Division of the People more Disastrous than Partition

Justice Dr. M. Rama Jois

The partition of our motherland carving out Pakistan out of our motherland on the basis of two nation theory and communal hatred is the greatest tragedy of the 20th century nay in the history of the World.  It is estimated that number of persons killed on the eve of partition and immediately thereafter, far exceeded the killings during the 2nd World War.  The ‘memory of horror’ of partition is a nightmare.  It is extremely painful to think of it.  But the fact remains that the division of the country was the worst crime perpetrated in human history, on a peace loving nation which had never invaded on any other territory.  It was the worst man made disaster.  It has created problems which perhaps will continue forever or at least for a few centuries.

However, after we secured political independence for the truncated motherland, we framed and adopted a Constitution describing all of us as “We the People of Bharath” meaning thereby that we are one nation bound by the feeling of fraternity as stated in the Preamble of the Constitution.  Dr. Ambedkar, the architect of our Constitution attached great importance to fraternity.  He said:

“What does fraternity mean?  Fraternity means a sense of common brotherhood of all Indians – of Indians being one people.  It is this principle which gives unity and solidarity to social life. [B.R. Ambedkar and Human Rights, P-15]

Therefore, we made equality and non-discrimination on ground of religion as basic structure of the Constitution.   We adopted a Democratic System of governance based on periodical elections.  But unfortunately, the democratic system which is considered as the best system began to be abused by selfish politicians to divide the people on the very communal lines on the basis of which the Country was divided with the object of getting elected to political positions again and again on account of power mongering attitude.  Such division of the people on communal lines at the hands of our Government as is being done is more disastrous than partition, for, by partition we lost a portion of our territory but by division of people on communal lines would be fatal to our existence as a Nation. 

In this behalf, it is important to refer to the words of wisdom in Mahabharatha [Shanthiparava 56-35].   Having regard to the facts and circumstances of those periods, Mahabharata stated that for protection of the Country there were as many as six forts namely:

• 
  
  Marudurga [protection by deserts]
  
  
• 
  
  Jaladurga [protection from water mass]
  
  
• 
  
  Bhoodurga [protection from vast extent of land]
  
  
• 
  
  Aranyadurga [protection by forests]
  
  
• 
  
  Giridurga [protection by mountains] and
  
  
• 
  
  Naradurga [protection in the form of fort of people]

     Finally, it is stated that …………………………………………………… “Sarvadurgeshu Manyante Naradurgam Sudustharam” which means that among all the six forts Naradurga [peoples fort] is formidable for the protection of the Country.   This statement is very significant.  The message

is that the greatest protection for any Country is its own people.  This is an eternal and universal truth.  If people of a Country are united by the feeling of patriotism and fraternity that constitutes the greatest protection to it.  This is one of the objectives of our Constitution as expressly stated in the Preamble to the Constitution by the following words:  “Fraternity and unity and integrity of the Nation”.  This objective is incorporated in the fundamental rights to equality and prohibition against discrimination on ground of religion in Article 14 and 15 of the Constitution.

But, it is unfortunate that despite the bitter lesson of partition brought about on communal basis, every attempt is being made by our Government to destroy this formidable fort from within by dividing the people into minority and non-minority and weaken the Nation by pursuing what is popularly called Vote Bank Politics.

This divide and rule policy which was commenced from the first general election in 1952 itself which has been continuing unabated as it was found to be electorally advantageous to those practicing it, has now reached dangerous proportions.  The importance given to such divisive policy is the sole reason for not achieving reconciliation between Hindus and Muslims even though such reconciliation is fundamental requirement as Hindus and Muslims have to live in this land for all times to come.  But unfortunately, our so called secular politicians place their political interest above National interest and even the Constitution despite their taking oath to abide by the Constitution.  For example, despite the judgment of a Constitution Bench of the Supreme Court in Shah Banu’s case holding that if Constitution has any meaning, a uniform civil code should be enacted obeying the directive in Article 44 and in particular uniform law for Marriage and Divorce should be enacted and thereby rule of monogamy shall be made applicable to Muslims, it is not being done.  Article 48 of the Constitution, which directs total ban on cow slaughter which is very dear to the hearts of Hindus who constitute 85 per cent of the population, is not implemented just to please Muslims.

     In fact under our Constitution, there is no necessity at all to classify the citizens into majority or minority for the reason that Article 14 mandates the State to give protection to all the persons and to ensure equality before law for all of them.  Article 15 prohibits the State from discriminating against any citizens on the ground of religion, race or caste etc.  Similarly, Article 16 which ensures equal opportunity in the matter of employment under the State and also prohibits discrimination on the ground of religion, race, caste or any of them.  Therefore, whenever an individual is subjected to any discrimination in the matter of employment or admission to any educational institution or in respect of any other matter, he can claim relief under Article 32 before the Supreme Court or at the hands of the High Courts under Article 226 of the Constitution.  The Courts are not going to ask whether the petitioner belongs to minority or majority but they will examine whether he has been subjected to discrimination compared with other citizens and whether he is entitled to get the relief at the hands of the Court.  There is no need to plead that he belongs to minority or non-minority.  This being the position, dividing the people into minority and majority is inconsistent with the basic structure of the Constitution.  It is high time that creating rift between the citizens on the ground that some belong to minority and some belong to non-minority should be stopped as all are entitled to equal protection under Articles 14 and 16 of the Constitution without reference to their religion.  In fact the word ‘minority’ is not used in the Constitution except in Article 30 which was intended for a limited purpose namely, only to ensure protection to linguistic and religious minorities in a State in the matter of establishing and administering educational institutions and not to create a right in them which was not available to other citizens.

This aspect has been placed beyond doubt by the judgment delivered by an eleven judges bench of the Supreme Court in TMA Pai’s case in which the Court said at para-138 of the judgment thus:

“The whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority”.

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“As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice.  Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the Country. 

Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights.  No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-à-vis other educational institutions.  Any law or rule or regulation that would put the educational institutions run by minorities at a disadvantage when compared to the institution run by the others will have to be struck down.  At the same time, there also cannot be any reverse discrimination. 

In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions.  No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another.  Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. [Para-138].

This aspect was highlighted in the judgment of Justices Variava and Ashok Bhan thus:-

“We should give to Article 30(1) a meaning which would further the basic and overriding  principles of our Constitution viz. equality and secularism.  The interpretation must not be one which would create a further divide between citizen and citizen”. [Para-425]

The above clear interpretation by an eleven judges bench of the Supreme Court is in conformity with Article 14, which confers fundamental right to equality on all citizens and Article 15(1) which prohibits any discrimination on the ground of religion or language etc., and is also consistent with the provisions of Secularism and equality which constitute the basic structure of the Constitution and further it is also consistent with the principles of justice and fraternity which are also objectives set out in the Preamble to the Constitution.  The law laid down by the eleven Judges bench is the law for the whole Nation in view of Article 141 of the Constitution.  This landmark judgment should have brought an end to vote bank politics.  But in utter disregard of the Constitution and the Supreme Court judgment, the present ruling Government who claim to be secular; which demands equal treatment to all religions without any discrimination; is enacting laws abusing the legislative power for implementation of vote bank politics in the following manner: 

Special right to affiliation to minority institutions:  National Commission for Minority Educational Institutions Act, 2004, which is applicable only to minority institutions and not to non-minority institutions.  The startling provision incorporated as Section 10-A of the Act is that the minority educational institutions have the right to seek affiliation to any University of its choice among the Universities mentioned in the Schedule to that Act. Whereas no such benefit is available to non-minority educational institutions.

Reservation for OBC’s only in non-minority institutions:   The second provision made by the Parliament is Constitution 93rd amendment Act by which clause (5) was introduced into Article 15.  In that clause for the first time a provision was made for reservation in favour of OBCs only in non-minority  Private Unaided Professional Colleges.  If reservation in favour of OBCs is permissible and is in the interest of the Nation, it should be so in all private unaided colleges.  But according to clause (5) reservation in favour of OBCs is permissible only in non-minority unaided colleges and not in minority unaided colleges. 

The two legislations namely are ex-facie unconstitutional and have been enacted in the teeth of 11 Judges bench decision in para-138 of the TMA Pai’s case, knowing full-well that the said provisions are patently and overtly violative of law declared by the Supreme Court.  Still the said provisions have been enacted in furtherance of the policy of the minority appeasement and the Constitution is subordinated to the ‘divide and rule’ policy of concerned political parties.   

Further, as equality, social justice and feeling of fraternity constitute the basic structure of the Constitution, the aforesaid two laws are violative of basic structure of the Constitution and the noble principles set out in the Preamble of the Constitution and therefore injurious to National interest.

By such policy, the ruling party has created and is continuing to create ill-will between Hindus and Muslims as the ill-will between them is their electoral capital.  Accordingly, separate priority in budget for Muslims, separate quota for Muslims in education and employment, special provisions for giving bank loans, subsidy of more than two hundred and fifty crores of rupees for Haj pilgrimate etc., are being made in furtherance of divisive politics.  Ordering counting of number of Muslims even in judiciary and Defence forces is another dangerous step that has been taken. This is nothing but a ‘split India movement’. Through such policy they are destroying the feeling of fraternity among all the citizens of the Country which is the basic strength of our Nation and causing breach in the fort of the people.   Many among Muslims feel embarrassed by such measures as such steps are destructive of fraternity and national unity.

But the tragedy is that Nationalist forces and Nationalist minded individuals on account of internecine quarrels and /or their personal agenda, ill- will towards each other and ego are pulling in different directions knowing fully well the dangerous trend which is threatening the Unity and Integrity of the Nation.

On account of the suicidal policy of dividing our Nation as explained above, a situation graver than the one created in 1975 when an attempt was made to murder Democracy by abusing the power given under the Constitution, has since arisen. Then all democratic forces joined together and successfully fought against the fake emergency and saved the Nation and the Constitution. Now unity of the People is being destroyed also by abusing the legislative and executive powers under the Constitution which is more dangerous than Partition in 1947 and the Emergency in 1975. Our Nation can be saved only by patriotic and nationalist parties and individuals coming together and putting up a fight and defeat the divisive forces.

[M. RAMA JOIS]

Former Chief Justice of Punjab

& Haryana High Court and former

Governor of Jharkhand and Bihar.