By Emanual Nahar
Minority rights have gained greater visibility and relevance all over the world. India is no exception to it being a multi-ethnic, multi-religious, multi-linguistic and multi-cultural society. Diversity of all types is the very soul of India. It is in this context that minority rights have assumed added significance in post-independence India. When India attained independence after its division on religious lines, religious minorities became very apprehensive of their identity. According to a survey (2001) at that time there were 11.67 per cent Muslims, 2.32 per cent Christians, 1.79 per cent Sikhs and considerable number of Buddhists (0.77 per cent), Parsees (0.4 per cent) and Jains (0.43 per cent) in India.
After World War II, the world’s minorities locked within the state have increased rather than decreased in numbers. So far as India’s case is concerned, the trajectory reveals that India has almost always had a composite population. The Constitution of free India has give recognition to a number of languages in the Eighth Schedule and there are five religious groups which have been given the official status of National Minorities, namely, Muslims, Christians, Sikhs, Buddhists and Parsees. The framers of the Constitution bestowed considerable thought and attention upon the minority problem in all its facets and provided constitutional safeguards; yet the issue has evaded solution till today. Consequently, the progress of minorities in India is beset with problems including those of prejudice and discrimination.
Even the dominant Muslim community has several grievances. It is perceived by many that they lag behind in educational progress because of economic hardship and discrimination against them in the education field. No special efforts have been made to fulfil the needs of Muslims which belong to the lower strata of society. The grievances of the Sikhs in India are largely political with subdued economic overtones. The grievances of all religious minorities seem to be related to the operation of state agencies. Questions about problems between the majority and minorities that arise are:
• What status has the polity granted to its minorities?
• What are the problems faced by the minorities especially in the context of inclusion and exclusion in state- building in post-colonial India?
• How are they able to assert themselves?
• What is the role and extent of their participation in politics and socio-economic developments?
• What is the extent of prejudice and discrimination faced by them?
Today minority rights have introduced two new dimensions into democracy. First, they made community a legitimate subject of political discourse; and second, they placed the issue of inter-group equality on the agenda. The Indian experience also reveals that minority rights present two important problems for a democratic polity. One, minority rights privilege the community’s cultural practices over the principle of equal rights for all citizens. Two, recognised minorities are not always sensitive to the plight of internal minorities. Thus, while special safeguards provided to identified minorities curb the hegemony of any one community or the nation-state, they do not guarantee free and equal status to all groups and communities in society.
The principle of non-discrimination and the concept of common citizenship are enshrined in all provisions of the Indian Constitution. The first and foremost is the Right to Equality (Article 14) which is an extension of the rights ensured in the Preamble to the Constitution. Article 14 of our Constitution says:
The State shall not deny to any person equality before the law and shall provide equal protection for every person within the territory of India.
Though this Article appears to be very short and simple, it is one of the greatest pillars of democracy. It protects both minority and majority alike against the discriminatory conduct of the government both negatively and positively. This provision embodies a concept which is a hall-mark of democracy. However, to the question as to whether the Indian minorities really enjoy this fundamental right to equality, the answer, unfortunately, is ‘no’. Because in the real sense, Indian minorities do not fully enjoy some of the basic fundamental rights. The major problems faced by the Christian minority with regard to fundamental rights are as given below.
The discrimination on grounds of religion is very clearly prohibited by Article 15 of our Constitution which says in clause (1): “The state shall not discriminate against any citizen on grounds of religion, race, caste, gender, place of birth etc.” This fundamental right against discrimination on ground of religion is one of the most important rights for the flourishing of any religiously pluralistic society as we have in our country.1 But unfortunately, we are till now unable to implement what Article 15 last down. This mandate of “non-discrimination against any person on grounds of religion” given in Article 15 of the Constitution has still not been enforced totally, even though the Constitution was promulgated more than 58 years ago. This right, which existed, in whatever little extent, before the promulgation of the Constitution, was lost when our Constitution came into being.
The third paragraph of the Presidential Order of 1950 was amended by Parliament to extend constitutional benefits to the ‘Dalit Sikhs’ (1956) and the ‘Buddhists’ (1990) along with the ‘Hindus’, but similar benefit was refused to the Dalit Christians. The denial of justice to the Dalit Christians is also against the letter and spirit of the Constitution of India on equal justice. The Presidential Order, as it was interpreted, was not only communalistic, it was also anti-Dalit. It tended to divide the Dalits on the basis of religioin. Regarding the criteria of amendment, the point made by Ramvilas Paswan in 1990 needs to be noted. Paswan, who was the then Union Minister of Welfare and Labour, while stating the objects and reasons for proposing to include Buddhists of Scheduled Caste origin in the list of Scheduled Castes, said that the change of religion does not alter social and economic conditions. But above all, the third paragraph of the 1950 Presidential Order is a direct contradiction of Articles 14, 15 and 25 of our Constitution since it had used religion as the criterion to describe who will be a Scheduled Caste. This needs to be deleted completely.2
In India the opportunities for employment are very scanty and the state is the greatest employer. The principle of non-discrimination and equality is also upheld in matters of public employment in the Constitution. Article 16 says: “No citizen shall, on grounds of religion, race or caste, be ineligible for, or discriminated against in respect of, any employment or office under the State.”
The Constitution in Article 16 gives equality of opportunity in matters of public employment. But again, because of the Presidential Order of 1950 and the refusal of Shanker Dayal Sharma to issue an ordinance3 for reservation for Christians during the time of P.V. Narashima Rao as the PM the Article has been made infructuous. This has been made available to the Dalits in the fold of Hinduism, Sikhism and Buddhism but not to those who are Christians. This also amounts to discrimination on grounds of religion which the ‘state’ is forbidden to effect under Article 15.
The denial of justice to the Dalit Christians goes against the letter and spirit of Articles 14, 15, 16 and 25 of the Constitution of India on equal justice, equal opportunities and freedom of religion. If a Scheduled Caste becomes a Christian, he loses all the reservation facilities, and if he produces a certificate of Scheduled Caste he gets back all the benefits. Even the children of the same Scheduled Caste parents, living under the same roof, sharing the same meals are discriminated against on the basis of religion. Sohan Singh gets all the reservation facilities. While his own brother Mohan Masih is denied all the benefits just because “Masih” happens to be a Christian. It is bad luck if any Christian symbol is noticed with him/her or at his/her residence. He/she loses all the service benefits. This also amounts to violation of the constitutional rights. Despite 59 years of our independence the Dalit Christians continue to be the victims of all kinds of ill-treatment. The history of independent India is both pathetic and shameful on the treatment meted out to Dalits.
The Mandal Commission’s report unambiguously stated that state assistance should be given to all genuinely backward sections of people irrespective of religion or caste which many thought would end discrimination against the poor among the minorities. But the ‘soft’ Communists or secularists or religious fanatics in the majority community are now said to have found another excuse to deprive the Christians of these facilities. The argument advanced is that the backwards having “un-Indian sounding or Anglo-Saxon” names cannot claim such benefits.4 They can afford to discriminate against Christians in this manner because they are a negligible “vote-bank”. This is the way our rulers create divisions, frictions and differences in our country.5
The other serious implication of the Presidential Order of 1950 is that it has also affected another fundamental right of the Dalit Christians, the right meant to protect their personal life as well as liberty. In the last 58 years of India’s independence, the country’s three largest minorities, Muslims, Christians and Sikhs, have been targeted by fanatics of the majority community and other vested interests, on the basis of their religious identity alone, resulting in a serious assault on their basic rights, including the right to life itself. Article 21 of the Indian Constitution clearly stipulates: “No person shall be deprived of his right of personal liberty except according to procedure established by law.” The fact that the Dalit Christians are not getting protection of life and personal liberty is manifest in the various government Acts and rules passed by Parliament to give special protection to the Scheduled Castes but these are not applicable to the Christians of Scheduled Caste origin during atrocities. These Acts and rules include Protection of Civil Rights Act 1955, Protection of Civil Rights Rule 1977 and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. All these Acts and rules are supposed to give the SC (Dalits) special protection and rights against various kinds of atrocities and oppressions meted out to them by the people of so-called upper castes of forward classes. But this protection is not made available to Dalit Christians.
Although under Article 21, the State is bound to protect the life and liberty of every human being, it has failed to protect this right. There are a lot of violations. Such type of violations threatens the very right to life, physical integrity and health of citizens. Here are some of the headlines in the national media: “Persecution—Christians are now being systematically targeted”. It referred to the recent move of the then BJP run Delhi Government to denotify churches in Delhi as places of worship on the ground that “wine was served there”. “Saffron Brigade strikes again in Gujarat”. “Christian missionary school attacked, copy of New Testament burnt”—flashed Hindustan Times on July 22, 1998.6
Article 25 of the Indian Constitution gives all citizens the “freedom of conscience and the right freely to profess, practise and propagate religion”. The Christians have almost always faced problems with this fundamental right specially with the last part of propagating its faith. A number of States such as Orissa, Arunachal Pradesh, Madhya Pradesh, Gujarat and Tamil Nadu have passed Acts through their legislature severely curbing this right. In many States like Punjab, the concerned authorities refused to allow any venue and date for religious conversions or religious conventions for preaching the teachings of Jesus Christ. This is undoubtedly a violation of Article 25. Father T.K. John also expressed the feeling that the basic rights of the religious minorities are violated in a number of ways.7
(a) Although some Indian State governments did enact legislations entitled ‘Freedom of Religion Bill’, these were full of ambiguities which were utilised by the state machinery to practise discrimination against religious minorities.
(b) Refusal to grant official recognition to certain religious groups and religious communities.
© Legal bias against certain religious groups and religious communities.
(d) Restriction on public information about religious groups by describing only a preferred religion in official text books and ignoring the others. In Gujarat, the State’s BJP Government is also trying to impose some limitation on freedom of conscience and free profession of religion.
Although Article 25 of the Indian Constitution gives wide opportunity to profess, practise and propagate any religion, from time to time it has been interpreted by the various Courts of law which have imposed many limitations. As the Supreme Court held in the case of Stainless versus Madhya Pradesh (1977), the right to propagate does not mean the right to convert others forcibly. However, he/she is entitled to accept or adopt another religion by his own choice and free will.8
In recent times, some Hindu organisations have raised a hue and cry over this matter, and are in favour of adding some amendments in Article 25. As L.K. Maitra said in the Constituent Assembly,
The very foundation of society in India being religion, it will lose all her spiritual values and heritage unless the right to practise and propagate any religion is recognised as a fundamental right.
But the States were practical enough to make it a conditional right. So, when propagation affects the religious sentiments of other communities or conversion involves some sort of force or fraud, it goes against the letter and spirit of the Constitution.9
An attempt was made in 1977, during the regime of the Janata Government through a Private Member’s Bill at the Central level, for prohibition of conversion which, of course, could not win legilsation sanction from the majority of members. In July 2001, Anant Gangaram Geeta, a Shiv Sena MP, moved a Private Member’s Bill named the Prohibition on Religious Conversion Bill, 2001 in the Lok Sabha. The Bill was opposed by the Opposition and the Sangh Parivar failed to muster enough support for it to get it through. Besides the above, the Christian Evangelists and Church workers had to face consistent opposition to practising and propagating their faith. They were also attacked physically many a time and harassed by the fanatic groups in a number of States such as Gujarat, Madhya Pradesh, Orissa, UP, Maharashtra and Punjab. In December 1999, non-Christians organised a rally at Ahwa in Dangs district in the Gujarat State on Christmas Day projecting the alleged conversion of tribals to Christianity by the missionaries.10 In Punjab, religious conventions were disturbed at various places by the Sangh Parivar during the Akali-BJP regime. But the government did not take serious note of this problem and even refused to accept the recommendations of the National Minority Commission.
Aritcle 26 of our Constitution has given to all the religious minorities the right
• to establish and maintain institutions for religious and charitable purposes,
• to manage their own affairs in matters of religion, in any manner they wish to administer and maintain such property in accordance with the law.
In Gujarat, the State Education Department issued a circular to the government aided schools to subscribe to a Gujarati magazine, Sadhana, which is wedded to the ideology of the RSS and Sangh Parivar. This is a direct violation of Article 26 of the Indian Constitution.11 The violation of Article 26 occurs when the freedom to establish religious institutions is curbed. The local administration generally refused permission to build, enlarge or renovate places of worship of the minority religious groups. This has become a major problem for the Christian community. To get permission for building a Church has become a nightmarish experience for the Christian applicants.12 The recent destruction of churches in certain parts of the country has further aggravated the threat to the right, guaranteed in the Constitution, and granted to the Christian community, along with other religious communities, to establish and maintain institutions for religious and charitable purposes.13
Article 29 offers protection to the cultural rights of minorities and Article 30 (1) gives them the right to establish and administer educations institutions of their choice.
Clause 31(2) states that 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.
But with regard to the rights provided on Article 29 and 30 also, the Christians continue to face problems throughout the country. (Recently the Punjab Government enacted a law and imposed a lot of limitations on minority institutions. The first major problem which the Christian educational institutions are facing is the intervention of the State Education Department and Universities at different levels. Questions are being raised whether a special place can be offered to the members of the Christian community as students or trainees. The government not only discriminates against minority schools, colleges, nursing colleges, and hospitals in granting aid, but also imposes many rules and restrictions to prevent minority institutions from appointing their own candidates. When a vacancy comes up in schools and other institutions they are forced to accept the State’s choice to fill it and on many occasions Christian educational institutions have had to go to court to get justice.
Some of the fanatic groups are not in favour of a separate and distinct culture for minorities. They want that all minorities in India must give up their separate culture as India is one country and one culture. Prof Balraj Madhok suggested that the minorities must adopt Indian (Hindu) names. In short, they must adopt the Indian culture-the national culture—in their religion. Their religion should bend its loyalty towards Indian Nationalism.14
The suggestion made by Madhok is totally against the rights guaranteed under Article 29 of the Constitution which says:
Any section of citizens, residing in the territory of India, or any part thereof, having a distinct language or culture of its own, shall have the right to conserve the same…all persons are equally entitled to freedom of conscience and the right to profess, practise and propagate their religion.
In fact the Muslims, Christians and Sikhs each have their own separate and distinct culture. The above utterances negate the guarantee given by the Constitution to conserve the culture of the minorities. Such utterances have been in vogue for many decades. It is a shame that the leaders of the largest democracy with a large number of religions allow the propagation of such mindless thoughts (which clearly trample underfeet the constitutional rights) against such a minuscule section of the population as Christians.
The next problem is concerning Christian Personal Law which includes15 • the Indian Christian Marriage Act 1872, • the Indian Divorce Act 1869, and • the Indian Succession Act 1925.
These Acts were enacted under British rule and reflect the British point of view. Some contents and Acts have direct relationship to the English law and the Courts. For example, Section VIII of the Indian Dvorce Act 1869 says that for anything uncovered by this Act, the Indian courts shall follow the procedure of English Courts.16 Similarly the Christian Marriage Act 1872 has, at a number of places, references to the Churches of England and Scotland.17
The Indian Succession Act 1925 also has a number of weak points like the restrictions imposed on a widow’s right to property. All these discrepancies need immediate attention of both the Indian Christians as well as the Indian Government in order to introduce suitable amendments to these Acts. The Christian law is biased in circumstances of marriage, grounds for divorce, demand for damages and equitable relief. The need for a change has been widely recognised.
The campaign for changes in the Christian Personal Law was taken up at the Joint Women’s Programme (JWP) in 1983. Through several meetings held in different places, where Bishops, clergymen, lawyers, the laity of the churches and social activists participated, it came to a unanimous conclusion that the Christian Personal Law, as enacted and administered in India, was outdated, unjust and did not fairly meet the needs of the present generation. The Indian Christian Marriage Act 1872, the Indian Divorce Act 1869 and the Indian Succession Act 1925 had several sections that were discriminatory. The first two of these Acts were enacted more than a century ago and the third one is also almost three quarters of a century old. Women suffer and are treated differently from men. There is also a need to enable Christians to adopt children whenever the need arises.
The Joint Women’s Programme (JWP) along with the Church of North India drafted a new Christian Marriage and Maintenance Bill in 1985 with help of P.M. Bakshi, the then Member of the Law Commission. The Joint Women’s Programme also requested all the Churches to send in their consensus opinion and the Christian Marriage and Matrimonial Bill 1990, the Indian Succession Amendment Bill 1990, and the Christian Adoption and Maintenance Bill 1990 were formulated. Thereafter an economic committee for changes in the Christian Personal Law was formed. This committee studied the 1992 Bill and a draft was finalised to change the existing Acts covering marriage, divorce, succession and adoption. It also drafted a Christian Adoption Law 1994. The draft of the “Christian Marriage Bill” enabled the solution of cases of divorce on the grounds of cruelty by mutual consent and did away with the compulsion of restoration of conjugal rights. The Church leadership raised its voice to bring in changes in the Bill. The Fourth Law Commission studied the matter in its own free time. Matters moved in the late nineties and James Massey, a former member of the National Commission of Minorities, played a part in the formulation of another reformist draft which was submitted to the government in 1997 to replace the existing Acts covering marriage, divorce, succession and adoption.18
In April 2000, the Law Minister invited some Church leaders and women activists to discuss his proposed Christian Marriage Bill 2000. The Christian representatives demanded that if the Law Minister kept Sections 3 and 9 the same as were in the Bill of 1994, the proposed Bill will get the consensus of all churches throughout India. They would agree for the Bill 2000 to be introduced in Parliament. This bill, prepared by the Law Ministry with the consent of the community was passed by Parliament in 2001.19
The Christians take the Indian Constitution for granted to provide, protect and safeguard the fundamental rights of every citizen and every minority, including the Christians. However, the relevance and effectiveness of the safeguards are eroding fast, due to large scale saffronisation of the education system, the handiwork of the Sangh Parivar, to enforce its political ideology. These changes are bold enough to dream of saffronisation of all minority communities as well. Some organisations of the Sangh Parivar are so eager to threaten the very existence of the minority communities that they are moving in an extremely disruptive direction. These moves, sooner or later, will jeopardise the fundamental rights of the minority communities. The political thinking of the communal forces is moving towards the formation of a theocratic state, in which the goal and religion of the Sangh Parivar becomes the supreme force. This is creating a situation wherein the minority communities, especially the poor and downtrodden Dalit Christians, are feeling helpless. Minority and majority feelings still exist in the country even after 59 years of our freedom and every secular, democratic Indian citizen is bound to be appalled by such a development. The country’s identity and dignity are getting increasingly obscured. The apathy of the administration, the violation of minorities’ rights, the Presidential Order of 1950 and the Mandal Commission report have all cumulatively led to the evolution of an extremely helpless and frustrating situation for the minority community of Christians. The Christians just want a fair system to fulfil their basic needs and a chance to live an honourable life which can only be provided by the institutionalisation of minority rights in general and those of the Christian minority in particular for long ignored by the powers that be. n
1. See Editorial, “BJP Vs Dalit Christians”, Indian Currents: A Voice for Voiceless, Vol. VII, No.49, September 12, 1996, p. 2. 2. Massey, James, Minorities in Democracy (1999), Manohar Publishers, New Delhi, pp. 72-73. 3. See Editorial, “Well Done, Mr President”, in The Tribune, March 29, 1996, Chandigarh. 4. Sarto, Esteves (1996), Nationalism, Secularism and Communalism, South Asia Publications, Delhi, p. 190. 5. Ibid., p. 190. 6. See article John, T.K. (1999), “Minority Rights: Christian Experience and Apprehensions” in Sumanta Banjerjee (ed.), Shrinking Space: Minority Rights in South Asia, published by South Asia Forum for Human Rights, Lalitpur (Nepal), p. 178. 7. John T.K., op.cit., p. 177 and also see The Hindustan Times, July 22, 1998, New Delhi. 8. See Nirmalendu Bikash Rakshit, (2000) “Right to Propaganda Religion: Constitutional Provisions”, in Economic and Political Weekly, Vol.XXXV, No. 40, New Delhi, p. 3565. 9. Ibid., p. 3565. 10. Indian Currents: A Voice for Voiceless, Vol. XI, No. 49, December 13-19, 1999, p. 15. 11. See The Hindu, January 19, 2001, New Delhi. 12. John, T.K., op.cit., pp. 177-178. 13. Ibid., pp. 177-178. 14. See Nizami, Zafer Ahmed (1999), “Plight of Minorities in India”, in World Focus (monthly discussion journal), Vol. 20, No. 4, New Delhi. 15. Massey, James, op.cit., pp. 70-71. 16. Mathew, P.D., and Bakshi, P.M. (1995), Christian Law of Divorce, Indian Social Institute, New Delhi, pp. 3-4. 17. Ibid., pp. 3-4. 18. Dayal, John (October 2000), “Wedlock Deadlock”, see in Indian Currents: A Voice for Voiceless, Vol. XII, No. 19, pp. 9-11. 19. Joint Women’s Programme (JWP) (October 2000), New Brilliant Christian Personal Laws, published by CISRS, Bangalore, pp. 1-12