Minority status

Legal complications

Print edition : May 11, 2018

In Kalaburagi on September 24, 2017, a rally demanding independent religious status to Lingayatism. Photo: ARUN KULKARNI

The Karnataka government’s decision to grant minority status to Lingayats has to be considered carefully in the light of legal precedents.

THE Indian Constitution does not define the word “minority”, but uses it in a specific context. Under Subclause (1) of Article 30, recognition of a group as a religious or linguistic minority enables it to enjoy the right to establish and administer educational institutions of its choice. Under Subclause (2) of Article 30, the Constitution protects such minority-run institutions from discrimination by the State in granting aid.

But these two provisions alone cannot be the sole motivation for a community to aspire for recognition as a minority. Historical and cultural factors and a sense of belonging to a distinct religion by the members of a group play a role in the grant of state recognition as a religious minority. The decision of the Karnataka government to grant the status of religious minority to the Lingayat community in the State, therefore, should be considered carefully in the light of legal precedents and its own merits, as claimed officially.

In T.M.A. Pai Foundation vs State of Karnataka (2002), the Supreme Court held that linguistic and religious minorities, which have been put on a par in Article 30, have to be considered State-wise. Therefore, the Centre took a stand before the Supreme Court that it was for a State government to decide whether a community should be treated as a minority community in that State after taking into account its circumstances and conditions in that State. But recognition by the Centre as a minority is a prerequisite to enjoy the protection of the Constitution.

Section 2 (c) of the National Commission for Minorities Act (NCMA), 1992, defines the word “minority” as a community notified as such by the Central government.

The Preamble of the Constitution proclaims to guarantee every citizen “liberty of thought, expression, belief, faith and worship”. Articles 25 to 30 guarantee protection of religious, cultural and educational rights to both majority and minority communities. Keeping in view the constitutional guarantees for the protection of cultural, educational and religious rights of all citizens, it was deemed not necessary to define “minority”.

Minority, as understood from the constitutional scheme, signifies an identifiable group of people or community that is seen as deserving protection from likely deprivation of its religious, cultural and educational rights by other communities which happen to be in a majority and are likely to gain political power in a democratic form of government through election.

In the constitutional scheme, the provisions of the NCMA, therefore, instead of giving a definition of minority, only provide for notifying certain communities as “minorities” that might require special treatment and protection of their religious, cultural and educational rights.

The definition of minority given under the Act in Section 2 (c) is not a definition as such, but only a provision enabling the Centre to identify a community as a minority which, in the considered opinion of the Centre, deserves to be notified for the purpose of protecting and monitoring its progress and development through the Commission.

Numbers not the sole criterion

The Supreme Court has held that statistical data produced to show that a community is numerically a minority cannot be the sole criterion. If it is found that the majority of the members of the community belong to the affluent class of industrialists, businessmen, professionals and propertied class, it may not be necessary to notify it under the Act as such and extend any special treatment or protection to it as a minority, the court has observed. The provisions contained in the group of Articles 25 and 30 constitute a protective umbrella against the possible deprivations of fundamental rights or freedoms of religious and linguistic minorities.

It was against the background of Partition that the framers of the Constitution felt it necessary to allay the apprehensions and fears in the minds of Muslims and other religious communities by providing them special guarantee and protection of their religious, cultural and educational rights. Such protection was found necessary to maintain the unity and integrity of free India because even after Partition, Muslims and Christians living in greater numbers in different parts of India opted to live in India as children of its soil.

The minorities initially recognised were based on religion and at the national level, for example, Muslims, Christians, Anglo-Indians and Parsis. Sikhs and Jains were not treated as national minorities at the time of framing the Constitution. Sikhs and Jains have throughout been treated as part of the wider Hindu community which has different sects, subsects, faiths, modes of worship and religious philosophies. In various codified customary laws such as the Hindu Marriage Act, the Hindu Succession Act, the Hindu Adoption and Maintenance Act and other laws of pre- and post-Constitution period, the definition of “Hindu” included all sects and subsects of the Hindu religion, including Sikhs and Jains.

Bal Patil case

In Bal Patil vs Union of India (2005), the Supreme Court observed: “The group of Articles 25 to 30 of the Constitution, as the historical background of Partition shows, was only to give a guarantee of security to the identified minorities and thus to maintain integrity of the country. It was not in contemplation of the framers of the Constitution to add to the list of religious minorities. The Constitution, through all its organs, is committed to protect religious, cultural and educational rights of all. Articles 25 to 30 guarantee cultural and religious freedoms to both majority and minority groups.”

The Supreme Court further added in Bal Patil:

“If, only on the basis of a different religious thought, or less numerical strength or lack of health, wealth, education, power or social rights, a claim of a section of Indian society to the status of minority is considered and conceded, there would be no end to such claims in a society as multireligious and multilinguistic as India is. A claim by one group of citizens would lead to a similar claim by another group of citizens, and conflict and strife would ensue. If each minority group feels afraid of the other group, an atmosphere of mutual fear and distrust would be created, posing serious threat to the integrity of our nation. That would sow seeds of multinationalism in India. It is, therefore, necessary that minority commission should act in a manner so as to prevent generating feelings of multi-nationalism in various sections of people of Bharat.”

The Supreme Court, therefore, advised the National Minorities Commission (NCM) not to encourage claims from different communities to be added to a list of notified minorities under the Act, but to suggest ways and means to help create social conditions where the list of notified minorities is gradually reduced and done away with altogether.

Claims to minority status on the basis of religion, the court said, would increase the hopes of various sections of people of getting special protections, privileges and treatment as part of constitutional guarantees. Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy, the Supreme Court warned in that case. The Supreme Court concluded that it was not within its jurisdiction to direct the Centre to grant the Jain community the status of a religious minority. However, it said the Centre was free to decide the issue on merits.

On January 30, 2014, the Centre awarded the status of minority religion to Jainism, as per Section 2 (c) of the NCM Act. This made the Jain community, which constitutes 0.4 per cent of the population as per 2001 Census, the sixth community to be granted the status as a national minority, after Muslims, Christians, Sikhs, Buddhists and Parsis.

In Bal Patil, the Supreme Court noted that Jains already had minority status in 11 States, including Uttar Pradesh, Madhya Pradesh, Chhattisgarh and Rajasthan. It was an important consideration for granting Jains the status of a national minority by the Centre in 2014.

Several distinct religious sects have been declared as internal divisions within the Hindu religion—Anand Marg, Swaminarayana Satsang Organisation, Madhavacharya school, Ramanuja school, Sri Aurobindo Society, and Ramakrishna Mission. Some of them enjoy their rights as a religious denomination under Article 26 of the Constitution, which guarantees the right to establish and maintain institutions for religious and charitable purposes; to manage its own affairs in matters of religion; to own and acquire movable and immovable property; and to administer such property in accordance with law. The right under this provision is, however, subject to public order, morality and health.

It is not clear why Lingayats cannot aspire to be recognised as a religious denomination within Hinduism to preserve and promote their distinct religious characteristics rather than seek a separate religious status, which could open a Pandora’s box, with other groups demanding similar status.

In 2017, both the West Bengal government and the Centre rejected the demand of Brahmo Samaj to be recognised as a religious minority. In its annual report for 2016-17, which is yet to be tabled in Parliament, the NCM has reportedly rejected the demand of Vedic Brahmins and Sindhis to be recognised as religious minorities.

Therefore, to be convincing, the demand of Lingayats to be recognised as a religious minority at the national level by the NCM must be based on sound legal precedents. As long as the report of the Nagmohan Das Committee, set up by the Karnataka government which recommended the religious minority status to Lingayats, continues to be under wraps, a reasonable public discourse on its merits will be elusive.

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