By B L Saraf
J&K Government has told Supreme Court that implementation of National Commission for Minorities Act 1992 (Act) is not binding on it and” it is sole prerogative of the State Legislature to take decision on this aspect that State Government will consider and examine the need and feasibility of setting up of State Minority Commission at the relevant point of time as and when need arises based upon the critical study of the social and educational backwardness of the minorities spread across various regions of Jammu and Kashmir.” Media reports that this was conveyed in an affidavit filed in reply to the petition, filed for seeking directions to the State Government to institute a Minority Commission and explain under which law minority benefits were granted to some sections of the State’s population when Act was not applicable to J&K..
Matter is pending consideration before he Apex Court. We will have to wait for its orders. Nevertheless, after going through the contents of the Government’s plea (as reported in the media) couple of disturbing thoughts cross one’s mind ,that should make him apprehensive of the State’s intentions.
When asked to explain under which law it was granting benefits, reserved for the minorities, to a section of population in the State – which numerically constitutes a majority here- the Government took a stand that the section stood notified as a ‘minority’ by the Central Government under provisions of the Act and benefits flow to them under welfare schemes of Union Ministry of Minority Affairs. Applicability of these schemes, according to the State Government, was not related to the applicability of the Act. Then it is said that some of the benefits accruing to the minority (majority in J&K) flow from Prime Minister’s 12 Point Program for the welfare of minorities “in spite of the fact that the Act is not applicable to the State of J&K.”
State Government admits that Central Government notifies ‘minority ‘ under the Act. Then, argues that Central Minority welfare schemes, which benefit local majority community, flow independent of the Act. Could it be so? We leave it to the judgment of Apex Court.
Government makes a case for not granting minority benefits to the ‘ real minorities ‘ in J &K as there in no law to support the scheme, and the Act isn’t applicable here. But relies on the Act to bestow benefits to the majority ‘under the garb of a ‘ minority ‘ definition. It is Government’s stand that it grants benefits to the ‘ majority community ‘ in the State because the Act has notified it as a ‘minority’.
This is a curious case of law making virtual a real and turning a real into the virtual Government should know that ‘Minorities” are nowhere defined in the Constitution. It is only under Section 2 of the Act Central Government is empowered to notify the”national minorities” for the purpose of the Act. If our Government does not believe in the Act – as admittedly it is not applicable here – how come it has no compunction to derive benefits out of it for a section of community as a minority which in numerical terms constitutes a majority’ in J & K. No one can be permitted to approbate and reprobate at the same time.
Minorities in J&K have been making a demand for the grant of statutorily assured benefits available to the minorities elsewhere in the country. A day after State Government’s stand in the Supreme Court was known, former Chairman of the National Commission for Minorities (NCM), Wajhat Habibuallh advised State Government to extend jurisdiction of NCM to J &K, as he had been telling them in the past, when he was the Chairman. He describes the demand of the State minorities as genuine. In 1999, the then Chairperson of the NCM Tahir Mahmud had written to Farooq Abdullah- then CM – inviting his attention to the miserable condition of the minorities in the State. In one communication he wrote” Our Hindu brethren are in 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.” (No CH/4/ 88 NCM dt 21 01 1999). It evoked no response.
In TMA Pai Foundation case (2002) 8 SCC, 481 Supreme Court held that since India has been reorganized on the linguistic bases, therefore, for determining minority the unit has to be the State and not whole of India. Both religious and linguistic minorities are to be considered State wise. In Bal Patil’s case (AIR 2005 SC 3172) the Apex Court has made job of the State Government easy by defining Minority thus;” 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 are likely to gain power in a democratic form of Government based on election.” It is for the State Government to act in this direction.
We witness a strange spectacle of two alliance partners, sworn to the Agenda of Alliance, speaking in different voices. Deputy C M, a BJP nominee, has feigned ignorance about the affidavit. It reflects badly on the governance of the sensitive State like J&K where a senior Minister is, allegedly, kept at a bay while State files its response to a matter of vital political and administrative importance.
Government says it will constitute a Minority Commission” as and when need arises.” As if time has not come! Tahir Mahmud had enough Data before him, in 1999, when he noticed miserable condition of the minorities in J&K and invited the then C M’s attention to it. Nothing moved then. On the available indications nothing is likely to move even now. May Supreme Court and the Central Government show some concern for the ‘real minorities’ of the State.
(The author is a Former Principal District & Sessions Judge. Feedback- [email protected] )