A lawyer, Ashwini Kumar Upadhyay filed a Petition before the Hon’ble Supreme Court of India praying for declaration of Hindus as minorities in eight states across India. The main prayer in the Petition was to set aside the notification of Government of India dated 1993 declaring Muslims, Christians, Parsis, Sikhs, Buddhist, as minorities which found a new addition of Jains just before 2014 elections.

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Eyebrows were bound to be raised. How could the Petitioner be so politically incorrect and secular(ly) naïve to demand a pie from the minorityism cake for Hindus. Furthermore, his BJP leanings also gave a stick to the declared seculars like Congress, Samajwadi Party, liberal intellectuals to beat him up. From newspapers to primetime TV debates the people saw the non BJP spokespersons howling at the BJP spokespersons labeling them anti- minority, anti-seculars and Hindu fundamentalists. The BJP spokespersons were unnerved as they were used to such medals from the secular lobby for the past seventy years.

But there is a large population of thinking Indians who were unimpressed by either side. This new generation of thinking Indians was not afraid of being politically or socially incorrect and did not want to brush under the carpet the “you know who” question/issue of Indian democracy. These questions is:

Who is a minority and can Hindus be considered as minority in India?

WHO IS A MINORITY?

According to of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, the minority is defined as “A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture traditions religion or language.”

The 11 judges Bench of the Supreme Court in TMA Pai Foundation Case (2002) 8 SCC 481 has held that state shall be the unit of determination of religious and linguistic minorities.

In DAV College v. State of Punjab [1971(Supp) SCR 688], the question posed was as to what constituted a religious or linguistic minority, and how it was to be determined. After examining the opinion of this Court in the Kerala Education Bill case, the Court held that the Arya Samajis, who were Hindus, were a religious minority in the State of Punjab, even though they may not have been so in relation to the entire country.

The issue of minorities was also dealt by the Hon’ble Supreme Court in Bal Patil v. Union of India (Civil Appeal 4730 of 1999) which quoted the 11 judges bench decision in TMA Pai Case which was delivered in 2002 (during the pendency of this Appeal) wherein the most important question was:    

‘What is the meaning and content of the expression “minority” in Article 30 of the Constitution of India?”             

Chief Justice Kripal speaking on behalf of 11 judges bench of the Supreme Court in TMA Pai case held:

“Linguistic and religious minorities are covered by the expression “minority” under Article 30 of the Constitution. Since reorganization of the States 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 a par in Article 30, have to be considered State-wise”.

The Report of Basic Principles Committee, constituted by the Constituent Assembly of the State in 1954, while dealing with the item of fundamental rights, states: “Having taken note of the fundamental rights provided in various constitutions including the Constitution of India, recommends the following rights…….”                   

 Then under item 8, it states:  “Cultural and educational rights should also be guaranteed by the constitution. The interests of the minorities should be protected and any section of citizens having a distinct language, script or culture should have the right to conserve the same”.

The Oxford Dictionary defines ‘minority’ as “a smaller number or part, a number or part representing less than half of the whole, a relatively small number of people differing from others in race, religion or language”.

The Parliamentary Standing Committee on Social Justice and Empowerment submitted its 14th report on the Constitution (One Hundred and Third Amendment) Bill, 2004 and the National Commission for Minorities (Repeal) Bill, 2004 on February 1, 2006 under the Chairmanship of Smt. Sumitra Mahajan wherein the Committee citing the Supreme Court Judgment in Civil Appeal 4730 of 1999, dated 08.08.2005 recommended that it is up to the State government to declare communities as minorities.

The Secretary Ministry of Social Justice and Empowerment replied: “Madam, as regards the criteria for notifying the minorities, this has actually historically evolved and five communities are being treated as minorities now. The Minorities commission, in its Annual Report for the period ending 31.12.1980, had stated that the Commission has been treating Muslims, Christians, Sikhs, Buddhists and Zoroastrians as religious minorities at the national level. In March, 1984, in the context of the 15-point programme, the Ministry of Home Affairs had also clarified that these are the five minorities at the national level. As you know, this Commission was first set up in 1978 through a Resolution of the Ministry of Home Affairs. Subsequently, when the Act was passed by Parliament in 1992 and the Commission was set up in 1993, under Section 2(c), again the five communities, which had been notified as minorities, were again declared as minorities. Madam, recently there was question of including the Jains in the list of minorities and the Government had taken a stand before the Supreme Court that the Court, already in another case, stated that the State will be declared as the unit. Therefore, the States can determine as to who are the minorities in that particular State. Subsequently, the Supreme Court delivered a judgment on 8th August, that the Jains should not be declared as minorities at the national level and no more communities should be declared as minorities at the national level. So, it is up to the State Governments to declare communities as minorities”.

THE MISCHIEF

Section 2(c) of the National Commission for Minorities Act lays down that minority means a community notified as such by the Central Government. Similarly, under State Minority Commission Acts, it is the State, which notifies a particular community as a minority for the purpose of the respective State Act.

The Congress Government through its notification under the National Commission for Minorities Act, 1992 dated 23.10.1993 notified Muslims, Christians, Sikhs, Buddhists and Parsis as National Minorities of India. In 2014, Jains have also been notified as National Minorities by the Government through a notification under the National Commission for Minorities Act, 1992. However, many States have not legislated State Minority Commission Act providing for a State Minority Commission to safeguard the interests of religious/linguistic minorities in the State.

The National Commission for Minorities has written to the Union Government to amend the NCM Act, 1992 to make it applicable to the J&K but the proposal is gathering dust. The said notification notifying 6 communities at the national level as minorities is violation of right to equality (Article 14), no discrimination on the basis of religion (Article 15), denial of minority rights to the actual religious and linguistic minorities (Article 21) and Article 19(1)(a) and Article 29 and 30 and are against the foundation of our Secular Democratic Republic.

This does not promote harmony and spirit of common brotherhood amongst all the people in India on the basis of caste, religion, region, language etc. as enshrined in Article 15(1)(a) of the Constitution of India.

DEMOGRAPHIC TABLE OF THE EIGHT STATES

STATE HINDUS MUSLIMS CHRISTIANS SIKHS
Lakshadweep, 2.5% 96.58 % 0.49 % ….
Mizoram 2.75% 1.35 % 87.16 % ….
Nagaland 8.75% 2.47 % 87.93 % ….
Meghalaya 11.53% 4.40 % 74.59 % ….
J&K 28.44% 68.3% 0.28 % ….
Arunachal Pradesh 29% 1.95 % 30.26 % ….
Manipur 31.39% 8.40 % 41.29 % ….
Punjab 38.40% ….. …. 57.69 %

The Constituent Assembly which prepared the Constitution of India deliberately and intentionally did not define the term minority in the Constitution. Although, this term was referred to from Article 25 to 30 of the Constitution, it was for the first time defined in 2002 in the judgment of TMA Pai Foundation Case wherein religious and linguistic minorities i.e. those who were numerically less and also less dominant who needed to protect their language script and culture had to be protected.

Functions of the Commission include evaluation, recommending and monitoring measures regarding development and protection of minorities, investigation of complaints regarding minorities, conducting studies, researches and analysis relating to minorities, making periodical reports to Central Government etc.

The Supreme Court directed the Petitioner to approach the National Commission for Minorities on this issue as that was the appropriate forum. The Petitioner shall now approach the National Commission for Minorities and ask for the following:

The sinful, illegal notification dated 1993 declaring Muslims, Jains, Sikhs, Buddhist, Parsis and Jains as minorities must be declared as illegal.

The Union government must amend NCM Act to make it applicable o whole of India including State of Jammu and Kashmir.

The National Commission for Minorities shall direct the State Governments to establish State Minority Commissions where they are non- existing and make them functional where they exist.