Can Hindus be minority?

Faizan Mustafa
Vice-chancellor, Nalsar Law University, Hyderabad

Last Friday, an important conference was held in Delhi on ‘equal rights for Hindus’. The conference discussed the discriminations against the Hindus and suggested several amendments to the Constitution. It sounds bizarre that at a time when the Hindu nationalist party has Hindutva as its main plank, and 303 seats in the Lok Sabha and governments in most states, Hindus feel so insecure that they want rights that the Constitution has given to the minorities. One must salute this leadership for instilling fear in the majority community, despite 80 per cent share in population and total domination of the power structure. The BJP has been talking of ‘justice for all and appeasement of none’ in opposing minority rights. Decades ago, a BJP panel under KR Malkani had proposed the deletion of Article 30 that gives minorities the right to establish and administer educational institutions of their choice. Today, there is a demand to give minority rights to Hindus as well. 

Ashwini Upadhyay, a BJP member, has been filing petition after petition  on this issue in the SC. Strangely, the court has not been fully deciphering the use of the judicial forum in furthering the politics of a particular ideology. In one such petition, the court has referred the issue of the grant of minority status to the Hindus to the National Commission for Minorities (NCM). The commission had constituted a sub-committee headed by George Cherian, Vice-Chairman, NCM, and with Manjit Singh Rai and Atif Rasheed, both NCM members, as the other members. The sub-committee held 12 meetings and also gave a personal hearing to Upadhyay.

In its latest report approved by the NCM, the commission has rejected all prayers, ie declaration of Hindus as minorities in states where they are not in majority; declaration that the notification of Muslims, Christians, Sikhs, Parsis, etc as minorities by the Government of India, dated October 20, 1993, under the NCM Act, 1992, as ultra vires of the Constitution; framing guidelines for the declaration of minorities at the state level; defining minorities in terms of  the UN’s Declaration on Rights of Minorities (1992).

The expression ‘minorities’ has been employed only at four places in the Constitution, and interestingly, no definition of ‘minority’ is given. Minority is a group that is numerically smaller in relation to the rest of the population; it is non-dominant to the extent 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 more importantly, it wishes to preserve these characteristics. 

There was no need for such a PIL, which is filed to create unnecessary public debate on issues that have already been settled through authoritative judgments. There are a number of decisions on this issue, starting from the Kerala Education Bill (1957), where a seven-judge Bench explicitly took the ‘state’ as a unit to determine the minority status of groups claiming themselves as minorities. In 2003, the 11-judge SC Bench in TMA Pai Foundation case again laid down that in the absence of any special definition of minorities, any community, religious or linguistic, which is numerically less than 50 per cent of the population of the state is entitled to the protection of minority rights. 

The SC has been consistently observing that minorities are to be defined at the level of states carved out on a linguistic basis, as Article 30 uses both expressions: ‘minorities whether based on religion or language’. I agree with the BJP that Hindus are entitled to the status of minority community in Kashmir and in several Northeastern states. In fact, they are already linguistic minorities in all other states with identical rights with the religious minorities. As linguistic minorities, these Hindu groups are running hundreds of educational institutions. The demand for amending the Constitution is, therefore, absurd. Even in the DAV College case (1971), the SC held Hindus as minority in Punjab, on whom the Punjabi medium of instruction cannot be compulsorily imposed. 

Article 30 gives the same rights to both religious and linguistic minorities, but it nowhere says both religious and linguistic minorities must necessarily be determined at the level of state. The NCM rightly said as per Section 2 of the NCM Act, the Centre alone was entitled to notify a community as religious minority, and the NCM did not have the power to notify Hindus as minority in some states. This looks perfect as far as religious minorities are concerned, though it is not consistent with the existing law laid down by the SC. The point the NCM missed in its report is that how linguistic minorities are to be notified. One approach can be to define religious minorities nationally, and linguistic minorities on the basis of the state. The Government of India under the National Minorities Commission Act has already notified a few religious groups as religious minorities for the entire country.

On the definition of minority, we got a highly regressive decision from the Allahabad High Court in 2005, which held that Muslims were not a minority as they were too many, and quite powerful. The court held that no one was a minority in India, and thus made minority rights irrelevant. The NCM relied on the SC judgment in Bal Patil (2003) case, where it refused to recognise Jains as minority. It not only went against the larger Bench judgments, but also negated the constitutional vision of the preservation of distinctive identities. The court had said no new religious group was to be recognised as minority and the NCM must work towards reducing the list of religious minorities, and finally doing away with it altogether. This is a call for assimilation. Our Constitution wants integration, not assimilation.