Frontline
Jun. 07-20, 2008
BOOKS
Minorities & judges
A.G. NOORANI
Discrimination is a legal concept; “appeasement” is a political slogan.
ALL democratic states ensure constitutional protection for minority rights. They can, however, be enforced only by an independent judiciary, comprising judges with a broad, liberal outlook when politicians in the executive and the legislature trammel on the rights of minorities. For obvious reasons, the majority needs no such guarantees.
When A.B. Vajpayee said that Article 30 of the Constitution (embodying the fundamental right of religious and linguistic minorities to establish and administer educational institutions of their own choice) should be extended to Hindus also, he was indicating his distaste for minority rights. The Sangh Parivar always said that the Minorities Commission should be replaced by a Human Rights Commission. It is both facile and deceptive to assert that “we are all Indians, why then the distinction?”
On February 13, 1988, Rashtriya Swayamsewak Sangh (RSS) chief Balasaheb Deoras said that the word “minority” should be removed from the Constitution.
Will this help? India is a party to the International Covenant on Civil and Political Rights. Article 27 of the Covenant explicitly recognises the rights of “ethnic, religious, or linguistic minorities”.
India is bound to report on its enforcement of the Covenant to the United Nations Secretary-General and is answerable to the Human Rights Committee set up under it. Successive Attorneys-General have been grilled by its members for the shoddy reports that New Delhi submitted.
The Committee adopted on April 26, 1994, as Article 40 (4) envisages, a “General Comment” on the scope of Article 27. It ruled: “Positive measures of protection are required not only against the acts of the state party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the state party.” That includes groups such as the Shiv Sena, the Maharashtra Navnirman Sena (MNS) and the RSS.
U.N. declaration
The United Nations General Assembly unanimously adopted on December 18, 1992, a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.
At the Conference – now Organisation – for Security and Cooperation in Europe (CSCE) summit in Helsinki in July 1992, its 51 members decided to establish a High Commissioner on National Minorities.
The Council of Europe adopted on June 22, 1992, the European Charter for Regional or Minority languages. There is also the E.C. Framework Convention on the Protection of National Minorities, which was signed by 22 member-states on February 1, 1995. India never hesitates to instruct other states in good manners in dealings with their minorities: Bangladesh and Fiji, for instance.
International guarantees, though helpful, are not enough. It is the country’s ethos that matters. Judges reflect it. In 1958, the Chief Justice of India, S. R. Das, said in the Kerala Education Bill case: “So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this court to uphold the fundamental rights and thereby honour our sacred obligation to the minority communities who are of our own.”
Referring to the Aligarh Muslim University case decided in 1968, H.M. Seervai remarked that “this is the first case in which the Supreme Court has departed from the broad spirit in which it had decided cases on cultural and educational rights of minorities which was reflected in the words of Das C. J.”. The “first case” was followed by not a few in which the court whittled down Article 30. In the AMU case, it ruled, incredibly, that “the university was not established by Muslims”.
These two books should be read by every judge who has to decide such cases. We have reached a stage when our judges do not even understand that historical fiction is not history. Not that a work of history requires assurances of accuracy to courts of law. That is a matter for a different court – the readers. The judges’ outlook and intellectual equipment matter.
“Incredible” is the only word one can use to characterise the remarks made by Justice T.S. Thakur of the Delhi High Court on May 12, when he sat on a Bench with Justice Siddharth Mathur.
The court was hearing a petition challenging the implementation of the report of the Prime Minister’s High Level Committee, headed by Rajinder Sachar, entitled “Social, Economic and Educational Status of the Muslim Community of India”, submitted in November 2006. It was unanimous and massively documented.
Justice Thakur asked: “Is this meant to appease some community?... a lot of money is spent in a welfare state, is it that you [the Union government] spend it only for minority?” The remark was highly improper.
Discrimination is a legal concept; appeasement is a political slogan. Justice Thakur could not have been unaware of the fact that it is used exclusively by the Bharatiya Janata Party (BJP). He has every right to strike down unconstitutional discrimination. But, it is no concern of a judge whether the government “appeases” anybody.
The word itself is used improperly. It is defined by the Concise Oxford Dictionary to mean “placate (someone) by acceding to their demands”. This is not a case of placation by sheer redress.
The Selected Works of Jawaharlal Nehru contain his letters galore, over the years, urging that very redress. Is not the state entitled, indeed bound, to redress wrongs to a minority? It is, therefore, untenable to ask “why are you not doing it (welfare measures) for the majority community?” (Indian Express; May 13, 2008).
Now that this issue is squarely joined, it must be met and finally resolved. When a judge declaims “you are trying to please one community” he is making a political criticism and imputing a political motive. True, “poverty is the common enemy”; but are not some poorer than others? It is a fundamental error to say that the state cannot take affirmative action to help any underprivileged and discriminated section of the people.
This principle is recognised even in the United States The admonition “such issues should not be decided on the basis of emotions” applies to all, judges included. Such remarks are inappropriate at that stage of the hearing. The matter is far too important to be addressed thus. The documentation in the report alone merits careful study.
Discrimination
For decades, the Minority Rights Group International has rendered high service by its scholarly studies. Its latest report deserves wide readership. This is what it says on page 111: “Like low-caste Dalits, India’s tribal Adivasis also face issues of discrimination and inhuman treatment…. Religious minorities, mainly Muslims and Christians, in majority Hindu India, were also victims of violence and persecution in 2007…. Muslim minority groups in September launched protests against the government for its failure to implement recommendations of the Sachhar Committee report. The report, released in 2006, recognised the discrimination against minorities and called for a series of government measures to bring an end to it….”
The scholarly Journal of South Asian and Middle Eastern Studies published an article by Omar Khalidi, entitled “Entrepreneurs from Outside the Traditional Mercantile Communities: Muslims in India’s private Sector”, in the last issue (Volume xxxi; No. 2, Winter 2008; pages 13-42). Its 167 footnotes testify to thorough research. The writer lists the impediments Muslims face – state-assisted pogroms, access to bank credits, and so on. Union Finance Minister P. Chidambaram noted: “credit to minorities is not satisfactory” (The Hindu; December 20, 2006).
In 1977, the U.S. Supreme Court upheld in United Jewish Organisations of Williamsburg vs. Carey (430 U.S. 144) a delimitation law that “deliberately increased the non-white majorities in certain districts”. In 1980, it upheld in Fullilove vs. Klutznick (448 U.S. 448) a law that reserved 10 per cent of federal public works programmes for minority contractors. These rulings are of direct relevance to the Sachar report.
So, is the mass of material in the volume on universal minority rights edited by Marc Weller, Director of the European Centre of Minority Issues, under whose auspices, jointly with that of the Centre of International Constitutional Studies, University of Cambridge, it is published.
It assesses the implementation practice of human rights bodies worldwide and demonstrates that “there is an emerging universal jurisprudence on minority rights, drawing on the corpus of general human rights. In addition to this overall goal we strive to advance the understanding of the application of human rights in relation to minorities in general and their application to issues of particular relevance to minorities.”
The issues are analysed in depth by scholars of note and cover the rights to equality, freedom of speech, assembly and association, and to practise religion; family and cultural rights, education, “physical integrity”, “socio-economic rights as minority rights” and “effective participation of minorities in public life”.
It would shock these scholars if any one were to call this “appeasement” of minorities. The section of “minorities and economic opportunities” is particularly relevant to our situation. The volume is indispensable to students of minority rights and, indeed, to lawyers and judges.•
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