Are Minority Commission Acts a Means of Divide & Rule? Ashwini Upadhyay seems to think minority commission acts are a policy of divide and rule, CJP busts this claim and reveals how Upadhyay contradicts his own statement

26, May 2023 | CJP Team

Often touted as a means of creating social divide, minority provisions in fact have been observed to do the opposite! Across the world they are deployed by countries as means of uplifting the marginalised, ensuring fundamental rights are met, and social harmony is maintained! 

This article is the first of a four-part series of Hate-Busters by CJP. It dives into alarmist claims made by far-right politicians, fact-checks, and presents them to you. Part Four of the series examines and debunks the contents spoken by Supreme Court Advocate and former BJP Delhi Spokesperson Ashwini Upadhyay, who has been claiming that special measures for minorities as a policy akin to the British colonial government’s divide-and-rule policy. The Supreme Court has rebuked the advocate for repeated attempts to ‘target Muslims’ amidst other prejudice-laced legal measures.  While these statements may be attributed to Upadhyay, the individual, they are but stray examples of an ecosystem of hate, generated, created, and sustained by money, right wing organisational power all coalescing into bedrock of wider party propaganda. Once generated in a speech, book or an ill-conceived PIL in the Supreme Court of India (remember the SC in earlier times dismissed his efforts with sharp rebukes six times!), they are unstoppable, take on a life off their own outside of the television, internet, and instant messaging applications. Their goal is clear, it is to further entrench hate in society.

 You may find part 1, 2, 3 of the series here, here, and here

Claim: Constitutional Provisions for Religious Minorities are a Method of ‘Divide and Rule’ Policy 

In 2017, Upadhyay filed a PIL in the Supreme Court against the constitutional validity of the National Commission for Minority Educational and Institutions Act 2004 and the National Commission for Minorities Act 1992. He asserts that the Government should notify linguistic and religious majorities in districts and states where Hindus are in minority.

 Furthermore, in a television news debate titled “Is India Moving Towards Partition” hosted by the editor-in-chief of Capital TV, Dr Manish Kumar in conversation with Ashwini Upadhyay on Capital TV. On the show, Supreme Court Advocate, and former Delhi BJP spokesperson Ashwini Upadhyay questioned the need for religious minority provisions in India, alleging that the Indian National Congress instituted the National Commission for Minority Educational and Institutions Act 2004 and the National Commission for Minorities Act 1992. as a divide-and-rule policy similar to that by the British. Upadhyay questioned where Muslims were not receiving education and development prior to the setting up of these Commissions. Similar claims have been made by constitutional authorities in consonance with Upadhyay’s views here

Busted: Special measures for minorities and other disadvantaged groups have been given by India since 1947. India has always espoused the cause of special measures internationally. It has held with pride its successful model of policies and principles for a plural society in the UN and beyond. For exponents of a certain ideology that is itself exclusivist and anti-constitutional, to liken these modern policy measures to the colonial policy of divide and rule is both ironic but not surprising.

CJP is dedicated to finding and bringing to light instances of Hate Speech, so that the bigots propagating these venomous ideas can be unmasked and brought to justice. To learn more about our campaign against hate speech, please become a member. To support our initiatives, please donate now!

Media houses and news channels with celebrity hosts have often been known to give sensationalist spins on misleading information in order to garner an increase in viewership as well as to please the larger parties in play – namely saffron-oriented corporate sponsorship. These are numerous in number and continue to keep going as they remain on the side of capital, muscle, and power. CJP has been engaged in trying to curb hate speech by taking legal action against such channels – CJP has also filed complaint in the NBSA against the notorious Sudarshan News for showcasing inflammatory communally charged content.

What is a minority? Who can be one? Let’s hear what bodies like the Supreme Court and the UN have to say?

The UNHRC declares a minority to be those groups that are ‘non-dominant groups in a population which wish to preserve stable ethnic, religious and linguistic traditions’. Does this definition apply at all to Hindus within India, in some or more states as has been shrilly alleged by Upadhyay and echoed by electronic media channels? Further, are the religious minorities safe, secure, and represented in all fields as has been consistently claimed by first Upadhyay and then union finance minister Nirmala Sitharaman? CJP has already fact-checked and debunked the latter’s claim here, Upadhyay’s claim similarly has no truth.

Upadhyay’s claims, seen in conjunction with his other claims citing fictitious numbers, is just another means of fear-mongering about “growth of Muslim populations in India” and through this, generating animosity towards them. The SC has rebuked him sharply in the past for this.

–It is the Indian Constitution that makes provisions for minorities to open their educational and religious institutions as a form of safeguard for them to protect their ways of life. 

–The union government set up the National Commission of Minorities as a statutory body under National Commission for Minorities Act in 1992, under which Christians, Muslims, Zoroastrians (Parsis), Sikhs, Buddhists and Jains have been notified as religious minority communities by the government.

–Minority bodies also serve as authorities whom aggrieved community members may approach to monitor rates of representation, discrimination, check abuse and safeguard and protect their interests. 

–Affirmative action, positive discrimination or compensatory or distributary justice is a concept known to countries across the globe. 

–In 1998, the United Nations’ Economic and Social Council directed the creation of a sub commission on affirmative action and how nation-states across the world have incorporated it. It observed that countries across the world have identified certain groups of people as beneficiaries of affirmative action. The selection criterion is that such a group must have suffered or is suffering from one or many social disadvantages. 

Do other countries offer minorities any safeguards and provisions?

The United States of America has categorised American Natives, Alaskan Natives, Black people, Asian people etc., as beneficiaries of such policies. In addition, South Africa includes Indians of South African origin, women, and disabled people in the category. People across the world are also demanding affirmative action from the government in various cases. For instance, people in Malaysia are demanding special measures for Chinese as well as Indian labourers who work as farmhands, rubber tappers, miners etc., not only because these workers suffer from abject poverty but also because they face extensive intraracial discrimination in Malay society.

India’s policies on minorities and marginalised a model for the world

In the international arena, India has historically strongly endorsed the validity and need for special measures, often highlighting the provisions its own constitution makes for minorities, scheduled tribes, and scheduled castes. India is also a signatory of the International Convention for Elimination of All Forms of Racial Discrimination. The mention of ‘special measures’ for disadvantaged people was made for the very first time in international law by India during the drafting of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which was adopted in 1966. India proposed the definition of “special measures for the advancement of any socially and educationally backward sections of the society shall not be construed as distinctions under this article.” India argued that treating everyone the same, with indiscriminate equality, would be unjust for social groups that have experienced socio-economic backwardness. India pointed out, setting a model for the world, that the special measures were crucial for a heterogeneous society. It is crucial to note that India proposed special measures as the key for a heterogeneous society to exist. For this vision, India has been perceived as a modern, forward-looking democracy in the developing world.

This advocacy and attendant national policy measures are not, as Upadhyay belligerently claims, a means of ‘divide rule’, nor are they the result of actions by any one party or organisation, but rather a result of the Indian constitutional mandate and values.

Why do we need minority provisions?

Special provisions have hitherto existed and further extended and deepened, in India, to right many social wrongs done to disempowered groups historically. It is hence a matter of great irony that a supreme court advocate and former BJP spokesperson is taking a public position in direct contrast to what the Indian Republic stands for.  The very institution of these principled measures, not “benefits”, is aimed at targeting social wrongs and ills and inculcating feelings of fraternity between the less advantaged and the more privileged; such measures, after the birth of the Constitutional Republic and the inception of the Indian nation-state, never been aimed or meant to be a means of creating discord in society. 

Source: Kansas State Collegium 

According to the UN, any group or community that is socially, politically, economically inferior, and non dominant in the population is a minority. This means that it is not just the ‘population’ that determines who is a minority. 


It was in 1947 that the Constitutional Assembly unanimously adopted a resolution that special safeguards would be adopted for minorities, depressed backward classes and tribal areas of the nation. Minorities in India have the provision of having their cultural and educational rights protected. Since they are smaller in number and possess less social power, they are subjected to the protection of their cultural practices and beliefs.


It is safe to say that the Constituent Assembly’s institution of safeguards for minorities was prescient. For today, India’s largest religious minority, Muslims’ representation is at an all-time low – in parliament, within institutes of higher education, and in education in general, all signs of disenfranchisement and social backwardness.

 It was to further the constitutional spirit, backed by fundamental rights, that the National Commission for Minorities was established as a statutory body in 1992. It defines a minority based on who the State decides as a minority. The Government of India has declared six religions, namely, Muslims, Christians, Sikhs, Buddhists, Parsis and Jain (included in 2014), as religious minorities in India. They make up about 20 % of our population.

What is noteworthy amidst this is that Ashwini Upadhyay’s statements on Capital TV contradict the PIL he has filed in court. If he thinks the National Commission for Minority Educational and Institutions Act 2004 and the National Commission for Minorities Act 1992 is a policy of ‘divide and rule’, it is curious why he asks for provisions under the same for Hindus in areas where they are a minority. 

Who is Ashwini Upadhyay? 

Ashwini Upadhyay has formerly also been spokesperson for the Delhi unit of the Bharatiya Janata Party (BJP). However, more than his political prowess, he is known for his voracious pattern of filing PILs (Public Interest Litigation) in the Supreme Court on matters mainly pertaining to communal issues. Upadhyay has filed PILs various PILs in India’s apex court, ranging from petitions to grant minority status to Hindus to demanding the name changes of several places named after Mughal rulers. According to a 2018 report by the New Indian Express, Upadhyaya holds a record of filing 50 PILs in 5 years. Many of his claims, especially on his social media, often seem to reflect a decided bias against Muslims and Christians. These claims, four of which have been debunked by CJP, often veer on the edge of misinformation and propaganda. 

Here’s a detailed profile of the man himself

Who is Ashwini Upadhyay?

Hate needs to be busted both effectively and quickly. Widespread citizens involvement in stopping its spread is key.

Image courtesy: Biju Boro/AFP/Getty Images


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