Indian Constitution doesn’t call Muslims a minority, who turned them into one?

Representational image | Photo: Dhiraj Singh | Bloomberg

The Constitution actually conceives ‘minority’ as an open category to protect the interests of various religious, linguistic and culturally distinctive groups.

Immediately after taking charge of the ministry of minority affairs in 2014, Najma Heptulla made a powerful comment on the minority status of Muslims. She said, “This is not the ministry for Muslim affairs, this is the ministry of Minority affairs … Muslims are not minorities.”

Heptulla’s assertion is valid. The Constitution does not define the term minority. The distinctiveness of a numerically inferior group is certainly recognised as a legal criterion to determine the minority status of any community. But the term distinctiveness is not delineated in the way we now understand – the framework of ‘Hindu majority versus Muslim minority’.

The Constitution actually conceives ‘minority’ as an open category to protect the interests of various religious, linguistic and culturally distinctive groups. Hence, there is no possibility to think of Muslims as a permanent minority in the constitutional schema.

But  Heptulla’s comment stems from the post-Babri Masjid political discourse, which has actually transformed Muslims into a permanent and defined national minority.

Muslims as a defined national minority

As the Mandir politics built the ground for a larger movement that ultimately led to the demolition of Babri Masjid, the Congress government initiated a package to reach out to the ‘minorities’ in general and Muslims in particular. The National Commission for Minorities Act (1992) was perhaps the most important initiative. It recognised the need to evaluate the reasons behind the relative marginalisation of religious communities. This law led to the establishment of the National Commission for Minorities (NCM) in May 1993.

But even the 1992 law does not offer a definition of the term ‘religious minority’. Instead, it is the central government that is empowered to notify a few communities as “minority” for the purpose of this Act.

Following this mandate, the Congress government notified five religious communities: Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) as national religious minorities in October 1993. This list was amended in 2014 when Jains were also notified as a national minority.

This simple administrative move, however, posed a serious challenge to the constitutional principles, which intentionally do not identify any religious or cultural group as ‘national minority’.

Backwardness and minority status 

The NCM did not find any contradiction between the constitutional meaning of a minority and the 1993 notification of the government. In an official note to the ministry of home affairs (dated 30 July 1997), it clarified:

A national level minority shall have the status of a minority in the entire country irrespective of its local population. This will be so even in a state, region or district where such a minority is factually not a minority in numerical terms. In a particular state a religious community which is not a national minority recognized by the NCM Act (like the Jews and Bahai) may be recognized as a regional minority (cf. Tahir Mahmood, 2016: Minorities Commission 1978-2015: Minor Role in Major Affairs, 2nd edition, Universal, Delhi, 129-130).

Evoking the constitutional commitment to affirmative action, the note argues that religious minorities – like religion-based Scheduled Castes – can be treated as specific identities entitled to special protection by the state. In other words, the distinctiveness of a group as a principle to identify a minority at the state level is supplemented by another powerful norm, i.e., backwardness and marginalisation.

The Muslims of India, who have always been seen as a religious cultural minority, are envisaged as a national-level backward community. The Sachar Commission Report further consolidated this administrative-policy imagination, which became the guiding principle for the ministry of minority affairs that was established in 2006.

BJP and minority status of Muslims     

Recognising Muslims as a national minority on the basis of backwardness/marginalisation, however, produced an equally powerful political reaction. L.K. Advani’s speech in Parliament in 1992 revealed some political anxiety. Opposing the National Commission for Minorities Bill 1992, Advani said:

….This kind of Bill is addressed in name of course to the Christians, to the Parsis, to the Sikhs, etc., but actually it is addressed only to one section… You are going to commit a similar kind of monumental and historical blunder by passing this Bill. (Tahir Mahmood, 2016: Minorities Commission 1978-2015: Minor Role in Major Affairs, 2nd edition, Universal, Delhi, pp. 71-72)

Advani’s clear-cut opposition to the Bill stems from the BJP’s stated policy on Muslim appeasement. The party continued to oppose the NCM in order to achieve, what Advani calls, ‘positive secularism’.

This line of argument is forcefully asserted in the BJP manifestos of the 1990s (especially1996 and 1998). It is argued that the party is committed to ‘disband the Minorities Commission and entrust its responsibilities to the National Human Rights Commission’.

However, when the BJP formed the government in 1998, it did not find any problem in recognising Muslims as a national minority. The second NCM, which was constituted by the Congress, was not abolished either. In fact, Advani, now as the home minister, played a major role in the reconstitution of a new NCM in January 2000. (Tahir Mahmood, 2016: Minorities Commission 1978-2015: Minor Role in Major Affairs, 2nd edition, Universal, Delhi)

The BJP took a very different position on the minority status of Muslims in the post-2004 period. The party officially acknowledged the significant contribution of the NCM and even argued for its effective role in Muslim empowerment.

The BJP manifesto of 2014 asserted that ‘even after several decades of Independence, a large section of the minority, and especially Muslim community, continues to be stymied in poverty’.

Does it mean that the BJP has deviated from its position on Muslim appeasement?

The minority status of Muslims actually fits well with the BJP’s calculated politics of social justice. It allows the party to operate within the established framework of inclusion and exclusion. And, at the same time, it helps them paint a picture of a victimised national religious majority.

After all, the new mantra of the Sangh is ‘Hindutva without Muslims is irrelevant’.

(ThePrint is publishing three series on minorities in India by Hilal Ahmed. The ‘Sarkari Muslim’, Minority Report, and Line of Law will trace the political journey of Muslims in the country. This is the third article under Minority Report.)