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Unwarranted appendages to Constitution

Unwarranted appendages to Constitution

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.
 


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