In the 2005 Bal Patil case, the Supreme Court had observed: “Differential treatment to linguistic minorities based on language within the state is understandable, but if the same concept for minorities on the basis of religion is encouraged, the whole country, which is already under class and social conflicts due to various divisive forces, will further face division on the basis of religious diversities. Such claims to minority status basis on religion would increase in the fond hope of various sections of people getting special protection, privileges and treatment as part of the constitutional guarantee. Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of our constitutional democracy.”
Karnataka chief minister Siddaramiah appears to have volunteered to prove the court right by attempting to create new religious minorities by separating Veerashaivas from Lingayats — together they are now Hindus. If the CM succeeds it will mark a beginning of more divisions within Hindus — the Hindu society being a conglomeration of diverse clusters is capable of being divided into innumerable minority groups. India will then be a democracy of the minorities and for minorities. Muslims will become the most populous among innumerable minorities, and may be liable to being pushed out of the pack.
Can the State — including the Centre — create a new “minority” acceptable as such to the Constitution of India? Except in Articles 29 and 30, the expression “minorities” has not been used anywhere else in the Constitution. The normal rule of interpretation tells us that unless otherwise provided, the “minorities” for whom special provision was made were those who were minorities when the Constitution came into force — not those to be fabricated in future. For example, a state has no power to create a new caste or permit a citizen to opt for another caste. Scheduled Castes and Tribes are notified on the basis of existing castes. A government can only recognise a caste or minority as prevalent — it cannot create a new minority by breaking an existing religion or group into smaller pieces.
The laws — both state and Central — providing for the setting up of minorities commissions empower the authorities only to notify the minorities from among the existing groups, not to devise new ones.
One Bal Patil petitioned the Bombay high court seeking an order directing the Central government to notify “Jains” as “minority” under the National Commission on Minorities Act. The high court refused relief. The appeal filed before the Supreme Court was decided following the 11-judge-bench verdict in the T.M.A. Pai case (2002). The court refused to issue the mandamus sought, “on the basis of the claim of some members of the Jain community, which is opposed by another section of the same community”. Similar is the position in Karnataka — the Veerashaiva Maha Sabha asserts they and Lingayats are one community — and do not mind if the community as a whole is taken out of the “Hindus”.
The court in the Bal Patil case warned the minorities commissions against encouraging claims by different communities for being added to the list of minorities, instead they should help create conditions where the list of minorities is gradually done away with.
Apart from the broad principle that a secular state is not concerned with the affairs of any religion, all governments, both at the state and the Centre, have to function as dictated by the Constitution. Accordingly, the Legislative Assemblies and Parliament are authorised to make laws in respect of specified subject matters, and without offending the other provisions of the supreme law. Dealing with any religious matter, like separating Veerashaivas from Lingayats or vice versa, is not a subject for legislation by a state. The executive powers of the governments are co-extensive with their lawmaking powers and generally derived from the laws made.
Political gimmicks have no long-term goals. People are expected to forget, and they do. But the poison injected endures. Karnataka’s action in proclaiming a flag of its own may also be a stunt, but it’s a harmless one. That flag is just another piece of cloth or paper — with no sanctity, unlike the national flag, which is protected under parliamentary laws, and any insult to it is punishable. Perhaps the chief minister will declare some Kannada song as the Karnataka anthem as the next instalment.
The right conferred by Article 30 of the Constitution is to establish and administer educational institutions of their choice. It does not promise any other special treatment. The Representation of the People Act 1950 does not make any provision granting special concessions to minorities, unlike in the case of Scheduled Castes and Scheduled Tribes — obviously as such a provision, if made, will be unconstitutional.
What then is the attraction in the chief minister’s carrot? And for whom is the attraction? For ordinary members of the community it makes no difference whether they belong to a minority or not.
Among communities seeking minority status in Karnataka, there are many institutions that run educational institutions and want to expand. Imparting technical education, as is well known, is a big business. Article 30 provides greater autonomy to minority institutions; it also provides better protection to them from governmental interference. That explains the charm. In retrospect, one wonders whether our Supreme Court committed an error in holding repeatedly that minorities’ institutions, in order to deserve the shield of Article 30, need not restrict their curriculum to matters peculiar to their religious or linguistic groups — the institutions can impart education on any subject of their choice. As a result, medical colleges established by minorities are governed by one set of softer laws while those set up by others are subject to harsher ones. If this was not the case, the Karnataka CM would have chosen some other stunt.
