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Minority Rights Are Indivisible

By SYED SHAHABUDDIN
Syed Shahabuddin is retired from the Indian Foreign Service (I.F.S.) and a former member of parliament (M.P.).

The Tribune, Nov. 25, 2005


Photo: Syed Shahabuddin

Majority pressures can deny equality

The August 8, 2005, judgement of a three-judge bench of the Supreme Court in the Bal Patil case (C.A. 4730 of 1999), written by Mr. Justice D.M. Dharmadhikari, has not received the critical attention it deserved. Perhaps, it may be due to the Jains being a relatively small minority with a population of about 4.2 millions (2001), which is not much in the news or wields little political strength even in five states where more than five lakh [500,000] Jains live.

The Jains have been counted as a separate religious community, since the first decennial census in 1871, with the distinction that they are not recognised as a religious minority by the same government which holds the census.

The judgement rejects the Jain plea to the central government to notify the community as a minority under Section 2 (C) of the National Commission for Minorities Act, 1992, basing itself on the 11-judge bench decision in the T.M.A. Pai case, which related to the scope of Article 30 of the Constitution.

The majority opinion speaking through the then Chief Justice Kirpal was that since the reorganisation of the states in India has been on a linguistic basis, the unit for the purpose of determining a linguistic minority be the state and not the whole of India. But the opinion goes on to apply, illogically, the same yardstick to religious minorities, though the states were not organised on a religious basis, and comes to the conclusion that 'religion and linguistic minorities, who (sic) have been put on a par in Article 30, have to be considered state-wise.' The central government found it convenient to take shelter under this illogical presumption and refused to exercise its statutory power under the Act, thus making it redundant.

The interesting point is that the Muslims, Christians, Sikhs, Buddhists and even the Parsis (a minuscule community with less than 0.1 million population) had been notified by the central government under the provision of the same Act, but the guillotine has fallen on the Jains. Thus, this refusal is a clear case of discrimination against the Jain community.

The Constitution, in Explanation to Article 25, recognises the existence of the Jain religion but brackets it with Buddhism and Sikhism for the limited purposes of one section of the Article dealing with a common social aspect. Only five days after the promulgation of the Constitution, the then Prime Minister Jawarharlal Nehru, through the letter of June 31, 1950, signed by his principal private secretary, had assured a Jain deputation that the Jains are a district religious minority and there was no reason for apprehending that they would be considered as Hindus. Thus the judgement is constitutionally unsound and violates an explicit assurance of the executive. The appellants have decided to seek a review of it.

Having summarily disposed of the Jain demand, the judgement devotes another 12 pages to what can only be called obiter dicta or the personal views of Mr. Justice Dharmadhikari. He gives his version of the history of the freedom movement, in particular the effort for resolving the communal problem in terms of the constitutional safeguards as demanded by the Muslim community and conceded in stages by the imperial power.

Finally, there was no communal settlement culminating in the partition of 1947. His historiography is full of flaws; it confuses the sequence of events; it describes India Wins Freedom as the 'personal diary' of Maulana Azad and attributes to him the role of a 'mediator' between Nehru and Patel on the one side and Jinnah and Liaqat Ali Khan on the other.

In effect, the obiter dicta reduced the complex course of negotiations between the Congress and the Muslim League, over 20 years, in which Rajendra Prasad, Nehru, Subhash Bose and Gandhiji all participated (it is doubtful if Azad was directly involved at any stage) for finding a mutually acceptable settlement, to a one-shot event!

Eminent jurist H.M. Seervai is quoted to place the responsibility for partition on Gandhi, Nehru and Patel for having destroyed the (Cabinet Mission) Plan. It is true that Azad did his utmost to prevent partition but failed to persuade Nehru and Gandhi not to accept it. But this relates to the very end of the sad chapter.

Secondly, Justice Dharmadhikari's thesis states that in order to ally the fears and apprehensions in the minds of the Muslims and the Christians, the Constitution provided them special guarantees and protected their religious, cultural and educational rights in the form of Articles 25 to 30. This is an absurd reading of the Constitution. Articles 25-28 relate to the freedom of religion and are universal in their application to all citizens. Articles 29 and 30 relate to cultural and educational rights of minorities. Both sets distinct from each other, both in scope and purview form part of the Fundamental Rights.

Then the obiter dicta says that only Muslims, Christians, Anglo-Indians and Parsis are recognised as religious minorities at the national level and attributes the size of the Muslim and Christian communities to the duration of Mughal and British rule! It hints as if the objective of the Mughal state and British rule was conversion. This is far from the truth.

The obiter dicta describes the Sikhs and the Jains as 'so-called minority communities,' which have 'throughout been treated as part of the larger Hindu community.' It seeks to reduce them to sects or subsets of the Hindu religion.

The fact is that in making the Constitution, the Sikhs, Buddhists, Jains and Parsis all were recognised as minorities.

But the real purpose of Mr. Justice Dharmadhikari's travel into uncharted terrorities, without a compass, becomes apparent when he identifies Jainism with what he calls Hindu Vedic religion, though the Jains reject the Vedas and the Brahminical philosophy, as their Tirthankaras and specially Mahavir have charted their own spiritual course like Buddhism.

Then he comes to his final conclusion: 'Hinduism can be called a general religion and common faith of India.' He thus elevates Hinduism above other religions of India and equates Hinduism with Indianness. This is an anti-thesis of the Constitutional principle of equality of all religions which implies that religions, whatever the number of their followers, are equal before the law and that no distinction can be made among them on the ground of origin, i.e. where they were born! This projected superiority of Hinduism is not only a denigration of Jainism, Buddhism and Sikhism but also an affront to the status of Islam and Christianity and 'Other Religions' which are recorded in every Census.

Having wandered though philosophy and religion, Mr. Justice Dharmadhikari propounds his constitutional thesis for redefining the status of various religious groups as minorities and conferring it only to those which had to be re-assured of their religious and cultural rights in the background of partition 'in order to maintain the integrity of the country.' He opines that the process of the Constitution did not contemplate any addition to the list of religious minorities other than those the identified in the course of independence negotiations or those which are materially well-off.

He seems to think that recognition of the religious identity of a group by the state is a favour, a privilege, a prerogative of the executive or the legislature in accordance with the political compulsion at a given time.

Obviously, he has not studied the Constituent Assembly debates. Dr. Ambedkar forcefully argued for the recognition of the absolute rights of religious minorities. And the first right of a minority is the right of recognition, followed by the right to equality before law. The Fundamental Rights, the finest crystallization of political thought and constitutional theory, are independent of time and place. The Universal Declaration of Human Rights had an impact on our Constitution but the International Covenants and, above all, the U.N. Declaration of Rights of Minorities, 1993, all reflect what the Constitution gave to the religious, linguistic, racial and cultural minorities. Today minority rights are universally accepted as indivisible from and essential to human rights, because almost every nation-state is multi-religious, multilingual and multi-cultural.

But Mr. Jutice Dharmadhikari sees assimilation in Hinduism as the alternative and desirable goal of religious groups in India while the international community recognises multi-religiosity as the natural state of things. Any majoritarian pressure to erase the identity and to absorb and assimilate their distinctive personality goes against the concept of freedom and equality.

Constitutional safeguards under the Constitution and in international law shall be reduced to zero if the district identity of any religious group, howsoever small, is denied and any group is forced to relate to Hinduism as a sect or subset.