Minority Protection Issue

context:

According to a news report, Sri Lanka's Easter Sunday bombings were retaliation for a recent attack on mosques in New Zealand.

Attacks at both the locations involved minorities of the respective territories.

Hence, the article will only take a cue from these attacks/incidents and comprehensively focus on laws and other safeguards available for protection of the minorities and the extent of their violations.

The article will also touch base on certain Human Rights reports.

About:

Generally, the word minority is linked to numerical religious strength based population. While this methodology helps one to arrive quickly at the "minority identification".

It fails to include regional (like non-dominant  tribe groups in the North East), linguistic(Bengali speakers in erstwhile East Pakistan) and other "pattern of life follower" (ethnic) minorities.

Background:

Cambridge dictionary defines the word minority as any small group in society that is different from the rest because of their race, religion, or political beliefs, or a person who belongs to such a group.

There is no internationally agreed definition as to which groups constitute minorities.

The UN Sub-Commissions in Prevention of Discrimination and Protection of Minorities define minority as a group numerically inferior to the rest of the population of a state which possess and wish to preserve stable ethnic, religious or linguistic traditions.

The Oxford Dictionary of English language defines ‘minority’ as a smaller group representing “less than half of the whole or predominant population”.

In Kerala Education Bill, the Supreme Court through S.R.Das, Chief Justice, while suggesting the technique of arithmetic tabulation held that the minority means a “community which is numerically less than 50 percent of the total population.

The National Commission for Minorities Act, 1992 in the Section 2(c) of the act defined a minority as “a community notified as such by the Central government”

Acting under the provision on October 23, 1993, the Central government notified the Muslim, Christians, Sikhs, Buddhist and Parsis (Zoroastrian) communities as minorities for the purpose of the Act. Sometimes ago, Jains' were also added in the minorities list.

When the Central government listed these communities as minority it appears that numerical criterion was taken into consideration.

Minority and India: a backgrounder

• The Constitution of India uses the word ‘minority’ or its plural form in some Articles viz Article 20 to 30 and 350 A to 350 B, but does not define the word ‘minority’.
• The Motilal Nehru Report (1928) showed a prominent desire to afford protection to minorities, but did not define the expression.
• According to the Census 2011, of the total population of 121 crore, the Hindus make up 79.8 percent.
• Muslim constitutes 14.2, Christians 2.3, Sikh 1.7, Buddhists 0.7 and Jains 0.4 percent.
• The Census 2011 data indicated that Hinduism is professed by the majority of the population in India.
• The Hindu is majority in most States and UTs except in Manipur, Arunachal Pradesh, Mizoram, Nagaland, Meghalaya, Lakshadweep, Punjab and Jammu & Kashmir.
• As regards religious minorities at the national level, all those who profess a religion other than Hinduism are considered minorities.
• The Muslims are the largest religious minority followed by Christians, Sikhs, Buddhists, Jain and Parsis.

The SC in TMA Pai Foundation & ors vs. State of Karnataka & ors consider the question of the unit for the purpose of determining the definition of ‘minority’ within the meaning of Article 30(1).

It held that ‘a minority either linguistic or religious is determinable only by reference to demography of the State and not by taking into consideration the population of the country as a whole.

In another case, D.A.V College Bhatinda vs. State of Punjab and Ors the Court explained the observation in the above case and it was stated that, “what constitutes a linguistic or religious minority must be judged in relation to the State in as much as the impugned Act was a State Act and not in relation to the whole of India.

The SC rejected the contention that since Hindus were a majority in India, they could not be a religious minority in the State of Punjab, as it took the State as the unit to determine whether the Hindus were a minority community.

The application of numerical test with reference to religion in states like Punjab, Jammu & Kashmir and Nagaland makes Sikhism, Islam and Christianity the majority religions in those States respectively (DAV College vs. State of Punjab AIR 1971 SC 1731).

Chequered Past of minority protection (here, minority has a broad connotation)

• Mob attacks by extremist Hindu groups affiliated with the ruling class against minority communities, especially Muslims, continued throughout the year amid rumors that they sold, bought, or killed cows for beef.
• Instead of taking prompt legal action against the attackers, police frequently filed complaints against the victims under laws banning cow slaughter.
• Tribal communities remained vulnerable to displacement because of mining, dams, and other large infrastructure projects.
• Authorities in India continued to use sedition and criminal defamation laws against government critics. In June, police in Madhya Pradesh state arrested 15 Muslims on sedition charges for allegedly celebrating Pakistan’s victory over India in a cricket match, despite Supreme Court directions that sedition allegations must involve actual violence or incitement to violence.
• Nearly five years after the government amended laws and put in place new guidelines and policies aimed at justice for survivors of rape and sexual violence, girls and women continue to face barriers to reporting such crimes, including humiliation at police stations and hospitals leading to lack of protection.
• Hence, the minority context must not be limited to religion/region/linguistic characterization - but must include other marginalized groups as well.
• In October, the Supreme Court ruled that sex with a girl younger than 18 was unlawful, regardless of whether she is married or not, saying the exception for married girls was arbitrary and discriminatory.
• In August, the Supreme Court, in its ruling that privacy is a fundamental right, gave hope to lesbian, gay, bisexual, and transgender (LGBT) people in India by stating that section 377 of India’s penal code had a chilling effect on “the unhindered fulfillment of one’s sexual orientation, as an element of privacy and dignity.
• Transgender Persons (Protection of Rights) Bill: The report recommended that the bill adopt a 2014 Supreme Court ruling, guaranteeing transgender people the right to self-determine their gender identity. The committee also recommended the bill recognize transgender people’s right to marriage, partnership, divorce, and adoption.
• Rights of Persons with Disabilities: India enacted a new mental health law that provides for mental health care and services for everyone and decriminalizes suicide. However, disability rights groups say much remains to be done to ensure that the law is properly enforced.

Foreign Policy and Minority Protection:

Despite concerns over China’s influence, India intervened in Nepal to persuade the government to adopt inclusive policies that accommodated minority communities in the southern part of the country.

India committed to providing aid for large-scale infrastructure and socio-economic development projects in Rakhine State, but did not call on the government to check abuses by its security forces or to amend its discriminatory citizenship law that effectively keeps the Rohingya stateless.

Way Forward:

The global governance network must recognizes that effort to promote and protect the rights of minorities must be multidimensional and engage the entire System.

Discrimination is often at the root of identity-related tensions. Such tensions have a potential to develop into crises that could ultimately lead to conflict, forced displacement and, in the worst cases, to atrocity crimes, including genocide.

Hence, before these instances develops into a broken window syndrome, these must be allayed as early as possible.

What the communities and civil societies need to look after is the sense of developing an integrative humanistic framework which allows for affirmative discrimination in favor of minorities at the same time ending avenues for potential abuse.

Practice Question:

Contributing to India’s diversity are a multiplicity of intersecting identities, including caste, language, ethnicity and tribe, as well as degrees of religious syncretism which belie rigid understandings of identity formation and affiliation. Critically examine status of minority protection in India?