How do we guarantee minority rights?

Much has been written about the decline of minority rights in India. How can minority rights be institutionalized within the constitutional framework? The general consensus among constitutional scholars is that the Constitution of India is a secular constitution. However, Professor Pritam Singh’s research reveals ‘Hindu bias in the Indian Constitution’. Singh argues that a secular state would be better off making provisions to safeguard the interests of numerically disadvantaged minorities. The authors suggest three institutional mechanisms to safeguard minority rights:

1. Representation and power sharing

2. Strengthen fourth estate institutions and pass anti-discrimination laws

3. Cultivate brotherhood

Adequate representation of minorities in public institutions is a means of institutionalizing their rights. As political scientist Arendt Lijphart argues, in a deeply divided society like India, democracy is only possible if it is consociative (a political system formed by the cooperation of different social groups on the basis of shared power) . Such a democracy is characterized by the fact that all major religious and linguistic groups find representation in government; the cultural autonomy of these groups; proportionality in political representation and appointments to public office, and the minority veto over important minority rights and autonomy.

However, in recent times, traits of majoritarian democracy can be seen in India with a concentration of power in a single community. The political representation of Muslims, the largest minority in India, is abysmal with only 27 out of 543 in the lower house. Moreover, none of the 27 MPs are from the ruling party, the BJP, thus depriving the community of participating in power-sharing.

With the resignation of Mukhtar Abbas Naqvi from the upper house in the first week of July, parliament has no Muslim members of the ruling party. The group’s representation in the other important branch of the executive, the bureaucracy, is also extremely weak. In 2019, only 42 Muslim students passed the civil service exams out of 829, and only 30, 34, 38 and 36 passed in 2012, 2013, 2014 and 2015 respectively. This biased representation reiterates the economic backwardness of the largest minority, as the report of the Sachar committee pointed out – to pass the competitions requires the economic support of families. The Constitution grants cultural autonomy under Articles 25 to 30 to minorities, which has also come under attack in recent times.

The second mechanism that can help institutionalize minority rights is an institutional arrangement in fourth branch institutions, such as the National Commission for Minorities. However, lacking constitutional status, they are rendered toothless. An attempt to constitutionalize this body was made in 2004 when the National Minorities Commission Bill was introduced to repeal the National Minorities Commission Act 1992. Such power can help the body independently assess and protect minority rights.
Appointments to this body should be made in consultation with the Leader of the Opposition, which will make it more accountable, rather than political.

Third, the enactment of a law against discrimination will further strengthen the rights of minorities. While calls for a social and economic boycott of minorities are frequently echoed across different layers of society and research shows evidence of discrimination, this law will ensure basic rights for all. The Sachar Committee recognized the need for anti-discrimination legislation in 2006. This was reaffirmed by the Expert Group on the Equal Opportunities Commission, led by Professor NR Madhava Menon. In 2016, the Anti-Discrimination and Equality Bill 2016 (ADE Bill) was introduced to the Lok Sabha by Shashi Tharoor of Congress, which was ultimately defeated. Its enactment would have paved the way for legal protection against direct and indirect discrimination.

An important aspect of formalizing any form of rights is the creation of a rights regime in society. Growing communalization and religious division can be countered by deepening the value of brotherhood. Ambedkar was aware of the importance of brotherhood in Indian society when he remarked, “Brotherhood is the root of democracy as in a democracy if equality does not destroy freedom and freedom does not destroy equality , it is that at the base of both there is a fraternity. The true test of a democracy is the cultivation of a citizen’s approach to the right.

Ultimately, it is the public conscience that will determine the fate of our plural democracy.

(Writers are Samta Fellows)