Who are minorities under Indian Law?

 

By Dr Omarlin Kyndiah

The Constitution of India uses the word ‘minority’ or its plural form in some Articles viz Article 20 to 30 and 350 A to 350 B, but does not define the word ‘minority’. The Motilal Nehru Report (1928) showed a prominent desire to afford protection to minorities, but did not define the expression. In pursuance of the Constitutional provisions, the government is committed to the well being of the minorities- whether linguistic or religious.

According to the Census 2011, of the total population of 121 crore, the Hindus make up 79.8 percent. Muslim constitutes 14.2, Christians 2.3, Sikh 1.7, Buddhists 0.7 and Jains 0.4 percent. ‘Other religious persuasions’ and ‘religion not stated’ constitute 0.9 and 0.1 percent respectively.

The Census 2011 data indicated that Hinduism is professed by the majority of the population in India. The Hindu is majority in most States and UTs except in Manipur, Arunachal Pradesh, Mizoram, Nagaland, Meghalaya, Lakshadweep, Punjab and Jammu & Kashmir. As regards religious minorities at the national level, all those who profess a religion other than Hinduism are considered minorities. The Muslims are the largest religious minority followed by Christians, Sikhs, Buddhists, Jain and Parsis.

Coming to Meghalaya, in the context of the national scenario, of the total population of 29 lakhs, the Christians make up 74.59 percent, the Hindus 11.52, Muslims 4.39, Buddhist 0.33, Sikh 0.1, Jain 0.02 percent. ‘Other religious persuasions’ and ‘religion not stated’ constitute 8.70 and 9.02 percent respectively. In the State of Meghalaya, the indigenous Niamtre, Niam Khasi and Songasareks are placed in the category of ‘other religious persuasions’. If we look at the distribution of minority population in India, it indicates that a group which constitutes a ‘minority’ at the national level is a ‘majority’ in some State or UTs. For instance, distribution of minority population indicates that Muslims are in majority in the Union Territories of Lakshadweep and in the State of Jammu & Kashmir. The Christians are majority in Nagaland, Mizoram and Meghalaya. Punjab is the stronghold of Sikhism.

There is no internationally agreed definition as to which groups constitute minorities. The UN Sub-Commissions in Prevention of Discrimination and Protection of Minorities define minority as a group numerically inferior to the rest of the population of a state which possess and wish to preserve stable ethnic, religious or linguistic traditions. The Oxford Dictionary of English language defines ‘minority’ as a smaller group representing “less than half of the whole or predominant population”. In Kerala Education Bill, the Supreme Court through S.R.Das, Chief Justice, while suggesting the technique of arithmetic tabulation held that the minority means a “community which is numerically less than 50 percent of the total population. The National Commission for Minorities Act, 1992 in the Section 2(c) of the act defined a minority as “a community notified as such by the Central government”. Acting under the provision on October 23, 1993, the Central government notified the Muslim, Christians, Sikhs, Buddhist and Parsis (Zoroastrian) communities as minorities for the purpose of the Act. When the Central government listed these communities as minority it appears that numerical criterion was taken into consideration.

The question of ‘minority status’ has had assumed importance in the Indian political-economy since 1947. It could partly be the product of socio-economic benefits provided by the Nehruvian state, which was based on the Laskian sense of ‘welfare state’, which in turn influenced the Nehruvian model. However, the Nehruvian model was contradicted by the reorganization of states on linguistic lines. The classic case may include the movement for separating Andhra from Tamil Nadu, or Haryana from Punjab or even the linguistic politics in Assam which led to the Hill State Movement in the North East. It was against this back drop that the Supreme Court had to intervene frequently.

While the Constitution does not define minority or provide details relating to the geographical and numerical specification of the concepts, it appears that the constitutional scheme envisages this to be determined at the national level. However, several Supreme Court judgments have sought to define minority at the state level in term of protection under Article 30. The SC in TMA Pai Foundation & ors vs State of Karnataka & ors consider the question of the unit for the purpose of determining the definition of ‘minority’ within the meaning of Article 30(1). It held that ‘a minority either linguistic or religious is determinable only by reference to demography of the State and not by taking into consideration the population of the country as a whole’.

In the context of this case, the SC cited the DAV College vs State of Punjab & ors [1971], where the question was raised as to what constituted a religious or linguistic minority and how it was to be determined? In another case, D.A.V College Bhatinda vs State of Punjab and Ors the Court explained the observation in the above case and it was stated that, “what constitutes a linguistic or religious minority must be judged in relation to the State in as much as the impugned Act was a State Act and not in relation to the whole of India. The SC rejected the contention that since Hindus were a majority in India, they could not be a religious minority in the State of Punjab, as it took the State as the unit to determine whether the Hindus were a minority community. The application of numerical test with reference to religion in states like Punjab, Jammu & Kashmir and Nagaland makes Sikhism, Islam and Christianity the majority religions in those States respectively (DAV College vs State of Punjab AIR 1971 SC 1731).

In fact the SC has laid down the principle of safeguarding the educational rights of the minorities enshrined in Article 30(1) of the Constitution. Its decision commenced with Kerala Education Bill Case [1957] wherein, it was observed that since this Bill ‘extends to the whole of the State of Kerala and consequently the minority must be determined by reference to the entire population of that State”. It was followed by the DAV College Case and climaxed by the TMA Pai Foundation Case. The SC had to give its ruling again in the Bal Patil & Anr vs Union of India & Ors Case (2005). It upheld its earlier position that “since reorganization of 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 par in Article 30 have to be considered State wise. Incidentally, ‘Scheduled Castes’ and ‘Scheduled Tribes’ are also to be identified at the State/UT level. In terms of Articles 341 to 342 the President is empowered to draw up a list in consultation with the Governor of each State subject to revision by Parliament. To define minorities State-wise in line with several Supreme Court judgments, the then UPA government in 2004 attempted to introduce The Constitution (103rd Amendment) Bill 2004. The Bill seeks to have State-wise minority status rather than national status. Minorities in State will be decided through a Presidential notification in consultation with the State government.

In the context of the above moves and consequent developments a number of representations have been made to the Central Government and the Meghalaya Government by Seng Khasi and Sein Raij Jowai since 2008. Sein Raij Niamtre Shillong too had sent a representation to the Honourable Prime Minister of India, Shri Narendra Modi in April 2015, stating the case of tribal faith groups of Meghalaya. It was then forwarded to the Honourable Chief Minister of Meghalaya, dated 5th May 2015 through the Union Ministry of Minorities Affairs, GoI for appropriate action. The members of the Niamtre, Niam Khasi and Songasarek communities are awaiting the response of the State government till date.

In the light of our argument above, let us take a stand that under the provisions of the Constitution of India and the verdicts of the Honourable Supreme Court, the concept of the ‘minority’ crosses the border of mere interpretation and enjoins the Indian Union and its constituents States to declare a particular community as a ‘minority’, so that its members are offered the benefits of a ‘welfare state’, which is not yet dead.

The demand for ‘minority status’ by the indigenous faith should not be construed as an attempt to deny the rights of other religious communities from Khasi, Jaintia & Garo tribes. They only demand the rights of equality before the law. Indeed, the principle of democratic equality as envisaged in the Preamble to the Constitution can work only if the nation as a whole is brought on the same level. The Niamtre, Niam Khasi and Songasarek community appeal to the other minority groups to support their case.

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