The controversy set off last fortnight by Minority Affairs minister Najma Heptullah’s declaration that the minority status of India’s religious communities must be determined by their numerical strength is reminiscent of the heated debates that took place in the Minorities Sub-Committee of the Constituent Assembly in 1947.
In her first public statement upon joining the council of ministers, Heptullah said that Muslims were not a minority but that Parsis, with their dwindling numbers, qualified for the label. Her remarks recalled nationalist opinion just after Partition, which opposed the granting of any privileges to minorities, other than linguistic rights.
Since then, state governments, the judiciary, and various union governments have sought to establish who is a minority and who isn’t. It is a crucial question in a nation like India, where redistributive measures are often a citizen’s only link with the government.
Minorities and the Judiciary
The crux of the problem is that the Constitution does not provide a definition of what constitutes a minority. This has resulted in governments and the judiciary coming to independent, even conflicting, conclusions, all of which have contributed to the present imbroglio.
Over the years, the major judicial pronouncements on minority rights, especially T. M.A. Pai Foundation vs the State of Karnataka in 2002 and the cases that followed have been limited to the clarifying the role of minority education institutions. Article 30 of the Constitution guarantees the right of minority groups to establish and administer educational and cultural institutions.
But there have also been judgments that – like Heptullah's statement – have relied on evaluating numerical strength. For instance, Bal Patil (2005) held that Sikhs were not a minority in India. In 2007, Justice Srivastava of the Allahabad High Court ruled that because Muslims comprised 18.5% of the population in Uttar Pradesh, they could no longer claim minority status under the Constitution. This was set aside by a Division Bench in 2009.
These rulings were reflected in the 103rd Constitution (Amendment) Bill 2004, which granted constitutional status to the National Commission for Minorities. One of the NCM’s goals was to define minorities state-wise. The Justice Ranganath Mishra Commission Report in 2007, which recommended the inclusion of certain categories of Muslims and Christians in the definition of OBC (Other Backward Classes) followed the same path.
Minority Mathematics
Heptullah's suggestion that numerical strength should be the defining criterion of minority status completely disregards the internationally accepted approach, in which minority status is directly linked to political influence – or rather, lack of it. It isn't about numbers, then, but crucial qualitative conditions of vulnerability. It is about the humane claim of equity.
The most widely acknowledged definition of what constitutes a minority was formulated by Francesco Capotorti in the United Nations–commissioned Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities in 1991. It lays specific emphasis on “non-dominant position” of a group vis-a-vis the majority. Minority status is determined by the degree of political participation and social inclusion, rather than on the numbers of a specific group. Minorities are typically excluded from the political decision-making that controls their lives.
Consider three indices: vulnerability, political representation, and socio-economic reality. The present Lok Sabha, despite the vociferous claims of the BJP, has only 22 Muslims. The Justice Rajinder Sachar Committee and the Ranganath Mishra Committee clearly established that there is a yawning gap in the socio-economic development of Muslims in comparison with the majority, and even with other religious minorities such as Jains, Sikhs, Parsis and Christians. The physical vulnerability of Muslims is also a matter of concern both within and outside the community, though there is a dearth of statistics establishing how much punitive violence the community suffers. The number of young Muslim men who spend years in prison wrongfully accused – sometimes even convicted – of various terror cases is another example of their relative powerlessness, and even a degree of institutionalised prejudice.
Paradigm Shift
Amidst the outrage over Dr Heptullah’s remarks, what is lost is the dire need to shift the debate on minority rights away from the paradigms of communalism-versus-secularism and nationalism-versus-sectarianism. We could begin by looking at Gujarat High Court’s 2013 judgment in Adam B. Chaki, which held the Sachar Committee’s recommendations as unconstitutional. The previous government had defended the Committee before the Supreme Court as spiritedly as the Gujarat government has attacked it. The appeal is yet to be decided.
The present political dispensation’s view on minority rights is well-known, and Heptullah, who also serves as the Chairperson of the National Commission for Minorities, is only toeing the party line. The real test will be the outcome of the appeal in the Chaki case before the Supreme Court.
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In her first public statement upon joining the council of ministers, Heptullah said that Muslims were not a minority but that Parsis, with their dwindling numbers, qualified for the label. Her remarks recalled nationalist opinion just after Partition, which opposed the granting of any privileges to minorities, other than linguistic rights.
Since then, state governments, the judiciary, and various union governments have sought to establish who is a minority and who isn’t. It is a crucial question in a nation like India, where redistributive measures are often a citizen’s only link with the government.
Minorities and the Judiciary
The crux of the problem is that the Constitution does not provide a definition of what constitutes a minority. This has resulted in governments and the judiciary coming to independent, even conflicting, conclusions, all of which have contributed to the present imbroglio.
Over the years, the major judicial pronouncements on minority rights, especially T. M.A. Pai Foundation vs the State of Karnataka in 2002 and the cases that followed have been limited to the clarifying the role of minority education institutions. Article 30 of the Constitution guarantees the right of minority groups to establish and administer educational and cultural institutions.
But there have also been judgments that – like Heptullah's statement – have relied on evaluating numerical strength. For instance, Bal Patil (2005) held that Sikhs were not a minority in India. In 2007, Justice Srivastava of the Allahabad High Court ruled that because Muslims comprised 18.5% of the population in Uttar Pradesh, they could no longer claim minority status under the Constitution. This was set aside by a Division Bench in 2009.
These rulings were reflected in the 103rd Constitution (Amendment) Bill 2004, which granted constitutional status to the National Commission for Minorities. One of the NCM’s goals was to define minorities state-wise. The Justice Ranganath Mishra Commission Report in 2007, which recommended the inclusion of certain categories of Muslims and Christians in the definition of OBC (Other Backward Classes) followed the same path.
Minority Mathematics
Heptullah's suggestion that numerical strength should be the defining criterion of minority status completely disregards the internationally accepted approach, in which minority status is directly linked to political influence – or rather, lack of it. It isn't about numbers, then, but crucial qualitative conditions of vulnerability. It is about the humane claim of equity.
The most widely acknowledged definition of what constitutes a minority was formulated by Francesco Capotorti in the United Nations–commissioned Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities in 1991. It lays specific emphasis on “non-dominant position” of a group vis-a-vis the majority. Minority status is determined by the degree of political participation and social inclusion, rather than on the numbers of a specific group. Minorities are typically excluded from the political decision-making that controls their lives.
Consider three indices: vulnerability, political representation, and socio-economic reality. The present Lok Sabha, despite the vociferous claims of the BJP, has only 22 Muslims. The Justice Rajinder Sachar Committee and the Ranganath Mishra Committee clearly established that there is a yawning gap in the socio-economic development of Muslims in comparison with the majority, and even with other religious minorities such as Jains, Sikhs, Parsis and Christians. The physical vulnerability of Muslims is also a matter of concern both within and outside the community, though there is a dearth of statistics establishing how much punitive violence the community suffers. The number of young Muslim men who spend years in prison wrongfully accused – sometimes even convicted – of various terror cases is another example of their relative powerlessness, and even a degree of institutionalised prejudice.
Paradigm Shift
Amidst the outrage over Dr Heptullah’s remarks, what is lost is the dire need to shift the debate on minority rights away from the paradigms of communalism-versus-secularism and nationalism-versus-sectarianism. We could begin by looking at Gujarat High Court’s 2013 judgment in Adam B. Chaki, which held the Sachar Committee’s recommendations as unconstitutional. The previous government had defended the Committee before the Supreme Court as spiritedly as the Gujarat government has attacked it. The appeal is yet to be decided.
The present political dispensation’s view on minority rights is well-known, and Heptullah, who also serves as the Chairperson of the National Commission for Minorities, is only toeing the party line. The real test will be the outcome of the appeal in the Chaki case before the Supreme Court.