The issue of minority status for Pandits

By K.N. Pandita

Chairman National Minority Commission has opined that Kashmiri Pandits should be given the status of a minority community. This status is granted only by the Union Home Ministry. There are six communities in the country which have been accorded minority status with Jains being the recent entry into the list after Muslims, Christians, Sikhs, Buddhists and Parsees.

Since the matter of minority status to Kashmiri Pandits pertains to a group of the citizens of J&K where Article 370 of the Constitution is applicable, the Home Ministry cannot bypass the State government even if it wants to include the Pandits in its list of national minorities.

Previously also, Wajahat Habibullah, the then Chairman of National Commission for Minorities had written to the Home Minister and also to Dr. Farooq Abdullah, the then Chief Minister of J&K, that Kashmiri Pandits deserve to be given the minority status. Neither of the two reacted.

In February 2014, while tabling an Action Taken Report on ‘Rehabilitation of Jammu and Kashmir Migrants’ in Rajya Sabha, the 31-member Committee comprising 10 MPs from Rajya Sabha and 21 from Lok Sabha, had been critical of the Ministry of Home Affairs for not deliberating on minority status to the Pandits. It had also strongly criticized the Home Ministry on other matters like providing relief, employment, housing and health care facilities to the “migrants” from Kashmir who it said comprised 59,442 families scattered all over the country after their exodus from Kashmir valley.
The Parliamentary Panel had formed a 14-member sub-committee which went into the action taken by the Home Ministry to its recommendations made in the 137th report.

The Committee said that several representations were made by various “migrant” organizations asking that Kashmiri Pandits be declared as minority. The panel said it was informed by the Union Home Ministry that the State Government’s stand was that “the migrants belong to Hindu religion and as such do not qualify for grant of minority status.” The Committee said that the State Government “feels that the issue of granting minority status to the Kashmiri Pandit community needs to be examined from all angles”.

“The Committee said it feels that the State Government has a special status in the Indian Constitution. The Government of Jammu and Kashmir should look into the demand of the Kashmiri Pandits for conferring on them minority status keeping in mind their pitiable condition.”

Before we proceed with this discourse, let me make it clear to all stakeholders that the remark “pitiable condition” made by the Committee has no relevance to the main question of minority status. This status is not granted on the basis whether a community is “pitiable” or not. And for that matter, Kashmiri Pandits abhor to be called “pitiable” because what the Indian State or the J&K State has done to them is shameful and unworthy of a secular democracy.

The legal position is that the NCM Act of 1972 does not extend to the State of Jammu and Kashmir as it is yet to be ratified by the State Assembly. The State enjoys a special status and Central Acts do not come into force automatically unless ratified by State Legislature.

Once a community is granted minority status, it gets a share in Centre’s 15-point programme in which funds are earmarked for welfare and scholarships for minorities.

The report of the 14-member sub-committee of the Parliamentary Panel submitted to the Government of India in February 2014 comprehensively deals with a variety of issues of Kashmiri Pandit community forced out of their homes as a result of armed insurgency of religious extremists elements. Unfortunately, no meaningful action has been taken by the Government of India on that report.

Leaving other issues aside for the time being, we would like to reflect on the question of minority status to Kashmiri Pandits. The stand of J&K Government is that the Kashmiri Pandits are Hindus and as part of the large Hindu majority of India, they do not qualify for minority status.

The Constitution of Jammu and Kashmir does not recognize any community as a minority community on any count, religion, language, culture or ethnicity. However, by upholding J&K Muslim community as part of national minority, it has strongly projected the share of this community in the rights and privileges of national minority communities.

This means that the State recognizes the concept of “minority groups” in national context but it declines to recognize the principle in the context of state minorities. It is contradiction in terms and hence untenable. If the State government sticks to no-minority concept for the State, it should maintain the stand in national perspective also.

Again the State government has emphatically stood by the policy of treating the Muslims of the State as a majority group on State level and has tenaciously upheld the primacy of the group in enjoying all rights and privileges accruing to it by virtue of being in majority. The simple logic is that when you provide rights and privileges to a group on the basis of it being in majority, there has to be a minority as well which is indirectly told that it has to give primacy to the majority group. The primacy of majority group is cognizable only when there is a minority group. The light is recognizable only when there is darkness. But when you decline darkness, light makes no real sense.

This stance of the J&K Government is clear repudiation of the no-minority concept of J&K Constitution. If the J&K Constitution and Article 370 are to be enforced in letter and in spirit, then the State government should withdraw all privileges and facilities extended to the Muslims of the State as part of a national minority.

The question is not whether the Pandits should be recognized a minority or not. The real question is what is the status of the State Muslim community in the context of national classification of minorities? Once that is settled, the status of Kashmiri Pandits will become a corollary of that decision. This case is under the consideration of the Supreme Court of India and the decision is awaited.

It has to be reminded that Kashmiri Pandits raised the issue of their minority status with the Working Group on Minorities at the UN Human Rights Council (Commission) in Geneva about a decade ago. After duly considering the available constitutional provisions at national and state level, the Working Group recommended that an additional definition of “Minority” group could be devised and called “Reverse Minority as in the case of Kashmiri Pandits.” This definition has ever since been upheld in UN documentation wherever reference is made to Kashmiri Pandits.

In final analysis, firstly, we shall have to wait for the verdict of the Supreme Court on the petition demanding the defining of constitutional status of the Muslim community of J&K. Secondly, the Government of India would be well advised to broaden the scope of definition of a “Minority” as given in the Constitution of India particularly in the light of Article 370. Maybe there are some more communities in the country besides Kashmiri Pandits that fall in the category of “Reverse Minority.” Thirdly and perhaps most importantly, the Constitution of Jammu and Kashmir will have to be amended in a way that minority communities are recognized and given that status in accordance with the Universal Declaration of Human Rights and the provisions of the Indian Constitution of protecting the rights of minorities.

It has to be reminded that the factual position of entities and identities in Jammu and Kashmir cannot be brushed aside with a single stroke of pen. Religious, linguistic, sectarian and ethnic minorities of the entire state have to be recognized and meted out equitable justice. Moreover, classification of majority and minority groups has to be on regional and even sub-regional and not national basis because India is a mosaic of identities. Recognition of identities is a forceful demand and a close examination of the case will show that it has already been recognized by the J&K State through the instrumentality of categorization of the citizens of the State.

Winding up the discourse let me remind my readers that the UN Charter of Human Rights stipulates that human rights are essentially the product of the rights of minorities of various denominations. Consequently, when a State like Jammu and Kashmir totally rejects accepting any group as minority, it grossly violates the human rights of ignored and marginalized minorities. That is the present stand of Kashmiri Pandits.

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