Concern for providing safeguards to the constitutional rights of the minorities has always been a concern for the modem Indian state. But because of the political trivialisation of the issue it has reduced to politics of appeasement.
Prime Minister Manmohan Singh courted controversy three years ago when he said, ‘Muslims have the first claim on our national resources’. Today, more than ever “Minority rights” need to be defined for a healthy natural debate.
Definition of Minorities in India
I will define first the concept of Minority before we discuss minority rights. It is essential in this context to understand how Muslims and Christians came to be regarded as minorities in India.
The word minority as a group of persons possessing common characteristics has a substantive meaning only if special protection in the Constitution is to be provided to that group in order to be compensated for some past socially imposed disability.
It would be meaningless to have a discourse on minority’s at all, and compensating them will be a wastage of public money, if there is no socially imposed disability in the past which handicaps the group from competing with other social groups or communities. Merely being small in numbers is not enough to merit recognition as a minority. Numbers alone are not enough when it comes to defining a minority. The Whites of South Africa are numerically a small number, but they cannot be treated as “minorities” deserving special protection or reservations, or affirmative action.
Parsis in India despite being a minority when it comes to their number, have consistently refused to ask or accept for any Constitutional safeguards since they have never felt forcibly disabled in a Hindu dominant society.
Parsis are therefore not a minority in the Constitutional or statutory dispensation. Nor are Sikhs, Buddhists and Jains for the same reason.
What then is the definition of minority? The present practice in India is to regard any group of less than 50% of the population [except of course Hindus e.g., in Kashmir as minorities]. This is ridiculous.
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 the United Nations Resolutions or a universally accepted definition of the term in any international law.
Some countries such as Thailand and Brazil even 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, a 11-judge Constitutional Bench, judgment on the question of minority rights in education [T.M.A. Pai Foundation Case] did not define the term ''minority”.
Subsequent judgments of the Supreme Court, such as delivered in 2003 in the Islamic Academy case, and in 2005 in the Inamdar case, have also not defined the concept of minority.
In 1992, India's Parliament enacted the National Commission for Minorities Act, but did not define a minority in it. Section 2 (c) of the Act merely states that the minorities are those whom the Government of India will notify in the Gazette!!
The Government has arbitrarily notified, for no reason or explanation, Muslims, Christians, Sikhs and Parsis as religious minorities. 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 even 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 3-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. Encourage-ment 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 multi-nationalism”.
What we can therefore hold now is that if a group is numerically small, and substantially below 50% 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, in recognition of defining events of Indian history, I would define a ‘Minority’ in India as:
“A collective of Indian citizens, constituting a numerical minority and situated in a non-dominant position in society, with characteristics which ethnically differs from those of the majority, and having suffered from imposed deprivation over a long period have acquired disabilities that cannot be removed except by providing special constitutional protection and facilities for affirmative action, are by definition a minority.”
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.
Since, the Indian DNA structure is the same for all castes, hence, competing on merit, if equally empowered, is possible for the backward castes too.
But Muslims and Christians cannot be considered as 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 and had oppressed the overwhelmingly majority Hindu community. Sequentially in time, 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 for the benefit of Muslims and Christians in jobs and education, or for anything else.
Those Muslims and Christians who consider themselves as 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 because Articles 29 and 30 are part of the Basic Structure of the Constitution and hence cannot be amended.
Hence, minorities will continue to have the right for example, to administer their own educational institutions.
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 Muslims and Christians.
The logic is the same—those who have been ruling classes cannot claim minority status in the constitutional matrix. In my opinion, Muslims and Christians should themselves decline to accept reservations in employment and education, and its leadership should instead look inward and analyse why after being ruling class of India for thousand years, they need now reservations to compete with hitherto hapless Hindus who have suffered huge prosecution, discrimination and impoverishment at the hands of Muslim and Christian rulers.
The date I have not received even a semblance of an answer to this fundamental question. It is time therefore for rational patriots to jettison the appeasement policies, and instead mould the Indian society of citizens with patriotic commitments, self respect and love for merit with compassion for those with imposed social disabilities.
-Dr Subramanian Swamy (The writer is Former Union Cabinet Minister for Law & Justice)