Brings back minority commission in focus
B L Saraf
bushanlalsaraf@gmail.com
Admission to the inaugural batch of MBBS course of the Shri Mata Vaishno Devi Institute Of Medical Excellence (SMVDIME) has caused concern among some sections of Jammu and Kashmir society. It is alleged that the list ignores that section of population on whose donations the institute functions. They demand that justice should be done. We leave it to the better judgment of the LG , Manoj Sinha-Chairman of the Shri Mata Vaishno Devi Shrine Board which sponsors the Medical College-and Omar Abdullah -the elected Chief Minister of the UT to solve the matter to the satisfaction of all, having due regard for the composite demography and culture of the region.
It is incumbent on the Government and other stake holders to show seriousness in the matter and exercise restraint in the rhetoric, lest it spirals out in a controversy as to affect inter- community relations . Jammu and Kashmir can’t afford a sequel to the Amar Nath land row of 2008.
In the debate that has ensued in view of the admission to SMVDIME an argument has been raised that this institute should be classified as an Minority Institute so as to satisfy feelings of the aggrieved. That naturally resurfaces the issue of grant of Minority status to some disempowered sections of the population living in Jammu and Kashmir, so that the rights which flow out of the National Minority Commission Act accrue to them as a statutory consequence.
Soon after they were hounded out of their home in Kashmir, in 1990, the internally displaced Kashmiri Hindus raised a demand for grant of Minority status so that they are enabled to have benefit of the rights which flow under National Minorities Commission Act . They approached the National Minority Commission ( NC M whereupon the then Chairman wrote letter No ; No CH /4/ 98 / NCM Dt 12 01. 99, 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. Similar kind of communication was addressed to Omar Abdullah, when he was CM in his earlier stint.
The KP organization reiterated the demand before National Minorities Commission in 2011 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 Indians by our Constitution.”
In 1993 National Minorities were notified by the GOI, invoking Sec 2 (c ) of NCMA, which are Muslims, Christians, Sikhs, Buddhists and Parses’. 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. Legal position is well settled: both religious and linguistic minorities are to be considered state -wise.
Bal Patel’s case was for granting minority status to the Jain community. Bowing to their demand the UPA government did accord minority status to the Jain community in 2014 and Jains were included as a minority under Section 2 (c) NCM Act.
The Supreme Court said in a case reported in AIR 1958 SC, 956 that in case a law is applicable to the whole State minority must be determined by reference to the entire population of the State. Kerala High Court held in AIR 1965 Kerala , 75 (FB ) that any community ,religious or linguistic , which is numerically less than 50% population of the State is entitled to the fundamental right guaranteed under Art 30 of the Constitution.
Working group on good governance, constituted by PM Manmohan Singh and headed by Naresh Chander Saxena did recommend for setting up of State Minority Commission. Two NC 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.
Kashmiri Hindus are not alone in raising such a demand. Sikhs and Christians are clamouring 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 to look after the interests of the minorities and provide them their right share.
Many in Jammu province, also, seek minority status. A petition has been filed in the Supreme Court in 2017 which is under consideration. In one of its interim orders ,passed in March , 2017 the Apex Court termed this petition encompassing a “very very important issue “and 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 ……. .” 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. The J&K Reorganization Act of 2019 has materially altered the legal position : now N C M ACT is applicable to J&K .
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 .
This is the time that Government takes call and does justice to the ‘ real minorities ‘ in Jammu and Kashmir. It is more important lest the SMVDIME admission controversy repeats itself in future or finds a place elsewhere to erupt.
(The author is Principal District & Sessions Judge)
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