by Hilal Ahmed
The establishment of the commission was also a political phenomenon. The opposition for such a body came from two very different ideological spectrums. The Congress opposed it precisely because it was the outcome of the politics of anti-Congressism that was nurtured and practised successfully by the JP.
The BJS, which was a constituent of the JP, was also uncomfortable with it. It was obviously going against the politics of the BJS, which had always evoked ‘appeasement of minorities’ as its core ideological position. L.K. Advani’s speech in the Parliament in 1992 is a revealing example of this political anxiety. Opposing the National Commission for Minorities Bill, 1992, Advani said:
I hold myself guilty for having been party to the creation of the Minorities Commission even though on an administrative level without any statutory back-up. I was in the Government [. . .] The manifesto of the Janata Party issued in 1977 spoke about a Civil Rights Commission, not about a Minorities Commission. That became an aberration, a distortion [. . .] Now this [passing an Act for the Commission in 1992] is being done by the Congress Party [. . .] I am sure that if the BJP had not been there in this strength, you would not have been satisfied with this kind of statutory status. It is a relief that you are not able to give a constitutional status [. . .] This kind of Bill is addressed in name of course to the Christians, to the Parsis, to the Sikhs, etc., but actually it is addressed only to one section [. . .] You are going to commit a similar kind of monumental and historical blunder by passing this Bill.7
One can easily point out two kinds of anxieties here: technical and political. The Minorities Commission was just a non-statutory body in 1978 which was to be given the status of a statutory body in 1992. Despite this apparently weak status, it was seen as a problematic institution. In fact, it was presented as a distortion of the Civil Rights Commission.
Secondly, the creation of the Minorities Commission was interpreted as the political appeasement of religious minorities in general and Muslims in particular. It is worth noting that the commission did not make any attempt to ‘define’ the meaning of the term ‘minority’. It relied on an unspecified expression, ‘minority’, to safeguard the interests of numerically inferior religious and linguistic groups. However, the political class offered concrete meaning to it.
Two important points come up here:
Institutional moves (such as the Minorities Commission) to address the issues and concerns of those groups, who were designated as minorities, were always politicized as a Muslim-related initiative. The Muslim political elite also contributed to it.
The institutional response of the state to deal with the grievances of minorities paved the way for a new political binary: the Hindu majority as a victim of Muslim appeasement versus Muslims as a victim of communalism in the mid-1980s.
Muslims as a defined national minority!
In the post-1992 period, a third feature of being a minority, namely, backwardness and marginalization, evolved. In 1992, the National Commission for Minorities Act was passed, which led to the establishment of the National Commission for Minorities (NCM) in May 1993. The act, in principle, recognized the need to evaluate the reasons behind the relative marginalization of those religious communities which were recognized as minorities at least at the state level.
Following this mandate, the Government of India notified five religious communities: Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) as national religious minorities in October 1993. This list was amended in 2014, when Jains were notified as a national minority.
Does the act of defining minorities at the national level symbolize a departure from the established constitutional principle? Or is it an extension of the principle—an attempt to fill up the emptiness of the official category called ‘minority’?
Indian courts have responded to these questions in an elaborated manner. The judiciary has conceptualized the ‘distinctiveness’ as the decisive legal criterion. In addition, the courts have also given emphasis to the spatial location of a social group to interpret religious and/or linguistic distinctiveness.
The famous DAV College case of 1971, for instance, very clearly offers us a broad legal principle to recognize a minority. Discussing the interrelationship between Articles 29 and 30 of the Constitution, the Supreme Court conceptualizes ‘distinctiveness’ as the decisive legal criterion.8
The court also discussed the spatial location of a social group to substantiate and concretize its own interpretation of religious and/or linguistic distinctiveness. It is argued:
Though there was a faint attempt to canvas the position that religious or linguistic minorities should be minorities in relation to the entire population of the country, in our view they are to be determined only in relation to the particular legislation which is sought to be impugned, namely that if it is the state legislature, these minorities have to be determined in relation to the population of the state [. . .] It is undisputed, and it was also conceded by the State of Punjab, that the Hindus of Punjab are a religious minority in the state though they may not be so in relation to the entire country.9
The observation that a minority should always be recognized at the level of the state has actually evolved into a legal principle in later years. For instance, in the T.M.A. Pai case, the Supreme Court once again asserted, ‘With regard to a state law, the unit to determine a religious or linguistic minority can only be the state.’10
The notification of a few ‘national religious minorities’ by the Central government is not seen as a deviation from established legal principles, especially by statutory bodies like the the NCM. In an official note to the ministry of home and the nodal ministry, dated 30 July 1997, the NCM clarifies:
A national-level minority shall have the status of a minority in the entire country irrespective of its local population. This will be so even in a state, region or district where such a minority is factually not a minority in numerical terms. In a particular state, a religious community which is not a national minority recognized by the NCM Act (like the Jews and Bahai) may be recognized as a regional minority.11
This note also makes another interesting point to justify the government notification of 1992. Evoking the constitutional commitment to affirmative action, it is argued:
There is thus nothing in the Constitution making it doubtful whether minorities based on religion or language can be lawfully identified as particular classes of citizens requiring special protections and safeguards. On the contrary, all intrinsic aid to the interpretation of the Constitution, as also the up to date judicial trend, point out that religious minorities—like religion-based Scheduled Castes—can be treated as specific identities entitled to special protection by the state.12
The relationship between ‘distinctiveness’ and ‘backwardness’ as the two determining principles to define a religious group as a constitutional minority, we must note, is not a fully resolved legal issue. There is a strong possibility that distinctiveness might be understood primarily in terms of the numerical inferiority of a community in a particular geo-cultural context; hence, the spatial location of a group becomes a significant point of reference for the judiciary to identify a minority at the state level.
On the other hand, backwardness is a much broader concept, which points towards various national-level processes of social exclusions. In this case, a community of backward communities living in different spatial locations may also be interpreted as a minority, with reference to national population of different social–religious groups.
For example, Muslims in the state of Bihar constitute a distinct religious community; therefore, they are recognized as a state minority. At the same time, Muslims are also recognized as a national minority by the NCM Act, 1992, as their overall ‘development’ at the national level has been an important policy concern.
In other words, if a minority is to be defined with regard to a national law, the national status of a community has to be taken into consideration; however, if it is a ‘state l
egislature, these minorities have to be determined in relation to the population of the state’. (1971 AIR 1737, 1971 SCR 688).
The contest between ‘undefined minority’ and ‘defined minority’ found an interesting manifestation in relation to the recent debate on citizenship. In July 2016, the government introduced the Citizenship Amendment Bill in the Lok Sabha. The bill amends the Citizenship Act, 1955, to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan eligible for Indian citizenship. The ‘Objective of the Bill’ statement states:
Many persons of Indian origin including persons belonging to . . . minority communities from the aforesaid countries have been applying for citizenship under Section 5 of the Act, but are unable to produce proof of their Indian origin. Hence, they are forced to apply for citizenship by naturalization under Section 6 of the Act, which, inter alia, prescribes twelve years residency as qualification for naturalization in terms of the Third Schedule to the Act. This denies them many opportunities and advantages that may accrue only to the citizens of India, even though they are likely to stay in India permanently. It is proposed to amend the Third Schedule to the Act to make applicants belonging to minority communities from the aforesaid countries eligible for citizenship by naturalization in seven years instead of the existing twelve years.13
The bill, as it appears, relies heavily on the defined category of ‘religious minority’ in only three neighbouring countries (Afghanistan, Bangladesh and Pakistan) where Muslims are in the majority. In this sense, the bill seems to underline the argument that the religious configuration of minority–majority in India is inextricably linked to a few particular countries of South Asia.14
Four crucial issues are important to underline here:
In 1992, a process of defining the minorities on a permanent basis began.
Only five national religious minorities have been notified by the state. This does not apply to the linguistic minorities.
A minority can only be identified at the state level for the purpose of constitutionally recognized minority rights. However, for identifying the backwardness and marginalization of a community as a minority, the national status of the minority would be taken into consideration.
This overlapping and contradiction between the national status of five religious communities as national minorities and the legal principle that a minority shall always be identified at the state level has contributed a lot to the actual politics.
Muslim as a minority and ‘Sabka Saath’
We must remember that the NCM Act of 1992 was an outcome of the post–Babri Masjid Congress politics. The move to declare five religious communities as national minorities, in a way, also strengthened the already worked out imagination of ‘Hindu majority’. It had now become easier for Hindu essentialists to argue that minorities, especially Muslims, are appeased and pampered at the national level. This argument evolved into political rhetoric in the mid-1990s to underline Hindu subjugation.
The UPA regime initiated some interesting academic politics of minority. Such politics had two very clear facets—it was primarily concerned with appointing various study-based commissions and, at the same time, it aimed at deconstructing the minority category.
The manner in which Muslims are differentiated from other minority religious groups in the post-2000 period, especially after the publication of the Sachar Committee Report, is a revealing example of this politics. No doubt that the report was successful in legitimizing Muslim backwardness as a political issue, but this study did not have any direct impact on the actual socio-economic status of Muslims (as revealed by the Post-Sachar Evaluation Report, 2014).
Yet, the report emerged as a symbol of Muslim appeasement. The BJP appropriated it to produce a powerful narrative of equality-based affirmative action. The slogan ‘Sabka Saath, Sabka Vikas’ is often presented as ‘development of all and appeasement of none’. In fact, Muslim appeasement has become the dominant narrative in Indian politics. No political group is interested in deviating from this majoritarian impulse in the name of opposing appeasement!
The debate on the minority status of Jamia is a very relevant example. Jamia Millia Islamia (university) was established in 1920 by a section of Muslims as a ‘nationalist’ educational institution. It became a central university in 1988. The university continued to function as a secular institution; yet, its minority character has always been a contested issue.
The creation of the National Commission for Minority Educational Institutions (NCMEI) in 2004 gave a new twist to Jamia’s minority status debate. The UPA 1 government established the NCMEI to respond to the promises it had made in its manifesto. This specific body was formed primarily to protect the rights of minorities to establish and administer the educational institutions of their choice.
The Jamia Teachers Association and the Jamia Old Boys’ Association filed petitions in 2006 to NCMEI demanding that at least 50 per cent of students from the Muslim community should be admitted. It was also argued that appropriate action should be taken against the vice chancellor and registrar of the university for the non-implementation of the mandate of the Jamia Millia Islamia Society.
Responding to these arguments, the NCMEI in its judgement says:
(We) [. . .] have no hesitation in holding that the Jamia was founded by the Muslims for the benefit of Muslims and it never lost its identity as a Muslim minority educational institution, hence, Jamia is a minority educational institution.15
The 1988 Jamia Act tells us that Jamia is open to all and it is bound to follow the reservation policy of the government of India. The NCMEI judgement, however, gives a different interpretation. It recognizes Jamia as a Muslim minority institution. Since the 93rd Constitution Amendment Act ensures that minority institutions are exempted from following the national reservation policy, it becomes possible for Jamia to provide reservation to Muslims.
Muslims in the Jamia case are interpreted as national minorities by relying entirely on the principle of cultural distinctiveness. It simply means that the principle of backwardness is not considered applicable to minority-run institutions. In other words, the subgrouping of national minorities—with regard to socio-economic backwardness proposed by the Sachar Committee and the Ranganath Misra Commission—is not taken into consideration.
This poses an apparent contradiction. On the one hand, there is a demand to expand the scope of the SC category so that Muslims and Christians Dalits may get the benefit of reservation. On the other hand, there is no reservation for Muslims Dalits and Christian Dalits in the Muslim and Christian minority-run institutions such as Jamia and St Stephens.16
It is apparent that defining a religious minority at the national level is an unsettled issue. The judiciary as well as the Parliament must offer a solution to the tension between the principle of distinctiveness and the principle of backwardness.
The minority status of Muslims of India has now become a highly contested issue—not merely for the Muslims but also for all those who believe in the political morality envisaged by the Constitution of India.
6
Muslims as Backward
‘Sir, you did not say anything on it’!
Demand to include Dalit Muslims have been raised for last one and half decades [. . .] the Presidential Order, 1950 eventually confined [sic] SC status to Hindus [. . .] Sir, I request the government to amend the Presidential Order, 1950 so as to add [the] word ‘Muslim’ in it along with Hindu, Sikh and Buddhist so that the Arzal Muslims who constitute 0.8 per cent of population improve their social, educational and economic status and participate in the process of nation building.1
—Ejaz Ali, MP, Rajya Sabha Proceedings, 2 December 2009)
Husain Dalwai: Sir, I have a question. We have raised the question of Dalit Muslims and Dalit Christians. You did not say anything on it.2
Thawar Chand Gehlot (minister for social justice and empowerment): Sir, these two groups do not figure in the li
st of those social groups which are recognized as Scheduled Caste under the Indian constitutional system. This question is under judicial consideration before the honourable Supreme Court. If a situation emerges after the judicial verdict, this would be taken up for discussion. Otherwise, the government does not approve of it.3
—Rajya Sabha debate, 8 December 2014
Muslim backwardness, or exclusion, emerged as one of the most dominant political issues after the publication of the Sachar Committee Report in 2006. The findings of the report were used to reiterate the demand for a specific policy package for Muslims. It was stridently argued that addressing Muslims as a backward community (such as the SC, ST, OBC) should not be interpreted as a deviation from constitutional principles and/or secularism.4
This enthusiasm for a policy package for Muslims eventually died down after the 2014 elections. In my view, the BJP government refused to acknowledge the backwardness of Muslims as a legitimate policy concern. The impact of this straightforward refusal was so powerful that within a period of three years, all the so-called secular political parties, including the Congress, lost interest in what used to be called the agenda of ‘Muslim empowerment’!
Interestingly, public discussions on Muslim empowerment continue to revolve around the resolves and political moves of major political parties. Internal debates among Muslims, especially the imagination of Muslim victimhood envisaged by Muslim elites, have not been systematically analysed so far. This is what this chapter attempts do. It tries to unpack various shades of contemporary Muslim politics of social justice, especially its ‘Dalit Muslim’ version. The chapter raises two very basic questions: