Minorities, laws and institutions

M.R. SHAMSHAD

AT the beginning of the 20th century the West had propagated the notion that ‘minority rights’ were part of larger ‘human rights’. During World War I, minority rights were both granted and restricted due to political considerations.1 Even after World War II, in the United Nations’ Universal Declaration of Human Rights, minority rights, as a group right, was missing. In today’s time, minority rights, as a separate group right has undeniable status. However, in the changed contemporaneous politics in India, we hear some voices trying to put the clock back and take us to a century before by reiterating the same propaganda that human rights include minority rights. At the same time, there are judicial pronouncements in India weakening the rights flowing from Article 29 and 30 of the Indian Constitution.

Undoubtedly, some components of minority rights overlap the larger façade of human rights. It is like other group rights, relating to Scheduled Castes and Tribes, the disabled, women and the transgender. All of them have, separately, established their rights as special group rights while retaining individual inferences. Nevertheless, at the political and institutional level, a different enthusiasm and energy has been unleashed to protect these rights. Rightly so, the courts have come out with extraordinary interpretations to strengthen them. However, minority rights have not received the same sense of protection by either of them.

Being a sovereign democratic republic, the Indian Constitution has recognized the rights of minorities based on their religion, language, and culture. It is against the concept of majoritarianism in which certain cherished values of people, in fewer numbers, are likely to be oppressed. One must not confuse the larger sphere of rights which are covered and protected under Article 21 where minorities, being citizens and individuals, have equal protection along with every other individual in our country.

The recognition of minority rights gives both individuals and groups the right to be different by practice and continue with the value system with which they have grown up and is close to their heart, life, existence, and identity. In a democratic process, where people’s repre-sentatives are necessary, one can claim representation of any group that feels culturally and religiously suppressed in all public bodies and institutions.

In a polity like India, governments have always given legitimacy to the cultural practices of the majority while dealing with public issues. However under the changing circumstances, in recent times, granting ‘legitimacy’ has moved a few steps further where cultural practices of the majority are being ‘promoted’ in public spaces through use of state mecha-nisms. It is here that the cultural practices, identity of the minorities and their legitimate expectations of being treated equally, finds little space.

All of this has been done under the larger facade of general rights being extended to every citizen while sidelining the concerns of smaller groups thereby making them a disadvantaged class. The majority of society may choose a decent dress code or adopt decent eating habits. Apparently, the concept of ‘decency’, coloured with exclusionary impositions to minority practices, may look to be ideal, justifiable, and convenient to majority practices. However, at the same time, an equally decent dress code, lifestyle, and eating preferences of smaller groups (minorities) are excluded at the level of policy decisions to make a suitable cultural marketplace for the ‘national majority’. That is where the concept of equal treatment is defeated and smaller groups are unfairly placed at a disadvantaged place. Precisely for these reasons, one finds separate rights for minorities as group rights in our Constitution being the charter through which was founded Nation India.

Articles 29 and 30 of the Constitution are a part of the fundamental rights which are merely the expression of basic freedoms reserved for the people. Under Article 29, rights are available to ‘conserve’ distinct language, script, or culture. Under Article 30, all minorities based on ‘religion’ or ‘language’ have the right to establish and administer educational institutions of their ‘choice’. If these freedoms are reserved by the people themselves, any executive action under the pretext of morality and decency, cannot seek to unify the diversity of individuals in the public space. If fundamental freedoms can be available to an individual under extraordinary circumstances like in an emergency, why should they be diluted under normal circumstances just to give precedence to the proposed definition of decency and morality as defined by the majority? If the Parliament has no authority to revoke these freedoms, how can executive action be used to create a situation where minorities are confined by the definition of decency and morality imposed by the majority?

The protection of ‘cultural’ rights under Article 29 cannot be subjected to ‘public order, morality and health’. The right under Article 29(1) is an absolute right and not subject to any restrictions whatsoever as held in Jagdev Singh Sidhanti v. Pratap Singh Daulta.2 Issues like wearing of the hijab and sporting a beard are certainly matters of cultural right as well. These practices can be determined with the strength of protection under Article 29 – without involving Articles 25 or 19 which talk about restrictions. However, the court system has been reluctant to independently invoke Article 29. In this process, the intent and spirit of constitutional protection provided at different places in the Constitution lose their relevance and proceed to justify the practices proposed by the majority under the pretext that they will serve the national interest. This way of promoting national interest is an assault on the diverse value systems assured to the ‘national minority’.3

In recent times, it has been debated as to why the ‘national majority’ should not be a ‘regional minority’ considering India’s diverse population. The protection granted under Articles 29 & 30 can be availed by the cultural, linguistic, and religious minority groups. In the same way, in smaller states where a population of the ‘national majority’ is less than the ‘national minority’, the national majority shall be able to claim all benefits. This issue was debated in the Supreme Court of India in the year 2002 in the TMA Pai case.

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. On the issue of who can be a minority, the Supreme Court stated that ‘Article 30(1) deals with religious minorities and linguistic minorities.

The opening words of Article 30(1) make it clear that religious and linguistic minorities have been put on a par, insofar as that article is concerned. Therefore, whatever the unit – whether a state or the whole of India – for determining a linguistic minority, it would be the same in relation to a religious minority.

India is divided into different linguistic states. The states were carved out on the basis of the language of the majority of persons of that region. For example, Andhra Pradesh was established on the basis of the language of that region, viz. Telugu. A linguistic minority can, therefore, logically only be in relation to a particular state. If the determination of ‘linguistic minority’ for the purpose of Article 30 is to be in relation to the whole of India, then within the state of Andhra Pradesh, Telugu speakers would have to be regarded as a ‘linguistic minority’. This would clearly be contrary to the concept of linguistic states. Finally, the court stated that if the state has to be regarded as the unit for determining the ‘linguistic minority’ vis-à-vis Article 30, then with ‘religious minority’ being on the same footing and the unit to determine a religious or linguistic minority can only be the state.

On the face of it, the proposition laid down in the TMA Pai case appears to be a balancing proposition considering the political history of India, prior to and post the 1946-1950 period, when the Constitution of India was worked upon and implemented and the British passed the Indian Independence Act 1947. However, when we see its working at a different level, it becomes apparent that the ambit of constitutional rights has been restricted at all levels, particularly on three levels – political, administrative, and judicial.

While adjudicating and determining the rights of minorities, in most of the cases, the judiciary has adopted an approach of taking a view in the ‘National Interest’, both explicitly and implicitly. Accordingly, there have been controversies, among others, over hijab, beards, and eating practices, on the one hand, and over appointment of teachers, admission of students in educational institutions. This approach of the courts is a clear indication they are using the ‘homogeneity’ principle and not going by the true spirit of the mechanism created through the Constitution – to maintain the diversity of practices, cultures, and languages. At the same time, it appears that the court is ready to adopt the states as a unit to determine a minority, as the national religious majority is seeking to declare themselves as ‘minority’ in the states where they are numerically in a ‘minority’.

Second, there are technical reasons where the rights of minorities have been restricted, like through a clearly erroneous principle of law as laid down in the S. Aziz Basha case of 1967.4 The Supreme Court stated that the words ‘establish and administer’ in Article 30(1) would have to be read with distinction if the very same institution, though initially established by the same minority, was subsequently converted into a university by passing legislation through the Parliament and in that case, the protection under Article 30 would not be provided as the institution had granted degrees on its own. Hence, the court took the view that the conversion of the college into a university was not by the Muslim minority but by the government as it was done through legislation. To make it clear, if institutions established by minorities are converted into universities through legislation – for which there is no other way – the university cannot be said to have been established by the concerned ‘community’ or minority but effectively by the government. As a result, a university cannot be an ‘institution’ with the protection of rights under Article 30.

This view of the Supreme Court is contrary to the protection of rights of minorities. Because of this principle, a few leading institutions – Aligarh Muslim University and Jamia Millia Islamia, became the subject matter of intervention through the process of the court system. Such an intervention, based on this principle, resulted in the Muslim community at large feeling vulnerable, insecure, and disappointed. Financially unaided minority universities have not yet become victims of this view of the Supreme Court but they remain vulnerable. Recently, the correctness of the principle of law laid down in the Basha case has been referred to a larger bench of seven judges for reconsideration and is pending.

Our system faces a dilemma: are the guarantees given to minorities in the true spirit of the Constitution to be honoured, or to restrict the rights thereby transforming them into a decorative concept. There is no doubt that the Supreme Court has on numerous occasions effectively intervened in laying down the ‘principle of law’ which has strengthened the concept of constitutional protection of minorities. However, when those principles of law were sought to be implemented on the ground, in policy matters at the administrative level, and while scrutinizing the judicial process, they could not be given effect. Occasionally, those principles were successfully invoked when individuals went to the courts to assert their rights under Article 30. However, based as they were on individual cases, they rarely became a precedent at the administrative level.

Ours being a quasi-federal framework of the Constitution, the central government and the states, both have powers to recognize the diversity in language and religion of non-dominant communities in their territory. Initially, the central government took a stand in the Supreme Court that both the Parliament and state legislatures have concurrent powers in this regard. However, during the pendency of the same proceedings in the Supreme Court, the central government’s stand was vague and opportunistic. In a subsequent affidavit, the Centre took the stand that the power to notify minorities vests with the central government.

This stand of the Centre is bound to create friction within our federal constitutional framework. Interestingly, in addition to the Centre’s powers, regional languages are subject to regulation by the legislature of states. All the laws affecting religious rights are the subject matter of public order, health, etc., and are also within the powers of state legislatures. These two basic points of determination of a ‘minority’, i.e. ‘language’ and ‘religion’ are within the concurrent jurisdictions of the state and the Centre.

Considering this aspect, can we exclude the state from the power to declare a ‘minority’? This changed stand of the Centre will only concentrate more power with the Centre. It will be cumbersome and complicate issues that will result in the non-representation of different regions in the decision-making process. We cannot forget the fact that one of the basic features of our Constitution is its federal structure, which again cannot be amended. Simply recognizing the diversity of our population at the local level would be the best way for such determination. Whatever view the Supreme Court takes in this regard, it is evident that in addition to the Centre, state legislatures should have the power to recognize a group as a minority.

The central government promulgated the National Commission for Minority Educational Institutions 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’. As per this act, the central government declared six religious and linguistic communities as ‘minorities’. But it has not taken into consideration the Pai principle. If this principle is applied, the exercise will have to be done by taking states as units and in that process, ‘Hindus’ in Mizoram, Nagaland, Meghalaya, and Arunachal Pradesh may fall in the minority category. As Ladakh, Kashmir, and Lakshadweep are not ‘states’, they could fall in the grey area.

Prior to that, the central government had set up the National Commission for Minorities (NCM) in 1992 to evaluate the progress and development of minorities and monitor the working of constitutional safeguards to protect their interests. Unfortunately, NCM proved to be toothless and only of ornamental value. It will be interesting to see whether NCM will change its ways of functioning should the majority community be added to the list of minorities.

We have a strong overall majority in India, whom one may refer to as the ‘national majority’. If we apply the TMA Pai principle, the national majority will become a ‘minority’ in certain pockets of the nation to claim benefits which are essentially meant for the substantive minorities at the national level. Other than that, many communities who practically have the same language, script and culture, and similar religious followings (Jains, Buddhist) as the ‘national majority’, are already included within the definition of ‘minorities’. These communities in a real sense, be it culturally, linguistically, and also to a great extent religiously, are a part of the national majority – their religio-cultural practices are not distinct like those of Muslims, Christians, and Sikhs.

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 recognized 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 overall ‘majority’ community in the country, the Hindus, will also have a share in the budgetary allocations meant for the upliftment of substantive minorities in India. Accordingly, 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.

On the final stand of the Centre that it alone shall have the right to determine or recognize ‘minorities’, will create friction between the powers of the state considering the issues as discussed. The central government cannot usurp the powers of the state in the overall constitutional set-up. All laws affecting religious rights are the subject of public order – within the powers of state the legislature.

In any case, the political process in contemporary India has been unkind and hostile to the ‘national minority’ of India. It has playfully sought to question every cultural and religious practice of minorities. In this process, the issues have been raised one by one so that aggrieved persons are compelled to approach the courts and they are tactfully settled through the judicial process. The judicial process has unfortunately taken an exclusionary view. On the concerns of minority issues, the ‘reasonable accommodation’ approach is missing despite there being an ocean of diversity in our country.

The application of the concept of gender justice has emerged as a result of the subjective view of a couple of judges of the Supreme Court, who have taken different views on different practices. The issues raised in the Sabrimala case is an example where the view of three judges, then five and then again five judges, ultimately going to nine judges in a short span of time. The common citizens of India, here minorities, see that the Triple Talaq case was initiated on suo motu basis in 2015 and decided by a Constitution Bench in two years’ time, but a wrong principle of law of 1967 in the S. Aziz Basha case, could not be reviewed till 2019 despite a much larger bench (of eleven judges) in the meantime dealing with the issue of Article 30 in 2002 in the TMA Pai case.

Contrary to the rules of the Supreme Court, petitions challenging the judgement of the Karnataka High Court (2022) holding the hijab (head scarfs for girls) as not an essential practice of Islam, were not listed for hearing for months despite three assurances given by the then CJI in open court after the counsels mentioned them and flagged the urgency of hearing the case. With few exceptions, which can be counted on one’s fingertips, the role of the executive and the court process have not been encouraging in upholding the essence of diversity qua national minorities. I hope, after we have seen 75 years of functional democracy, minorities rights will receive equal weight and significance, like other groups’ rights, while interpreting Article 30. The courts must consider the requirements of group rights rather than diluting its essential components in vaguely defined terms, using the subjective concept of ‘national interest’.

Footnotes:

1. Great Britain and France opposed Wilson’s idea of universal minority protection through the League of Nations. See Ulrike Barten, Minorities, Minority Rights and Internal Self- Determination. Springer, 2014, Chapter 7.

2. Jagdev Singh Sidhanti v. Pratap Singh Daulta, (1964) 6 SCR 750.

3. At the national level, the Muslim population is 14.23%, Christians 2.3%, Sikhs 1.72, Buddhists 0.70%, Jains 0.37 as per the Census of India 2011. Hence, I refer Muslims, Christian’s, Sikhs etc as ‘National Minorities’ in comparison to the national level population of Hindus being 79.8 %. I refer to them as the ‘National Majority’.

4. AIR 1968 SC 662 (judgment delivered by a bench of five judges; opinion written by K.N. Wanchoo CJ).