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MINORITIES, DEMOCRACY AND STATE
By Asghar Ali Engineer
No society in the world now is uni-lingual, uni-religious or uni-cultural.
And in democratic set-up even melting pot model on which America prided
itself, is no more valid. America could retain melting pot model as long
as the migrations were chiefly from Europe. The European people shared
common western civilisation and Christian religion (although it was
divided in different sects) and could agree to melt their identities into
one identity i.e. American. But the whole scenario changed after second
world war when peoples of Africa and Asia began to migrate to America (and
also to Europe) and these peoples were of highly diverse religious,
cultural and linguistic background. These peoples refused to melt their
identities into American one and doggedly insisted on retaining their own
identities. America too, thus left its melting-pot model behind and
accepted the mosaic model. Now all people in America emphasise their
respective religious, linguistic and cultural identities, particularly the
Asian and African minorities. Today in America here are various religions
Islam, Judaism, Hinduism, Buddhism, Native American in addition to
Christianity of various denominations.
Recently, even the President of USA Mr. Clinton officially recognised this
fact and he issued a statement that USA is a multi-religious and
multi-cultural society and that all religions will be equally free and
will have place of their own in American society. Earlier in June, 1997
Clinton had also apologised to the African Americans (a term currently
used officially for the blacks ) for the discrimination they suffered in
the past.
In India too, when it became free, some people wanted to put emphasis only
on one identity i.e. Indian national identity subsuming all other
identities. In other words they wanted to develop a variant of American
pre-second world war melting pot model. But it did not succeed as Indian
historical experience had been quite otherwise and also democratic
processes encouraged diversity. In India throughout medieval ages diverse
identities be it religious, caste or cultural one, had been meticulously
preserved. The national leaders, particularly Mahatma Gandhi, Nehru, Azad
and others had coined the slogan unity in diversity which some modified to
emphasise the diversity further as 'unity with diversity'.
It should be understood that all of us have multiple identities religious,
linguistic, cultural, regional and caste or biradari identities. No one
can claim single identity. One who demands single identityi.e. national
identity do not recognise the reality. Such postures of emphasizing single
identity are often ideological, not real. Reality is too complex to be
caught in ideological slogans. Functioning of our democracy is very much
based on these diverse identities and the very concept of vote-bank
politics implies this diversity.
Along with the question of diversity the question of majority and minority
becomes important for a functional democracy. Some do maintain that in a
democracy there should only be a political majority and minority not
religious or cultural one. Also those who maintain this point out that
religious or cultural majority varies from state to state in India. For
example, Muslims are a majority in Kashmir and Christians are in Nagaland
and Mizoram. Sikhs are in majority in Punjab. Of course, the Jains and
Buddhists have no majority state or even a majority province.
But this could be a valid argument only if all discriminations and
religious and cultural prejudices are wiped out. Such a liberal democracy
does not exist anywhere in the world, not even in the western sphere where
it originated a couple of centuries before. Moreover, much depends on
historical context and specificities. India had the unique experience of a
Muslim minority which was dominant and ruling in medieval period becomes a
dominated minority with the coming of British. Thus a dominant minority
when it becomes dominated minority all of a sudden it results in complex
problems. The Hindu-muslim relations in India or problems of Muslim
minority in India, has to be seen in this context.
Our country would not have been divided in 1947 but for this reason. The
muslims developed a fear psychosis of the religious majority. The muslim
elite felt that they were the rulers until yesterday and now they will
have to live under the 'Hindu rule'. Some developments, not to be
discussed here, accentuated this psychology. To compensate for this fear
the Muslim elite demanded over representation in central legislature and
this could not be granted and the country got divided.
Since the Indian leaders had burnt their fingers, they wanted to provide
proper safeguards for minorities in independent India. Even before
independence the congerss leaders had given certain assurances to the
minorities. These assurances had to be converted into constitutional
guarantees. The framers of the Constitution tried to redeem their pledge
to religious, linguistic and cultural minorities as best as they could.
Creation of linguistic states in mid-fifties created linguistic minorities
also practically in every state.
Articles 25 to 30 in part III of the constitution extend these guarantees
to all categories of minorities religious, cultural and linguistic.
Article 25 relates to freedom of conscience and religion. It says
"Subject to public order, morality and health and to other provisions
of this part, all persons are equally entitled to freedom of conscience
and the right freely to profess, practice and propagate religion. This is
one of the fundamental rights guaranteed to the citizens of India by the
Constitution."
However, two things are to be noted here. Firstly, it is the right
guaranteed to all citizens, not only to religious minorities. Also it is
not merely an individual right but also a corporate right. The individual
as well as a religious community is free to avail of this right and can
have collective manifestation. It also raises some important questions.
Will this right to profess, practice and propagate will include the right
to practice ones personal law and also will it include right to
conversion.
There is no unanimity among the Supreme Court judges on this question.
Some judges feel it includes the right to adhere to ones personal law
whereas other assert it does not. In one case the Supreme Court judges
even asked the Union Government to file an affidavit as to when it is
going to implement the Article 44 of the Directive Principles of the
constitution relating to imposition of uniform civil code. But some judges
felt that the Article 25 includes the right to practice ones personal law.
The argument that one country should have one law looks logical but as far
as human society is concerned mere logic does not help. Historical
traditions and religious practices have their own force. Also historical
context has its own significance. In Hong Kong for example, the slogan was
'one country, two systems' when the British left and China took over. This
may appear illogical but historical context makes it the only acceptable
solution. The minorities of course maintain that the Article 25 includes
the right to adhere to once personal law as these laws are integral part
of religion.
Similarly, the Christians maintain that right to conversion, apart from
their personal law, is integral part of their religion and the wording of
the article includes 'Propagating' ones religion and this implies right to
conversion. Again this too is controversial like the issue of personal
law. It is also important to note that the minority communities themselves
are divided on this question. There is no unanimity of approach. The
liberal elite of the Muslim community for example, feel that either the
Muslim personal law should be reformed or uniform civil code could be
applied. Similarly, among the Christians, many feel that one should not
insist on conversions and it should not be projected as an integral part
of ones religion. But it is true that the majority in minority communities
tend to be conservative.
The article 25 (2)(a) also specifies that "Nothing in this article
shall affect the operation of any existing law or prevent the State from
making any law regulating or restricting any economic, financial,
political or other secular activity which may be associated with religious
practice." Thus it will be seen that the State retains its right to
legislate in matters secular associated with religious practices. This
should prevent conservatives in a religious community or vested interests
from preventing the State from making certain progressive laws which come
in the way of a section or all the members of a religious community. The
Ajmer Dargah Shariff Act, for example, was enacted under this provision of
the Article 25 (2)(a).
The keepers of the Dargah could not be allowed to use the cash offerings
in an uncontrolled way. It should, and has come, under the purview of
enactments to utilise money offered at the Dargah for the purpose for
which it has been offered by the devotees. It cannot be considered as the
curtailment of the fundamental right guaranteed under Article 25. Thus
Article 25 imposes limits on both citizens as well as the state. The
citizens cannot prevent state from making certain laws for the benefit of
the community and also the State cannot totally disregard the spirit of
the Article 25 while enacting the laws. It was for this reason that the
Union Government submitted an affidavit to the Supreme Court that it in
not possible for the government to enact uniform civil code in the
country.
The Articles 29 and 30 relate to cultural and linguistic minorities as
much as the religious minorities. According to Article 29 any section of
citizens residing in any part of India having a distinct language, script
or culture of its own shall have the right to conserve the same . The
second part of the Article provides that no citizen whatever her/his
religion, race, caste or language shall be denied admission in any
educational institution maintained by state or out of funds received from
State. Article 30 on the other hand, allows all minorities, whether based
on religion or language, to establish and administer educational
institutions of their choice.
Both the Articles 29 and 30 are quite important for promotion of religion,
language and culture of minorities. But particularly Article 30 has kicked
up lot of controversy as various smaller sects of Hindus like the Rama
Krishna sect have claimed minority status for the sake of their
educational institutions. Similarly linguistic minorities like Gujratis in
Maharastra have claimed privileges under this article. In some cases the
matter has assumed serious proportions and it has been referred to the
Supreme Court that the concept of minority be properly defined. The
Supreme Court constituted a nine judge bench for this purpose but it is
yet to take up the matter.
Controversies are bound to be there but what is important is the provision
of these articles in the constitution for promoting minority religions,
languages and cultures. These rights are very fundamental to a democracy
so that all could flower and prosper in a democratic set up. It is also
true that notionally the Indian State has been secular but functionally it
has faltered several times making minorities feel discriminated in various
ways. While the state should take all possible steps to implement
Constitutional guarantees the minorities should also understand that the
State is run by human beings with all their weaknesses. Majority-minority
problems would always exist even in advanced democracies. A section of
majority in every country develops chauvinistic tendencies and puts
pressure on the government to be guided on majority religion, race or
culture . But this gives rise to serious conflict in the society and can
also result in bloodshed as we witness in Sri Lanka. Thus the stability of
the country can be guaranteed only when both majority and minority adopt
reasonable and balanced stand on matters of their rights. Extremism on
either side will tear the society apart.
Source: http://www.dawoodi-bohras.com
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