Minority is a many layered notion

The Constitution does not define the term minority. The term minority/ies was used in Articles 29, 30 and 350B but the Constitution neither gave a list of minorities nor did it offer a criterion for designating a community as a minority.

• Were there any conventions that shaped our understanding and use of the term minority?

While deliberating on the subject of Fundamental Rights, the Constituent Assembly had constituted a sub-committee on Minorities with members from the following communities and groups: Muslim, Sikhs, Parsis, Anglo-Indians, Indian Christians, Scheduled Castes, Tribes and women. Five elements need to be noted here:

• In the Constituent Assembly religious communities as well as disadvantaged communities like Scheduled Castes, Backward Tribes and women were viewed as minorities.

• The Assembly identified Muslims, Sikhs, Christians, Anglo-Indians and Parsis as religious minorities.

• Subsequently when the same Committee considered separate representation for minorities, Muslims, Sikhs, Indian Christians, Anglo-Indians, Parsis, Scheduled Castes and Backward Tribes were identified as minorities and representation in proportion to their size in the total population was considered a viable way of granting these communities representation in legislative bodies.

• Linguistic minorities were not identified or separately represented in the deliberations, although the Constitution that was framed mentioned the rights of linguistic minorities and even mandated a Special Officer for Linguistic Minorities. Just who might be considered as linguistic minorities was therefore even less clear.

• Even at the time of framing the Constitution some communities complained that they should have been included as minorities. The Jain community, in particular, made several representations in this regard.

After independence our understanding and use of the term minorities drew upon the practices of the Constituent Assembly. Certain religious communities that had been represented at that time along with the Scheduled Castes and Tribes came to be identified as minorities. It was only in 1978, when a separate commission was set up for the SC and ST and another for minorities, that this term began to refer primarily to religious minorities.

• What was the criterion that the Constituent Assembly used for identification of minorities? Did it focus on numerical strength of a community, its self-perception or degree of disadvantage faced by it?

The size of a community was certainly a consideration but it was not the determining factor. There were many groups, from Namboodripads to Jains, who desired separate representation on account of their small size. But this was not accepted. Similarly, self-perception also did not count. Jains saw themselves as a small and distinct religious community, but they did not get the status of a minority. Disadvantage, material and economic, again was not the crucial condition of being a minority. Parsis and Sikhs neither saw themselves as disadvantaged nor were they perceived by others as disadvantaged. The Sikhs desired special consideration in recognition of the contributions they had made to the nation. So disadvantage too was not the mark of a minority.

What seems to have mattered was the size of the community and the perception that it was a distinct religion. It was recognition of the distinctiveness of a religious community that was crucial. Obviously, not all communities that claimed to be different were recognised as being a distinct religion and this remains till today a major point of debate. Indeed, the Supreme Court too ignored the self-perceptions of the communities when it maintained that the Arya Samaj and the Rama Krishna Mission are part of the Hindu religion and could not be treated as a distinct religious minority. There are thus a number of problems in the way we have determined what constitutes difference, but difference/distinctiveness rather than disadvantage was the operative factor in the designation of religious communities as minorities.

• Has the same criterion been used for identification of linguistic minorities?

In the recognition of both religious and linguistic minorities numerical strength and distinct identity have received consideration. However, the Supreme Court has ruled that in cases where the state law is the point of reference, minorities have to be identified in the context of the state and not the total population of the country. Hence, linguistic minorities have been identified in terms of their strength in the state. As a consequence, we have a situation where some groups may be part of the religious majority in the nation but a linguistic minority in a region or vice-versa; they could be a linguistic minority in one state but a majority in another. It is this complex and multilayered notion of minority that has determined the identification of minority educational institutions.

• If disadvantage is not the criterion, why should there be special consideration for minorities?

Special consideration for religious and linguistic minorities was a safeguard against cultural/religious and political majoritarianism. Minority rights were intended to assure these communities that they will not be compelled to assimilate into the dominant culture or the Hindu majority. In addition to it, these rights were expected to ensure that different cultures can survive and flourish, and that individuals, if they so choose, can impart their collective religious and cultural inheritances to their children. These then were the interests that were to be protected. They were given as matters of right rather than the benevolence or largesse of the majority to make our democracy multicultural.

• Have minority rights served the purpose they were intended for?

These rights have helped diversities to flourish but they have not, and cannot be expected to, protect the minorities, particularly in situations of inter-community conflicts and other forms of stigmatisation. Situations of the latter kind require protection of the basic rights of individuals as citizens, and minority communities need this even more.

The writer is professor, Centre for Political Studies, JNU