The Times of India dated August 31, 2011 carries a report on how a youth who refused to participate in the anti-corruption stir was chased by the crowed and left to drown in a river in which he had jumped to save himself from being lynched. Here is the news piece.
Assuming that it is true, ruthlessness of those carrying out anti-corruption stirs in support of a 'Gandhian' perhaps evidences that unlike the Gandhian movements, Anna's movement was unable to integrate to the moral behaviours of those following it. There was support from all section of the society; many of whom were also the source of corruption. On the otherside, Gandhiji had spent decades together connecting personally with the masses and therefore his movement was able to motivate the moral side of the people in the real sense.
While it has been acknowledged that the movement had been driven by urban middle class, there is no concurrence on the reason for why the minorities and the rural poor had not engaged in the movement.
Based on the above news article, and the support of right wing forces to Anna's movement (including of the admitted deployment of saffron cadres in the movement), one could deduce that the movement in its approach had been a right winged one, with little or no room for dissent and disagreement. Those who disagreed had to pay. Such an approach to any movement is clearly against the tenets of India's constitution, where freedom of expression allows a person the liberty to or not to participate in public discourse, of any kind.
In a presentation titled "Individual Rights in India: A perspective from the Supreme Court" (April 3-6, 2009) at the International Roundtable Conference’ University of Georgia, Mr. K.G. Balakrishnan, the Chief Justice of India , provides an elaborate view of the protection provided to individual rights by the Constitution of India and how they have come to be interpreted by the Supreme Court of India over the last sixty years. He concedes that it is not possible to present a complete understanding of individual rights in all spheres of public law.
He mainly focuses on the evolution of ‘religious freedom’, the interplay between individual rights, groups and governmental interests and the need to balance them. He dwells upon the ‘seemingly existential question’ ofwhether the guarantees provided by Articles 25-30 of the Constitution are veered towards ‘No Concern Secularism’ or ‘Equal Respect Secularism’ and the conflicting notions of secularism that were propounded and debates upon by the members of the Constituent Assembly . He also mentions how the Indianised version of secularism i.e. 'Equal Respect Secularism’ recorded a significant victory, though certain concerns of ‘No Concern Secularism’ were also accommodated. The allowing of religious instructions in private and partially aided educational institutions is the result of the compromise between the competing strands.
He also discusses in detail the nexus between the protection of minority rights and the exercise of ‘religious liberty’ which have been further complicated by debates on interference with personal laws of the religious minorities and the feasibility of Uniform Civil Code for them. He points out that ‘personal laws’ were not included in definition of law under Article 13 of the Constitution and hence cannot be scrutinized on the basis of constitutional principles.The clash between the ‘group rights of religious minorities’ and ‘the individual rights of the members of the minority groups’ is clearly reflected in the difficulty posed in reconciling the competing interests of ‘non-interference with customary practices’ as they are regarded as an essential condition for protecting the group rights of religious minorities and the duty of the State to bring an end to those customs that have the effect of continuing gender-discriminatory practices.
Among other issues, the presentation also deals with the ideal of ‘state neutrality’ and how its practice by the Indian state has been repeatedly questioned in the recent past. The CJI suggests that the codification of a Uniform Civil Code presents a ‘litmus test for legislative interference and codification as a strategy of social reform.’ He takes a stand that the religious freedom impedes the pursuit of constitutional objectives of strengthening democracy, minority rights and rule of law. To quote him, “It has also been argued that these western notions of secularism are unsuitable for the Indian cultural setting, but unfortunately those who have argued for an indigenous notion of privileging religious autonomy have also tended to support religious extremism. In this respect the onus has been on the Supreme Court to show the way.”
The shaping up of secularism and minority rights in Constitutional Assembly Debates has been also dwelt upon by Rochana Bajpai (Lecturer, School of Oriental and African Studies, University of London) in an article published in May 27, 2000 issue of Economic and Political Weekly.
In this article – ‘Reading Swaraj into Article 15: A New Deal for All Minorities’, Tarunabh Khaitan (Lecturer, Christ Church College, University of Oxford) highlights the counter-majoritarian role taken up by the Delhi High Court in the Naz Foundation case which decriminalizes homosexuality. Tarunabh suggests that the judgment goes beyond merely decriminalizing homosexuality and gives an innovative and progressive interpretation enabling Article 15 to come on its own from the shadow of Article 14. These innovations are :
1) Reading in of unspecified analogous grounds under Article 15;
2) Strict scrutiny of laws infringing Article 15;
3) Protection against discrimination not only from state ( vertical discrimination) but also by private bodies( horizontal protection)
4) Substantive protection to all vulnerable groups that includes protection from not only direct but also indirect discrimination.
He argues that the judgment is set to lead to an era of greater recognition of personal autonomy and freedom to all minorities whose individual members are vulnerable to discrimination owing to their membership in that particular group. The judgment is all the more impressive and progressive given the fact that such reinterpretation of Article 15 according protection to all minorities was ‘not strictly necessary’ to reach the result in this particular case.
He further argues argues that numerical strength, though one of the major determinants of vulnerability is not the sole determining factor to be recognized as a minority. A community may be vulnerable politically, socially or economically or on account of any other limiting factor. Any such factor can be debilitating on its own to trigger protection under Article 15 and need not be accompanied with any other vulnerability. The case also makes it clear that the ‘popular morality’ or the ‘public disapproval’ is no ground to justify any restriction on Fundamental Rights. Restrictions of the nature based on morality that may be permitted in the extreme cases of compelling state interest have to be prescribed by ‘constitutional morality’ and not public morality.
Interestingly, he dismisses any notion of permanent majority or minority. To quote him , "The Naz court has invoked the swaraj-driven spirit of the Constitution and crafted a remarkably progressive jurisprudence on antidiscrimination law. Article 15 is set to become one of the key constitutional guarantors of personal autonomy for vulnerable minorities....The Court has recognized that pluralist societies rarely have permanent majorities or minorities. The Constitution stands for the principle of minority protection, whoever they might happen to be."
