Who is a minority in Jammu and Kashmir? Simple math won’t tell you

On Tuesday, the Supreme Court gave three months to the Government of India to decide on a petition to grant minority status to non-Muslims in Jammu and Kashmir. 

A Bench comprising Chief Justice JS Khehar and Justices AK Goel and DY Chandrachud was hearing a public interest litigation (PIL) on why non-Muslims are not granted minority status in a Muslim-majority state like Jammu and Kashmir. 

The PIL was filed last year by Jammu-based lawyer Ankur Sharma. Minority status can help people avail benefits of various governmental schemes.

"In the absence of a minority commission, the benefits exclusively meant for the minority communities, including crores-worth aid, are being given away to a certain community, which is the majority Muslim community, in an illegal and arbitrary manner," a part of the petition reads.

STATE REACTION

The state has so far has baulked at granting such status to its minorities though it apparently doesn’t have any policy objection. Nor is it a polarising political issue.

According to Jagmohan Singh Raina, the convenor of All Parties Sikh Coordination Committee, both the Peoples Democratic Party (PDP) and National Conference (NC) promised minority status to the community. In its 2014 election manifesto, the PDP even pledged minority status for Sikhs. “But once they are in power, they forget about it,” Raina said.

The debate has two dimensions in Jammu and Kashmir: One, the national, and the other the local.  

The National Commission for Minorities Act, 1992, is not applicable to the state due its special status (granted by Article 370). So national minorities (including even Muslims) there don’t receive benefits under welfare schemes for minorities.

At the same time, J&K doesn’t have a state-level minority commission that can extend welfare benefits to state’s minorities. Nor is the state in the mood to set up one. One argument that the state government has proffered in SC is that it is not alone.

"As per information available, the states of Arunachal Pradesh, Goa, Gujarat, Haryana, Himachal Pradesh, Meghalaya, Mizoram, Nagaland, Orissa, Sikkim, Andaman, and several UTs have not set up a minority commission. The present petition only seeks its establishment in Jammu and Kashmir. In case the present petition has been filed in public interest, he should have prayed for its setting up in all these states," the government affidavit in the apex court read.

The state government asserted it couldn’t be forced to establish the commission by a court order as that would be “legally not maintainable”.

"It is for the state legislature to consider in its wisdom as to which laws are required to be made considering the circumstances prevailing in the state," the state government told the SC.

“Assertion of the petitioner for setting up a state minority commission in Jammu and Kashmir through proper legislation including time-bound identification and notification of religious and linguistic minorities by the state is legally not maintainable. It is up to the concerned state/Union territory to set up a minority commission in their respective state/Union territory.”

WHO STANDS WHERE

The thinking in the ruling PDP is that the issue is not only J&K-centric.  “Why only us? It is not only about Jammu and Kashmir. It is also about many other states,” Naeem Akhtar, a minister and the spokesperson of the state government, told Catch News.

It equally concerns the Sikh majority in Punjab and the Christian majority in North-Eastern states like Mizoram, Nagaland and Meghalaya.

Last year, responding to petitions by Shiromani Gurdwara Parbandhak Committee, which defended minority status for Sikh in Punjab in admissions in SGPC-run colleges, the SC asked why Sikh students, who belonged to the majority community in Punjab, should be given admission under the minority quota.

“Sikhs don’t seem to qualify for this (minority) status… neither on the basis of their numerical strength, nor on the basis of their financial status,” the court said.

In the historic 2002 TMA Pai Foundation judgment, the 11-judge Constitution Bench held that it is the State, and not the whole of India, which has to be considered as a “unit” for determining a community as a religious or linguistic minority.

“The State has to be regarded as the unit for determining "linguistic minority" vis-à-vis Article 30, then with 'religious minority' being on the same footing, it is the State in relation to which the majority or minority status will have to be determined,” the 2002 judgment had observed.

But so far the judgement has been observed in breach in states where some national minorities are in majority.

When asked what was the government’s objection to the grant of the rights to minorities, Akhtar cryptically said “perceptional”.

The ruling PDP also thinks that the minorities should be determined nationally, and not at the level of the state.

Some leaders in the party also play up the fact that J&K has three regions and all have three different communities in majority: Muslims are in majority in the Valley; Hindus in Jammu. In Ladakh, Muslims and Buddhists are more or less equal in numbers.

Now, in response to Supreme Court’s direction, the Union Minority Affairs Ministry formed a joint committee for the issue. While a secretary of the Union ministry heads the committee, J&K’s chief secretary and a National Minority Commission representative are its members.

But the issue is unlikely to be settled in the near future. The minorities in the state too are divided: Sikhs are doggedly against granting such status to Kashmiri Pandits and have threatened agitation in case they get it.

"Minority status to Kashmiri Pandits is in contravention to the guidelines set out by the National Commission for Minorities as far as the classification is concerned. Sikhs will have no option left but to launch an agitation to seek justice for the community," Jagmohan Raina said.

On the other hand, the BJP seeks minority status for Hindus in the state – who are in a majority in the Jammu province and constitute about 30 per cent of the state’s population.

This has made it difficult for the government to address the issue. But the latest Supreme Court order leaves it with little option but to act.

Edited by Joyjeet Das