Equality among unequals:
A state of Affairs in India

Himashri Baishya

Long been India is proclaimed as a nation celebrating ‘unity-in-diversity’: ethnic and cultural plurality and multi-religious make up having a strong historical experience and political frame. The Preamble to the Constitution of India declares India as a secular Sate to unite this diversity. However, this inter-relationship between diversity and secularism has created a conflict between secular ideology and minority rights. 

The minority right in India is a very conflicting concept. In various time, at various context this topic is being debated at different levels. The main problem lies in the fact that the term ‘minority’ has not been defined under the Indian Constitution. And this problem becomes more critical when any Law, Rule or Scheme is made for the benefit of the minorities in India as to who will be eligible to avail such benefit under the same. So, a comprehensive analysis of the Indian interpretation of minorities is the sin quo non for deciphering its impact on the Indian standing at home.

As the livelihood opportunity among the minority communities, The Ministry of Minority Affairs, Government of India has launched various entrepreneurship and skill development schemes for the socio, economic and cultural development of the minority communities in India. Here, the question is “who are minorities?”

Determination of Minorities
Though the Indian Constitution protects minority rights under Article 29 and 30, but the Constitution of India nowhere defines the term ‘minority’, nor does it lay down any sufficient test for determining a group as minority. The judicial attitude towards the determination of the term ‘minority’ is also not satisfactory. Indian Courts used to express their view with respect to the given situation only.  In such situation issues are generally raised regarding the applicability and implementation of such schemes of the Government which are specially meant for minority communities.

At the national level also, the Central Government has not defined minority directly. The National Commission for Minorities Act, 1992 under section 2(c) states that 'Minority' for the purposes of this Act means “a community notified as such by the Central Government”. Under this provision the Welfare Ministry of central government issued a notification dated 23.10.1993 by listing “Muslims, Christians, Sikhs, Buddhists and Zoroastrians as the Minorities”. After that the Jains in India protested against their exclusion and then the matter was long been debated. Fifteen years later in 2014 the Jain community was given the status of minority community by the central government. The six categories of minorities, as mentioned under Sec 2 (c) of the National Commission for Minorities Act 1992, are minorities based on religion on a national basis.

However, population is not the only criteria for a religious community being seen as a minority. A definition offered in 1977 by a report of the ‘United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities’ can be referred in this context, according to which, “a minority is 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”. If each of the criteria is to be precisely followed, then, no one of the national level minority will fulfill these criteria and will not be seen as minority anywhere in this country.

Minority Schemes of India and the Allied Issues
Let’s pick up one issue around minority statues. The Central government of India under the Ministry of Minority Affairs, have lays down various schemes whish  are meant for the Minority communities who are been recognized at the national level. Seekho aur Kamao (Learn & Earn), USTTAD, Nai Manzil are the example of such Schemes. A careful study of the provisions of such schemes proves that the ultimate beneficiaries of such schemes are the 6(six) categories of minorities as notified under the Nation Commission for Minorities Act, 1992 (viz. Muslims, Christians, Sikhs, Buddhists, Jains and Parsis).                                                          

Hence, all this are central Schemes they will apply equally in all the states of India.  In this line, all the Christians of Nagaland or Meghalaya, all the Sikhs of Punjab and all the Muslims of J&K can take the benefit of such schemes, and the Hindu community in such States who are the actual State minorities in such  particular States are being deprived of the benefit of such schemes. For example, though Christians are the national minority in India, but, the Christians in the State of Nagaland are in no way a deprived community in their own State.  They are the majority community in the state of Nagaland and are holding very good positions in every sector of job opportunities there. So, wheatear the Hindus who are minority in the State of Nagaland or the elite Christians who are holding the dominant position there should get the benefit of such schemes?

Though the durability of the Schemes of the Government is short and time and purpose specific, and far behind from the scope of judicial review, much attention is not given towards their beneficiaries. But, on the ground of natural justice schemes should be based on the test of just , fare and  reasonableness.

Recent Judicial approach to Determine Minority
Here , reference can be made to 2011 Census where Hindus were minority in eight states –Lakshadweep (2.5 per cent),  Mizoram (2.75 per cent),  Nagaland (8.75 per cent),  Meghalaya (11.53 per cent),  Jammu & Kashmir (28.44 per cent),  Arunachal Pradesh (29 per cent), Manipur (31.39 per cent) and  Punjab (38.40 per cent).” In this line, a PIL was filed before the Supreme Court by a lawyer/ BJP leader Ashwani Kumar Upadhyay in 2018 by directing the Central government to confer minority status on Hindu communities in the seven specified states and one Union territory. The question before the court was “can the national level majority community of India be seen as a religious minority in any part of the country?” The plea showed that “the Hindu community is deprived of the benefits which are available to the minority communities in these states and for that the NCM should reconsider the definition of minority under Sec 2(c ) of the National Commission for Minority Act, 1992, under which the notification was issued on Oct 1993.

On 11th Feb, 2019, the Supreme Court, by a bench headed by former Chief Justice Ranjan Gogoi, directed the ‘National Commission for Minorities (NCM)’ to “take a decision within three months on a representation seeking laying down of guidelines for defining the term ‘minority’ in the context of state-wise population of a community . Interestingly, on 9th of July, 2019 advocate/ BJP Leader Ashwani Kumar Upadhyay again filed a fresh petition before the Supreme Court that after the laps of three months he did not receive any response on his representation from the Union Home ministry, Ministry of Law and justice and National Commission of Minorities. And finally, few months before, on 17th Dec, 2019, a Supreme Court Bench headed by Chief Justice of India Sharad Arvind Bobde dismissed the PIL with the view that “there have been authoritative judgments in the past that minority is defined as being linguistic minority and not state-wise, states were formed around languages, that’s not so with religion, religions are pan-India, it isn’t decided as per geographical boundaries”. While dismissing the petition the CJI refused to issue any further guidelines in this regard.

To sum up, determination of minority is generally based on countries socio- political history. In Indian politics today, minority issues are increasingly taking a centre stage. It is evident from various facts that, for increased political representation, the demands and calls for providing minority protection to many religions and cultures in the country are rising to fulfill their distinct interest.

Determination of minority status in India has become a very difficult task. Neither the qualitative nor the quantitative task of population can be taken into consideration in a sole basis. The true legal position in this regard is that the NCM has no any actual power to declare any other community to be a minority community or to remove any community from the list of minority communities that are already declared by the Central Govt. NCM can only make recommendation to the Central Govt. which is the ultimate decision maker to include or exclude any minority communities. the Supreme Court has already ruled that “for central scheme in this sphere the national-level minorities and for local schemes state-level minorities are to be the ultimate beneficiaries”.

Himashri Baishya, Guest Teacher, University Law College, Gauthati University, Assam

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Sep 13, 2020

Himashri Baishya

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