Who Is a Minority in Indian Law

And the statutory class and the constitutional class are not the same. Article 30's minorities are determined judicially by reference to State population and to the basis of religion or language. The Act's minorities are those the Central Government has notified. A community can hold article 30 rights and be outside the Commission's remit, and the reverse is possible too.

That mismatch is the sharpest point available in an answer on Q4, and very few candidates make it.

The international position

There is no definition in a binding instrument either, and that is worth saying because it shows the Indian silence is not a peculiarity.

Article 27 of the Civil and Political Covenant protects persons belonging to ethnic, religious or linguistic minorities in their right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, and to use their own language, and it does not define the term.

The United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992 likewise uses the term without defining it.

The most cited working description is that a minority is a group numerically inferior to the rest of the population, in a non-dominant position, whose members possess ethnic, religious or linguistic characteristics differing from those of the rest of the population, and who show, if only implicitly, a sense of solidarity directed towards preserving their culture, traditions, religion or language. It is a description offered in United Nations work and not a legal definition, and an answer should say so rather than presenting it as authority.

Two elements of that description do real work. Non-dominance explains why a numerically small but dominant group is not a minority. And the sense of solidarity explains why a scattered set of individuals sharing a characteristic is not one.

Worked example

Her Q4, and any question on minority rights.

Open by saying no instrument defines it, in the Constitution or in the Act, and that the omission is deliberate.

Give the three questions a definition would have to answer: of what unit, on what basis, at what threshold, with the State-level answer to the first.

Give section 2(c) and the three consequences of notification.

Make the mismatch point: article 30's minorities and the Act's minorities are determined differently and are not the same set.

Give article 27 of the Covenant and the working description, and label the second as a description rather than a definition.

What it does NOT mean

It does not mean the category is empty. Article 30 rights are litigated constantly and the courts decide who holds them.

It does not mean notification is arbitrary. It is administrative and reviewable, but it is not a right.

And it does not mean the working description is law. It is not, in India or anywhere.

Quick revision

• No Indian instrument defines a minority. The Constitution uses the word in articles 29, 30 and 350B; section 2(c) of the 1992 Act says a minority is a community notified as such by the Central Government.
• Article 30(1) supplies the only criterion: minorities based on religion or language, so caste is not a basis and neither is any other characteristic.
• Three questions: of what unit, answered as the State, so a community may be a minority in one State and not another; on what basis, religion or language only; and at what threshold, which no instrument states.
• Three consequences of notification: the class is fixed by the executive; it can change without legislation, unlike articles 341 and 342; and the statutory class is not the constitutional class, so a community may hold article 30 rights and be outside the Commission's remit.
• Internationally: article 27 of the Civil and Political Covenant protects persons belonging to ethnic, religious or linguistic minorities without defining them, as does the 1992 Declaration. The working description turns on numerical inferiority, non-dominance, distinct characteristics and a sense of solidarity, and is a description, not law.

Test yourself

1. How does Indian law identify a minority? It does not define one at all. The Constitution uses the word without explaining it: article 29's marginal note speaks of the protection of interests of minorities although the clause itself confers the right on any section of the citizens; article 30(1) gives all minorities, whether based on religion or language, the right to establish and administer educational institutions of their choice; and article 350B provides for a Special Officer for linguistic minorities to investigate all matters relating to the safeguards provided for them and to report to the President, who causes the reports to be laid before each House and sent to the Governments of the States concerned. Section 2(c) of the National Commission for Minorities Act, 1992 says only that minority, for the purposes of the Act, means a community notified as such by the Central Government.

Article 30(1) supplies the only criterion anywhere in the Constitution, and it is a criterion of basis rather than of size: a minority may be based on religion or on language and on nothing else. So caste is not a basis of minority status, and neither is disability, sex, occupation or age, which means article 30 simply does not reach most of the groups on this paper.

2. What three questions would a definition have to answer, and how are they answered? Minority of what unit: the country or the State. Indian law answers the State, so minority status is assessed by reference to the population of the State in which the institution is situated, with the consequence that a community may be a minority in one State and a majority in the next and may hold article 30 rights in the first and not in the second. Minority on what basis: article 30 answers religion or language and nothing else. And minority at what threshold: no instrument states one, and the absence appears deliberate, because any figure would be arbitrary at the margin and would turn the litigation into an argument about census returns rather than about the right.

3. What follows from leaving the statutory class to notification, and why does it matter for the question on the Commission? Three things follow. The class is fixed by the executive, because section 2(c) leaves it to notification by the Central Government, so a community that has not been notified has no standing before the Commission at all, however disadvantaged it may be. The class can change without legislation, since a notification may be issued or varied administratively, which makes it more flexible than the Scheduled lists under articles 341 and 342, where only Parliament may vary the list, and correspondingly less secure. And the statutory class and the constitutional class are not the same set: article 30's minorities are identified judicially, by reference to the population of the State and to a basis of religion or language, whereas the Act's minorities are simply those the Central Government has notified, so a community may hold article 30 rights and fall outside the Commission's remit, and in principle the reverse is possible too.

That mismatch is the sharpest point available in an answer on the National Commission for Minorities, and very few candidates make it: the body charged with protecting the rights of minorities under the Constitution does not protect the same set of minorities the Constitution does.

Internationally the position is similar, which is worth saying because it shows the Indian silence is not a peculiarity. Article 27 of the Civil and Political Covenant protects persons belonging to ethnic, religious or linguistic minorities in their right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion and to use their own language, and it does not define the term. The 1992 United Nations Declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities uses it without defining it either. The most cited working description, that a minority is a group numerically inferior to the rest of the population and in a non-dominant position, whose members possess distinct ethnic, religious or linguistic characteristics and show a sense of solidarity directed towards preserving their culture, traditions, religion or language, comes from United Nations work and is a description rather than a legal definition; an answer should label it as such. Two of its elements nonetheless do real work: non-dominance explains why a numerically small but dominant group is not a minority, and the sense of solidarity explains why a scattered set of individuals sharing a characteristic is not one either.