Daily Times

As India bursts with new communal fury, I took the time to take a short walk from Lincoln’s Inn to visit Dr B R Ambedkar’s bust at London School of Economics and Political Science over by Holborn in London. That great constitutional jurist of the subcontinent who is hailed as the father of Indian constitution is equally important to us Pakistanis though no textbooks mention him. Ask any average Pakistani who Ambedkar was and they would have no clue. In many ways Ambedkar was India’s Sir Zafrullah Khan but his importance to Pakistan is so significant that his omission from our collective memory is one of the many reasons we are perpetually confused as a nation. For one thing it was Ambedkar’s second in command Jogindranath Mandal who Jinnah specifically chose to become Pakistan’s law minister just as Ambedkar was chosen to hold that portfolio in India. Jinnah had hoped that Mandal would bring the kind of balance to constitution making that was required in a state that was founded on a principle that was far more nuanced than the simplistic ideologues on both sides have made us believe. Unfortunately we drove Mandal away soon after Jinnah’s death. Ambedkar was also important because he had been a consistent ally of Jinnah and indeed the Muslim League since the roundtable conferences and had even joined Jinnah, along with Periyar, on the day of deliverance at the end of Congress rule in 1939.

Ambedkar held that Muslims and Hindus had met on battlefields and had always a relationship of the conquerors and the conquered which had led to a parallel development of the two communities

More importantly though it is not well known that the clearest articulation of what is now known as Two Nation Theory came from Ambedkar. This is of course Chapter XII of his book “Pakistan or Partition of India.” Jinnah had referred to this book during his talks with Gandhi, not the least because in the Chapter XV of the book Ambedkar gives a formula that would have resolved the communal puzzle and which Jinnah seems to have endorsed. As India’s Hindu majority turns on its Muslim minority and ultra nationalists in Pakistan trend #ThankyouJinnah, a trend that would have at best embarrassed Jinnah if he were alive today, it is important to revisit what Ambedkar had to say vis a vis the so called Two Nation Theory. Ambedkar held that Muslims and Hindus had met on battlefields and had always a relationship of the conquerors and the conquered which had led to a parallel development of the two communities. He mentions that Muslim leaders had forwarded the idea of safeguards but had reached a dead end. It was therefore natural that they would now seek to change their minority status into a national one. He wrote that the pull of this idea was so powerful that even a man like Jinnah, the former Ambassador of Hindu Muslim Unity and a staunch Indian nationalist, had been shaken and taken over by it. Thus Ambedkar laid the case for a divided society which Hindus and Muslims were and to find a constitutional solution to the impasse. Events of the last few weeks has confirmed Ambedkar’s thesis of a divided society.

Jinnah’s solution was to create an autonomous Muslim majority federation and then bring it into a confederation or a treaty union with the rest of India. We know of course that by accepting the Cabinet Mission Plan, Jinnah agreed to a federation with autonomous groupings of Muslim majority provinces. It was an important climb down from a confederation to a federation which those who are well versed in constitutional law and niceties can imagine.

Ambedkar gave his solution in form of a draft “Government of India (Preliminary Provisions) Act. Clause VI of the draft reads: “VI.-(1) In the event of two separate constitutions coming into existence under Section Four it shall be lawful for His Majesty to establish as soon as may be after the appointed day, a Council of India with a view to the eventual establishment of a constitution for the whole of British India, and to bringing about harmonious action between the Legislatures and Governments of Pakistan and Hindustan, and to the promotion of mutual intercourse and uniformity in relation to matters affecting the whole of British India, and to providing for the administration of services which the two parliaments mutually agree should be administered uniformly throughout the whole of British India, or which by virtue of this Act are to be so administered.

(2) Subject as hereinafter provided, the Council of India shall consist of a President nominated in accordance with instructions from His Majesty and forty other persons, of whom twenty shall be members representing Pakistan and twenty shall be members representing Hindustan. (3) The members of the Council of India shall be elected in each case by the members of the Lower Houses of the Parliament of Pakistan or Hindustan.” He goes onto write by way of explanation: “The scheme of separate referenda of Muslims and non-Muslims is based on two principles which I regard as fundamental. The first is that a minority can demand safeguards for its protection against the tyranny of the majority. It can demand them as a condition precedent. But a minority has no right to put a veto on the right of the majority .to decide on questions of ultimate destiny. This is the reason why I have confined the referendum on the establishment of Pakistan to Muslims only. The second is that a communal majority cannot claim a communal minority to submit itself to its dictates. Only a political majority may be permitted to rule a political minority. This principle has been modified in India, where a communal minority is placed under a communal majority subject to certain safeguards.”

There was 10 year interlude after which Pakistan could secede completely or remain in the Indian Union. The possibility remained that there would be a confederation of India sitting atop Pakistan and Hindustan. This was also Jinnah’s vision. The real question is whether we can salvage some of this today? What would Ambedkar’s subcontinent look like? India passed the CAA implicitly accepting the logic by extending flexible migration to Hindus of Pakistan. The entire government of Pakistan is up in arms against the mistreatment of Muslims in India. Would it not make sense then to have a common South Asian Court of Human Rights sitting atop both or even all three nation states of the subcontinent established by a tripartite treaty between Pakistan, India and Bangladesh?

The writer is an Advocate of the High Courts of Pakistan