While framing the Constitution of India, 29 members of the Constituent Assembly debated over two days to enunciate provisions related to the rights of religious minorities. and language, are part of the Fundamental Rights in the Constitution of India.
Under Article 29, rights are available to “protect” a particular language, text or culture. Under Article 30, all minorities based on “religion” and “language” have the right to establish and run educational institutions of their “choice.” In these important discussions, a few members raised their voices to express this right on the basis of “community”. A group of legislators were not happy to “protect” their special language, and they wanted to add the word “development” to it. However, the words “community” or “development” were not included in the enacted Act.
This historical context is important to understand the current politics of minorities, especially the demand that the central government declare Hindus as “minorities” in states where the minority no. This claim defies the widely accepted definition of minority and the principles of protection from atrocity given that Hindus make up 85% of India’s population.
At the same time, this claim has a legal basis based on the decision of the Supreme Court of India regarding minorities, given in TMA Pai case 2002. Pai’s It was pointed out that languages are the basis for the formation of governments in India and therefore, for the purposes of Article 30, a “linguistic minority” should be defined as applicable to the State.
The position of “less religious people” was also mentioned on the same basis; the rights of minorities, in addition to the guaranteed rights of all citizens are not strictly accepted. One of the judges of the Good The case also said that the Constitution reflects the political context in which it was created, and the political motives of special rights “given to the few”.
The rights of the minority communities under the Constitution are formed as part of the basic structure of the Constitution and cannot be altered or revoked. Hence, the claims of Hindus to have their account taken at the state level cannot be avoided.
Individual identity, diversity
The interesting factor this time is that the Pai decision is a tribute to the great diversity of India. The judgment held that every person, regardless of his voice, appearance or voice, appearance or appearance, has his own identity, which should be maintained equally thus, it reflects the different geographical features of India.
On the other hand, we have a large government that has ensured that the majority of Muslim minorities are not excluded from the public sector and has enacted various measures to prevent the majority of Muslims and Christians from enter into the system. Their clothes, their food habits, their lifestyles, and their religious traditions have been attacked by these movements, with the support of the organization and the organization.
The current government has supported the “equality” movement to achieve their definition of “nationalism,” based on Hindutva, by making diversity an artificial concept. The electronic media has created a trend to propagate the message that the cultural practices, languages, and religious systems of Muslims and Christians who are immigrants to India should be eradicated, while defining the ” nation” the nation’s socio-emotional situation. This kind of nationalism is not a good sign of an inclusive society.
Listing Hindus as a minority raises two interesting questions. First, who is a Hindu? Secondly, the Parliament has the exclusive power in this matter, and the State Assemblies also have the right to declare who are the minorities?
In a 1966 decision of the Supreme Court of India, a five-judge panel, led by Chief Justice of India PB Gajendragadkar, wrote that a Hindu (or Hindus) “Do not worship any God; does not subscribe to a single program; does not believe in a single ideology; does not follow any set of religious rituals and practices; in fact, it seems that it does not satisfy the small parts of the traditions of religions or beliefs. It can be broadly said that it is a way of life and nothing else”. Later, in 1995, Justice JS Verma read this definition as the political term “Hindutva”.. After this definition by the Supreme Court in 1995, most of the citizens were called “Hindu”.
Laws such as the Hindu Marriage Act state that Hindu law applies to all persons whether they are Muslim, Christian, Parsi or Jew. Here again, the term “Hindu” means all people who do not fall into these four religions.
So, the question is whether we can have a clear definition of society which is said to be included in the definition of “minority” in relation to protection under articles 29 and 30 of the Law of India. At the same time, we have the Supreme Court directing the Commission on Minorities not to encourage claims from different communities to be included in the list of notified minorities, and steps should be taken and ways to help create a social culture where minorities are identified. gradually reduced and eliminated altogether.
Powers of the government, Center
Regarding the second question, because the Constitution has a communal framework, apart from the Central government, the government has the power to recognize the linguistic and religious differences of the non-dominated communities of its territory. The Central government appears to be somewhat confused and opportunistic; At first they stood before the Supreme Court and the Parliament and the State Councils had the same authority for this purpose.
However, pending that hearing, in a subsequent affidavit, the House said that the power to notify minorities has been vested in the Central government. This position of the Center is bound to create contradictions in the legislative framework of the state. It should be noted that, apart from the powers of the Central Government, the regional languages are subject to the laws of the Assembly of States.
All laws relating to religious rights are for the purpose of public welfare and health, and are within the constitutional authority of the state. These two aspects of determining “minority” – language and religion – are within the purview of the state and the Centre. As a result, can we remove the government from the power to say that it is “small?”
This shift by the Center will only serve to concentrate power in the Center. Various issues also arise such as the Central Government not having representation of the different regions in the decision-making process. It cannot be forgotten that one of the basic features of our Constitution is the “federal” structure, which cannot be changed. Simply knowing the population diversity of India at the regional level is the best way to make that decision.
Minorities in India
Returning to the existing legal system created by the councils, Parliament passed a law in 1992 establishing the National Commission on Minorities to review progress and development. of minorities and monitor the functioning of the provisions in the Act for the protection of the interests of the minorities.
With the passage of time, this building has been found to be a decoration rather than directly serving the needs of the mentioned minority. His brutality is no different from commissions like the National Human Rights Commission, which was once headed by a former Chief Justice of India and is now headed by a former Supreme Court Justice. It will be interesting to see if this Commission will change its course when the majority communities of the country are included in the list of minority communities.
In 2004, the National Commission for Minority Educational Institutions was created to enable educational institutions to seek their status as minority educational institutions, with the Central Government empowered to declare who is a “minority”. “. The decision of the few was left to their imagination. Accordingly, the Central government has declared six religious and linguistic communities as minorities (not reflecting the Pai movement).
Articles 29 and 30 indicate an agreement to balance between the religious majority and the minority. The minority, especially Muslims and Christians, wanted assurances of non-discrimination at the hands of the majority. This provision is in line with the statutory provision for the protection of minorities, similar to other Backward Classes and Scheduled Castes and Scheduled Tribes who are afforded their own protection at a different point in the One more rule.
If this claim succeeds, India will become a model for the rest of the world that a religious and political community with a legitimate political right is in its hands with the help of legal protections from the majority. the people – protection to protect the most vulnerable people socially, economically and politically. national communities.
MR Shamshad is a lawyer practicing in New Delhi in the Supreme Court of India and various High Courts in India.
The article was originally published on India in Transition, a publication of the Center for the Study of India, University of Pennsylvania.