On August 9, 2005 three Judges Bench of Supreme Court, comprising Chief R.C. Lahoti, D.M. Dharmadhikari and Justice P.K. Balasubramaniam disposed off an appeal of Minority Commission concerning the recognition of some communities/sections of the society as minorities. Some of the observations made by the Hon'ble Supreme Court, if honestly considered and followed, have the potentials of strengthening the fabric of the society and the nation. Surprisingly, only a few newspapers carried this judgement in some details.

The Constitution of India has an inbuilt positive discrimination in favour of minorities in the articles 25 to 30. The positive discrimination favouring minorities relates to religion, culture and education. In no other democracies of the world minorities have such rights, which are denied to the majority community. "Add to it the political fever called 'secularism' generated from vote bank politics and practiced by most of the political parties. The combination of the two carries lethal virus for the disintegration of society and ultimately of nation and the state. Articles 25 to 30 have created such a scramble in our polity that many sections of the, otherwise unified, society have attempted judicial route for gaining minority status. The Supreme Court observed, "the goal of the Constitution was to create social conditions where there was no need to shield or protect rights of minority or majority communities The Commission, instead of encouraging claims from the communities for being added to a list of notified minorities, should suggest ways to help create social conditions where the list is gradually reduced and done away with altogether If each minority group felt afraid of the other group, an atmosphere of mutual fear and distrust would be created posing serious threat to the integrity of the nation leading to sowing of seeds of multi-nationalism. Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of the constitutional democracy." However, the Bench cautioned that "we should guard against making our country akin to a theocratic state based on multi-nationalism in a caste-ridden Indian society; no group of people can claim to be in majority. There are minorities amongst Hindus. Many sections claim minority status because of their number and expect protection from the State on the ground that they are backward".

Hon'ble Supreme Court dwelt too on the question of minorities during freedom struggle and partition had commented, "it is against this background of partition that at the time of giving final shape to the Constitution of India, it was felt necessary to allay the apprehensions and fears in the minds of Muslims and other religious communities by providing to them special guarantee and protection of their religious, cultural and educational rights. Such protection was found necessary to maintain unity and integrity of free India because even after partition of India, Muslims opted to continue to live in India as children of its soil. It is with the above aim in view that the framers of the Constitution engrafted group of Articles 25 to 30 in the Constitution of India."

These very articles are now causing concern and disquiet to the Indian polity, for there is an article which ultimately promises equality to all citizens of India. But minorities seem to be more than equal. For, the majority religious institutions can never be so privileged as those of the minorities. The judgement wishes the list of minorities to be done away with altogether.

This whole business of minority began with the British rule. They systematically ingrained the concept of minorities among the many sections of the Society. The British rulers made allout efforts to divide the Indians in the name of religion caste creed and race. First, in 1906, the then Governor General floated a suggestion to Mr. Aga Khan for creating privileges for the Muslims as the minorities. Accordingly in 1909 Muslims were given the provisions of separate electorate in the Central Council.

India never had any concept of majority or minority. In fact the need for these concepts did not arise. Atithi Devobhava was the ethos of the country. Everybody could follow whatever way of worship one liked. Conversions were unknown. There was a positive welcome of new ways of thinking. Various historic examples are documented -be it the case of Christianity, the Parsis, the Jews or the Islam. No community ever felt a minority.

After the pronouncement of the Hon'ble Supreme Court judgement one morning, that week itself, I received a call from Devendra Swaroopji who after discussing the highlights of the judgement, suggested that it needs to be discussed in detail and highlighted among the people. I agreed with him and started preparation for holding a Seminar on the issue. I requested about a dozen leading scholars to write papers on different aspects of majority-minority related issues. They took more time than I had expected. When papers started reaching the office of India First Foundation, I found the insight and depth with which issues were dealt by the authors.

India First Foundation and Chaitanya Kasyap Foundation decided to hold a National Seminar entitled "Majority and Minority Rights: the Supreme Court and the State", on March 19, 2006 in New Delhi. Three Sessions of the Seminar were presided by eminent jurist L.M. Singhvi, former Secretary General of and Constitutional expert Lok Sabha Subhash C. Kashyap and former Union Minister Arif Mohammad Khan. The Keynote address was delivered S. Gurumurthy. The speakers included such scholars and luminaries as SarvaShri, Vijay Kapoor, K.N. Bhat J.S. Rajput T.H. Chowdary, Jitendra K. Bajaj, Makkhan Lal, A. Surya Prakash, and R.K. Ohri. Papers written by them were precirculated in the Seminar. Shri B.P. Singhal was kind enough to write a paper to fill in the gap in our overall scheme. The present volume is the result of papers presented during a seminar and speeches made by the Sessions' Chairmen.

I am thankful to the authors who were kind enough to write papers on various issues and spare time to speak in the seminar. In organizing the seminar I have been helped by many colleagues and friends. It is not possible to list them all here. However, I would like to especially mention Shri Chaitanya Kashyap, Shri R.N.P. Singh, Shri Shailendra Manawat and Prof. Makkhan Lal for rendering help in various ways.

I am also grateful to Prof. Rajendra Dixit who very kindly agreed to edit the volume for the foundation. '

The post-Partition Indian Constitution-making efforts seem to have been driven more by idealism unrelated to reality than by practical wisdom. In hindsight, it would appear that the issue of establishing durable relation between Hindus and Muslims -read Minorities -as structured in the Indian Constitution was not conceived from long-term, future perspective. It was based on a narrow, short term quick-fix model to get over the immediate partition psychology. More critically, the majority-minority relation -read Hindu-Muslim relation -in its form in the Constitution was evidently conceived and structured to address the psychological dents and deficits in the confidence of the Muslim leadership in the national -read Hindu -leadership, such dents having been caused by the distorted, but powerful, anti-national and anti-Hindu message and mission of the Muslim League to Muslims in pre- Partition politics.

Thus, the Majority-Minority relation in the post-Partition India was a victim of the pre-partition tensions between the nationalists and Muslims and thus suffered from all the listless pre-partition appeasement techniques of the nationalists to soften the separatist character of the Muslim League. This relation born of the tensions of the pre-partition politics took the shape of constitutional relation between the Majority -read Hindus -and Minority -read Muslims. Thus, distorted the Hindu-Muslim relation of the past, not the future that avoids the distortions of the past, became the basis of the constitutionally sanctioned Majority-Minority relation in post-Partition India. This pre-partition distortion has been politically accepted and legislated in the Constitution of political India. Thus the failed prescription to avoid partition pre-Partition became the constitutional basis for national unity post-Partition. Despite its failure to produce the desired results decades after the Constitution took effect, so far it has not been studied, appreciated, critiqued, or handled by the intellectual India to assess whether it has been able to achieve national integration through the assimilation of both the majorities and the minorities into a harmonious nation.

Following Partition, the idioms and phrases that the pre- Partition politics had generated changed, but the psychology of the pre-Partition days continued. And the relationship of the Minorities -read Muslims -to the Majority -read Hindus -as distorted by the partition politics was smuggled into the Constitutional relation between them through the misconceived notions of secularism. Secularism was already a misfit in Hindu civilisation. The original Indian constitutional understanding of secularism was essentially a transplant from the experience of Christendom and adopting it amounted to experimenting with that alien experience in India, which was a product of an entirely different, inclusive spiritual experience. Thus, from the start, secularism as it evolved in the Christendom and adopted in India without adaptation to Indian conditions has been a mismatch to the Indian way of life, and more, it was also misconceived from the start and misinterpreted by vote- bank politics and misapplied in India. A dispassionate analysis of secularism in its origin and its practice in India is long overdue.

In Christendom, secularism was the concept of the separation of state and church. But the separation is not separation of faith ' from rule, but separation of the powers within the same faith. In Christendom, both the state and the church owed their loyalty to the same religion. Even now the Church of England is headed by the titular head of Britain, the Crown. In Christendom, secularism was an issue between the state, which was essentially Christian and the Christian Church and not between any Christian majority and non-Christian minority. In substance, in its origins, secularism was an issue between the state and the religious establishment within the same faith, and thus not an issue between majority and minority. In contrast, historically all Indian states -save that of the Emperor Ashoka, who established the only theocratic state on this soil- have always been religion-neutral. There never existed a faith- based State in Indian history other than Ashoka's. Y-et; even the faith-driven Ashoka, as his edicts show, guaranteed freedom of faiths in a manner unknown to human civilisation till then or even later. In India, traditionally kings could never interfere with the beliefs of the people. The beliefs of the Indian people have been diverse. Indians never believed in one God. They believed in multitude of Gods. So, accepting other ways of worship is natural to the Hindu civilisation. Even if there were no Muslim or Christian community in India, the Indian state would have been faith-neutral. Thus, secularism is not, and can never be, an issue of majority and minority in India here or elsewhere. Yet in India, secularism has been distorted to mean precisely what it is not; it has been made into an issue concerning the relation between the Majority -read Hindus -and minorities -read Muslims.

Theoretically thus, secularism has nothing to do with majority- minority issues. A fortiori, it has nothing to do with the special minority rights devised under the Constitution. Secularism, as understood in modem parlance and based on the experience of Christendom, defines the character of the State as just a faith-neutral institution. It must always be remembered that secularism was a product of all-Christian nation States and not of multi-religious nation States or societies. So, the concept of faith-neutral State as the essence of secularism did not originate in Christendom. In its origins, the secularism of Christendom was not separation of faith from the State but only the separation of the Church from the State. The faith-neutral character of secularism was a later development with the arrival of legitimised irreligiousness or agnosticism in modem-west. In any event secularism was not, and was never intended as, a rule of arbitration between the majority and the minority in the religious sense of the two terms.

But, unfortunately, in the Indian debate on secularism, the issue of minority rights has been constitutionally confused with, and politically linked to, the secular character of the Indian state. This is a clear -in some sense, even an intended -distortion. This happened essentially because the pre-Partition debate on Hindu- Muslim relation was reborn as debate on secularism after Partition. While, theoretically, secularism, in its truest and genuine sense, is an inseparable and inalienable part of the character of the state as a religion-neutral institution, the special minority rights -even if these were justified in the beginning and up to some point in time, like reservation for weaker sections -cannot be an eternal element or feature of any Constitution. It can only be a transitional, time bound, arrangement, which will obviously need to be calibrated and phased-out when the minority overcomes its perceived and psychological backwardness, becomes self-confident from within and gains trust and confidence in the majority and finally integrates with the majority as an equal. Correspondingly it also rests on how the majority generates confidence in the minority and assimilates it into the national mainstream. Actually, the institution of special rights to a minority militates against the secular character of the State. The genuinely secular character of the state in the sense of the state being neutral to religion and religious issues is the very essence of a representative State. Seen in this light, special right for any section of the people is inconsistent with a representative, section-neutral state.

Another issue, which has been deliberately mixed up and confused with the issue of secularism and minority rights, is the issue of minority identity. In fact, constitutional recognition of any separate identity and enforcing that identity weakens, and is destructive of, the secular foundations of the state. Non-interference in religious matters, which is integral to the secular character of the state, implies protection of the idea of identity. But explicitly 1 promoting -by granting special rights -special identity of any section of the society, be it the majority or the minority, is theoretically injurious and destructive of the idea of a faith-neutral and sectional-identity-neutral state. A secular democratic state knows only one identity for its people and that is as citizens with equal rights. It knows no other identity. Any other sectional identity constitutionally recognised and mandated and made enforceable, is only at the cost of the secular character of the state. At least, this is the theoretical position of the faith-neutral secular state.

This distortion in the concept and practice of the theory of minority rights as mixed up and, in fact, messed up with the concept of secularism occurred partly because the majority-minority relation in India has been historically an extension of the colonial and pre- Partition psychology and political process into the scheme of the Constitution of India. .In pre-Partition India, all issues of faith were essentially Hindu-Muslim issues. The process of framing the Constitution of India could not get over the hangover of the pre- Partition psychology and Partition, nor could the practice of post- Partition politics do it. The interface between the Hindu faiths and the Islamic faiths during the colonial period, being a product of mutual suspicion ~nd distrust promoted in the main by the Muslim League, had become substantially adversarial. In fact, it is almost admitted by the Supreme Court that the majority-minority relation in India as structured in the institution of minority rights was a continuity of the pre-Partition Hindu-Muslim issues. The Supreme Court traced the conceptual origin of the minority rights in the Constitution in St Xavier's case [AIR 1974 SC 1389 at 1413] speaking through Justice H.R. Khanna, the Court said:

"75. Before we deal with the contentions advanced before us and the scope and ambit of Article 30 of the Constitution, it may be pertinent to refer to the historical background. ...The closing years of British rule were marked by communal riots and dissensions. There was also a feeling of distrust an~ the demand was made by a section of the MusliIrts for separate homeland. This ultimately resulted in the Partition of the country. Those who led the fight for Independence of India always laid great stress on communal amity and accord. They wanted the establishment of a Secular State wherein people belonging to different religions should have a feeling of equality and non-discrimination. Demand had also been made by a section of people belonging to various minority groups for reservation of seats and separate electorates. In order to bring about integration and fusion among different sections of population, the framers of the Constitution did away with separate electorates and introduced the system of joint electorates, so that every candidate in an election should have to look for the support of all sections of the citizens. Special safeguards were guaranteed for minor