People's Democracy

(Weekly Organ of the Communist Party of India (Marxist)

Vol. XXX

No. 05

January 29, 2006

A Secular State Has To Safeguard Minority Rights


Teesta Setalvad

SIX decades of a secular democratic republic should mean serious advancements for the majority of Indians in terms of their socio-economic basic rights to life and dignified survival [i.e. life, livelihood, education, health and opportunity] and equal non-discriminatory opportunity. A socio-economic audit that stares India in the face due to the dedicated work of academics and political activists and formations firmly rooted as Left shows an abysmal failure in this area. Time it is not simply to take stock of the genuine non-realisation of socio-economic basic rights of all Indians but their marginalisation and discrimination from mainstream India’s consistent public eye.


The structures of the Indian media, especially since the aggressive assault of globalisation since the late eighties, reflect and typifies the growing and callous disregard of urban consumption driven Indians to the wider realities of India. Disturbing as this is, it is the deep alienation that the political structure(s) of our democracy have increasingly developed from the mass of Indian people that have led not only to the steady de-democratisation of Indian democracy but the utter alienation of masses of our people from voice, access, and rightful and fair demand.


It is not only the Indian political class and parties that often and easily come in for bashing and criticism that are at issue — though they cannot escape their role in bearing their 5-year electoral responsibility once they are elected lightly and without conscience, even reducing parliament and legislatures to a joke — but the executive itself, the government, its existence, role, and day to day functioning that is completely colonial and dictatorial, far from reach, accountability and transparency to the very Indian people from which it ostensibly draws strength. As serious is the deep alienation that the mass of the Indian people have from access to the institutions of redressal(s), the august Indian judiciary where a failure to have public audits and stock takings, resistance to any level of transparency has contributed to its overall degeneration.


It is no wonder that the words of Dr Ambedkar come to haunt us in this sixth decade. When he made the brute proposition that mere political independence is not enough, it is not what the Indian people can or should be satisfied about, rather what we need is social, economic indepednece from the clutches of political and societal structures of discrimination and denial that he was brutally and consciously sidelined, some even dubbed him a traitor. At issue today on this critical day of India’s republic is basic public transparency and audits of every government decision, social, political and economic made with the sovereign power of the Indian people.




Though our constitution enacted fifty five years ago gave us some fundamental rights, it restricted basic, socio-economic rights to a duty or obligation of the Indian state, its directive principles. It is time to consider fundamental changes in the constitution to include the right to free and quality education to all, free and quality health to all, free and quality livelihood to all as fundamental rights that can be enforceable. State policies and policies of institutions of education, health and livelihood can then be audited publicly against all these fundamental rights.


Merely granting rights on paper, even if it is the august pages of the Indian constitution, is simply not enough. To enforce rights accorded in lofty charters or documents, any state that means for its people to actualise these rights must provide for mechanisms within our so-called democratic structures and systems with mechanisms for enforcing these rights. It is only then that rights come alive, that equity and non-discrimination are given life and blood.


Take for example the current raging debate on reservations for Muslims, a vast majority of whom, no one denies, fit the category of socio-economic backward classes. No, say the liberals and progressives, the burden of the memory of partition is too great, do not use the word reservations, say instead affirmative action. Accepted. How then are we going to ensure that in every walk of life our institutions of state and private enterprise—be they government, industry, education, health, bureaucracy and the law enforcement machinery — will in fact come alive to this notion of providing affirmative action? How will they ensure that the pathetically low presence of all religious minorities, especially Muslims, in all walks of life, where a glass ceiling of prejudice is in place, should not be a Muslim concern but a matter of public, Indian secular shame?


Consider this history. Having given ourselves a constitution in 1950, we began our serious engagement as a society, a people and a civilisation with inviolable notions of human dignity enshrined in the right to life, freedom, equality, non-discrimination, freedom of faith and so on. Even as we entered into this solemn contract we recognised our flaws and failings and that is why at the outset we enacted sub-sections as amendments to the initial articles: articles 15 (4) and 16(4-A) in 1951 and 1995 respectively.


These articles in the section on fundamental rights, including article 16 (4), which has been there since the inception of the constitution, qualify the articles on ‘prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’ (article 15) and ‘equality of opportunity in matters of employment’ (article 16) by empowering governments to make special legislative provisions for scheduled castes and tribes and socially and educationally backward classes (SEBC) of citizens.




The drafting history of article 16 (4) reveals that all members of the Constituent Assembly, which included Vallabhbhai Patel (the chairperson of the committee), K M Munshi and Shyama Prasad Mukherjee among others were unanimous in their opinion that ‘socially and economically backward classes of citizens’ included minorities as a category. A serious apprehension then expressed by Frank Anthony at the ‘non-inclusion specifically of the term minorities’ should seriously prick all Indian consciences if one pauses to consider the plight of minorities today.


Why has the crucial drafting history of this article not influenced, in any way, judicial pronouncements, political discourse or executive action in post-Independence India? Has there been in any sense a silent denial of not simply the political de-privileging of India’s largest minority, Muslims, but a denial compounded by an absence of serious concern over the Indian Muslims’ socio-economic index? The debates in the Constituent Assembly that began in 1946 and concluded with the final draft of the Indian constitution in October 1949 were conducted in parallel with a violent upheaval on the ground. That upheaval was bitter and bloody with unprecedented communal bloodshed resulting in the partition.


This is what, we are told, influenced the tenor and spirit of the Constituent Assembly debates and led to the inclusion, non-inclusion, specification and non-specification of crucial issues relating to the political safeguards for the minorities. Ironically, the religious safeguards, including the non-interference of a ‘secular’ state in the personal laws of religious communities, a non-interference that has directly impinged on the rights of all women, was vigorously debated and demanded by Muslim leaders.


These political safeguards that earlier were sought to be included and figured in the first draft of our constitution, published in February 1948, have a specific relevance when we consider the abysmal social and economic indices of the Muslim community in India today. Among the political safeguards included and then dropped was that of representation (not reservations) of all minorities in central administrative and provincial services, with the further stipulation of a special security officer at both the central and provincial levels to monitor and report on the status of minority presence in the services. It is such measures to ensure that non-discrimination can be agitated against that are the need of the hour. Similarly to access judicial redressal and ensure transparency from the law enforcement machinery, independent human rights officers, owing direct allegiance to the National Human Rights Commission [NHRC] must be appointed to all courts and police stations who record public complaints of misdemeanour. These must be responsibly assessed and a public audit made — periodically.


The National Sample Survey conducted in 1998 reveals shockingly that though Muslims are more than 12 per cent of the total population, their representation in the IAS is only 2.86 per cent and in the IPS, 2 per cent. A shocking 52 per cent Muslims live below the poverty line as compared to 30 per cent of other Indian communities. Worse still, their representation in government jobs, armed and police forces, and Indian administrative and foreign services (IAS and IFS), has at no time exceeded 4.5 per cent during the last 50 years.


Contrast this to the zippy run-up and in swing of Irfan Pathan, from a bruised and battered Vadodara in Gujarat, who is among the icons of Indian cricket nationalism today. Or the Aamir, Shah Rukh and Salman Khans, who are the heartthrobs of millions! Clearly, in fields and arenas of free and fair play, Muslims can and do excel on their own and need no prop.




It is where the Indian state has a role and responsibility, whether in building enough of the right kinds of schools in areas where Muslims reside (a similar disinterest is noticed when it comes to Dalit or tribal education) rather than police stations, or in employing Muslims in public services that the Indian state has well and truly failed.


The issue of the absence of Muslim presence in state and central administrative and police services, the army even, as also the issue of the social and economic backwardness of the community as a whole is not an issue of only Muslim concern. Fifty-seven years down, if we consider ourselves an enlightened democracy, a stable democracy, the socio-economic index of the largest Indian minority ought to be a concern for all of Indian society because this ultimately is the litmus test of both enlightenment and stability.


At another level, however, there remains the critical issue of the ‘creamy layer’ among Muslims, that is strongly voiced in the opinions of people like Shabbir Ansari of the All India Muslim OBC Federation and Eijaz Ali of the All India Backward Morcha - United. Both for the reasons so eloquently put forward by them, as much as for the fear that such reservations may actually heighten communal polarisation, it would be well to frame the argument for reservations in terms of social and economic backwardness and not in religious terms.


But to speak of the Muslim socio-economic index and argue for reservations for the socially and economically backward among them while we remain silent on the issue of adequate representation for Muslims as Muslims in critical public areas as mentioned above would, I think, be, as it was 60 years ago, missing the wood for the trees.


Let’s face the facts. Serious cracks have threatened the very fabric of Indian democracy and these have developed around the critical issue of the inability of the state to adequately protect the life, property and dignity of its religious minorities, both Muslim and Christian.


For the Muslim or the Christian, be she or he from Malabar Hill in Mumbai, Naroda Patiya in Gujarat, or Jhabua in Madhya Pradesh, life or survival with dignity are constantly under threat. Faced with these nascent trends in the early eighties itself, the National Police Commission (1981) had voiced its view against reservations in the police force but clearly stated: "The composition of the force should reflect the general mix of communities as it exists in the society and thereby command the confidence of different sections of the society."


What has any government done to implement this recommendation? Instead, we have a state like Gujarat that has systematically disenfranchised Muslims out of the police and state administrative cadres over the past decade (See "Genocide Gujarat 2002," Communalism Combat, March-April 2002).


The issue of a rich and varied, multicoloured Indian police, Indian administrative service, Indian army, as also the average school classroom is, or should be, as much of a concern for Hindu India, because it is an issue related to the revival and revitalisation of Indian democratic institutions and Indian democracy – not merely because it also means giving a fundamentally better deal to Indian Muslims.




And while on the subject of religion-based reservations, a well-concealed fact that needs to be admitted into the debate and rhetoric is the constitutional and unfair privileging of Hindu, Sikh and neo-Buddhist scheduled castes even as the Dalits among Muslims and Christians are denied their fair share on grounds of their faith.


(There are other Indian laws, too, that unfortunately privilege the Hindu majority including sections of the Hindu Undivided Family norm that benefits Hindus under the Income Tax Act as also the late seventies’ amendment to the Special Marriages Act that privileges the Hindu partner in a ‘secular’ marriage but I will not go into these details here.)


The whole issue of reservations per se has caused much resentment among the middle class youth who perceive this practice as a denial of their fundamental right to education, employment and promotion based on merit. In a country like India, with wide disparities in class, caste, region, etc., where there are just too many candidates for the proverbial share of a limited and shrinking cake, what should the outer limit on reservation be? Put differently, how many seats should there be for the ‘open’ category?


Resentments over job-driven reservations also simmer as latest National Sample Survey data show a much higher unemployment among ‘educated youth’ (8.8 per cent) than among the illiterate (0.2 per cent) and semi-literate category (1.2 per cent).


The SC had ruled, after the Mandal commission report was accepted and the agitation that followed, that the outside limit on reservations ought to be 50 per cent. But in many educational institutions, all told, the reserved seats add up to a staggering 80 per cent. The irrational, non-standardised and non-examined application of government policy/ruling on this crucial issue builds up resentment as much as the declaration of public policy without sufficient public debate and the seeking of consensus.


Within the debate, we also need to address the fact of influential castes seeking political favours. The last NDA government wooed the Jats of Rajasthan by including 130 more categories as backward classes under the Mandal category, as a cover for giving Jats the benefit. And former Congress chief minister, Ashok Gehlot of Rajasthan contemplated giving the economically backward among the savarnas reservation to elicit their influential support. In both moves, the raison d’être behind the concept of reservations as contained in articles 15 (4) and 16 (4) and (4-A) became seriously flawed and vitiated.


It was the issue of centuries old discrimination, denial and oppression by a caste Hindu society that lay behind the reservations granted as a constitutional right, not privilege, to both SCs and STs. The issue of generational under-privileging sanctified by the caste structure affected the construction labourer, the agricultural labourer, the manual scavenger, the sweeper, the rickshaw-puller, the cycle and car mechanic, the brick kiln worker, the butcher, the weaver, etc. etc. They were denied all manner of basic human rights: the right to existence, livelihood, education, freedom and health.


A socio-economic examination of these sections of the underprivileged reveals for those of us who wish to see it that these sections among our underprivileged are also, for the most, Dalits, tribals, other backward castes, and also Christians, Muslims, Hindus, Sikhs and neo-Buddhists. A fair examination reveals that 60 years have not been enough to level the playing field.


Sixty years down, debates on the pros and cons of reservations/affirmative action would do well to consider that.