J&K: A Minority Commission for the Majority Community?

At a time when Hindu majoritarianism is being promoted by the BJP-RSS combine, a parallel move is also being whipped up which shows Hindus as minority being discriminated in Jammu and Kashmir. A three judge bench headed by the Chief Justice of the Supreme Court refused to direct the Jammu and Kashmir Assembly to enact a law setting up a minority commission for minorities in the state. The bench was hearing a petition [Ankur Sharma versus Union of India and Ors] filed in March 2017 challenging awarding of scholarship to Muslims of Jammu and Kashmir under Central schemes meant for the six communities declared as national minorities (Muslims, Sikhs, Christians, Buddhists, Zorastrians and Jains). The petition argued that Hindus in Jammu and Kashmir are unable to benefit from central and state welfare schemes for minorities, even though they constitute a minority in the state. The Chief Justice also contended that National Minority Commission Act does not apply to J&K as Muslims constitute a majority in the state. The petition thus wanted the apex court to give directions to J&K Assembly to set up a minority commission for Hindus.

Apart from the alacrity with which the Court took up this matter filed in July 2016 for hearing on March 27, 2017 while hundreds of other cases await disposal, the Court asked the Union Government to submit its position. In compliance with this order, the Union Ministry of Minority Affairs constituted a committee headed by its secretary and comprising other senior central and state officials. They reached a consensus that National Minority Commission Act is not applicable in J&K and it is upto the state Assembly to set up a minority commission. As for central scholarship, they were being awarded to Muslims declared national minorities under List III of the Seventh Schedule of the Constitution. The state Government in an affidavit also contended that it would consider constitution of a minority commission if it is needed. This submission by the state government has created yet another rift within the coalition government. BJP, which has been claiming minority status for Hindus of J&K and hurting from failure to fulfil its electoral promises to the electorate in Jammu, now alleged that BJP members in the cabinet or the government were not consulted before the state government submitted its affidavit.

While trouble within the coalition is a continuing saga, the issue of minorities and who and what constitutes minority continues to bedevil deliberations. The apex court has laid down the principle of safeguarding the educational rights of the minorities in a state as flowing from Article 30(1) of the Constitution. Its decision commenced with Kerala Education Bill Case [1957] wherein, it was observed that the minority must be determined by reference to the entire population of that State. It was followed by the DAV College Case and climaxed by the TMA Pai Foundation Case. The SC had to give its ruling again in the Bal Patil & Anr vs Union of India & Ors Case (2005). It upheld its earlier position that “since reorganization of States in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put on par in Article 30 have to be considered State wise. Incidentally, ‘Scheduled Castes’ and ‘Scheduled Tribes’ are also to be identified at the State/UT level. In terms of Articles 341 to 342 the President is empowered to draw up a list in consultation with the Governor of each State subject to revision by Parliament. To define minorities State-wise in line with several Supreme Court judgments, the then UPA government in 2004 attempted to introduce The Constitution (103rd Amendment) Bill 2004. The Bill sought to have State-wise minority status rather than national status.

However, these judgments are more amenable to application in a linguistic state than in a state which actually comprises three distinct regions which were brought together due to quirks of history in 1846. In terms of religion and language, there are vast demographic dissimilarities. While Hindus constitute a minority in J&K, they are an overwhelming majority in Jammu. Thus majority and minority character changes at the national, state, region, level; where the Hindu “minority” in Kashmir becomes a majority in Jammu. Besides, one has to keep in mind the power equations between communities when all the top echelons of the administration are mostly manned by non-Muslims and the military force is predominately non-Muslim. A feature of state-sponsored communalisation in J&K is provided by the patronage extended to the Vishwa Hindu Parishad, Bajrang Dal and Shiv Sena – including allowing them to hold arms training camps for their members in what is a “disturbed” area – to manning village defence committees in Doda and Kishtwar with 95 per cent of the 29,000 members non-Muslims, mostly drawn from the Bajrang Dal or SS, and a state where Muslims of J&K are singled out for military suppression.

Besides, economic and social data shows that the districts which fare worst on any social indices are Muslim majority districts of Jammu (and even Kargil). These districts are far worse off than the Hindu majority districts of Jammu or Buddhist dominated Leh. Notwithstanding this, former Chairman of National Minority Commission Wajahat Habibullah has pleaded for extending the NCM Act to J&K, rather than constitute their own minority commission, so as to address the concerns of those groups who feel left out of welfare schemes.

The thing to note is that in no other state where a national minority constitutes a majority is there a demand for setting up a minority commission for state level minorities. The demand in Nagaland for instance is for setting up a minority commission to ensure welfare of national minorities. This demand to identify minorities at state level and set up a minority commission rears its head only where J&K is concerned.

In this game of one-upmanship, what is missed out is the absence of any solution of the unresolved dispute and continued military suppression, which contributes and causes economic hardships faced by all sections of people in J&K.