Who Is a Minority

How the courts filled the gap

The first question the Court asked was fifty per cent of what. In In re The Kerala Education Bill, 1957, [1959] 1 SCR 995, an advisory opinion under article 143(1) delivered on 22 May 1958. Facts. The Bill was reserved by the Governor for the President, who referred questions about it to the Supreme Court; minority institutions objected that its conditions for recognition and aid would destroy their right to administer institutions of their choice. Held. That it is easy to say a minority community means a community numerically less than fifty per cent, but the question is fifty per cent of what; that the State of Kerala's argument, that a community must be numerically a minority in the particular LOCALITY in which the institution stands, is not a satisfactory test, because there is no principled place to draw the line between a district, a taluk, a town, a suburb or a municipal ward; and that since the Bill extended to the whole State, the minority must be determined by reference to the entire population of THAT STATE, on which test Christians, Muslims and Anglo-Indians are minorities in Kerala. Why it matters here is that the locality test was rejected in 1958 and the State test was applied, though the Court expressly left the general question open.

Then the Court applied the State unit to a community that is a majority nationally. In D.A.V. College v. State of Punjab, AIR 1971 SC 1731; (1971) 2 SCC 269; 1971 SCR 677. Facts. Colleges founded by the D.A.V. College Trust and Society, an association of the Arya Samaj, were compulsorily affiliated to Punjabi University, which then made Punjabi the sole medium of instruction and examination. Held. The circulars were struck down as ultra vires; having compulsorily affiliated the colleges the University had of necessity to allow them to impart instruction in their own medium and to write examinations in their own SCRIPT, and the action infringed the right to conserve a script under article 29(1) and to administer under article 30(1). Why it matters here is that Hindus are the numerical majority of India, and the Arya Samajis of Punjab were nevertheless treated as a minority in that State. The unit does the work.

And eleven judges settled it. In T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481; AIR 2003 SC 355, decided on 31 October 2002. Facts. A Bench of eleven was constituted to settle the rights of minority and non-minority educational institutions under articles 19(1)(g), 29 and 30, including how far the State may regulate admissions, fees and staff. Held. Among eleven questions answered, that in order to determine the existence of a religious or linguistic minority in relation to article 30, THE UNIT IS THE STATE AND NOT THE COUNTRY AS A WHOLE. The reasoning is worth reproducing: India is divided into linguistic States, so a linguistic minority can be identified only in relation to a particular State; and since article 30(1) puts religious and linguistic minorities on a par, the same unit must apply to both. Why it matters here is that this is now the law and no smaller Bench can unsettle it.

The statutory definition, which is a different thing altogether

Section 2(c) of the National Commission for Minorities Act 1992 provides that "minority", FOR THE PURPOSES OF THIS ACT, means a community notified as such by the Central Government. That is not a definition at all in the ordinary sense; it is a power. Six communities stand notified: Muslims, Christians, Sikhs, Buddhists and Parsis (Zoroastrians) by the notification of 1993, and Jains added on 27 January 2014.

And the Supreme Court will not order a notification. In Bal Patil v. Union of India, AIR 2005 SC 3172; (2005) 6 SCC 690, decided on 8 August 2005. Facts. An organisation representing a section of the Jain community sought a mandamus directing the Central Government to notify Jains as a minority under section 2(c). Held. The appeal was dismissed and no relief granted; whether to notify a community as a minority under section 2(c) is 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 constitutional perspective in view. Why it matters here is that it separates the two ideas cleanly. Notification under the Act is an executive act; the right under article 30 is a fundamental right that exists whether or not anybody has notified anything.

A worked example

A community is the numerical majority of India but a small fraction of the population of one State. It establishes a school in that State and claims the protection of article 30(1). The State says the community cannot be a minority because it is the national majority. Advise.

First, what is the unit? T.M.A. Pai Foundation answers it directly: for article 30 the unit is the State. The national figure is irrelevant.

Second, is there any authority the other way? No, and D.A.V. College is the concrete illustration going the same way: the Arya Samajis of Punjab were treated as a religious minority in that State.

Third, does it matter that the community is not notified under the Act of 1992? No. Section 2(c) defines the word only FOR THE PURPOSES OF THAT ACT, which sets up a Commission with the functions in section 9. Article 30(1) is a fundamental right and does not wait on a notification. Bal Patil is the authority for keeping the two apart.

Fourth, what if the claim were about the right to conserve a language or script rather than to run a school? Then article 29(1) would be the provision, and it is wider still, since it protects ANY SECTION OF THE CITIZENS and not merely a minority.

Answer: the community is a minority in that State for the purposes of article 30(1), whatever its national numbers and whatever the notification position.

The question that is not settled

The Act notifies nationally; the Constitution counts by State. The consequence is an acknowledged anomaly. A community that is notified as a minority under the Act enjoys the benefit of the Commission and of minority welfare schemes across the whole country, including in States where it is the local majority; and a community that is the local minority in a particular State but is not notified enjoys the constitutional right under article 30 there without the statutory benefits. Whether the notification should be made State by State has been argued repeatedly and is a live administrative question. A candidate should note the anomaly and state clearly that the CONSTITUTIONAL test is the one T.M.A. Pai Foundation laid down; nothing in the Act touches it.

Distinctions

What it does NOT mean

It does not mean the Constitution defines a minority. It does not. The definition is judicial, and the two ideas of minority in Indian law, the constitutional and the statutory, are not the same idea.

It does not mean a nationally large community can never be a minority. D.A.V. College shows the opposite. What matters is the population of the State.

It does not mean article 29 is a minority article. Article 29(1) protects ANY SECTION OF THE CITIZENS with a distinct language, script or culture, which includes a section of the majority. Only article 30 is confined to minorities.

It does not mean caste-based groups get article 30 rights. Article 30(1) names religion and language and nothing else. Scheduled Castes and Scheduled Tribes have their own extensive provisions and they are not these.

And it does not mean the locality test survives anywhere. The Kerala Education Bill opinion rejected it in 1958, giving reasons about where the line would be drawn, and T.M.A. Pai Foundation fixed the State as the unit.

Quick revision

The word is used in articles 29(1) by implication, 30(1), 30(1A), 30(2), 350A and 350B, and defined in none of them. Kerala Education Bill 1958: fifty per cent of what; the locality test rejected; the State test applied to that Bill. D.A.V. College 1971: Arya Samajis of Punjab a religious minority though Hindus are the national majority; the right to a SCRIPT under article 29(1). T.M.A. Pai Foundation 2002, eleven judges: for article 30 the unit is the STATE and not the country, because India is divided into linguistic States and article 30(1) puts religious and linguistic minorities on a par. Statutory definition: section 2(c) of the National Commission for Minorities Act 1992, a community notified by the Central Government; six notified, Muslims, Christians, Sikhs, Buddhists, Parsis, and Jains from 27 January 2014. Bal Patil 2005: no mandamus to notify; notification is for the Central Government. Article 30 extends to religion and to language, and to nothing else. Article 350B: Special Officer for Linguistic Minorities appointed by the President.

Test yourself

1. State the test for who is a minority and the authority for it. A community numerically less than fifty per cent of the population of the STATE, the unit being the State and not the country as a whole. T.M.A. Pai Foundation v. State of Karnataka, a Bench of eleven, is the authority; the Kerala Education Bill opinion of 1958 is where the enquiry began.

2. Why did eleven judges choose the State as the unit? Because India is divided into linguistic States, so a linguistic minority can be identified only in relation to a particular State; and because article 30(1) puts religious and linguistic minorities on a par, so the same unit must serve both.

3. Can a community that is the national majority claim article 30? Yes, in a State where it is numerically a minority. D.A.V. College v. State of Punjab treated the Arya Samajis of Punjab as a religious minority.

4. What does section 2(c) of the Act of 1992 define, and how far does it reach? It defines minority FOR THE PURPOSES OF THAT ACT as a community notified as such by the Central Government. It has nothing to do with the fundamental right in article 30, which needs no notification.

5. Will a court order the Central Government to notify a community? No. Bal Patil v. Union of India dismissed exactly that claim: the decision under section 2(c) belongs to the Central Government.

6. Which grounds of minority status does article 30 recognise, and which does it not? Religion and language only. It does not extend to caste, and Scheduled Castes and Scheduled Tribes are protected by other provisions altogether.

7. What is the anomaly between the Act and the Constitution? The Act notifies communities nationally while the Constitution counts by State, so a notified community keeps its statutory benefits even in a State where it is the local majority, and an unnotified local minority has its article 30 rights without those benefits.