Clear the air around rights of minorities

The Supreme Court has given six weeks to the Centre to spell out its stand on the identification of minorities in various states on a plea seeking minority status for Hindus as they are numerically less in number in nine states and union territories.

Another Bench of the SC is seized of the matter in an appeal against the verdict of the Karnataka High Court related to wearing of the hijab by Muslim women in educational institutions. Secularism based on state neutrality in matters of religion is part of the basic structure of the Indian Constitution, but it does not mean irreligion; it only signifies no state or preferred religion. Therefore, the mist around rights of religious minorities and identification of other minorities needs to be cleared logically.

Religion is a belief which binds spiritual nature of a human being to super natural being and it is not necessarily theistic. It includes worship, belief, faith, devotion etc and extends to rituals. Sometimes, people fail to differentiate between religion and culture. Culture encompasses within it the food habits, dress and the general way of life of people, which subscribe more to geography and societal norms rather than to prescriptions by religious and theocratic exponents.

In fact, religion is a sub-set of culture. In a country governed by the rule of law, theocracy may not be allowed to monopolise culture, though both may co-exist for the betterment of humanity.

The practice of wearing the hijab may be understood more in cultural and social context and as a matter of personal choice and convenience rather than a purely religious matter.

The demand to allow wearing of the hijab in educational institutions appears to be motivated by fossilised thinking to monopolise the choice of women in their exclusive personal domain. Moreover, every educational institution has its own rules and regulations, which constitute its sub-culture. Everyone who chooses to be part of that sub-culture cannot be allowed to violate it in the name of religious freedom.

The argument by appellants in the SC in comparing the practice of wearing the hijab with that of Sikhs carrying the kirpan is misplaced. Explanation 1 to Article 25 of the Constitution declares that “carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.” Article 25 confers on every person the right to freedom of conscience and free profession, practice and propagation of religion, subject to public order, morality and health and to other provisions related to fundamental rights. Article 29 guarantees cultural and educational rights to every citizen, though the common thread in this Article is language, script or culture and not religion.

Article 30 recognises linguistic and religious minorities and guarantees to them the right to establish and administer educational institutions of their choice. In Ahmedabad St Xavier’s College case (1974), the SC held that it was not reasonable to claim complete autonomy under Article 30.

Closure of minority institutions is permissible if being run against public interest or national integration. In the Sindhi Education Society case (2010), the apex court held that the government has power to regulate minority institutions to achieve excellence and prevent maladministration.

The rights of minorities were discussed for the first time by the Hungarian parliament in 1849. Later, in the backdrop of genocide of selected ethnic groups during the Second World War, the Universal Declaration of Human Rights (1948) attracted the attention of the international community towards protection of minorities. The framers of the Indian Constitution appear to have been inspired by the declaration. Subsequently, the International Convention on Civil and Political Rights (1966) and the UN Declaration on Minorities (1992) sought indulgence of the member states to protect the rights of persons belonging to national or ethnic, religious and linguistic minorities.

Identification of minorities is crucial in order to confer upon them certain religious and cultural rights. The National Minorities Commission Act, 1992, defines minorities as a community notified as such by the Central Government. Initially, five religious communities, namely Muslims, Christians, Sikhs, Buddhists and Parsis, were recognised as minorities. Subsequently in 2014, the Jain community was also accorded the minority status.

In the Patrani A Maria vs Keshavan case (1965), the Supreme Court held that minority means a community which is less than 50 per cent of the population of the state concerned where the law is applied.

In the DAV College case (1971), the apex court clarified that in case of a state law, a minority community of the state would be considered and not a minority in relation to the whole of India.

In the TMA Pai Foundation case (2003), the Supreme Court held that since states were reorganised on the basis of language, minorities should be identified state-wise.

In contrast, Webster’s Dictionary defines minority as a population differing from others in some characteristics and often subjected to differential treatment. Sociologists recognise minorities as a group of people who have distinct physical or cultural characteristics and are often subjected to suffer inequalities or discrimination based on their unique identity.

Certainly, the term “minority” deserves a properly worded definition. The Centre and state governments must be busy in finalising their response on the identification of minorities. It goes without saying that their stand should be based on empirical and doctrinal research, suggesting discrimination, suppression and persecution based on ethnicity, religion and language rather than substantiating it merely on the proportion of those communities in the total population of the state.

The number does not matter if the community is economically prosperous and socially strong. Research is also needed to fix the threshold percentage of a community in the total population to qualify for minority status; the number of less than 50 per cent appears to be illogical.

Minority status to a community should infer either a threat to its existence or vulnerability to suppression and persecution. It should not be allowed to become a tool to earn privileges and autonomy in opening educational institutions and managing religious establishments.