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Tricoloured vision

The Supreme Court has done a grave injustice to India?s minorities, writes AG Noorani.
None | By AG Noorani, New Delhi
UPDATED ON MAR 21, 2006 02:15 AM IST

A grave lapse was committed by the then Chief Justice of India, Justice R.C. Lahoti, and Justices P.K. Balasubramanyan and D.M. Dharmadhikari of the Supreme Court in a judgment that the latter delivered on behalf of this bench in Bal Patil & Another vs Union of India & Ors. Half of it was devoted to an irrelevant political disquisition that would have caused no surprise had it come from the RSS or the BJP.

The facts were simple. Section 2(c) of the National Commission for Minorities Act, 1992, defines minorities as “a community notified as such by the central government”. An organisation representing a section of the Jain community moved the Bombay High Court for a writ to the central government to notify Jains as a minority under the Act. The Supreme Court ruled in the TMA Pai case that the “religious and linguistic minorities who have been put on par in Article 30 have to be considered statewise”. Article 30 confers on these minorities the fundamental right “to establish and administer educational institutions of their choice”. Thereupon, the Centre told the high court that the decision now belonged to the states. Some, Maharashtra included, had already notified Jains as a minority under their State Minority Commission Act. The petitioner, however, argued that the Centre could not “shirk” its duties under
the central Act.

The Supreme Court declined to interfere — with respect, rightly. But it proceeded to devote five out of a total of ten pages to a political disquisition. “The history of the struggle for independence of India bears ample testimony of the fact that the concept of ‘minorities’ and the demands for special care and protection of their religious and cultural rights arose
after the latter’s experience of religious conflicts that intermittently arose in about 150 years of the British rule.  The demand for Partition gained momentum at the time the Britishers decided to leave by handing over self-rule to Indians.”

Surely, even if the British had not ruled, minorities would have existed and India would have devised safeguards for them, as it would have done if it was not partitioned.

Recalled are the unpublished 30 pages of Maulana Azad’s memoirs, India Wins Freedom. It is miscalled a “personal diary… made public in accordance with his last wish only after 25 years of Independence”. Azad’s wish was that it be published 30 years after his death. It was published in 1988, not in 1972. This did not prompt H.M. Seervai to ‘rewrite’ the chapter on Partition in his famous work, as the judges think. He simply appended a three-page Note to it. Nor did Azad ever act “as mediator” between the Congress and the Muslim League. Error consistently kept good company with irrelevance.

The judges said, “Muslims constituted the largest religious minority because the Mughal period of rule in India was the longest, followed by the British rule, during which many Indians had adopted Muslim and Christian religions… The so-called minority communities like Sikhs and Jains were not treated as national minorities at the time of framing the Constitution. Sikhs and Jains, in fact, have throughout been treated as part of the wider Hindu community…”
Comment on this gem is best withheld. The judges opine that, “‘Hinduism’ can be called a general religion and common faith of India, whereas ‘Jainism’ is a special religion formed on the basis of quintessence of Hindu religion.” This is perilously close to asserting that Hinduism is the national religion; the rest are converts, which is the Sangh parivar’s central thesis.

The purpose behind this exercise is not concealed. “The group of Articles 25 to 30 of the Constitution, as the historical background of the Partition of India shows, was only to give a guarantee of security to the identified minorities and thus to maintain the integrity of the country. It was not in the contemplation of the framers of the Constitution to add to the list of religious minorities… The Constitution has accepted one common citizenship for every Indian, regardless of his religion, language, culture or faith… The constitutional ideal is to create social conditions where there remains no necessity to shield or protect rights of a minority or majority. The above-mentioned constitutional goal has to be kept in view by the minorities commissions set up at the central or state level.  Commissions set up for minorities have to direct their activities to maintain the integrity and unity of India by gradually eliminating the minority and majority classes.”

Haven’t we heard this before? “We do not accept the concept of minorities at all,” RSS chief K.S. Sudarshan told Karan Thapar on August 14, 2000. The RSS was opposed to the establishment of the Minorities Commission. The BJP followed suit.

“It is, therefore, necessary that the Minorities Commission should act in a manner so as to prevent generation of feelings of multi-nationalism in various sections of people of Bharat.  The commission, instead of encouraging claims from different communities for being added to the list of notified minorities under the Act, should suggest ways and means to help to create social conditions where the list of notified minorities is gradually reduced and done away with altogether.”

It is, however, the religious minorities that bother the judges, however illogical the distinction they draw. Linguistic minorities are “understandable but if the same concept of minorities on the basis of religion is encouraged, the whole country, which is already under class and social conflicts due to various divisive forces, will further face division on the basis of religious diversities. We should guard against making our country akin to a theocratic State based on multi-nationalism”.

Theocracies come up when the State proclaims the faith of the majority as a ‘general religion and common faith’ of the land. The Constitution, wisely, explicitly confers fundamental rights on religious minorities. Three judges of the apex court, including the CJI, want to do away with that. There is only one political party that supports the judges’ thesis — the BJP.
The Minorities Commission cannot lawfully act on the judges’ views based on a flagrant disregard of the Constitution. Under the Constitution, only the ‘law’ laid down by the Supreme Court is binding. The petitioners had asked the court to issue a writ to the central government, not to deliver a lecture to the Minorities Commission.

Minorities are not peculiar to India. They are not a product of British rule or the Partition. The UN International Covenant on Civil and Political Rights (1966) recognises “ethnic, religious or linguistic minorities”.  The General Assembly adopted a Declaration on their rights in 1992.

The outlook that the three judges bared is in fundamental conflict with that on which the Constitution and the international order rest. This is not the first judgment of its kind. The Supreme Court’s split ruling in the Ayodhya case and the one on Hindutva, which protected the BJP and Shiv Sena’s election campaigns, are other instances. On April 16, 1996, a bench of three judges suggested that the CJI constitute a larger bench “at an early date” to resolve the conflict in rulings on Hindutva. A decade has rolled by. One wonders when the court will undertake that review.

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