Re-Defining
Minorities
By Yoginder Sikand
10 September, 2007
Countercurrents.org
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 understanding 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 these, critics argue, 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 Hind, a leading Indian Muslim organization, 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 organizations little time
to analyse, critique 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, President of the Indian National League, echoes the same 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 that
he says sections of the judiciary are involved in.
Syed Shahabuddin, former
MP and a leading Muslim politician, 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 prevail in the case
of Christians in Christian-majority Nagaland and Sikhs in Sikh-majority
Punjab, for instance.
Dr. J.K.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 critiques 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 represent
'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
be first made public and publicly discussed and debated before it can
go ahead.
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