A G NOORANI

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The RSS and the BJP both disapproved of the establishment of the Minorities Commission pleading that a human rights commission was preferable, as if the two conflict. Their rejection of minorities was evident. The inarticulate major premises underlying the rejection has been laid bare by the RSS supremo K S Sudarshan. He holds that “every individual was born a Hindu and it was the religious rituals of various religions like ‘sunnat’ and baptism that made one Muslim or Christian” (Organiser, January 2, 2006), Christians and Muslims are converts from Hinduism.

They must be brought back to the fold “Indianised” (read: Hinduised) (Indian Express: February 13, 2006).

Murli Manohar Joshi said, “all Indian Muslims are Mohammadiya Hindus, all Indian Christians are Christi Hindus. They are Hindus who have adopted Christianity and Islam as their religion”. He was president of the BJP when he said this (Sunday Observer, January 13, 1991).

All this is well known though very many in the mainstream media, print and electronic, prefer to treat BJP leaders as heroes. “Your yatra will not be divisive and you will reach out to Muslims?” the anchor and founder of a leading TV channel asked L K Advani on April 15, 2006. When such soothing words are obligingly put in his mouth by people who do not wish to know better, he could only answer in the affirmative.

However what is disturbing is the fact that in a judgment delivered on August 8, 2005, a Bench of three judges of the Supreme Court – chief justice R C Lahoti, justices D M Dharmadhikari and P K Balasubramanyam – made observations of scant relevance to the decision of the case but which exposed an outlook the RSS would not disown. (Bal Patil vs Union of India and Anr (2005) 6 Supreme Court Cases 690).

The petitioners asked for a writ directing the union to notify the Jains as a minority under the National Commission for Minorities Act, 1992 as several state governments had done under their respective minority commissions acts. They lost, rightly, in the high court as well as the Supreme Court. In law the matter has to be considered “statewise”. Yet the Supreme Court proceeded to make observations such as these: “The group of Articles 25 to 30 of the Constitution (protection of right to culture, language and autonomy of minorities’ educational institutions) as the historical background of the Partition of India shows, was only to give a guarantee of security to the identified minorities and thus to maintain the integrity of the country. It was not in the contemplation of the framers of the Constitution to add to the list of religious minorities…The Constitution has accepted one common citizenship for every Indian, regardless of his religion, language, culture or faith…The constitutional ideal is to create social conditions where there remains no necessity to shield or protect rights of a minority or majority. The abovementioned constitutional goal has to be kept in view by the minorities commissions set up at the central or state level. Commissions set up for minorities have to direct their activities to maintain the integrity and unity of India by gradually eliminating the minority and majority classes” (emphasis added). How, pray?

Haven’t we heard this before? “We do not accept the concept of minorities at all,” RSS chief K S Sudarshan told Karan Thapar on August 14, 2000.

It all adds up to a rejection of minorities and the trend persists in India though the trend globally is towards greater respect for minority rights. Witness the sterling work done in recent decades by the Minority Rights Group in London. In 1997 it published a World Directory of Minorities.

In 1992 the UN General Assembly adopted a Declaration on the Rights of Persons belonging to National or Ethnic Religious and Linguistic Minorities. The Council of Europe went further. It adopted the same year the European Charter for Regional or Minority Languages. In 1994 it adopted as a binding treaty the European Framework Convention for the Protection of National Minorities. It entered into force in 1998. Thirty-five states have ratified it. It is a separate instrument parallel to and not as a protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms. The former is enforced not by the European Court of Human Rights but an Advisory Committee comprising independent experts but under the political control of the council’s committee of ministers.

Marc Wellar is director of the European Centre for Minority Issues and an assistant director of studies in the Centre of International Studies at the University of Cambridge. He has edited a commentary

Economic and Political Weekly May 6, 2006 on each provision of the Framework Convention by a recognised expert, besides essays on its history title and preamble. It is a massive work; outstandingly erudite, lucidly written and of relevance to every democracy which has minorities. Indian lawyers and academics will find it of immense value. The work is published under the auspices of the European Centre for Minority Rights and the University of Cambridge.

NBT BOOKS FOR YOU

Marc Weller writes in the preface “One can observe an ever growing respect for the achievements of the Council of Europe and of the Framework Convention. Despite its general character states have generally taken seriously the commitments made when signing the Convention.” Thus, the advisory committee declared that “Finland has over a period of time made particularly commendable efforts concerning the protection of the Swedish-speaking Finns and their status in such areas as media and education” (emphasis added). Norway informed the committee of measures taken to protect the identity and culture of the Sami.

In 2002 the advisory committee ruled that the restriction of the blasphemy law in the UK solely to Christians was discriminatory. Copious citation of rulings of the advisory committee and of various courts, national and international, make this a fine work of reference. These rulings are citable in Indian courts as precedents of high persuasive value.

In 1998 Britain enacted the Human Rights Act. Merris Amos’s book is the first work in which the interpretation and application of the act, by courts in England and Wales, is comprehensively examined and analysed. The act, in effect, makes provisions of the European Convention on Human Rights part of domestic law enforceable by domestic courts. It is in two parts; the first is a study of the act and the second of the conventions of rights. The Supreme Court of India has referred to rulings of the European Court of Human Rights at Strasbourg. Both parts of the book are of relevance to Indian constitutional lawyers, academics and persons in the media. The work covers the right to life, prohibition of torture, the rights to liberty and security, to a fair trial, to privacy, respect for family life, respect for home, freedom of expression, to equality before the law and to protection of property. Also analysed are issues such as proportionality, burden of proof, etc.

The saying “knowledge is power” is particularly true in advocacy in human rights, whether in or outside courts. One is struck by the paucity of material cited when one reads some judgments of the Supreme Court; for example on the validity of the government of India’s circulars requiring citizens to seek its permission before holding a seminar on matters concerning the region or inviting persons from neighbouring states. The right to receive information has been discussed fully elsewhere. The court did not refer to the material probably because it was not cited before it.

Time there was when individuals were mere “objects” of international law. States alone were “subjects” of the law. That is no longer true. International law has expanded widely to include respect for human rights among its concerns. International humanitarian law has become a recognised branch of the law. The work by Donald K Anton, Penelope Mathew and Wayne Morgan, all of the Faculty of Law at the Australian National University, draw not only on case law but also on documents which illustrate state practice besides excerpts from learned essays. Cases are easier to access. Not so, documents. Among the topics they cover are settlement of disputes, treaties, the relationship between international law and domestic law, the use of force, including the doctrine of humanitarian intervention, international environmental law and international trade law. By far the longest chapter is devoted to the protection of human rights. It is an excellent textbook.

The South Asia Human Rights Documentation Centre in New Delhi, of which Ravi Nair is executive editor, has produced a course book in human rights. The universities of Mumbai and Delhi have introduced human rights as a foundation level course. This is a very competent textbook, which draws on statutes and judicial decisions to instruct the reader in plain language the main topics of the subject in 15 thematic chapters. They cover definition and classification of human rights, their protection under the Constitution; Indian and international monitoring bodies; the human rights movement in India, violence against women, consumer rights and environmental law and what the Criminal Procedure Code spells for the citizen’s rights. References are provided to cases and significant writings. Not only students but journalists and even lay persons will find the book invaluable.

Economic and Political Weekly May 6, 2006