Who Is a Minority?

In one line

Two articles of the Constitution give special rights to minorities, and the Constitution never once says who a minority is; the courts had to supply the answer, and the answer is that you count heads within the State, not across the whole country.

In the wording a student can write in an exam: the expression "minority" is not defined anywhere in the Constitution, and neither is "religious" nor "linguistic". A minority is a group numerically less than half, but that leaves the decisive question of half of what. In In Re The Kerala Education Bill, 1957 the Supreme Court rejected the locality or the region as the unit and held that, the Bill there extending to the whole of the State, "the minority must be determined by reference to the entire population of that State", while expressly declining to settle the question generally. In T.M.A. Pai Foundation v. State of Karnataka an eleven-judge Bench settled it: "for the purpose of determining the minority the unit will be the State and not the whole of India", and religious and linguistic minorities, having been put on a par in article 30, "have to be considered State-wise".

Why the law has this at all

A Constitution that guarantees equality to everybody does not obviously need a separate chapter of rights for some people. It has one because a majority under adult franchise can protect itself through the ballot box and a minority cannot. Whatever the majority wants can be put on the statute book by the representatives it elects. A community that is permanently outvoted has no such route, and what it stands to lose is not only political power but its language, its script and its way of educating its children.

Khanna J. put the point in St. Xaviers, worked in full in [State Control and Regulation]: the idea of giving special rights to minorities is "not to have a kind of a privileged or pampered section of the population but to give to the minorities a sense of security and a feeling of confidence", and their real effect "was to bring about equality by ensuring the preservation of the minority institution". Special rights, on that view, are not an exception to equality. They are the condition on which equality becomes real.

That is why articles 29 and 30 sit under their own printed sub-heading, Cultural and Educational Rights, and why the question in this chapter is not a technicality. Every claim under either article begins by asking whether the claimant is inside the door.

The provisions, and the hole in them

Article 29(1) reads: "Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same."