Author: Ram Gopal
Publication: The Pioneer
Date: May 17, 2002
Since April 2, an 11-judge bench
of the Supreme Court has been hearing 200 petitions from the beneficiaries
of minority rights, provided for in Articles 29 and 30 of the Indian Constitution.
Almost every senior advocate of the Supreme Court is engaged by this or
that minority group.
After hearing eminent lawyers like
Messrs Shanti Bhushan, FS Nariman, Kapil Sibal for about a week, the Bench
short listed ten points for detailed examination and decision. These include
defining the terms "religion", the standard for grant of minority status,
the problems of communities which form a majority in one state, but are
in a minority in others, the extent of independence envisaged by the Constitution
with regard to administration of minority institutions and admissions thereto.
The most unfortunate part of the
whole matter is that, there is no senior advocate to present the national
view point or the opinion of the silent Hindu majority against whom the
minority rights are directed. Therefore, "for doing complete justice,"
in terms of Article 142 (1), the Supreme Court would do well to keep in
view the following points before arriving at final decisions on the minority
petitions:
First, there is nothing in the Constitution
to define the "majority" or the "minority" communities - a lacuna that
has induced many Hindu sects, like the Arya Samajists and the Ramkrishnaites
in the past and the Jains and Buddhists now, to denounce their Hindu tag
and claim minority status. It would be a Herculean task to define these
terms with a degree of precision.
Besides, as the special rights conferred
by the Article 29 and 30 are over and above the fundamental rights guaranteed
to each and every citizen, and these are not available to the majority
community, the minorities in India have come to enjoy an enviably higher
status than the so-called Hindu majority. Now they have a vested interest
in retaining their separate identities even at the cost of national security.
Third, while the Constitution, passed
defined the minority as: "The term minority includes only those non- dominant
groups in a population which possess and wish to preserve stable ethnic,
religious or linguistic traditions or characteristics markedly different
from those of the rest of the population. Such minorities should properly
include a number of persons sufficient by themselves to develop such characteristics
and the member of such minorities must be loyal to the State of which they
are nationals." According to it, unqualified loyalty of each member of
the minority community or group to the State to which he or she belongs,
is an essential condition for the grant of a productive minority status.
And, fourth, during India's freedom struggle, the Congress fought a constitutional
battle against the British (irrespective of divergent religious faiths).
While secularism was the catchword of the Congress, the Muslim League,
on the other hand, claiming that Muslims were an important minority, later
advanced its claim that they were indeed a separate nation, having nothing
in common with the Hindu majority. To avoid a civil war and a wholesale
massacre of the people, the Congress submitted to the country's Partition
plan to carve out Pakistan for the Muslims as a whole. Thus, the present
truncated India was to be a country of the Hindus and such of the non-Hindus
who had been opposed to the theory of making religion the basis of nationality.
The large numbers of Muslims who
decided to remain in India must be deemed to have reconciled to the One
Nation Theory and having cast their lot to the good sense of the Hindu
majority and the comprehensive Hindu way of life against whom the Muslim
League had fought and got Pakistan. In the above background, making religion
a basis for the grant of a special minority status to a dominant group
of people is dangerous, and repugnant to the very principles which distinguish
from the theocratic Islamic State of Pakistan or Bangladesh. Any attempt
to apply the criterion of religion for segregating the people for the grant
of special rights, even to the dominant groups like the Muslims, the Sikhs,
and so on, will mean that India has learnt nothing from history and will
be in contravention to the criteria laid down by the UN. Articles 29 and
30, originally intended to be a shield for the linguistic, religious, or
ethnic minorities, have become a sword to keep the majority community at
bay. These are unnecessary appendages to the Indian Constitution, a legacy
of the "divide and rule" policy of the British Raj, against the cherished
ideals of the great freedom fighters, apart from being fraught with dangerous
consequences.
Finally, since Hindus themselves
have been reduced to a minority and persecuted in five States, (Jammu &
Kashmir, Punjab, Nagaland, Mizoram, and Meghalaya), the minority concept
has lost all its rationale. Hence, both these articles need to be repealed
at the earliest. However, any amendment to the Indian Constitution is the
domain of Parliament. Till these articles are not removed, the SC can give
such an interpretation to the said articles that may commensurate with
the true, secular spirit of the Indian polity.
