[dropcap]D[/dropcap]ECEMBER 9, 1946 marks the first meeting of the Constituent Assembly, and a moment in history when the events leading to the Partition were looming large in the background. Despite its imminence at that time, this major historical event which has since shaped the collective memories of two nations has found no mention in the text of the Constitution.
It is widely noted that constitutions often make a mention of the chaos or violence from which they originated. For example, the Rwandan Constitution (2003) which was adopted after the end of a bloody genocide against the Tutsi tribe memorialised the genocide by stating that the drafters of the Constitution were “conscious of the genocide committed against Tutsi and decimated more than a million sons and daughter of Rwanda, and conscious of the tragic history of our country”.
In stark contrast, the Indian Constitution contains no explicit mention of the Partition, despite it being birthed in that same time-frame. As such, the absence of the Partition in the Constitution of India has become glaringly obvious and is often noted in popular literature.
However, if we move beyond the first glance and conduct a closer examination of Constituent Assembly debates, it’s amply clear that the Partition indeed was the running sub-text of the drafting process. To note that there is no mention of the Partition in the Constitution does not lead one to suggest that the drafters of the Constitution were either ignorant or light-hearted about the occurrence of the Partition. On the contrary, the Constituent Assembly took notice of the unfortunate manner in which the Partition was unfolded, and certain members also referred to the uncountable deaths caused by the partition, a holocaust of massive proportions.
Jawaharlal Nehru, the then Prime Minister, was acutely aware of the onerous legislative task that lay ahead of him, and he noted that that no amount of meticulous drafting would offset the effects that would follow once the Partition happened.
Another member of the Assembly, a senior Congress leader, H.V. Pataskar understood the urgent need to adopt the perspective of an average countryman when drafting the foundational document of the nation. He was perceptive and keenly noted that the anxiety partition would cause amongst the general public and would render them desirous of a “strong government”. However, at the same time he contemplated on what the phrase “strong government” meant to begin with. He argued that while India may proceed to establish a “strong government” for itself, such government should not distrust the common person, who is the “foundation of a democratic state”.
The story of Part III of the Constitution is incomplete without this contextual understanding that was so deeply embedded in our Constitution-makers.
The rights of the minorities guaranteed by the Constitution are quintessential examples of the fundamental rights which were deeply influenced by the Partition. Considering that the Partition at its core was a result of the mistreatment of religious minorities, the Partition’s impact on the drafting of minority rights is palpable.
Partition played a major role in shaping the boundaries of the fundamental rights in the Constitution. Pataskar recognised that the partition led the Constitution into “altering our First Charter of Freedom and diverting ourselves from the goal which we have set before ourselves”, highlighting the Assembly’s transformed perspective on fundamental rights.
It is true that the Partition led most members of the Constituent Assembly to agree that a “strong state” is sine qua non for a united nation, and this meant that the wide nature of most restrictions on fundamental rights did not face as much criticism. While senior members such as Brajeshwar Prasad were critical of the wide restrictions on fundamental rights and endorsed the view that “..the mischief of partition should not be allowed to spread beyond the legal fact of partition”, they were unable to convince a majority of the Assembly and the restrictions were approved in their wide form.
But the Partition also threw limelight on the need to recognise specific fundamental rights of particular communities. These rights, did not all, necessarily enjoy recognition in universal human rights jurisprudence, but were needed in Part III of the Constitution so that communities which were historically dismayed with ruling class action were assuaged from demanding to secede from the Indian territory.
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The narratives for ensuring a robust set of minority rights in the Assembly debates were varied and arose as a result of various reasons. Some suggested that following the Partition, the religious minorities put up a reasonable and credible front by not insisting on their demand for separate electorates and reservations in electoral processes. So, it was suggested that this sacrifice by the minorities should be met with some seriousness by the drafters of the Constitution, and the specific rights of the minorities should be befittingly safeguarded and if possible, furthered in the text of the Constitution.
To this effect, B A Mandloi argued that the minorities “voluntarily surrendered” the safeguards which were available to them before Independence, such as separate electorates and reservations, because “the minorities feel confident that in the Indian Union they will have equal rights”. Given this, he suggested that additional efforts should be taken to secure fundamental rights to the minorities so that the vast socio-economic and political gap between minorities and the majority is bridged, and so that the minorities have a mechanism to counter-balance any of the untoward actions by the majority.
Another equally powerful narrative arose from the mere recognition of the brutalities committed against minorities which were associated with the Partition, and the Congress leaders’ urge to ensure that post-Partition India accommodates all the religious minorities residing in India. Several members called for the recognition of the rights to minorities after describing the holocaust-like nature of partition, and emphasised the need to be empathetic to the needs and interests of the minorities in those times of hostility, when violence, particularly against the minorities was rife.
Mahboob Ali Baig Sahib Bahadur argued for the need to be empathetic to the minorities (and to recognise their rights) after stating that “after the transfer of power, there was a holocaust, there were disturbances, there were tragedies which compelled persons to migrate”. His argument quite clearly illustrates this narrative, viz., the humanitarian need to empathise with the situation of minorities, and to secure them sufficient safeguards to lead a dignified life in the country.
As recent as in 2005, in the case of Bal Patil v. Union of India, the Supreme Court in pursuance of its role as the guardian of fundamental rights, undertook to “remind” the National and State Commissions for Minorities of the contextual history of the fundamental rights. This reminder by the Supreme Court is telling of the fact that a meaningful interpretation of minority rights is possible only if we read the text of the Constitution, along with the sub-text, i.e. the Partition. In this case, the Supreme Court also adopted the latter narrative, i.e. that minorities should be protected with safeguards so that they feel secure to reside in this country.
Speaking for the Court, Justice D M Dharmadhikari first noted that following the partition of India and Pakistan, several doubts and suspicions occupied the minds of Muslims in India that once democracy is instilled, the Hindu majority would take control over the affairs of the country, through their political strength.
As the Court noted, “There were also apprehensions expressed by many prominent Muslim leaders that there might be interference with and discouragement to their cultural, religious and educational rights”. This meant that there was a certain need to ensure that the majority would not be able to do what the minorities suspected that they would do, and this had to be in the form of fundamental rights, which are to be respected by the majority and the State in all situations.
Therefore, in the words of the Supreme Court, “It is against this background of partition that at the time of giving final shape to the Constitution of India, it was felt necessary to allay the apprehensions and fears in the minds of Muslims and other religious communities by providing to them a special guarantee and protection of their religious, cultural and educational rights.”
The above analysis clearly demonstrates the reasons for securing minority rights, as well as, and more importantly, the constitutional goal of protecting minority communities from the misdeeds of the majority. It is unfortunate to note that there are no positive efforts that the government has undertaken to further this constitutional goal; and to the contrary, there have been several actions of the governments, both at the centre and the states, which threatened the rights and liberties of minorities, or at least, ignored the violations of rights and bodies of the minorities.
In the last four years, there have been recurrent attacks against individuals belonging to the Muslim, Dalit and Scheduled Tribe communities for reasons most inconsequential. The reaction provided by the executive for the increasing brutality has been far from satisfactory, and in some cases, indicates some level of state complicity.
Recent years also witnesses the rapid communalisation of parliamentary processes, and blatant communal nature of laws passed by the Parliament. In 2016, an amendment to the Citizenship Act was passed by the Lok Sabha which granted citizenship to refugees belonging to Hindu, Buddhist, Sikh, Jain, Zoroastrian and Christian faiths coming from Pakistan, Bangladesh and Afghanistan. The amendment did not extend this benefit to Muslim refugees from Pakistan, Afghanistan and Bangladesh, despite reported violence against certain sections of Muslims in Pakistan.
Moreover, in spite of the growing number of atrocities against members of Dalit and Scheduled tribe communities, the Supreme Court diluted the provisions of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
Information in public domain strongly suggests that the three wings of the Indian government have utterly failed to secure the constitutional goal of protecting religious minorities, such as Muslims, Dalits and members of scheduled tribes. It is in this light that one must critically understand the urgent need to uphold the intent of the drafters through a historical and contextual reading of the Constitution.