The Vajpayee-led government’s argument before the Supreme Court undermines the basic constitutional principle of safe-guarding the interests of vulnerable sections in a democracy

While it is arguable that the text of the Constitution is by itself liberal, informed by the post–Second World War human rights consciousness, liberal and secular, the working of a Constitution depends on the conventions built up around it. These conventions in turn depend upon the manner in which ruling parties operate the Constitution. On them rests the heavy responsibility of operationalising the democratic ethos of the Constitution.

In the ultimate analysis, however, the Constitution is what the judges say it is. However, the journey between building conventions and having the actions of ruling parties tested in a court is a long one, and often courts, too, have a tendency to endorse existing practices, which end up being the practice of the ruling parties.

It is no secret that one of the biggest challenges facing the Indian body politic today is the challenge of communalism. The challenge is to the secular credentials of the Constitution. It is also no secret that the challenge comes from the ruling BJP combine which has a self–professed Hindutva agenda.

The devastating consequences of this agenda have only recently been witnessed in Gujarat where the BJP consciously subverted the Constitution in pursuit of its agenda, leaving thousands of the Muslim community dead or devastated, in what was nothing short of genocide. The conscious spreading of communal propaganda, the equally conscious incitement of religious sentiments were all unconstitutional. The guarantee of maintaining communal harmony is at the heart of a secular Constitution. Multiculturalism, respect for all cultures equally and the right freely to practice religion, without fear of being put to death, must surely form the basis of any civilised constitution.

In this brief reflection, I would like to document my impression of what happened in the recent hearing in the Supreme Court when a bench of 13 judges of the apex court was hearing a petition relating to the interpretation of Article 30 of the Constitution of India.

The question arose on a reference by a smaller bench to a larger bench on the question whether minorities had the right to give preference in admission to students of their own community even though that institution was getting state aid. There were several other issues that arose: namely, the extent of permissible state regulation of minority institutions, including the power of regulating appointments of teachers etc.

But there was no serious debate on those issues. What was seriously at issue was the power to admit students of the community despite receiving state aid. It was, therefore, essentially a case about the rights of minorities. It was crucial therefore for the court to come to some understanding of the position of minorities under the Indian Constitution.

Far from an appreciation of the Constitutional position of minorities, what one witnessed in court was a reversal of the debate, namely the rights of majorities! By an amazing side wind, the court permitted an issue to be added, namely, do the "non-minority" communities have a right to establish educational institutions in the same way as minority communities? From that moment on, the dice was loaded against the minorities and the solicitor general of India argued with great gusto that the minorities had no special rights and that the rights of "majorities" were as important as those of "minorities".

Sounds familiar? Reports appearing in the press indicated that the solicitor general was taking his instructions for the minister for human resources, Murli Manohar Joshi. Since we do not yet have a Freedom of Information Act, there is no way of confirming the reports. Whatever be the ethics of such instructions, the fact remains that that is the official government position.

So where does that leave us? Does the Indian Constitution make no distinction between "minorities" and "majorities"? Are we all so equal before the law that we lose our cultural identity, our religion and our political vulnerability? Is there an obligation on us all to achieve a sameness of thought, belief and practice, a sameness imposed by the powers that be?

Let us look a little closely at the provisions of the Constitution. Articles 29 to 30 of the Constitution fall under the general heading of ‘Cultural and Educational Rights.’ Article 29 begins with the words, "protection of interests of minorities."

Article 29: Protection of interests of minorities — (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.

(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them.

Article 30 reads as follows.

Article 30: Right of minorities to establish and administer educational institutions — (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administrated by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.

(2) The State shall not, in granting aid to educational institutions discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

There is no other reference to minorities in the Constitution.

It is not my intention here to expound on the meaning of these Articles but rather to point out that there are specific provisions in the Constitution dealing with minorities. There are no such provisions dealing with "majorities." While minorities are considered as a group, majorities are not and individuals belonging to majority religious communities must work out their rights as individuals, not as groups seeking protection against "minority" groups.

One would imagine that this would make political and constitutional sense. And yet one saw a playing out in court of the Hindutva argument that the "majority" is under siege and needs protection against the "minorities." Of course, the argument was dressed in the constitutional rhetoric of "equality". But by now we have all learnt to decipher the political agenda behind any constitutional argument. The Constitution is after all a political document as much as a legal one and it is only proper that arguments are appreciated in their political context. What is not acceptable however is for that politics to be hypocritically concealed as constitutional logic.

For the survival of minorities in this country, it is essential that we understand the distinction of rights conferred on groups and those conferred on individuals. Group rights are conferred on vulnerable sections of society and can be asserted by and on behalf of groups. Benefits and protections are conferred on groups in order to preserve their identity as groups. For a government to argue that our constitutional goal is to achieve equality and "national integration" at the cost of effacing the identity of religious minorities is not only political rubbish but makes no constitutional sense.

Groups by definition exclude those that do not belong to the group. To argue therefore that they are being pampered by being given certain benefits is begging the question. Minorities are given special rights to achieve an equality which is otherwise denied to them. They stand on the same footing as do Scheduled Castes and Scheduled Tribes under the Constitution. How absurd it would be to argue that an upper caste person is being denied a job which is reserved for a Scheduled Caste person.

That is the way the Constitution meant it to be. Minorities, Scheduled Castes, women and children stand on the same footing. They are all beneficiaries of group rights, all entitled to affirmative action by the State to achieve substantive equality benefits to which "majorities", whatever that term means in constitutional terms, are not entitled.

What is at stake in the case pending decision in the Supreme Court is not the number of seats the minorities are entitled to, or the extent of aid to which they are entitled, but an understanding of the position of minorities in the Indian Constitution. It is not my privilege here to argue whether minorities should be permitted to admit students of their own community in preference to others; that is for the court to decide. Rather, my concern is with the manner and method of interpreting a constitutional document in its historical and political context. If the court says that there is no difference between "minorities" and "majorities", it will indeed be endorsing a specific political agenda, one that is ahistorical and makes for bad politics.

None of us have yet forgotten the Prime Minister’s famous Goa speech: "We will not tolerate…" Exactly what did he mean by "We"? The inspiring opening words of the Indian Constitution, "We the People of India…" Or, "We, the Hindutvawalas…?" That is the question.