The Congress has always been hypocritical about the minorities commission, alleges ex-chairman

Professor Tahir Mahmood is a renowned professor of law, and was chairman of the National Commission for Minorities between 1996 and 1999. His book, Minorities Commission 1978-2015 – Minor Role in Major Affairs is a sensational disclosure of the hypocrisy of the Congress and its leaders – including Indira Gandhi – regarding minorities, and the visceral prejudice the Bharatiya Janata Party has against them. Excerpts from an hour-long interview:

Could you explain the title of your book – whose role is minor, and what precisely do you mean by major affairs?
Major affairs relate to the Constitutional rights of the minorities – the situation of the minorities, their welfare, that is, whatever was the purpose behind the setting up of the National Commission for Minorities or Minorities Commission. The minor role is of the commission.

Why do you say the Minorities Commission’s role has been minor?
In its 38 years of history, but for a few stray phases, it has been playing a minor role or no role or a negative role, depending on who is ruling the country.

When the Minorities Commission was established, it was given administrative status (as it was established through an order of the government). It was given statutory status in 1992 (through a law passed by Parliament), but has been consistently denied Constitutional status. What precisely do the different statuses imply for the commission?
In 1978, two commissions were set up. In January, the Minorities Commission was established and then, in May, the National Commission for Scheduled Castes and Scheduled Tribes was set up. The SC and ST Commission has Constitutional status now. In 1991, the Constitution was amended to bifurcate the commission into two – the National Commission for SCs and the National Commission for STs, both of which are mentioned in the Constitution. They derive their powers from the Constitution. There is hell of a difference between deriving power from the Constitution and deriving power from a Parliamentary law.

What precisely is the difference?
Constitutional bodies have their own weight, impact and sanctity. The government’s response to them is different from its response to a statutory body. This has been the country’s tradition.

Why was Constitutional status denied to the Minorities Commission?
Obviously, it was because of extreme communal bias. That bias has been there in all parties. Who says the Congress has always been secular? The Congress was the first to oppose even the move to establish the Minorities Commission.

You mean it opposed then Prime Minister Morarji Desai’s decision to establish the Minorities Commission in 1978?
The Congress opposed the move even before 1978. The first Minorities Commission at the state-level was set up in Uttar Pradesh in 1964. Even that was opposed by the Congress. The Congress has all along been uncomfortable with the idea of having the Minorities Commission. In the aftermath of Partition, most people in the Congress, barring a few exceptions, have been opposed to the minorities. Mind you, the word minority in this country is an euphemism for Muslim.

Why was the Congress opposed to the Minorities Commission?
It was in the Opposition. They didn’t come to the front to oppose it. They told the Jan Sangh [renamed Bharatiya Janata Party later] members of the [ruling] Janata Party that, “Please oppose it, we are with you.”

Was the Congress opposed to the Minorities Commission per se, or only to giving it Constitutional status, the proposal for which was made by the VP Singh government in 1989-1990?
The first proposal [for Constitutional status] was made by Desai in 1978, when the commission was set up. Desai was not a very secular person. The Minorities Commission was Charan Singh’s baby. He was the home minister. Desai wasn’t in favour of it, but he kept quiet for political reasons.

I guess it was because Singh was Desai’s rival in the Janata Party, right?
Yes. Even LK Advani kept quiet, so did Atal Bihari Vajpayee. They too were in the Janata government. A Constitutional Amendment Bill was moved in 1978, but it was defeated.

Defeated?
It was defeated because there was not the necessary quorum required to pass the Bill. It wasn’t passed even in one House because of the lack of quorum. The Congress used to abstain from Parliament to ensure that the proposal to establish the Minorities Commission was defeated.

I presume it was because the Congress feared the Minorities Commission might not go down very well with the Hindus.
From the very beginning, Congress governments have behaved hypocritically. Most of their leaders have been hypocrites. They talk of the rights of minorities, but oppose it behind the scene. This is evident in the history of developments related to the commission.

Was it because of the Congress’ position that the administrative order was issued in 1978 to establish the commission?
Before the bill was introduced in Parliament, the administrative order had already been issued to establish the commission. The idea was to grant Constitutional status a few months later. Desai wrote to all chief ministers that Constitutional status would be given to both the Minorities Commission as well as for the SC and ST Commission. But the bill was defeated, and consequently the commission for SCs and STs too suffered, as it and the Minorities Commission had been bracketed together in the bill.

Since the Congress couldn’t have said that it was opposed to Constitutional status being granted to the SC and ST Commission, it simply opposed the bill as such. This history was repeated thrice – in 1978, 1979, and 1989.

1989 was when the VP Singh government was in power.
VP Singh was compelled to remove the Minorities Commission from the Bill and grant Constitutional status only to the SC Commission for SCs and STs.

But it was the Congress government which granted statutory status to the Minorities Commission in 1992.
Yes. It was during the debate on the bill [granting statutory status to the commission] that Advani said, “These very people, most of whom were there in 1978, used to tell us why did you accept it. You should not have accepted it. You have committed such a grave mistake. Now this [passing an Act for the commission] is being done by the [Congress] government…”

What made the Congress government change its stance?
That was the time when the [Ram Janmabhoomi-] Babri Masjid was there. It, therefore, did a turnaround. Advani said he was relieved that the government was not thinking of giving Constitutional status to the commission. It was as if Constitutional status for the Minorities Commission would have been catastrophic for the country.

Earlier, you said that the hypocrisy of the Congress is evident from the developments related to the Minorities Commission. Could you cite an example?
Yes, the Minorities Commission made a move in the late 1970s that districts which have a Muslim population higher than the national average should be identified and special measures should be taken there. The recommendation was for Muslim-concentrated districts or MCDs. Without changing the abbreviations, the then education secretary, a Muslim gentleman, changed the MCD to read as minority-concentrated districts.

A population survey was carried out. This survey was only for the Muslims. They didn’t take into account the Buddhist or Sikh populations. But the word Muslim was so scary for bureaucrats that didn’t want MCD to read Muslim-concentrated districts. When I took over as chairman [in 1996], I said if MCD stands for minority, then other [minority] communities, too, should be taken into account.

Initially, the Minorities Commission was with the home ministry and then it was assigned to the welfare ministry. Why do you say in your book it marked an ideological transition for the commission?
To begin with, the Minorities Commission was a human rights protection body. In 1985, it became a welfare agency for the minorities. This they did by bringing it under the Ministry of Welfare. This was Indira Gandhi’s idea. She was always opposed to the Minorities Commission. When she returned to power in 1981, she couldn’t digest the idea of having the Minorities Commission for two reasons. Historically, after Partition, the Congress became vindictive. It never had a genuine wish or programmes to do something for the minorities. Secondly, the Minorities Commission had been set up by a rival government. Both Morarji Desai and Charan Singh had revolted against the Congress leadership and went out of the party. It was not easy for Gandhi, who had a very vindictive nature, to digest it.

Would you have preferred the Minorities Commission to remain a human rights rather than a welfare body?
It should have remained a human rights body. The idea behind creating the commission was to create a surveillance body to protect the human and constitutional rights of the minorities. To look after the welfare of the minorities, a commission is not required. The government agencies are already there for that.

The commission was subsequently transferred to the Ministry of Minority Affairs in 2006, under the UPA government. What impact did it have on the Minorities Commission?
When the UPA government established the Minority Affairs Ministry, it wanted to transfer to its jurisdiction all institutions dealing with the minorities. I have been dead-set against the idea of having a separate ministry for minority affairs. I have always been of the opinion that the Minorities Commission should have been with the Home Ministry, as is the case with the National Human Rights Commission.

You became chairman of the National Commission for Minorities in 1996. Why do you say in your book that your tenure of three years was very stressful?
Oh, I faced three governments – that of HD Deve Gowda, IK Gujral, and Vajpayee. Gowda and Gujral were quite indifferent to the Minorities Commission.

Gujral was indifferent? That is a surprise.
He was more indifferent to the commission than Gowda and Vajpayee were. He was the worst. He never replied to any of the letters from the Minorities Commission. I remember something, which was very shocking to me.

Since I was the sitting chairman of the commission with a Cabinet rank, I asked for an appointment to meet Gujral after he became Prime Minister. When the appointment was given, after several days of waiting, I went to see him. Several media persons, as it usually happens, followed me. Gujral asked them to get out. He didn’t want my meeting with him to be exposed to the media. I was shocked. There were many serious problems relating to the minorities, and Gujral knew I would be talking to him about them. He, therefore, didn’t want the media to know what was being talked about, what my arguments and what his responses were.

As for Deve Gowda, he had to save his chair. He had to do what Sitaram Kesri [who was the president of the Congress, which was supporting the BJP from outside] would tell him to do.

What about Vajpayee?
As far as courtesies were concerned, he was the best of the three prime ministers I encountered. It was remarkable that after taking over as prime minister, he wrote a letter to me. He didn’t wait for me to write to him. He wrote saying that he hoped the Minorities Commission would continue working as it had under previous governments. Each time I wanted an appointment with him, it was immediately given. I could meet him within two hours of asking for an appointment. Whenever I told his secretary that there was an urgent issue I wished to discuss with the PM, Vajpayee would even come on the line.

Do you remember an instance when you felt you needed to speak to him urgently?
Yes, Gujarat, when Christians were being beaten up.

So why was it stressful?
I was always on my toes, and was running from pillar to post to see that the minorities are protected. I faced threats from all sorts of people. I had to face cases in the Allahabad and Delhi High Courts.

What were these cases about?
For instance, a writ petition was filed by the Hindu Mahasabha which wanted the Minorities Commission to be wound up, rather wiped out. Why? Because the commission had recommended that the Jains should be treated as a religious minority.

Was it your recommendation?
No, earlier commissions too had recommended it. But I cited the reasons why it was unavoidable. I told the government that Sikhs, Buddhists and Jains are bracketed together under all laws – for instance, under the Hindu Marriage Act. You have declared two of them to be minorities and the courts too have declared Jainism to be a separate religion, so how can Jains be denied the minority status? I had written to the government that a better option would be to withdraw the minority status from Sikhs and Buddhists. If that wasn’t possible, then the Jains had to be granted the same status. The very idea of granting minority status to Sikhs and Buddhists was wrong.

You write in your book that Advani didn’t take kindly to you when you wrote in a newspaper that since all tribals are not Hindu, their conversion to Christianity shouldn’t be seen as conversion of Hindus.
The claim of the Rashtriya Swayamsevak Sangh and the Hindu Mahasabha is that everyone born in India is a Hindu. My argument was that tribals are not Hindu by birth, so whatever religion they are adopting, let them adopt. It is not a case of conversion from Hinduism to Christianity. Advani didn’t like it.

Did he express his disapproval of your argument?
He said to me. “Jo bhi India mein paida hota hai, woh Hindu hi hota hai." Whoever is born in India is born a Hindu.

He said that explicitly to you.
Yes, he said that in case a person isn’t a Muslim or Christian, he is a Hindu. (Laughs) But, mind you, Advani has a point.

In the sense?
Parliament enacted four laws in 1955-1956. These were the Hindu Marriage Act, the Hindu Minority and Guardianship Act, the Hindu Adoption and Maintenance Act, and the Hindu Succession Act. All these four Acts seem to be saying, although they don’t in so many words, is that any Indian who is not a Muslim, Christian, Parsi or Jew, is Hindu. True, it is for the application of these four laws.

In the titles of these Acts the word Hindu is there, so who is Hindu had to be defined. It, therefore, says that Hindu for the purpose of this Act includes Buddhists, Jains and Sikhs. This gave the impression that all these three communities are Hindu. This might have been the idea behind Advani’s statement – that anyone who isn’t a Muslim, Christian, Parsi or Jew has to be a Hindu.

You also write in your book that you and Maneka Gandhi exchanged letters. When did this happen? What were these letters about?
These letters were exchanged after Vajpayee took over as Prime Minister [in 1998]. Maneka Gandhi sent me a letter pointing out that the Constitution says this and that about minorities, and spelt out the implications of the National Commission for Minorities Act. She said I should meet her to discuss the Constitutional provisions.

Maneka had been a student of Lady Sri Ram College at a time when I was Delhi University’s representative on the managing committee of the college. I wrote to her saying I didn’t need her briefings on the Constitutional rights of minorities and the role of the Minorities Commission. She was very furious.

Did she express her fury to you?
After I wrote to her, she never contacted the commission. However, two of my colleagues were called, one after another, and were told that if they could find something against me, they would be made the chairman of the commission. Both of them confided in me.

Why do you call the Minorities Commission a toothless tiger in your book?

Whatever teeth are there under the National Commission for Minorities Act, they are not being used. They were sparingly used by the first two commissions. After 1999 [that is, after Professor Mahmood’s tenure ended] the judicial powers have never been used. There are two kinds of powers the commission has – judicial and recommendatory. Recommendations made by the commission are never accepted by the commission. The legal provision is that the government should place as early as possible the commission’s report in Parliament. This is to be done along with an Action Taken Report. Governments have taken seven to eight years to place the report [submitted to them] in Parliament.

My most drastic report was of 1998-1999, which was my last year in office. That report was almost suppressed.

What did that report recommend?
These were recommendations, which were later repeated by the Sachar Commission, for instance. There was so much fuss created over the Sachar Commission report as if something novel has happened.

When was your last report tabled in Parliament?
Seven years later!

Why have the Minorities Commission then?
That’s the question I have put to them [in the book]. Not a single judge after Sardar Ali Khan [whose tenure was between 1993 and 1996] has been appointed to the commission. No professor of law has been appointed after me. And it is supposed to be a quasi-judicial body with the powers of a civil court. Yet competent people who can exercise those powers are not appointed. You are sending people there who may have never heard of Civil Procedure Code or Criminal Procedure Code!

What do you think will happen to the commission under the current government?
The latest information is that it was agreed upon to appoint [former Test cricketer and commentator] Navjot Singh Sidhu as a member of the commission.

Don’t tell me!
Yes, the present government had decided to appoint him as he was looking for a placement in Delhi. They didn’t want to make him a minister and, therefore, decided to make him a member of the commission. The decision had been finalised. But then someone pointed out that the National Commission for Minorities Act says that the tenure of every member will be for three years. However, the tenure of the present commission ends in May 2017. So the person said, “If Sidhu joins the commission in October or November 2015, his term would go on until 2018. This mean the commission would continue till 2018.” But the idea perhaps was not to let the commission continue till then. They, therefore, had second thoughts on Sidhu’s appointment. No order has been issued till now for his appointment.

How can you be sure of this story about Sidhu?
I checked with the commission. They said no order has been issued, but there is talk everywhere that his appointment has been cleared. I found out from my own sources as well. There is a reason for me to believe it. The National Commission for Minorities Educational Institutions completed its tenure in 2014. They didn’t reconstitute it for almost one year, about the time I was about to complete the writing of my book.

Was it reconstituted thereafter?
That is another story. After 15 months, the government decided to reconstitute it. They decided to appoint two members – one Sikh and one Christian. They decided to appoint a Jain as chairman, a High Court judge. The chairman of this commission has to be a High Court judge. It seems they are having second thoughts on this Jain judge as well, because no order has been issued appointing him. The commission [National Commission for Minorities Educational Institutions] remains without a chairman until now.

The way the Minorities Commission has been functioning for the last 10 years it is not serving any purpose. The money given to it is just being wasted. As soon as some people are appointed to the commission, they go on Bharat darshan. What was the logic of making Tarlochan Singh chairman? [He was appointed by the Vajpayee government and had been the press secretary of former President Zail Singh]. There is a conflict between who is to be appointed to the commission and its statutory objectives. This will not change. The commission may be reconstituted. They will appoint a Sikh or Buddhist as chairman. I don’t have a problem with that. The problem is that they will appoint a useless Sikh or a useless Buddhist as chairman.

They can appoint a useless Muslim as chairman as well.
They will never appoint a Muslim as chairman. There is no dearth of useless Muslims, nor is there a dearth of so-called BJP Muslims, but my feeling is that they will not appoint a Muslim.

In other words, what you are arguing is that why have a commission when it can’t be made effective.
The current commission is not working. I know the chairman [Naseem Ahmad], he is a sincere man; he had been a student of mine. But such is the atmosphere in the country that he cannot function. He wouldn’t want to be killed, would he?