Past Continuous: Constituent Assembly Debate on Minority Safeguards

A fortnightly column reflecting on chapters of India’s political past that are relevant today.

In the wake of yet another Muslim man being lynched on suspicion of being a cow smuggler, the Bharatiya Janata Party’s labour minister in Rajasthan, Jaswant Singh Yadav appealed to Muslims to “stop smuggling cows and understand the sentiments of Hindus… they must stop this business…”

The Rashtriya Swayamsevak Sangh leader, Indresh Kumar, said that lynching would “stop if people don’t eat beef…develop the right sanskars…”

Vinay Katiyar, the militant face of the Ayodhya agitation who now languishes in the BJP did not want Muslims to even “touch cows” if they wished to stay safe.

But, it was left to Arjun Ram Meghwal, the BJP Union minister of state for water resources, to put this in perspective. He said that instances of lynching are in direct proportion to Prime Minister Narendra Modi’s popularity: “The more Modiji becomes popular, such incidents will keep occurring…”

Meghwal though, got the sequence wrong. Modi and the BJP’s popularity do not ’cause’ instances of lynching. Instead it is because of such attacks – pre-meditated or spontaneous – which are neither condemned nor investigated adequately, that society gets polarised and helps BJP to consolidate support among the Hindu majority.

Clearly, protecting cows is more important now than providing safeguarding minorities. This unfortunate development seeks to erase the exhaustive and sensitive constituent assembly debates on minority safeguards and provisions that must be included in the Constitution.

These debates witnessed were over a two year year-period seven decades ago. Conducted in the Assembly as also in the Advisory Committee on Fundamental Rights and Minorities formed under the chairmanship of Sardar Vallabh Bhai Patel before partition and its Sub-Committee on Minorities  (one of its four such groups constituted as part of Patel’s initiative, which was symbolically headed by H.C. Mookerjee, prominent Christian leader of Bengal and vice-president of the Constituent Assembly), they were based not only on “nature of Indian society, expectations of various ethnic groups and commitments made by the Congress, but also by the historical experience of Partition.”

Seven decades ago when the Patel-led Advisory Committee – significantly, it was constituted to make recommendations on fundamental rights and minority safeguards, indicating that the latter issue was given equal importance as fundamental rights for all citizens – deliberated on the crucial issues it was tasked with, the group considered not just religious minorities but also caste, tribal and linguistic minorities.

The broad understanding of who must be considered as minority groups indicated that makers of the Indian Constitution recognised that there was continuing and disproportionate “domination of almost every position of privilege by the upper castes and the majority community.” Minority issues were deliberated because every member of the Constituent Assembly recognised that unless safeguards were created, minorities would never be able to gain parity with the majority and basic features of the Constitution and its commitment to a plural and democratic polity would remain mere lip-service.

In contrast to the assertions of the BJP leaders mentioned earlier, the makers of the Indian Constitution were certain that the Indian State must be formally committed to protect the distinct cultural, linguistic and religious practices of various communities. These provisions which were enacted to enable the government to safeguard private sphere of communities from violation are being repeatedly challenged and labelled as political compromise.

These measures have been demonised in recent years, in greater measure since 2014, with indications that this line of attack with will be intensified in the run-up to the 2019 general elections. Even the Constitution, especially these provisions, which Modi refers to as his ‘Holy Book’, is being sought to be delegitimised by mobs which pursue the agenda of the Sangh parivar, in certain cases without formally being part of it.

Paradoxically, the Constitution of India used the word ‘minority’ or its plural form – ‘minorities’ in Articles 29, 30, 350 A and 350 B, but does not define it anywhere. Article 29 in the section on “Cultural and Educational Rights”, has the following written in the margins:

Protection of interests of minorities” and confers on citizens, in any part of the India, “having a distinct language, script or culture” the right to “conserve the same.” This clause also provided that no citizen would be denied “denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

In recent years, heckles of majoritarian groups has been raised over Article 30, which states in the margins that it is aimed at conferring rights to “minorities to establish and administer educational institutions.” The primary ‘evidence’ of institutionalised appeasement of minorities, read Muslims as well as Christians in this case, is part 1 (A) of this Article which makes the following declaration:

The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

The attack often cites the situation of religious minorities in Pakistan. But then, Indians chose a different path. Or, is this criticism acceptance of what Pakistani poet, Fahmida Riaz sardonically wrote: Tum bilkul hum jaise nikle or Turned out you were just like us?

The remaining two Articles, 350 A and 350 B, relate to linguistic minorities only. The final shape of minority safeguards in the Constitution underwent significant change from what was initially proposed by the Sub-Committee and its parent Advisory Committee. Initially, ten Articles relating to minorities were drafted and these Articles (292-301) were put under Part XIV with an eponymous title – Special Provisions Relating to Minorities.

These recommendations included (still) debatable matters like religion-based reservations in legislatures and to provide for “claims of all minorities”, being considered for “making of appointments to the public services,” in essence, reservation in government jobs. Additionally, Article 299, committed the State to appoint “Special Officers for Minorities for the Union and the States” thereby demonstrating that at this stage, the Constitution makers – that this included Patel is significant in today’s political context – provided safeguards to ensure adequate representation of minorities in legislatures, public services and also in prescribing an institutional mechanism through appointment of designated Special Officers.

It is necessary to factor in that the process of constitution-making was begun before Partition became a reality consequent to which the cataclysmic uprooting of millions of people on either side from the lands of their birth and Mahatma Gandhi’s assassination considerably altered the framework of debate and the way in which minority rights were considered by the Constituent Assembly. There was clearly not one viewpoint among its members and opinions ranged from “dogmatic secularists, those favouring ‘unity in diversity’, majoritarian Hindus, Gandhian critics and minority advocates of special rights or protection.”

In the debates that took place seven decades ago, especially in the period following the twin tragedies that gripped independent India, all deliberations on minority rights underwent changes through a three-phased process. In the first phase, the Assembly rejected the idea of separate electorates which had existed in colonial India.

File picture of Jawaharlal Nehru, Mahatma Gandhi and Sardar vallbhbhai Patel. Credit: Wikimedia Commons

In the second phase, the idea of reservations for religious minorities was rejected in legislative bodies but there was broad acceptance of reservations in public services. It was in this phase that the idea of reservations for SCs and STs in legislatures (on joint electorate) and  also public services got accepted. In the final phase, even the provisions for reservation of jobs in government for religious minorities was rejected. Eventually, no special rights except cultural and educational, were conceded to religious minorities.

The change in position was principally led by Patel who in a letter in May 1949 to the President of the Assembly, Rajendra Prasad, referred to the “changed circumstances” following Partition. Although this appeared a toning down of minority safeguards, it was finally decided that when it comes to the State making any special provisions for ‘backward classes’ of citizens, the government was “constitutionally authorised to make special provisions for religious minorities on the ground of their backwardness.”

Clearly, the final nature of minority safeguards involved considerable give-and-take from various groups articulating divergent opinions. Yet, in its spirit, the primary goals of the exercise, listed by Jawaharlal Nehru in the Objectives Resolution he moved on December 13, 1946 which spelt out that “adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes,” were covered by various Articles of the Constitution that conferred religious, cultural and educational rights to minorities, a few as member of the minority community and others as common citizens of India.

It remains debatable if adequate safeguards were provided to religious minorities and if the goal specified by Gobind Ballabh Pant when moving the resolution for the setting up of an Advisory Committee on Fundamental Rights and Minorities were met or not. In justifying the need to set-up the Advisory Committee, Pant stated:

“A satisfactory solution of the question pertaining to minorities will ensure the health, vitality and strength of the free State of India… . So far, the minorities have been incited and have been influenced in a manner which has hampered the growth of cohesion and unity. But now it is necessary that a new chapter should start and we should all realize our responsibility. Unless the minorities are fully satisfied, we cannot make progress; we cannot even make peace in an undisturbed manner.”

The safeguards for religious minorities were not ideal and was instrumental in them, as a community, being disempowered because they ‘lagged behind’ and thus further become victims of segregation. Political parties initially harnessed minority insecurity by periodically handing out sops providing a window for a political party advocating majoritarian viewpoint to harness electoral support of the majority. With the advent of BJP too, this has happened, although till it was dependent on allies for parliamentary majority, it was somewhat restrained in its pursuit of unitarist nationalism.

This is no longer necessary post 2014, as a result of which, individual rights of people from religious minorities are routinely being isolated and security provided is no longer guaranteed since the political leadership does not frown adequately on the law enforcing agencies for their failure in providing protection. With political endorsement of such persecution at the local and state level, minorities are being made aware at every stage of their life what it now means to be a member of a religious minority in the land of their birth.

There is a worry bigger than this too: minority opinion assertion is also now intensely risky and is turning not just intellectually challenging but becoming a physical hazard. From a time when members could fearlessly debate one another in the Constituent Assembly and people could take positions based on that discourse, the message being passed on now is that silence is a virtue. However imperfect and with its shortcomings, the Indian Constitution still offers numerous safeguards to not only religious minorities but other marginal groups as well. The Constituent Assembly debating this issue seven decades ago serves as a timely reminder of how rational lawmakers can go about balancing sensitive issues and forging political consensus.

Nilanjan Mukhopadhyay is a Delhi-based writer and journalist, and the author of Narendra Modi: The Man, The Times and Sikhs: The Untold Agony of 1984. He tweets @NilanjanUdwin.