A Crisis Of Definition - (Indolink.Com, 20/07/2002) -- By Dasu Krishnamoorty
Who are minorities? Intelligent people are a minority. Rich people too. Beautiful women and great artists also belong to this category. Where do we begin and how do we end? The answers will be available soon if the 11-judge bench set up by the Chief Justice of India S.P. Bharucha does its job expeditiously. The Supreme Court is now hearing 200 petitions seeking a clear definition of minority rights. This is a political discourse in which the apex court would not like to participate if it has the choice. After all the pains it takes to fashion a verdict on the matter, it may meet with the same fate as the judgement in Shah Bano case. The court has a jurisdiction to hear such cases but hardly any enthusiasm to exercise it in such highly sensitive cases.
The bench first set about finding answers to seven questions, including the meaning of the expression ´religion´ and the rights of the followers of a sect of a particular religion, who are in a majority to claim constitutional protection. The crux of the litigation is the meaning and content of the term ´minority´ in Article 30(1). The 11-judge bench has increased the number of questions from seven to 11 to include ´majority´ rights also. These are emotionally charged issues that the lower courts have always passed on to the apex court. When the verdict comes it is bound to correct the distortions that have crept into the interpretation of these concepts.
There is evidence to indicate that the term ´minority´ came for some hair-splitting at the time of writing the Constitution. Earlier, the British rulers had already set up a precedent of conferring privileges on certain groups designated as minorities or backward classes. Under the constitutional reforms of 1909, Muslims became the beneficiaries of separate electorates. The Congress and other later-day secular parties denounced these measures as the heart of the divide and rule strategy of the British. Though, the first draft of the Constitution included several political and social privileges for the minorities, the final draft dropped religious minorities from the list and kept only the scheduled castes and scheduled tribes.
The Cripps plan insisted on the protection of minorities as a condition for transfer of power. When the Constituent Assembly began deliberating the profile of the basic document, the Muslim League boycotted its proceedings. The debates show that the members used the term ´minority´ not in its numerical context but to denote a group suffering a disadvantage. At that time, the scheduled castes and tribes seeking safeguards saw themselves as part of the Hindu community and also as a group socially and economically backward. Some members thought that removing disabilities and disparities was better than according political safeguards.
Constitution making saw a stampede of groups clamouring to be considered as minorities. In consonance with the secular thinking at that time, the term ´minorities´ was totally excluded from provisions of group preference. During a discussion of the revised draft of the Constitution on 16 November 1949 the house adopted an amendment stipulating the substitution of the word ´minorities´ by the words ´certain classes´. The house regarded separatist safeguards as corrosive of the fundamental principles that would govern free India. They would undermine national unity and cohesion and fuel separatism. ´Nationalism and not religion is the basis of modern life,´ said Dr S. Radhakrishnan.
Moulana Hasrat Mohani (UP) objected to the word ´minorities.´ Speaking in the Constituent Assembly on 28 August 1947, he said, ´I refuse to accept Muslims to be a minority. Now, you say you have done away with communalism. Are we not calling a minority only to refer to Muslims?´ There was, however, a reference to minorities in the objectives resolution Jawaharlal Nehru moved on 13 December 1946. But later debates show the chagrin of members to granting special safeguards to any section because they would engender separatist sentiments.
Thousands of NGOs all over the world have offered hundreds of definitions of the term ´minority.´ Some of them are here: 1. These are social categories, socially defined and constantly subject to modification and revision. 2. Any definition is relative and contextual. 3. A group of people who, because of their physical or cultural characteristics, are singled out from others in the society in which they live for differential and unequal treatment, and who therefore regard themselves as objects of collective discrimination. 4. Minority is a "group numerically inferior to the rest of the population of the state, in a non-dominant position, whose members being nationals of the state, -- possess, religious, ethnic or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed to preserving their culture, traditions, religion or language." This last one is a UN definition. 5. Any disadvantaged group.
A summary of these definitions embraces these features: numerical disadvantage, social disadvantage, different physical and cultural features and discrimination. Let us see the salience of these features.  First
As numerical concepts, majorities and minorities do not reflect their relative or real strength. Minorities can come together as a coalition and become a majority. For example, the Muslims, the Christians and Dalits can unite to become a major social and political force. The National Democratic Alliance today is a coalition of minority (numerical) parties together commanding a majority enough to get their nominee elected as the President of the country. And the nominee belongs to a minority community. The Hindus are not a solid monolith. There are several thousand castes among them, each regarding itself as a minority and all of them flaunting a separate identity as the Muslims and Christians do. Second
The Muslims or Christians do not suffer any special social disadvantages that the other myriad Hindu groups do not. On the other hand, the Constitution confers on them privileges the Hindus do not enjoy. Hindu religious institutions are administered by the state. Minority religious institutions are exempt from state oversight. Their educational institutions receive state funds but are free from state control. This is the issue the Supreme Court is now examining. The Muslim personal law is outside the purview of India´s lawmakers or its judiciary. Apart from that, by denying themselves the benefits of mainstream education, the Muslims denied themselves jobs linked to mainstream education.
Even as a digression, it is relevant here to quote what the Supreme Court had said about Muslim personal law: "The Hindus, the Sikhs, the Buddhists and the Jains have forsaken their sentiments in the cause of national unity and integration; some other communities would not though the Constitution enjoins the establishment of a common civil code for the country." Therefore, it is evident that the Muslims are in the privileged position of choosing what benefits them from the Constitution and rejecting what is not acceptable to them (Article 44). They enjoy the benefit of polygamy denied to Muslims in Islamic republics like Syria, Tunisia, Morocco, Pakistan, Iran and the Islamic republics of the former Soviet Union. The minorities continue with their conversion drives despite the Supreme Court´s clear verdict that freedom of religion does not include the right to convert.
The All India Muslim Personal Law Board met at Hyderabad recently and the Andhra Pradesh government left no stone unturned even as the board flouts the judgements of the Supreme Court. The Hindu (Friday, 14 June, 2002) reports: "They (the board) said that the Muslims feel the rules of the Shariat governing their personal and family life are an integral and inseparable part of their religion, and, therefore, they would protest against moves to abrogate or to change the Muslim Personal Law. They said, "Our non-Muslim countrymen should realise that asking Muslims to adopt or abide by any other law, amounts to asking Muslims to relinquish an integral part of their religion." Is this warning necessary when the board has such friends as Sonia Gandhi, Mulayam Singh Yadav and Laloo Prasad Yadav and in the south Chandrababu Naidu and Karunanidhi committed to the protection of minority rights?
Third
Distinct ethnic physical and cultural features. Can you tell a Muslim from a Hindu if you meet one in the street? If there is any such distinction, why did the Gujarati goondas need to ask journalists to strip to reveal their religious identity? Once you leave the urban areas, it becomes increasingly difficult to tell who is a Hindu or who is a Muslim because all of them speak the same language and wear the same dress. In many cases, the marriage rituals and tokens are the same. Many Christians solemnise their weddings both by Hindu rites and church ceremonies. It is this common heritage that is under attack today. Fourth
Discrimination. Yes, there is discrimination because Abdul Kalam is going to be the third Muslim President of the country. There is discrimination because P.C. Alexander was first considered as the presidential candidate. There is discrimination because governments, secular or otherwise, are afraid of tinkering with anything that has to do with the minorities, whether it is personal law or educational institutions. There is discrimination because the Muslims can offer namaaz at any public place; they can blare the mauzzin´s call to the faithful despite a ban on using loud speakers for that purpose.
The minorities and the secular parties do well to read this excerpt from a Supreme Court judgement: "Those who preferred to remain in India after the partition fully knew that the Indian leaders did not believe in two-nation or three nation theory. They were also aware that in the Indian republic there was to be only one nation -- the Indian nation. No community could claim to remain a separate entity on the basis of religion."
More groups are pressing to be recognised as minorities because that status will bring them benefits denied even to the majority community. In utter frustration, the Ramakrishna mission tried to adopt the minority tag but the Supreme Court put its foot down. In one sense, there are no minorities in the country since no group is the victim of state discrimination. Also, the Hindus are not a majority because they are a collection of minorities. All minorities, including the hundreds of Hindu groups, are equal victims of poverty, illiteracy, obscurantism and other ills plaguing the third world people.
The minorities are really not minorities except in the sense of numbers. But why is a minority always a religious minority? In that case what is the status of Shias in the Muslim community and Catholics in the Christian community. If the state can splinter the Hindu community into a thousand groups, there is no point in excluding the Christian and Muslim communities from this privilege. The entire minorities problem is the doing of Jawaharlal Nehru and B.R. Ambedkar who laid the foundation for a havoc worse than the partition. If the scheduled classes, tribes, other backward classes and what else get their due, those denied certainly constitute a minority though they are referred to by that abusive term the upper castes.
In the end, definitions of minorities hardly are a cure for their problems. The Constitution is a storehouse of discrimination. It can recover its democratic structure only when all its privileges are available to all sections of the people on the basis of citizenship and not caste or religion. |
