RIGHTS OF MINORITIES: MAPPING A MIRAGE

RIGHTS OF MINORITIES: MAPPING A MIRAGE
BY

DR. NAFEES AHMAD*

1. AN EXORDIUM

The hurricanes of human hierarchy are rooted in the classic, dualistic, elitic and feudalistic megrims of social animals called humans. The frontiers of fraternity catapulted into frenzy, individual inferno morphed into groups’ grief and simmering volcano of disparity, ultimately, bestowed upon India Communalism and Terrorism which is pervading every nook and corner of the country at a pace never witnessed before. The so-called theology of Appeasement of Muslims accords primacy to the plausibility of violence against Muslims as a medium of securing to their marginalization. On the other hand, the equity, equality and parity wedded to human rights and human dignity and the ideology of terrorism are no different from the former except its being a global phenomenon. Consequently, India has become an ivory tower of iniquitous social orders whereat minorities are mauled, Dalits are deprived, tribals are trivialized and society is stratified and Muslims in particular are subjected to subordination of the majority community embracing an unwritten policy of ensuring their exclusion, alienation and demonization only on the ground of being a member of a particular social group or social origin or minority or religion or race or caste or political opinion and so on so forth. Although, there is no constitutional recognition of the fact which many would regard as essential for a democracy that the powers of the state are originally the collective powers of the people which the state merely exercise on their behalf.

The Constitutional construction of constitutionalism on rights of minorities instill a sense of pride among the minorities of the country but constitutionalization of the same is subjected to prejudices in every layer of state set-up, administrative apparatus and political paraphernalia of the country. The non-discrimination of oriental and occidental orientations whereunder heterodoxy and hermeneutics of Lego-institutional, geo-political and socio-economic perspectives and propositions are envisioned is conspicuous by its absence in the functioning of the Indian state which could have been crafted towards the ontology of rights of minorities and semantics of human rights. The minority jurisprudence is a perennial pursuit for equality with equity, liberty with liberalism and fraternity with diversity for, We, the Muslims of India beyond the horizontal and vertical limitations of Constitutional Diaspora that is reflected in the conflation, cosmology and schematization of Articles 25 to 30 on the thematics of affirmative action and state responsibility including economics of minority rights under the tempest of human rights, Dalit jurisprudence and transcendental institutionalism an idea that is evolved by Nobel Laureate Dr. Amartya Sen in his treatise Idea of Justice.

The moral authority and practical efficacy of human rights are adversely affected by a range of myths and miasma of misunderstandings-from claims regarding the moral status of human rights of minorities as a fully comprehensive moral doctrine to the view that the possession of rights is antithetical to recognizing the importance of moral duties. The claim made by some that rights of minorities ultimately only exists as legal phenomena and that nation-states are inherently hostile to the spirit of human rights. The understanding of minorities’ rights in a land of human hierarchy and asymmetrical intersections like India is being subjected to distortions of high order. The paradigms and praxis of rights of minorities on a comparative conceptualization and jurisprudential premise should have been a perennial primacy of the state instrumentalities in conformity with the preambular propositions of the Constitution of India. Therefore, the rights of minorities make accountable state and non-state actors, corporate houses, MNCs, and civil society institutions to the Constitutional constructions of equality for all and justice for all which are of indelible impact and might shape the geography of legislative business in a land of hierarchy like India for the present and for the posterity. The rights of minorities are a challenge to the political class of the country to reconsider their understanding of critical analysis of enduring issues pertaining to the largest minority in the classical and contemporary reality of human rights of minorities.

2. DEFINITIONAL DILEMMA

It is often assumed that minority rights belong to the field of human rights but the relation between the two kinds of rights are complex and polemical. The United Nations, in drafting the Universal Declaration of Human Rights, deliberately decided to leave out minority rights. The League of Nations had had a minority-rights regime, but this was thought to have failed, and the concept of minority rights was believed to have been exploited by Nazi Germany as an excuse for aggression. The Universal Declaration is based on the assumption that individual human rights, including the prohibition of discrimination and the right to practice one’s culture, are sufficient to protect cultural minorities. The UN did recognize that there might be a special problem of minorities in setting up its sub-commission on Prevention of Discrimination and Protection of Minorities.

The most important provision of international law relating to minority is Article 27 of the International Covenant on Civil and Political Rights, 1966 which provides that, in those states in which ethnic, religious or linguistic minorities exist, “persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”. This goes beyond the Universal Declaration, but contains several problems;

1. It applies only to those states in which minorities exist, thereby encouraging states to deny that minorities exist in their jurisdictions;
2. It recognizes the rights of persons belonging to minorities, not of minorities as such;
3. It imposes on states only duties of non-interference with the rights of such persons, but no duties to assist them.

The reluctance of states to take minority rights seriously has been attributed to the following factors:
1. It would encourage outside interference,
2. Minority problems are diverse and it is doubtful that there are universal solutions.
3. Minority rights threaten the cohesion of states,
4. Rights for minorities would discriminate against majorities

Nevertheless the UN adopted in 1992, a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The title of declaration follows Article 27 in assigning rights to persons not to minority groups. However, Article 1 of the declaration provides that states “shall protect the existence and the national or ethnic, cultural, religious and the linguistic identity of minorities within their respective territories, and shall encourage conditions for the promotion of that identity”. Thus, although the declaration does not recognize minority group rights, it goes further than Article 27 in imposing on states the obligation to take positive measures to protect minority identities.

The word”minority” has not been defined in the Constitution of India. The Motilal Nehru Report, 1928 showed a prominent desire to afford protection to minorities but did not define the expression. The Sapru Report in 1945 also proposed inter-alia a Minorities Commission but again did not define who is a minority? The U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities has defined ‘minority’ by an inclusive definition as under:

1. The term ‘minority’ includes only those non-document 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;

2. Such minorities should properly include a number of persons sufficient by themselves to preserve such traditions or characteristics; and

3. Such minorities must be loyal to the State of which they are nationals

Although the word “minorities occurs in the marginal note to Article 29, it does not occur in the text.” The original proposal of the advisory committee in the constituent assembly recommended that the “Minorities in every unit shall be protected in respect of their language, Script and culture and no laws or regulations may be enacted that may operate oppressively or prejudicially in this respect”. It means ‘a minority is a non-dominant group in a relative terminology that represents the smaller of two numbers, sections or group called ‘majority’. In that sense there may be political minority, religious minority, and linguistic minority as propounded in T.M.A. Pai Foundation V. State of Karnataka

3. CONCLUSION

The word “Minority” must be defined by the Parliament while amending by way of an insertion into Article 29 of the Constitution of India to end conflicting decisions of the judicial branch of the State. The 10% reservation of Muslims of India must also be ensured in the services under the Union of India and in all States irrespective of any impediment in the name of religion, caste, language, and region or otherwise. The Rights of Muslim to equal opportunities and equal access to all natural and national resources deviant to any prejudices, predilections or preposterous argument must be made available under the rigours of law of the land. The Muslims reservation proportionate to their population must be made in the Parliament and State legislative bodies by incorporating Muslim Dominated Areas through fresh delimitation of constituencies. The proportionate to the population the representation of the Muslims in the armed forces under the Union of India must also be ensured by suitably amending the existing law or bringing in a new legislation thereto in the Parliament or otherwise. The proportionate to the population the representation of the Muslims in the Police Force under the various States must also be made available to curb the menace of communal riots, regional riots, linguistic riots and caste riots.

The establishment of more minority educational institutions in the Country be encouraged and promoted. The Right not to be Poor, Right to be Consulted and Right of Participation in the “Inclusive Economic Growth Model” of Development in every walk of life must also be ensured without any discrimination whatsoever. The shibboleth “Unity with Diversity” must be promoted instead of Unity in Diversity. The in the 33% reservation of Women in legislative bodies separate reservation for Muslim Women must also be made that seeks to provide better education, health, hygiene, housing and skills to the Muslim Women. The the working of existing Madarsas must not be disturbed and they should be allowed to continue in imparting religious education without any State interference or otherwise. The Leadership building among the Muslims must be made the part of affirmative action through a system of incentives, enterprises and to ensure diversity at the work places public and private sectors must come together. The Local Bodies and Panchayati Raj Institutions must be utilized to reflect the inclusive growth and human development in India. The ideological indoctrination against Muslims by private and public undertakings, entities, institutions and organizations must be made a criminal offence of non-bailable and cognizable character. The status of Muslim places of worship must be maintained as of 1947 status. Moreover, heritage buildings and historical monuments associated with the Muslims must also be preserved, protected and promoted by the Union of India in real terms at the ground level.

*Author is Assistant Professor teaches Comparative Constitutional Law at South Asian University in New Delhi.