What is a minority?

Soli J Sorabjee

There is no internationally acceptable definition of a minority, despite herculean efforts by judges, jurists and statesmen. The expression minority does not find a place in the Universal Declaration of Human Rights, 1948. Indeed, there is no guarantee of minority rights in the Declaration.

The first international human rights instrument which guarantees minority rights is the International Covenant on Civil and Political Rights, 1966 (ICCPR). Article 27 of the ICCPR is in these terms: “In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion or to use their own language.” However, ICCPR does not define a minority. The historic UN Declaration on Minorities 1992 also does not contain a definition of minorities.

Minority is not defined in our Constitution. Certain criteria or tests have been evolved by Courts to identify minorities. Our Supreme Court has adopted the numerical test in relation to a State. In its advisory opinion in 1958 on the Kerala Education Bill, the Court opined that as the legislation in question applied to the whole of the State of Kerala, the existence of a minority “must be determined by reference to the entire population of that State” and  that by “this test, Christians, Muslims and Anglo-Indians will certainly be minorities in the State of Kerala”.

In its subsequent decisions in the DAV College 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, because the Court took the State as the unit to determine whether the Hindus were a minority community. The Court ruled that “the Hindus of Punjab are a religious minority in the State, though they may not be so in relation to the entire country.”

A nine-judge bench of the Supreme Court in its judgment in TMA Pai’s case delivered on November 25, 2002 reaffirmed the tests laid down in its earlier judgments to determine the existence of minorities, and ruled that with regard to a State law, the unit to determine a religious or linguistic minority can only be the State. This view was reiterated by the Supreme Court in its subsequent judgment in the case of PA Inamdar delivered on August 12, 2005. Thus, there can be no doubt that according to the law laid down by the Supreme Court, “a minority, whether linguistic or religious, is determinable only by reference to the demography of a State and not by taking into consideration the population of the country as a whole.”

In my view, although numerical inferiority is certainly a relevant criterion for determination of minority status, it cannot be conclusive. A minority  should not be determined on the basis of numbers alone. It should be a qualitative determination and all vulnerable non-dominant groups should be included. The acid test for determining majority or minority status is which group calls the shots in a community at a given time. At most times, it is the numerically superior community, but in certain situations, like during the British colonial rule in India and the South African apartheid regime, a community with far greater numbers than the ruling regime could still be a minority because of its disempowered position. The criterion should be empowerment. The relevant questions to ask are, what is the strength of the community in decision-making, formulating policies and their execution?

The judgment of the single judge of the Allahabad High Court that Muslims in UP are not a minority is incomprehensible. There was no evidence that Muslims in UP are in a dominant position and are an ‘empowered’ community. Moreover, the ruling of the single judge is contrary to the law laid down by the Supreme Court.

Judges are not infallible. However, in deciding sensitive issues which have serious repercussions in the country and on the Muslim community, well-settled legal principles should not be disregarded. Fortunately, the judgment has been stayed by a Division Bench, and hopefully it will be overruled when the case comes up for hearing in the High Court in the middle of May.

The writer is former Attorney General of India.