UPA’s Prime Minister Manmohan Singh had said that minorities must have the first claim to national resources. But NDA’s minority affairs minister Najma Heptulla has refused to accept Muslims as a minority. Smriti Irani’s HRD ministry has said that it is not in favour of according minority status to institutions like the Aligarh Muslim University. Now a constitutional bench of the Supreme Court will decide the minority status of Sikhs in Punjab.
The word ‘minorities’ is used at only four places in the Indian Constitution. No definition of the term minority is given in the Constitution. But minority is a group that is numerically smaller in relation to the rest of the population, it is non-dominant in that its values are either inadequately or not represented in the public sphere or in the constitution of societal norms, it has characteristics which differ from the majority group and, importantly, it wishes to preserve these characteristics.
The Supreme Court has consistently maintained that minorities are to be defined on the basis of numerical inferiority and it is the state in relation to which minority or majority status is to be determined. Thus the debate about minority status of Sikhs in Punjab has huge significance. There has been no deviation from the principle from the Kerala Education Bill case of 1957. As the Constitution talks of both religious and linguistic minorities in Article 30, the courts have held that minorities are to be defined at the level of state as states were carved out on linguistic basis. But then the linguistic basis of state creation is no more valid as Telangana was not created on the basis of language and thus the apex court may re-examine this issue in the context of religious minorities.
The apex court in DAV College case held Hindus as religious minority in the State of Punjab and thus there can be reservation of Hindus in the minority institutions run by them in the Punjab. Chief Justice TS Thakur rightly raised this issue when he said that Hindus have minority status in several Northeast states and in Jammu & Kashmir.
Article 30 gives same rights to both religious and linguistic rights but it nowhere says both religious and linguistic minorities must necessarily be determined at the level of state. One approach can be to define religious minorities nationally and linguistic minorities on the basis of the state. The government of India under National Minorities Commission Act, 1992 has already notified Sikhs as religious minority for the entire country. But a better approach would be to accept the dissenting opinion of Justice Ruma Pal in the TMA Pai Case. The judge observed that whether a group is a minority or not must be determined in relation to the source and territorial application of the particular legislation against which protection is claimed. If it is a Parliamentary law that is being challenged, minorities must be defined nationally. If it is a state law, then minorities must be determined at the state level keeping in view numerical inferiority within the state.
There was a highly regressive decision by the Allahabad high court a few years ago which held that Muslims are not a minority as they are too many and quite powerful. The court also held that no one is a minority in India, making minority rights irrelevant. Minorities should be protected as they enrich India’s mosaic.
Faizan Mustafa is vice-chancellor NALSAR University of Law The views expressed are personal