(Indian Express
April 06, 2007
Outraged chorus: Not just maths, HC ruling defies what SC said
by SEEMA CHISHTI
NEW DELHI, APRIL 5: The Allahabad High Court judgment today that Muslims in Indian’s largest state Uttar Pradesh should no longer be treated as a minority, flies in the face of facts, precedents, and judgements of Constitution benches of the Supreme Court.
The High Court judge, Justice S N Srivastava, referred to Census data. As per the 2001 Census, Muslims make up 18.5 per cent of UP’s population — the national figure is 13.1 per cent.
Arithmetic aside, the judge’s order contradicts what a seven-judge Constitution Bench of the Supreme Court ruled in the P A Inamdar case related to rights of educational institutions.
In August 2005, that bench concurred with an earlier 11-judge SC bench’s verdict on the question of who is a minority.
According to that judgement, while the term “minority” is not defined in the Constitution, Chief Justice B N Kirpal, speaking for the majority, cited the State Reorganisation Act and held that in view of India having been divided into different linguistic states, on the basis of the language of the majority in that region, it is the state, and not the whole of India, that shall have to be taken as the unit for determining linguistic minority.
And as Article 30(1) places on par religions and languages, he held that minority status, “whether by reference to language or by reference to religion, shall have to be determined by treating the state as unit.”
According to Justice V N Khare, who agreed with Justice Kirpal, the determination was simple: take the population of any state as a unit, find out its demography and calculate if the persons speaking a particular language or following a particular religion are less than 50% of the population, “then give them the status of linguistic or religious minority.”
Says Constitutional expert Rajeev Dhawan, “This is just litigational mischief resulting in an unreliable and wholly unjustified judgement with no foundation. It is difficult to comprehend, it comes at an inappropriate moment, with elections around the corner. The Supreme Court is clear that the basis is to take the state as a unit, and a numerical strength of 50 per cent as the deciding factor. There is no justification of talking about numbers and strength. If this judgement is correct, then what about the states of Kerala and Andhra Pradesh? It is important that litigants as well as judges must comprehend the importance of a multi-cultural society and within it, of Article 30, which is to preserve religious and linguistic minorities.”
Two former Chief Justices of India, when contacted by The Indian Express, did not wish to be named but expressed a deep sense of unease with the lack of judicial consistency across different courts and with reference to precedents already laid down.
The National Minorities Commission, too greeted this judgement with outrage. Speaking to The Indian Express, chairman Hamid Ansari said: “The terms minority or majority are not defined in the Constitution. Common sense dictates that in relation to 51 per cent, 49 percent is a minority and with reference to 49 per cent, 51 per cent is a majority. It is puzzling how such a judgement was arrived at.”
Said Zoya Hassan, also a member of the NCM and political scientist, “The National Commission of Minorities Act 1992, recognises five national minorities, Muslims, Christians, Sikhs, Parsis and Buddhists. But even if you take the numerical view, this is surprising, and this decision simply upsets the entire constitutional architecture of safeguards and protection for minorities. Even from the sense of vulnerability experienced by Muslims, they are not a majority.”
Abu Saleh Shariff, Chief Economist of National Council for Applied Economic Research and member secretary of the PM’s high-level Sachar Committee to study the status of Muslims, said: “Anything above 50 percent becomes a majority, how can 18.5 per cent (the population of UP which is Muslim) be a majority? How can a High Court redefine arithmetic? There may be a few selected districts in the state where they may be a majority, but the unit under consideration is the full state. I am baffled.”
Incidentally, in 2005, the Supreme Court declined to issue a ruling decreeing the Jains as a minority, nationwide. However, it left it to the states to decide on the matter. Jains constitute 0.4 percent of India’s population, according to the 2001 Census.
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