Not Minority Rights, But Equal Rights: How Modi Government Missed Its Cues In Supreme Court

The Centre has failed to grasp a simple truth about community rights in India: it is not 'minorities', howsoever defined, who deserve autonomy to run their educational and religious institutions, but every community residing in India. In short, the road to delivering justice to all, whether minority or majority, lies in equal rights to all communities, not the specific declaration of any group as a minority at the national level or states.

Unfortunately, the Centre flunked this test when it said, in the context of a public interest litigation (PIL) filed by Ashwini K Upadhyay in the Supreme Court, that states could declare their own list of minorities, including Hindus, if they are numerically smaller than other groups. In fact, it was extremely reluctant to take any stand on the issue, and its hand was forced by a bench headed by Justice Sanjay Kishan Kaul, which ordered it to pay a fine of Rs 7,500 for failing to make its stand on the issue clear.

The Centre has been reluctant to do so because its own minority affairs department has been busy offering special incentives to people from minority communities, but this does not benefit any Hindu even if he or she is residing in a state where he is in a numerical minority. The Centre has allocated over Rs 5,000 crore for the minorities welfare department in its 2022-23 budget, money which is to be spent only on communities declared minorities, mostly Muslims.

There is, however, a problem with the PIL itself. If Hindus are going to get equal rights only in the states where they are declared minorities – something no state government is willing to do anyway – this leaves out the vast majority of states where their institutions will be denied operational autonomy.

The states where Hindus are in a minority are relatively small states, and these include Punjab, Jammu and Kashmir, Ladakh, Mizoram, Nagaland, Manipur, Meghalaya, Arunachal Pradesh and Lakshadweep. How does it make sense to give Hindus rights to administer their institutions only in such small states, where the total population – majority and minority included – is barely above 50-55 million. In contrast, the Muslim population in Uttar Pradesh alone is more than the Hindu populations of all these small states combined.

The Centre lost a golden opportunity to take a clear-headed view on the minorities question. Here’s why:

One, the rights of minorities cannot be held to be higher than that of any so-called majority, since Article 14 mandates equality before the law. Equality means equality, not special rights for those declared minorities.

Two, there is no logic in declaring a community of 200 million (Muslims), or even 28-30 million (the official Christian count in India in 2011), both of which may be global majorities with a huge share of voice in electoral politics and media, as minorities in India. The only minorities worth being called minorities are those that are microscopically small – too small to notice, where their rights can be trampled upon by larger communities even without being conscious of the fact. By this definition, only Parsis may qualify, apart from micro-minorities like Arunachal Pradesh’s Donyi-Polo and such micro communities.

Three, the logic of declaring minorities state-wise is also faulty, for the average Indian district has nearly two million people – or even more in the case of some urban districts. More than 85 countries have populations below the average Indian district. Uttar Pradesh is No 5 globally, and bigger than Pakistan.

Four, the Constitution highlights two kinds of minorities – religious and linguistic. This is silly, for there can be minorities of every kind (differently abled, gender identity-based, etc). The definition needs big change. It is also ridiculous for the Centre and states to create minority welfare departments and minority commissions, when the only minorities these institutions take cognisance of is religious minorities. I have not heard of a Tamilian in Uttarakhand or a Maharashtrian in Nagaland demanding minority scholarships based on his linguistic credentials. Clearly, the whole idea of minorityism is a political creation, and little to do with reality.

Five, in the case of religious minorities, the census count can be seriously faulty. While it is easy to identify a linguistic minority based on languages spoken or known, how do we separate a crypto Christian from a genuine Hindu? If a converted Christian has declared himself to be Hindu for the purpose of receiving reservation benefits, how will we ever know?

Since one can find this out only by intrusively checking inside the home (which gods are in their puja rooms, which visible religious symbols are worn or adorn the walls), the whole effort at identifying minorities on the basis of mere claims made to census workers is seriously flawed. But even where this can be done, at least one High Court has decided otherwise. Apparently, even displays of religious symbols and going to church cannot decide whether someone is Christian or Hindu, as a Madras High Court judgement last year said. Between the Constitution and the courts, a minority can be defined opportunistically or even whimsically.

Six, unlike the Abrahamic religions, which have a definite founder and a set of basic beliefs that every believer must profess to be counted as a Christian or Muslim, Hinduism has no such defining characteristics as community identifiers. Hinduism is not a religion as defined by the Abrahamics, and each sampradaya can effectively be called a religion in its own right even while broadly being classified as Hindu in character. In this scenario, how are Hindus a religious majority and not a loose confederation of minority beliefs, faiths, tradition and practices?

Seven, if Hinduism is defined more by practices, rituals, food habits, and traditions handed down over generations, can it be denied effective protections under articles 25-30, which define the rights of all religions, and especially minority institutions.

The simple truth is this: there is no case for minority rights or even a need to define anyone as a minority, except in the case of communities with very small and declining numbers who need affirmative action from the state to preserve their traditions and faith.

All others need equal rights. There are no minorities in India, not even Muslims, Christians, Jains, Buddhists and Sikhs. Unfortunately, the Modi government’s instincts are no better than those of its 'secular' predecessors.