- 10% quotas for Muslims and 5% for other minorities in government jobs and seats in educational institutions]
- Reservation up to 8.4% out of existing OBC quota of 27% for minorities
- SC reservation to Dalit converts.
- Will it be appropriate to examine the conditions of minorities only through the minimum aperture set through the dwindling efficacy of Art 29 & 30 without examining the social realities of the perceived insecurities of minorities?
- Is minority protection available only through so called appeasement policies of political parties and considering them as vote banks?
- Did the Constitution not provide adequate safeguards in restricting the SC status to Hindus and relegating Dalit converts to OBC status?
- Cow vigilantism, love jihads - are they disturbing trends or exaggerated accounts by the media?
- Sachar Committee report notes that Muslims have the largest percentage share of children in the age group of less than 10 years with 27 percent falling in this range as compared to the 23 per cent for the country as a whole. However, the current enrolment and continuation rates at elementary level (though picking up in recent years) are the lowest for the Muslims.
- Majority People's attitude vis a vis minorities in choosing neighbourhoods and in the manner of choice of tenants to be confined to their ‘own community’ or reluctance to invite them in social gatherings - Are they imaginary?(Mothering a Muslim child-Nazia Erum)
- Law criminalising Triple Talaq after Shayara Bano v Union of India (2017) 9 SCC 1 - Should it be seen only as personal law reform?
Concept of minorities relatively new
In a
country that believed in the precept of the whole world as a family, there was
no place for differential treatment of the peoples that populated the world to
be distinguished on the basis of race or religion. It is also the country that offered refuge to countless
persecuted communities, including the Jews and Zoroastrians as also the
religious groups who came to India on the avowed objective of proselytisation
but met with no resistance and instead given lands and other financial grants
to build places of worship having distinct rituals and gods; indeed, even if
the new churches and mosques were constructed after demolishing their own
temples, beyond a few murmurs, there was no organised resistance or
retaliations. Of course, we are no unique but there are other examples also,
such as, the fascinating account of a communication at the turn of the century to the UN Sub
Commission on the prevention of
discrimination and protection of minorities,
the Government of Thailand had stated that the concept of minorities
was unknown in that country. In Bhutan and Sikkim, the equivalent expression is an 'outsider' (Gyagar), but is a derisive
or contemptuous expression, that is used to denote even an Indian!
Emergence of minority rights through Human rights
jurisprudence
Minorities were
largely identified on the basis of language and religion because what gave
legitimacy to their difference from the
rest, viz., the majority, is the emotional content or perhaps, the deeply
personal quotient for identification of distinctness came only through these
two factors. Not even Hitler's fascist Nazi party saw Jews as minorities for
the atrocities committed on them. He did not mind the numerical strength or
otherwise of Jews; he just believed in the pure Aryan race and anti-Semitism
as justification enough for extermination of the Jews and Romani gypsies.
Democratisation process in governance and universal suffrage encouraged
practices of securing bulk votes and here minority groups were more easily
susceptible to manipulation than the majority.
The League of Nations' concerns of displaced immigrants and later UN
documents were largely responses to human rights violations of immigrants of
various nationalities. Large masses of people could not easily be lured to a
collective homogeneous conduct or support but exhibited paradoxically
sub-group mentalities and fissiparous proclivities. Indeed, the United Nations
did not have an exclusive document for minorities till as late as 2012. It was
only in 18th December 1992 that the UN Member States adopted unanimously the
Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, an acknowledgment that a gap existed in
minority rights protection. The Minority Rights
Declaration established that States have an obligation to acknowledge and
promote the rights of minorities to enjoy their own cultures and identities,
to profess and practice their own religions and use their own languages. The
Declaration ushered in a new era for minority rights. It sets essential
standards for protection and offers guidance to States as they seek to realise
the human rights of minorities. At the international level, the minorities
also had to be associated and identified with National and ethnic differences.
Constituent assembly’s concerns - political rights
and preservation of culture
For first time, Indian's lowest
caste known as "Untouchables" or "Depressed Classes" had
been identified as Scheduled Castes introduced by Colonial Government of India
in 1935. In the following year Colonial Government of India (Scheduled Castes)
Order 1935 specified, "No Indian Christian shall be deemed to be a member
of a Scheduled Caste." After India
got Independent from Colonial power, while framing Indian Constitution the
Presidential Order of Scheduled Castes and Scheduled Tribes Order 1950, the
Scheduled Caste Origins converted to any other faiths or religions different
from Hinduism has been left out in Para 3 of Article 341 . Partition in 1947 did play a crucial role in
shaping the discourse on the minority- majority question through religion. (As
per the National Minority Commission: Muslims, Christians, Buddhist, Sikhs and
Parsis have been notified as religious minority communities under section 2(c)
of National Minority Act, 1992). Minorities in the country are about 18.4% of
the total population of the country. During the divide and rule policy of the
British, the linguistic and religious differences were played up to the fore
to keep the society as a smouldering boiling pot. The price for freedom from
British hegemony was the vivisection of the country on the basis of religion
and creation of Pakistan. Soon after partition, the linguistic differences
became the basis for State re-organisation. Article 30, as it took shape guaranteeing, whether based on religion or language, right to establish and administer educational institutions of
their choice is but a myopic way of ameliorating the multifaceted problems confronting them. The restricted approach in the Constituent Assembly debates was because of several factors: The constituent assembly debates were led by, among other
persons, Ambedkar, Nehru and Patel. Each had a varying perception about how
the minority rights were to be dealt with because, each had a different world
view of what these differences meant. The objectives resolution moved by Nehru
on 22nd January exhorted that "adequate safeguards would be provided for
minorities, backward and tribal areas, and depressed and other backward
classes." An advisory committee under the chairmanship of Patel was
constituted and moving the resolution for constituting it, Govind Ballabh Pant
said, " Unless the minorities are fully satisfied, we cannot make
progress; we cannot even make peace in an undisturbed manner."
Ambedkar, Nehru and Patel
To
Ambedkar, the principal problem arose because within the Hindu community,
there was no equality. The Dalits were subjected to caste prejudices and
tyranny. The salvation existed in conversion of Dalits to other minority
religions. He wrote, " If you want freedom, you must change your
religion.”(BAWS, Vol 17, Part 3, pp 127-129).)
The caste system existed among Muslims and Christians also but
according to him, while caste system for Hindus has a religious sanction,
there is no such sanction in the essential tenets of religious faiths among
Muslims and Christians. Since he talked of the way of emancipation was only
through conversion, he did not direct his attention for making provision for
SCs who had converted to Christianity but who suffered from social exclusion
and economic deprivation. After India got Independent
from Colonial power, while framing Indian Constitution the Presidential Order
of Scheduled Castes and Scheduled Tribes Order 1950, the Scheduled Caste
Origins converted to any other faiths or religions different from Hinduism has
been left out in Para 3 of Article 341.
Nehru was a left
liberal to whom religion was wholly unimportant. His secular credentials won
the hearts of large sections of Hindus including the Dalits and almost all of
the minorities. Describing a moment on the eve of his death, Grenville Austin,
who was then a Research scholar and who had turned up at Teen Murti Bhavan,
where the body had been kept in state, when he saw Dr Syed Mahmud, a veteran
freedom fighter being accosted inside by Babu Jagjivan Ram, "This was
truly a scene symbolic of Nehru's India: a Muslim aided by an Untouchable
coming to the home of caste Hindu.”
Patel was the
Chairman of the Advisory Committee and
had a part in drafting of Article 29 and 30. Patel
resorted to bring equality to all and eradicate the concept of minorities. He
believed that such classification was brought about by the imperial rulers to
maintain balance between communities but the same had given birth to communal
differences. He said:
“It is not our intention to
commit the minorities to a particular position in a hurry. It is in the
interest of all to lay down real and genuine foundations of a secular state,
then nothing is better for the minorities than to trust the good-sense and sense
of fairness of the majority, and to place confidence in them. So also it is
for us who happen to be in a majority to think about what the minorities feel,
and how we in their position would feel if we were treated in the manner in
which they are treated. But in the long run, it would be in the interest of
all to forget that there is anything like majority or minority in this
country, and that in India there is only one community.”
Constitution limiting minority rights to
administration of Educational institutions
The Drafting Committee
which met on February 5 and 6 1948 formulated the various provisions relating
to minorities into ten Articles(292-301) and placed them in Part XIV under the
title ―Special Provisions Relating to Minorities. Reservation of seats in parliament
and the assemblies as well as in public appointments, which were originally
provided for, were however, dropped in
the aftermath of violence after the partition of the country and during the
debates of the Assembly. Sardar Patel, in his letter dated 11th May 1949 to
the President of CA mentioned of the ‘changed circumstances‘ for reviewing the
original recommendations of the Advisory Committee relating to minorities. He
found it inappropriate to have reservation of seats for religious minorities
which according to him led to a certain degree of separatism and to that
extent contrary to the conception of a secular democratic state. Originally,
Art 29(2) opened with the expression, " No minority whether based on
religion, community or language, shall be discriminated against in regard to
the admission of any person belonging to such minority into any educational
institution maintained by the state." When the draft was finalised, it
became " No citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds on
grounds only of religion, race, caste, language or any of them."
Ultimately the Constitution of India used the word ‘minority‘ or its plural
form in articles 29, 30, 350 A and 350 B but does not define it anywhere. The
practice and propagation of religion guaranteed under Art 25 was not
specifically addressed to minorities only but to all religious groups and
denominations, but the minorities used the provisions substantially to their
own benefit for conversion of SCs and STs. Discussions on personal law reforms
for minorities were broached but the subject was tucked away under Directive
Principles consigning it as requiring deliberation for bringing a Common Civil Code in 15 years.
Supreme Court’s approach in initial years
The courts and especially the Supreme Court believed that it
was the sentinel on the qui vive, literally upholding every challenge brought
to the courts that were perceived as State intervention against the minority
rights. Commenting on the judicial pronouncements, particularly of the Supreme
Court, on the topic ‘Minorities at Cross Roads’, Fali Nariman said at a
meeting in 2014 (when the Modi government took over the reins) at Delhi
detailing the down trend in judicial interpretations-from the high point of favouring the protection of minorities
and insulating them against any form of State intervention to gradually
sharing the public perception and State assessment that the autonomy enjoyed
by minority run institutions were engaging in profiteering and converting them
as business propositions. This, he
would say was not how the Supreme Court functioned for the first 50 years..
The support to Anglo-Indian Community in the manner of teaching only in
English medium even, if they admitted non-Anglo Indians in 1952 to striking
down in 1959 several provisions of the
controversial Kerala Education Bill in its advisory jurisdiction of
attempted take over by the Communist party led government of Christian schools
run in that State showed the acute concerns of the SC for the rights of
minorities under the danger of being trampled by the State. Justice S.R.Das
would conclude the judgment, “The genius of India has been able to find unity
in diversity by assimilating the best of all creeds and cultures. Our Constitution accordingly recognises our sacred obligation to the minorities.” In 1974, provisions of Gujarat University Act 1949,
that provided that teachers of all colleges including minority run
institutions shall be recruited by the University were challenged by the
Management of St.Xavier's college as constituting a serious
infraction of the right to administer educational institution of their
choice. The 9 member Bench affirmed the
conclusions in Kerala Education Bill and of particular interest was
H.R.Khanna's judgment, who said, “The safeguards of the
interest of the minorities amongst sections of the population is as important
as the protection of the interest amongst individuals or persons who are below
the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by
civilized nations, therefore, generally contain provisions for the protection
of those interests. It can, indeed, be said to be an index of the level of
civilization and catholicity of a nation as to how far their minorities feel
secure and are not subject to any discrimination or suppression.”
The slide begins
The
slide occurred, according to Fali Nariman, when in TMA Pai (2002), the SC
adopted an interpretation less favourable to minorities, while relaxing the
rigours against State control over
State- aided Minority Educational Institutions (MEIs) of higher learning.
Holding that the educational institutions cannot be profiteering businesses,
their fundamental right to establish ought to be seen as residing under
Article 19(g) as occupation and and the State had power to impose reasonable
restrictions under 19(6). PA Inamdar
(2007) reiterated the law to allow for State regulation of what shall be fee
for state aided minority institutions. Pramati
(2014) tightened the norms against the State, even while upholding Art 21A
making right to education as a fundamental right but finding that State’s
attempt to fix quota against minority
institutions upto 25% admission of socially disadvantaged sections could not
be constitutionally supported. A shot in the arm and restoration of pre-TMA
Pai era were but short lived. In Modern Dental
College, a Constitution Bench resolved the different views of various
High courts to hold that the State could provide for uniform single entrance
test for prescribing minimum standards for admission into professional courses
. This trend, though the judgment in Modern
Dental itself was after his comment, according to Fali Nariman,
signalled an unmitigated disaster for minorities in the sense, "The
Fundamental Right of MEIs have got devalued, because approximating the
provisions in Article 30 to the provisions contained in Article 19(1)(g) mean,
that as a matter of perception, the ‘reasonable restrictions’ imposed by
ordinary law on this Fundamental Right – permissible under Article 19(6) – has
also got subsumed in what was an otherwise unrestricted Fundamental Right guaranteed
under Article 30".
Status of converts of SCs from Hinduism to other
religions
All the while, the efforts of Converted Christians to get SC status
has not succeeded. The battle has waged on since 1950 itself. Sikhs and
Neo-budhist had their way but the Christians did not. In
2004, Centre for Public Interest Litigation through its General Secretary and
T. Franklin Caesar of Tamil Nadu filed a Writ Petition dated March 22, 2004
under Article 32 of the Constitution of India challenging the Para 3 of
Article 341 of Constitution (Scheduled Caste Order) 1950. More than dozen of
individual and advocates have filed the writ petition challenging the same
Para of same Article. The case is still pending. The
Mishra Commission appointed to consider the identification of socially and
economically backward sections among religious and linguistic minorities and
suggest recommendations for constitutional amendments and for considering
issues in WP 180/20014 and 94/2005 gave a report suggesting:
None of the recommendations has been given effect.
Unanswered questions
Minority protection in the context of establishing
institutions to preserve language and culture leaves out of preview several
major issues that affect large sections of minorities in a big way. Or, is
everything all right with them and we are guilty of creating a bogey of a
perverted public perception for narrow political gains as though there is
growing insecurity among the minorities? Are the following questions relevant
for examining the real status of minorities in contemporary India?
Is
the change in demographic pattern of higher rate of population growth among
Muslims an index of increased happiness and/ or a calculated design to extract
new privileges or mere symptoms of illiteracy and fear of applying family
planning devices?
We will
search for answers in the posts in future.
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