Against communalism of the best-loser system - Lalit Mauritius

Name, religion, mother tongue, birth place and nationality (which I presume to be the place of origin of
the ancestors) [The 1952 Census Report]
The Report added -
“It should hardly be necessary to add that no single one of these criteria was by itself
deemed to be sufficient evidence of the ethnical character of a person, it was; as a rule, the
cosideration of a number of these in conjunction which decided of the classification.”
Due to the attitude adopted by the Respondents in the present case and their refusal to answer questions it
has not been possible to determine whether by their way of life they fall within the Hindu, Muslim or
Sino-Mauritian communities. They said they belong to a Mauritian community. When questioned about
their way of life most of the Respondents have stated that they live as other Mauritians do. They do not
find that they are different. Their names do not mean anything to them because they did not choose them,
these were attributed to them by their parents at the time they were born.
When examined by Counsel for the Applicant on their religious beliefs, the Respondents concerned have
consistently refused to give details. I note here that Counsel lay more emphasis on religion when
questioning them about their way of life.
Counsel for the Respondents has maintained that the burden of proof lay upon the Applicant to prove to
which community the Respondents belonged if Applicant was challenging the correctness of their
declaration. First I find that Applicant had made out a prima facie case by relying on the names of
Respondents. He had not yet made out his case on a balance of probabilities, but he had also alleged that
Respondents have made false declarations. I am of the view that Respondents could not sit back and not
file affidavits. They had to join issue with Applicant. This is not an ordinary civil case. It is a
Constitutional matter where Respondents have to meet the case entered against them. The evidential
burden also shifts on them to prove that they have been acting in good faith and to explain the reasons for
their action. It was not sufficient to elicit explanations from them only when they were submitted to
examination on personal answers. Applicant also contended that he has known Respondent No. 17, Ms.
Minerve, as a member of the Assembly for a long time and has never known her to be a Hindu.
Further the Electoral Commissioner was called to produce the nomination forms of the Respondents who
had been candidates in previous general elections. In 1995 Respondent No. 17 had declared that she was
from the General Population. Respondent No. 12 (now declared as Muslim) had in 1983 declared that he
was a Muslim whereas he declared his community to be Hindu in 1987. Respondent No. 6, Alain Ah Vee,
(now declared as Hindu) had in 1987 declared himself to be a Hindu. This consistency was only a matter
of chance as it was the result of the drawing of lots. As for Respondent No. 17 she claimed that in 1995
her party had imposed it on her to declare her community, which admittedly therefore is the General
Population.
Even if one were to apply the criteria used for ethnical classification in previous census forms, for
example, name, religion, mother tongue it would be difficult to determine the correction of the declaralion
relating to Respondents' community. As I have said, way of life can now be a Mauritian way of life.
Names can be a helpful indication. Many Muslim and Hindu names are actually Hindi or Urdu words that
have a specific meaning or connotation. For example Ram is the name of a Hindu deity, the hero of the
Ramayana. Similarly Christian names are often the names of saints in the Christian calendar. Chinese
names also have significance. But names by themselves, although they may offer a primary indication of
the way of life of a person, are not a determing factor.
As early as 1881 (paragraph 31 of the Census Report of 1881 which is the earliest available at the Central
Statistical Office) difficulties regarding proper classification of population were envisaged when many
members of what was called the Indian population were christened and adopted christian names.
Religion does not determine community and the Respondents refused to discuss their religion. Their
religious practices would have given a clue as to their way of life. Counsel for the Applicant, relying on
one of the dictionary meanings of “community”, stated that “community” is a body of people having a
religion in common (Concise Oxford Dictionary 9th Edition). He also called evidence to show that people
from the Muslim community must practice Islam. But he also faced a difficulty in that some Muslims do
not consider Ahmadis to be Muslims. This shows that it may not always be acceptable to equate
community with religion. Those Respondents who declared themselves to be Muslims refused to answer
whether they practised the Islamic faith. But it was also clear that they had declared themselves to be
Muslims as a result of the drawing of lots.
Finally, nowadays mother tongue or linguistic group is not very helpful to determine somebody's way of
life. The 1962 Census Form contained the following printed instructions -
“Mother tongue is the language spoken by the forefathers of the Respondent, the language
that has been spoken in his home when he was a young child. It makes no difference if the
Respondent does not speak that language now or if he has never spoken it”.
The latest Census form (GN 57 of 2000) required a person to state the language spoken by his ancestors
under “Linguistic Group”. The Census Guide and Instructions stated that it did not matter whether the
person speaks the language or not. A person was also required to state the language usually or most often
spoken by the person in his home. Again no information could be obtained from the Respondents on this
score and they refused that the particulars on their census form be disclosed. They could not be compelled
to answer questions.