By Sanjeev Nayyar
The National Advisory Council (NAC) headed by Sonia Gandhi has placed in the public domain the draft of a proposed legislation titled Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011.
It appears to be an endeavor to prevent and punish communal violence in the country. According to a key definition of the people who are presumably the focus of targeted violence, “group” means a religious or linguistic minority, in any state in the Union of India, or Scheduled Castes and Scheduled Tribes (SC/ST)….”.
The bill uses the word ‘minority’ as the basis for separating one group from another. However, the Indian Constitution does not define the word ‘minority’. The term minority is used in Articles 29 and 30 of the Constitution. But the circumstances and environment today are very different from what existed 60-and-odd years ago when the Constitution was written.
The composition of India’s population has substantially changed since 1950; the cumulative experiences since then make it imperative to revisit the meaning of the word minority. It is worth noting that barring India, nowhere in the world is a minority defined by religion.
In the United Kingdom, division is based on skin, color and race. However, racial minorities have no special privileges. In the US, affirmative action, not reservation, is allowed for racial minorities, and that too not for religious groups.
According to a Supreme Court judgment of August 2005, “Minority as understood from the constitutional scheme signifies an identifiable group of people or a community who are seen as entitled to protection due to deprivation of its religious, cultural and educational rights by other ‘majority’ communities. Majority here refers to a group or community that is likely to gain political power in elections under a democratic form of government”.
The minorities initially recognised were based on religion and, at the national level we had Muslims, Christians, Anglo-Indians and Parsis as minorities. Sikhs, Buddhists and Jains were not treated as national minorities when the Constitution was framed. In fact, throughout the Constitution, they are treated as part of the wider Hindu community and continue to be governed by codified customary laws like the Hindu Marriage Act.
Post-independence, the underlying rationale for granting minorities special rights were the following:
- Minorities deserved protection of their rights from the majority community, i.e. the Hindus.
- The Hindu community was a monolith which voted solely on religious lines
- Hindus would force non-Hindus to assimilate into Hindu culture.
It is necessary for a Constitutional bench of the Supreme Court to rethink who is a minority since these assumptions are clearly flawed!
First, Hindu society can be considered a monolith only if it were governed by the equivalent of a Church. It has numerous schools of thought which coexist and believe that there are many ways to the same ultimate goal.
Two, by its very nature, Sanatan Dharma allows others to assimilate into its culture. Over the centuries it has absorbed numerous aspects of alien cultures and made some of them its own. India also gave refuge and untrammelled rights to communities that were persecuted in other countries such as Parsis, Jews and Syrian Christians.
Three, during the last 64 years, we have seen that the Hindu does not (usually) vote on religious lines, but does so on the basis of government performance, ethnicity, caste and locality.
Four, the Constitution does not specify a population percentage beyond which a community ceases to be a minority. Muslims, for example, are close to 15% of the population, and growing. They constitute a majority in many pockets of India. They are also in a majority in Jammu & Kashmir, just as Christians are in Meghalaya, Nagaland and Mizoram. The country has had several minority community heads as chief ministers, including the legendary YSR of Andhra Pradesh.
Therefore, the so-called minority group has real political power and rules many states. This was not the situation when the Constitution was written after a violent separation of India and Pakistan. Today it is the so called majority community in Kerala that requires special constitutional rights to protect its religion, culture and education. Ditto is the case in Jammu & Kashmir and many North-Eastern states.
Since the Constitution provides special privileges to minority-run educational institutions - OBC reservations of 27% are not applicable to them and UPA-1 asked banks to treat loans to them as priority sector lending - there is clamour from many groups to be declared as minorities.
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Punjab has been ruled by a Sikh Chief Minister for years and Sikhs constitute 59% of the state’s population, according to the 2001 census. Yet the Supreme Court, in 2008, stayed a Punjab & Haryana High Court order which said that Sikhs were not a minority in Punjab. Similarly, the Ramakrishna Mission petitioned the courts that it be declared a minority. The Supreme Court rejected its prayer in 1995.
The government also provides special scholarships to minorities but ignores economically-backward Hindus. Obviously, this divides the country along religious lines and causes anger against the so-called minority groups.
As human beings, the majority community is no different from minority groups. Therefore, they should also have equal ‘Constitutional and human rights’ to preserve their religion, culture and educational system. But the Prevention of Communal and Targeted Violence Bill, 2011, makes things worse.
Now, let us look at some provisions of the draft Bill. Perhaps the most startling provision relates to rape. If a Hindu rapes a minority community girl, it is an offense, but not the other way round - at least for the purposes of this bill. Can the sufferings of rape victims be different depending on religion?
The draft bill assumes that only the majority indulges in hate propaganda and starts communal riots. But identical offenses by minorities and aggressive proselytisation are not deemed to be offenses.
Further, the draft bill does not clarify if violence by one minority against another is covered under it. Would those Muslims in Kerala, who chopped off the hand of Christian TJ Joseph in 2010 and those Christians (as per a charge-sheet filed by Fr Thomas Kottor, Fr Jose Puthrukayil and Sister Sephy in that order) involved in the rape of Sister Abhaya, again in Kerala, be said to have committed an offense under the draft bill?
In 1984, Congress party workers massacred thousands of Sikhs in Delhi, not as Hindus or Muslims, but as members of a political party. Since Sikhs are now considered a minority, a similar massacre by the Congress party will call for action under the bill. The provisions of this bill could also be used to get rid of the BJP/RSS through backdoor methods and dismiss democratically-elected non-Congress state governments. It is a tool to end all major opposition to the Congress.
The first phase of violence in December 1992 started as a Muslim reaction to the demolition of the Babri Masjid. In order to maintain law and order, the Mumbai police took strong action during which both Muslims and policemen were killed. The bill needs to clarify whether, if the police take action in a similar situation which resulted in the death of members of the minority group, they would have committed an offense under this bill.
The second phase of the Mumbai riots erupted in January 1993 after six mathadi workers (head-loaders) were killed by members of the minority community. Ditto is the case of with the karsewaks at Godhra in 2002. Would this killing be an offense under the draft bill?
Violence can take various forms - physical, emotional and psychological. It also includes hate propaganda. Suppose Hindus were, like Muslims and Christians, to state that their religion is the only way to god and aggressively seek to convert members of the minority groups, would it be an offense under the draft bill?
Misrepresenting the doctrinal creed of Sanatan Dharma is violence. Consistently criticising idol worship without explaining the spiritual significance is violence. So also attempting to convert a person by ridiculing his culture, tradition and gods is violence. Mythology exists in every religion and is not exclusive to Hinduism alone. Thus, misrepresentation of another religion, conversion and unsubstantiated criticism should be covered by the provisions of this bill.
The circulation of hate literature against non-believers is an act of violence. ‘During the Kumbh Mela in 2007, Gospel for Asia, a Texas-based organisation, distributed abusive materials which created tension. (Breaking India, by R Malhotra and A Neelakandan, www.breakingindia.com). The draft bill states that only when hate literature is circulated against minority group is it an offense.
Under this bill, dealing with any law and order problem that arises from communal trouble will become the responsibility of the Central government. The government is already overburdened and unable to fulfill its responsibilities, yet it wants to usurp state powers to deal with communal violence.
The UPA should learn from the past and stop emulating the British colonial strategy of using religion and caste to divide the country and retain political power. The mixing of religion and politics in Punjab resulted in Indira Gandhi’s assassination. During the Cold War, the US used the al-Qaeda to drive the Soviets out of Afghanistan. The same al-Qaeda was responsible for 9/11 in which thousands died.
For over 25 years, Pakistan has used terror as an instrument of state policy against India and is today a victim of the terror infrastructure created by it.
India must get rid of concepts like minority and majority and imbibe the thought behind the Indian greeting of Namaste. It means, I bow to you, and negates or reduces one’s ego in the presence of another. The spiritual meaning is, the divinity in me is what is in you. It is also a way of accepting the equal validity of other spiritual paths and religions.
Can there be a better way to treat all citizens equally? It would unite 120 crore Indians and help her leapfrog to the next level of development.
The author is a freelance journalist and founder of www.esamskriti.com
Published Date: Jun 11, 2011 02:33 pm | Updated Date: Jun 16, 2011 02:33 pm