Though a concern with human rights in universal terms was expressed even in the short-term League of Nations, it was only after the creation of the present Untied Nations that a charter of Universal Human Rights was first promulgated in 1948 and subscribed to by the vast majority of old and new states. The charter viewed human rights of individual human beings, and didn't refer to group or minority rights. However, deliberations within the various organs of that august body increasingly came to be concerned with the issues raised by the presence of large ethnic, social, linguistic and religious minorities within its constituent nations. Thus we find that the 1966 UN Covenant on Civil and Political Rights contains an explicit, though cautious, mention of minority rights. Its Article 27 reads: "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."/1/ (Emphasis added.)
Twenty years later, the United Nations, "recognizing the need to ensure even more effective implementation of international human rights instruments relating to the rights of persons belonging to (national or) ethnic, religious or linguistic minorities," prepared a new declaration, which has yet to secure agreement on all its articles. Its Article 1 reads: "(Persons belonging to) (national or) ethnic, linguistic and religious minorities have the right to respect for, and the promotion of, their ethnic, cultural, linguistic and religious identity without any discrimination." In their increasing concern with the fate of the collective identified as "minorities," the nations of the world may be shifting away from their original, more universal concern with the fate of the individual.
Such a shift may well be a proper response to our contemporary world, which is afire with a number of conflicts that are indeed blatant persecutions of religious/ethnic minorities by majority communities. This, however, should not stop us from pressing for a renewed declaration of the original spirit. In his perceptive inaugural lecture before the Minority Rights Group in London in 1972, Conor Cruise O'Brien examined the question, "What Rights Should Minorities Have?," and concluded that "on the whole the universalistic approach, based on rights inherent in each individual being, remains the most hopeful one." "We ought not, after all," he cautioned, "to idealize minorities or to forget that today's underdog may be tomorrow's power-crazed bully. Or that certain custodians of minority cultures, and certain vehement exponent of minority political rights, may already be playing that role in their own little commuity."/2/
In May 1986 the Indian Parliament passed a bill entitled "Muslim Women (Protection of Rights on Divorce) Bill," and effectively took away from Muslim women in India what they had gained in security from the Indian Supreme Court's decision a year earlier in what has come to be known as the "Shah Bano Case." The story behind the two events is depressingly simple and familiar./3/
Shah Bano, daughter of a head constable, was married at the age of 16 to her cousin, Muhammad Ahmad Khan. By the time the couple settled in Indore where Khan established his legal practice, Shah Bano had borne him three children. After 43 years of conjugal life and two more children, Khan threw Shah Bano out of his house and took a second wife. For two years he paid her Rs. 200 per month as maintenance, then stopped, though his income at that time was reputed to be in excess of Rs. 5,000 per month. In 1978, Shah Bano sought relief in a local court under Section 125 (Prevention of Vagrancy and Destitution) of the Criminal Procedures Code and asked for the maximum monthly allowance of Rs. 500. The case was still pending, when Khan divorced Shah Bano, in the unilateral fashion available to him under Muslim Personal Law, depositing with the court Rs. 3,000 that he owed her as her mehr. He then claimed that he was no longer obliged to pay her anything. The magistrate, however, ruled that Khan should pay Shah Bano Rs. 25 per month! On appeal by Shah Bano, that amount was raised by the Madhya Pradesh High Court to Rs. 179 per month. Khan then appealed to the Supreme Court. He claimed that as a Muslim he was governed solely by his religious law, the shari'ah, under which he was required to pay Shah Bano her maintenance during the period designated as iddah (3 months), and that he had already done. It was in consideration of this appeal that the Supreme Court of India gave its momentous judgement, ruling that, regardless of any consideration of the religion of the parties involved, Section 125 of the CrPC required a former husband to provide for his divorced wife if she had no means of supporting herself.
A storm broke loose when the judgement was announced. Except for a small number of committed individuals and organisations, all major Muslim parties, organisations and "leaders" came together in intense fury to protest against the ruling, which they viewed as a violation of their sacrosanct shari'ah. There were strikes and demonstrations in the streets of all the major cities, often turning violent. There were protest meetings everywhere, and an uproar in the Parliament where several Muslim MPs demanded that the Parliament should amend the law in order to render null and void the decision of the Supreme Court. Rajiv Gandhi, the then Prime Minister, at first stood by the Supreme Court ruling, and Arif Muhammad Khan, an important Muslim member of his cabinet, powerfully defended it in the Lok Sabha. But as the protest became more vociferous and violent, Mr. Gandhi did an about-face, and allowed another Muslim minister, Zia-ur-Rahman Ansari, to attack the judgement and take on the leading role in appeasing the Muslim. The latter task took on great urgency as the Congress Party saw its power eroding before the approaching by-elections in 1985. Eventually, in May 1986, the government introduced and got passed the Muslim Women (Protection of Rights on Divorce) Bill, which effectively closed to Muslim women the option of obtaining relief under Section 125 of CrPC. Whereas the Supreme Court had found a way to help a hapless individual in straitened circumstances, the Indian Parliament proceeded first to enclose her within a monolithic group identity, then raised that group identity so as to make it the sole determinant of the issue in her case. The Indian law-makers did so in the name of protecting the group rights of a religious minority, the Muslims.
In 1988, Salman Rushdie published his third major novel, The Satanic Verses, in English. Its first Indian notice appeared in the 15 September issue of India Today. The review was mostly enthusiastic, with emphasis placed on the book's "irreverent look at Islamic folklore and fact." Referring to the "sentinels of Islam," the review concluded: "The Satanic Verses is bound to trigger an avalanche of protests from the ramparts." Rushdie was hardly unknown in India or to Syed Shahabuddin, Janata Party MP, editor of Muslim India, Working (sic) President of All India Muslim Majlis-e-Mushawarat, and the most stridently voluble Muslim on the national scene. He also happened to be somewhat in the doghouse at the time, due to a split in the ad hoc committee formed earlier to reclaim the Babri Mosque of Ayodhya from illegal Hindu occupation. On 19 September the Majlis-e-Mushawarat passed a resolution demanding immediate proscription of Rushdie's novel. The resolution described the book as "a self-confessed and deliberate blasphemy against the Holy Prophet and [a] vicious calumny against Islam and therefore deeply offensive to the religious sensibilities of the Muslim Community (sic). It is also likely to create misunderstanding about Islam among the non-Muslims (sic) and thus widen the communal gap." It concluded: "Rushdies will come and go but the Government shall harvest the crop of alienation and loss of confidence, if for any reason, it fails to use its power in accordance with law to proscribe the offensive book." On 5 October the government of India did just that; the Home Ministry directive said that a section of the novel contained material that would "offend the religious sentiments of some sections of the people." The decision also described itself as being preemptive in nature; the state felt that by ordering the ban it would enhance public peace.
Public opinion in India, regardless of religious affiliation, was divided on the issue. Many defended the ban, citing the already existing communal tension, the violent demonstrations and the death of eleven persons in a police firing in Bombay, and the riots and killings that had earlier taken place in Bangalore when the daily Deccan Herald had published a short story entitled "Muhammad, the Idiot." (The story was about a half-witted boy named Muhammad and had nothing to do with the Prophet; it had in fact caused no trouble when it first appeared in the original Kannada.) But most of the national press condemned the ban, many accusing Rajiv Gandhi of playing politics just before some state elections. In effect, the ban gave recognition to the most vocal elements within a minority group as its sole representatives. Much worse, it allowed those elements to determine the bounds of some of the freedoms the Indian constitution makes available to all the citizens of India, regardless of their affiliation to any subgroup.
It is interesting that around the same time the state High Court in Calcutta flatly negated a non-Muslim individual's attempt to have the Qur'an proscribed. According to this individual, the Qur'an allegedly contained statements that were hurtful to other religious communities and could thus be a source of public disharmony. Strictly speaking and taking some of the more polemical verses of the Qur'an completely out of the context, the charge was not incorrect. For example, the Qur'an accuses the Christians and the Jews of blasphemy, puts the curse of God upon them, and urges the Muslims not to make friends among them, but rather to strive against them. Some of the statements against "idolaters" and "polytheists" are still more strident. Such passages are traditionally explained away, by non-Muslim as well as Muslim exegetes, by referring to their specific historical context. But the Indian state, speaking through the judiciary, did not feel a need to offer any contextualisation before rejecting the petition and grating the Qur'an its full protection. Again, it did so not by extending to the Qur'an the "freedom of expression" granted to individuals but by claiming to protect the rights of a religious minority to define itself and manage its own affairs.
Most recently, a new crisis erupted in New Delhi in April 1992. It was centered at the Jamia Millia Islamia University, more commonly known as the Jamia. Professor Mushirul Hasan, the Pro Vice Chancellor, gave an interview to the popular Calcutta weekly Sunday (12-18 April 1992), in which he criticised the ban on The Satanic Verses and suggested that it should be lifted. This statement brought upon him and his institution the wrath of the Jamia Students Union and any number of local Muslim would-be leaders. He and another professor were assaulted on the street, and for several weeks Professor Hasan and his family had to live in fear for their lives. The students demanded that he should either resign or be fired from his job. At first the university was closed by the Vice Chancellor, then he ordered it opened. Eventually it began to function more or less normally, while a committee of eminent Muslims was asked by the government of India to investigate and report. The threat of further disturbances still hangs in the air at the time of this writing./4/
Two things should be noted. One, Professor Hasan did not express any approval of the novel -- in fact he condemned it in that same interview, saying: "Mr. Rushdie has not just offended the men of faith but has hurt the sensibilities of most Muslims, including the liberal intelligentsia in India and elsewhere." He felt, however, that the ban was not in accord with certain constitutionally guaranteed freedoms. Two, any number of non-Muslims had earlier publicly criticised the ban, and still continue to do so. No demonstrations or demands have ever been made against them. In other words, Professor Hasan was/is being persecuted by his fellow Muslims not for some perceived "crime" but for a perceived "sin." He is under attack for asserting his rights as an individual, not only his right to free expression but also his right to have a religious conscience free from any kind of coercion. The Muslim leaders of the Jamia Student Union and their cohorts, on the other hand, claim that a person with Professor Hasan's ideas has no place at a "Muslim" institution and that their demand to have him removed is fair and proper under the rights guaranteed to the Muslims of India as a religious minority. In other words, they claim an exclusive right to define and manage "their own affairs."
To my mind an overwhelming question immediately poses itself: should we accept injustice to individuals in order to protect the prerogatives of a group? In other words, does the state's recognition of the group rights of a religious or social minority also imply full and absolute acceptance of the authority of that group to control the life and thought of all its members, even to the extent of denying them the rights they otherwise would enjoy as individual citizens?/5/
We need not think that the problem is restricted to the Muslims alone; such coercion can easily be found within other religious groups. One reason for our difficulty in conceptualising these situations is that the word "minority" is almost always assumed by us to imply a lack of dominance and power, a position of resistance rather than of contestation. More significantly, within the context of religious and ethnic minorities we neglect to note that some cultural practices of a non-dominant minority might allow, even encourage, systemic violations of basic human rights, and that the granting of group rights invariably tends to place some members of that group in a representative/authoritative position over other individuals of that group. Once aware of such possibilities it becomes easier to see where coercion may in fact have taken place within our own particular religious or ethnic group.
The events cited above should indicate that the fears expressed by Conor Cruise O'Brien in 1972 are relevant in 1992. No doubt, between the individual and the state there are always some intervening collectives, natural or voluntary. Likewise, there can be and usually are some collectives within a nation state that are "minorities" of one kind or another and have valid concerns about their security and future prospects. There is no gainsaying the fact that their needs must be met and their fears should be removed, perhaps even at the cost of validating their communal identities to a degree. But having done so we should still judge the effects of our actions in terms of the discrete individual within the collective. The best way to conceive of rights in a democratic polity is to see them as inherent in each human being, regardless of any grouping -- racial, linguistic, or religious -- to which the individual may happen to belong.
N O T E S
Originally publisheed in South Asia Bulletin, XII:2 (Fall 1992).
This is a revised and expanded version of a talk given at a conference
organised by the India Development Service and the India Progressive Study
Group in May 1992 in Chicago. I wish to dedicate this essay to the memory
of the Belgian Imam Abdullah Al-Ahdal and his aide Salem El-Behir who were
assassinated for opposing the fatwa against Salman Rushdie.
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