The term ‘religion’ has not been defined in the Constitution but the Supreme Court has given it an expansive statement. Religion is a matter of faith. A religion has its basis in a system of beliefs and doctrines, which are regarded by those who profess that religion as conducive to their spiritual well being, but it is also something more than merely doctrine or belief. It may lay down a code of ethical rules for its followers to accept, prescribe rituals, ceremonies and food, dress. Thus the Constitutional guarantee under article 25 (1) extends to rites and ceremonies associated with a religion. For e.g. cow sacrifice has been held not be an overt act for a Muslim to exhibit his religious beliefs – Moh Hanif Qureshi v Bihar, AIR 1958, SCI,731.
Bottom-line what I am saying is that the term Religion is alien to India and should not have been the basis for articles 25 to30. How then can one distinguish Hindu from Muslims and Christians? To my mind the differentiating factor is Dharma? That is what separates all Indians who are not Muslims or Christians.
Definition of Minority? Chapter 6 The chapter covers four points. One who is a minority? Two who is a linguistic minority? Issues arising out of denominations and sects? Are Jains, Buddhist and Sikhs minorities for the purposes of article 30 (1)?
A - The word Minority has been repeatedly used in articles 26 to 30. Article 30 (1) reads ‘All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice’. The Article gives linguistic or religious two rights. One is right to establish and two is right to administer educational institutions of their choice. Article 30 (2) bars the state, while granting aid to educational institutions, from discriminating against any institution on the ground that it is under the management of a linguistic or religious minority.
In the international sphere, the demand for special safeguards to protect the cultural or linguistic identity of minority communities has emerged from the principle that owing to war or like circumstances causing territorial changes without the consent of people residing in those territories, the identity of such communities who have been torn as under by circumstances beyond their control should be preserved from ethnic extinction, by affording safeguards through international Charters and national Constitutions.
Article 27 of the International Convention on Civil and Political Rightsdoes not define the word Minority but gives them the following rights – ‘In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, a community with the other members of the group, to enjoy their own culture, to profess and practice their own religion or to use their own language’. Well article 30 provides them with rights far in excess of article 27.
However, the Constitution has not defined the term Minority. In the Kerala Education Bill, the Supreme Court opined that while it was easy to say that minority meant a community which was numerically less than 50 % of the population the important question was 50 % of what – the entire population of India or a state or a part thereof? The Court did not decide this point definitely.
However, it has come to be accepted that minority is to be determined only in relation to the particular legislation that is being challenged. In the case of the Sindhi Education Society (Civil Writ Petition no 940 of 1975) decided by the Delhi High Court on 14.7.1982 the Court held that minority status has to be decided on the basis of the area of application of the Act. So also in D.A.V. College, Chandigarh(AIR 1971 SC 1737), the Constitutional Bench of the Supreme Court observed: ‘Though there was a faint attempt to canvas the position that religious or linguistic minorities should be minorities in relation to the entire population of the country, in our view, they are to be determined only in relation to the particular legislation which is sought to be impugned, namely that if it is the State legislature these minorities have to be determined on the basis of the population of the State’.
Thus, if a law is being challenged in the state of West Bengal, the minority must be determined with reference to the population of that state. In such a case, any community, linguistic or religious which is numerically less than 50 % of the entire state population will be a minority for the purposes of article 30 (1). Thus, Arya Samajis and other Hindus in Punjab constitute a minority.
Now! Let’s take the state of Kerala. Muslims, Hindus and Christians constitute roughly 30–40 % of the population with no one having a 50 % plus majority. In such a case everyone would be a minority. Yet only Muslims and Christians are considered minorities.
Backward classes are not minorities within article 30. As K M Munshi pointed out ‘The Harijans generally known as the Scheduled Castes are neither a racial minority nor a linguistic minority. The Harijans are part and parcel of Hindu community’. Indeed, if the framers of the Constitution thought they were not Hindus they would have been clearly included as a Minority as a Delhi Court Judgment below shall prove.
To the common man a religious minority is anyone who is not a Hindu meaning Muslims, Christians. Sikhs were always considered a martial sect of Hindus but now considered to be a minority. Again when you say Muslims are in a minority would it be in the context of the country, state, city, and locality.
But Hindus are not considered to be a minority in Jammu and Kashmir! Even though their numbers are far below the Muslims.
Parag writes in from Germany - “Minority can be defined in either way on ethnic grounds or religious grounds depending on the context of the situation. There is no hard and fast rule for ethnicity or religion. Ex. Jews are a minority in Germany on religious grounds, and Indians probably on both religious & racial, & African blacks are a minority on racial grounds.
Again there is no fixed percentage for being minority and will depend more on context. In normal situations, Turkish Muslims in Germany being 9% of German population are a minority but some people do argue that they are no more a minority. In any case they do not have any special privilege of being minority and nor Germans have any privilege for being majority.
In the elections, a candidate/party has to get at least 5% votes to enter the local administration body. This applies to all people and political parties irrespective of faith or ethnicity. But only in the case of a small Danish minority in north of Germany this law is not applicable. If some person/political party of Danish Germans get less than 5 % votes, they still can manage to enter the administrative body (ies) through other channels”.
Jayant writes in from London- “Germany has over a million Turks who were brought to work when Germany had manpower shortage also they have lots of other immigrants from India/Pakistan and Africa but they do not get a right to German citizenship even if they lived there for years or were born there.
While in UK, all those who live for certain number of years automatically get a right to British citizenship. So in the British cricket or football teams you would see lots of Black people or even Asians because they are treated as equal citizens”.
B. Linguistic Minority - So far we have talked about Religious minorities, now who constitute a Linguistic minority? In Tamil Nadu Tamil is the state language; in Maharashtra Marathi is the state language. So in Tamil Nadu Marathi speakers would be a linguistic minority and vice versa. What is the basis of determining a linguistic minority? Should it be script, mother tongue or spoken language?
In D.A.V. College, Chandigarh this issue came up before the Supreme Court. Arya Samaj claimed to be a linguistic minority in Punjab. Since they are a minority in Punjab, they automatically got a minority status under art 30 (1). The Court observed: ‘A linguistic minority for the purpose of art 30 (1) is one, which must have a separate spoken language. It is not necessary that the language must have a distinct script for those who speak it to be linguistic minority’.
Now suppose the Gujarathis were to start a school in Mumbai where Marathi is the state language. They would be considered to be a linguistic minority. Now if such a school had English as the medium of instruction. Would it continue to a linguistic minority? Courts have mostly said Yes. The medium of instruction is not relevant, what is key is that Gujarathis, a linguistic minority have started the school.
Friends I do not want to sound too radical but creation of linguistic states has divided us like never before. A bigger mistake was to use language as one of the basis for its creation. Said freedom fighter and founder of the Bhartiya Vidya Bhavan Shri K M Munshi “Indian culture has an organic unity, and this has been largely brought out by language movements, shaped and molded by the Sanskrit language”. Every Indian language be it Hindi, Tamil, Telegu, Bengali, Assamese originated out of or was influenced by Sanskrit. By creating linguistic states we emphasized state languages like Gujarathi, Tamil in the process forgetting the mother of all Indian languages Sanskrit.
Quote from the Preface of the English Sanskrit dictionary by Sir Monier Williams written on 5/11/1851 (published by Munshiram Manorharlal Publishers) “And since it is found that no vernacular tongue is adequate to express the ideas of religion and science, without borrowing its terms from Sanskrit, the utility of an English and Sanskrit dictionary will be recognized by all those who to compose in these dialects, whether in Hindi, Bengali, Uriya, Telegu, Canarese, Tamil, Malayalam or Marathi”.
The Khariboli form of Hindi that was accepted as our national language is one of the youngest Indian languages. It did not come into literary use before 1800 a.d. and its effective literary employment started after 1850. Besides Khariboli there was Maithali, Magahi, Bhojpuri, Awadehi, Bagheli, Brajbhasa and Chattisgarhi languages. However, for nearly 150 years it is Khariboli that became Hindi language while the others began to be treated as dialects.
I fully appreciate the need to promote Indian languages but have not such constitutional provisions strengthened the case for linguistic states is something that you like to ponder over? After all the linguistic states of Maharashtra and Gujarat were created in 1960 a good ten years after the constitution was approved. Think!
C. Denominations and Sects
Hindus may be in a majority in Uttar Pradesh but Arya Samajis a sect are in a minority there. Thus, can Arya Samajis claim the benefit under article 30 (1) on the basis that it is a minority? So also Christians may be in a majority in Meghalaya but Protestants are in a minority. Can they claim benefits under article 30 (1) despite being part of the Christian fold. A highly contentious issue there has not been a single judgment of the Supreme Court directly dealing with it. The Supreme Court held that the Ramakrishna Mission a Hindu sect under art 26 of the Constitution cannot be considered a religious minority under article 30. This seemed to confirm another High Court decision that protection of article 30 (1) is available only to religious groups.
Thus whether Auroville (Emergency) Provisions Act, 1980 violated art 30 (1) came up before the Supreme Court in S.P.Mittal vs Union of India (AIR 1983 SC 1). Aurobindo society claimed to be a religious denomination or sect. The Court held that the Society was not entitled to protection under article 30.
In the case of Arya Samaj Education Trust (AIR 1976 DEL 207) the court held that Arya Samaj was not entitled to protection under article 30. The Court went into the historical context and assessed the Report of the Minority Sub-Committee to the Constituent Assembly and the debates thereafter, came to the conclusion that the words ‘based on religion; in art 30 (1) were always meant to include religious groups and not sects or denominations. Excerpts from the report as quoted in a Delhi High Court judgment -
“The word ‘minority’ used in the expression minorities based on religion used in art 30 (1) connotes only those religious minorities which had claimed separate rights from those of the Hindus prior to the Constitution such as the Muslims and the Sikhs. The Christians did not seem to have claimed separatist’s rights but they were nevertheless a distinct minority based on a religion, which at no stage was regarded as a part of Hinduism. Because of the political origin of the sense in which the word ‘minority’ was used in India, it was never meant to be applied to a part or a section of the Hindus such as the Arya Samaj and several other Hindu sects. No section or class of Hindus was ever referred to as a minority”.
Two points. One was that minority rights were demanded for by Muslims and Sikhs only not by Christians, Buddhists and Jains as is the case today. Chapter 2 clearly tells how the Brits accentuated the Hindu Muslim divide and cemented it with separate electorates for Muslims in 1909. This led to their clamoring for minority rights although fellow Muslims had divided the nation on the two-nation theory.
In the case of Sikhs separate electorates were provided for only in 1935 only. This sowed the seeds for Sikh separatist’s tendencies that was to culminate in the Khalisthan Movement of the 1980/1990’s. It eventually resulted in Sikhs going outside the Hindu fold and becoming part of the National Minorities Commission. However, I am yet to know the basis on which they are treated as a separate religion, quote Khushwant Singh ‘Of the 15028 names of Gods that appear in the Adi Granth, Hari occurs over 8,000 times, Ram 2533 times followed by Prabhu, Gopal, Govind and other Hindu names for the divine. The popular Sikh coinage Wah Guru appears only 16 times’. Probably due to the 8,000 references to Hari in the Adi Granth, their holiest temple is named Hari Mandir popularly known as The Golden Temple. You might like to read my article Why Sikhism is only a sect of Hinduism and not a different religion.
Point two is that the Christians of those days did not express such demands. Then how and why did the separatist insurgency movements start in the Northeast? Why do the Christians of today keep on harping about protection guaranteed to them under article 30 (1)? Lacuna in the Constitution or is it politics! To my mind article 30 (1) was mainly meant for Muslims only. Due to the Hindu-Muslim problem and since madrassas are run for Muslims only the safeguards appear to be for them only.
D. Jains, Buddhist and Sikhs
In Delhi, Arya Samaj is a religious denomination for the purposes of Art 26 and may claim certain rights under arts 25, 28 and 29, but it is not a minority based on religion for the purposes of art 30 (1) for it is only a reformed sect of Hinduism. On the other hand although Sikhs, Jains and Buddhists are subject to Hindu personal law, for the purposes of art 30 they are separate religions from Hindus. The Calcutta High Court was required to deal with this issue in the case of Shree Jain Swetamber Terpathi Vidyalaya (AIR 1982 CAL 101). The Court held that Jains professed a faith different from the Hindus and were a religious minority entitled to benefits of article 29 and 30.
Let’s look at some practical issues. In India normally the name and surname is used to distinguish followers of one religion from another. A Hindu has a name of Atul Shah, a Christian Richard D’Souza, a Muslim Mohammad Afroze, and a Sikh Manvinder Banga. Now you will come across a number of Jains who also have the name Atul. How will the Courts satisfy themselves that Atul Shah is a Hindu or a Jain?
This can only lead to more corruption and create an industry where fake certificates are given to avail of benefits conferred by Law. Something very similar to how large sums of money are exchanged to get a certificate that Atul Shah is a Scheduled caste / tribe so that he gets medical admission under the SC/ST quota.
The status of Sikhs has been discussed above. If indeed Buddhists and Jains are not Hindus within the provisions of art 30 (1) I wonder why they do not have representatives in the National Minorities Commission like the Sikhs do.
Friends you see Religion, a western concept, is the basis of dividing followers of Indian religions. What unites us is Dharma and the common characteristics of Indian philosophy. Hinduism never had a church or central controller and thus can never be compared with Christianity and Islam.
Summary - Bottom line is that the word Minority has not been defined under the Constitution. Hindu religious sects do not constitute a minority under art 30 (1) but Sikhs do. Minority has been interpreted by Courts to mean a community that is less than 50 % of the population. 50 % of what has not been decided by the Courts. I wonder why the framers of the Constitution did not address these issues.
To my mind this is reasonably absurd. Is India going to keep on providing special concessions till say the Muslims reach 50 % of the country’s population? They are already about 14 % and wield political influence far in excess of their numbers. This is like saying that unless a Company acquires 51 % shareholding of another it cannot run the affairs of another company. The Companies Act provides that a shareholder with voting rights of 26 % can block any special resolution thereby protecting his interests. Based on this provision recent PSU Disinvestments by the Govt offered 26 % stake to the private sector. Similarly while determining minority population % must be decided. It could vary from state to state and community to community but surely not be 50 %.
Religious minority institutions, if receiving 100 % aid from the government can impart religious instructions only if it set up by a Trust and if the Trust Deed allows for imparting such instructions. Unaided or partially aided minority institutions are free to impart religious instructions to the students. Students, however, cannot be compelled to attend any prayers or classes where religious instructions are given.
In the name of maintaining a separate Identity has this not article 30 (1) divided the nation along religious/linguistic lines? Who is bigger, the nation or secularism?
Establish & Administer Chapter 7
This chapter entangles some legal issues associated with the words ‘to establish and administer’. Next it covers the Benefit Debate i.e. if the majority of the students do not belong to a minority community but the school is established and administered by the minority would it continue to be called a minority institution and avail of the benefits under article 30.
A. Article 30 (1) reads ‘all minorities shall have the right to establish and administer educational institutions of their choice’. These two words are to be read conjunctively. Thus, a minority can claim a right to administer an educational institution if it has been established by him and not otherwise. What is material is the establishment of the institution by the minority concerned. The mere fact that funds were obtained from abroad for assisting in setting up and developing the school which was established by a minority in India, or that its management was carried on at times by some persons who were not born in India could not be a ground to deny it protection of art 30 (1).
In the case of Azeez Basha vs Union of India the question was whether certain amendments to the Aligarh Muslim University Act, 1920 affected minority rights under article 30 (1). The Court held that while the university had come into existence because of Muslim demands it was in fact established by Central Legislation and hence could not be said to be established by a minority. The decision has been criticized by scholars like Shri M. Seerwai.
Suppose an institution is established by a member of the minority community, imparts secular education, it would still be treated as a minority institution, if it is shown that it serves or promotes its religious tenets, philosophy, culture, language and literature. The purpose of art 30 is that the right is meant to benefit the minority by protecting and promoting its interests. A considerable section of the community must be benefited by the institution (Benefit Debate that we shall talk about later). Sree Hain Swetambar Terapanthi Vidyalaya vs West Bengal, AIR 1982 Cal 101.
Relationship between art 29 and 30 - a comparison of art 29 (1) and 30 (1) would show the following: Art 29 protects the rights only of Indian citizens while art 30 does not refer to citizenship as a pre-condition. Art 29 is applicable to all Indian citizens, majority or minority; art 30 is available only to religious or linguistic minorities. For a recap art 29 (1) reads ‘any section of the citizens residing in India having a distinct language, script or culture of its own shall have the right to conserve the same’. You see it could apply to a Tamilian as much as to an Assamese Hindu or Muslim.
There is a close affinity between art 29 and 30. Since a minority community can best conserve its language, script or culture through educational institutions the right to establish and maintain educational institutions of its choice by a minority is therefore, concomitant to its right to conserve its distinctive language, script or culture and that is what is envisaged by art 30 (1).
This does not mean that if a minority establishes an educational institution that imparts secular education it ceases to be one because it does not help conserve the language etc of a minority. The key words are those in art 30 (1) i.e. ‘of their choice’ meaning that a minority member can establish whatever types of schools that he wants. So if a Muslim establishes an English medium school it would continue to be a minority school by virtue of it having been started by a Muslim. So what matters is being a minority.
‘The advantage of art 30 is available to all minority institutions and not only those whose object is to conserve or promote the language of minority’.Indulal Hiralal Shah Vs S.S. Salgaonkar. In Ahmedabad St Xavier’s Society (1974 1 SCC 717) the departure from the Kerala case was consolidated by a nine-judge bench of the Supreme Court. Khanna J is his concurring judgment observed: ‘The minorities can, however, choose to establish an educational institution which is purely of a general secular character and is not designed to conserve their distinct language, script or culture’.
Friends the above para makes me wonder what the framers of the constitution had in mind. It is one thing allowing Muslims to establish madrassas to impart Islamic education but to allow any school started by a minority to avail of benefits under art 30 (1) is carrying compassion too far! Further this is not specifically stated in the Constitution but is a result of interpretation by Courts.
In reality state-aided educational institution even though established and run by a minority, is obligated not to deny admission to members of other communities based on religion, caste and language. Friends, which Hindu would want to study in a Madrassa? On the other hand most Hindus are forced to study in Christian schools because there are not as many Hindu schools esp. in the seats of British power, Mumbai, Calcutta and Madras. Why is that so? Read on.
Are minorities living in Hindu majority states treated so badly in 1947 to today that such favorable treatment to them was provided for in the Constitution?
For now I will agree with the Courts that the advantage of article 30 is available to all minority institutions and not only those whose object is to conserve or promote the language of minority. As mentioned above the intent of allowing minorities the advantages of article 30 (1) is to enable compliance with art 29 (1) that reads ‘any section of the citizens residing in the territory of India having a distinct, script or culture of its own shall have the right to conserve the same’. Imparting knowledge of this type can best be done through an educational institution correct?