It is part of middle class common sense that something is deeply flawed with minority rights in India. If how a society treats its minorities tests its civility, then minority rights could be a source of pride. But for most people they have begun to signify an irritating weakness — caving in to a tantrum-throwing smaller group, demonstrating the majority’s failure to exercise absolute control over society.
Every right granted to the minority, they claim, is a privilege unavailable to the majority. First, a minority is set apart from the rest, and then it is given what is taken away from the majority. The majority’s loss is the minority’s gain. This, it is felt, is unfair because it creates a blatant inequality between the two. How then can an equality-loving Constitution tolerate minority rights?
Rights are legally recognised special interests of a person that put others under a duty not to interfere with them. If I have a right to religious freedom, then others must not interfere in the choice and practice of my religion. Some of these rights are given to groups rather than to each individual because only groups — individuals taken together — can perform certain activities. For example, a language can be spoken, a religious practice performed and a tradition sustained only by a group, not by an individual in isolation. Thus, linguistic and religious rights are granted only to groups, empowering them, it must be stressed, not to restrict their own members but rather against the threat of interference from other groups.
So what rights do linguistic and religious groups have? Only three, none of them socio-economic or political, exist for them in India: the right (a) to establish and administer educational institutions of their choice (Article 30); (b) to conserve their distinct language, script or culture (Article 29); and, especially for religious groups, (c) to manage their own affairs in the strictly religious domain and to establish and maintain institutions for this purpose (Article 26). But why are these rights available only to minorities? Why this special, ‘privileged’ treatment of minorities?
Two different arrangements
Consider the following two arrangements. In the first, a separate entrance to a hall is designed to let in only certain Very Important Persons, the new maharajas and maharanis, so that they are not forced to rub shoulders with ordinary folks. They are treated differently because they are believed to be superior to the commoners, to possess some unique qualities that others lack. By bestowing privilege to a few, this arrangement reinforces existing hierarchies.
The purpose of the second arrangement is entirely different. Here, a separate entrance is required to meet specific needs of persons who are disadvantaged in one way or another: old persons, pregnant women, parents with very small children, people with broken or irreparable damage to their legs. By preventing an existing disadvantage from begetting another disadvantage, the second arrangement strengthens equality, helps society to treat everyone as equals.
These rajas and ranis could easily take the common entrance but they won’t; it is beneath their dignity. Here, a special entrance protects a privilege denied to all others.
On the other hand, disadvantaged persons won’t take the common entrance because they can’t afford to; the risks are too high. By providing access to a benefit that others already have and procure routinely, the special entrance here fulfils an urgent need. Egalitarian societies cannot tolerate the first arrangement, and cannot do without the second.
Granting rights to linguistic and religious minorities is not a privilege akin to what the maharajas get in hierarchical societies but an egalitarian response to a potential disadvantage. For example, in Maharashtra, Marathi-speaking people do not need a right to their own language. Plainly, they have the power to legislate that their language be the medium of instruction in all schools. This puts, say, Tamil-speaking residents in Maharashtra at a potential disadvantage because their children may never be able to properly learn their own mother tongue. However, they can demand that in schools run wholly by them, there is no law to prevent them from teaching in their mother tongue. Once they have this right, all Marathi speakers have a legal duty not to interfere in its exercise. In possessing such a right, the Tamils are not taking anything away from the Marathi speakers. They are only securing for themselves what the majority already has. Similarly, by possessing rights to their religious practices, Muslims and Christians secure for themselves what the majority Hindus already have, the free exercise of their religion.
Just as ordinary, able-bodied persons do not require a separate entrance, just so socially and politically powerful majorities don’t need special rights. And just as persons with physical disadvantage need a special entrance to be able to do what ordinary persons do routinely, just so numerically smaller and less powerful groups need separate cultural, linguistic and religious rights. This gain for the minority is not at the expense of the majority. The minority gains what the majority already has. There is nothing wrong then in minority rights. In diverse and egalitarian societies, it is always good to have them.
