Who Is a Minority?

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."

Read the two together and the drafting problem appears at once.

1. Article 29(1) never uses the word "minority" in its text at all. It speaks of "any section of the citizens". The marginal heading above it says "Protection of interests of minorities", but the operative words are wider than the heading.
2. Article 30(1) uses the word and does not define it. It tells you a minority may be "based on religion or language" and stops there.
3. Neither "religious" nor "linguistic" is defined either. Nothing in the Constitution says how much doctrinal difference makes a separate religion, or whether a spoken tongue without a script counts as a language.
4. No other article fills the gap. The word "minority" appears only in the headings to articles 29 and 30, in article 30 itself, in article 350B on the Special Officer for linguistic minorities, and in articles 15(5) and 15(6), which exclude minority educational institutions from the reservations those clauses permit. None is a definition clause.

So the whole of this topic rests on a word the drafters left open.

Why the unit decides the case

A minority is a group that is numerically less than half. The fight has never been about that. It has been about the denominator.

There are three candidates, and each of them produces a different result on the same facts.

• The nation. Count across India. Hindus are then a minority nowhere.
• The State. Count within the State whose law is challenged. Hindus become a minority where they are outnumbered, and speakers of a State's own majority language stop being one there.
• The locality. Count in the town, ward or district where the institution stands. The same community is a minority on one side of a municipal boundary and not on the other.

The stakes are easiest to see with language. India's States were reorganised on linguistic lines, so each has a language its own majority speaks. On a national count, Telugu speakers would be a "linguistic minority" inside Andhra Pradesh, where Telugu is the majority language. That is the reasoning the eleven-judge Bench used, and its words are worth keeping: such a result "will clearly be contrary to the concept of linguistic states".

The first answer

Facts. In Re The Kerala Education Bill, 1957, (1959) 1 SCR 995, decided 22 May 1958. This was not a lawsuit. The Kerala Legislative Assembly passed an Education Bill in September 1957; the Governor reserved it for the President; and the President referred questions about it to the Supreme Court for its opinion under article 143(1). The Bill imposed heavy State control over aided and recognised schools, and the doubt was whether that control invaded the rights of minority communities. Kerala argued that Christians were not a minority there at all: they were about a quarter of the population, they were the second largest community, and in some areas they were the local majority. Its test was that a community must be numerically a minority in the particular region where the institution stands.

Held. That test was rejected. "A little reflection will at once show that this is not a satisfactory test. Where is the line to be drawn and which is the unit which will have to be taken ? Are we to take as our unit a district, or a sub-division or a taluk or a town or its suburbs or a municipality or its wards ?" The Court worked through the absurdity: Tamil speakers concentrated in one ward of Delhi would lose the right to a Tamil school there and gain it in the next ward. It then expressly declined to decide the general question, and decided only what it had to: because "the Bill before us extends to the whole of the State of Kerala and consequently the minority must be determined by reference to the entire population of that State". On the population figures placed before it, Christians, Muslims and Anglo-Indians were minorities in Kerala.

Why it matters. It is the first authority on the question and it does two things. It kills the locality test, which is the answer students most often give and the one the State was pressing. And it leaves the choice between the State and the nation open, tying its own holding to the reach of the law under attack. Everything decided for the next forty-four years was decided in that gap.

The settled answer

Facts. T.M.A. Pai Foundation v. State of Karnataka, decided on 31 October 2002. The report we hold carries no report reference, so the case is given by its date. It began as a five-judge hearing, went to seven judges, and on 6 February 1997 was directed to be placed before a Bench of at least eleven, precisely because the Forty-second Amendment had moved education into Entry 25 of the Concurrent List and the earlier decisions all belonged to the era when education was a State subject. Eleven questions were referred. The first was what "minorities" in article 30 means, and the fourth head of argument asked in terms whether the unit is the State or the country as a whole.

Held. The unit is the State. "Linguistic and religious minorities are covered by the expression 'minority' under Article 30 of the Constitution. Since reorganisation of the State in India has been on linguistic lines, therefore, for the purpose of determining the minority the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be considered State-wise." The reasoning runs in two steps. First, because article 30 puts religious and linguistic minorities on the same footing, "whatever the unit ... for determining a linguistic minority, it would be the same in relation to a religious minority". Second, a linguistic minority "can, therefore, logically only be in relation to a particular State", because the States were carved out on language. The Court added that the Forty-second Amendment changes nothing: "The minority for the purpose of Article 30 cannot have different meanings depending upon who is legislating."

Why it matters. This is the holding every later case turns on, and it is the one to write down first in any answer on this topic. It converts a question about arithmetic into a question about which map you are reading. It also confirms what the Court had already accepted in the D.A.V. College litigation, that Hindus can be a religious minority in a State where they are outnumbered even though they are the national majority; the reports of those cases are not in this repository and have not been read, so they are named here without citations.

A worked example

The State of Maharashtra passes an Act, extending to the whole State, requiring every aided secondary school to appoint its headmaster from a panel prepared by a State board. The Kannada Shikshan Sanstha, a society of Kannada speakers, runs an aided school in Belagavi district teaching in Kannada. It challenges the Act under article 30(1). The State says the society is not a minority because Kannada speakers are the local majority in that district.

Step one, which article is being claimed? Article 30(1), because the claim is about establishing and administering an institution, not merely about conserving a language. The right in article 30(1) belongs to "minorities, whether based on religion or language".

Step two, minority of what population? On T.M.A. Pai the unit is the State. The count is taken across Maharashtra, whose majority language is Marathi.

Step three, is the group a linguistic minority in Maharashtra? Kannada speakers are far below half the State's population, so yes. Their strength in Belagavi district is irrelevant: the locality test was rejected in 1958.

Step four, does the reach of the impugned law matter? In 1958 the Court tied its answer to the Bill extending to the whole State. This Act does too, so even on that narrower formulation the State is the unit.

Step five, what if Parliament had passed the same Act for all India? It changes nothing: the meaning of "minority" cannot vary with the identity of the legislature.

Step six, what still has to be proved? Minority status only opens the door. The society must still show this school was established by that minority and is administered by it, which is [Article 30: To Establish and to Administer].

Two things that are easily confused

What it does NOT mean

It does not mean a community that is a minority in one State is a minority everywhere. Minority status under article 30 is not a national badge a group carries about with it. It is a status held in a State, and it is decided by the population of that State.

It does not mean the locality still matters. Students routinely argue that a community which dominates a district cannot be a minority there. That is exactly the argument Kerala made in 1958 and it was rejected then.

It does not mean the Court has answered every question about who qualifies. T.M.A. Pai expressly declined to decide what "religion" means in article 30(1), whether the followers of a sect can claim where the wider religion is in the majority in that State, and what the indicia of a minority educational institution are. On each it said the question "need not be answered by this Bench; it will be dealt with by a regular Bench". A precise answer says the unit is settled and the content of "religious" is not.

Quick revision

• The Constitution defines neither "minority" nor "religious" nor "linguistic". The word appears in article 30, in the headings to articles 29 and 30, in article 350B, and in the exclusions in articles 15(5) and 15(6).
• Article 29(1) protects "any section of the citizens" and does not require minority status; article 30(1) is confined to minorities based on religion or language.
• Three possible units: the nation, the State, the locality.
• In Re The Kerala Education Bill, 1957: the locality test is rejected; because the Bill extended to the whole State, the minority was determined on the population of Kerala. The general question was left open.
• T.M.A. Pai Foundation v. State of Karnataka, eleven judges: the unit is the State and not the whole of India, and religious and linguistic minorities are considered State-wise.
• The reason is linguistic reorganisation: on a national count, Telugu speakers would be a minority in Andhra Pradesh.
• Education moving to the Concurrent List by the Forty-second Amendment does not change the unit, because the meaning of "minority" cannot depend on who is legislating.
• Minority status opens the door only. Establishment and administration by that minority still have to be proved.

Test yourself

1. The Constitution nowhere defines "minority". Name every place in which the word appears, and say why none of them is a definition.

2. Set out the three possible units of determination and show, with an example, how the same community changes character as you move between them.

3. What exactly did the Court decide in In Re The Kerala Education Bill, 1957 about the unit, and what did it expressly refuse to decide?

4. Give the reasoning by which T.M.A. Pai moved from linguistic minorities to religious minorities to reach a single answer.

5. A society of Hindus runs a college in a State where Hindus are outnumbered. Can it claim article 30(1)? Give the steps.

6. Which questions about who qualifies did the eleven-judge Bench leave to a regular Bench?