Minorities and the law: India
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Definition of ‘Minority’
Not defined by Constitution or Supreme Court
Constitution and Supreme Court Have Never Attempted To Define ‘Minority’ Dhananjay Mahapatra | TNN
From the archives of The Times of India 2007, 2009
New Delhi: Did the Allahabad High Court, by ruling that Muslims are not a minority in Uttar Pradesh, go into a territory which both the Constitution and the Supreme Court had never ventured into?
Who is a minority? Is it on the basis of the numerical strength of persons practising a certain religion or on the basis of the language spoken by a group of people? The Constitution under a group of Articles from 25 to 30 provides for the fundamental rights enjoyed by minority groups — be it linguistic or religious. But the framers of the Constitution, fresh from the division of the country on religious lines, never attempted to define the expression ‘minority’. The Supreme Court did debate the issue on numerous occasions. Yet, it too did not attempt to give a concrete definition of the word ‘minority’ but appears to have relied on the numeric strength of a community in a particular state to classify them as minority.
Former attorney general Soli J Sorabjee, who was also a member of the UN Sub-Commission on Protection of Minority Rights, feels that the numeric classification to identify majority and minority groups has been taken as a universal standard. ‘‘Prima facie, the high court judgment appears to be absurd,’’ he said.
One of the major attempts to give a comprehensive meaning to the expression ‘minority’ and the rights they enjoyed was undertaken by an 11-judge Bench of the apex court in the famous T M A Pai Foundation case in 2002. The contentious subject created sharp divisions within the Bench and it gave as many as four judgments — the majority by six judges and the other three by single judges, one of them concurring with the majority decision. The majority judgment did not give a precise meaning of ‘minority’ but ruled that identification of a minority community — linguistic or religious — has to be done separately for each state.
‘‘Linguistic and religious minority are covered by the expression ‘minority’ under Article 30 of the Constitution. Since reorganisation of the states in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit has to 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 statewise,’’ the 11-judge Bench’s majority verdict said.
The question of minority came up before a three-judge Bench of the apex court in 2005 in the case of Bal Patil vs Union of India. It ruled: ‘‘Minority as understood from the constitutional scheme signifies an identifiable group of people or community who were seen as deserving protection from likely deprivation of their religious, cultural and educational rights by other communities who happen to be in majority and likely to gain political power in a democratic form of government based on election.’’
From these two judgments, it is clear that the court envisaged a situation where a religious or linguistic group is in minority on the numerical strength without putting any benchmark, beyond which a community will lose its minority tag. However, it did not deter the three-judge Bench from stating that ‘‘ideal of a democratic society, which has adopted right of equality as its fundamental creed, should be elimination of majority and minority and the so-called forward and backward classes’’.
dhananjay.mahapatra@timesgroup.com
2019/ Minority status is determined by pan-India population
Dhananjay Mahapatra, Dec 18, 2019 Times of India
The Supreme Court on Tuesday rejected a PIL seeking minority status for Hindus in several states where Muslims or Christians are in the majority and said religious minority status could be given only on the basis of pan-India population.
A bench of Chief Justice of India (CJI) S A Bobde and Justices B R Gavai and Surya Kant disagreed with petitioner Ashwini Upadhyay that the current scheme of using the country as a whole as the unit for determining religious minority should be replaced by one where population of different communities in each state is used as the yardstick.
Appearing for Upadhyay, Mohan Parasaran said that in two cases concerning the establishment of educational institutions — T M A Pai and P A Inamdar — constitution benches of the Supreme Court had used “state” for determining linguistic minority. However, the CJI-led bench said, “States were formed on linguistic basis. That is not the case with religion. It has to be pan-India. What is the problem if a community is majority in Jammu & Kashmir but minority in all other states. In Lakshadweep, Hindus may be 2% but they follow Hinduism which is majority in India.”
Parasaran said Section 2(c) of National Commission for Minorities Act, 1992, “arbitrarily” notified Muslims, Sikhs, Christians, Buddhists and Parsis as minority communities on October 23, 1993, based on their national population. He said some of these communities, despite being in majority in some states, were cornering government sponsored benefits meant for minority communities of those states.
In his petition, Upadhyay had cited the example of J&K and said, “In Jammu & Kashmir, the government allotted 717 out of a total 753 scholarships to Muslim students based on the 1993 notification and none to Hindu students.”
Attorney general K K Venugopal, whose assistance had been sought by the bench, said Hindu population was in minority in seven states and Union Territories.
As per the Census, Hindus were in minority in Punjab (Sikh majority), Arunachal Pradesh, Meghalaya, Mizoram and Nagaland (all with Christian majority), J&K and Lakshadweep (Muslim majority).
However, the majority community in these states and Union Territories were enjoying ‘minority’ status and communities which were the real minorities were not getting legitimate share because of non-identification of minorities, Upadhyay said. When Parasaran pressed for framing of new criteria for determination and notification of minority community, the bench said, “Where is the problem? We cannot declare anyone as minority. It is always done by the government.”
Jains
A minority in Gujarat
The Times of India, May 08 2016
Now, Jains get minority status in Guj
The Gujarat government on Saturday announced minority status for the state's Jain community .This comes nearly two years after the previous Congressled Centre granted minority status to the community in June 2014. “CM Anandiben Patel has approved minority status for Jains in the state,“ minister Vijay Rupani told.
Rupani, a Jain, said all Jain institutions would now become autonomous minority institutions. “Poor Jains would be entitled to several welfare schemes of the central government like education scholarship, higher subsidy in finance for self-employment etc.“
Sources said the status was delayed due to the Patidar reservation stir in the state, where 5.8 lakh Jains account for 0.96% of the state's population. Jain scholar Jitendra Shah lauded the move and said the status would give Jains a distinct socio-religious identity .
Hindus
SC: They are not a minority in 8 states
HIGHLIGHTS
PIL sought minority status to Hindus in J&K, Punjab, Lakshadweep, Mizoram, Nagaland, Meghalaya, Arunachal Pradesh, Manipur
Legitimate benefits of Hindus being siphoned of arbitrarily to the majority, because of non-identification and non-notification of minorities at the State level: PIL
The Supreme Court on Friday refused to entertain a petition seeking its direction to Centre to grant minority status to Hindus in eight states.
A bench headed by Justice Ranjan Gogoi said that issue needed to be decided by National Commission for Minorities and asked the petition to approach the commission.
The public interest litigation (PIL) sought minority status to Hindus in eight states- Jammu and Kashmir, Punjab, Lakshadweep, Mizoram, Nagaland, Meghalaya, Arunachal Pradesh and Manipur. The PIL, filed by advocate Ashwini Kumar Upadhyay, has said that Hindus are minority in these states but their legitimate benefits are being siphoned of arbitrarily to the majority, because of non-identification and non-notification of minorities at the State level.
"The Union Government offered 20,000 scholarships in field of technical education for minority students. In J&K, Muslims are 68.30% and government allotted 717 out of 753 scholarships to Muslim students, but none to Hindu students," the petition said.
As per a 1993 notification by the Centre, Muslims, Christians, Sikhs, Buddhists and Parsis were granted minority status in India and Jains were added in the list in 2014.
Citing the 2011 Census, the petition says that Hindus are minority in eight States i.e. Lakshadweep (2.5%), Mizoram (2.75%), Nagaland (8.75%), Meghalaya (11.53%), J&K (28.44%),Arunachal Pradesh (29%), Manipur (31.39%) and Punjab (38.40%).
It further says that Muslims are majority in Lakshdweep(96.20%) and Jammu & Kashmir (68.30%), and there is significant Muslim population in Assam (34.20%), West Bengal (27.5%), Kerala (26.60%), Uttar Pradesh(19.30%) and Bihar (18%).
Muslims
HC says Muslims are not a minority in UP
Order May Roil Political Scene Ahead Of Polls
TIMES NEWS NETWORK
From the archives of The Times of India 2007, 2009
Allahabad: In an order with potentially serious implications for minority rights and privileges, a single-judge bench of the Allahabad high court on Thursday ruled that Muslims were no longer a religious minority in Uttar Pradesh. “The court finds that Muslims have ceased to be a religious minority community in the state of Uttar Pradesh,’’ said Justice S N Srivastava.
Justice Srivastava, who is under transfer from Allahabad to the Lucknow bench, passed the order after considering “material on record, which includes various census reports of 1951 and 2001’’.
Beyond ruling on the status of the Muslim community barely 48 hours before voting for the state assembly election was to begin, he directed the state government “to treat any member of the Muslim community as equal to other nonminority religious communities without discriminating in any respect in accordance with the law’’.
Although the court ruling could lead to a banding together of the Muslim community, thereby affecting electoral behaviour, Justice Srivastava said the timing had nothing to do with any of these factors. He said he chose Thursday to pass his order since he is to shift to Lucknow on April 9. The detailed order would be released later, he said.
UP advocate-general S M A Kazmi said the state government would challenge the ruling. The appeal would most likely go to a larger bench of the same court.
This was the third judgment in three years by the Allahabad high court challenging the privileges Muslims enjoy as a minority community. The same court had ordered the withdrawal of minority institution status for Aligarh Muslim University and later declared Haj subsidies given by the state as illegal. While the one on Haj was struck down by the supreme court, the one on AMU is under judicial review.
The verdict
Citing the twin criteria of population and strength and relying on census reports of 1951 and 2001, Allahabad HC says that Muslims account for roughly 18.5% of UP’s population—hence don’t qualify to be treated as a religious minority
Minorities’ Rights
According to a supreme court ruling of 2005, minority status is a guarantee of religious, cultural and educational rights (Articles 25-30). These also include managing religious affairs, participating in religious worship, and establishing and running educational institutions
ANGER
We will approach the apex court challenging the HC decision SYED AHMED SHAH BUKHARI SHAHI IMAM, JAMA MASJID
'JOY
It is a welcome judgment, although overdue. It is a virtual indictment of the UPA VIJAY KUMAR MALHOTRA SENIOR BJP LEADER
Sikhs
A minority in Punjab?
The Times of India, Jan 19 2016
Are the Sikhs a minority in Punjab?
DhananjayMahapatra
SC to examine demand that could have far-reaching consequences
It may sound ridiculous at first blush, but the Supreme Court agreed to examine whether Sikhs were a `minority group in homeland Punjab', saying the question had farreaching importance and consequences.
A Constitution bench of Chief Justice T S Thakur and Justices FMI Kalifulla, A K Sikri, S ABobde and R Banumathi initially countered the plea by senior advocate Rakesh Dwivedi for treating Sikhs as a minority in Punjab by asking, “Can Muslims be treated as minority in Jammu and Kashmir? “For that matter, can Christians, who are the majority in the states of Nagaland and Meghalaya, be also treated as a minority community in these two northeastern states? Sikhs may be a minority in other states but can they be treated as a minority group in Punjab?“ But Dwivedi pointed out that another Constitution bench judgment had erroneously fixed twin criteria -whether the group was numerically a minority and whether they were dominated by other groups -to de termine if a community was in minority , while taking a state as the geographical entity for such determination.
He said the numerical strength of a community within a state should be the criterion and not whether they were dominated by other communities. “ A minority community may be affluent and not dominated in a state. This doesn't mean they can be denied the right to protect and further their cultural and educational rights as a minority group guaranteed under the Constitution,“ he said.
Dwivedi said Sikhs were those who owed allegiance to Guru Granth Sahib, and were enlisted as voters with Shiromani GurdwaraParbandhakCommitte. “The subsects and followers of Dera Sacha Sauda, RadhaSoami and similarly placed persons are not considered Sikhs even though they were born to Sikh parents,“ he added.
When the bench was deliberating on whom to appoint as amicus curiae for assistance in adjudication of this tricky and complex constitutional issue, senior advocate K KVenugopal said it surely presented an issue that had far-reaching consequences for many states.
“In Kerala, Christians are in minority but own majority of the educational institutions. If Christian-owned educational institutions turn into minority educational institutions, then it will have a telling effect,“ he said and agreed with the bench that former solicitor general T R Andhyarujina would be best suited to discharge duties as amicus curiae in this issue.
The bench issued notice to the ministry of minority affairs and sought its response within four weeks. It also requested attorney general MukulRohatgi and senior advocate Andhyarujina to assist the court in deciding this question.
A three-judge bench of the SC on August 8, 2005 had said in Bal Patil case, “It was not in contemplation of the framers of the Constitution to add to the list of religious minorities.“
Low conviction rate where minorities are victims
2008 Kandhamal riot cases
The Times of India, Aug 04 2016
Amit Anand Choudhary
SC: Minorities as much `children of soil' as majority
Expre cern over the low rate of conviction in 2008 Kandhamal riot cases in Odisha, the Supreme Court cited on Wednesday its four-decade-old judgment that minorities are as much children of the soil as the majority , and held that members of the minority community should not be deprived of their rights to conserve their religion and culture.
A bench of Chief Justice T S Thakur and Justice U U Lalit reiterated a 1974 verdict in which the apex court had batted for the rights of minority communities as granted by the Constitution.
“The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done, as might deprive the minorities of a sense of belonging, of a feeling of security , of a consciousness of equality and of the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the constitution,“ the bench said while referring to the 1974 verdict.
The spiral of communal violence, triggered by the killing of Vishwa Hindu Parishad member Swami Laxmanananda Saraswati, had claimed 39 lives while 232 churches were damaged.According to an NHRC report, the violence spread after Swami's body was taken through various parts of the district in a procession.
While 6,495 people were arrested, only 493 have been convicted and trial is going on in 150 cases. Of the 827 communal violence cases that were registered, chargesheets were filed in 512 cases and 315 cases were closed as police did not find any evidence or offenders could not be detected. The accused were convicted in 78 cases out of 362 cases in which trial was completed, marking the conviction rate at a dismal 21%.
Terming the figure of conviction rate in 2008 riot cases as “disturbing“, the bench asked the state government to re-examine all cases and take appropriate steps.
