By Abdul Bari Masoud
The demand for Hindus to be awarded minority status in India’s nine states and Union Territories appears to be nothing more than a cynical ploy to undermine the protection of minorities’ rights granted by the Constitution of India. This is also corroborated by the track record of the individual who filed the Supreme Court lawsuit challenging the constitutionality of the National Minority Commission Act of 1992 and the National Minority Commission Education Institution Act of 2004.
The petitioner is none other than BJP member and lawyer Ashwini Upadhyay, who has earlier too filed such petitions including a ban on the 26 verses of the Qur’ān.
In the latest petition, the BJP leader claims that Hindus are a minority in nine states. According to him, in Ladakh, Hindus make up 1% of the population. Mizoram has 2.75% Hindus, Lakshadweep has 2.77% Hindus, Kashmir has 4% Hindus, Nagaland has 8.74%, Meghalaya has 11.52% Hindus, Arunachal Pradesh has 29.24% Hindus, Punjab has 38.49% Hindus, and Manipur has 41.29% Hindus. However, they do not receive any advantage set aside for minorities when implementing government welfare schemes.
In addition, the appeal cited the Supreme Court’s judgment in the TMA Pai versus Karnataka case. In 2002, the Supreme Court ruled that under Article 30 (1) of the Constitution, the persons who are few in number in any location have the right to open schools and institutions for the protection of their religion and culture. Hindus should be allowed in nine states/UTs, according to Upadhyay, in the same way as minorities open church-run schools or madrasas across the country. Special government protection should be provided for these schools.
In response to the petition, the federal government stated that the NCM’s constitution is fully constitutional. Minority welfare is a subject on the Constitution’s Concurrent List. States can also enact legislation in this domain. It’s not that a statute passed by Parliament stops a state from designating any population or language as a minority inside its borders. In its affidavit, the federal government cites Maharashtra and Karnataka as examples. Maharashtra has granted minority status to the Jewish community in the state, according to the government. Urdu, Telugu, Tamil, Malayalam, Tulu, Hindi, Lamani, Konkani, and Gujarati have all been designated as minority languages in Karnataka.
According to the affidavit, a community with state minority status can establish educational institutions to safeguard its religion, culture, or language. A request to dismiss Ashwini Upadhyay’s petition has also been made in this affidavit filed by Shubhendu Shekhar Srivastava, Under Secretary of the Union Ministry of Minority Affairs.
For whatever reason, the Federal government has yet to make a clear statement on this issue. In fact, on 7 January 2022, the Supreme Court fined the Ministry of Home Affairs Rs 7,500 for failing to state its opinion. On the 28th of March, Solicitor General Tushar Mehta, speaking on behalf of the government, told the Supreme Court that he had not yet seen the Ministry of Minority Affairs’ affidavit. Does this imply that two central government ministries are at odds over this issue?
It is intriguing that the petitioner Upadhyay had previously filed identical petitions, but the court had refused to consider them.
Is it plausible for Hindus to be a minority in India?
Many people regard the petition as a “mischief-making and cheap publicity-seeking stunt.” They also are of the opinion that such approaches would harm the fabricated aura of a particular religion’s majority.
As for the NMC Act, 1993 under the existing law, Wajahat Habibullah asserts that only the Centre has a Minorities Commission.
Minorities were also identified at the time as Muslims, Christians, Sikhs and Buddhists.
Speaking with Radiance, Habibullah, a former chairperson of the NCM and former Chief Information Commissioner of India, said the minority panel is a consultative agency which wields only quasi-judicial powers.
“The law was expected to help enforce minority rights and defined in Articles 29 and 30 of the Constitution of India. But the National Commission for Minorities set up under the law had no constitutional authority and had only quasi-judicial powers. It was therefore simply a consultative agency.”
The definition of minorities given under the government notification was later supported by judicial pronouncements that held that India is a nation of minorities but such minorities as defined needed special attention because of various disadvantages faced by each, he underlines.
Such disadvantages were also defined by reports such as the Ranganath Misra Commission and the Sachar Committee reports. The latter dealt specifically with Muslims, the largest of India’s minorities at the national level. The Jain community, which was held to be facing challenges in education, was included as a minority in 2013.
On the question of Jammu and Kashmir, the former Minority panel chief says, “Because of its constitutional status J&K was not covered by the NCM Act. In the 90s and again in 2012 the NCM recommended to the Govt of J&K that because of its diverse character, with different communities being in the majority in its divisions, and with the Kashmiri Hindus (Kashmiri Pandits), a distinct community facing a direct threat, it needed an Act specially designed to get its direct requirements.”
Habibullah, who also served as Chief Secretary in J&K, points out that similarly, the NCM drafted a model Act for consideration of State Governments which would deal with distinct demographic features. Thirteen states, including Punjab, which has a Sikh majority, adopted it.
“This law is therefore found to be an effective instrument in enforcing minority rights. A country as diverse as ours would require distinct and considered application in every State. The issue therefore is not whether it should be so applied, but whether a purpose would be served by the Act so,” the ex-chairman sums up.
Resonating his views, Capt. Praveen Davar, a former member of the NCM, maintains that as per the original NCM Act, the only Minorities are Muslims, Christians, Buddhists, Sikhs and Parsees. The Act was amended in 2013 to include Jains too.
The Act also lays down that NCM will have at least 5 Members from the Minority communities. This allows the NCM to have a representative of the Majority community also as a Member of the NCM. The post of Chairman is reserved only for the Minority community.
“However, there is no mention in the Act that Hindus can be considered Minority where there is a larger population of Minorities. For example, Hindus cannot be treated as Minorities in Muslim dominant J&K or Sikh dominant Punjab. Similarly, they cannot be treated as Minorities in North Eastern states of Nagaland, Mizoram and Meghalaya where there is a majority Christian population,” Davar, who is also a former secretary of Congress party, told Radiance.
He opines: “If it is felt that in these States Hindus should be treated as Minorities then in my opinion a new Bill has to be introduced in Parliament.” However, it is difficult to say if all political parties can reach a consensus on this sensitive matter, he concludes.
Analysts believe that if the court entertains such petitions, it will open a new Pandora’s Box on the social fronts, since a number of social groups have sought separate religious status from the Vedic faith.
Notable among them are Lingayats and Sindhi Samaj. Lingayats, who claim to be 70 million spreading in four states chiefly in Karnataka, Maharashtra, (united) Andhra Pradesh and Tamil Nadu, assert that they were recognised as a separate religion during the British raj. They follow 12th century social reformer Basavanna and his vachana (verses) philosophy.
For a long time, the Lingayats and Veerashaivas have demanded the status of a separate religion. In 2018, then, the Karnataka State Minorities Commission formed a seven-member panel to examine their demand for minority status, and the committee recommended that the plea be granted. However, the union government had told the Karnataka High Court that it has rejected the recommendation of the state government to grant religious minority status to Lingayat and Veerashaiva communities. It reiterated its earlier stand that these communities are part of the Hindu religion and do not form another religion of their own.
Later, in March of that year (2018), the then Karnataka state cabinet decided to recommend to the Union Government that the Lingayat and Veerashaiva Lingayat communities be granted religious minority status.
The state’s then-opposition Bharatiya Janata Party had described the Karnataka Congress government’s action as an attempt to split Hindus.
Analysts further point out that Basavaraj S Bommai, a Lingayat, was appointed Chief Minister of Karnataka in order to appease the state’s powerful Lingayat group. B S Yediyurappa, his predecessor, was also a member of his community.
Similarly, Sindhis, who migrated from Sindh province at the time of partition and settled down in the various parts of the country, are also struggling to get separate religious status.
The Sindhi Samaj, according to Shrikant Bhatia, ex-vice chairman of the National Council for Promotion of Sindhi Language, is a distinct group with its own language, culture, and faith, as their deity is Lord Jhulelal.
“Although Jainism, Sikhism and Buddhism are all considered to be forms of Hinduism, they have all been designated as religious minorities, so why is the Sindhi Samaj being treated unfairly? Bhatia wondered while speaking with Radiance.
Bhatia argued that the Sindhi Samaj was a separate religion when told that Jainism, Sikhism, and Buddhism have been recognised as independent religions. Why is the BJP’s headquarters celebrating Sindhi festival on April 17 rather than Hindu celebration? he questioned.
When asked why L K Advani, the BJP’s former tallest leader, did not raise the issue? Bhatia quipped because of party compulsion as we are a leaderless community right now.
We have two MPs, Shankar Lalwani from Indore and Mahesh Jethmalani (nominated for Rajya Sabha), and five MLAs from around the country, but none of them can dare to go against the BJP’s stand on the subject, according to Bhatia, a journalist and social worker.
We are categorised as Hindus in the census, although we are Sindhis. We have minority status based on language, but we want it based on religion, demands Bhatia.