Religious Minorities in India?Need for Revisiting the Concept

 

 

 

1. Minority, in its semantic sense, is understood in relative terms as being less than half of the whole. So the phrase “religious minority’ means the group of people who follow religion(s) which is not that of the majority i.e the group who stands crossed the halfway mark in terms of population. As we know our country is home to people following four indigenous religions or ways of life viz., Hindu, Budha, Sikh and Jain as well as and those follow two Abrahamic religions such as Christian and Islam which are of middle eastern origin and Zoroastrian belief originated in Persia. These religious groups are spread erratically in the landscape of our nation and hence we, as a nation, do not have any uniform demographic pattern. The attempt of this write-up is to analyze the desirability of this majority-minority differentiation and the legality of the privileges extended to minority committees.

 

2. The concept of socialism, which our constitution refers to in its preamble, can be realized by establishing an egalitarian society. So differential treatment, that too based on one’s religious identity/ belief is an anti-thesis to such a goal. The governments are bound to treat people of different faiths equally, as mandated in Article 14 of the Constitution of India. Of course, Articles 15 and 16 empower the state to make special provisions for the backward class. But religious identity/belief cannot form the basis for such measures, as religion has never played any role for the backwardness or otherwise of the people in the Indian social milieu. While caste can, to some extent, be said to be a reason for backwardness and hence offers justification for the affirmative action, by taking the members of the so-called lower casts as a whole, the same cannot be said to be true in respect of religious denominations. So there is no justification for giving preferential treatment to a particular community merely because they chose to follow a faith that is different from that of the majority.

 

3. We have heard heated debates about the so-called rights of minorities and some people, out of their ignorance and the rest purposefully, say that our constitution provides for inviolable “minority rights”. But it is interesting to note that the Constitution of India refers to rights of a minority only in two articles i.e. Arts. 29 and 30. These Articles respectively provide for equal (emphasis supplied by me as there have always been attempts to protect those rights as available only to minorities, taking undue advantage of the poor draftsmanship, I would dare say) rights to minorities in the matter of protection of culture and in the matter of running educational institutions of their choice. The Constitution framers, who indulged in debates during the incubation period of almost three years, have not defined the term “minority” nor have they cared to lay down at least the parameters or criteria for identifying a community as a minority. Later Article 15 was amended by incorporating sub-article (5) therein, vide 93rd constitutional amendment, by which the state was empowered to make special provisions for the SCs, S.Ts, and OBCs in the matter of admission to educational institutions, except those run by minorities communities.

 

4. Let us now proceed to analyze the methods being adopted for identifying minority communities, by assuming that such classification is permissible. It was 42 years after the Constitution was born, that expression found its meaning in the form of section 2 (c) of the National Commission for Minorities Act, 1992, the objects of which were inter alia to evaluate and monitor the progress and the development of minority as well as to make recommendations for effective implementation of the safeguards for the protection of the interest of the minority. But the said provision merely defined the term “minority” as the “communities notified as such by the central government”, instead of precisely identifying the minority communities or even prescribing any criteria for their identification. In fact, this piece of legislation which was enacted by the then Congress government can only be conceived as another attempt at vote bank politics as well as the continuation of the “divide and rule policy” adopted by the British to stay in power. The parliament undertook such a legislative exercise, though there was no material to suggest that such special care was needed for the minorities. Later six groups. ie Muslim, Christian, Budh, Sikh, Jain, and Parsi communities were notified as minority communities under Section 2(c) of the Act. Interestingly the entire country was taken as the unit for identification of these minorities, ignoring the fact that one community, while being a minority in one place, may well be a majority in some other places. This kind of demographical diversity would have been evident, even if a state is reckoned as the unit for identification, as held by the apex court in the judgment in T. M. A. Pai

Foundation v. State of Karnataka[ 2002 (8) SCC 481.] In there was no necessity for such a sectarian piece of legislation in the absence of any empirical data showing the need for giving special care to these communities. Though there was no material to suggest that religious belief/identity is the cause of one’s backwardness, special privileges and rights were begun to be doled out and Muslims and Christians became the major beneficiaries of such programs, though these communities are more affluent and prosperous in some states like Kerala. Even in some North-Eastern states like Mizoram, Meghalaya, and Nagaland where Christians greatly outnumber other communities, the former got the benefit of minority welfare programs which were implemented in the garb of affirmative action. Even ministries/departments were set up both at the center and state levels for implementing various welfare measures for the minority communities. In fact, such measures could have been adopted only on the basis of data collected in the course of a detailed comparative study of the backwardness or otherwise of all the religious communities with reference to every index of social, economic, educational progress. But such an exercise was never undertaken. Hence the so-called studies/reports which formed the basis of various minority welfare measures focused only on the condition of the targeted community. So Hindus who stood at the same or even worse footing in terms of every social index mentioned above when juxtaposed with other communities were denied such governmental patronage.

 

5. India’s population according to the 2011 census accounts for 79.8 % Hindus, 14.2 % Muslims, 2.3 % Christians, 1.72 % Sikhs, % 0.7 Buddhists % and 0.37% Jains. Since a geographical area and the number of members of a particular community residing in that area form the very basis for reckoning a community as minority or otherwise, it is important to analyze the pattern of inhabitation. The groups as mentioned earlier spread in an uneven way in states and Union Territories and even within such units, further demographical diversity can be seen. The same is the situation when still smaller units like districts and Taluks are considered. For example, Muslims are in Majority in the Malappuram district of Kerala, Such being the scenario, how far correct would be such categorization of communities into minority and otherwise, that too nation-wide and extension of privileges based on such differentiation.

 

6. The comes under the scanner the so-called rights extended to minorities under Articles 29 and 30 of the Constitution of India, especially the latter one. These are the most misinterpreted articles in our constitution leading to an impression that the so-called minorities are said to have been given certain superior rights which the majority community does not have. Any sensible and commonsensical interpretation of these provisions would inform us that these articles are meant only to ensure equal rights to minorities at par with the majority community. But the erroneous interpretation which the courts placed on Article 30 went to the extent of even holding that laws and regulations in relation to matters which are purely secular and nothing to do with their minority character are inapplicable to educational institutions established and run by the minority community, though the same is in receipt of state aid. The judgments on Right of Children To Free and Compulsory Education Act, 2009 qua minority educational institutions are examples of flawed interpretation The verdicts of the apex court in Unaided Private Schools of Rajasthan VS Union of India (AIR 2012 SC 3448) and Pramati Educational & Cultural Trust Vs Union of India (2014 ) 8 SCC 1 are a few examples to cite. As mentioned earlier, though Article 30 speaks about the rights of a minority community to establish and administer educational institutions as also to receive government aid, the vital term minority was omitted to be defined. It was in 2004, the said term found its meaning in the form of s. 2(c) of the National Commission for Minority Educational Institutions Act, 2004, which reiterated rights under Article 30 and provided for setting a commission that is empowered to determine the character of educational institutions. But then again the lawmakers left it to the domain of the executive to identify the minorities by defining the term as the “communities notified as such by the central government”, that too without even prescribing any criteria for their identification. As of now six communities mentioned above have been notified by the central government as minorities communities for the purpose of the said Act. As the statistics would show lion’s share of the educational institutions including those in the higher and professional sector in our country are being run by the Christian denominations and the situation is not different in the case of Muslims at least in states like Kerala. The progress which these communities have made on an astronomical scale on the social, economical, and political fronts should be read along with their advancement in the educational field. So the protection which was extended to minority communities on the wrong assumption of the possibility of the denial of such right to them by the majority and ignoring the very secular ( Sarva Dharma Sama Bhavana) history of the latter became a windfall for the former. At any rate, the said Article can certainly be said to have outlived its purpose. This conclusion is the only possible one when the scenario is viewed in the light of the dictum laid down by the Hon’ble apex court in the case Balpatil Vs Union of India [ (2005) 6 SCC 690] that numerical strength is not the sole criterion for reckoning a community as a minority and instead social, educational, economical conditions are relevant factors. Though such an observation was made while considering the claim of the Jain community for the status of being a minority community falling within the ambit of the National Commission for Minorities Act, 1992, the same holds good in the case of the National Commission for Minority Educational Institutions Act, 2014 as well.

 

7. In a multi-religious country like India, that too housing the second-largest Muslim population and a sizeable number of Christians whose influence in every walks of life is multifold than their numbers, it is not at all justifiable to keep Hindus separated from the latter in the matter of affirmative actions. Such artificial segregation will do no good for national integration as well. So national interest would be best served by dispensing with the minority-majority differentiation or at least by redefining the concept of religious minorities, with specific reference to the percentage of people, reside in a particular religion as well as geographical units. Further, conferment of privileges should be based on the basis of empirical data collected by independent bodies, lest our constitutional goal of an egalitarian society would always remain as a mirage. At this juncture, it is apposite to quote some observations from the judgment in Balpatil (supra)

 

        34. The abovementioned constitutional goal has to be kept in view by the Minorities Commissions set up at the Central or State level. Commissions set up for minorities have to direct their activities to maintain the integrity and unity of India by gradually eliminating the minority and majority classes. If only on the basis of different

religious thought or less numerical strength or lack of health, wealth, education, power or social rights, a claim of a section of Indian society to the status of “minority” is considered and conceded, there would be no end to such claims in society as multi-religious and multi-linguistic as India is. A claim by one group of citizens would lead to a similar claim by another group of citizens and conflict and strife would ensue. As such, Hindu society being based on caste is itself divided into various minority groups. Each caste claims to be separate from the other. In a caste-ridden Indian society, no section or distinct group of people can claim to be in majority. All are minorities amongst Hindus. Many of them claim such status because of their small number and expect protection from the State on the ground that they are backward. If each minority group feels afraid of the other group, an atmosphere of mutual fear and distrust would be created posing a serious threat to the integrity of our nation. That would sow seeds of multi-nationalism in India. It is, therefore, necessary that the Minorities Commissions should act in a manner so as to prevent generating feelings of multinationalism in various sections of people of Bharat.

 

           35. The Commission instead of encouraging claims from different communities for being added to the list of notified minorities under the Act, should suggest ways and means to help to create social conditions where the list of notified minorities is gradually reduced and done away with altogether.

 

           36. These concluding observations were required after the eleven Judge Bench in T.M.A.Pai Foundation case (T. M. A. Pai Foundation v. the State of Karnataka, 2002 (8) SCC 481) held that claims of minorities on both linguistic and religious basis would be each State as a unit. The Country has already been reorganized in the year 1956 under the States Reorganisation Act on the basis of language. Differential treatments to linguistic minorities based on language within the State are understandable but if the same concept for minorities on the basis of religion is encouraged, the whole country, which is already underclass and social conflicts due to carious divisive forces, will further face division on the basis of religious diversities. Such claims to minority status based on religion would increase in the fond hope of various sections of people 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 multi-nationalism. Our concept of secularism, to put it in a nutshell, is that the “State” will have no religion. The States will treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual rights of religion, faith and worship. ( Emphasis supplied by the author).

 

8. Now let me conclude expecting that the governments, both at the center and state level and Commissions referred above would take expeditious and necessary steps to dispense with the minority-majority divide or at least revise the list of minorities by adopting the proper parameters. It is also hoped that the lawmakers would undo the effect of erroneous interpretations of law vis-à-vis minority rights, by bringing in necessary legislations for removing the basis of such judgments.

 

(The author is an advocate in the High Court of Kerala.)