In an earlier article, we had taken a look at the minority rights provided in the Constitutions of several European countries in the early 20th Century, specifically after World War I. That previous article was in response to a post that claimed the type of privileges given in the Indian Constitution was similar to the rights granted in most European nations that had similar concerns about minorities. We had seen how each of the countries have created the clauses in their Constitutions in such a manner that the rights enjoyed by minorities are protective in nature, and only ensures their equality with the majority. None of the rights granted are privileged in that they are granted ONLY to the minorities and not to the majority.
The basis for many of the minority clauses of the East European nations after the World War I was the ‘Minorities Treaties‘ ensured by the League Of Nations. The Council of the League Of Nations met numerous times in the 1920s and ensured that countries such as Albania, Austria, Bulgaria, Hungary, Greece, Latvia, Poland and others provided minority rights on the grounds of language, race and religion. During these Council sessions there was a lot of discussion around the nature of the rights to be provided and indeed on the definition of ‘minorities’ itself.
A few insights given by some members of this Council will be very helpful in determining the intent of the Council which of course later translated into specific protective rights in their respective Constitutions.
In the 37th session of the Council, held on the 9th of December 1925, De-Mello Franco was responding to the suggestions of various members and explaining the purpose of the minority rights. A suggestion had been put forth that the minorities must have utmost autonomy and possibly the right to even form a federation of minorities. The following is how De-Mello Franco summed up the input.
“According to other views, it is necessary also to recognise their right to organise
themselves, even their right to autonomy — a right which might go so far as to enable them to constitute a kind of federation of minorities, with all the characteristics of a legal entity……”
(Notice the eerie familiarity such an arrangement has with the ‘commissions’ that exist in the country today)
De-Mello Franco’s response was as follows.
“I do not think that this conception can be carried into effect without giving rise to dangers which would threaten the moral ends towards which the system of protection instituted by the Minorities Treaties is tending.
It seems to me obvious that those who conceived this system of protection did not dream of creating within certain States a group of inhabitants who would regard themselves as
permanently foreign to the general organisation of the country. On the contrary, they wished the elements of the population contained in such a group to enjoy a status of legal protection which might ensure respect for the inviolability of the person under all its aspects and which might gradually prepare the way for conditions necessary for the establishment of a complete national unity“
In other words the rights must be protective in nature and the primary aim must be to move towards complete integration and equal treatment of all citizens.
Subsequently in the discussion, Austen Chamberlain re-emphasized this principle in the following way.
“It was certainly not the intention of those who had devised this system , as De Mello-Franco had remarked, to establish in the midst of nations a community which would remain permanently estranged from the national life. The object of the Minority Treaties, and of the Council discharging its duties under them, was, as M. de Mello-Franco had said, to secure for the minorities that measure of protection and justice which would gradually prepare them to be merged in the national community to which they belonged”
In an earlier meeting held on the 16th of September 1925, a Lithuanian delegate, Galvanauskas, had posed a question on the exact definition of minorities and the exact purpose of such rights. One part of his proposal for the meeting was
“One object to be gained in this way would be to secure a better definition of what
constitutes a minority”
Responding to this, the Greek representative, Dendramis, stated the explicit purpose of the whole exercise and the exact nature of the rights that were to be granted. His definition was as below.
“As regards the second, the answer was contained in Minorities Treaties, as they gave a
definition of the word ‘minority’, A perusal of the treaties showed that the minorities
concerned were racial, linguistic and religious minorities. The authors of the treaties had
not intended to create groups of citizens who would collectively enjoy special rights and privileges; they had intended to establish equality of treatment between all the nationals of a State. If privileges were granted to the minority in any country, inequality would be created between this minority and the majority ; the latter would be oppressed by the minority and it would then be the majorities question which would have to engage the attention of the League of Nations”
The explanation is simple and clear. The purpose of the rights were to ensure that there was no oppression or denial of opportunities. It was to provide *equal* opportunities. And most definitely not to give special privileges.
It is a sad state of affairs in our country that, although the inspiration for such rights in our Constitution have been derived from the Constitutions of European nations, the spirit of those rights was not borrowed in both the drafting of the articles and their interpretation by the courts.