Appeared in Hindustan Times Mumbai

The term minority is not defined in the Constitution. Nowhere in the world, except in India, is a minority defined by religion or caste. Is anyone listening?

A lone judge of the Allahabad High Court caused a nationwide flutter this April by declaring that Muslims could no longer be treated a religious minority in Uttar Pradesh. Although a division bench of the same high court stayed the order it is worth reviewing the legal and political practices and doctrines that determine who constitutes a minority.

The term 'minority' has been used in Articles 29 and 30 of the Constitution but it has nowhere been defined. According to the Supreme Court judgment of August 2005, “Minority as understood from the constitutional scheme signifies an identifiable group of people or a community who are seen as entitled to protection due to deprivation of its religious, cultural and educational rights by other ‘majority’ communities. Majority here refers to a group or community that is likely to gain political power in elections under a democratic form of Government”.

In the international sphere, a minority community is one whose identity, owing to war or similar circumstances, is under threat and should be preserved from ethnic extinction, by affording safeguards through international charters and the national Constitution. 

“It is with the above aim that the framers of the Constitution engrafted group of Articles 25 to 30 in the Constitution of India. The minorities initially recognized were based on religion and on national level e.g. Muslims, Christians, Anglo-Indian and Parsis. Sikhs and Jains were not treated as national minorities at the time of framing the Constitution. In fact, throughout the Constitution they are treated as part of the wider Hindu community, which has different sects, sub-sects, faiths, modes of worship and religious philosophies. In various codified customary laws like Hindu Marriage Act, Hindu Succession Act, Hindu Adoption and Maintenance Act and other laws of pre and post-Constitution period, the definition of 'Hindu' included all sects, sub-sects of Hindu religions including Sikhs and Jains,” the Supreme Court judgment stated.

The underlying rationales for granting minorities special rights were: 1) Minorities deserved protection of their rights from the majority community i.e. the Hindus. 2) The Hindu community was a monolith which voted solely on religious lines (i.e. Hindu vs. non-Hindu). 3) Hindus would force non-Hindus to assimilate into Hindu culture.

The argument is flawed on many counts. First the Indian Constitution does not define the word ‘Hindu’. According to former President and scholar Dr S Radhakrishnan, the term Hindu had originally a territorial and not religious significance. It implies residence in a well-defined geographical area. Hinduism is not a religion but a way of life. So, how can a group that cannot be defined except by geographical or historical/cultural indicators constitute a religious or political majority?

Secondly, as we have seen in the last 60 years, the Hindu does not vote as a Hindu but rather on the basis of caste, ethnicity or locality and performance.

Hindu society is divided into four varnas-- Brahmins, Kshatriyas, Vaishyas and Sudras. Each caste is divided into various minority groups. Thus, no section or distinct group of people can claim to be in the majority. In Uttar Pradesh, Brahmins should be declared a minority since they constitute a smaller percentage of the population than Muslims who are 18.5 per cent. 

Thirdly, even before Constitutional safeguards came into place Hindus have given refuge and untrammeled rights to communities that were persecuted in other countries, to practice their religion, such as Parsis, Jews and Syrian Christians. Fourth is there a percentage beyond which a community ceases to be a minority?

In J & K, Kerala, West Bengal  and Assam Muslims were 67 per cent, 24.7 per cent, 25.2 cent and 30.9 per cent of the population of the respective states. Can they be called a minority?

Lastly, schools runs by the Christian minority are provided special rights to enable the community to protect its religion and culture. A survey of Jesuit run schools in Mumbai would show that the majority of students are invariably non-Christian. So how is Christian culture being protected?

The consequences of these provisions are many. One, minority educational institutions are granted special privileges not available to Hindus. To avail of these privileges Hindu organizations like Ramakrishna Mission unsuccessfully petitioned the Supreme Court to be declared a ‘minority’. For example, the recent bill for reservation of 27 per cent seats for OBCs is not applicable to institutions of higher education run by minorities. How does an engineering college run by a minority group help the community retain its culture, religion is anybody’s guess.

Two, places of worship of the minority community are, unlike Hindu temples, not subject to state government control. Sri Sri Ravi Shankar has said, “There are as many as 2,07,000 temples in Karnataka and the total income of these temples amounts to Rs 72 crore. Only a sum of Rs. 6 crore is being spent by the Government for their upkeep. On the other hand, the Government spent a phenomenal amount of Rs.50 crore for the madrasas and Rs.10 crore for the churches.”

But there’s little confusion in other countries. In UK’s Constitution, the nation that gifted us the words ‘minority’ and ‘majority’, minority is not defined. There, division is based on skin color and race. However, racial minorities do not have special privileges unlike minorities in India.  

The U.S. Constitution does not use the term ‘minority’ anywhere. What it has come to mean, through case law, is that certain group characteristics are used to identify “protected classes” for various provisions of the law— such as race, color, religion and national origin. 

Instead of reservations, affirmative action is allowed for racial minorities and has been expanded to encompass women, religious minorities, and gays as well under the rubric of various non-discrimination laws at national, state and local levels. Affirmative action generally kicks in when it comes to higher education and employment and calls for preferential treatment for certain minorities. For example, if there is a choice between a qualified white and black person, all things being equal the black person would get the job. Quotas are generally disallowed; and affirmative action is not binding on private (non-governmental) institutions but non-discrimination laws of varying scope and strictness apply to private employers as well.

If Indians continue to identify people by religion and caste it is bound to promote conflict. Nations are formed through amalgamation of identities and not by continuously harping on differences.

Sardar Patel said on August 9, 1945, “The British talk of Hindu Muslim quarrels but who has thrust the burden on their shoulders? If they are sincere let them hand over to the Congress, League or international arbitration. Give me just a week’s rule over Britain, I will create such disagreements that England, Wales and Scotland will fight one another for ever”. (Patel – A Life by Rajmohan Gandhi).

Who is going to sort out this secular mess, the executive or judiciary? Either of them needs to define ‘minority’. A review of the disabilities suffered by the ‘majority’ Hindu community is called for, since it is a community distinct from the politically empowered and networked majorities in Pakistan, U.S. or Indonesia