Push for a Minority Tag for Hindus is a Redundant Gimmick

Supreme Court directs National Commission for Minorities to examine a BJP spokesperson’s plea on this question.

Does the National Commission for Minorities have the power to certify Hindus as a minority anywhere in India?

(Photo: Kamran Akhter/The Quint)

Can Hindus be considered a minority community in any part of India? Are non-Hindus unfairly getting the benefits of minority status even where they shouldn’t be? And how do you define minorities in India in the first place?

On Monday, 11 February, the Supreme Court asked the National Commission for Minorities (NCM) to consider these issues raised in a representation by advocate and BJP spokesperson Ashwini Upadhyay.

Upadhyay has asked for Hindus to be considered minorities in certain states in India where they don’t form the majority of the population, for guidelines to be framed on which communities can be considered minorities, and for a 1993 notification specifying five national minorities (later updated to six) to be struck down.

A bench headed by Chief Justice of India Ranjan Gogoi said they expected the NCM to take a decision in the matter “as early as possible, preferably within a period of three months.” Upadhyay had originally submitted this representation to the NCM on 17 November 2017, after the apex court said it was the appropriate authority, but the NCM had failed to respond to him.

The entire exercise seems to be one in futility, however, since the issues raised in the representation are either already settled in law, or have no basis.

It appears therefore to be yet another dog whistle for the “Hindu khatre mein hai” brigade, and another attempt to rake up a communal agenda in the build-up to the general election.

What Does the Law Say?

The Constitution can be said to provide two kinds of protections for minorities.

• First, there are the protections which apply to everyone but become even more important for people from a minority community. These include the right to equal treatment (Article 14) and the right to practice one’s religion (Article 25).
• Secondly, there are the protections that specifically apply to protection or preservation of a minority’s culture, in Articles 29 and 30.

PROTECTION FROM THREATS TO HINDU MINORITIES?

The representation by Upadhyay for minority status cannot have anything to do with the first set of protections, which obviously don’t need a minority status tag to apply. Any discrimination or ill-treatment of Hindus, even in areas of the country where they aren’t a majority, would be illegal anyway, and there’s no real proof that they are facing this anywhere in the country.

Technically, Upadhyay doesn’t ask for minority status for Hindus on this basis, but he nevertheless lists out ways in which Hindus have supposedly been threatened in certain areas. The claims are extremely dubious, however, based on a ‘Hindu Human Rights Report’ from web portal ‘India Facts’, including the ‘mass exodus’ of Hindus from Kairana that has already been debunked and criticised.

The irrelevance of this information cannot be overstated: The examples of violence quoted by Upadhyay are not only untrue, but also from the states where Hindus are not in a minority. Mentioning these claims is a clear indication, therefore, that this representation is a dog whistle to whip up fears that Hindus are being threatened, since there is no relation between these claims and what the representation is ostensibly asking for.

SPECIAL RIGHTS FOR RELIGIOUS MINORITIES?

Identification of a minority on the basis of religion only really has some special legal significance when it comes to Article 30 of the Constitution – the right to establish and administer educational institutions. The Constituent Assembly set up a special committee to look into minority rights, which rejected the need for separate electorates or reservations in jobs, as well as government educational institutions.

However, the Assembly did allow for minorities to set up their own colleges and schools, and gave them the ability to provide reservations on the basis of religion in those institutions. After the TMA Pai Foundation judgment in 2002, it has been clarified that the determination of a religious or linguistic minority under Article 30 of the Constitution should be carried out by the states, rather than by the Centre.

As a result, this means that it is already crystal clear that Hindus can be considered minorities in certain states – but that is only for the strictly limited purpose of setting up and running educational institutions. This is hardly something the NCM or the Supreme Court need to bother about, as Hindus can always approach state governments or State Minority Commissions in places where they are a minority, and ask for the tag.

Is the National Commission for Minorities Supposed to Deal With Any of This?

The NCM was set up through the National Commission for Minorities Act 1992. According to the Statement of Objects and Reasons of this Act, the main purpose of the NCM is

“to evaluate the progress of the development of minorities, monitor the working of the safeguards provided in the Constitution for the protection of the interests of minorities and in laws enacted by the Central Government or State Governments, besides looking into the specific complaints regarding deprivation of rights and safeguards of the minorities.”

As explained above, none of the safeguards in the Constitution are at risk when it comes to the Hindu community. If Hindus are being deprived of rights and safeguards applicable to them, yes, the NCM would need to look into this issue, but the representation fails to make any such case.

Upadhyay has tried to argue that the fundamental rights guarantees relating to religion in Articles 25-30 of the Constitution are not guarantees at all in many states, which has meant the “basic rights of the minorities have been practically abrogated and being siphoned off arbitrarily and illegally to unqualified communities.”

As an example of this, he points to how Muslims received 717 out of 753 scholarships in Jammu & Kashmir under the Centre’s scholarship programme for minority students, even though Muslims account for 68.30 percent of the population there (see Ground D, on page 42).

This example is an excellent proof of just how baseless his claims are. According to Upadhyay, the Jammu & Kashmir government recommended the scholars on the basis of the central government’s 1993 notification specifying Muslims as a minority, along with Christians, Sikhs, Buddhists and Parsis (Jains were added to this list in 2014). There is nothing untoward with this, since the scholarship scheme is one by the central government, and so applies to communities who are in a minority at a national level.

Upadhyay complains that communities either in the majority, or which make up a significant population, in Arunachal Pradesh, Assam, Goa, J&K, Kerala, Lakshadweep, Manipur, Meghalaya, Mizoram, Nagaland, Punjab, Tamil Nadu, Uttar Pradesh and West Bengal, are being wrongly treated as minorities. He conveniently fails to provide any examples of this apart from the flawed J&K argument.

In the absence of any compelling evidence, the NCM can hardly be expected to take any of the actions Upadhyay has asked for, and he has also failed to make any case for striking down the Centre’s notification of minority communities.

Supreme Court’s Entertainment of Plea is Strange

In such circumstances, it is strange that the Supreme Court actually directed the NCM to look into Upadhyay’s representation.

This is doubly so given the NCM has already done what it could do regarding this issue – former NCM Chairperson Tahir Mahmood had already submitted a recommendation for Hindus to be granted state-level minority status in Jammu and Kashmir, Lakshadweep, Meghalaya, Mizoram, Nagaland and Punjab in 1998.

Writing in Scroll a couple of years ago, when Upadhyay’s first attempt to take this to court came up, Mahmood describes how this proposal was ignored by the BJP government at the Centre when it was forwarded to them. According to Mahmood, his report remains on record, and that the Centre or any state government can act on it if they want – the NCM has no role to play. He goes on to say,

“No well-wisher of the community needs to go to the apex court or the minorities commission for this purpose.”

The Supreme Court also would have no authority to grant any of the other requests made by Upadhyay. He has asked for the notification of national minorities to be struck down, but there are no constitutional grounds to do so. He has demanded the courts to specify a formula by which minorities are to be determined, which is a matter for the legislature to consider.

He has also asked the Supreme Court to direct states where Hindus are in a minority to declare them minorities, which would also be an encroachment of the courts on policymaking. The courts can always be approached if there is discrimination, and Hindu educational institutions in those states will have the ability to claim the benefits of Article 30 in those states even without any express declaration by the states.

In sum, this whole question of whether Hindus can be a minority or not is already dealt with to the extent it needs to be in the law, and there is no evidence of discrimination against them as a minority at this point. As a result, any calls for Hindus to be declared a minority at this point are a redundant gimmick, aimed solely at whipping up communal tensions.

Surely the Supreme Court will realise this soon enough as well, though it can obviously take any action required if proof is submitted to it.