Pakistan or the Cemetery!: Muslim Minority Rights in Contemporary India

Boston College Third World Law Journal Volume 16 | Issue 1 Article 4 1-1-1996 Pakistan or the Cemetery!: Muslim Minority Rights in Contemporary India Anthony Chase Follow this and additional works at: http://lawdigitalcommons.bc.edu/twlj Part of the Civil Rights and Discrimination Commons, and the Foreign Law Commons Recommended Citation Anthony Chase, Pakistan or the Cemetery!: Muslim Minority Rights in Contemporary India, 16 B.C. Third World L.J. 35 (1996), http://lawdigitalcommons.bc.edu/twlj/vol16/iss1/4 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Third World Law Journal by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact . "PAKISTAN OR THE CEMETERY!": MUSLIM MINORITY RIGHTS IN CONTEMPORARYIND~ ANTHONY CHASE* If religion. . . continues to interJere with everything, then it will not be a mere question oj divorcing it Jrom politics, but oj divorcing it Jrom life itself. Jawaharlal Nehru The rule oj the majority is basically a communal majority and not a political majority. It is Jor the majority to realize its duty not to discriminate against minorities. Whether the minorities will continue or will vanish must depend upon this habit oj the majority. The moment the majority loses the habit. .. the minorities can have no ground to exist. Dr. B.R. Ambedkar, "father of the Indian Constitution" Hindu sentiments in this country cannot be subjugated Jor long. This has been proved today. Ashok Singhal, participant in the destruction of Babri Masjid mosque To have loved one horizon is insularity; it blindJolds vision, it narrows experience. Derek Walcott I. INTRODUCTION: THE SITUATION OF MUSLIMS IN INDIA Violence between India's Hindus and Muslims-communal violence in the Indian phrase I-has reached levels not seen since the midnight hour of the partition of India and Pakistan. A minority even * NSEP Fellow, American University in Cairo. M.A., Islamic Culture, Columbia University; M.A., International Mfairs with a specialization in Islamic Law and Public International Law, Fletcher School of Law & Diplomacy, Tufts University. 1 See Cynthia Keppley Mahmood, Rethinking Indian Communalism, 33 Asian Survey 735 (1993). Mahmood points out the usefulness of this term, which subsumes a wide variety of adjectives (ethnic, religious, etc.), by simply thinking in terms of communities whose identities may be defined in various ways. 35 36 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 16:35 before partition, Muslims at present make up just 1l.4% of the Indian population. 2 With the exception of Kashmir,3 the Muslim population is scattered throughout India; unless protected by the state, it is in no position to guard itself from the widespread communal riots which overwhelmingly victimize their community. According to figures available through 1982, roughly three times as many Muslims as Hindus have been killed in communal violence. 4 Reliable figures as to the total numbers killed each year are hard to come by, as estimates vary rather drastically. Nonetheless, two things are certain: communal violence has been a part of the Indian fabric since independence, and the number of people killed in communal violence has increased dramatically over the last few years. This bloody situation deserves attention on a purely humanitarian level. It is, however, also a situation of clear human rights violations. In many cases, not only has the Indian state failed to provide protection from communal rioting, but it has also been directly linked to this rioting. The human rights violations perpetrated by the State have been well documented in Kashmir. Indian police have also acted against Muslims during communal riots in cities throughout India,5 in particular, those which swept Northern India after the destruction of the Babri Masjid mosque in Ayodhya, killing some 3,000 Muslims. 6 Paul Brass notes that "in most major riots police firings are directed disproportionately at Muslims and many of those killed in these riots are killed in the police firings themselves, rather than by Hindu rioters."7 Less dramatic, but symbolically important to the Muslim sense of place in the Indian political order, is that the names of all Indian states are Hindi, the Indian national anthem is in Hindi, and the country is constitutionally named Bharat, symbolizing its pre-Islamic past. Perhaps this is not unfair-after all, India is a predominantly Hindu country-but Muslims also hold only three to four percent of positions in state and central administrations and have a generally low rate of participation in Indian economic and political life, not to mention lower rates of income and literacy. 8 In education, out of a total of 3,604 2 Unless otherwise noted, for all demographic and statistical information in this article, see Myron Weiner, India's Minorities: Who Are They? What Do They Want?, in THE INDIAN PARADOX: ESSAYS IN INDIAN POLITICS (Ashutosh Varshney ed., 1989). 3 Kashmir, as a rather distinct situation, will not be specifically dealt with in this paper. 4 PAUL R. BRASS, THE POLITICS OF INDIA SINCE INDEPENDENCE 198 (1990). 5 Patricia Risso, Indian Muslim Legal Status, 16 J. S. AsIAN & MIDDLE E. STUD. 2, 63 (1992). 6 BRASS, supra note 4, at 200. 7Id. 81.H. Malik, Beyond Ayodhya: Implications for Regional Security in South Asia, 24 ASIAN AFFAIRS 292 (1993). 1996] MUSLIM MINORITY RIGHTS 37 degree colleges in India, only fifty-four are managed by Muslims; technical institutions in the country are just 3.5% Muslim. 9 Thus, human rights violations extend beyond communal violence to more routine discrimination. Combined with the symbolic exclusion of Muslims, it could be argued that together these are a violation of the human right to political participation. In any case, they certainly reinforce a sense of social division and add to Muslim alienation from a Hindu dominated state and society. This raises the question of how these human rights violations should be addressed. In a situation in which these violations seem to be feeding off popular sentiment, can calling the Indian state to account for human rights violations actually help calm a situation which is already running out of control? The answer to this is, simply, yes. To begin with, such an accounting could help keep the situation in India from further polarization. It is also true that an expanded definition of human rights norms may contribute to reconciling communal passions. Ultimately, a reshaping of the Indian state- centralized structure-but not necessarily a radical one-may also be necessary in order to accommodate and calm these passions and pressures. The project of the post-colonial state has been to try to steamroll the multiple identities of Indians, as part of the belief that the Indian polity "must include a new integrated cultural (...truncated)