2 Minorities – The Problems Of Definition

Dr. Kadloor Savitri

Abstract

This module attempts to discuss the problem of defining the term minority at the international and national level while providing a broad survey of efforts made in this direction and the available definitions to date. It also highlights the problems encountered in the available definitions as also the fact that lack of a universally agreed, acceptable definition has hindered the evolution of a systematic framework for the protection of minorities. Answers to Self-check exercises are given at the end of the module.

1. Introduction

Whenever we attempt to understand and approach rights of a particular group, say women, children, minorities or migrant workers, the first hurdle that one encounters is one of defining who or what constitutes that group. Definition of a group enables us to draw boundaries and delimit the variables whose characteristics, needs, problems and possible solutions can be identified and assessed. A definition of a group also helps in unscrambling that group from other similar or competing groups vying for space and attention in planning and program implementation in a society. In other words, a concise definition brings a clearer, unambiguous comprehension of the group to the fore. It is, therefore, imperative at the outset to attempt a definition of who, or what, makes a minority group as such before looking into other aspects of minorities. However, much as it may seem essential to define the term minority for the benefit of our understanding, it is also to be noted that a universally acceptable, legally binding, cogent definition of the term minority has eluded the academics and legal practitioners so far. Instead, what we have is a widely accepted academic definition along with a cluster of some less widely recognized but important definitions of the term ‘minority’. In the following section, we will discuss the various existing definitions, their shortcomings and criticisms, and, the reasons for continuing difficulties encountered in arriving at a universally accepted working definition of the term minority in general.

2. Efforts towards formulating a Definition

One persisting problem in the international protection of minority rights has been the lack of a universally accepted definition of what constitutes a ‘minority’. Several attempts have been made since the establishment of the United Nations to secure a working definition of the term but on each of the occasions when such efforts were embarked on, member states have expressed divided opinions on the matter. This lack of unanimity over definition partly emanates from diverse historical experiences and prevalent minority situations shared by the member states. The reluctance of member states to generally accord distinctive group status to minorities stems from the innate fear that this would encourage them to acquire a distinct juridical personality which, in turn, has the potential to stoke their aspiration for self-determination. Many member states argue that a collective notion of minorities as a group and its legal, normative recognition has the potential of leading to disintegration of the states in the long run. It also hinders the process of nation-building as it carries the prospect of demand and political mobilization for self determination based on distinct identity. The Latin American states have argued that the problem of minority groups is specific to the European continent and that the same yardstick cannot be applied to them. Furthermore, most countries in the Latin American region have been historically composed of immigrant communities and any recognition of minority identity would potentially lead to fissures in the nation-building project. The problem of defining minority gets compounded by the fact that it is ‘definable through an endless combination of interacting variables like religion, language, ethnicity, race, culture, physical characteristics and a variety of other traits’.

2.1 Definition given by PCIJ

Some efforts were made by the Permanent Court of International Justice during the inter-War period to define the term minority in Greco-Bulgarian case relating to the emigration of the minority communities. When the question of definition came up for consideration, the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities had the PCIJ definition before it. The advisory opinion of PCIJ defined a community (minority) as:

[A] group of persons living in a given country or locality, having a race, religion, language and traditions of their own and united by this identity of race, religion, language and traditions, in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, ensuring the instruction and upbringing of their children in accordance with the spirit and traditions of their race and mutually assisting one another.

This definition was broad in terms of including common traditions as one of the grounds for recognizing a minority community in addition to education and upbringing of children in accordance with those traditions. It included both the objective criteria (race, religion and language) and the subjective criterion (sentiment of solidarity and mutual assistance). However, what is not apparent in this definition is the criterion of numerical inferiority and the position of such a group in a given country or locality (in terms of dominance or non-dominance). One must note here that this definition does not bind minorities to a specific nationality; they could be considered minorities in relation to a locality in which they reside.

However, this definition was not acceptable to some members of the UN Sub-Commission. Hence, the Sub-Commission appointed Special Rapporteur Francesco Capotorti in 1971 with a specific mandate to analyze the concept of minority and come up with an acceptable definition. Capotorti, in his reportiii submitted to the UN, conducted a thorough survey of various minority groups existing in the world and suggested a definition based on it. Thus, the UN had two definitions to start with on the question of minority; the first one provided by the PCIJ (referred to above), and the other commissioned from Capotorti. The latter suggested a definition of minority based on an extensive study of the available case law of the PCIJ, opinions and suggestions forwarded by the governments, consultations and discussions held within the Sub-Commission.

2.2 Definition given by Francesco Capotorti

Francesco Capotorti defined a minority as:

[a]   group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members − being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.

The above-mentioned definition, like the PCIJ definition discussed above, approaches ‘minority’ from both objective and subjective criteria. Numerical inferiority, non-dominance, and common ethnic, religious and linguistic characteristics would constitute the objective criteria verifiable by factual and empirical methods. The element of solidarity of a group towards preserving its common culture, traditions, religion or language implies an awareness of, and a willingness to preserve, the characteristic distinctions from the rest of the population and thus constitutes the subjective element. This subjective element of the willingness to preserve one’s distinctive characteristics distinguishes a minority from those groups willing to integrate with the majority. This definition, over the years, has received a great deal of academic support and recognition as the most widely accepted definition. For instance, Thornberry, in support of the definition, considers it ‘realistic’ in comparison to ‘[b]roader and more restrictive approaches’ available on the subject.

2.2.1 Problems in Capotorti’s Definition

Capotorti’s definition has been subjected to criticism in equal measure. Fortman considers Capotorti’s idea of numerical inferiority as an ‘arithmetic nonsense’ that neglects the problem of ‘abuse of dominant positions that are based on exclusive collective identities’. Mere numerical inferiority does not help in determining a group as a minority because there is no determinate, absolute or fixed size of a group that can be laid as a qualifying benchmark for the aspiring minority groups to achieve. The numerical strength must be sufficient to enable the group to maintain its cultural characteristics. Too small a number will not qualify the group for minority status. The problem with numerical criteria is that it cuts both ways; oftentimes, small collective identities are orchestrated by groups in support of achieving exclusivity and seeking bargaining power in a society. On the other hand, the same numerical principle might work against the interests of a group in cases where they are numerically too small to be counted thus. Moreover, numerical strength in itself has less bearing on the position in power sharing arrangement; exclusion from power is more a result of unequal and undemocratic arrangement based on notions of superiority and competence. Therefore, ‘to put in place an absolute principle that in order to be recognized as a minority, an entity must necessarily be “numerically inferior” places an unnecessarily heavy burden on the group… (and) cannot be treated in such a restrictive manner… minorities are possibly undermined not so much by their weakness in numbers, but by their exclusion from power’. Numerical criteria employed by Capotorti, potentially presents greater confusion in multi-minority states ‘where no single group forms an ascertainable majority’.

Secondly, Capotorti’s insistence on ‘nationals of the State’ has invited criticism that it renders protection of minority rights dependent upon nationality excluding those non- national minorities who are not recognized by the state. This provides leverage to the State to derecognize (exclude from citizenship) potential minority groups and declare that there are no minorities in the State requiring protection. It unduly impinges the status and recognition as a minority on territoriality and the right of citizenship, thus adding another ground of exclusion in addition to that of exclusion from power. During the inter-War period, the Polish Treaty was considered as an example to emulate because of its provision allowing the minorities to acquire and hold citizenship. This provision effectively diluted the tactical ploy of states to deny protection to those who did not qualify to be nationals. In the context of ‘universal human rights for all without any distinction’ of any kind, if minority rights are equated with human rights, the artificial categorization of potential client population between nationals and non-nationals does not hold ground. Some of the exclusive documents related to minorities such as the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, and Council of Europe’s Framework Convention for the Protection of National Minorities (1995) have used the term ‘National’ in their document that has enabled ‘some States with the opportunity to claim a limitation on the scope of minority status’.vii The case of Baha’i community members in Iran is the most glaring example of non-recognition by the State in order to dismember, persecute, and discriminate against a minority community. Since Iran is an Islamic state, it refuses to recognize a community within its territory that does not believe in Islam as its faith.

Therefore, followers of Baha’ faith are minorities by will rendered as non-nationals by force as a result of non-recognition by the State, a form of religious determinism enforced by Iran.

Thirdly, there is the problem of ‘reversed’ minorities. Reversed minorities are those groups that display the characteristics of a minority but are different from minorities in one fundamental way: they are in a dominant position compared to the rest of the population of the state. There are many examples where minority groups based on ethnic, religious, linguistic or sectarian differences wield power and rule over a majority community. It would be difficult to apply Capotorti’s definition in case of reversed minorities such as to the situation in South Africa during the apartheid regime where the whites in South Africa constituted a ‘reversed’ minority, a phrase that exemplified numerically inferior but dominant position of whites in the South African society.

Lastly, Capotorti fails to take note of the distinction between voluntary and involuntary minority groups. Not all minority groups are minorities by will. The involuntary minority groups may not show interest in preserving the specific characteristics; rather, they may wish to integrate into the larger society with only a guarantee of non-discrimination from the State. For such minority groups, policies aimed towards prevention of discrimination are more relevant and more keenly anticipated than protection as minorities. The example of Kurds in Turkey is a case in point. The Kurds, while demanding autonomy and rights for their group, have generally preferred to receive education in Turkish language to be able to improve the prospect for employment or higher education based on the principle of non-discrimination. Their sense of solidarity to promote Kurdish language and preserve their culture remains restricted to interactions within the group and does not extend to public domain. Although there has been a demand for secession from Turkey by the Kurds in the past, it appears to have been diluted in recent years to be replaced by a demand for greater autonomy and rights within Turkish state. In such situations, whatever are the reasons for weakening of the demand for secession or even autonomy, the principles of equality and non-discrimination remain fundamentally more relevant to the group than protection as minorities.

Then again, there are several instances where differences in ritualistic or operational elements followed by a sect of a religion have given rise to tensions between the religious leaders and the members of that particular sect sometimes leading to excommunication of the followers of the sect from claiming membership of religion. Consequently, if State recognizes the claims of the religious leaders, it transforms a sect into a minority community ‘by force’, against the will of the members of that sect. For instance, the Ahmadiyyas in Pakistan have maintained that they are ‘forced to renounce the core elements of their religious (Islam) values with criminal penalties being attached upon them… for calling themselves Muslims’. Such action on the part of the State compels individuals to embrace the membership of a minority group even when they do not aspire for it. Asbjorn Eide, Chairperson of the Working Group on Minorities, in his report calls such acts on the part of the State as ‘exercises in cultural determinism’. Groups such as Ahmadiyyas are ‘minorities by force’, a category that cannot be subsumed within or explained by the definition given by Capotorti.

2.3  Other Definitions

A slight variant of Capotorti’s definition was proposed by Jules Dechênes, the Canadian member of the UN Sub-Commission, during the course of the preparation of the Draft Declaration on Minorities in 1985. He defined minority as:

A group of citizens of a State, constituting a numerical minority and in a non-dominant position in that State, endowed with ethnic, religious or linguistic characteristics which differ from those of the majority of the population, having a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive and whose aim is to achieve equality with the majority in fact and in law.

No consensus could emerge on this definition either. Dechênes did away with Capotorti’s proportionate expression ‘numerically inferior to the rest of the population of state’ to instead include a finite representation of ‘constituting numerical minority’. However, one must note here that Dechênes also does not impose any absolute number to determine the minority status of a group. This definition also excludes the term ‘inferior’ found in Capotorti’s definition, ‘even though in Capotorti it clearly refers to a number and is not a cultural value-judgement. Dechênes prefers ‘citizens’ to ‘nationals’ (of a State), dispelling potential criticism on the vagueness of the Capotorti term’ while retaining all the attendant problems faced by minorities dismembered by their own state. Dechênes does not accord any importance to sense of solidarity to preserve identity as an essential element of minority groups. Instead, the definition alludes only to ‘a sense of solidarity with one another, motivated, if only implicitly, by a collective will to survive (emphasis added)’. For Dechênes, the elemental drive of a minority group is to ‘achieve equality with the majority in fact and in law’ and a sense of survival, not the preservation of identity. In case of treatment of minorities by a state, the implications of employing the term ‘citizens’ instead of ‘nationals’ does not make a huge difference to their situation. A comparison of above mentioned definitions clearly brings out two universally prevalent shared attributes of identity-based minorities as a group of people with enduring, cherished identity and, their vulnerability derived from non-dominance in terms of power and number to the rest of the population of the state. However, these definitions and shared attributes exclude oppressed groups like blacks in the US and Dalits in India who have been at the receiving end owing to their racial origin and socially-ordained hierarchical order. For blacks and dalits, the elemental drive is not the preservation of externally imposed (inferior) identity on them by an unjust sense of cultural and social superiority; rather, it is the desire to achieve equality of status and opportunity as a matter of right to counter all claims of inherent superiority of dominant races and cultures. Their fight is against the exclusionary policies of the state based on unequal racial and social status, not a resistance to legal and social inclusion with other groups to claim access to opportunities on an equal footing.

The problem of definition gets more complicated with the consideration of the only legally binding provision for minorities existing at the international level in the form of article 27 of the International Covenant on Civil and Political Rights (ICCPR). The said article provides that:

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 practice their own religion, or to use their own language.

This definition brings into question the notion of culture, cultural characteristics and cultural context in which persons wish to exercise their choice. While determining a definition of minority, it adds to an already difficult problem as to which culture or cultural rights be understood as minority rights requiring protection.

In view of these difficulties, some have argued that it is probably desirable to look for a way to substitute the need for a globally acceptable definition. The UN Rapproteur Asbjørn Eide also voices similar opinion in his report. But there are others who argue in favour of the desirability of devising a definition that helps in standardizing the vocabulary and a better understanding of the terms used in communication among member countries across cultural, linguistic or geographical boundaries. Moreover, a working definition allows the minority groups to ascertain their legal position and rights vis-a-vis the larger community and the state; it also effectively takes away the power of the states to deny the existence of or recognition to minority groups within their territory.

3. Definition of Minority in India

In India, the term ‘minority’ has not been defined in the Constitution or its geographical, numerical and cultural specifications discussed in relation to any of the provisions. The Constituent Assembly did not take up the definition of minority while deliberating on Article 23 of the Draft Constitution which now corresponds to Articles 29 and 30 guaranteeing educational and cultural rights to minorities under Chapter III on Fundamental Rights. In fact, the original draft of Article 23 submitted by the Sub-Committee on Fundamental Rights did not contain any reference to the term minority or the right which now appears in the form of Article 30(1); it was later incorporated via a letter submitted to the Minorities Sub-Committee by K M Munshi who meant national minorities existing in India at that time. Hence, the term minority appears in Article 30(1) that allows a minority community based on religion or language to establish and administer educational institutions of their choice. The founding fathers of the Constitution seemed to have left the question of who or what constitutes a ‘minority’ in a strictly technical sense to be deliberated upon later by the judiciary. The Constituent Assembly Debates, instead, revolved around the nature of political safeguards (rights of representation) to be guaranteed to minorities.

The Supreme Court of India detailed the demographic aspect minority in the T.M.A. Pai Foundation & Others vs. the State of Karnataka and Ors. The Supreme Court’s eleven member bench gave primary views on minorities wherein it said that a minority, whether religious or linguistic, was determinable only by reference to population of a State and not by taking into consideration the population of the country as a whole. “It ruled that as the reorganisation of the States in India had been effected on linguistic lines, for the purpose of determining a minority, the unit would be the State and not the whole of India. Thus, religious and linguistic minorities, who have been placed on a par in Article 30, have to be considered in terms of the State concerned”. And such a community should be numerically less than 50 percent of the population of that State. Hence, the application of this principle to religious minority groups leads Sikhism in Punjab, Islam in Jammu and Kashmir and Christianity in Nagaland to be rendered as the majority religions. To benefit from Article 30(1) of the Indian Constitution that secures to religious and linguistic minorities a right to establish and administer educational institutions of their choice, a community must show that (a) it is a religious/ linguistic minority, and (b) that the institution was established by it. The rationale underlying Supreme Court’s judgment is that the reorganization of States in India on linguistic lines necessitates that State ‘be treated as the basic unit for determination of minorities’. However, this rationale does not hold ground in case of the religious minorities who are scattered all over the country and whose religious identity is not bound to a single State or language. For instance, Muslims living in Kerala and West Bengal are religious minorities irrespective of the State they live in. And hence, they must be conceived as minorities in relation to the population of the entire country. KM Munshi too had used the term in respect of ‘National Minorities’ during the drafting of the Constitution. ‘Such a State-specific conception of minorities will result in distortions in minority rights’.

The judgment of the Supreme Court of India referred to above found favour with the Union Government at the Centre considering a Constitutional amendment in 2004 to elevate the statutory National Commission of Minorities (NCM) to a Constitutional Commission and to include state wise minorities within the purview of the Commission’s jurisdiction in addition to the existing list of five religious minorities. However, it is felt that such a conception of minority is not consistent with the spirit of the Constitution, which envisaged ‘national minorities’ and not regional minorities within a State, and promotes a ‘restrictive conception of minority rights’.

It must be noted here that the Supreme Court verdict only details the demographic aspect of a minority group and does not provide a comprehensive definition of the term minority. In order to understand and define a minority group, mere numerical or demographic indicators will not be adequate. It will have to go beyond the quantifiable variables, to assess the status of minorities in terms of internationally accepted principles of non-dominance, disadvantage, need for equality of access, and ensuring non-discrimination.

Summary

The discussion in the above pages is briefly summarized here for the benefit of the readers. There is no universally accepted definition of what constitutes a minority. The lack of unanimity stems from differing historical and cultural experiences of different countries. Some efforts have been made since the inter-War period to define minority. Most prominent among these efforts have been the definitions given by the PCIJ, Francesco Capotorti and Jules Dechênes. Of these, the definition given by Capotorti is considered the most widely acknowledged definition. However, it does have its problems because he does not take into account the case of reversed minorities, minorities not receiving state recognition, and minorities by force. In India too, we do not have a definition of minority, as the term escaped definition during the Constituent Assembly Debates. Subsequently, the Supreme Court of India has given a restricted definition in terms of the geographical boundaries and demographical delimitation. A comprehensive definition of minority still eludes us. At the international level, some have argued in favour of abandoning the quest for a universally agreed definition.

Reference

1. Rehman, Javaid. The Weaknesses in the International Protection of Minority Rights. The Hague: Kluwer Law International, 2000
2. PCIJ Advisory Opinion of 31 July 1930, Series B, No. 17: 21.
3. Capotorti, Francesco. Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities. Special Rapporteur of the UN Sub-Commission on the Prevention of Discrimination and protection of Minorities. UN Doc., E/CN.4/Sub.2/384/Rev.1 UN Sales No. E.78.XIV.1(1979)
4. Thornberry, Patrick. International Law and the Rights of Minorities. Oxford: Clarendon Press, 1991
5. Fortman, Bas de Gaay. “Minority Rights: A Major Misconception?”  Human Rights Quarterly. 33 (2011): 276-77.
6. Ermacora, Felix. ‘The Protection of Minorities before the United Nations’, Recuil des Cours de l’Academie de Droit International. 182 (1983): 284.
7. Dechênes, Jules. Proposal Concerning a Definition of the term ‘Minority’, submitted to UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/1985/31.
8. Åkermark, Athanasia Spiliopoulous. Justifications of Minority Protection in International Law. The Hague: Kluwer Law International, 1997