Defining India’s minorities

July 14, 2007

 

Zoya Hasan

A meaningful conception of minorities would include sections of people who, on account of their non-dominant position in the country as a whole, are targets of discrimination and therefore deserving of special consideration.

The Constitution (103rd Amendment) Bill, 2004 to grant constitutional status to the National Commission for Minorities envisages a change in the way minorities are specified. The Cabinet has reportedly approved a proposal (May 2007) to define minorities State-wise in line with several Supreme Court judgments, most notably that in T.M.A. Pai. For the purpose of this legislation, minority will be specified as such in relation to a particular State/Union Territory by a presidential notification issued after consultation with the State Government; this will be in addition to the five minorities (Muslims, Christians, Sikhs, Buddhists, and Parsis) referred to in the NCM Act, 1992. The new approach is not consistent with the understanding developed in the Constituent Assembly on the protection of minorities and the constitutional compact between the State and minority groups.

Although the Constitution does not define a minority or provide details relating to the geographical and numerical specification of the concept, it is clear that the constitutional scheme envisages this to be determined at the national level. Periodic judicial interventions and categorisation has had major repercussions. Over the years, judicial pronouncements have sought to give a restricted meaning to minority rights by limiting them to education and defining minorities at the State level in terms of protection under Article 30 which provides religious minorities the right to set up educational institutions of their choice. The legitimation of a restrictive conception of minority rights can also be noticed, in this context, in the Central Government’s proposal to adopt a State-specific notion of minorities.

Supreme Court principle

In the 2002 judgment, in T.M.A. Pai Foundation & Others vs. the State of Karnataka and Ors, the Supreme Court deliberated on the various contentions that the Centre, State, or a particular region within a State may be considered as the basic unit for protection of the right of minorities to set up minority educational institutions, and whether a minority in a State would lose its minority status if within a particular region of the State it happened to be in a majority. The Court has set out the principle that minority status should be determined in relation to the population of the State and not to India as a whole. It ruled that as the reorganisation of the States in India had been effected on linguistic lines, for the purpose of determining a minority, the unit would be the State and not the whole of India. Thus, religious and linguistic minorities, who have been placed on a par in Article 30, have to be considered in terms of the State concerned. Not surprisingly, this issue surfaced again in Bal Patil (2004) and Srivastava (2007); these two judgments have further complicated the question of definition of minorities, as both these judgments relate, for the most part, to definitional issues. Bal Patil questioned the identity of Sikhs as a religious minority while Srivastava ruled that Muslims, by virtue of their numbers, cannot be considered a minority in Uttar Pradesh.

The principal rationale for State-specific minorities rests on the idea that the linguistic reorganisation of States necessitates that they be treated as the basic unit for determination of minorities. As both linguistic and religious minorities are covered under Article 30, both sets of minorities have to be State-specific. The linguistic reorganisation of States meant that, for the purpose of Article 30, linguistic minorities had to be determined in relation to the State because their language was not one of the official languages; other minorities are those whose mother tongue is an official language but who live outside the State(s) where the language is official.

In this sense, the linguistic reorganisation of States has a definite bearing on linguistic minorities because protection under Article 30 is available not only to the linguistic minorities sharing the major languages of the States, but also to speakers of the numerous languages that are not represented by any particular State on its own.

As regards religious minorities, linguistic reorganisation should not really matter in the exercise of their right to set up educational institutions of their choice or seek admission in such institutions or the exercise of other minority rights. In comparison to linguistic minorities, for whom the official language matters, there is no congruence between religious identity and State boundaries. For protection under Article 30, linguistic minorities make claims upon the States rather than the Centre, but this need not be so for religious minorities who are dispersed throughout India and whose identity is not linked to specific State(s). In this context, defining minorities at the State level would limit the notion of minorities, entailing as it does the adoption of an essentially statistical conception of minorities. Thus, a religious group, which is numerically smaller than the rest of the population of the State to which it belongs, would be entitled to be termed a minority in that State even though the group may be numerically in a majority in India as a whole and hence not lacking in power or voice in the decision-making structures. This will doubtless add to the list of minorities and extend the benefits of minority entitlements to these groups, even as it will deny the same benefits to groups that are minorities in accordance with nationally and internationally accepted definitions of minorities.

Scope for distortions

Such a State-specific conception of minorities will result in distortions in minority rights. If this rationale is extended, Hindus in Punjab who are a numerical minority there though they are a majority in relation to India as a whole will be entitled to minority protection there as indeed they would be in Jammu and Kashmir, Nagaland, Meghalaya, Mizoram, and Lakshadweep. To take another example, failing the statistical test, Sikhs in Punjab and Christians in the above States will be held to be a majority and consequently deprived of constitutionally sanctioned minority rights. In Punjab, the minority Hindus will be able to set up educational institutions of their choice and apparently Hindus from other States will be eligible for admission to these institutions unless admission is to be limited to minorities domiciled in the State.

By the same logic, Christian students will be ineligible for admission in minority educational institutions, such as St. Stephens College or Loyola College, as they will not have a domicile minority status there. In other words, eligibility for admissions to minority educational institutions will be limited to minorities domiciled in the States, and what is more, some minority community applicants will not be able to avail themselves of minority quotas outside their State(s) because they are not a minority in their own States.

At the heart of the current controversy is confusion about which groups qualify as minorities and regarding the nature of the unit of determination under this rubric. However, internationally, some agreement exists. Commonly cited characteristics that make groups distinctive and expose them to discrimination include religion, language, culture, and gender. There is also a unanimous opinion that the term ‘minority’ refers to a power relationship. In this, the size of a group may bear some relation to the degree of power it wields, but presumably because other factors are also involved in the equation, the relationship of group size is not all that significant.

Contrary to this widely accepted perception of minorities, the Government’s new proposal for State-specific minorities is driven by a statistical or numerical approach. The size of the group is not what should concern our policy-makers or those committed to eradication of inequity, prejudice, and discrimination. This is because numbers per se merely quantify and describe the proportion of a group in a population; they do not tell us anything about whether a particular minority group is powerful or powerless, advantaged or disadvantaged, represented or under-represented. A more meaningful conception of minority status would include sections of people who, on account of their non-dominant position in the country as a whole (not a specific State), and because of their religion, language, caste or gender, are targets of discrimination and therefore deserving of special consideration. The statistical approach disregards the crucial qualitative condition of vulnerability and disadvantage.

The numerical proportion of a population of a particular community in a State, distinguishable on religious grounds, cannot entitle it automatically to minority rights.

The temptation to treat minority educational rights as similar to other minority rights has limited the concept of minority rights to the ambit of Article 30 and to the operational details of administering minority educational institutions at the State level. Aside from matters that fall under the purview of Article 30 protection, on most other substantive issues of equity, identity, and security, religious minorities frequently lean on the Centre in the hope that it is less likely to fall under the sway of narrow sectarian concerns and will be guided by a constitutional vision and philosophy rooted in ideas of fairness, justice, and equity. In the circumstances, defining and confining the category ‘minority’ to States is not the best way forward; it would be far more helpful to recognise the comprehensive character of minority rights, in consonance with the demands of substantive equality, to include them by revisiting the concept of affirmative action. This would be in step with the slew of policies and measures currently under consideration to address the economic, social, and educational deprivation that minorities experience.

(Zoya Hasan is a Professor at Jawaharlal Nehru University.)

http://www.thehindu.com/todays-paper/tp-opinion/defining-indias-minorities/article1872744.ece

How Savarkar escaped the gallows

January 30, 2013

 

A.G. Noorani

MAY 27, 1948:At the Special Court in the Red Fort, Delhi, during the trial of the Mahatma Gandhi assassination, the accused (from left) Nathuram Vinayak Godse, Narayan Dattatraya Apte and Vishnu Ramkrishna Karkare. —PHOTO: THE HINDU PHOTO ARCHIVES

Immediately after Madanlal Pahwa’s failed attempt on Gandhi’s life on January 20, 1948, suspicion fixed on V.D. Savarkar as the brain behind the crime. Investigations confirmed the suspicion; evidence at the trial court all but proved his complicity. He, however, escaped with an acquittal.

Deputy Prime Minister Vallabhbhai Patel was convinced of his guilt. In 1969, a Commission of Inquiry set up on March 22, 1965 comprising a respected Judge of the Supreme Court, J.K. Kapur, concluded after a thorough probe: “All these facts taken together were destructive of any theory other than the conspiracy to murder by Savarkar and his group.”

Freedom At Midnight (1976) by Larry Collins and Dominique Lapierre contains a wealth of material since they had access to police and intelligence records besides recollections of key surviving players. Madanlal told the police after his arrest that he had met Savarkar before the attempt and also revealed Godse’s identity: “Hindu Rashtra, A Marathi daily of Poona. Editor: N.V. Godse, Proprietor N.D. Apte, a Savarkarite group newspaper.” The apparel left behind by Madanlal’s accomplices who fled after his failure bore one common laundry mark, the initials ‘N.V.G.’

No policeman could have wished for more. Collins and Lapierre remark that the “inquiry, so well begun, was now to be pursued in a manner so desultory, so ineffectual, as to inflame controversy three decades later.” The ineptness of senior officials in New Delhi was in contrast to the efficiency of the Bombay Police. Jamshid Naganvalla (32), Deputy Commissioner of Police, in charge of the Bombay CID Special Branch, was assigned the case by Bombay’s Home Minister, Morarji Desai, after Madanlal’s attempt. Convinced that Savarkar was behind that, he asked Morarji for permission to arrest him on the basis of Madanlal’s confession. Morarji angrily refused. Naganvalla’s Watchers Branch had kept Savarkar’s house under surveillance. Shortly after the assassination, Savarkar gave an undertaking to the police on February 22, 1948 not to take part in any “political public activity” for as long as was desired.

He was prosecuted all the same. The main witness against him was the approver Digamber Badge. Two other witnesses corroborated his version on his visits to Savarkar’s house. Judge Atma Charan found Badge to be a truthful witness.

On most points his version was corroborated “by independent evidence” but no corroboration was produced in court on his evidence that Godse and accomplice Narayan Apte visited Savarkar at his house on January 14 and 17, 1948. On each occasion Badge was asked to stay outside. On the second occasion he heard Savarkar’s encouraging words to Godse and Apte: “ Yashasvi houn ya ” (succeed and come). The two corroborating witnesses said no more than that the three had got down before the house; but it had two other residents besides. Since the law requires independent corroboration of an approver’s testimony, Savarkar was acquitted.

However, a year or two after Savarkar’s death, his bodyguard, Apte Ramchandra Kasar, and his secretary Gajanan Vishnu Damle, filled the loopholes before the Kapur Commission, which noted: “The statements of both these witnesses show that both Apte and Godse were frequent visitors of Savarkar at Bombay and at Conferences and at every meeting they are shown to have been with Savarkar…This evidence also shows that Karkare was also well known to Savarkar and was also a frequent visitor. Badge used to visit Savarkar. Dr. Parchure also visited him. All this shows that people who were subsequently involved in the murder of Mahatma Gandhi were all congregating some time or the other at Savarkar Sadan and sometimes had long interviews with Savarkar. It is significant that Karkare and Madanlal visited Savarkar before they left for Delhi and Apte and Godse visited him both before the bomb was thrown and also before the murder was committed and on each occasion they had long interviews. It is specially to be noticed that Godse and Apte were with him at public meetings held at various places in the years 1946, 1947 and 1948.”

Had the two testified in court, Savarkar would have been convicted. There was no ambiguity surrounding Godse’s and Apte’s visits to Savarkar on January 14 and 17, 1948. Kasar, Savarkar’s bodyguard, told the Commission that they visited him on or about January 23 or 24, after the bomb incident. Damle, Savarkar’s secretary, deposed that Godse and Apte saw Savarkar “in the middle of January and sat with him [Savarkar] in his garden.”

In his Crime Report No.1, Nagarvala had stated that “Savarkar was at the back of the conspiracy” and that “he was feigning illness.” Nagarvala’s letter of January 31, 1948, the day after the assassination, mentioned that Savarkar, Godse and Apte met for 40 minutes “on the eve of their departure to Delhi.” This he did on the strength of what Kasar and Damle had disclosed to him. “These two had access to the house of Savarkar without any restriction.” In short, Godse and Apte met Savarkar again, in the absence of Badge, and in addition to their meetings on January 14 and 17. Why they were not produced as witnesses in court is a mystery.

Vallabhbhai Patel was vindicated. He had written to Nehru on February 27, 1948: “I have kept myself almost in daily touch with the progress of the investigation regarding Bapu’s assassination case.” His conclusion was: “It was a fanatical wing of the Hindu Mahasabha directly under Savarkar that [hatched] the conspiracy and saw it through.”

Many years later, the BJP had his portrait hung in Parliament House.

http://www.thehindu.com/todays-paper/tp-opinion/how-savarkar-escaped-the-gallows/article4359044.ece