DETERMINATION OF MINORITY' STATUS : THE JUDICIAL

APPROACH
WHO ARE the 'persons of inherence' of the rights under article 30 of the
Tndian Constitution? This article secures to religious and linguistic
minorities a right to establish and administer educational institutions of
their choice. Whenever, therefore, a group seeks its protection by
challenging a law or executive action before a court, the foremost question
that the court must dispose of as a preliminary step is whether the group
seeking protection is in fact a minority definable in terms of the article.
1 he probe would require an enquiry into two questions, (/) what is a
minority?; and (//) how is a minority to be ascertained in a given situa-
tion?
The Constitution nowhere defines the terms 'minority', nor docs it lay
down sufficient indicia to the test for determination of a group as
'minority'. Confronted, perhaps, with the fact that the concept o[ 'mino-
rity', like its problem, was intricate, 1 the framers made no efforts to bring
it within the confines of a formulation. Even in the face of doubts being
expressed over the advisability of leaving vague justiciable rights to un-
defined minorities,2 the members of the Constituent Assembly made no
attempt to define the term while article 23 of the Draft Constitution,
corresponding to the present articles 29 and 30, was being debated, and,
presumably left it to the wisdom of the courts to supply the omission.
However, as the following would show, the opinions of the courts on
the first question appear to be the result of a half-hearted attempt, and,
only indicate the futility of depending on them in any search for an
answer to the second question.

The initial court-room attempt to answer the first question was made
in In re Education Bill11 where the Supreme Court, through S.R. Das C J . ,
suggesting the technique of arithmetical tabulation, held tint a minority
means a "community which is numerically less than 50 per cent" 5 of the
total population. This statistical criterion prevailed with the Kerala High
Court also which, in A.M. Patroni v. Kesavan* defined minority to mean
the same thing as it meant to the Supieme Court.

1. See Henry K. Junckerstroff, World Minorities 29 (1961).

2. See B. Shiva Rao, The Framing of India's Constitution, A Study 275 (1968). See
also III Select Documents II, 200.
3. VII C.A.D. 891-927 (1948-49).
4. In re Kerala Education Bill, 1957. A.I R. 195$ S.C. 956,
5. Ibid.
6. A.IR. 1965 Ker. 75,
 1980J DETEMRINATION OF MINORITY STATUS 539

The 'definition' refers to a group of individuals who are numerically

smaller as against the majority in a defined area. It, however, does not
indicate as to what factors of distinction, subjective or objective, are to
be taken as a test for distinguishing a group from the rest. Theorists and
sociologists go further than confining their formulations to merely a num-
erical ratio criterion.7
Thus, while considering 'minority', a numerically smaller group, as
against the majority in a defined area, some place emphasis upon certain
characteristics commonly possessed by the members constituting the mino-
rity and, to them, these characteristics serve as objective factors of
distinction, In this sense, the term is used to cover "racial, religious or
linguistic sections of the population within a state which differ in these
respects from the majority of the population." 8 The term signifies a group
with an "individual national and cultural character living within a State
which is dominated by another nationality". 9 In the same sense was
defined the term in the Report of the Third Session of the Sub-Commission
on Prevention of Discrimination and Protection of Minorities set up
under the Human Rights Commission which stated that the term would
include "only those non-dominant groups in a population which possess
and wish to preserve stable ethnic, religious, or linguistic traditions or
characteristics markedly different fiom those of the rest of the popula-
tion".10 Thus, according to these definitions, minority constitutes a
collectivity which is united by certain common characteristics such as
religion, language, race, culture or traditions, or a combination of these
factors, and is numerically non-dominant in a population.
Others, however, emphasise that, additionally, the members consti-
tuting a minority group have a feeling of belonging to one common unit,
a sense of akinness or community which distinguishes them from those
belonging to the majority of the inhabitants. They are "groups held to-
gether by tics of common descent, language or religious faith and feeling
themselves different in these repects from the majority of the inhabitants
of a given political entity". 11 A 'consciousness' of the difference with the
majority on the basis of certain common characteristics is, therefore, con-
sidered as a distinguishing mark, and as such a subjective element.

7. Some of the writers have defined the term in a purely statistical sense without
referring to factors serving as the basis for distinguishing a minority. In this s^nss
minority is "a nno-dominartt group*', [JunckerstrcfT, supra note 1J or "a number
which is less than ha'f the whole number'* [VI The Oxford English Dictionary
(1933)]; see also XIV Grolier Encyclopaedia 114.
8. IV Caxton Encyclopaedia 337.
9. Max H. Boehm, Encyclopaedia of the Social Sciences 518 (1937).
10. Report of the Third Session of the Sub-Commission, Document Ji/CN, 4/35^,
January 30, 1950; Year Book on Human Rights for I9S0 490 (1952).
1
\ 1. 15 Encychpaedh $ritannica 5^2 (1968).
540 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 11 : 4

However, national consciousness alone, at least in some cases, may

characterise minorities not otherwise distinguishable from the rest of the
population by objective characteristics of language, race or culture, etc.12
There are also those who define minority in terms of relationship
between the dominant group and the minority. To them, it is much more
important "to understand the nature and genesis of the relationship bet-
ween dominant group and minority than it is to know the marks by the
possession of which people arc identified as members of either". 13 Louis
Wirth is among those sociologists who regard minority as a group which
is subjected to discrimination and unequal treatment, and which, therefore,
regards itself as an object of collective discrimination.14 What this
explanation, thus, suggests is that the distinctive mark apart from the
numerical size, is the inferior or differential treatment which is the result
of some peculiar relationship between the dominant and non-dominant
group, and that the former develops a consciousness of its inferior status.
In another, and quite different, category come those sociologists who
refuse to accept any purely numerical definition and instead give im-
portance only to the factors of discrimination and inferior treatment.
They regard minority only as a name suitable to designate individuals
corresponding to certain criteria without attaching any importance to its
numerical size. Rose defines minority as a "group of people-
differentiated from others in the same society by race, nationality, religion
or language—who both think of themselves as a differentiated group and
are thought of by others as a differentiated group with negative connota-
tion". 15 The important elements in this definition, according to him, are
not the relative numbers in and out of the group, but a set of attitudes—
those of group identification from within the group and those of prejudice
from without—and a set of behaviours—those of self segregation
from within the group and those of discrimination and exclusion from
without. Relative numbers in and out of the group are not defini-
tionally important and like everything that is social, minority groups must
be socially defined as minority groups, which entails a set of attitudes
and behaviours.16 In this sense 'minority' and 'majority' become primarily
political and not merely statistical concepts.
Thus, most of the definitions explained above place emphasis either
upon certain common characteristics present among the members of the
groups which serve as marks of distinction and as such an objective test,
and it is only in some cases that the factor of 'relationship' between the

12. See Quincy Wright, Minorities, in 19 Encyclopaedia Americana 206 (1969).

13. Louis Wirth, The Problem of Minority Groups, in Talcot Parsons & others
(ed.). The Theories of Society 311 (1965).
14. Id, at 309.
15. X Encyclopaedia of Social Sciences 365 (1930).
16. See Arnold M- Rose and Caroline B. Rose (ed,)» Minority Problems (1965),
1980] DETERMINATION OF MINORITY STATUS 541

dominant and non-dominant group is regarded as the main determinant

of minority status which, in turn, at least in some cases, renders relative
numbers in and out of the group concerned as irrelevant for definitional
purposes.
II

The purpose here, however, is not to sit upon evaluation of the relative
merits of each of the formulations explained above. These are here
recalled merely to illustrate that the term minority is not always regarded
as a statistical concept. These also explain that there exists a sharp dis-
agreement in opinions among their formulators and that most of them
suffer from a lack of comprehensiveness.
Thus, the definitions which lay emphasis upon certain subjective factors
such as 'feeling' or 'consciousness' provide a test which is too vague and
uncertain, and more psychological in nature than real. Every situation
may not necessarily involve the assumption that a group in order to
deserve the title of 'minority' must be distinguishable from the majority
by the presence of a'feeling'or consciousness of its being different from
the majority. A group distinguishable from others by the possession of
certain objective characteristics, such as language, may not have a feeling
or consciousness of its distinct status and may yet be counted as minority*
Moreover, ascertainment of any subjective factor would itself beg to exis-
tence of some objective characteristics which serve as the basis of distinction
and separation, and may in turn have served as the source of 'feeling' or
'consciousness'. Similarly, the writers who cite certain objective charac-
teristics commonly possessed by the members constituting minority as the
exclusive foundations of minority status fail to recognize that objective
factors alone may not always be the determining mark of a minority.
For, a group, not conscious of its distinct status or separate group identity,
may soon be assimilated with the majority and thus may not be entitled to
be regarded as minority. Those who consider the factors of discrimination,
prejudice and inferior treatment to be the sole determinant of minority
status and dismiss as irrelevant the numerical size of the group concerned,
need hardly be told that 'minority' is a relative term and must presuppose
the existence of numercial majority. Thus, for instance, the black population
of South Africa or Rhodesia, though politically non-dominant and subject-
ed to inferior treatment cannot be regarded as 'minority' since numerically
it happens to be larger in size than the numerically smaller white popula-
tion. Even the most acceptable of definitions, the one given by the
Human Rights Commission, is not beyond the reach of argument. That
definition appears to be confined to those non-dominant groups only
which, apart from having certain objective characteristics that are dis-
tinctively their own, wish to preserve their separate identities and are not
willing to be assimilated with the rest of the population. Based on the
experience of Europe where minorities like nationalities were largely
542 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 22 : 4

minorities by will, anxious to preserve their distinctive character, and

refusing to be assimilated with the rest of the population, the definition
fails to include minorities which are not minorities by choice or will, but
by force. The Negroes in the United States and the scheduled castes in
India are examples in hand. They are not minorities by will, and are
rather willing to assimilate with the majority, but are forced to maintain
their distinct status. Minority is seen in this definition as a group apart,
counterposed to the rest of the population, too much preoccupied with
itself and too much imbued with characteristics of separatism, inwardness
and withdrawal—a picture too much overdrawn.17
Ill
That no definition comes out to be comprehensive enough to cover all
and varied situations, illustrates the difficulty experienced in assigning
limits to the concept of 'minority'. This must remain the possible
explainable reason why our courts have not ventured to formulate a general
definition.
Indeed, as far as the limited purposes of article 30 are concerned, such
a venture would have been rather unnecessary too. For, religion and
language being the criteria indicated in article 30, a pre-condition for the
latter's applicability, the Constitution itself tends to confine the task of the
courts to the ascertainment whether the group claiming constitutional
protection is a group identifiable by the characteristics of religion or langu-
age and is also numerically non-dominant. The courts have, therefore,
only to be sure for themselves that the basis of the claim to protection
is either religion or language. Interpreting the words "based on religion"
in article 30, the Delhi High Court rightly pointed out that the words
would mean that "the only or the principal basis of a 'minority' must be
their adherance to one of the many religions . . . and that the other fea-
tures of the minority are subordinate to the main feature, namely, its
separateness because of the religion".18 A similar interpretation can also
be placed on the words 'based on language'. That being so, it can be
concluded that for the purposes of article 30, a minority means a non-
dominant collectivity distinguishable from the majority of population by
the objective factors of religion or language or a combination of both,

IV
In the Kerala Reference,19 the Supreme Court made an attempt at
answering the second question also* How is a'minority' to be ascertained

17. Seo Ra^hceJuddi.i Khan in Krishna Dev Sharma* Education of a National,

Minority II (1978).
18. A.S.E. Trust v. Director, Education, A.I.R. 1976 Del. 207.
19. Supra note 4.
 1980] DETERMINATION OF MINORITY STATUS 543

in a given context?20 The court was faced with the difficulty of specifying
the geographical unit with reference to which the population of a minority
was to be calculated and weighed against the total population. The total
population could either be that of the Indian Union or of a state or any
smaller geographical unit, the unit being almost as important as the de-
finition itself.
The State of Kerala argued that in order to constitute a minority the
persons in question must numerically be a minority in the particular
region in which the educational institution involved was situated. For
this argument the state relied on the decision of the Assam High Court
in Ramani Kanta Base v. Gauhati University.21 In that case the question,
inter alia, for decision was whether the Bhoianath College situated at
Dhubri in Assam was a college established by the Bengalis. While holding
that "in order to bring the case under the first part of Art. 30 a minority
community has to establish its character... as a religious or linguistic
minority", Labhaya J. observed:
It is also a question as to whether Bengalis could be regarded as a
linguistic minority in the area or locality with which we are con-
cerned. The figures given by the petitioner.. . show that there is
a preponderance of Bengali students in the College.22
Although this observation does not indicate whether Labhaya J.
intended to devise a 'test' by which minority status could be determined,
as apart from this observation there is nothing else in the judgment to
disclose such intention, the State of Kerala chose to base its argument on
this observation, only to be met disfavourably with S.R. Das C.J.
in the Kerala Reference, who while rejecting the argument, said:
A little reflection will at once show that this is not a satisfactory

20. The occasion that necessitated the determination of this issue arose out of a
preliminary objection made by the Stale of Kerala. The Kerala Education Bill, intro-
duced by the Communist Government of Kerala, sought to impose considerable state
control over the management of educational institutions in the state. The President,
having doubts about the constitutional validity of some of the provisions of the Bill re-
ferred the matter to the Supreme Court for its opinion. The state while admitting that
out of the total population of 1,42,000 in Kerala State there were only 34, 00, 000
Christians, thus, forming about one fourth of the total population and constituting the
second largest community, and that there were 25, 00. 000 Muslims, thus forming one
seventh of the total population and constituting the third largest community in that
state, denied that Christians and Muslims were a'minority'in the sense in which the
term was used in art. 30 (1). The state based its contention, as it said, on the fact that
Christians were in majority in certain areas and similarly Muslims were also in majority
in certain other areas of the state, although neither of these groups was in majority in
the whole state, if calculated in mathematical terms.
21. A.I.R. 1951 Ass. 163.
?2. Id. at 164. {Emphasis added).
544 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 22 : 4

test. Where is the line to be drawn and which is the unit which
will have to be taken? 23

The court was faced with the difficulty of demarcating the geographical
boundaries of a region or area which could be treated as a unit for the
purpose of determination and declaration of a particular group inhabiting
that region as falling within the definition of 'minority'. The difficulty
is manifest from the Chief Justice's own words, which followed the above
question:

Are we to take as our unit a district, or a sub-division or a taluk

or a town or its suburbs or a municipality or its wards?24

The court then tested the formula suggested by thQ State of Kerala by
applying it to certain hypothetical situations. It stated that in many
towns, persons belonging to a particular community flock together in a
suburb of the town or a ward of the municipality. Thus, Anglo-Indians
or Christians or Muslims may flock together in one particular suburb of
a town or one particular ward of a municipality and they may be in
majority there, though in the context of the whole population of the state
they might be numerically a minority. Illustrating the point further the
Chief Justice said:

Bihari labourers residing in the industrial areas in or near Calcutta

where they may be the majority in that locality . . . will have no
educational institution . . . imparting education in Hindi, although
they are numerically a minority if we take the entire city of Calcutta
or the State of West Bengal as a unit. Likewise Bengalis residing
in a particular ward in a town in Bihar where they form the
majority will not be entitled to conserve their language, script or
culture by imparting education in Bengali. These are, no doubt,
extreme illustrations, but they serve to bring out the fallacy inherent
in the argument. 25

1 he Supreme Court, thus, analysed these situations to show that the

test for determination of 'minority' as suggested by the state was not
satisfactory as, firstly, the word 'region' itself was not precisely definable
and, secondly, that even if a region was taken as a unit the test would
break down in marginal situations. The court was, however, confronted
with the problem of suggesting its own formula if the one suggested by
the state was to be denied acceptance. It observed:

23. Supra note 4 at 977

24. Ibid.
25. Ibid.
1980] DETERMINATION OF MINORITY STATUS 545

It is easy to say that a minority community means a community

which is numerically less than 50 per cent, but then the question
is not fully answered, for part of the question has yet to be
answered, namely, 50 per cent of what? Is it 50 per cent of the
entire population of India or 50 per cent of the population of a
State forming a part of the Union?26
The court did not provide any definite answer to these questions and
without finally deciding about the meaning of 'minority' it observed:
We need not, however, on this occasion go further into the matter
and express a final opinion . . . for the Bill before us extends to the
whole of the State of Kerala and consequently the minority must
be determined by reference to the entire population of that State.
By this test Christians, Muslims and Anglo-Indians will certainly be
minorities in the State of Kerala . . . ,27
What the court, however, did decide was that when an Act of state
legislature extends to the whole of the state, the minority must be deter-
mined by reference to its entire population and any community, linguistic
or religious, which is numerically less than 50 per cent of the population
may be regarded as a minority for purposes of the Constitution.
D.A.V. College, Jullunder v. State of Punjab*8 provided an 'occasion'
for the Supreme Court, if the same was not available to it in the Kerala
Reference, for expressing a 'final opinion' on the meaning of ''minority'..
The test suggested in this case was different from the one suggested on
behalf of the State of Kerala in the Kerala Reference. The argument
advanced was that religious or linguistic minorities should be minorities
in relation to the entire population of the country. Jaganmohan Reddi J.,
speaking for a unanimous court, negatived the argument by saying:
[I]n our view they are to be determined only in relation to the
particular legislation which is sought to be impugned, namely that
if it is the State legislature these minorities have to be determined
in relation to the population of the State.29
The above view was further confirmed in D.A.V. College, Bhatinda v.
State of Punjab™ Referring to the decision in the earlier case, Jaganmohan
Reddi J. said:
We h a d . . . held that what constitutes a linguistic or religious

26. Id. at 976.

27. Ibid.
28. A.I.R. 1971 S.C. 1737. Impugned in this case were certain provisions of the
Guru Nanak University Act, 1969, enacted by the Punjab legislature.
29. Id. at 1742.
30. A.I.R. 1971 S.C. 1731.
546 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 22 ; 4

minority must be judged in relation to the State in as much as the

impugned Act is a State Act and not in relation to the whole of
India. 31

Thus, in these cases also the Supreme Court made no attempt at

providing a general test for ascertaining a minority and had to fall back
upon its earlier view to merely hold that if the law is enacted by the state
legislature and is intended to be applied to the whole state, minorities
have to be determined with reference to the entire population of that
state. However, if the rejection of the criterion suggested by the State
of Kerala preceded a judicial scrutiny and was supported by the court's
own reasons, the new criterion advocated in the above cases met with
summary rejection without being examined on merit.
Following the above decisions, the Kerala High Court 32 which was
called upon to determine whether Christians were a minority in the State
of Kerala held:

The word 'minority' is not defined in the Constitution; and in the

absence of any special definition we must hold that any community,
religious or linguistic, which is numerically less than fifty per cent
of the population of the State is entitled to the fundamental right
guaranteed by the article.32"

The reference was to article 30 (1). The court found that as the
Christians at the 1961 census amounted only to 21.22 per cent of the total
population of the State of Kerala, they were o minority within the terms
ofarticle30(l). 3 3

The way the courts have handled the question of determination of

minority status is questionable both as to the geographical unit with
reference to which they have sought to ascertain the numerical strength
of a group claiming protection under articles 29 and 30 as well as the
justifications which have weighed with them for their conclusions.
The illustrations that served as justification with the Supreme Court
in the Kerala Reference for refusing to accept the state's argument are

31. Id. at 1733.

32. See A.M. Patroni v. Kesavan, supra note 6.
32a. Id. at 76,
33. Similarly, the Patna High Court accepted the contention that persons of
Rajasthani origin, with Rajasthani as their language and Mahajani as their script,
residing in the State of Bihar were a minority based on language : Panna Lai v. Magadh
University, A.I.R. 1976 Pat. 83. See also K.O. Verkey v. State of Kerala, A.I.R. 1969
Ker. 191.
1980] DETERMINATION OF MINORITY STATUS 547

aptly described. For, if a region within the state is taken as a unit and
the numerical strength of each of the communities is calculated on that
basis and any community which is numerically less than 50 per cent of
the total population of that unit is declared a 'minority' within the
meaning of article 30, it may happen that, for instance, as the court pointed
out, Bihari labourers residing in industrial areas in Calcutta may be
counted as 'minority' though numerically they are in minority vis-a-vis
the whole population of West Bengal. The result, therefore, would be, as
the court visualised, that those Biharis would have no educational
institutions imparting education in Hindi, whereas their Bihari brethren
residing elsewhere in Calcutta or the State of West Bengal would have
the protection of article 30.34 This would be, the court presumbly meant
to say, an anomalous position as on the members of the same community
residing within the same geographical limits of a state, the Constitution
would have to be applied with differing standards.
However, these illustrations and drawable conclusions from them suffer
from the defect of being limited in their relevance. Thus, assuming that
each state in the Indian Union is taken as a geographical unit for deter-
mining the minority status of a community or communities, would it not
be that, for instance, the same rights available to Punjabis in Haryana,
having Punjabi as their language, would not be available to them in Punjab
merely because of a geographical line separating them from their co-
linguists in Haryana? It remains a fact that like the Biharis in a suburb
of Calcutta surrounded by Bengali speaking people, the Punjabis in Punjab
are surrounded by non-Punjabi speaking people inhabiting the surrounding
areas falling incidently within the geographical boundaries of adjoining
States of Rajasthan, Uttar Pradesh, Himachal Pradesh and Haryana.
Would not in this situation, too, the Constitution have to be applied with
double standards one, for instance, for the Punjabis in Haryana, the other
for the Punjabis in Punjab?
It may, thus, be argued that if the suggestion of the State of Kerala for
determination of minority status of a community appeared to the court to
contain an inherent (fall?cy\ the formula applied by the court itself may
turn out to be irrelevant in a given situation, like the one illustrated above.
The formula, that if a law extends to the whole state minority must be
determined by reference to its entire population and that a minority com-
prises persons who are less than fifty per cent of such population, may lose
its validity in certain situations. The formula is applicable in cases where
one group of persons—linguistic or religious—constitutes more than fifty
per cent of the state population, and the other groups fall below thefiftyper
cent line. The states' boundaries stand demarcated on a linguistic basis,35
34. Supra note 25.
35. The boundaries of most of the states were reorganized by the States Reorgani-
zation Act, 1956. Later in 1960, the States of Gujarat and Maharashtra were created out
of the bilingual State of Bombay and in 1966 the State of Punjab and Haryana were
created out of the former State of Punjab,
548 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 22 : 4

and the language or religion-wise distribution of population in every state

is such that a single community happens to constitute a population which
easily outnumbers the other groups, taken jointly.36 But, it is not altogether
unlikely that the population in a state may be so fragmented on a linguistic
or religious basis that all the groups in the state comprise persons who are
less than fifty per cent of the entire population. If ascertainment of 'mino-
rity'is linked with the existence of a numerically dominant group within
the state—the majority—the formula would lose its workability if no group
emerges out to constitute more than fifty per cent of the state population.
A situation like this may happen, and it did happen in fact, for instance,
in case of the former State of PEPSU where according to the 1951 census
none of the religious communities formed more than fifty per cent of the
total population. As regards the religion-wise distribution of the population
in that state, it showed the following figures :

Community Population
Sikhs 1721939
Hindus 1704349
Muslims 55913
Jains 7578
Christians 3565
Buddhists 219
Zoroastrians 98
If 'minority' is a relative term and its presence presupposes the exis-
tence of the 'majority', and a minority means a group that is numerically
less than fifty per cent, and a majority means, by logical extension, a group
that is numerically more than that, the question in the above
situation would be, 'minority' in relation to what, if 'majority' is non-exis-
tant? Since each of the groups, in the above situation, constitutes a popula-
tion which is less than the required fifty per cent, calculated as against the
total population, each of them would have to be designated as a minority;
and consequently, all of them would fall under the constitutional protection
without there being a 'majority' community.37 A minority need not
have to claim protection against a group which itself is a non-dominant
minority.
A further paradox is that under the formula adopted by the courts,
some members of a minority, considered as minority in the national con-

36. See Census of India, 1971, series 1—India (1972).

37. This point has been emphasised by some scholars : See M.P. Jain, Safeguards to
minorities : Constitutional Principles, Policies and Framework, in M. Imam (ed.),
Minorities and the Law 20 (1972); D.K. Singh, Cultural and Educational Rights in India,
in G.S. Sharma (ed.), Educational Planning : Its Legal and Constitutional Implications in
India 136 (1967).
1980] DETERMINATION OF MINORITY STATUS 549

text, would enjoy the constitutional protection whereas members of the

same minority in another state would be deprived of it.38 The Sikhs in
Punjab, the Christians in Nagaland, or the Muslims in Jammu and Kash-
mir, where their numerical strength is more than 50 per cent39 would, there-
fore, have to forgo the rights secured to the Sikhs or Christians or Muslims
elsewhere in the country. A large section of the minority population would,
thus, stand excluded from the scope of constitutional protection, and to it
the constitutional provisions would hardly amount to anything more than
empty promises.
Similarly, if a minority establishes educational institutions in more than
one state, the formula would enable only some institutions in some of the
states to be able to secure constitutional protection. Thus, for instance,
the Christians being in majority in Nagaland would not have the protection
in respect of their institutions, whereas a good number of institutions esta-
blished throughout the country by the Christian missionaries would have
the benefit of being within the scope of the protection. It is anomalous, to
the extent of being ridiculous, to allow a community to have the privilege
of being marked for protection at some places, and to deny the same privi-
lege to the same community at some other places. Constitutional processes
must not run along these lines.
Incidentally, both in the Kerala Reference as well as in the later cases
where the question of ascertainment of 'minority' was specifically raised
and considered, the legislation in question was a state legislation and
intended to be applied to the whole state. There is, thus, yet to be seen a
court-room conflict where the question of ascertainment arises in respect of
a law which does not fall under that category. The decisions considered
above rule out the possibility of ascertaining a 'minority' with reference to
the population of any geographical unit within the state where a law
applied only to that unit (instead of being applicable to the whole state) or
where the educational institution is established.
It, however, logically follows from the language used by the courts in
the judgments reviewed that they may find themselves prepared to
ascertain a minority with reference to the entire population of the country
if the law in question happens to be a Union law. The occasion may not
be too far away as the subject of education, having been placed in the
Concurrent List by the Constitution 42nd Amendment Act, 1976, remains
no more within the exclusive domain of the states, and also that the Parlia-
ment's power over education stands enormously increased in the terms of
the Supreme Court's decision in the Gujarat University case,40

38. See D.K. Singh, ibid.

39. According to the figures shown in the 1971 Census, Sikhs in the Punjab consti-
tute 60.22 per cent, Christians in Nagaland, 66.76 per cent and Muslims in J. &K.,
65.85 per cent, of the total population. See Census of India, 1971, supra note
36.
40. Gujarat University v. Sri Krishna, A.I.R. 1963 S.C. 703,
550 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. ll : 4

But then the anomaly in this dual approach would be that if for instance
a Union law applied to the State of Jammu & Kashmir, or Nagaland or
Punjab where the numerical strength of Muslims, Christians, and Sikhs
respectively is more than 50 per cent of the total state population,
these communities, in terms of the country's total population would be
designated as 'minority', but still be a 'majority' where the law in
dispute is a state law. These communities would, thus, have the double
status of being 'national minorities' and 'State majorities'. This may not be
the real import of article 30, and may not have been the intention of those
who included these provisions in the Constitution.
The whole debate in the Constituent Assembly on article 23 of the
Draft Constitution which later assumed the shape of the present articles 29
and 30, revolved round this issue: What rights could or should be conceded
to minorities? The reference to 'minorities' was a reference to none other
than the Indian minorities existing in India in the then historical setting,
the place of their inhabitance within the country being rather irrelevant.
The discussion on the demand for separate electorates or the reservation
In the legislature and the services obviously referred to no other minorities
than the minorities in the political or historical context.41 The original
draft of the fundamental rights submitted to the Constituent Assembly on
April 16, 1947 by the Sub-Committee on Fundamental Rights did not con-
tain any provision corresponding to article 30 (1) and did not even refer to
the word minorities.42 The letter, submitted by K.M. Munshi to the Mino-
rities Sub-Committee on the same date when, along with some other
rights, the right now forming part of article 30 (1) was proposed, made a
reference to the term "national minorities". Tracing the genesis of his
proposals, Munshi explained before the Advisory Committee on April 22,
1947, that his proposals were based on the rights guaranteed to minorities in
the Polish Treaty of June 28, 1919, which later came to be incorporated in
the Polish Constitution.43 The problem of national minorities with which
Europe was confronted after the First World War as a result of creation of
new and enlarged states, and within their territories significant minority
populations, was essentially a political problem which was sought to be
solved politically at the Peace Conference of 1919 of which the Polish
Treaty was an off-shoot.44 While, therefore, using the term 'national' to
qualify the term 'minorities' in his proposals, Munshi must have been
conscious of the political connotation that the term 'national' carried with
it. The Sub-Committee on Minorities accepted Munshi's proposals and
incorporated them as an annexure to its interim report of April 19, 1947.

41. See VJI C.A.D., supra note 3.

42. See B. Shiva Rao, II The Framing of India's Constitution 169-176 (1969).
43. Id at 278; see also B. Shiva Rao, supra note 2 at 273.
44. See Henry K. Junckerstroff, supra note 1 at 69.
1980] DETERMINATION OF MINORITY STATUS 551

Later, the draft fundamental rights came to contain the provisions corres-
ponding to the present articles, 29 and 30.
The Drafting Committee, however, sought, to make a distinction
between the right of any section of the citizens to conserve its language,
script or culture and the right of the minorities based on religion or langu-
age to establish and administer educational institutions of their choice
and for this the committee omitted the use of the word 'minority' in the
earlier part of the draft article 23 corresponding to the present article 29,
while it retained the word in the latter part of the draft article 23 which
now forms part of article 30 (1). In response to the controversy which
the change sparked off in the assembly, Ambedkar sought to explain
the reason for substitution in the Draft Constitution of the word minority
by the words "any section" observing:

It will be noted that the term minority was used therein not in the
technical sense of the word 'minority' as we have been accustomed
to use it for the purpose of certain political safeguards, such as re-
presentation in the Legislature, representation in the Services and
so on. The word is used not merely to indicate the minority in the
technical sense of the word, it is also used to cover minorities which
are not minorities in the technical sense, but which are nonetheless
minorities in the cultural and linguistic sense. For instance, for
the purpose of this article 23, if a certain number of people from
Madras came and settled in Bombay for certain purposes they would
be, although not a minority in the technical sense, cultural mino-
ritities. Similarly if a certain number of Maharashtrians went
from Maharashtra and settled in Bengal, although they may not be
minorities in the technical sense, they would be cultural and lin-
guistic minorities in Bengal. The article intends to give protection
in the matter of culture, language and script not only to a minority
technically but also to a minority in the wider sense of the terms as
I have explained just now. That is the reason why we dropped
the word "minority" because we felt that the word might be inter-
preted in the narrow sense of the term when the intention of this
House, . . . was to use the word "minority" in a much wider sense
so as to give cultural protection to those who were technically not
minorities but minorities nonetheless.45

Ambedkar's explanation that the right was available not only to mino-
rities in the 'technical sense' but also to minorities in the 'wider sense'
has an obvious reference only to that part of draft article 23 which
now forms part of article 29 (1) and not to that which is now clause (1)
of article 30. His explanation, therefore, may be taken to be an attempt

45. VII C.A.D., supra note 3 at 922-23.

552 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 22 : 4

to broaden the scope of clause (1) of article 29 only so as to include within

the term 'minority' other minority groups also, as contemplated and illus-
trated by him, and thus to confine article 30 (1) to those minorities which
he described as minorities in the technical sense, were politically recognised
and the most prominent amongst them were represented in the Constituent
Assembly also. These were in fact the Muslims, the Sikhs, the Christians,
the Parsis and the Anglo-Indians, the first three being a religious
minority, the fourth a religious and racial minority, and only the fifth,
the Anglo-Indians, a minority by race, language and religion. They
claimed to be distinct from the majority, the Hindus, and were recognised
as minorities in the context of the whole country wherever they might be
living.
The whole problem, as far as this part of the Constitution is concerned,
that engaged considerable time and efforts of the framers was to achieve a
consensus on a constitutional arrangement, between the numerically
dominant majority considered as such on the national scene and the
minorities referred to above—a solution which could give the minorities
a feeling of security against discrimination, and security against inter-
ference with those characteristics which had divided them apart from the
majority. And, it is too obvious to be noted that, at no stage was any
section of this majority ever treated as 'minority'.
Retention, therefore, of the word 'minority' in article 30 (1), its
replacement by the words with which article 29 (1) opens up, absence of
any adjective like 'cultural' in article 30 (1), superadded by the Drafting
Committee's expression of intention to differentiate between the two types
of minorities for the purpose of article 29 (1), are factors which necessarily
lead to the assumption that article 30(1) was intended to include the well
known national minorities,48 based on religion, or in some cases also on
language, and recognised as such in the all-India context, whereas article
29 (1) was to include these national minorities, as well as the innumerable,
rather less known, cultural or linguistic groups distinguishable from the
rest of the population in various states of the Indian Union.
If this assumption is accepted as truly reflecting the intention of those
who drafted and incorporated these provisions in the constitutional docu-
ment, with a wishful hope that they were rendering a constitutional
solution to the problem of Indian minorities, it may be argued that where
a minority is a minority in the historical or national context and its claim
is based on religion it must be defined and ascertained in terms of the
population of the whole country, irrespective of its being in numerical
majority in any particular state; and, where a group is not a minority con-
sidered as such in the national context, but is still definable as 'minority'

46. See P.B. Gajendragadkar, The Indian Parliament and the Fundamental Rights
51 (1972).
1980] DETERMINATION OF MINORITY STATUS 553

under Ambcdkar's stretched meaning of the term,47 it may be ascertained

with reference to the population of the state concerned.
The argument is correct, it is submitted, if the provisions in question
are viewed against the historical perspective in which they were adopted,
and are construed to carry into effect the true spirit and intention of the
Constitution.

VII

7"he courts, however, seem to has been persuaded by practical com-

pulsions rather than be swayed away by a feeling of faithfulness to the
spirit. Their course of opinions seems to have been determined by some-
thing like the following:
(/) That the provisions in question primarily seek to protect minorities
against state action, which term includes laws and also under them,
executive actions.
(//) That ours being a federal democratic system, political and legislative
processes operate not only from the national centre of power, but also
from the states.
(///) That these states are autonomous in their respective legislative
spheres—and laws are passed by majority vote.
(iv) That minorities, considered as such on the national level, do cons-
titute numerical majorities in some of the states.48
(v) That these 'majorities' may, by their laws, deny the protection to
the non-dominant groups which the Constitution so emphatically seeks to
secure.
(w) That these 'majorities' may, by their numerical strength, over-
shadow the distinct characteristics and individuality of the non-dominant
groups, and the latter may have to live under a psychological fear of being
discriminated and overwhelmed.
(v/7) That it was this fear, in some sections of some minorities at least,
which had pervaded the politics of pre-partition India,49 and that it was
on this premise that minority rights were demanded and conceded in the
Constituent Assembly.30
(v//7) That it is this fear which still continues to be the core component
of the minority problem.

47. See supra note 45.

48. See supra note 39.
49. See S.C. Dube, Contemporary India and its Modernisation 135 (1974).
50. See Ralf H. Retzlaff, The Problem of Communal Minorities in the Drafting of
the Indian Constitution, in R.N. Spann (ed.), Constitutionalism in Asia 56 (1963).
554 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 22 3 4

(ix) That the assurance to protection for minorities can tell its true
meaning only when a non-dominant group in a state is defined and ascer-
tained as 'minority' where the law in question is a state law, even though
the group happens to be a part of the'majority', considered as majority
in the context of the whole country.
(x) That the same reasons that became the basis for articles 29 and 30
to find a place in the category of justiciable fundamental rights must be
valid in this situation also.
Amvarul Yaqin*

Lecturer, Faculty of Law, Aligarh Muslim University, Aligarh.