Hindu as minority: Government’s affidavit is consistent with the Constitution

News: This week, the Government of India submitted a detailed affidavit in the Supreme Court on the issue of who is a minority, and how minorities are defined in the Constitution.

About Government’s affidavit:

It states about granting minority status to Hindus in Kashmir, Ladakh, Punjab, a few Northeastern states, and Lakshadweep. The affidavit says Hindus can be declared a minority in a few states, and avail minority welfare schemes under Articles 38 and 46.

The affidavit says minorities are defined both nationally and at the level of states.

The definition of minority

“Minorities” (or “minority”) appears at four places in the Constitution — in the headnotes of Articles 29 and 30, and clauses (1) and (2) of Article 30. The Constitution does not define “minority”.

First, a minority is a group that is numerically smaller than the majority in a society. Lack of numbers alone is not a guide to any authoritative definition. In apartheid South Africa, minorities exercised power and domination over the rest of the society.

Second definition of minority is that the group must be non-dominant in society and the polity. Minorities, such as, Muslims satisfy both the tests, viz. numerical inferiority and non-domination. Their representation in Parliament and state Assemblies is at an all-time low.

The Constitution talks of only religious and linguistic minorities. It does not recognise sexual minorities such as LGBTQ+. Also, the Supreme Court has accepted only the numerical inferiority test, i.e., less than 50% in a state’s population, for a group to be recognised as a minority under Article 30(1).

Supreme Court Judgements:

In ‘Re: The Kerala Education Bill’ (1958) the court explicitly rejected districts as a unit to determine the minority status of a group within the state. The apex court took the “state” as a unit to determine the minority status of groups claiming themselves as minorities.’

‘TMA Pai Foundation’ (2003) laid down that in the absence of any special definition of “minorities”, any community, religious or linguistic, which is numerically less than 50 per cent of the population of a state is entitled to the protection of minority rights.

Thus, Hindus are entitled to recognition as a linguistic minority in the whole of India, not just seven states/UTs.

Religious, linguistic minority

Article 30 gives the same rights to religious and linguistic minorities, but does not say that these minorities must necessarily be determined at the level of the state.

Two views are possible as to the recognition of minorities.

1. One approach can be to define religious minorities nationally and linguistic minorities on the basis of the state.
2. The second approach can be to accept the dissenting opinion of Justice Ruma Pal in TMA Pai Foundation. It states that if a law of Parliament is being challenged, minorities must be defined nationally; if it is a state law, then minorities must be determined at the state level keeping in view numerical inferiority within the state concerned.

In 1930, the erstwhile Permanent Court of International Justice (PCIJ) had defined community not in terms of numbers, but in terms of shared religious, racial, and linguistic traditions.. The existence of a community is not dependent upon recognition by law. In N Ammad (1998), the Supreme Court rightly held that minority status is a matter of fact, and does not require state recognition or declaration.

Source: This post is created based on the article “Globalization is dying: Long may the phenomenon live” published on 30^th March in Indian Express.