Minorities and the law: India
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Minorities: Constitution and Supreme Court
Minorities: Constitution and Supreme Court Have Never Attempted To Define ‘Minority’
Dhananjay Mahapatra | TNN
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
