Muslim India

Minorities As Target of Violence & Discrimination

Institutionalised Impunity Major Source of Fear of Recurrence of Massacres

Asma Jahangir’s Appeal to Reconsider Anti-Conversion Laws and Reservation to All Dalits 
 

I

1. We welcome UN Special Rapporteur Asma Jahangir’s country Report on India wherein she has observed that “in order to protect and empower members of religious minorities, the State should be proactive and take appropriate measures against all forms of intolerance and discrimination based on religion or belief”. Her comprehensive observations and recommendations deal with five identified areas of concern: (i) situation of religious minorities; (ii) communal violence; (iii) Kashmir; (iv) religious conversion; and (v) personal laws.

2. She has expressed grave concern over organized religious ideological groups unleasing an all-pervasive fear of mob violence against religious minorities in many parts of the country and institutionalized impunity owing to partisan role of the law-enforcement system, making peaceful citizens, particularly minorities, live in fear.

3. The Special Rapporteur has drawn the attention of the country and the international community to the real risk of communal violence in India similar to Gujarat 2002 happening again unless advocacy of religious hatred constituting incitement to discrimination, hostility or violence is adequately addressed. Her recommendations include, “appeal to the Indian authorities to take quick and effective measures to protect members of religious minorities from any attacks and to step up efforts to prevent communal violence. Pointing out the misconceived Communal Violence Bill 2005’s failure “to dismantle impunity and state collusion”, she recommends that “specific legislation on communal violence should take into account the concerns of religious minorities and must not reinforce impunity of communalized police forces at the State level.”

4. The Special Rapporteur has noted that victims of violence who are condemned to live with haunting memories of injustice for decades and impunity enjoyed by perpetuators of communal violence like those of 1984, 1992 and 2002 are the major sources of their recurrence. She has emphasized that highest priority should be accorded to large scale communal violence by the investigation teams, the judiciary and inquiry commissions.

5. Recommendations include setting up of truth and reconciliation commissions to encourage healing and reconciliation in long-standing conflicts.

6. The Report also notes arrest of innocent Muslims on ill-founded suspicion of terrorism, some of whom are denied the right to counsel.

7. Referring  to the findings of official committees & Commissions, especially the Sachar Committee Report 2006, The Special Rapporteur notes, inter alia, abysmally low share of Muslims in employment in various government departments and lack of their access to good quality education, and observes that “it is crucial to recognize that development without a policy of inclusiveness of all communities will only aggravate resentments”. In this regard she has appreciatively noted that recommendations of Sachar Committee 2006 & Ranganath Misra Commission 2007, expressing the hope of their implementation. She also recommends making composition of empowered Commissions like State Human Rights Commission socially diverse, including women.

8. On Community-specific situation, the Special Rapporteur’s findings include violence against Dalit & tribal Christian communities in Orissa.

8.1 About situation of Muslims the Rapporteur notes ongoing repercussions of communal violence like Gujarat massacre 2002, and also their treatment as a distrusted community, who have to ever prove their loyalty.

8.2 Reference has also been made to her report to the Human Rights Council (A/HRC/10/8 para 29-62), dealing with discrimination based on religion or belief and its impact on enjoyment of economic, social and cultural rights.

8.3 It has also noted how radicalization of certain Muslims and their link with cross-border terrorism have been adversely impacting on the condition of the entire Muslim community.

8.4 About Sikhs, Jains and Buddhists the Report notes their concern over their treatment under law as part of Hindu religion and not as distinct religious communities.

9. About S.C & S.T the Report recommends delinking their status for enjoyment of affirmative action benefits from individual’s religious affiliation, restoring eligibility for these benefits to all members of S.C & S.T having converted to another religion.

10. On the issue of religious conversion Special Rapporteur has given a very forthright statement that “right to change or maintain a religion is a core element of the right to freedom of religion” and that “peaceful missionary activities and other forms of propagation of religion are part of the right to manifest one’s religion or belief, which can be limited only under restrictive conditions”. In view of this, the Report recommends reconsideration of various laws & bills on religious conversion in several Indian States. She has expressed concern over the fact that “such legislation might be perceived as giving some moral standing to those who wish to stir up mob violence.”

11. With regard to religion-based personal laws, the Special Rapporteur would like to recommend that such laws be reviewed to prevent discrimination based on religion or belief as well as to ensure gender equality.

11.1 Legislation should specifically protect the rights of religious minorities and of women, including of those within the minority communities.

12. On Jammu and Kashmir the Report has noted that the population is still divided on religious lines, and that “the Muslim community remains vulnerable to excesses of security forces, while the entire population is a victim of violence perpetrated by militant groups of Muslims.”

Elsewhere in the Report the proposal of Jammu & Kashmir is considered as one of those long-standing conflicts which are worthy of being addressed by the proposed truth & reconciliation commission. 

II Comments on the Report

1. As one of Asma Jahangir’s interlocutors in Delhi, during a session in Jamia Millia Islamia, and having submitted written comments on her press statement issued on March 20, 2008, I had pointed out (a) the role of the judiciary in India in encouraging a pervasive climate of impunity for perpetrators of hate speech and communal massacres showing overindulgence to hate-mongers like Bal Thackeray; (b) the judiciary having developed a model of ‘Inclusive Hinduism’ which denies Buddhists, Jains, Sikhs and Anand Margis etc. distinct religious status; (c) denial of benefits of State’s affirmative action to Dalit convertees to Christianity & Islam; (d) denial of rights to Hindu parents on conversion to Islam/Christianity; (e) special protection under state laws to cow and its progeny being a source of harassment of and violence against Muslims; (f) except for Best Bakery and other Gujarat cases treatment of communal massacres as routine cases by law courts; (g) absence of laws on i) genocide, ii) on rights of victims of violence; (h) wide disparity in ex-gratia payment of compensation to sufferers based on faith affiliation; (i) lack of police reform for its accountability for impartial law-enforcement; (j) justification of uniform civil code being sought under cultural homogeneity of a secular Hindu nationhood; (k) exclusion of religious minorities from benefits of State’s affirmative action on the perverted concept of secularism. 

1.1 I had also pointed out how the higher judiciary had selectively applied rigorous test of essentiality for denial of certain rights to Muslims under article 25, like that of keeping beard by some employers (and now a student) and sacrifice of cow for Bakra-eid festival.

2. It is well that though for understandable reasons the judiciary has been spared any direct criticism in the Report, most of the concerns, including that emanating from judicially developed ‘Inclusive Hinduism’ as well as those related to special measures for protection and empowerment of religious minorities for de facto enjoyment of their right to freedom with dignity, and equality in social, economic and educational development have been adequately addressed.

3. However, the Report has not appropriately dealt with the issue of terrorism by the State and by the Hindu organized groups with an agenda of hate and revenge against Muslims, and the militant Muslim groups in J & K enjoying cross-border support and unorganized periodic acts of retaliatory communal terrorism by frustrated Indian Muslim  youth having lost hope in the Indian police and justice system seeking wild justice in desperation – like in Mumbai 1993, Coimbatore 1998 etc. as testified by Justice Srikrishna Commission and other Reports.

3.1 She has not fully dealt with how counter-terror measures of the State have made vulnerable sections of Muslims in certain parts of the country live in constant fear.

III

The Special Rapporteur’s Characterization of the Indian State as one “having democratic safeguards within the political system, and the institutions having accumulated a vast experience in protecting human rights and also her assessment of the role of the National Commission for Minorities is seriously questionable on the following grounds:

(i) It is not true that it is the quasi-federal nature of Indian polity which is coming in the way of dismantling colonial structure of governance, like the police functioning with a ruler-ruled nexus and resort to torture by the police not being outlawed. Given relevant provisions of the Indian Constitution and international treaty obligations of the country under human rights law, it is the vested interest of all Governments at the Centre and the States along with the entire mainstream political class which is the main reason for lack of governance becoming democratic.

(ii) Even the Central Government has not taken minimum measures to implement police reforms recommended by all national commissions since 1978 and directed by the Supreme Court in 2006 to enable it to enjoy functional independence, accountable to law ensuring its impartiality.

(iii) Even such a reform as bringing the Police Manual on Use of Force and Firearms into conformity with UN Basic Principles 1990, have not been effected; the police, thus, continues to routinely use lethal weapons for mob-control in ordinary civil situations in the street when the crowd does not pose any imminent threat to life.

(iv) India is yet to ratify the UN Convention Against Torture, enabling the police to routinely subject suspects and accused in custody to torture.

(v) It has not enacted a law on genocide in spite of periodic massacres with hate motives occurring in the country – as was the unanimous verdict of civil society groups about anti-Sikh massacre 1984 and Gujarat 2002.

(vi) State’s liability for reparation and rehabilitation of victims of grave mass violence caused by failure of governance has yet to be recognized under law on rights of victims of violence.

(vii) It has not yet implemented the directive of the Human Rights Council on empowerment of National Commission for Minorities, especially providing it with the machinery for independent investigation. On the contrary the Commission functions as a Department of the Government, which has not mustered courage to ask the Union and State Governments to supply complete information on riot related cases in law courts and wide disparity in ex-gratia payment of compensation to the victims of communal violence. Its chairperson and members continue to be nominated by the Government of India, thus enjoying no independence.

(viii) There is no effort to make institutions, like legislatures and empowered Commissions and the police & judiciary socially diverse with adequate minority representation.

It is not only the political class, including ‘secular’ and ‘leftist’ sections even what the Rapporteur considers a vigorous civil society human rights movement, has not consistently raised the issue assigning any priority to it. It is the most neglected area of public concern, in spite of some rhetoric of inclusiveness gaining respectability. 

Iqbal A. Ansari

Secretary-General

Minorities Counci

April3,2009