Even as the Supreme Court ruled that a minority, either linguistic or religious, is determined by the State’s demography, the issue has cropped up again with the court examining if Sikhs are a minority in Punjab
What should be the unit — the nation or a State — to determine a “linguistic” or “religious” minorityIJ Though this question has been categorically settled by an 11-judge Bench of the Supreme Court in the TMA Pai Foundation case, it keeps cropping up again and again in one form of the other and is once again before the Supreme Court following an appeal by the State of Punjab against a Punjab and Haryana High Court judgement that Sikhs are not a ‘minority’ in Punjab.
The issue came up for judicial determination before the Punjab and Haryana High Court some years ago when the Punjab Government’s notification of April 13, 2001, which enabled Sikh educational institutions to enjoy minority benefits and reserve seats for members of that community was challenged. The court set aside the notification and declared that the Sikhs do not constitute a minority in that State (as per the 2001 census, the Sikhs constituted 59.90 per cent of the population of the State).
Apart from other issues that may be raised in this case, two issues which could have a bearing on the outcome of this case is the law as it stands today consequent to the TMA Pai Foundation case in October 2002 and the latest data available on religious demography.
In the TMA Pai case, the court discussed the issue as to what should be the unit — the State or the country as a whole — to determine the existence of a religious or linguistic minorityIJ It said: Article 30(1) deals with religious minorities and linguistic minorities. The opening words of Article 30(1) make it clear that religious and linguistic minorities have been put at par, in so far as that article is concerned.
Therefore, whatever the unit — whether a State or the whole of India — for determining a linguistic minority, it would be the same in relation to a religious minority. India is divided into different linguistic States. The States have been carved out on the basis of the language of the majority of persons of that region.
For example, Andhra Pradesh was established on the basis of the language of that region, viz, Telugu. ‘linguistic minority’ can, therefore, logically only be in relation to a particular State. If the determination of ‘linguistic minority’ for the purpose of Article 30 is to be in relation to the whole of India, then within the State of Andhra Pradesh, Telugu speakers will have to be regarded as a ‘linguistic minority’.
This will clearly be contrary to the concept of linguistic States. If, therefore, the State has to be regarded as the unit for determining ‘linguistic minority’ vis-à-vis Article 30, then with “religious minority” being on the same footing, it is the State in relation to which the majority or minority status will have to be determined.”
The court also discussed some other related Supreme Court judgements including the Kerala Education Bill case and two cases pertaining to DAV colleges. In the second DAV Case, “the Supreme Court rejected the contention that since Hindus were a majority in India, they could not be a religious minority in the State of Punjab, as it took the State as the unit to determine whether the Hindus were a minority community”.
The TMA Pai judgement further said that “there can, therefore, be little doubt that this court has consistently held that, with regard to the State law, the unit to determine a religious or linguistic minority can only be the State”.
Thereafter, the court took note of the 42 Amendment which included education in the Concurrent list under Entry 25, consequent to which Parliament can also legislate in relation to education, which was earlier only a State subject. Would this in any way change the position in regard to determination of ‘linguistic’ and ‘religious’ minority for the purposes of Article 30IJ
The court answered this question in the most unambiguous terms and said: “The minority for the purpose of Article 30 cannot have different meanings depending upon who is legislating. language being the basis for the establishment of different states for the purpose of Article 30, a ‘linguistic minority’ will have to be determined in relation to the State in which the educational institution is sought to be established. The position in regard to the religious minority is similar, since both religious and linguistic minorities have been put at par in Article 30.”
The other crucial factor that the court will have to take note of is the demographic changes that have taken place in India since independence. As per the religion data collected during the 2011 census, although the Hindus constitute the religious majority in the country, the percentage of Hindus in the country has dropped from 83.40 per cent in 1961 to 79.80 per cent in 2011. Hindus are now in a minority in seven States and one Union Territory.
Their share of the population in these States in percentage terms is as follows: Jammu & Kashmir (28.40), Punjab (38.50), Nagaland (8.70), Mizoram (2.70), Meghalaya (11.50), Arunachal Pradesh (29.00) and Manipur (41.40). In lakshadweep, it is just 2.80 per cent. On the other hand, the Christians are in an overwhelming majority in three States — Nagaland, Mizoram and Meghalaya while the Muslims are a majority in the State of Jammu & Kashmir and in lakshadweep. The Sikhs constitute the majority in Punjab.
Nagaland is among the States which have seen dramatic demographic change. Census data shows that Christians constituted just 52.98 per cent of the population of the State in 1951. Since then it has been a hop, step and jump for the Christian community in this State. For example between 1981 and 2001, the Hindu population in Nagaland dropped from 14.36 to 7.70 per cent, while the Christian population jumped from 80.21 to 90.00 per cent. With the Hindus falling way behind the half-way mark in seven States and one Union Territory, they have emerged as a significant minority in a quarter of India’s States.
During the preliminary hearing a fortnight ago, the court seemed aware of the demographic reality in different States as it signaled that the issue at hand could have a bearing on other States where the Christians and Muslims are in a majority.
One can only bow in reverence to the extraordinary foresight displayed by our Constitution-makers while drafting Article 30 and to the interpretation of this Article by the judges on the Bench which settled the TMA Pai case. One must await the apex court’s opinion on this issue yet again, especially in the light of fresh evidence of demographic change and the complex mosaic of majority-minority which is now a reality in the country.