The 8th Session of the UN Forum on Minority Rights (Geneva, November 23-25) went into the vital issue of minority rights in the criminal justice system and contributed to the finalization of a series of recommendations made by the UN Special Rapporteur on Minority Issues, Rita Izsak.

Catholic bishops, participate in a candlelight protest against attacks on churches, in the southern Indian city of Bengaluru
Catholic bishops participate in a candlelight protest against attacks on churches in Bengaluru

While the mainstream media and intellectuals hype up the ‘idea of India’ and its secularism, democracy and plurality, the truth appears to be different when the situation of minorities in the country is considered.

The minority communities in India, as elsewhere, are inhibited by several factors in the exercise of their basic human, social and legal rights guaranteed in the Constitution of India and the general and special laws of the land. They are often treated with suspicion and prejudice by the majority community.

They are also victims of poor representation in the administrative, police and other institutions of governance. They are victims too of the poor performance of the state and central government agencies in collecting comprehensive and disaggregated data about their socio-economic and criminal justice situation.

The belated and devastating evaluation of the Muslim minority in India by the Justice Sachar Committee in 2005 has been quietly bypassed for all practical purposes.

The liberal democratic and secular Constitution of India (1950) did not define ‘minorities’ but referred only to ‘religious and linguistic minorities’ and provided autonomy to them in running educational and cultural institutions.

The Constitution provides for citizens, including the minorities, equality before the law and equal protection of the law. It prohibits discrimination on grounds of religion, race, caste, sex or place of birth and grants freedom to profess, practise and propagate any particular religion along with freedom of religious instruction and worship.

These rights are indeed essential for the protection of the multi-religious, multi-cultural, multi-racial character of social fabric of India.

A National Commission on Minorities (2005) exists and has identified six religious minorities: the Muslims, Christians, Sikhs, Buddhists, Zoroastrians and Jains. It does not mention linguistic or ‘national or ethnic minorities’, which the UN Minorities Declaration, 1992, specified. The Commission has no punitive powers against those who violate minority rights. There is a central ministry of minority welfare as well.

The ‘Nehruvian consensus’ that informed the secular, social-democratic Indian polity, was unravelled in the late 1980s and the 1990s when shifts occurred in the Indian economy, society and polity. A corporate-led capitalistic political economy emerged.

The government that came up under Prime Minister Narendra Modi in 2014, which was informed by the ‘Hindutva’ (‘Hindu-ness’) ideology, has serious implications for the already fragile minority rights in India.

The ‘Hindutva’ ideology implies positive hostility to minorities in general and Muslims and Christians in particular because these two religions are accused of being non-Indian in origin. Their ‘nationalism’ is thus suspect.

The Rashtriya Swayam Sevak Sangh, (RSS), or ‘National Service Organisation’, is the ideological fountainhead of the ruling Bharatiya Janata Party’ (BJP). It leads a multiplicity of front organisations, two of which are communally hostile to minorities in general and violent towards Muslim and Christian minorities:  the Vishwa Hindu Parishad (VHP) or ‘World Hindu Council’ and the ‘Bajrang Dal’ or the ‘Youth Wing’.

Despite the existence of constitutional rights, therefore, the Muslim, Christian (and Sikh) minorities and the several ethnic minorities in the Northeast are regarded as anti-national and often become victims of extrajudicial executions, torture, rape, intimidation, and implication in false cases, destruction of property and utilities and other illegal acts prohibited under the inherited criminal justice system.

In the late 1980s and early 1990s, the BJP led the biggest anti-Muslim mass movement in post-independence India demanding the construction of a Hindu temple at the very site where Babri Masjid, the Muslim holy place, stood.

On December 6 1992, Hindu mobs led by the top leaders of the BJP, VHP and others which included the former Deputy Prime Minister, Lal Krishna Advani and supported by the present Prime Minister Narendra Modi (as a humble RSS worker) presided over the demolition of the Babri Masjid. This was followed by mass violence cross the country by Hindu mobs against the Muslim community. The continuing violence culminates in the pogrom against Muslims in Gujarat in early 2002. Thousands were killed, their properties destroyed and huge numbers of them were displaced.

The Muslim minority in the Kashmir Valley, the Dalit (Scheduled Castes) and Adivasi (Scheduled Tribes) minorities in the Central Tribal Belt and the ethnic or national minorities in the Northeast have been persistently mistreated.

The right to development according to native genius of the ‘national or ethnic minorities’ in India’s Northeast has been denied and the dominant national majority community has imposed its own uniform model of development on them. Moreover, massive military and paramilitary deployment for counterinsurgency operations has affected the complex development challenges in the region. Insurgency itself is to be seen as an outcome of the failure to meet these challenges with imagination and tact.

Legitimate identity assertions by the ‘national and ethnic’ minorities in the region have met with brutal responses.

In the intensely conflict-affected ethnic north-eastern state of Manipur, a young Meitei woman, Irom Sharmila, has been on a heroic 16 year-long indefinite hunger strike demanding the repeal of the draconian Armed Forces (Special Powers) Act (AFSPA), 1958. The Act, which provides immunity from prosecution to violence-prone armed forces personnel, has led to serious human rights violations. Sharmila’s seminal hunger strike has been bypassed by the ruling elite and the military high ups.

The role of the AFSPA in the Northeast and in other minority-inhabited areas has been controversial. The classified Justice Jeevan Reddy Committee report in 2004 condemned the ‘lawless law’.

The minority Sikhs were subjected to genocidal killings after some members of the Sikh security forces assassinated former Prime Minister Indira Gandhi to protest the killing of Sikhs during and after Operation ‘Blue Star’ (1984).

The genocidal killings of the Muslims in Gujarat (2002) were followed by the attacks on the minority Christians in Kandhamal in Odisha (2008) violating basic minority rights.

In the Gujarat massacre of 2002, police failed to focus on Hindu fundamentalists who were the real culprits. They delayed the imposition of the curfew; neglected criminal law under political influence; failed to collect intelligence; participated in the violence against the minorities: indulged in illegal registration of First Information Reports (FIRs) and omnibus FIRs; failed to arrest the real culprits; neglected identification parades; conducted malicious combing operations in minority areas;  neglected rape victims; allowed criminal Hindu mobs to have their way; ignored the recommendations of the National Human Rights Commission and failed to follow laid-down central government instructions on dealing with communal disturbances.

Indian policy makers, it seems, are more preoccupied with state-building rather than nation-building or social justice delivery.

The need to promote and protect minority interests and rights is yet to be explicitly brought out in a legislative provision as recommended in the UN Minorities Declaration, 1992. The Schedules Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 provides an appropriate model.

Specific international principles and standards on minority issues are yet to be incorporated in the Indian legal system.

Anti-terrorist laws in India have been misused to prosecute innocent Muslims by the police forces in pursuit of government recognition and rewards. This is evident from the publication Framed, Damned, and Acquitted: Dossiers of a very Special Cell, 2015’, Jamia Teachers Solidarity Association, New Delhi.

Further, the phenomenon of ‘moral policing’ has encouraged elements in civil society take the law into their own hands to set right alleged violation of ‘prohibited’ activities such as the consumption of beef by Muslims.

The various failings in governance have led to the emergence of an increasing number and variety of political protest movements and insurgencies across the country.

The question thus arises whether the Indian political system and leadership possess the necessary openness, flexibility and sagacity to read the signals and undertake appropriate measures to promote and protect the minority interests.

The writer was a participant at the recent UN conference on ‘Minority Rights in the Criminal Justice System’ at Geneva. He is the author of ‘State, Policy and Conflicts in Northeast India’, Routledge, 2016  

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