Minority representation

IQBAL A. ANSARI

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IN his recent study, Public Participation and Minorities, Yash Ghai notes that: ‘In the last two decades there has been a marked shift from the limited protection against discrimination that characterized the original efforts of the United Nations (UN) regarding minorities, towards a more active engagement of the state in facilitating the development of minority cultures and promoting a political role for minorities.’

Further, noting the insufficiency of the general principle of non-discrimination as guaranteed in most international instruments concerned with rights of minorities, he observes that, ‘In order to ensure effective participation, it is necessary that special procedures, institutions and arrangements be established through which members of minorities are able to make decisions, exercise legislative and administrative powers, and develop their culture.’1

In this regard the recommendations of an international expert seminar organized by the European Centre for Minority Issues at Flensburg, Germany from 30 April to 2 May 1999 included the following mechanisms of effective participation:2 proportional representation, guaranteed minority seats, reduced voting thresholds, minority legislative veto, administrative, advisory and consultative bodies for minorities.

In another expert study, The Participation of Minorities in Decision Making for the Council of Europe in November 2000, the authors note that ‘the majority of states provide for special measures designed with the specific purpose to facilitate the reflection of minority interests in the political process.’3

The study reports how the electoral system in various European countries facilitates minority representation by lowered thresholds for entering parliament; reserved seats; favourable delimitation of the constituencies, in particular, in the case of majority voting; and, privileged funding for minority parties. It makes the concluding observations that such special measures may be treated as a common standard for ensuring effective political participation of minorities.

It is significant that such collective rights of minorities, not limited to the separate domain of identity but the common domain of polity, get full endorsement by neo-liberals, a manifestation of which is provided by the declaration on The Rights of Minorities 2000.4 For effective participation of minorities in the politics of the country, it recommends adoption of an electoral system of Proportional Representation (PR) with waiver of the requirement of minimum electoral support (‘threshold clause’) for minorities. Where PR is not in operation the declaration recommends: (i) avoidance of gerrymandering in constituency formation, and (ii) adequate number of special, additional designated constituencies reserved for minority electorate. Further, that attention be paid to the recruitment of minorities into positions in central administration (particularly army, police, judiciary and intelligence services).

 

 

The concern for provision of mechanisms for effective participation of minorities derives from the experience that even the limited rights of minorities to enjoy their own culture, to profess and practice their own religion and to use their own language guaranteed in Article 27 of the International Covenant On Civil and Political Rights (ICCPR)5 cannot be realized without their effective participation in the political process as enunciated in Article 2.2, 2.3 and 2.4 of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religions and Linguistic Minorities6 regarding which the official commentary of Professor Asbjorn Eide, chairperson of the UN Working Group on Minorities, 2001 makes the following observations:

‘Effective participation requires representation in legislative, administrative and advisory bodies and more generally in public life. Persons belonging to minorities, like all others, are entitled to assemble and to form their associations, and thereby to aggregate their interests and values to make the greatest possible impact on national and regional decision-making. They are entitled not only to set up and make use of ethnic, cultural and religious associations and societies, but also to establish political parties, should they so wish.’7

 

 

The European concern for providing effective participation to their national minorities besides guaranteed educational and cultural rights, derives from their conscious realization that it is the neglect and inadequate attention to the issues related to minorities that had caused periodic havoc in the 20th century. The Council of Europe study of November 2000, therefore, ends with the observation that ‘with a view to prevention or solution of conflicts pertaining to the situation of minorities it is clear that a fair participation of minorities in the political process is a key issue and should be accorded great attention.’8

The Preambular affirmation of the UN Declaration of 1992 that ‘promotion and protection of the rights of minorities contribute to the political and social stability of the states in which they live’9 thus gets reinforced by all subsequent developments under the UN system and in the regional, especially European, forums.

 

 

In sharp contrast to this increasing worldwide trend towards enabling minorities to effectively participate in the political process, the two recent Indian documents on reform of the electoral system, i.e. the Law Commission’s Report (May 1999) and the two consultation papers on the subject issued by the National Commission to Review the Working of the Constitution, do not consider the issue of persistent under-representation of Muslims from the first to the present Lok Sabha and in most state assemblies as worthy of attention. On the contrary, both are inspired by a kind of vision of national polity which delegitimizes all electoral devices which seek to provide due representation to smaller political parties or weaker social groups, regional interests or religious minorities. They seem to subscribe to a sort of political Darwinism a la social Darwinism of laissez faire economists.

The authors of both documents are solely concerned with providing the country with stable single party governments so that the polity, in their view, gets rid of the divisiveness caused by casteism, communalism, lingualism and regionalism making the political rhetoric adopt ‘universal’ as opposed to ‘sectoral’ tones of the present day. By this logic the concern for adequate representation of women can easily be dismissed as ‘sexism’, as they deny the affirmative principle that social diversity of the country, including that of gender and religious communities, should be fairly reflected in the composition of all institutions.

The ruling elites who consider themselves as representatives of Indian ‘national interest’ are obviously scared by the divisiveness lately caused by communal and caste factors in Indian politics. They have not gone into how, apart from other socio-economic factors, the present state of the polity owes much to the competitive political mobilization over ethno-religious symbols by the Congress and the BJP since the 1980s.

 

 

There cannot be any two opinions that the democratic election process ought to be freed from appeal to the candidates’ and party’s caste or religious origin or affiliation. But while doing so it has to be kept in view that the electoral process cannot deny the right of the smaller groups – political, social or communitarian – to adequate representation. The two are altogether different issues.

In a country with India’s diversity, given a historical legacy of exploitative political and socioeconomic power structures and cultural patterns that have systemically excluded sections of people from basic rights, and the existence of permanent religious minorities with a legacy of communal conflict, the vision of a strong centralized stable polity governed by one of the two large parties cannot and should not materialize. Reform of the electoral system – first-past-the-post (FPTP) or some variant of proportional representation (PR) or a combination of practical devices grafted onto either – has to be attempted keeping in view that coalition governments are not necessarily disruptive of national unity.

It needs to be recalled how the shadow of Partition, for which the system of communal electorates has been wrongly held responsible as a major contributory factor, made leaders of the Congress like Sardar Patel, Radhakrishnan and Nehru apprehensive about divisiveness likely to be caused by any alternative to the majoritarian FPTP system, as reflected in the four phases of the debates on minority rights in the Constituent Assembly.

 

 

Though the advisory committee’s recommendations for population based quota of reserved seats in central and state legislatures for minorities under joint electorate and their representation in the Cabinet under a Schedule was adopted by the Constituent Assembly on 27-28 August 1947,10 it was made abundantly clear in the words of no less a person than S. Radhakrishnan that, ‘It is not our desire in this house to have these minorities perpetuated. We must put an end to the disruptive elements in the state.’ He further stated that it was our ideal to develop a homogenous democratic secular state.11

Mahavir Tyagi more crudely threatened minorities to be loyal to the majority and wished their extinction, i.e. dissolution into the majority by ‘justice’.12 Sardar Patel let it be known that left to itself the Congress would not have agreed to any reservation of seats. It was in deference to the nationalist Muslims that the Mohammad Ali formula of reserved seats under joint electorate was accepted as a halfway house between pure communalism and pure nationalism.13

In most earlier statements, resolutions and documents of the Indian National Congress, including the Nehru Report of 1928, it used to be stated that whereas the Congress had always stood for pure undiluted nationalism it had accepted reservation of seats under joint electorate as a temporary compromise with communalism.14 It needs to be borne in mind that despite all the sympathies expressed for the Harijans the Congress had not extended reservation of seats for the SC and ST on its own. It was forced to do so.

 

 

It is this view of nationhood, though secular democratic but majoritarian centralized unitarian, which explains why Nehru expressed exultation over it calling it ‘a historic turn in our destiny’ when in May 1949, the Draft Articles 292 and 294 providing for reservation of seats for minorities were scrapped.15 He expressed the opinion, contrary to the views expressed in his Note on Minorities of 1930,16 that any demand of safeguards by minorities betrayed a lack of trust in the majority. He was however graceful enough to call it ‘an act of faith above all for the majority community because they will have to show after this that they can behave to others in a generous, fair and just way. Let us live up to that faith.’17

It is this attitude based on notions of ‘pure undiluted nationalism’ and the vision of a homogeneous secular democratic India combined with benign paternalism that made the founding fathers of the Republic dismiss without any serious critical scrutiny all proposals regarding electoral system during the debates in the assembly in August 194718 and subsequently in January19 and May 194920 for adoption of proportional representation, for multimember constituencies and for cumulative voting by Z.H. Lari, D.H. Chandrasekharaiya, K.S. Karimuddin, K.T. Shah and Mahboob Ali Baig.

 

 

Apart from the fear of perpetuation of divisiveness and instability under PR, most members put forward the argument that it was too cubersome and sophisticated a system for illiterate masses to operate. No one took the trouble of paying attention to the Nehru Report of 1928 that considered system of proportional representation to be ‘the only rational and just way of meeting the fears and claims of various communities.’ ‘We have no doubt,’ the report said, ‘that proportional representation will in future be the solution of our problem.’21 It did not consider the difficulties in its working as insurmountable.

It is rather sad to note that none of the committees constituted officially or by NGOs for review of the electoral system have ever subjected to review the under-representation of religious minorities, especially Muslims, in the central and state legislatures. His ‘act of faith’ speech must have haunted Nehru when he saw only 22 Muslim members elected to the first Lok Sabha comprising 499 members, which was less than 50% of what their share in population would require, though on the eve of elections he had reminded state Congress presidents and chief ministers of the assurance given to minorities in the Constituent Assembly.22

 

 

The following figures indicate how except for the two Lok Sabhas of 1980 and 1984, when Muslim representation peaked to around 9%, their representation has ranged from 4.4 to 6.2 whereas the average of their share in population was around 11% during the period.

It would appear that this pattern of Muslim under-representation has been caused by a number of factors including inequitous operation of the FPTP system, constituency formation, territorial dispersal of Muslim population, caste consideration of political parties in nomination of candidates and non-transference of social base of the political party in the event of its nominating a Muslim candidate, and near exclusion of Muslims from the BJP. Given the constants of the functioning of the system, Muslims can never hope to get their due representation.

 

 

It must, however, be conceded that the wider issue of empowerment of minorities within the broader framework of people’s empowerment cannot be achieved merely by having numerically adequate representation of each group. It will require much more. But the negative feature of the persistent pattern of under representation of a large religious community has to be removed.

The votaries of ‘undiluted pure nationalism’ of a majoritarian Hindu or secular variety must bear in mind that whereas caste segmentation and stratification of the society is an undesirable feature, which the electoral process should not help accentuate and perpetuate, the existence of diverse linguistic, cultural and religious communities is not an evil to be temporarily tolerated, but is a permanent and essential part of the social fabric, which even totalitarian states could not homogenize. Unless this mindset changes, which treats distinct minority identities, especially religious identity (irrespective of indigenous or non-indigenous origin of the religion) as disruptive of national unity, even potentially secessionist, no special measures for preservation and development of those identities could be expected to be taken least of all in the electoral system.

This majoritarian mindset ironically suffers from a sense of siege, which is generally a characteristic of the minority.

 

 

One can understand historical and contemporary factors that have contributed to this sense of siege in the majority. But to be able to remove those negative factors, adversely affecting India’s (and Pakistan’s) normal development, the country requires to take a quantum jump into what the European Union has been attempting during the last three decades. One vital component of which is a whole-hearted acceptance of pluralism and multiculturalism with all its implications, treating cultural diversity as a source of enrichment. The appointment of a European High Commissioner for Minorities is indicative of their concern for minority rights. The other path is one against which Nehru had himself warned – that of riding roughshod over minorities, and see the entire course of the first four decades of 20th century Europe repeated in the subcontinent.

Nearer home there is a lesson to be drawn from secession of Bangladesh from Pakistan, commonality of Islamic religion notwithstanding. It was a failure of the political system of pre-1971 Pakistan to give due representation and share in power to Bengali speaking East Pakistanis that caused the break up of the country.

Everyone knows that there is not the slightest chance of the rise of a separatist ethno religious nationalism among Indian Muslims. That the only Muslim majority state of J&K has shown signs of secessionism owes largely to the fact of Muslims there having been denied the right to freely elect their representatives and form their governments.

Though the consultation papers on the electoral system issued by the Constitution Review Commission ignore the issue of minority representation raised by us in our memorandum submitted on behalf of the Minorities Council, during my informal and formal interaction (22 July 2001) with the Commission, the Chairman, Justice M.N. Venkatachalaiah did concede that the issue was genuine and needed to be addressed.

 

 

While exploring the electoral devices that can ensure due representation of dispersed minorities like Muslims without causing any further intensification of communal divide, the following are some of the measures that could be scrutinized:

a) Making all political parties nominate a fair share of minority candidates under the People’s Representation Act.

b) In case the list system is adopted, the party list should assign fairly high ranking to proportionate number of minority candidates.

c) Threshold of minimum percentage of votes, say 5%, should not apply to minority organizations.

d) A fixed number of seats, say 75 to 100, may be earmarked for allocation to identified communities like religious minorities and other regional and social groups who are found to be under-represented after an election. Out of the total uncontested seats, 50% of the lag may be filled by allocating the seats to the best losers in the elections from the concerned group.23

e) Redrawing constituencies with a view to enabling under-represented groups like the Muslims get a fair chance of election, i.e. effecting a reverse gerrymandering.24

f) Grouping certain constituencies for returning three or four members. The political parties contesting these constituencies will present a slate of three or four candidates, one of whom must be from an under-represented minority. Electorate will vote for the slate rather than individual candidates.25

g) PR with single transferable vote (STV) and multi-member constituency without minimum threshold requirement.

 

 

The integrationist approach requiring a candidate to get 50% +1 vote for winning with the provision of runoff election which is otherwise commendable, can be had along side incorporating some of the devices noted above like the best loser or GRC and requiring all political parties to nominate a fair percentage of minority candidates. It would appear that the right electoral model for India will be one which takes care of both ‘universal’/integrationist and ‘sectoral’/particularist concerns.

 

Muslim Members in Lok Sabha

Year

Muslim Members

Total

% of Muslim Members

1952

22

499

4.4

1957

23

499

4.6

1962

23

496

4.7

1967

29

520

5.5

1971

29

520

5.5

1977

34

544

6.2

1980

49

531

9.2

1984

45

517

8.7

1989

29

531

5.4

1991

27

533

5.6

1996

27

545

4.9

1998

29

545

5.3

1999

31

545

5.6

 

Footnotes:

1. Yash Ghai, Public Participation and Minorities, Minority Rights Group International, London, 2001, pp. 4-5.

2. Towards Effective Participation of Minorities. E/CN.4/Sub.2/AC.5/1999/WP.4.

3. J.A. Frowein and Roland Bank, The Participation of Minorities in Decision Making. E/CN.4/Sub.2/AC.5/2001/CRP.6.

4. The Rights of Minorities, Friedrich-Naumann-Stiftung, Potsdam, 2000.

5. Article 27 of the International Covenant on Civil And Political Rights, UN 1996 says: ‘In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.’

6. Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (adopted by the UN General Assembly. Resolution 47/135 of 18 December 1992): Article 2(2). Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life. (3) Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation.( 4) Persons belonging to minorities have the right to establish and maintain their own associations.

7. Asbjorn Eide, Commentary to the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (Adopted by the UN General Assembly; Resolution 47/135 of 18 December 1992), E/CN.4/Sub/2/AC.5/2001/2.

8. Op cit. N.3.

9. Para five of the Preamble to the Declaration of Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UN, 1992.

10. B. Shiva Rao, The Framing of India’s Constitution: Select Documents, Vol. II, pp. 426-29.

11. Constituent Assembly Debates (CAD), Vol. V, p. 283.

12. CAD, Vol. V, pp. 218-19.

13. CAD, Vol. V, p. 271.

14. The Congress Scheme for Communal Settlement presented to the Round Table Conference, 1931 was prefaced by stating: ‘However much it may have failed in the realization, the Congress has, from its very inception, set up pure nationalism as its idea.’ Further, the scheme pledging to safeguard political and economic interests of minorities was characterized by the authors in the concluding paragraph as ‘a compromise between the proposals based on undiluted communalism and undiluted nationalism.’ From Speeches and Documents on the Indian Constitution, Gwyer and Appadorai, OUP, London, 1957.

15. CAD, Vol. VIII, p. 332.

16. Jawaharlal Nehru, ‘Note on Minority’, Young India, 15 May 1930.

17. CAD, Vol. VIII, p. 332.

18. While most Muslim members were concerned that for the minority candidates to be considered representatives of the community they must secure 30% votes of the community for election, D.H. Chandrasekharaiya wanted all elections to be conducted and PR with STV or SNTV, which ensures due representation to all communal, political or territorial minorities and majorities. While Sardar Patel snubbed the Muslim members for reviving separatism, PR was also dismissed as divisive. CAD, Vol. V, pp. 198-285.

19. Z.H. Lari, Hussain Imam and D.H. Chandrasekharaiya all made forceful and well argued pleas for adoption of variants of PR. CAD, Vol. VII, 4 November 1948 – 8 January 1949. During the discussion on the composition of Parliament on 4 January 1949, Kazi Syed Karimuddin opposed reservations under joint electorate and advocated PR by cumulative voting. K.T. Shah supported PR by STV for political reasons, with states as multi-member constituencies. Mahboob Ali Baig and Sardar Hukum Singh favoured PR. CAD, Vol. VII, pp. 233-63.

20. CAD, Vol. VIII, pp. 269-342.

Z.H. Lari quoted, besides examples of other countries where PR had been successfully operated, the resolution of the Socialist Party of 15 October 1947 favouring multi-member constituency and system of cumulative voting for minority representation. The Communist Party’s People’s Age also favoured PR.

Sardar Hukum Singh favoured PR but felt it was difficult to operate; so did Shibban Lal Saksena. H Mohain favoured PR for political reasons.

21. The Nehru Report, reprint, Miduko and Panjtan, New Delhi, 1975, p. 36.

22. Donald E. Smith, India As A Secular State, Princeton University Press, 1967.

23. The Constitution of Mauritius provides for allocation of certain number of seats to the highest polling unsuccessful candidates belonging to under-represented ethnic groups in order to balance the representation of ethnic communities.

24. Such a proposal constituted part of the Congress scheme for a communal settlement for consideration by the Indian Round Table Conference, 193. Note B to clause 3(a) of the Scheme says: ‘Wherever possible the electoral as to enable every community, if it so desires, to secure proportionate share in the Legislature.’ Readings on Minorities Perspectives and Documents edited by Iqbal A. Ansari, I.O.S. New Delhi, 1996.

25. Such an electoral device known as Group Representative Constituency (GRC) has been in practice in Singapore, which secures minority representation along with their integration.

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