The term ‘minorities’ include various categories ranging from race to caste to religion to linguistic to sexual orientation to gender to disabilities etc. which have been recognized by various legislation or has been one of the most persuasive values for international organizations drafting their resolutions. Recognizing and providing remedies for minority rights should not be construed as providing a favorable position for such groups rather its essence is to balance the injustices and provide for the above aspects to be just and fair so as to minimize the abuse. Its only aim and object is to bring all the individuals before a common line to their fundamental rights.
This article has been divided into two categories highlighting the contributions of both the institutions as well as the individuals who have contributed towards such object and tried to ensure that such groups avail the same rights and benefits as the rest of the world i.e. the notion of effective and substantive equality. The participation of institutions and individuals become important on a global level to set examples and help these minorities to preserve their identity and combat the issues of social exclusion[1]. Fortunately, such minorities have been given due time and discussions, and reforms have been made and been recommended by the biggest international bodies in promotion of the broad ideology of cultural diversity and social justice within a society. However, it all rests upon the implementation of the reforms and schemes laid down by each country and the various interventions of organizations thus become a vital part as a means to achieve the object.
The United Nations is one of the leading institutions all around the world which has recognized various human rights and has an international binding as well as persuasive value regarding such rights. It is one of the most heavily relied and prime authorities which decides on to the issue of minority rights and the perception of such rights. Though, the charter of the UN does not mention minority rights per se, and focuses more on human rights, through the course of all these years it has tried to enhance the protection of various groups vulnerable to abuse, a large part being the minority class. Infact, it identifies itself as, “in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”[2]
Now, to discuss the timeline for such recognition and protection of such rights, it all began from 1948 by adopting the Universal Declaration of Human Rights in defining the various and crucial aspects of human rights globally[3]. It focused on the anti-discrimination provisions and other articles relating to the minority group disadvantage. Moreover, the UN did address the issue pertaining to the minority groups in the convention on the Prevention and Punishment of Crime of Genocide to specifically exclude the classification of various races, ethnical groups or religious groups[4]. There were bodies being created and international treaties being adopted addressing the minority issues at length and to come up with a solution to resolve such issues. One of such treaties which were adopted by United Nations Educational, Scientific and Cultural Organization (UNESCO) was regarding the educational activities such as establishing schools by minority community, teaching their own language and the prohibition against such discrimination faced by the groups. Similarly, through various conventions in the 1960s, the UN adopted policies through which they can combat this issue and protected the minority rights, one of them being the International Convention on Elimination of all forms of Racial Discrimination in 1965 to prohibit any classification and discrimination based on race, color, ethnicity etc.[5]
These developments led to gaining more attention and were recognized globally as the years passed by. The minority rights and their contributions were deeply emphasized by the UN and thus shows their determination and success of how they made aware of such rights straight from the fundamental level when the society was surrounded by situation of wars, diseases etc. It was in 1990 when a declaration on human rights, democracy the rule of law and minority rights were adopted in Europe paving way for a wide range of rights for various communities. It has had a vast and significant impact on the lives of such minorities. Similarly, UN conducted several other Conventions and adopted policies from Durban in 2001 and 2009 regarding racial discrimination[6] and its affirmation to care fundamental principles of human rights to Committees being formed for proper implementation of the policies adopted based on minority rights and other issues. Though it has had a positive effect, however there have been concerns over deriving a general accepted definition of ‘minority’ which until 1979 was proposed by Special Rapporteur Francesco Capotorti in his report defining it as:
[a] group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.[7]
Until this definition was proposed and agreed upon, it led to side-lining various considerations of minority rights between the UN and countries ultimately impacting the minority groups and community.
As per the United Nations Report, a total of nine international treaties exist in relation to human rights which are legally binding on such countries agreed to such treaty[8]. Other countries cannot be forced to follow the guidelines upon any violations as mentioned by the various agencies, however whenever such issue comes up to dispute, such guidelines act as a highly persuasive source to resolve such matters. The procedures as mentioned in the Charter of United Nations and various other listed bodies as per the report address such situations pertaining to a country. Furthermore, the report clearly suggests and lays down the procedure for the use of such provisions as recommendations to the government put forward by the NGO’s or similar organizations for a better protection of human rights to general or minority population, as the case may be.[9]
The United Nations work with a lot of allied bodies under it such as the United Nations Development Programme (UNDP), United Nations High Commissioner of Refugees, United Nation’s Children Fund, International Labour Organization (ILO) and UNESCO[10]. Each body has its own resolution to contribute to the full realization of the rights and principles set forth in the UN Declarations and Report. Each organization in its own ways works towards fulfilling this declaration via assisting the various communities and groups extending from disabled to children to various discriminated classes to asylum workers to bonded labourers to ethnic groups and even in some cases to religious groups.
Globally, the UN has entered into special charter with various major countries for a better implementation and reach of such guidelines so as just to achieve their aim and eliminate the mass deprivation and the discrimination faced by the classes in such countries. For instance, the African Charter on Human and People’s Rights[11] which proclaims individual duties and collective rights. As per the Charter it clearly provides for a broad approach to minority issues. Similarly the Europe Convention on Human Rights[12] and the European Union (EU)[13] provides for further avenues on minority issues to the public and government. The EU explicitly states that the rights of persons belonging to minorities are among the values upon which the Union is founded and is committed to promote globally. It has to put a legal framework to fight discrimination, racism and xenophobia and thus puts forwards debates with third countries to prevent the rights of such people.
With regards to specifically India, there exists a lot of debates and views which were passed by the makers and drafters of the Constitution highlighting their intention on protection of minority rights. Such makers of the Constitution had their vision to secure all citizens with the notion of justice, liberty, fraternity and equality as emphasized by the Preamble extending to groups of minorities. There are various provisions made to protect such rights but the sole article which guarantees all such rights is Article 32 which provides for enforcement of such rights[14]. Before the adoption of the UN Guidelines and International Covenant for Civil and Political Rights (ICCPR), 1966, such views, visions and intentions by makers acted as the prevailing norms to guarantee these rights. This article provides for a guaranteed remedy for such minorities in case their rights are violated making him approach the Supreme Court directly.However, over time this right has been expanded to give abroad interpretation to include people who are not directly affected but have a legitimate locus standi in relation to violation of the rights of minority groups and communities such as NGO’s. Various dignitaries in this historical context have worked and have been recognized for such upliftment of their rights in order to make the society to progress beyond its traditions and blind customs. Dignitaries such as Swamy Vivekananda who worked on the inter-religious disparities between Hindus and Islam and talked about non-superiority and non-hierarchy within a religion or its various denominations or sectors. Such views were affirmed by the Socialist Party of India with the likes of Shri Jaya Prakash Narain and Dr. Ram Manohar Lohia[15]. Furthermore, B.R. Ambedkar, is one of the major role models regarding upliftment of the untouchability status and recognizing the impact of such people and their cruel treatment by the society. His major concerns were to being about a reform in the legal system especially with respect to Hindu laws and remove the oppressive caste system prevailing in such society. He emphasized on the removal of such differences along with the ideology of purity and pollution with these groups. He also tried to bring in the various rights being denied to women especially in marriages regarding to polygamy and right to inherit property through introducing various legislations like personal laws, however over the years, as seen by many activists it has done more harm to such people rather than the benefits as intended by Ambedkar and other makers.
With regards to role models in form of individuals, there have been various academic scholars whose works have emphasized and delved deeper into the matter of protection of minority rights and the caste hierarchy. Apart from already included above dignitaries, there are various people who have contributed to the work on upliftment of minority rights such as Flavia Agnes, Sally Witcher, Nivedita Menon, Neerjya Gopal, Christopher Jafferlot etc.
Flavia Agnes is an Indian lawyer who devoted much of her life towards working on minorities especially women and has presented some of the most influential work on the themes of minority and law. She also plays a major role in advising the government on law implementation and works closely with the Ministry of Women and Child Development in Maharashtra. Her prime work on such minority rights has been towards Muslim Women who have been deprived of the rights from a long time and thus, after the declaration of the constitutionality of the Muslim Women’s Act by the Supreme Court in 2001, she has strongly and openly supported the movement. According to her, though the Muslim and Christian society were quite progressive and advanced as compared to the Hindu society earlier with respect to the lacunas in the law, the position has completely reversed towards the rights of women[16]. After the Shah Bano case, and enactment of the new statute Muslim Women (Protection of Rights on Divorce) Act, 1986, various protests within the religious community spread to invalidate such application of the statute, thus being a more important need for providing a viable and feasible solution to women along with section 125 of Criminal Procedure Code (CRPC). However, as per Agnes, the Muslim Women’s Act deprived the women’s right granted under the secular religion i.e. the CRPC, thereby “violating the constitutional mandate of equality”[17]. But despite of all this, the act stood out as a measure by the Parliament to codify the Muslim Personal Laws and to reverse the wrongs caused to the women. Moreover, as per Agnes, it is the uniformity in the rights rather than the uniformity in the laws[18] and the legal system for the society to progress amidst the presence of harmony between all the religions. It is better to have reforms and have an aim to convert such personal laws to gender neutral and just laws[19]. Bringing a uniformity in the laws would not be quite effective as it would only lead to perceiving as an attack on their laws and thus on a broader picture, their religion.
Similarly, activist Nivedita Menon has worked on the abandoning of such rights to women and the whole notion of a Uniform Civil Code playing role of “integrity of the nation” to provide benefits to some people, thereby deviating from its purpose[20]. She too, agrees on the advancement and the progressive nature of Muslim laws in the past unlike the Hindu law. However through her pieces of work, she has supported the notion of UCC to play a large role in protection of women rights. According to her, “when a marriage fails to fulfill its patriarchal promise of security in return for that labour, all that most women are left with is the capacity for unskilled labour.”[21] She emphasizes on the fact of mitigating and abolishing the patriarchal power in marriages and the damage it does. Her priority like Flavia Agnes too rests on the notion of gender justice and neutrality however, her road to such path is slightly different. Furthermore, the renowned known activist who has contributed much of her life towards such upliftment of rights is Pratksha Baxi. She has written several valuable and noteworthy pieces highlighting the discrimination faced by such women and tried to suggest reliefs within the lacunas of the law for their betterment. One of the most prominent pieces has been on the ‘carceral feminism’ via the case of the State v. Mahmood Farooqui[22]. Carceral feminism implies as the ‘indictment’ of the feminist use of law that leads to the ‘ironic effect of landing-disproportionately marginalized’, behind bars and thus adversely affecting the families of lives of the women in these communities and being vulnerable to violence at the hands of the State[23]. There has been a clear view regarding the rape law amendments to be against the notion of the carceral feminists. She focuses on the difficulties on women professors to teach rape laws inside the classrooms which adversely affected the method of teaching in the legal profession.[24]
Sally Witcher in her book “Inclusive Equality” has mentioned about some general notions of oppression and discrimination towards minority groups which has been recognized all around the world[25]. According to her, discrimination is a multi-defined word focusing on the oppression faced by groups of race, caste, gender, disability, sexual orientation etc. There is interlinkingof discrimination with misrecognition which leads to inaccurate stereotyping resulting in discrimination. She mentions that development in policies along with the inner realization is the generic relief taken by the Europeans. The British Government with the introduction with the Equality Act, 2010 has to some extent harmonized the protection of people with varied characteristics ranging from age, gender, sex, marriage etc.[26]The only way to reduce the differences is correcting the misrecognitions mentioned above and eliminating all the stereotypes to place accurate recognition of identity. Social justice must be perceived with strengthening and sustainability of the society[27]. Witcher also states that “focus on commonalities between distinct social categories is clearly important in strengthening voices in order to achieve social change.”[28]
Additionally, Arvind Narrain too worked on the notion of identities and misrecognition vis-à-vis families to address the various minority situations and their hardships being faced. He critiqued the 29th Session of Human Rights Council Resolution to include the misperceived understanding of family and to rather prevent power to get distributed. He stated how the basic groups of women, children and LGBTI people were immensely affected and their rights being infringed. Such resolution targeted the interests of the LGBTI people and the use of the language of ‘protection of family’ was only a means to an end[29]. The intent was completely overrules to circumscribe diversity of the notion of family. He specifically critiques the family protection to oversee the gender equality and observing countries to assent to this view to be highly problematic and needed correction at the earliest. He also talked about practices of enforced disappearances leading to mass disintegration of families[30]. Narrain also states that how the frequency in targeting such minority groups have increased in various countries and thus requiring an immediate attention. Fortunately, the UN came up with a revised Resolution to discuss the matters in the critique and addressing the issues to a large extent and thereby such piece becoming an important source towards reducing the oppression and the marginalization which these communities have faced on a global level.
On the other hand, Christopher Jaffrelot, another leading and globally renowned political scientist has focused its work on religion especially the caste hierarchies and the disputes between the inter-communities existing within India. According to him, there exists two kinds of representation namely on the election of individual deputies and other on the social identities of the represented[31]. Jaffrelot focused most of its work on minority vis-à-vis the political culture in India. He goes into the historical texts of the country where such representation mattered a great extent to form statutory representation. In order to introduce group based form of representation, the British in India democratized the institutions leading to creation of religious minorities and also caste groups. Their so called notion of ‘divide and rule’[32] is what Jaffrelot critiques the most and finds it to be one of the prime reasons. He contests the representations of Muslims in the current day and age with political connotations and compares it with the previous government systems further worsening the situation[33]. Though, despite of these observations and a blatant critique, his work has been acknowledged for such critiques on a global level and thus his contributions though not have been a major consideration in India, it has been taken into account on a global level with respect to international committees and conventions.
Lastly, apart from these recognized dignitaries and their work, there exist many others extending from the work of Anand Tetlumbde on caste and upliftment of it to Nirajya Gopal on the Muslim community especially after the new Citizenship Amendment Act (CAA), 2019 to Mohsin Alam Bhat on the Assam-NRC Debate and similar works on CAA and National Register of Citizens (NRC) to many others.The above mentioned institutions and dignitaries are mere illustrative who have acted as the leading pioneers towards the aim of the protection of minority rights and help in improving their conditions globally. It still remains as one of the key aspects where a lot of grey area exists and need for such recognition and correction is required to achieve the true meaning of social justice.
Article Written By-Kushal Tekriwal
(HRDI Work From Home Internship)
[1]“Why Are Minority Rights Important?” Political Youth Network, November 20, 2018, https://politicalyouthnetwork.org/why-are-minority-rights-important-2/, Accessed on June 24, 2020.
[2] Office of the High Commissioner of Human Rights, Report on Promoting and Protecting Minority Rights – A Guide for Advocates, Pg 3 (United Nations Human Rights, Geneva and New York, 2012).
[3]Ibid.
[4]Supra note 3 at Pg 4.
[5]Supra note 3 at Pg 4.
[6]Supra note 3 at Pg 6.
[7]Supra note 3 at Pg 6.
[8]Supra note 3 at Pg 44.
[9]Supra note 3.
[10]Supra note 3.
[11]Supra note 3 at Pg 90.
[12]Supra note 3 at Pg 102.
[13]Supra note 3 at Pg 133.
[14]The Constitution of India, art. 32.
[15] Justice Rajindar Sachar, “Human Rights Issues of Minorities in Contemporary India” Bharati Law Review 13 (April-June, 2014).
[16]S. Naskar, “Aim Should Be Uniformity of Rights, Not a Uniform Law: Flavia Agnes on a UCC” The Wire, October 19, 2016.
[17]Flavia Agnes, “Minority Identity and Gender Concerns” 36 Economic and Political Weekly 3973-3976 (October 20-26, 2001).
[18]Supra note 17.
[19]Supra note 17.
[20]Nivedita Menon, “It isn’t about women” The Hindu, July 15, 2016.
[21]Ibid.
[22]Pratiksha Baxi, “’Carceral Feminism’ as Judicial Bias: The Discontents around State v. Mahmood Farooqui” 3 Interdisciplinary Law (October 2016).
[23]Ibid.
[24] Pratiksha Baxi, Feminist Contributions to the Sociology of Law: A Review, 43(43) Economic And Political Weekly, 79-85 (October 2008).
[25]Sally Witcher, “Discrimination”, Inclusive Equality: A vision for Social Justice (Bristol University Press, Policy Press, 2013).
[26]Ibid.
[27]Supra note 26.
[28]Supra note 26.
[29]Arvind Narrain, “Decoding the Politics Underlying the Resolution on Protection of the Family”, JURIST – Professional Commentary, Sept. 5, 2015, https://jurist.org/professional/2010/09/arvind-narrain-resolution -on-protection-of-the-family.php.
[30]Ibid.
[31]Christopher Jaffrelot, “The Plebianization of the Indian Political Class” Religion, Caste and Politics in India, 411 -429 (Primus Books, India, 2010).
[32]Ibid.
[33]Christopher Jaffrelot, “BJP’s Rise Has Meant a Shrinking Number of Muslim Lawmakers in India”The Wire (March 26, 2019).
