Questions in Indian Polity: Constitutional Safegurads for the Muslim Minority as the Chief Good in Democracy.

Questions in Indian Polity: Constitutional Safegurads for the Muslim Minority as the Chief Good in Democracy.

Friday, August 14th, 2009

Dr. Arshi Khan 
  
The main purpose of this first short paper is to situate the Muslims of the country in the context of their democratic and constitutional stakes, share and partnership in the governance, development and capacity building in the Federal India Polity. The preface of this paper begins and ends with the formulation that mere the existence of the statutes, provisions, policies, and institutions for protection, welfare and participation of a section of a society are neither all-important nor the political safeguards in the given context. It is more important to know and discuss those hands and faces who implement them.

In other words, Indian State has large number of Criminal Procedure Codes and constitutional laws but they fail to be implemented against those who (particularly political actors belonging to the majority community) commits communal offences, crimes against peace, humanity and terrorism. Similar personnel handling enforcing laws get so effective that they not only arrest the criminals but also provide the full sketch of their planning and evidences. This so happens when they act against the members of the Muslim minority community. Another example, there are police forces for providing security but there are common feelings among majority of the Muslims that police tend to play a partisan role by favouring the Hindu majority community against the Muslims minority community. This statement is based on the reports of various riot inquiry commissions.

There are also cases of the non-partisan role of the police where anti-Muslim violence planning was disrupted by its timely action. Moreover, the same hands also help to either protect the criminals or to frame them under soft laws or to give them privileged treatment. This clearly shows that both the laws and the magistrates, in Cicero’s terminology, are not the same but quite different when the latter deal with the Muslims. Such cases are more than mere examples and found commonly in the cases of anti-Muslim violence and communal turbulence. It is because of the lack of adequate participation of the Muslims in governmental institutions which result in either non-implementation of laws and schemes or misuse of such privileges.

The paper is also focused on two major aspects of the problems of the Muslims in the country. They are protection of their rights and their participation in the structures of power and influence. Another formulation implied in this paper is to establish the fact that Muslims are doubly victims of discriminations, based on communal considerations, as well as the serious victims of backwardness, deprivation, and exclusion in public life. Therefore, as the last formulation in this paper is to identify the Muslim Community as a Backward Class of Citizen who certainly need immediate special measures to ensure their participation in public life in order to accomplish ‘Inclusive Democracy’ in the country.

To begin with, it needs to be made very clear that it is the responsibility of the government at all levels to: protect the rights of the Muslims, to make adequate distribution of national resources to the backward Muslim community, to address their legitimate claims and needs, to equalize them with other for leading a dignified life. Drafters of the Minority Rights law were no doubt genius in providing ‘institutional reality’ and fully depended on the ‘autamacity’ of the liberal democracy. On the contrary, we are yet to visit ‘operational reality’ of the safeguards for minorities available in the Constitution. It is also important to note that ‘empowerment’ is a necessary prerequisite for self-protection.

The current view of protection is more ‘paternalistic’, constitutional guarantees resulting as empty promises. Scholars like Francesco Palermo and Jens Woelk of the European Academy, Italy claim that democratic principles require constant readjustment through legal applications. It is now our duty to re-understand that Minority Rights are measures that enable minorities to perform under the same conditions as majorities and thus are not special privileges. It is in this context, it is very important to mention that a new Federal India based on Justice and Equality can be rebuilt only when we accept ‘diversity’ both a ‘principle’ and ‘value’ in our State and Society. This can be achieved by us when we are prepared both to learn about democracy and to live with it.

Disturbing Trends in Indian Polity

It is known to all of us that it is the only the Muslim minority community which is far behind than the majority community and other minorities, except Neo-Buddhists, in many spheres of State and Society. The reports of various committees including the Sachhar Committee Report clearly show that the Muslim community as a whole can be easily identified as backward Class of Citizens in the country. It is established by several studies including the reports of various Backward Class Commissions that the Muslims in India can be categorized as educationally, socially and economically backward in the country. The history of development and democratization in the last 58 years also show their exclusion, deprivation and backwardness. However, there is silver lining in the conclusion of the Sachhar Committee Report, November 2006 (page 26) based on the impression it received from the larger audience, which says:

“Responsibility of a democratic state to ensure that none of its citizens remain backward due to discrimination was emphasized. If factors other than discrimination are contributing to the backwardness of any community then too it is the responsibility of the state for removing such backwardness”.

What is most disturbing today is not only the existence of communal consciousness but also anti-Muslim mind-set in the distribution of national resources by the Indian State. The situation has become so much alarming that even they are unable to get minimum security, justice, equality and liberty which are normally provided under the ‘common citizenship’ category. The above constitutional benefits are interlinked and they can be enjoyed under required socio-economic and political condition of the individual and community. The Constitution directs the Indian State to create opportunities for public life but the Muslims are either unable or made disabled due to their socio-economic and political conditions to avail normal benefits provided by the governments at many levels. Therefore, access to such benefits requires such conditions. Moreover, such peculiar circumstances, which are hard realities in the life of the majority of the Muslims, obstruct them to enjoy security, freedom, equality and equity meant for every citizen.

It is well understood perhaps by many that the existing socio-economic conditions of the Muslims are also responsible for their backwardness. It so happens when an individual feels unable to make mental, moral, social and personality development due to lack of socio-economic conditions. This raises valid questions– how their conditions can be improved? What should be the means? How the Muslims and their problems should be identified? Who should do what and where? Should we glorify the polemical formal equality or should we opt for substantive equality? In other words, backwardness and deprivation can also be called exclusion which is mostly the result of discrimination based on communal consciousness. We should not forget that the basis of discriminations against the Dalits and the Other Backward Classes has been caste consciousness which in other words is the main feature of the Hindu religion in vogue.

This question must be addressed by those who want to build a New India based on the principles of pluralism, federalism and democracy. We need to accept the fact Muslims have been the victims of communal consciousness and anti-Muslim prejudices. Their rights have been opposed by it throughout the years since long. It should also be acknowledged that an anti-Muslim sentiment is now a new addition which discriminates against the Muslims in various spheres. As a result of discriminations, they are now the most backward class of citizens who can be provided with those constitutional and governmental benefits which have been opted for the Scheduled Castes and Other Backward Castes in the country. Thus it can be said that backwardness and exclusion of the Muslims are established facts. They are the result of discrimination and the lack of socio-economic conditions which are mainly concerned with governmental policies. Exclusions have grown due to the lack of special leveling measures by the national and state governments.

Who are We?

Muslims constitute about 160 million people who can also be categorized as the second largest majority in the country. To begin with, he said that there are authentic sources which tell us that the number of the Muslims in India is more than the official numbers, i.e., 13.4% (2001 census). He recalled some NGOs, late Hakeem Abdul Hameed of Hamdard and Justice Sardar Ali Khan who put their numbers between 15 to 18 percent of the total population of the country. Therefore, marginalisation of the second majority community of the country (which is also the largest minority community) in Indian democracy and developmental process certainly raise serious concerns for all of us. The Muslims are spread all over the country—States and Union Territories. In certain areas, they constitute majority and near majority strength. About 52.13% of the Muslims in India reside in three states–Uttar Pradesh, West Bengal, and Bihar. Four southern states—Kerala, Karnataka, Andhra Pradesh and Tamil Nadu account for 19.6% of the total Muslim population.

Moreover, the Muslims constitute over 30% of the population of Assam. They are also minority in other states. India’s population is predominantly rural with only 27.8% as urban population. The Muslim population is also predominantly rural but less linked to land than the over all population. The Sachhar Committee Report shows on page 30 that large variations were seen in the size of the Muslim population among districts. In 25 districts, the Muslim population exceeded one million each in the 2001 census. The largest was Murshidabad (3.7 million) followed by Mallapuram, South 24-Parganas, and North 24-Parganas. Of the million plus Muslim population districts, ten are in West Bengal, five in Uttar Pradesh, three in Jammu and Kashmir, and seven in other states. Besides, the Muslim population is between half to one million in 51 districts of the country.

Thus 76 districts have at least half a million Muslims each and just over half of India’s Muslim population. At the other end, there are 106 districts with very small Muslim populations of below 10,000. Of the 593 districts of India in 2001, only 9 could be considered predominantly Muslim, that is, with an over 75 % of the Muslim population. In addition, Muslims constituted 50 to 75 % of the population in 11 districts (six from Assam, two from Jammu and Kashmir, and one each from Kerala, Bihar and West Bengal). 20 districts has a Muslim majority, 38, a substantial, though not majority, i.e., over 25 but below 50 %. On the contrary, their participation in economy and education is marginal. Their ownership of land, employment and representation in elected bodies are far below. Their exclusion is so much transparent that it can be observed in any sectors of the government or other agencies.

On the contrary, the Muslims in India have, over the last 62 years, neither been able to emerge as mainstream political community nor they could maintain their numerical proportionate strength in elected bodies and public life. The National Policy on Education, 1986 (as modified in 1992) says that, “(T)he country has reached a stage in its economic and technological development when a major effort must be made to derive the maximum benefits from the assets already created and to ensure that the fruits of change reached all sections. Education is the highway to that goal”. It also said that the purpose of education is to provide equal opportunity to all not only in access, but also in the conditions for success. The Sachhar Committee notes (p. 143): “More than 1000 Muslim-concentration villages in West Bengal and Bihar do not have any educational institutions; in Uttar Pradesh, this figure is 1943. The situation is worse in small villages. The proportion of Muslim Concentration villages (in all three size classes) with educational facilities is lower than the total proportion of villages that have such facilities. This is particularly so in the case of smaller villages where the differential is alarmingly high. This indicates that Muslim concentration villages, especially smaller ones, lack access to educational institutions.

Political Exclusion

In the sphere of political empowerment, the Muslims have a very dismal picture in the ratio of the presence of the Muslims in Union Parliament, State Legislatures and in other elected bodies which certainly affect their concerns and legitimate needs. In fact, the main purpose of democracy in a diverse and plural society like India is to give opportunity to its citizens belonging to different socio-religious communities to get their voices heard in elected bodies where policies are discussed and debated. Democratic polity in a Plural Society needs to be Inclusive, Deliberate, Consociational and Shared for creating a concurrent majority to serve the interest of all the sections of society. The main purpose of the creation and maintenance of elected bodies is to promote the sense of security, equity, justice and confidence among minorities by creating a non-majoritarian polity. The purpose of democracy is to create either a liberal society as a political community on the basis of ‘common citizenship criteria’ or to accommodate the legitimate concerns of the empowerment of the deprived and backward communities on the basis of ‘differential rights’ for unity in diversity.

In other words, the main objective of democracy in a country like India is not only to create ‘institutional reality’ but also to achieve ‘operational reality’ for the building a viable polity and integrated society. It needs to create a great concern for the ‘other’ and not to jeorpardise other on any ground. Many scholars in Western Europe have raised serious concerns over the accountability of a democratic polity for minorities and particularly those which are backward, excluded and discriminated. It is in this context, there is need to situate the Muslims in the governance of the country. If the backward section of Indian society, particularly the Muslims who are from all accounts proven Backward and Under-represented in almost all sectors of powers and influence, is given representation and share in various branches of the government like Executive, Judiciary and legislature at the Union and state levels and in their allied sectors and sub-sectors, then they will be unable to secure their rights and to protect their interests like those who are represented.

Rethinking Required

It is now not difficult to understand what is discrimination? How it is inextricably linked with ‘Exclusion’ in a polity of diverse society? Can the question of discrimination be addressed by simply inserting constitutional provisions? Or by formulating certain required policies and temporary measures? Or by other necessary means? Is discrimination mechanical in nature? Is it a part of our ‘societal’ heritage like ascriptive features? Can it be overcome by any means? Can it be disabled by the policy of ‘Inclusion’? Exclusion cannot be studied in isolation of the factors of discriminations, prejudices, hate crimes, oversight of public policies, and violence.

The Gopal Singh Committee surveyed 80 out of 500 districts. It found, “In the field of education and public employment, the Muslims for example suffer from peculiar maladies”. He detected discriminations against the Muslims by examining the flow of bank and other credit loans to handicraft and small-scale industries in which Muslims are largely engaged. The report mentioned, “Unfortunately a great psychological barrier exists today between the majority and minorities. Some religions are considered ‘extra-territorial’ not only by the masses but also by some of our State Governments”. The report stressed on the importance of education in economic and social betterment. He also found the importance of the community background of the personnel deployed in particular departments in the context of its response to the needs of group of citizens. Further, globalisation is going to further cut the share of the Muslims in the corporate, which requires highly professionally educated class of students. The Gopal Singh Report said, “Universities in India … have a very poor representation of minorities on their faculties. This lacuna should be addressed as early as possible”.

Leading Political Concerns for the Muslims

Over the years, concerns have been raised over the backwardness of the Muslims all over the country. In this social justice campaign, some states like Kerala, Karnataka and Tamil Nadu have taken measures under constitutional provisions for the well-being of the Muslims. There are demands for increase in the quota for the Muslims in Karnataka and Tamil Nadu. In Kerala, there is demand for adequate implementation of the quota system as thousands of reserved posts are lying vacant. In Manipur also there are demands for some sort of protective system for the Muslims. Most of the political parties have echoed their concerns over the plight of the Muslims in many sectors of public life. In the last Assembly elections of Andhra Pradesh, most of the parties excluding the Left and the BJP, promised reservation for the Muslims on the basis of backwardness factor. There was difference of percentage among the parties.

After coming to power in 2004, the Congress government reserved 5% seats for the Muslims in educational institutions and state jobs on the basis of the recommendations of first Commissionerate of Minority Affairs and later by the Andhra Pradesh Commission for backward Classes which had made extensive survey on identifying the Muslim community as socially, educationally, and educationally backward class of citizens. It is however, sad to note that such a measure was defeated in the state High Court and withdrawn from the Supreme Court of India. On the other hand, it is important to note that political parties are taking the issue of tackling the backwardness of the Muslims at constitutional and policy levels. In fact they seem to be inspired by the “Objectives Resolution” of the Constituent Assembly of India which was adopted on 22 January 1947. Its 6th Point says very clearly: “Wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes”.

Suggestions

1. There must be the constitutional provisions for the reservation of seats for the Muslim community in all elected bodies to achieve the purpose of political equality, political rights, political liberty and political justice.
2. There must be reservation for the Muslim community in governmental jobs, private sectors, housing and in the distribution of other public goods.
3. There must be some mechanisms for collecting more reliable data on the backwardness of the Muslims.
4. Important institutions like the NHRC, NCM and Ministry of Minority Affairs need to expedite their mandates for the safety and welfare measures for the Muslims. 
5. All the District Magistrates in the Districts of the country should be assigned the duty of preparing the data bank of the Muslims social, educational and economic status and changes thereon affected by the welfare policies. This would help greatly all the three tiers of governance for making policies for their welfare. District Authorities need to submit the report every year about the failure and success in expediting welfare policies. There are reports that Muslim dominated mahallas, colonies and settlements, in general lack basic amenities falling under District Administration which collaterally affect their health, physical movements, contacts, business and other engagements. 
6. Sensitive areas and Districts need be manned by those officers who have non-communal record and more law-abiding. This will prevent riots and communal tensions. It would be preferable to post Muslim officers as better confidence building measures. Police Stations in Muslim areas must have high percentage of the officers belonging to the Muslim community as CBM measures. 
7. As a drive for the CBM, each state government should launch special drive to recruit Muslims in state government jobs which should not be less than their population percentage for creating a federal and democratic reality in the sphere of power and administration. It would be better to mention the suggestion of the Gopal Singh Committee (page VIII, para 14) that “to have a fair number of minorities representation, especially at the decision-making levels” in “appointment through nomination” in governing bodies. “Every recruiting agency or Service Commission must have an adequate number of their representatives….” 
8. There should be a permanent and constitutional machinery to look into their economic and cultural grievances. Occasional inquires or a cell in the Home Ministry will not be of much help. In other words, the National Commission of Minorities needs to become a constitutional body with adequate powers and funds. Its remarks and suggestions need to be debated in Union Parliament. The NCM must have powers to recommend on the failure of the constitutional machinery in the state like what happened in Gujrat, to protect the life and property of the Muslims and other minorities in case of widespread violence, massive riots and genocide. The NCM can send such requests to the President of India and concerned Governor/s on the report of the NCM. This will work as a pressure on the concerned parties in power in the states not to make such mistakes. 
9. Each state government should create Ministry for Minorities which should be accessible to minority dominated areas. It must have adequate funds and staff on the basis of the principle of proportionality. This Ministry must have power of directing Police and District Administration in case of fear, tension and other serious matters concerning minorities. This Ministry would have the power of seeking all necessary information from Home, Finance, Defense, Commerce, Industry, Petroleum, HRD, Social Justice, Law, Parliamentary Affairs, Ministry, Finance Ministries/Departments.
10. As a long terms measure, Muslims need to be given better education facilities and opportunities to them in seeking recognition and subsidies on the cost of land and its availability corresponding to their needs.
11. As per the schedule of the New 15-Point Programme, effective policies and actions are required for enhancing access of Muslim children to School Education. As per educational policies, work should be done on war-footing to establish schools, with mother-tongue educational facilities, in rural and urban areas dominated by Muslim population. The number of schools at different levels can be opened on certain number of population which should not be ignored.
12. Muslim students need to be given certain concessions in both written tests and interview on the basis of backwardness for admission into technical and professional institutions like the IIM, IIT and others. It can be called Preferential Policies as some of their kinds are operative in the United States for the inclusion of the African-Americans and the Hispanics. 
13. There must be strong guidelines for all the public and private schools to give preference in admission to Muslim students who live nearby. Schools engaged in following preference for Muslim students need to be encouraged in terms of funding and other help from the government. Muslim parents must have the confidence of better education from the very beginning in order to avoid drop-out rate and to maximize capacity building in order to meet future challenges. 
14. All the Ministries at the Union and state levels need to focus on the problems of the Muslims in respective jurisdiction so that the latter must feel about the fruits of Parliamentary Democracy. 
15. Constituencies where members of Parliament have continuously been ignoring the areas where Muslims live in majority on communal and political considerations as it has happened in many cases, should be declared ‘reserved’ for either Muslims or Independent candidates to contest elections. 
16. Efforts and mechanisms are required for enhancing participation in governance from top to the grass-roots levels.
17. There is a need to formulate and implement new initiatives for ensuring the participation of the Muslims minority in public bodies through nominations and other required measures. 
18. There is a serious need to look into the adequate representation of Muslim majority areas in order to reduce their discouragement towards the benefits of electoral benefits. 
19. There should especial attention to the need for giving primacy the relevance of ‘diversity’ as a value and as principle in the country. There is need to celebrate diversity through various engagements on the part of governmental and non-governmental bodies in the larger interests of the country. 
20. Efforts should be made to allocate and reserve lands to the Muslim people for their housing and other basic purposes for promoting geographical federalism.
21. All the civic amenities need to be provided to the Muslims areas. 
22. There should be strict implementation of 15-Point Programme.
23. Political parties are requested to enhance participation of Muslim individuals within the party, committees, and elected bodies. They should also promote grass-roots workers for making them efficient political actors.
24. Parliamentarians and legislators must be trained about the basic purpose of the Constitution of India and Indian Diversity. They should be known more about the constitutional goals of policies.
25. Anti-Muslim bias needs to be curbed in strong terms. Stereo-type image of the Muslims need to be discouraged. The Censure Board of India should use its conscience to stigmatize them through films, episodes and other stories.
26. Misleading reporting further endangering the life of Muslims during the riots by vernacular media demand strict punishment. Media sectors need to told again and again to give coverage to celebrate festivals and programmes involving the Muslims.
27. Muslims should be encouraged to enter the field of media effectively. The Home Ministry should change its perceptions too for accommodating legitimate demands.
28. Concerned authorities should build parks, road, sanitary houses, water supply stores, adequate supply of electricity, schools, health centres, mother dairies, cooking gas agencies, banks, small stadiums/play grounds and community centres in Muslim concentration areas in those towns and cities where other community/es are provided with such facilities.
29. There should be policies for allocating certain percentage of houses/residential sites for the Muslims and other minorities in order to promote inter-active culture in fast developing urban areas.
30. Social Science texts read in schools following pattern of education of the Centre and the states must conform to the ideals, commitments, directions and principles of the basic Features of the Constitution of India.
31. There should be technical training for non-matriculates and drop-outs.
32. The Ministry of Minority Affairs should come out with various welfare schemes/suggestions as well as a large number of scholarships for various age group in order to facilitate welfare principles.
33. The University Grants Commission should urge all the educational institutions to induct more Muslim staff in teaching and non-teaching departments.
34. Madrasas which have more space and facilities to add more subjects/training to meet worldly needs. For this they should be adequate funds on regular basis.
35. Muslim candidates who qualify written tests should be given preferential treatment and extra marks for better success rates. It has been seen that most of the Muslims come in jobs more on the basis of written tests only. Interview system even in the IIM gets them excluded.
36. Muslim businessmen should be encouraged in getting licenses for industries, easy loans, space/lands and other advantages given to other community members. There must be some mechanism to ensure this. 
37. Public Sector Undertakings should have adequate number of Muslims at several hierarchical levels, including Boards, committees, etc.
38. Certain efforts are seriously required to increase the percentage of participation of the Muslims in governments, public and private sectors and other areas of substantial engagements.
39. There must be effective mechanisms for monitoring and verifying the violations of rules by those enforcement agencies whose actions can seriously affect security, safety and freedom of this backward community.
40. There should be the establishment of Special Riot Tribunal for trying both individuals, officials and politicians involved in cases of riots with adequate powers of punishment like what the TADA courts have. It should have powers to try both older (at least 25 years) and new cases of riots. This will be great warning to all those who are enemies of State and Society.

DR. ARSHI KHAN (M.Phil, Ph.D, JNU, New Delhi), 
Reader, Department of Political Science
Aligarh Muslim University, Aligarh
Elected Member of the Academic Council, AMU
Fulbright Fellow, New York University, USA (2004), 
P.G. Diploma in Human Rights, Short Diploma in Democracy and Multiculturalism from Fribourg, Switzerland.)
Emai: arshikhan@gmail.com