Who Is a Minority
Chapter Twenty-Four
Syllabus topic 2, "Religion and the Law". "Religious minorities and the law" is a short note MU has set four times.
Pages 103 to 106 of 768
In one line
The Constitution gives minorities rights and never says who they are, so the answer has been supplied by a court for constitutional purposes and by a notification for statutory ones.
In the wording a student can write in an exam: the word "minority" appears in the marginal note to article 29, in article 30(1) and in article 30(2), and nowhere in the Constitution is it defined. For the purposes of article 30 the Supreme Court held in T.M.A. Pai Foundation v. State of Karnataka that the unit for determining whether a religious or linguistic community is a minority is the STATE and not the country as a whole. For statutory purposes the National Commission for Minorities Act 1992, by section 2(c), defines a minority as a community notified as such by the Central Government, and in Bal Patil v. Union of India the Court declined to compel the Government to notify the Jain community. The two answers are separate, and confusing them is the commonest error in this topic.
The constitutional question
Article 30(1). All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
Article 30(1A). In making a law for the compulsory acquisition of any property of a minority educational institution, the State shall ensure that the amount fixed does not restrict or abrogate the right guaranteed by clause (1).
Article 30(2). The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
Article 29(1) protects any section of citizens having a distinct language, script or culture of its own, and it is not confined to minorities at all, which is the point made in [Articles 29 and 30: The Minority's Educational Rights].
And there is no definition anywhere. Not in article 366, which defines much else, and not in any other article.
The unit: T.M.A. Pai Foundation
Facts. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, decided 31 October 2002 by a Bench of eleven judges. The Bench was constituted to settle the rights of minority and non-minority educational institutions under articles 19(1)(g), 29 and 30, including the extent to which the State may regulate admissions, fees and appointments in private aided and unaided institutions. One of the eleven questions was, in the Court's own words, in order to determine the existence of a religious or linguistic minority in relation to article 30, what is to be the unit, the State or the country as a whole.
Held. The unit is the STATE. The reasoning was that article 30(1) puts religious and linguistic minorities on a par, so whatever unit applies to one must apply to the other; that India is divided into linguistic States carved out on the basis of the language of the majority in each; and that if a linguistic minority were determined by reference to the whole of India, Telugu speakers would be a linguistic minority within Andhra Pradesh, which is contrary to the whole concept of linguistic States. The Court also held that a private aided institution has less autonomy than an unaided one, that the State may regulate in the interest of academic standards and against maladministration, and that a right to administer does not include a right to maladminister.
Who Is a Minority
Why it matters. It is the single most examinable proposition in this part of the topic, and its consequence is counter-intuitive: a community that is a majority nationally may be a minority in a particular State and enjoy article 30 rights there.
The statutory question: Bal Patil
Facts. Bal Patil v. Union of India, AIR 2005 SC 3172, (2005) 6 SCC 690, decided 8 August 2005 by Dharmadhikari and Balasubramanyan JJ. An organisation representing a section of the Jain community sought a mandamus directing the Central Government to notify Jains as a minority community under section 2(c) of the National Commission for Minorities Act 1992, which defines a minority as a community notified as such by the Central Government. The High Court had disposed of the petition because the wider question was pending before an eleven-judge Bench.
Held. The appeal was dismissed and no relief granted. Whether to notify a community under section 2(c) is a matter for the Central Government, and the Court declined to compel it. The judgment closed with observations that the State shall treat all religions and religious groups equally and with equal respect without interfering with their individual rights of religion, faith and worship, and directed the Commission to keep that perspective in view.
Why it matters. It fixes the route. Statutory minority status is conferred by executive notification, not declared by a court, and the constitutional right under article 30 does not depend on it.
And the sequel matters too. The Central Government subsequently notified the Jain community as a minority under the Act, which is a reminder that the case decided the route and not the merits.
The five notified communities, and then six
Under the National Commission for Minorities Act 1992 the Central Government notified five communities in 1993: Muslims, Christians, Sikhs, Buddhists and Zoroastrians, that is Parsis.
Jains were added by a notification in 2014, making six.
A student should be careful with two things here. First, the notified list operates for the purposes of the Act and of schemes made under it. Secondly, article 30 does not depend on it: a community that is a minority in a State on the T.M.A. Pai test has the constitutional right whether or not it appears on any list.
Who Is a Minority
The three tests students should be able to distinguish
| Question | Test | Authority |
|---|---|---|
| Is a community a minority for article 30? | Numerically smaller than the rest of the population OF THE STATE | T.M.A. Pai Foundation |
| Is a community a minority under the Act of 1992? | Has it been notified by the Central Government under section 2(c) | The Act itself, and Bal Patil |
| Is a section of citizens protected by article 29(1)? | Does it have a distinct language, script or culture of its own; it need not be a minority at all | The text of article 29(1) |
A worked example
A Marathi-medium school is established in Karnataka by a trust of Marathi speakers, and it claims the protection of article 30.
Step one, which community and which unit. Marathi speakers are a linguistic minority in Karnataka, because the unit is the State. That they are a very large community in Maharashtra and in India is irrelevant.
Step two, which right. Article 30(1), the right to establish and administer an educational institution of its choice, and article 30(2), no discrimination in the grant of aid on the ground that it is under minority management.
Step three, what the State may still do. Regulate in the interest of academic standards, prescribe qualifications for teachers and take measures against maladministration, on T.M.A. Pai, and more extensively if the school takes aid than if it does not.
Step four, what the notification has to do with it. Nothing. The National Commission for Minorities Act list is about religious minorities and about that Act; the constitutional right here is linguistic and comes from article 30.
What this does NOT mean
It does not mean a minority institution is beyond regulation. The right to administer is not a right to maladminister, and an aided institution has less autonomy than an unaided one.
It does not mean minority status is permanent or national. It is determined State by State, and a community's position can differ across the country.
And it does not mean a court will declare a community a minority under the Act. Bal Patil is express: the route is a notification by the Central Government.
Quick revision
No definition of "minority" anywhere in the Constitution. T.M.A. Pai Foundation, eleven judges, 2002: the unit for article 30 is the STATE, because article 30(1) puts religious and linguistic minorities on a par and India is divided into linguistic States. Section 2(c) of the National Commission for Minorities Act 1992: a minority is a community notified by the Central Government. Bal Patil 2005: the Court will not compel a notification; Jains were notified in 2014, making six notified communities with Muslims, Christians, Sikhs, Buddhists and Parsis. Article 29(1) protects any section of citizens with a distinct language, script or culture and is not confined to minorities.
Who Is a Minority
Test yourself
1. Does the Constitution define "minority"? No. The word appears in the marginal note to article 29 and in article 30(1) and (2) and is nowhere defined, which is why the content has been supplied by the courts for constitutional purposes and by notification for statutory ones.
2. What is the unit for determining minority status under article 30, and what was the reasoning? The State. Article 30(1) places religious and linguistic minorities on a par, so the same unit must serve both; India is divided into linguistic States carved out on the language of the majority in each; and treating the country as the unit would make Telugu speakers a linguistic minority in Andhra Pradesh, which contradicts the concept of linguistic States.
3. How does a community become a minority under the Act of 1992, and what did Bal Patil decide about it? By notification of the Central Government under section 2(c). Bal Patil held that the Court would not compel the Government to notify the Jain community and that the matter is for the executive; the Government later notified Jains in 2014.
4. Name the notified minority communities. Muslims, Christians, Sikhs, Buddhists and Zoroastrians, notified in 1993, with Jains added in 2014.
5. How does article 29(1) differ from article 30(1)? Article 29(1) protects any section of citizens having a distinct language, script or culture of its own and does not require the section to be a minority at all. Article 30(1) is confined to minorities, whether based on religion or language, and confers the specific right to establish and administer educational institutions of their choice.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.