B L Saraf
In a petition before it the Apex Court, terming it “very very important issue “, asked “the Centre and Jammu and Kashmir Governments to sit together and take a considered decision on setting up of a minority commission for the state , and decide if Muslims can be treated as minority in the state where they outnumber other religious groups.” The petition has been filed for seeking a direction to the state to set up a minority commission to safeguard the interest of religious and linguistic minorities. Petitioner wanted to know, as National Commission for Minorities Act (NCMA) was not applicable to the J&K and there being no analogous law available, how could the majority community receive benefits under the Central schemes meant for religious and linguistic minorities identified under the Act.
The issue, indeed, is of immense importance. Therefore, it requires to be dealt with comprehensively. Broadly speaking, it has two dimensions. First, whether Muslims in J&K are a ‘Minority ‘ within the ambit of NCMA; Second; whether there is a need for such a law in the State to identify the real minorities and grant benefits to them. Latter assumes significance because “the real minorities “in the State have been asking for such a law.
It is an admitted position that NCMA is not applicable to our State. Successive Chairmen of the NCM have brought this fact to the notice of Farooq Abdullah and Omar Abdullah, when in CM’s chair. Their communications emanated on the representations made by Kashmiri Hindus, for identifying them as religious minority in the state.
It may be pertinent to mention here that ‘ minority ‘ is nowhere defined in the Constitution of India or in the state constitution. However, in 1993 National Minorities were notified by the GOI, invoking Sec 2 (c ) of NCMA, which are Muslims, Christians, Sikhs, Buddhists and Parses’. But, due to the non-applicability of NCMA, this Notification will not help cause of the residents in J &K and no entitlement will flow to the any section of the State’s populace. Therefore, one see merit in the contention that in J&K ‘ money is spent on ‘ unidentified minorities.’
When a KP organization approached National Minorities Commission with a demand to consider Pandits as a minority for the grant of benefits admissible to the minorities under NCMA, Wajahat Habibullah, then Chairman , referred to the decisions of the Supreme Court rendered in Bal Patel and TMA Pai cases; and then , vide his DO No – CH / NCM / 9-5 / 2O11, Dated May 6, 2011 , advised the organization to approach the Central Government” so as to draw upon the guarantees extended to all Indian by our Constitution.”It becomes, therefore necessary to examine these decisions to have some idea of the things.
In Bal Patel’s case AIR 2005 SC 3172, the Apex Court observed, “Minority as understood from the constitutional scheme signifies an identifiable group of people or community who were seen deserving protection from likely deprivation of their religious, cultural and educational rights by other communities, who happen to be in majority and likely to gain power in a democratic form of the Government based on election.” Earlier, the Court in TMA Pai foundation case – (2002) 8 SCC 481 – gave meaning and content to the expression ‘minority. used in Article 30 and said that minority mentioned herein covers both religious and linguistic minorities, because India was reorganized on the linguistic basis. In this Article both linguistic and religious minorities have been put on par.
Then, Supreme Court held, “since India has been organized on the linguist basis, therefore for determining minority the unit has to be the State and not the whole India. Both religious and linguistic minorities are to be considered state – wise.”
Working group on good governance, constituted by PM Manmohan Singh and headed by Naraesh Chander Saxena did recommend for setting up of State Minority Commission. Ajay Sadhotra and S M Bukhari – then MLAs moved private members Bill No 12 of 2006 in the State Assembly for constitution of a State Commission of Minorities, with a view to safe guard, protect and ensure development of minorities in the State. The Bill, however, was not carried through.
In his letter No; No CH /4/ 98 / NCM Dt 12 01. 99, then Chairman of Minority Commission wrote to CM Farooq Abdullah “…….. Our Hindu brethren are a minority in J&K State …… We owe them the sacred responsibility of all that is necessary to protect their lives, properties, human rights and civil liberties. Dr Tahir Mehmood – former Chairman of National Minorities Commission – made a public declaration on 3rd March 1998, that Hindus In Kashmir are a “Minority “. State Government must constitute Minority Commission for them; or, in the alternative get the NCMA extended to the State. Alas! the advice went unheeded,as did the one made by Wajhat Habibuallah.
Kashmiri Hindus are not alone in raising such a demand. Sikhs and Christians are clamoring for it. They have made several representations to the State Government. In fact, Ghulam Nabi Azad, as CM, acknowledged the merit of the demand. While addressing a gathering of Christian Community in Jammu, in April 2006, he announced that Minority Commission would be set up in the State, shortly, to look after the interests of the minorities and provide them their right share. (DE 17. 4. 2006)
United Nations declaration on Rights of Minorities, which General Assembly adopted recalling Resolutions 46/115 of 17. 7. 1991, 1992 / 16 of 21 February 192 and 1992 / 4 0f 20. 7. 1992 of the Commission on Human rights vide Articles 1.1, 1.2 and 2.3, cast a duty on the State to protect the existence and social ethnic, cultural and linguistic identity of the minorities within their respective territories – and calls upon the State to adopt appropriate legislative and other measures to achieve these ends.
We are sanguine that in deference to the Apex Court and to honor missives of the Commission the Governments at the helm will do justice to the ‘ real minorities ‘ in the State. We appreciate that the task is, undoubtedly, complex and daunting one. The complexity arises due to the peculiar region-wise and community -wise composition of the State. But then J&K is constitutionally and politically one federating unit with the Union federation. True, administratively the State has two provinces – divisions. So has states like UP and others. Here, the pronouncements of the Supreme Court should come handy, when they say that for identification of minorities the enumeration has to be done at the state level.
If not for anything else, at least for upholding sanctity of Sec 13 read with Section 25 of the State Constitution which insist upon promotion of welfare of people and secularism, consistent with the provisions of “Naya Kashmir”, State Government has to take a call .
Then there is a riddle. Will a state Government, which is hesitant to adopt G S T Act on the obsessive reference to Article 370 of Union Constitution, have NCMA extended to J &K -to allow minority benefits to the majority community?
Answer is any body’s s guess. Really, we are in interesting times.
(The author is Principal District & Sessions Judge)
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