The Role of Quasi-Judicial Bodies in Protecting Religious Freedom in India
The Constitution of India ensures protection of fundamental rights or basic human rights for all persons. India is a country of diverse linguistic and ethnic groups with varied cultural and religious beliefs and many of these groups are minorities. On 8 August 1947, the Chairman of Advisory Committee on Minorities submitted a report on the rights to be provided to minorities, to the President of the Constituent Assembly of India.
- The National Commission for Minorities
- Srikrishna Commission Report
- Ranganath Misra Commission Report
- The National Human Rights Commission (NHRC)
- National Commission for Scheduled Castes and Tribes
- The Role of the SC/ST Commissions Towards Protecting Religious Freedom
It said, “We wish to make it clear, however, that our general approach to the whole problem of minorities is that the State should be so run that they should stop feeling oppressed by the mere fact that they are minorities and that on the contrary, they should feel that they have as honourable a part to play in national life as any other section of the community. In particular, we think it is a fundamental duty of the State to take special steps to bring up those minorities which are backward to the level of the general community.” [i]
The discussions among the leaders at the time reflects the chaos that followed the partitioning and forming of two new nations – India and Pakistan. The horrific genocide during the Partition left a deep-seated insecurity among the religious minorities in India. This was noted in the judgment delivered by Justice D. M. Dharmadhikari in Bal Patil & Anr. vs. Union of India & Ors.[ii]. Referring to a chapter titled “Partition of India – Legend and Reality” from H.M. Seervai’s book “Constitutional Law of India,” the verdict read:
“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, communities like Muslims and Christians in greater numbers living in different parts of India opted to continue to live in India as the children of its soil.
“It is with the above aim in view that the framers of the Constitution engrafted a group of Articles 25 to 30 in the Constitution of India. The minorities initially recognised were based on religion and on the national level e.g. Muslims, Christians, Anglo-Indian and Parsis. Muslims constituted the largest religious minority because Mughal period of rule in India was longest followed by British rule during which many Indians had adopted Muslim and Christian religions.”
The framers of the Constitution were well aware of the importance of providing equal protection to all communities and also ensuring the unity of this country. The chapters of Fundamental Rights and Fundamental Duties in the Constitution provide a balance of cultural and religious freedom for both majority and minority groups. They further safeguard the vulnerable and weaker sections of society. To achieve this goal, Commissions like the National Commission for Minorities, National Commissions for Scheduled Castes and Scheduled Tribes, National Commission for Minority Educational Institutions and the National Human Rights Commission have been established. These commissions are given quasi-judicial powers and can inquire, conduct investigations and make recommendations to the government.
The National Commission for Minorities
When establishing the Minorities Commission, the Ministry of Home Affairs had noted in its Resolution dated 12 January 1978[iii], that:
“Despite the safeguards provided in the Constitution and the laws in force, there persists among the minorities a feeling of inequality and discrimination. In order to preserve secular traditions and to promote National Integration, the Government of India attaches the highest importance to the enforcement of the safeguards provided for the Minorities and is of the firm view that effective institutional arrangements are urgently required for the enforcement and implementation of all the safeguards provided for the minorities in the Constitution, in the Central and State Laws and in the government policies and administrative schemes enunciated from time to time.”
If there were any questions as to why a special commission was being formed for minorities despite the safeguards provided in the constitution, this part of the resolution sought to answer them.
In 1984, the Minorities Commission was detached from the Ministry of Home Affairs and placed under the Ministry of Welfare. Eight years later, when the National Commission for Minorities Act 1992 (NCM Act) was enacted, the National Commission for Minorities was made into a statutory body.
On 23 October 1993, a gazetted notification was issued by the Ministry of Welfare, Government of India, which notified five religious communities as minority communities: Muslim, Christians, Sikhs, Buddhists and Zoroastrians.[iv] In a notification dated 27 January 2014[v], Jains were also included in the list of minority communities.
It is important to note here that the only available definition of the word “minority” is found in Section 2(c) of the NCM Act. And even there, it is not so much a definition but a provision that lets the central government determine who can be a minority. Even the Constitution does not define the word minority even though it uses it in some articles.
Functions of the NCM
As per the NCM Act, Section 9 gives various powers and functions to the commission to make sure that the secular traditions of this country are preserved. Some of these functions under subsection (1) are as follows:
The Commission can monitor the progress in development of minorities and make sure that safeguards are being provided.
The Commission can make recommendations so that these safeguards are better implemented by the central or state governments.
The Commission can be approached with complaints when minorities are being deprived of these rights and safeguards and also take up such matters with the appropriate authorities.
The Commission can conduct studies and research on discrimination against minorities as well as their socio-economic and educational needs.
All the above-mentioned functions of the Commission as laid down in Section 9(1) of the Act are related to the six notified communities – Muslim, Christians, Sikhs, Buddhists, Zoroastrians and Jains.
Subsections (2) and (3) of Section 9 make sure that these recommendations are taken to both Houses of the Parliament by the central government. And when the matter concerns a state government, they are taken to their respective legislatures.
Subsection (4) of Section 9 states that while performing its functions, the Commission shall have all the powers of a civil court with respect to the following matters:
Summoning and enforcing the attendance of any person from any part of India and examining them under oath;
Asking for the discovery and production of any documents;
Receiving evidence on affidavits;
Requisitioning any public record or copy from any court or office; and
Issuing commissions to examine witnesses and documents and any other matter which may be prescribed.
According to the Yearly Complaints Statistics, under “Subject-wise Complaints,” the Commission shared the total number of complaints it received under “Religious Rights” as:
2017-18 – 56
2018-19 – 82
2019-20 – 40[vi]
The Role of the NCM in Protecting Religious Freedom
Much of the work done by the NCM and the state minority commissions depends on the goodwill they maintain with the central and state governments. Hence, it is particularly difficult to execute its vision freely if and when there is a conflict. To quote Tahir Mahmood, Professor of law and former Chairman of the NCM, on his critical study of the role played by the commission since its inception in 1978:
“I am not saying that the chain of successive Commissions made no efforts to improve the minority situation in the country. Of course, they did – all of them according to the ideology and conscience of those who manned them. But their viewpoints, if adverse to the rulers have remained confined to the pages of the Commissions’ Annual Reports. In my report of 1998 on the minority situation in the country, I had concluded: ‘If the advisory, consultative and reconciliatory role of the Commission under its Parliamentary Charter had not been constantly ignored by the successive governments, the minority situation in the country would not have been all that bad.’”[vii]
Successive governments have set up special commissions and committees to investigate the conditions of minorities or to inquire into adverse incidents. We have seen that these commissions and committees were able to execute their work diligently and provide intriguing reports. Some of the most notable incidents which led to the formation of these bodies was:
The Srikrishna Commission or Justice B. N. Srikrishna Commission of Inquiry to investigate into the Mumbai communal riots of December 1992 and January 1993.
The Ranganath Misra Commission which was to examine the welfare needs of socially and economically backward sections on religious and linguistic lines.
Srikrishna Commission Report
On 25 January 1993, the Maharashtra government led by the Congress party constituted a commission under Justice B.N. Srikrishna to inquire into the communal riots which had engulfed Mumbai after the demolition of Babri Masjid in Ayodhya, Uttar Pradesh.
The Indian Express noted the following in its article regarding the report and action taken by the Srikrishna Commission:
“Recording of evidence started on 24 June 1996 and came to an end on 4 July 1997, during the course of which the commission recorded the statements of 502 witnesses. Their depositions ran into 9,655 pages. The commission took 2,903 documents on record as exhibits (about 15,000 pages) and passed 536 orders. And 2,126 affidavits were filed before the commission, of which two were by the government, 549 by the police and 1,575 by members of the public.
“In its report submitted in February 1998, the commission said the December 1992 phase of the rioting by Muslims was a spontaneous reaction of leaderless and incensed Muslim mobs. It also stated that the January 1993 phase commenced from 6th ‘by the Hindus brought to fever pitch by communally inciting propaganda unleashed by Hindu communal organisations and writings in newspapers like Saamana (the mouthpiece of the political party Shiv Sena) and the Marathi daily Navakal. These narratives were taken over by the Shiv Sena and its leaders who continued to whip up communal frenzy by their statements and acts and writings and directives issued by the Shiv Sena Pramukh Bal Thackeray.’”
The report also stated that there was “no material on record suggesting that even during this phase, any known Muslim individuals or organisations were responsible for the riots, though a number of individual Muslims and Muslim criminal elements appear to have indulged in violence, looting, arson and rioting.”
Prominent Shiv Sena leaders named by the commission included the party’s founder Bal Thackeray and leaders Gajanan Kirtikar, Madhukar Sarpotdar and Milind Vaidya. The commission also spoke about the “built-in bias” of the police force against Muslims. It listed 11 incidents in which 31 police officers were found actively participating in riots, communal incidents or incidents of loot and arson and so on. It recommended that the government take strict action against them.
In its action-taken report, the Sena-BJP government listed some reasons that furthered the bitterness between Hindus and Muslims. They were as follows:
The Special Civil Code for the minorities;
Reversal of decisions in the Shah Bano case;
Opposition to the singing of Vande Mataram;
Use of loudspeakers for namaaz and the inconvenience caused to the public because of obstructions on the streets created by namaaz-offering mobs;
The honorarium granted to maulvis; and
The concession granted for Haj pilgrimage.
The commission also said that this alienation and mutual distrust are responsible for the phases of violence that started on the day of the demolition of the masjid – December 6, 1992, continued from January 6, 1993.
The government, however, said that while it accepted the commission’s recommendations to improve policing in the state, it “cannot agree with the conclusions of the Commission”. The recommendations were never accepted by the Congress-NCP government after it came to power.[viii]
Since then, victims of those communal riots have been awaiting justice from subsequent governments. But because of reports like these, they still have some sense of hope.[ix]
Ranganath Misra Commission Report
Ranganath Misra Commission Report[x]
Following the 2004 general elections in India, won by the Congress party, a National Commission to examine and report on issues of reservation for minorities was taking shape. It was a promise the Congress party made in their election manifesto.
On 29 October 2004, the Ministry of Social Justice and Empowerment issued Notification No.1-11/2004-MC (D) with the following terms of reference:
(a) To suggest criteria to identification socially and economically backward sections among religious and linguistic minorities;
(b) To recommend measures for the welfare of socially and economically backward sections among religious and linguistic minorities, including reservation in education and government employment; and
(c) To suggest the necessary constitutional, legal and administrative modalities required for the implementation of its recommendations.
After five months, Justice Ranganath Misra, Former Chief Justice of the Supreme Court of India along with three other members were appointed. They took charge on 21 March 2005 and were able to submit their recommendations to the Prime Minister on 21 May 2007.
One of the recommendations by the Misra Commission was particularly significant. It found categorising only Hindus, Buddhists and Sikhs as Scheduled Castes (Scheduled Castes Order, 1950) was unconstitutional and that it needs to be removed. They said that the Supreme Court of India in Soosai vs. Union of India[xi] failed to note that the old Scheduled Caste Order of 1936 was based only on general impressions and not on any actual survey. The Scheduled Caste Order, 1950, which was revised to include some more castes was also not the result of any scientific survey of the caste situation in the country and was heavily based on the Scheduled Caste Order of 1936.
Hence, Muslims and Christians who had earlier belonged to the Hindu Schedule Caste were not able to avoid discrimination or improve their social status by changing their religion. This recommendation was also made by the NCM in its Annual Report for 1998-99:
“Recommended that the Proviso in the Constitution (Scheduled Castes) Order 1950 [amended version of 1956-90] restricting its scope to particular communities be deleted as not to deny to the Christian and Muslim members of the castes specified in the said Order the socio-economic benefits extended to the Scheduled Castes.”[xii]
At the moment, several writ petitions are pending adjudication before the Supreme Court of India asking that Clause 3 of the Constitution (Scheduled Castes) Order 1950 be amended to make room for certain inclusions.
The lead writ petition, Centre for Public Interest Litigation & Ors. vs. Union of India [W.P.(C.) 180/2004[xiii]] was filed under Article 32 of the Constitution of India. It asks that Clause 3 of Constitution (Scheduled Castes) Order, 1950 be declared unconstitutional and void. It also asks that the benefits that are denied to Scheduled Castes (Christians) in jobs, and political reservations, etc., be declared unconstitutional and void.
The National Human Rights Commission (NHRC)
The NHRC came through an Ordinance Promulgated on 23 September 1993. It was later replaced by the Protection of Human Rights Act 1993 which received Presidential assent in January 1994. The Commission consists of a Chairperson, four full-time members and four deemed members. The statute lays down qualifications for the appointment of the Chairperson and Members of the Commission.
Functions of the NHRC
Under Section 12 of the PHR Act, the commission:
Can inquire into complaints of human rights violations and also intervene in judicial proceedings involving allegations of human rights violations with the approval of the said court.
Can make recommendations to the government on the conditions of inmates of any jail or institution under the control of a state government.
Can review safeguards under the Constitution or any law for protection of human rights and recommend measures for effective implementation.
Will ensure spreading awareness about the safeguards that are available to the society and encourage civil society members to develop and work towards ensuring human rights.
With regard to inquiries into complaints, the NHRC has all the powers of a civil court that is trying a suit under the Code of Civil Procedure, 1908 has. This includes:
Summoning a witness and making sure they attend so that they can be examined under oath
Discovery and production of any document
Receiving evidence on affidavits
Requisitioning any public record or copy from any court or office
Issuing commissions for the examination of witnesses or documents
The NHRC can utilise any officer or investigating agencies of the central or state government to conduct an investigation. After the completion of inquiry, the Commission can send recommendations to a government authority asking to:
Compensate the complainant/victims for damages; and
Initiate proceedings for prosecution.
The Commission can also approach the Supreme Court or a High Court for directions, orders or writs.
The Role of NHRC Towards Protecting Religious Freedom
Some of the significant interventions of the NHRC, under the Chairmanship of Justice J. S. Verma, were extending legal aid to victims and recommending that five crucial cases be transferred to the Central Bureau of Investigation. One of the rape victims, most notably Bilkis Yakub Rasul, met the team headed by the Chairperson in a relief camp in Godhra from 19th to 22nd March 2002. She told the members that the police had informed the court that they could not trace the culprits and that the case would be closed. And this was accepted by the court in her absence.
Shri P.G.J. Nampoothiri, Special Rapporteur of the Commission in Gujarat, informed the Commission that Bilkis wanted to continue pursuing her legal options and file a case in the Supreme Court of India. A writ petition was filed by Bilkis Yakub Rasul in the Supreme Court and on 23 April 2019, the court directed the Gujarat Government to pay compensation and provide a job to Bilkis Bano.[xiv][xv][xvi]
In 2008, a three-member Special Investigation Team (SIT) was formed by the Supreme Court of India in response to a petition filed by one of the victims of the Gulbarg Society massacre during the 2002 Gujarat riots. In April 2012, the present Prime Minister (then Chief Minister of Gujarat) Narendra Modi was absolved of any involvement. This was despite amicus curiae Mr Ramachandran disagreeing with the report of R. K. Raghavan, who led the SIT.[xvii]
At the moment, the special leave petition filed by Zakia Jafri, the wife of former Member of Parliament Ahsan Jafri, who was killed in the riots is pending.[xviii] She is challenging the Gujarat High Court verdict which upheld the clean chit given to Prime Minister Modi and the other accused.
National Commission for Scheduled Castes and Tribes
Part XVI of the Constitution of India deals with special provisions for certain classes of persons. The framers of the Constitution were aware that some communities have been suffering from extreme social, educational and economic backwardness because of practices like untouchability. These prejudices were born out of primitive agricultural practices, lack of infrastructure facilities and geographical isolation. Therefore, special consideration was required not only to safeguard their interests but also to ensure their socio-economic development. These communities were notified as Scheduled Castes and Scheduled Tribes as per provisions in Articles 341 and 342 of the Constitution. Two constitutional bodies – the National Commission for Scheduled Castes (NCSC) and the National Commission for Scheduled Tribes (NCST) were formed.
The duties of the Commission for Scheduled Castes, under Article 338 (5) are as follows:
To investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under this Constitution or under any other law;
To inquire into specific complaints when a person is deprived of such rights and safeguards; and
To evaluate and advise on the planning process of the socio-economic development of SCs and present reports to the President with recommendations on how to protect and improve their situation.
The reports to the President are submitted annually or at such times the Commission may deem fit, are to be laid before both Houses of the Parliament. If a report relates to a particular state government, it shall be laid before the legislature of that state.
When a complaint is referred to it, the Commission has all the powers of a civil court trying a suit. It can:
Ask for discovery and production of any documents;
Receive evidence on affidavits;
Requisition any public or copy from any court or office; and
Issue commissions for the examination of witnesses and documents and any other matter which the President may by determine.
The National Commission for Scheduled Tribes also retains similar powers and functions under Article 338A of the Constitution.
The Role of the SC/ST Commissions Towards Protecting Religious Freedom
Like the National Commission for Minorities, the Commissions for Scheduled Castes and Scheduled Tribes also depend on the central and state governments. But special courts are set up under the judiciary to take up atrocities committed against members of the SC & ST communities. The SC/ST Commission has been key to setting up these courts that try cases under the Protection of Civil Rights Act, 1955 and the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. It is important to note here that according to the Center for Policy Research, “atrocities against members of the Scheduled Castes account for 89% of the crimes against SCs and STs combined.”[xix]
The SC/ST Commission conducted a study in 1990, called “Atrocities on Scheduled Castes and Scheduled Tribes: Causes and Remedies,” and it pointed out various causal factors:
Non-payment of minimum wages;
Caste prejudice and practice of untouchability;
Political factions on caste lines; and
Refusal to perform traditional works such as digging burial pits, arranging creations, removing carcasses of dead animals and beating drums; etc.
The deep roots of these atrocities are traceable to the caste system, which “encompasses a complete ordering of social groups on the basis of so-called ritual purity. A person is considered a member of the caste into which he is born and remains within that caste until death…”[xx]
Considered ritually impure, the SCs have been physically and socially excluded from mainstream society, denied basic resources and services, and discriminated against in all areas of life. Accordingly, they face various forms of exploitation, insults and violence as well as the degrading practice of untouchability.
The Scheduled Tribes were equally exploited on grounds of not falling within the caste system but having a distinct culture and worldview of their own.
“Women belonging to these castes and tribes bore double the burden. They were exploited by caste and gender, and were vulnerable and powerless against sexual exploitation.”[xxi]
The Supreme Court of India in State of M.P. & Anr. v. Ram Kishna Balothia & Anr.[xxii] upheld the constitutionality of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. This Act denies provisions of anticipatory bail to the accused. The court observed:
“The offences which are enumerated under Section 3 are offences which, to say the least, denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society, and prevent them from leading a life of dignity and self-respect. Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude.”
The main issue for the Scheduled Caste community, especially those who are not Hindus, Buddhists and Sikhs (SC Order 1950), have been exempted from various welfare schemes. This includes protection by the commissions for Scheduled Castes and laws like the SC/ST Prevention of Atrocities Act. This religious discrimination, as discussed earlier, has been criticised by the National Commission for Minorities and by the SC/ST Commissions.
What the Future Holds for Religious Freedom in India
Gandhi’s principles and ideals have always been an inspiration and example to countries and cultures beyond India in showing how unity in diversity works. Unfortunately, it is no secret that lately, Gandhi’s own country has witnessed an alarming rate of atrocities and persecution against its religious minorities.
On his birth anniversary, activist and lawyer Prashant Bhushan delivered a lecture organised by the Gandhi Peace Foundation in New Delhi wherein he remarked, “There is no doubt that Gandhi would have been aghast and dismayed at seeing the India of today. Could he have imagined that having freed India from British rule, more than 70 years later, our country and society would be reduced to a different form and more venomous servitude to falsehood, hatred and violence.”[xxiii]
After an analysis of the various functions and duties of all the above-mentioned Commission, it is clear that they need to be at the forefront, making the democratic system work. But the criticism they face exposes their lack of any real power. Even the manner in which their members are appointed is questionable since every incoming government just places their own mouthpiece at the helm.
A member of the Delhi Waqf Board told The Wire, “We must always doubt the credibility of the Chairpersons of these institutions because of their political affiliations.” He suggested that the government must strengthen the legal architecture of minority institutions and even consider introducing voting by common people within the community when it comes to (s)electing chairpersons.[xxiv]
However, we have equally seen the effectiveness these commissions have had, when conducting their inquiries and investigation. This has not only thrown light on the issues but also offered an independent and alternate view.
They have, more often than not, become beacons of hope, especially when times are tough. The response from the Delhi State Minority Commission after the 2020 Delhi riots in February, is another shining example of this when its 10-member committee submitted a report taking on the state and police hegemony for their lack of action and holding the perpetrators accountable.[xxv] The conclusion drawn by the State Commission from the evidence collected and examined may not be accepted by the government. But they still did their job and that gives a sense of hope to those who need it.
[ii] (2005) 6 Supreme Court Cases 690
[vii] Minorities Commission 1978-2015 Minor Role in Major Affairs
[xi] All India Reporter 1986 Supreme Court 733
[xii] NCM Annual Report 1998-99, p.40
[xiii] Writ Petition (Civil) No.180 of 2004
[xv] Writ Petition (Criminal) Np.118 of 2003
[xx] Parliamentary Committee on the Welfare of SCs & STs. 4th Report 2004-05, New Delhi, 2005, para 1.2
[xxi] Parliamentary Committee on the Welfare of SCs and STs, 4th Report 2004-05, New Delhi, 2005, 1.4)
[xxii] (1995) 3 Supreme Court Cases 221