The Siddaramaiah dispensation’s move to accord “religious minority” status to the lingayat community and forward its recommendation to the Centre for consideration has sparked a legal debate as constitutional experts are divided over the issue.
Some experts told The Pioneer that such a categorisation goes against the spirit of the Constitution as the State cannot be seen as supporting the cause of a particular community to be declared as a religious minority. But there are others who claimed there is no harm if the State wishes to identify and name a certain sect or group as a religious minority as past decisions of the Supreme Court have held that the State is to be the unit to determine the status of a religious minority.
At the heart of the controversy is the definition of minority, which is not defined by the Constitution. However, under the National Minorities Commission Act 1992, the Central Government can declare a community as minority. Even under the National Minorities Educational Institutions Act 2004, a community may be declared as minority by the Centre.
Noted constitutional expert Subhash Kashyap said a State Government seeking religious minority tag for a particular community defeats the secular nature of the Constitution. “To create a separate identity for a particular religion or caste is not in keeping with the spirit of our Constitution. State has no business with religion as it is largely an individual affair. State should not be seen supporting or promoting the demand of a community to claim religious minority tag as such a demand must come from the community itself.”
He cited how the Jain community, though not envisaged as a minority community initially, was later identified as a religion other than Hindu religion.
In 1966, the Supreme Court turned down the demand of the Swaminarayan sect to be distinct and separate from the Hindu religion. Again in 1995, the apex court refused the petition by Ramakrishna Mission to be recognised as a religious minority, distinct from Hindus.
Senior advocate and Member of Parliament Vivek Tankha felt that the concept of minority is to be determined State-wise even when it is to be granted national recognition.
He quoted the TMA Pai Foundation vs Karnataka (2002) decision where an 11-judge Bench by a 7:4 majority decided on the scope and extent of rights enjoyed by minorities under Article 30(1) to establish and administer educational institutions.
The majority judgment held that for determination of linguistic and religious minority under a Central law or State law, the State will be the basic unit and not the whole of India. Hence, the determination of minority is to be done State-wise.
Interestingly, the Constitution is silent on defining religion. The Constitution neither establishes a religion nor contains provisions for creating one. All it does is to ensure the right of all religions to practice and profess their faith under Article 25.
Responding to the specific demand of the Karnataka Government to seek religious minority tag for the lingayats constituting around 19 per cent of State’s population, advocate Anirudh Sharma said, “In the past, the Supreme Court has applied a tough scrutiny over religious communities within Hindu religion claiming separate identity as a religious minority.”
Kashyap said, “Section 2(1) of Hindu Marriage Act 1955 specifically recognises Virashaiva, lingayats, followers of Brahmo, Prarthana and Arya Samaj to be various forms of Hinduism. In this backdrop, the demand to provide lingayats a separate identity from Hindu religion appears to be a political gimmick.” In any event, such a decision will face tough scrutiny from Courts, he added.