Judicial Legitimacy for Hindutva Myths

The lead up to the Assembly polls in Uttar Pradesh saw a spate of communal violence aided by a desperate Mulayam government to salvage its fast losing turf, and the launch of one of the most vicious anti-Muslim campaign by the BJP with the support of state machinery and a toothless Election Commission. Fueling the frenzy further was the single bench judgment of the Allahabad High Court declaring Muslims to be a numerical majority in the state. Defying all logic and conventional yardsticks to determine a minority, the judgment claimed that considering that the Muslims in Uttar Pradesh comprised 18.5% of the state’s population, they “do not merit to be included as minorities any longer and therefore, should not be entitled to benefits accruing on that account”.  The immediate context was a petition moved by Ghazipur-based Madrassa Noor-ul-Islam, seeking the Court’s intervention for getting it self included in the list of minority institutions entitled to periodical government grants. While the plea was rejected outright, in his zeal, Justice S.N Srivastava overstepped his jurisdiction to serve a writ of mandamus to the Union of India to modify an October 23, 1993 notification specifying Muslims among the minority communities of the country.
While the Court order was suo moto stayed by another bench of the High Court, it is the underlying ideology that is malicious. The judgment itself cannot be seen as an aberration, but a grim reminder of how judicial interventions have, over the years, been deployed to legitimate Hindutva mobilizations and anti-Minority campaigns. In 1995, a Supreme Court ruling equated ‘Hindutva with Indianisation or the development of a uniform culture by eradicating the difference between all cultures coexisting in the country’. The verdict was a virtual judicial sanction for Hindu majoritarianism and a negation of the Constitutional obligation to preserve and protect minority cultures. In a similar vein, in 2005, a two-judge bench of the Supreme Court cited Hindu Shastras to accord legal status and rights to Hindu deities to own land and properties in the same manner as that of a natural person. Recently, the Allahabad High Court created a furore by quashing the minority character of Aligarh Muslim University. Invalidating a 1981 Parliamentary Amendment, the High Court upheld a 1968 Supreme Court judgment (Azeez Pasha Vs. the Union of India) in which the Court had denied minority status to AMU on two grounds. One, AMU was not established by its founder Sir Syed Ahmed Khan, but a British Act of Parliament and later a Central legislation. Two, Muslims were not a minority as they were a homogenous community whereas the various castes and sects of Hinduism could be considered minority groups. Muslims, thus in the judges’ view, were in fact a majority in this country and the Hindus a minority—a sentiment echoed by Justice Srivastava’s conclusion. Again in 2005, a three-judge bench of the Supreme Court (Bal Patil vs Union of India) while denying minority status to the Jains held that in a caste-ridden Hindu society ‘all are minorities among Hindus’.
The term minority finds mention only in Article 30 of the Constitution wherein religious and linguistic minorities are entitled to establish their educational institutions, ostensibly to protect minority cultures from assimilative tendencies of the state and the majority community. Even this provision—the only concession that the Constitution makes to the minorities of the country—has remained contentious. However, few would know that Article 30 itself could be construed as a ‘great betrayal’ towards the minorities. In the draft Constitution, minority was a category that subsumed within its broad definition the Scheduled Castes, Tribes, Anglo-Indians, Muslims, Sikhs, Parsees and Christians. All of these were guaranteed reservation in legislature and adequate share in government jobs. However, post-Partition, the gang-up of Congress rightists led by Sardar Patel forced a re-opening of the debate. Religious minorities were excluded from the ambit of reservation, with only the SCs and STs now marked out as the beneficiaries of reservations. In an unprecedented subterfuge—though Patel’s initial resolution and speech focused only on reservation in legislature, at the last moment, with no discussion in the House—the minorities’ claim in public service was also nullified. And the paragon of Indian secularism, Jawaharlal Nehru, declared that any demands of safeguards by minorities betrayed lack of trust in the majority.
True, Article 30 doesn’t spell out the parameters of defining minority groups, yet successive Supreme Court interventions have laid down clear guidelines—a fact that Justice Srivastava of the Allahabad High Court chose to ignore. As early as in 1957, the Supreme Court (Ref the Kerala Education Bill) granted minority status to groups whose numbers were below 50 per cent in a given area. In 2002 (T.M.A Pai Foundation vs the State of Karnataka), an eleven-judge bench of the Supreme Court specified that the geographical unit has to be the ‘state in relation to which the majority or minority status will have to be determined’. Regardless of the fact that Uttar Pradesh has the highest concentration of Muslims in the country, the community will continue to be a minority on account of it being only 18.5% of the state’s population. Whether they comprise more than 50 per cent in a couple of districts remains inconsequential.
It is not the numerical criterion alone that need be invoked to legitimate minority status to the Muslims of U.P. Considering the experience of apartheid South Africa, minority status is also a definition of marginality. The case of Muslims is substantiated by the findings of the Sachar Committee. The Muslims of U.P, as in most states, comprise the bulk of those below poverty line. Their share in government jobs is a miniscule 5 per cent; the literacy level is a good 10 points lower than the state’s average. Most Muslim concentrated areas remain devoid of basic developmental amenities such as pucca roads, electrification and a primary school. This in turn has abetted high drop-out rates among Muslim children. The absence of school often tends to be compensated by the ubiquitous presence of a police chowki.
Given the scenario, what does the loss of a minority status imply? In concrete terms, to most Muslims it has remained an empty slogan. Article 30 has mostly only served to provide the State an alibi to hide behind. The National Policy on Education, 1986 identified Muslims as the educationally backward minority and called for immediate attention. The Planning Commission, however, left this task to ‘Minority Educational Institutions’, majority of whom are entirely self-financed, usually catering to the elite. The Madarsa modernization programme is the government’s flagship scheme to attend to the educational needs of Muslim children—a typical state response to the need for schools in minority concentrated areas. But even here, the allocation has remained paltry. The fund allocation for Maulana Azad Educational Foundation, launched with great fanfare, hardly reflects the long list of tasks appended to it: including construction of hostels, schools, laboratories, sadhbhavna kendras, vocational training centres, scholarship to girl students etc. The National Minorities Commission is a statutory body yet its reports are never tabled in the Parliament. A sinister minoritisation in state policy is what the Muslims of India are faced with. It is this minoritisation that strips them off all entitlements while constructing them as exclusive political category that is to be won over by occasional sops and concessions. In this project minoritisation, questions like partnership in progress and adequate share in national wealth are often glossed over. Ironical as it may be, the Allahabad High Court judgement is of one piece with this project.

- Tanweer Fazal