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CONSTITUTIONAL EXPERT D.D. BASU ON MUSLIM MINORITY
61. This statement of the Author has been criticised...
May 2016

61. This statement of the Author has been criticised as an 'ipse dixit' by Mr: Noorani {Statesman, 27-6-1995. Mr. Noorani has not repelled any of the reasons given by this Author at pp. 400fT. of the 16th Ed. of the 'Introduction', viz.-(i) In the international sphere, the minority problem arose when the population of a country came to be directed against their will, by external circumstances, such as war, to another country so that the divided community which became a minority in another country needed safeguards to save them from ethnic extinction. On the other hand, the Muslims obtained the Partition of India on ·their own demand on the footing of the 'two-Nation' theory, and even after that Partition, a section of the Muslim community preferred to remain in India out of their own choice; nobody compelled them to remain in divided India {which was a creation of theirs}.

(ii When they opted to remain in divided India, they did not enter into any covenant with the Government of divided India No observation of Moulana Azad can be enforced as a legal covenant in an international court.

(iii) The leaders of divided India incorporated in their Draft Constitution certain safeguards for minorities, notwithstanding the Partition, because they refused to concede on principle, that the Muslims in India constituted a separate Nation. That India constituted one Nation whose unity and integrity must be maintained was proclaimed in the very Preamble of the Draft Constitution of divided India The Muslims who opted to remain in divided India did so with their eyes open to this Preamble and the safeguards for minorities included in that Draft .

These have ultimately been embodied in Arts. 25-30 of the Constitution as finally adopted in 1949. Hence, all the safeguards in Art 27 of the International Covenant are already embodied in the Constitution of India, viz., the right (a) to enjoy their own culture [Arts. 29-30]; (b) to profess and practice their own religion [Art 25(1)]; and (c) to use their own language [A:t. 29(6)1. If any of these rights are ~fringed, any member of the minority community can regally enforce them m the national. Courts under Art 32 or 226.1

(iv) But the Muslims and their advocates are not contended with this. They want things beyond what is already contained in the Constitution adopted by the 'People of India' {which included the Muslims who opted to remain in India}, e.g.) to eliminate or scrap Art 44 of the Constitution-which enjoins the Government of India to make a common civil code for all the people of India. The highest Tribunal of the land which is also to abide by Art 44 (by reason of Art 36), read with Art. 12, has been repeatedly reminding the Government of India of their duty to implement Art. 44, when half a century has elapsed since the adoption of the Constitution.

As against this, what covenant will a journalist produce before an international forum to establish the case of those who are still fostering the ghost of the 'two-Nation' theory, to disintegrate the unity of India, and to override the highest law of the land.

 

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