There is an ongoing debate on whether Hindus can claim the protection of rights guaranteed to minorities under Articles 29 and 30 of the Indian Constitution. On the face of it, this claim appears absurd (considering the vast majority of Hindus in India). Yet, it may find some legitimacy, if one examines the issue based on the principles of the TMA Pai case (2002). In the case, the Supreme Court (SC) held that for Article 30, which deals with the rights of minorities to establish educational institutions, religious and linguistic minorities have to be considered state-wise.
By placing reliance on the principles in Kesavananda Bharati judgment (1973), one of the judges in the TMA Pai case held that the context in which the Constitution was framed and the political content of the special rights given to the minorities, their rights are a part of the Constitution’s basic structure, and, so, unamendable and unalienable.
A pending case in the SC, filed by lawyer Ashwini Kumar Upadhyay, now seeks the enforcement of the TMA Pai principle to determine the state-wise status of linguistic and religious minorities. In a public interest litigation, Upadhyay has stated that Hindus are in a minority in 10 states and Union Territories (UTs), but they cannot avail of State-run welfare schemes.
The TMA Pai judgment mentioned India’s diversity, saying that each person’s identity — irrespective of language, caste, or religion — has to be preserved. Applying this principle, if Hindus are recognised as a minority community in different regions, it will fly in the face of the “homogeneity” agenda that the central government has been pushing. Consequently, the Centre will also be expected to be more open to recognising the various components of the rights of other religious and linguistic minorities across the country.
The National Commission for Minority Educational Institutions was created in 2004 to enable educational institutions to seek recognition as minority educational institutions, with the central government having the power to notify who is a “minority”. Accordingly, the central government declared six religious and linguistic communities as “minorities”. But it has no reflection on the Pai principle because Hindus in Mizoram, Nagaland, Meghalaya, and Arunachal Pradesh are in a minority. Ladakh, Kashmir, and Lakshadweep are not “states” so they may fall in a grey area.
The National Commission for Minorities (NCM) was set up in 1992 to evaluate the progress and development of minorities and monitor the working of constitutional safeguards to protect the interests of minorities. Unfortunately, NCM has proved to be toothless. It will be interesting to see whether NCM will change its way of functioning if the majority community is added to the list of minorities.
Another difficult issue before the SC is to decide who should decide on a community’s minority status. After the 1996 Hindutva judgment of the SC, the first step would be to define the term “Hindu” since the judgment classifies most Indians, by default, as Hindus.
Returning to the debate about minorities, does Parliament have the exclusive power to do this, or are state legislatures also competent for such declarations? It is evident that, in addition to the Centre, state legislatures should have the power to recognise a group as a minority.
Confining this power with the Centre alone will lead to myriad issues. It will be cumbersome, and the central government’s decision may reflect the non-representation of different regions in the decision-making process. We cannot forget that one of the basic features of our Constitution is the federal structure, which again cannot be amended. Simply, recognising the diversity of our population at a local level is the best way for such determination.
In the pending case before the SC, initially, the central government appears to have taken the stand that Parliament and the state legislatures both have concurrent powers to decide on this. However, in a subsequent affidavit, the Centre held that the ability to notify minorities is vested with it.
The Centre’s stand is bound to create friction. In addition to the central power, regional languages are subject to regulation by state legislatures. All laws affecting religious rights are the subject of public order – within the state legislative powers. The Centre’s stand will lead to a concentration of power. In addition, the most significant overall majority community in the country, Hindus, will also have a share in the budgetary allocations meant for the uplift of minorities.
Irrespective of the fact of who decides this issue, if the claim succeeds, India will become an example of a country where the dominant religious and political community with authoritative political power needs constitutional safeguards essentially meant for communities that are socially, economically, politically non-dominant and inferior in the overall population of the country, to protect them from majoritarianism.
This article was published in the Hindustan Times on May 23, 2022