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Dumping
down minorities
Yoginder Sikand
A move is afoot to
curtail constitutional guarantees given to minorities by downgrading
them and their institutions to the State or provincial level through
a redefinition of the term minority.
 Of
late there has been much discussion in the media and political
circles about how precisely to define religious minorities in the
Indian context. The Hindutva lobby vociferously advocates that the
very category should be scrapped, alleging that it promotes
'divisiveness' and undermines 'national unity'. This reflects its
visceral hostility to minority rights and its monolithic,
majoritarian view of Indian nationalism.
Some recent judgments of the Supreme Courts and state high courts
have also tended to give a very restrictive interpretation of the
term 'minority' and of minority rights, and their, critics argue
that this, have given further impetus to the Hindutva lobby's case.
And now there is talk of the government perhaps moving a
Constitutional amendment in Parliament to do away with the notion of
national-level minorities and replacing it with a definition that
would specify minorities at the state level instead.
On
the face of it, this proposal might sound innocuous, but, as several
minority spokesmen point out, it is a major assault on minority
rights. Mujtaba Farooq of the Jamaat-e-Islami describes the possible
amendment as a 'conspiracy', and adds that the fact that the draft
of the Bill is still unavailable adds weight to his contention as
the 'secrecy' which surrounds it would provide minority
organisations little time to analyse, weigh and protest against it.
He
argues that it may well be that the amendment would reflect and
reinforce certain recent judgments of the Supreme Court that he says
aim to restrict minority rights. Suleiman Seth of the Indian
National League echoes similar fears. He contends that sections of
the judiciary, the media and the political class 'are out to do away
with India's social, political and cultural diversity' and sees the
proposed amendment as reflecting their agenda. He describes it as
'being against the spirit of the Indian Constitution' and as part of
a larger process of dilution of minority rights.
Syed Shahabuddin, former MP, points out that in India no community
is a majority throughout the country at every level of governance.
Hence, he says, there is a need to define minorities and their
rights at each level, including the panchayat, block, district,
state and national levels, rather than defining them only at the
state level, as the proposed amendment might do. If the amendment is
passed, it would lead to a situation wherein Muslims in Kashmir, a
Muslim majority state, would lose their minority rights and would
not enjoy the privileges under Article 30 of the Indian Constitution
regarding educational institutions. A Kashmiri Muslim would not be
considered a member of a minority community when he or she seeks
admission to a Muslim minority educational institution outside
Kashmir. The same anomalous situation would stare Christians in
Christian-majority Nagaland and Sikhs in Sikh-majority Punjab.
 Dr.
JK Jain, a Jain leader, also voices similar concerns. He argues,
'The affairs of the country are not being run as per the Preamble of
the Constitution, which talks of social, political and economic
justice'. 'We cannot implement even the first line of the
Constitution, and at the same time there are moves to undermine
minority rights through possible Constitutional amendments as
this!', he explains. 'Minorities are being reduced to the status of
beggars, living at the mercy of the state or the majority for their
rights, which are increasingly sought to be curtailed. Every organ
of the state is being pressed into service to insult and humiliate
the minorities and deprive us of our rights', he insists.
Says M.P.Raju, a senior advocate and leading Indian Christian legal
scholar, 'Even if the amendment is not made, we still have to raise
our voice against efforts to curtail minority rights by defining
minorities at the state level, in the face of certain recent Supreme
Court judgments that seek to redefine minorities in this way and to
do away with the minority character of an institution if it does not
have at least half of its seats filled by that particular minority.
That would, for instance, mean that practically all Christian
educational institutions in north India would at once cease to be
considered as minority institutions as they have well below less
than half Christian students'. He critises these judgments, most
notably in the T.M. Pai case, as reflecting a 'restrictive, rather
than expansive, interpretation of minority rights'. He argues that
if minorities were to henceforth be defined state-wise rather than
at the national level, it would amount to 'over-federalism' as well
as a 'non-harmonious interpretation of the Indian Constitution',
adding that minority rights need protection at both the state as
well as national levels.
Besides the ominous implications of the proposed Constitutional
amendment for minority rights, it is the perceived arbitrary manner
in which the government is said to be going ahead with it that has
raised the ire of human rights and minority rights activists.
Surely, the draft of an amendment of such import must first be made
public and be kept open for discussion and debate to avoid glitches
that invariably accompany most such moves.
(Courtesy... Combat Law.)
24 October, 2007
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