Before we discuss minority rights, we need to be clear about the concept of minority. The word ?minority? has a substantive meaning only if special protection in the Constitution is to be provided. If so, then a further question would arise as to who these minorities are, which would require a definition of minority to identify them, and also what constitutional protection is to be provided.
The Concept of Minority
Such protection is required for the minority to be compensated for some historically acquired disability. Otherwise, it would be meaningless to have a discourse on minorities.
Therefore, present practice of regarding any group of less than 50 per cent of the population as minorities is ridiculous. The Whites of South Africa are numerically a small number, but they cannot be treated as ?minorities? deserving of special protection, reservations, or affirmative action. Parsis in India despite being a microscopic minority numerically, have consistently refused to ask for any constitutional safeguards. They are therefore not a minority in the constitutional or statutory dimension.
Strange as it may sound, there is no definition of minority in the Indian Constitution (although Articles 29 and 30 make provisions for a minority, religious and linguistic), nor is there a definition in United Nations resolutions or a universally accepted definition in international laws.
Some countries such as Thailand and Brazil refuse to accept that there are minorities in their country. These nations have told the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities that they have no minorities to notify, despite being a multi-religious, multi-racial society.
In 2001, an 11-judge constitutional bench delivered a judgment on the question of minority rights in education (T.M.A. Pai Foundation case), but did not define the term ?minority?. What they did do was to opine that minorities are not to be defined nationally but state-wise, thus overturning their 1971 DAV College judgment. Subsequent judgments of the Supreme Court, such as delivered by a five-judge constitutional bench in 2003 in the Islamic Academy case, and a seven-judge constitutional bench in 2005 in the Inamdar case have also not defined the concept of minority.
In 1992, India'sParliament enacted the National Commission for Minorities Act, but did not define a minority in it! Section 2(c) of the Act merely states that minority is what the government of India will notify in the Gazette!! The government has notified, without reason or explanation, Muslims, Christians, Sikhs and Parsis as religious minorities. Why they are so has not been explained. Even the State Minorities Commissions have not bothered to define minorities.
In other words, the nation has been discussing minority rights for the last sixty years without defining what or who can be the minorities. How can we identify minorities if we do not have a definition of the term?
Hence, I shall begin with my definition of minority and then discuss what their rights can be in the context of national integrity. In this connection, it is appropriate to quote from the judgment of the three-judge Supreme Court bench in Bal Patil versus the Union of India case, delivered by Justice Dharmadhikari in 2005:
?Such claims to minority status based on religion would increase the fond hope of various sections of the people in getting special protections, privileges and treatment as part of the constitutional guarantee. Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy. We should guard against making our country akin to a theocratic State based on multinationalism.?
This is a severe indictment of the minorityism that has become today the bane of the nation. Instead of heeding to the timely warning, the present UPA government at the centre has embarked on further appeasement and placating of the religious ?minorities?. It is in this context that the recent order of the single judge of the Allahabad High Court stating that Muslims of UP are no longer to be regarded as a minority, needs to be taken seriously.
What we can therefore hold now is that if a group is numerically small, and substantially below 50 per cent of the population, then although it has the necessary attribute of a minority, that attribute is not sufficient for it to be declared a minority for the purpose of constitutional or statutory protection. Such a group must have sufficient other attributes as well, to be identified as a minority.
Based on the circumstances arising out of the Indian legacy, and in recognition of defining events of Indian history, I would define a minority in India as follows:
?A collective of Indian citizens, constituting a numerical minority and situated in a non-dominant position in society, endowed with characteristics which differ from those of the majority, having suffered from imposed deprivation over a long period and thus have acquired disabilities, are a minority if these disabilities cannot be removed except by providing special constitutional protection and facilities for affirmative action.?
That is for sufficiency of attributes to qualify as a minority under the Constitution of India, it is required that such a group be in a non-dominant position in society, have suffered deprivation for a long period to have acquired disabilities which cannot be removed except by special constitutional protection such as reservations in jobs and educational institutions.
By this definition, the Scheduled Castes and Scheduled Tribes would constitute a minority even if they are a part of the numerical majority Hindu community. Their disabilities cannot be removed except by specific affirmative action such as reservation in jobs, education, and in legislatures. Backward castes of the Hindu community also suffer disabilities, but these can be removed by special arrangements of education facilities and financial assistance. But due to our political folly and selfishness, these backward castes have been given reservations in jobs and education, which cannot now be taken away except by persuasion in the future. When world-class primary and secondary education can be provided to all, it is possible that the youth of the backward castes would prefer to compete rather than advance by availing of quotas. Since the Indian DNA structure is the same for all castes, hence, competing on merit, if equally empowered, is possible for the backward castes.
But Muslims and Christians cannot be considered minorities in Indian society because their disabilities are not acquired from deprivation imposed on them. In fact, Muslims and Christians, like the Whites of South Africa, have been ruling classes in India for a long period. Sequentially, these two religious groups have ruled India for over a thousand years, during which period they practiced religious apartheid against the Hindus. Hence, for national integrity, patriotic Indians should resist with all their might any attempt to introduce quotas in jobs and education, or for anything else, for the benefit of Muslims and Christians. Those Muslims and Christians who consider themselves patriotic Indians should also, like the Parsis, reject any offer by mischievous politicians to introduce quotas for them. Instead they should ask for world-class primary and secondary education to empower them to compete on a level playing field with the rest of the society.
Whatever has now been incorporated in the Constitution for minority rights cannot be taken away. Articles 29 and 30 are part of the Basic Structure of the Constitution and hence cannot be amended out. Hence, minorities will continue to have the right to administer their own educational institutions. But as the Supreme Court has held in the Islamic Academy case, the unfettered right to administer does not include the right to mal-administer. Hence, minority-run educational institutions, including unaided ones, must be subject to obtaining the government approval for curriculum standards, faculty quality, and basic infrastructure, which should be common to all. Sooner or later, we must require that all students including Muslims and Christians, learn Sanskritised Hindi, whose vocabulary should be progressively Sanskritised till the Hindi becomes indistinguishable from Sanskrit. Our long-term link language has to be Sanskrit, because its vocabulary is in large measure in every language. Even Tamil has 40 per cent of its vocabulary in common with Sanskrit.
The goal of minority rights in education has to be to further social justice. Towards this end, we must strive for equal and high quality educational opportunity and create a mindset for national unity and integration. Quotas and reservations are essential for Scheduled Castes and Scheduled Tribes, but here too the concept of creamy layer must operate. But we cannot accept special rights for religious minorities of Muslims and Christians, just as we cannot for Brahmins although they are as poor a community as and Christians. The logic is the same?those who have been ruling classes cannot claim minority status in the constitutional matrix of the nation.
(The writer is former Union Law Minister.)