The Supreme Court this month heard a petition asking for a minorities commission to be set up in Jammu and Kashmir. The plea, filed by Ankur Sharma, a lawyer in Jammu, contended that Hindus, Sikhs, Buddhists and Christians were unable to access benefits meant for minorities in the state where 68.3% of the population is Muslim.
Sharma’s plea came after a lawyer-leader of the ruling Bharatiya Janata Party, Ashwani Kumar Upadhyay, petitioned the apex court to direct the central government to confer minority status on Hindus in seven states, including Jammu and Kashmir, and a Union Territory. On the advice of a bench headed by Justice Ranjan Gogoi, Upadhyay later withdrew his petition and approached the National Commission for Minorities, which is reportedly considering the matter.
Central to both cases is this question: can the majority community be seen as a religious minority in any part of the country?
A community’s minority status is relevant mainly for accessing specific welfare schemes. This should not be a bone of contention: the Supreme Court has already ruled that such schemes launched by the Centre are for national-level minorities while local schemes would cover the state-level minorities.
In Jammu and Kashmir, Sharma argued that in the absence of a minority commission in Jammu and Kashmir, “crores worth aid are being given away to a certain community, which is the majority Muslim community, in an illegal and arbitrary manner”. No matter how they are designated in the state, Muslims, as a national minority, would continue to be beneficiaries of central minority welfare schemes.
As for directing the state government to establish a minorities commission, the court pointed out that it does not have the power to do so. Since Jammu and Kashmir does not fall within the purview of the National Commission for Minorities Act, 1992, a state minorities commission must be set up through legislation by the Assembly or an administrative order by the government.
Hindus as a minority
Upadhyay’s petition directly asks for recognising Hindus as a religious minority in certain states. If the petitioner’s idea has his party’s support it is intriguing. Two decades ago, as chairperson of the National Commission for Minorities, I personally prepared a special report titled “Hindu Minorities in India”, written after visiting the states concerned and hearing local Hindu leaders. My report, recommending state-level minority status for Hindus in Jammu and Kashmir, Lakshadweep, Meghalaya, Mizoram, Nagaland and Punjab, was endorsed by the Commission and submitted to the central government, then led by the BJP. But it was pooh-poohed by the party’s stalwarts and cold-shouldered by the government.
In the Constitution, Article 29 proclaims that “any section of citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have a right to conserve the same”. Article 30 recognises the right of a religious or linguistic minority to establish and administer educational institutions. Read together, the two provisions may be taken as the constitutional charter for religious and linguistic minorities at all levels.
The Constitution does not specify a mechanism for identifying groups of citizens covered by either of these provisions. The National Commission for Minorities Act, 1992, confined in application to religious minorities, does not list them either; it only states that for the purposes of the Act the word “minorities” means communities “notified as such” by the central government.
A notification issued under this provision in 1993 proclaimed Muslims, Christians, Buddhists, Sikhs and Parsis as minorities. The Jains protested against their exclusion and, on taking over as the Commission’s chairman, I took the position that since the Constitution and the laws bracket Jains with Buddhists and Sikhs, the government had two options: either drop Buddhists and Sikhs from the list or to extend it to Jains. Fifteen years later, the government went for the second option – on the persistent demand of some Jain leaders, the 1993 notification was modified to include their community among the minorities.
Population not the only criterion
If population is to be the sole yardstick to accord minority status at state level, Hindus are a minority in Christian-dominated Meghalaya, Mizoram and Nagaland; Sikh-dominated Punjab; Muslim-dominated Jammu and Kashmir and Lakshadweep as I pointed out in my report of 1998. Upadhyay, in his petition, additionally counted Arunachal Pradesh and Manipur among Hindu-minority states, which is questionable. Hindu are less than 50% in these states but so are all other communities, and the difference in population between Hindus and Christians is miniscule.
Population, however, is not the only criterion for a religious community to be seen as a minority. A 1977 report of the United Nations Subcommission on Prevention of Discrimination and Protection of Minorities defined minority as “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 not implicitly, a sense of solidarity directed towards preserving their culture, traditions, religion or language”.
If each of these criteria is to be meticulously applied, Hindus, the national majority, would not be seen as a minority anywhere in India.
The legal position is that the National Commission for Minorities too has no power to declare any community to be a minority; it can only make a recommendation in this regard to the government. My 1998 report remains on record and, considering it, the Centre or a state government may take whatever action they deem fit in respect of state-level Hindu minorities. No well-wisher of the community needs to go to the apex court or the minorities commission for this purpose.
Tahir Mahmood is a professor of law, former chairman of the National Commission for Minorities and ex-member of the Law Commission of India.
