Minorities-The Problem of definition

Dr. Kadloor Savitri, Associate Professor, Department of Political Science, JMI, New Delhi.

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.

Self-check exercise 1

1.1. Why do we need to define a group?

1.2. Is there a definition of the term minority?

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2. Efforts towards formulating a Definition
One persisting problem in the international protection of minority rights has been the lack
of a universally accepteddefinition 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’.1
2.1Definition 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.2

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

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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 report3 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.4
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’.5 Mere
numerical inferiority does not help in determining a group as a minority because there is no

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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’.6
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’.7 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’i faith are minorities by

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willrendered 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 regimewherethe whites in South Africa constituteda ‘reversed’
minority,8 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.9 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 toexcommunication of the
followers of the sect fromclaiming 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’.10 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. Asbjørn Eide, Chairperson of the Working Group on

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Minorities, in his report calls such acts on the part of the State as ‘exercises in cultural
determinism’.11 Groups such as Ahmadiyyas are ‘minorities by force’, a category that cannot
be subsumed within or explained by the definition given by Capotorti.

Self-check exercise 2

2.1 What are the arguments extended by the Member states against recognition of minority
groups?
2.2 What were the main features of the definitions given by PCIJ and Francesco Capotorti?
2.3 What are the main problems in the definition put forth by Capotorti?
2.4 Who is a ‘reversed minority’ and ‘minorities by force’? Give one example each.

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.12

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 Dechênesalso 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’,13 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)’. ForDechênes, 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

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withenduring, cherished identity and, theirvulnerability 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 ofexternallyimposed (inferior)
identity on them by anunjustsense 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 opportunitieson 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.14 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.

Self-check exercise 3

3.1 What are the main features of Dechênes’ definition?

3.2 How are the concerns of Blacks and Dalits different from other minority groups?
3.3 Who proposed that it is desirable to substitute the quest for a definition of minority?

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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 uponlaterby 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 detailedthe demographic aspect minority in the T.M.A. Pai
Foundation & Others vs. the State of Karnataka and Ors.15 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”.16And 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
Constitutionthat 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 Indiaon 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.17 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

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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’.18

Self-check exercise 4

4.1 Do we have a definition of minority in India?

4.2 How does the Supreme Court of India define a minority group?
4.3 Do you agree with that definition of minority?

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

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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.

Answers to Self-check exercises

1.1 Definition of a group enables us to draw boundaries and helps in unscrambling that
group from other similar or competing groups vying for space and attention in planning
and program implementation in a society. A concise definition brings out a clearer,
unambiguous comprehension of a group.

1.2 Auniversally acceptable, legally binding, cogent definition of the term minority has
eluded so far.Instead, what we have is a widely accepted academic definition along with
a cluster of some important definitions of the term ‘minority’.

2.1 It would encourage them to acquire a distinct juridical personality which, in turn, has the
potential to stoke their aspiration for self-determination and lead to disintegration.It also
hinders the process of nation-building.

2.2 Four objective and subjective elements: Numerically inferior, non-dominant position,
having common identity based on ethnicity, language or religion, and a sentiment of
solidarity to preserve their culture, language, or religion.

2.3 Numerical inferiority criteria can be problematic. Secondly, non-nationals are not
considered as minorities that privileges position of a state over its minorities. Thirdly,
the problem of reversed minorities and minorities by force is not addressed.

2.4 ‘Reversed Minority’ is a minority that is in dominant position while being numerically
inferior, e.g., the Whites in South Africa. ‘Minorities by Force’ are those who do not
wish to be treated separately; rather, they wish to secure principle of equality and non-
discrimination with the rest of the population, e.g., the Ahmadiyyas in Pakistan

3.1 Definition given by Dechênesdoes not refer to solidarity to preserve identity; instead it
talks of collective will to survive. It talks of minorities ‘constituting a numerical
minority’ without any finite expression. Minorities aim to achieve equality with majority
in fact and in law.

3.2 Their concernsare to achieve equality of status and opportunity as a matter of right, to
counter claims racial and cultural superiority, fight against the exclusionary policies of
the state.

3.3 The UN Rapproteur Asbjørn Eide.

4.1 No.

4.2 The Supreme Court of India defines minority groups in relation to the population of the
State and not the country as a whole.

4.3 Give reasons and develop arguments in support of your answer to this question.

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 REFERENCES
1
Rehman, Javaid. The Weaknesses in the International Protection of MinorityRights. The
Hague: Kluwer Law International, 2000, p.14.
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, p. 6.
5
Fortman, Bas de Gaay.“Minority Rights: A Major Misconception?”Human Rights Quarterly.
33 (2011): 276-77.
6
Rehman, op.cit.pp. 13-14.
7
Ibid. p. 17.
8
Ermacora, Felix. ‘The Protection of Minorities before the United Nations’, Recuil des Cours
de l’Academie de Droit International. 182 (1983): 284.
9
Thornberry, op.cit., 9-10.
10
Rehman, op.cit.p. 18.
11
Eide cited in ibid.
12
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.
13
Thornberry, op. cit., p. 7.
14
Cited in Åkermark, Athanasia Spiliopoulous.Justifications of Minority Protection
inInternational Law. The Hague: Kluwer Law International, 1997, p. 86.
15
TMA Pai Foundation and Orsvs. State of Karnatakaand Ors (2002), 8 SCC 481
16
Hasan, Zoya.‘Defining India’s minorities’. The Hindu, 14 July 2007.
17
Ibid.
18
Ibid.

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