Court held that Muslims could no longer be treated as a religious minority
in Uttar Pradesh. A day later, a division bench of the same high court stayed
the order. But the case has stoked more than a few curiosities - and some
anxieties - about a vital and sensitive issue. Who is a minority in India?
How is that term defined in the Constitution, or by convention? What are the
criteria used? Gurpreet Mahajan takes on those and other questions
o How does the Constitution define and identify
a minority?
The Constitution does not define the term
minority. The term minority/ies was used in Articles 29, 30 and 350B but the
Constitution neither gave a list of minorities nor did it offer a criterion
for designating a community as a minority.
o Were there any conventions that shaped our
understanding and use of the term minority?
While deliberating on the subject of Fundamental
Rights, the Constituent Assembly had constituted a sub-committee on Minorities
with members from the following communities and groups: Muslim, Sikhs, Parsis,
Anglo-Indians, Indian Christians, Scheduled Castes, Tribes and women. Five
elements need to be noted here:
o In the Constituent Assembly religious communities
as well as disadvantaged communities like Scheduled Castes, Backward Tribes
and women were viewed as minorities.
o The Assembly identified Muslims, Sikhs,
Christians, Anglo-Indians and Parsis as religious minorities.
o Subsequently when the same Committee considered
separate representation for minorities, Muslims, Sikhs, Indian Christians,
Anglo-Indians, Parsis, Scheduled Castes and Backward Tribes were identified
as minorities and representation in proportion to their size in the total
population was considered a viable way of granting these communities representation
in legislative bodies.
o Linguistic minorities were not identified
or separately represented in the deliberations, although the Constitution
that was framed mentioned the rights of linguistic minorities and even mandated
a Special Officer for Linguistic Minorities. Just who might be considered
as linguistic minorities was therefore even less clear.
o Even at the time of framing the Constitution
some communities complained that they should have been included as minorities.
The Jain community, in particular, made several representations in this regard.
After independence our understanding and use
of the term minorities drew upon the practices of the Constituent Assembly.
Certain religious communities that had been represented at that time along
with the Scheduled Castes and Tribes came to be identified as minorities.
It was only in 1978, when a separate commission was set up for the SC and
ST and another for minorities, that this term began to refer primarily to
religious minorities.
o What was the criterion that the Constituent
Assembly used for identification of minorities? Did it focus on numerical
strength of a community, its self-perception or degree of disadvantage faced
by it?
The size of a community was certainly a consideration
but it was not the determining factor. There were many groups, from Namboodripads
to Jains, who desired separate representation on account of their small size.
But this was not accepted. Similarly, self-perception also did not count.
Jains saw themselves as a small and distinct religious community, but they
did not get the status of a minority. Disadvantage, material and economic,
again was not the crucial condition of being a minority. Parsis and Sikhs
neither saw themselves as disadvantaged nor were they perceived by others
as disadvantaged. The Sikhs desired special consideration in recognition of
the contributions they had made to the nation. So disadvantage too was not
the mark of a minority.
What seems to have mattered was the size of
the community and the perception that it was a distinct religion. It was recognition
of the distinctiveness of a religious community that was crucial. Obviously,
not all communities that claimed to be different were recognised as being
a distinct religion and this remains till today a major point of debate. Indeed,
the Supreme Court too ignored the self-perceptions of the communities when
it maintained that the Arya Samaj and the Rama Krishna Mission are part of
the Hindu religion and could not be treated as a distinct religious minority.
There are thus a number of problems in the way we have determined what constitutes
difference, but difference/distinctiveness rather than disadvantage was the
operative factor in the designation of religious communities as minorities.
o Has the same criterion been used for identification
of linguistic minorities?
In the recognition of both religious and linguistic
minorities numerical strength and distinct identity have received consideration.
However, the Supreme Court has ruled that in cases where the state law is
the point of reference, minorities have to be identified in the context of
the state and not the total population of the country. Hence, linguistic minorities
have been identified in terms of their strength in the state. As a consequence,
we have a situation where some groups may be part of the religious majority
in the nation but a linguistic minority in a region or vice-versa; they could
be a linguistic minority in one state but a majority in another. It is this
complex and multilayered notion of minority that has determined the identification
of minority educational institutions.
o If disadvantage is not the criterion, why
should there be special consideration for minorities?
Special consideration for religious and linguistic
minorities was a safeguard against cultural/religious and political majoritarianism.
Minority rights were intended to assure these communities that they will not
be compelled to assimilate into the dominant culture or the Hindu majority.
In addition to it, these rights were expected to ensure that different cultures
can survive and flourish, and that individuals, if they so choose, can impart
their collective religious and cultural inheritances to their children. These
then were the interests that were to be protected. They were given as matters
of right rather than the benevolence or largesse of the majority to make our
democracy multicultural.
o Have minority rights served the purpose
they were intended for?
These rights have helped diversities to flourish
but they have not, and cannot be expected to, protect the minorities, particularly
in situations of inter-community conflicts and other forms of stigmatisation.
Situations of the latter kind require protection of the basic rights of individuals
as citizens, and minority communities need this even more.
The writer is professor, Centre for Political
Studies, JNU
