[Reader-list] Tanweer Fazal: Judicial Legitimacy For Hindutva Myth

[Yogi Sikand]

Judicial Legitimacy For Hindutva Myth
By Tanweer Fazal

The lead up to the Assembly polls in Uttar Pradesh saw
a spate of communal violence aided by a desperate
Mulayam government to salvage its fast losing turf,
and the launch of one of the most vicious anti-Muslim
campaign by the BJP with the support of state
machinery and a toothless Election Commission. Fueling
the frenzy further was the single bench judgment of
the Allahabad High Court declaring Muslims to be a
numerical majority in the state. Defying all logic and
conventional yardsticks to determine a minority, the
judgment claimed that considering that the Muslims in
Uttar Pradesh comprised 18.5% of the state's
population, they "do not merit to be included as
minorities any longer and therefore, should not be
entitled to benefits accruing on that account".  The
immediate context was a petition moved by
Ghazipur-based Madrassa Noor-ul-Islam, seeking the
Court's intervention for getting it self included in
the list of minority institutions entitled to
periodical government grants. While the plea was
rejected outright, in his zeal, Justice S.N Srivastava
overstepped his jurisdiction to serve a writ of
mandamus to the Union of India to modify an October
23, 1993 notification specifying Muslims among the
minority communities of the country.
While the Court order was suo muto stayed by another
bench of the High Court; it is the underlying ideology
that is malicious. The judgment itself cannot be seen
as an aberration, but a grim reminder of how judicial
interventions have, over the years, been deployed to
legitimate Hindutva mobilizations and anti-Minority
campaigns. In 1995, a Supreme Court ruling equated
'Hindutva with Indianisation or the development of a
uniform culture by eradicating the difference between
all cultures coexisting in the country'. The verdict
was a virtual judicial sanction for Hindu
majoritarianism and a negation of the Constitutional
obligation to preserve and protect minority cultures.
In a similar vein, in 2005, a two-judge bench of the
Supreme Court cited Hindu Shastras to accord legal
status and rights to Hindu deities to own land and
properties in the same manner as that of a natural
person. Recently, the Allahabad High Court created a
furore by quashing the minority character of Aligarh
Muslim University. Invalidating a 1981 Parliamentary
Amendment, the High Court upheld a 1968 Supreme Court
judgment (Azeez Pasha Vs. the Union of India) in which
the Court had denied minority status to AMU on two
grounds. One, AMU was not established by its founder
Sir Syed Ahmed Khan, but a British Act of Parliament
and later a Central legislation. Two, Muslims were not
a minority as they were a homogenous community whereas
the various castes and sects of Hinduism could be
considered minority groups. Muslims, thus in the
judges' view, were in fact a majority in this country
and the Hindus a minority—a sentiment echoed by
Justice Srivastava's conclusion. Again in 2005, a
three-judge bench of the Supreme Court (Bal Patil vs
Union of India) while denying minority status to the
Jains held that in a caste-ridden Hindu society 'all
are minorities among Hindus'.
The term minority finds mention only in Article 30 of
the Constitution wherein religious and linguistic
minorities are entitled to establish their educational
institutions, ostensibly to protect minority cultures
from assimilative tendencies of the state and the
majority community. Even this provision—the only
concession that the Constitution makes to the
minorities of the country—has remained contentious.
However, few would know that Article 30 itself could
be construed as a 'great betrayal' towards the
minorities. In the draft Constitution, minority was a
category that subsumed within its broad definition the
Scheduled Castes, Tribes, Anglo-Indians, Muslims,
Sikhs, Parsees and Christians. All of these were
guaranteed reservation in legislature and adequate
share in government jobs. However, post-Partition, the
gang-up of Congress rightists led by Sardar Patel
forced a re-opening of the debate. Religious
minorities were excluded from the ambit of
reservation, with only the SCs and STs now marked out
as the beneficiaries of reservations. In an
unprecedented subterfuge—though Patel's initial
resolution and speech focused only on reservation in
legislature, at the last moment, with no discussion in
the House—the minorities' claim in public service was
also nullified. And the paragon of Indian secularism,
Jawaharlal Nehru, declared that any demands of
safeguards by minorities betrayed lack of trust in the
majority.
True, Article 30 doesn't spell out the parameters of
defining minority groups, yet successive Supreme Court
interventions have laid down clear guidelines—a fact
that Justice Srivastava of the Allahabad High Court
chose to ignore. As early as in 1957, the Supreme
Court (Ref the Kerala Education Bill) granted minority
status to groups whose numbers were below 50 per cent
in a given area. In 2002 (T.M.A Pai Foundation vs the
State of Karnataka), an eleven-judge bench of the
Supreme Court specified that the geographical unit has
to be the 'state in relation to which the majority or
minority status will have to be determined'.
Regardless of the fact that Uttar Pradesh has the
highest concentration of Muslims in the country, the
community will continue to be a minority on account of
it being only 18.5% of the state's population. Whether
they comprise more than 50 per cent in a couple of
districts remains inconsequential.
It is not the numerical criterion alone that need be
invoked to legitimate minority status to the Muslims
of U.P. Considering the experience of apartheid South
Africa, minority status is also a definition of
marginality. The case of Muslims is substantiated by
the findings of the Sachar Committee. The Muslims of
U.P, as in most states, comprise the bulk of those
below poverty line. Their share in government jobs is
a miniscule 5 per cent; the literacy level is a good
10 points lower than the state's average. Most Muslim
concentrated areas remain devoid of basic
developmental amenities such as pucca roads,
electrification and a primary school. This in turn has
abetted high drop-out rates among Muslim children. The
absence of school often tends to be compensated by the
ubiquitous presence of a police chowki.
Given the scenario, what does the loss of a minority
status imply? In concrete terms, to most Muslims it
has remained an empty slogan. Article 30 has mostly
only served to provide the State an alibi to hide
behind. The National Policy on Education, 1986
identified Muslims as the educationally backward
minority and called for immediate attention. The
Planning Commission, however, left this task to
'Minority Educational Institutions', majority of whom
are entirely self-financed, usually catering to the
elite. The Madarsa modernization programme is the
government's flagship scheme to attend to the
educational needs of Muslim children—a typical state
response to the need for schools in minority
concentrated areas. But even here, the allocation has
remained paltry. The fund allocation for Maulana Azad
Educational Foundation, launched with great fanfare,
hardly reflects the long list of tasks appended to it:
including construction of hostels, schools,
laboratories, sadhbhavna kendras, vocational training
centres, scholarship to girl students etc. The
National Minorities Commission is a statutory body yet
its reports are never tabled in the Parliament. A
sinister minoritisation in state policy is what the
Muslims of India are faced with. It is this
minoritisation that strips them off all entitlements
while constructing them as exclusive political
category that is to be won over by occasional sops and
concessions. In this project minoritisation, questions
like partnership in progress and adequate share in
national wealth are often glossed over. Ironical as it
may be, the Allahabad High Court judgement is of one
piece with this project.
(Tanweer Fazal works with the Nelson Mandela Centre
for Peace and Conflict Resolution, Jamia Millia
Islamia, New Delhi. He can be contacted on
fazaltanweer at yahoo.co.in)


Sukhia Sab Sansar Khaye Aur Soye
Dukhia Das Kabir Jagey Aur Roye


  The world is 'happy', eating and sleeping
The forlorn Kabir Das is awake and weeping