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| Wednesday, 25 August 2004 |
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Human rights and minorities - With special reference to India by James Massey
Historically the 'human rights' were born out of the struggle oriented experiences of the people of the northern countries. The historical development of the human rights can possibly be divided into three stages, which covers a period of more than a century. The first stage begins with the bourgeois revolutions, particularly French and the American. One of the main points of this early stage was that the State should not impose any restriction on the sharing of the information. The second stage of human rights development took place within the socialist revolutions, during the first quarter of the 20th century in countries like Mexico and Russia. The main focus and emphasis during the second stage was on economic, social and cultural rights of the people and the State was supposed to assist in improving these. The third stage of the development of human rights began during the second quarter of the 20th century with the anti-colonialist revolutions, which stressed on national self determination and non-discrimination. Because of the historical relationship of human rights with these Northern countries' revolutions we find, the United Nations' Universal Declaration of Human Rights (1948) is more individualistic in nature. The scope Internationally the scope of the human rights is determined by the United Nations in its Charter Article I, which says these are 'for all without distinction as to race, sex, language, or religion." For implementation in the same Article I of the Charter, international cooperation is sought, which "implies that national borders put no limits to human rights, but that by their nature human rights represent trans boundary values". Still in spite of all this Dr. Patrick Thornberry is right in his observation that the "minorities as such do not enjoy rights in the declaration." Dr. Thornberry also observes that from the time of the Universal Declaration of Human Rights was promulgated, "the protection of minorities has been more or less absorbed into the wider concept of human rights." But thanks to some of the later major instruments of international law, which actually has introduced a new system of human rights, recognises the rights of the minorities. The best example of such instrument is the United Nations' Covenant on Civil and Political Rights' (1966), which in its Article 27 says: "In those states in which ethnic, religious or linguistics minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language." International instruments The other important international instruments, which focused specially on the rights of minorities includes: Convention on the Prevention and Punishment of the Crime of Genocide (1948), International Convention on the Elimination of all forms of Intolerance and Discrimination Based on Religion or Belief (1981) and Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (1992). The Declaration of 1992 has cleared the earlier doubts and expanded the scope of minorities' rights. It very clearly states in its Article I, which directs the member States concerning full protection of minorities' identity, which reads as: "1. States shall protect the existence and national or ethnic, cultural, religious and linguistic minorities within their respective territories and shall encourage for the promotion of that identity. 2. States shall adopt appropriate legislative and other measures to achieve those ends." Fundamental freedoms The Article three (clause one) of the Declaration says: "Persons belonging to minorities in exercise their rights including those set forth in this Declaration individually as well as in community with other members of their group, without any discrimination" have been accepted at the same time. Besides recognising both of individual and collective rights, the Declaration of 1992 in Article 4, also has directed the member States about the protection of the human rights and fundamental freedoms of the minorities by saying, "Persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and full equality before the law." So as it stands today, 'minority rights' are enjoying a special status along with the human rights in general. Till now our discussion was mainly on the relationship of human rights and minority rights, which prevailed internationally for more than 50 years. But why did it take the United Nations more than four decades to accept the reality of minorities, especially those belonging to the religious and linguistic minorities? It is, because originally the human rights were the product of the historical context of the Northern countries, which have been far less pluralistic in nature. But now as the reality of pluralism has entered their contexts also, so possibly the pressure of this reality has made this change easy. Indian constitution On the other hand, a country like India, which has been for centuries multi-religious, multi-linguistic, multi-cultural and multi-racial in nature, there was no hindrance to accept this reality right from the time of her Independence. This is the reason why the Indian constitution has fully accepted the principle of 'unity in diversity', or 'pluralism in togetherness.' About the close relationship between human rights and minority rights, this fact has been positively accepted in the Protection of Human Rights Act, 1993. This Act also deals with the constitution of a National Human Rights Commission according to which the Chairperson of the National Commission for Minorities, is one of the ex-efficio members. The reason why the Chairpersons of the National Commission for Minorities has been made the ex-officio member of the National Human Rights Commission is because the Protection of Human Rights Act 1993 expects from him or her to discharge his or her duty in carrying on such way that the human rights of the minorities are protected. Now what do we actually mean when we talk about the rights of the minorities? Are these rights different from the human rights or the rights of the majority? Again to get a possible answer to these questions we will refer to the case of India and her Constitution. The Rights or Human Rights of the Minorities in the sense today we talk internationally, (particularly after the UN Declaration on the Rights of Person Belonging to National or Ethnic, Religious and Linguistic Minorities in 1992), Indian constitution already has taken care much of what the United Nation Declaration has spelled out in detail. Here it may be of help to refer to an analysis based report on 'new approaches to minority protection' or Asbajorn Eide. Eide in his introductory statement to his suggested approaches says: "A human-right-based approach in pluralist societies must combine efforts to ensure equality in the common domain with acceptance of diversity in the separate domain. The 'separate domain' is that reserved to the minority or its members to protect its identity as a group... The 'Common domain' includes all other aspects of social life which are subject to regulation by the authorities." The distinction between 'common domain' and 'separate domain' and their combination has been well kept and protected in the Indian Constitution. Fundamental rights Part III of the Indian constitution deals with fundamental rights. These rights very clearly are divided into two parts, the rights which fall in the 'common domain' and the rights which go into the 'separate domain'. In the 'common domain', the following fundamental rights and freedoms are covered: the equality before the law (article 14), prohibition of discrimination on the ground of religion, race, caste, sex or place of birth (article 15), equality of opportunity in matters of public employment (article 16), protection of certain rights regarding speech, expression etc. (article 19), protection in respect of conviction for offences (article 20), protection of life and personal liberty (article 21), protection against arrest and detention in certain cases (article 22), prohibition of traffic in human beings and forced labour (article 23), prohibition of employment of children in factories, etc. (article 24), freedom of conscience and free profession, practise and propagation of religion (article 25), freedom to manage religious affairs (article 26), freedom as to payment of taxes for promotion of any particular religion (article 27), and freedom as to attendance at religious instruction or religious worship in certain educational institutions. Common domain The above mentioned rights are the fundamental or human rights and freedoms in the Indian constitution are provided as part of the 'common domain'. (Most of these fundamental rights and freedoms have been listed in United Nations' Universal Declaration of Human Rights of 1948). On the other hand there are two different kinds of minority rights, which fall in a 'separate domain' in the Indian constitution. First such right is open to all the citizens, who form minorities in different parts of the country and the protection of their interests are protected in Article 29, which reads as: "(1) Any section of the citizens residing in the territory of India or any part thereof, having distinct language, script or culture of its shall have the right to conserve the same. (2) No citizen shall be denied admission into any educational institution maintained by the State or received out of State funds on grounds only of religion, race, caste, language or any of them." The Article 29 though provides the protection to the interests of minorities, yet it does not refer to the numerically less minorities. It actually refers to any section of the citizens, who may have a distinct language, script or culture, even they may belong to majority community. For example members of Hindu majority living in Panjab or Nagaland will have protection for their linguistic or cultural rights, where Sikhs and Christians are in majority respectively. (To be continued) * Prof. Dr. James Massey is a Former Member of the National Commission for Minorities, Government of India and presently director of the Centre for Dalit/Subaltern Studies (Theology, New Delhi, India.) |
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