Minority Rights and Rehabilitation of Kashmiri Pandits

(text revisited on Oct. 30, 2009)

By K.N. Pandit,

A clear cut definition of “Minority” as a component group of a given society has remained elusive.  At the United Nations, the Commission for Human Rights (now called Council for Human Rights) has been grappling with precise definition. The reason is that situations develop in different parts of the world in which a particular group of population suddenly gets disempowered and dispossessed. In more frequent examples the affected people could be political victims. It becomes difficult to define their category. Besides, there are many other circumstances that throw up an isolated segment of population.

Generally speaking numerical strength is taken a factor for determining a group as majority or minority. But if large groups are accepted as minorities and clubbed together, they might over-strip the majority group. In a multi-ethnic, multi-religious and multi-linguistic country like India, the minorities when clubbed together are likely to claim large political power, social recognition and economic priority. Would they still be called minorities and deprived segments? 

United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by General Assembly vide resolution 47/135 of 18 December 1992, preamble paragraph 6.states that persons belonging to national or ethnic, religious and linguistic minorities are “an integral part of the development of society as a whole and within a democratic framework based on the rule of law. It is necessary to maintain or build harmonious and respectful relations among a society’s various components.” This Declaration somehow suggests classification of minorities into four groups, national, ethnic, religious and linguistic.

But there is definitely sub-division of these groups again into majority and minority. Hindus in India are in a majority but Jains and Buddhists are in a minority. Sunnis are in a majority in Kashmir but Shia are in a minority. Likewise within Sunni fold, the Ahmadiya are a minority. In Pakistan they are not accepted as Muslims. What is their status then in terms of majority/minority classification?

In general terms one may say that a section of civil society somehow discriminated against for a variety of reasons and disempowered through various machinations would be entitled to the minority category while those enjoying power and influence fall into the category of majority.

It is universally recognised that minorities are generally deprived of many rights and become a victim of the politics of majoritarianism.

Realising this fact the original name of UN Human Rights Commission was Commission for Minorities. It is actually the minorities who are made to suffer disabilities in regard to their rights and privileges.

In a discussion on Minority issues the focus has to be around three core elements:

  • Identification of challenges and problems facing minorities;
  • Identification of good practices in relation to minorities and political participation; and
  • Consideration of opportunities, initiatives and solutions.

The foremost requirement in addressing the minority issue is the identification of challenges and problems facing them. These could be in more than one way. Security to life and property is what the constitution provides very emphatically. The failure of a government to uphold this primary stipulation of the constitution disqualifies a government from wielding power and authority.

Apart from this fundamental obligation, the governments are required to provide space to the minorities for development of their culture and traditions in a manner that satisfies them but without impinging upon the culture and traditions of other communities.

The second element of a dispassionate discussion of Minority issues is the good intentions and good practices on the part of the ruling apparatus in creating space for the minorities to enable them to enjoy their rights and privileges. It is not a matter of humanism or obligation to the minorities; it is the constitutional and institutional duty of the ruling group to ensure implementation part of the rights of minorities.

The vital issue is that of political participation of the minority. That fully ensures implementation of their rights and privileges. Who is to allow a minority political participation? Obviously it is not a political party and its leadership whether in power or in opposition is competent to do that. It is the constitution that has to provide for the political participation of a minority. The rights and privileges of the people of Jammu and Kashmir had to be safeguarded through constitutional instrument called Article 370 of the Indian constitution. This is above political parties and groups that may or may not wield influence in running the affairs of the Indian state.

This basic approach to the question of political participation of minorities should get reflected not only in the constitution of J&K State but also in the affirmative action of the ruling apparatus from time to time. A Legislative Assembly cannot claim to be representing the civil society if it leaves a minority out of the fold of legislative, judicial and administrative participation.

The third element is of opening opportunities and taking initiatives for the integration of minorities into the broad spectrum of national mainstream. Major responsibility rests on the shoulders of popular leadership. As opinion builders and path-breakers it is they who should have fertile brains to suggest opportunities and initiatives. Creation of an atmosphere of cordiality and peaceful coexistence among minorities and the majority with the objective of contributing to nation building process is what should become a priority with national and regional leadership. Interaction with minority has to be on an even keel with the majority group because the objective is contributing to the process of building the nation.
It is the duty of popular leadership to guide the society in times of crisis and not run away from the field of operation. The crisis of society is the crisis of leadership. Leadership obtains strength from the masses of people and a crisis overtaking the masses of people will first of all shake the foundation on which state political leadership rests.

In the framework of the themes listed below, we need to consider current practices and ways to increase the effective participation of minorities in policy- and decision-making processes and institutions:
It is for recognised political parties to delineate their role in how to ensure adequate representation of minorities in “mainstream” political parties?  The parties involved have to reach the minority communities if they mean to work for the society as a whole/

Unfortunately the vote bank syndrome has taken the Indian society into its grip. This is absolutely against the spirit of the constitution and political philosophy of the Indian state. Religion, ethnic or linguistic-based political parties are generally faced with many constraints in performing positive role in nation building process. It is generally seen that political parties pandering to minorities on religious and other specific counts either profile them as totally deprived and dispossessed which may not be the case or project them as victims of majoritarianism. This creates an atmosphere of fear and suspicion, which, at the end of the day, proves detrimental to the interests of the minority groups. Divisive politics undermines the strength and solidarity of the nation. Therefore it is incumbent upon the ruling apparatus to discourage vote bank syndrome. Keeping in mind the sensitivity of the people, sectarian tag to political dispensation ultimately becomes a hindrance to the minority groups in their healthy integration into national mainstream.

On the other hand minorities also have to widen their perspective with a vision for the future. Great nations sink and swim together.  Minority political parties, while maintaining their individual existence, can achieve pretty little if they do not dovetail their priorities to the broader interests of the society and nation. It has to realise the constraints which a democracy places on rule based on majority concept. What is important is to avoid confrontational politics and adopt cooperative politics. It is the lack of this essential element in the case of Middle East issue that has been hanging fire for nearly seven decades and is imperilling world peace.

I am told by knowledgeable persons that Islam provides befitting space to religious minorities in an Islamic state under the instrument of dhimmitude, which Islamic history tells us worked well during the days of Caliphate. I desist from expanding this subject and initiating a debate on the feasibility of application of this concept in a predominantly Muslim state. But in the context of modern times, the age of globalisation, I deeply cherish the social philosophy of the great jurisprudent and law compiler of Islamic faith namely Imam Abu Hanifa. I quote him: “I vouch that all people of the Qibla are mu’mins and that none of them becomes an infidel by omission of works. He who has faith and also performs his duties is without doubt a mu’min and destined for Paradise. He who is devoid of both faith and works is an infidel and destined for Hell. He who has faith, but omits to act is certainly a Muslim, but a sinful one. It is up to God to punish or forgive him.”

In some circles of political science experts, it is suggested that one practical way of alleviating the grievances of minorities could be investing an institution with veto rights to decide on such crucial issues as would have long time bearing on the interests of the minorities. The question is what that mechanism can be? Will it be a mechanism or an institution? How will that mechanism perform a role in a situation where the judicial structure provides for redress of grievances to the aggrieved?  We have seen that the Minority Commission of India though, in some cases convinced of certain legal, administrative and practical discrepancies in minority dispensations in the states, is not empowered to take a direct action to rectify the shortcoming. A veto right to any institution or structure in a democratic country with fully developed and expanded judicial arrangement would be only an indication of lame governance. This hardly goes in the interests of the minority communities.

We have quotas, reserved seats or other mechanisms ensuring representation of minorities in law making bodies like the parliament and the state assemblies. Even on other institutions like tribunals, councils and advisory bodies, quotas are allowed. One cannot dispute the wisdom behind this measure to assure the right of minorities. But in fully appreciating the utility of this instrument, we are once again forced to revert to the basic question of definition of a minority. How would we deal with sub-division of a recognized minority and how would we account for a minority not recognized formally. Again how would we synchronize the status of a regional minority when it simultaneously qualifies for national majority status and view versa? Therefore either we need to regularly update our classification of minorities or we need to construct a new pattern of quota and reservation system.

This becomes all the more important in view of two more elements. One is the rising standard of living and improvement in economic and educational level of people in the country.  The second is increasing consciousness of social, regional and sectarian identity among the people.

In some societies the subject of autonomy and self-governance has become cherished slogan to highlight and substantiate their respective identity. This consciousness could develop into widespread political movement and then what develops is a confrontational situation between the ruler and the ruled. While considering situations like this, the general approach is to examine the extent to which the people are enabled to promote and protect their political, civil, linguistic, educational, religious and cultural identity. In a scenario in which these rights stand promoted and enjoyed, political dissent seems rather unnecessary.

But it has to be noted that stonewalling political participation of a minority is unacceptable. While the ruling apparatus is responsible for fair and free election the minority is equally responsible for active participation in the national event. A boycott call given by dissenting parties or groups in an exercise of electing representatives of the people is tantamount to violation of the fundamental right of an eligible voter citizen.

There are various ways of pursuing minorities to pursue their participation in political process.  It is for the Election Commission of India and the State Election Commission to devise ways and methods that would ensure participation of all elections of minorities whether religious, linguistic, ethnic or political.  It should also be possible for the Election Commission to recommend to the Government for adequate amendment to the Constitution of India or the State Constitution in order to accommodate minorities that have got disenfranchised for one reason or the other. The Election Commission should have debated the demand of the Kashmiri Pandit displaced person for a constituency in exile. By creating conditions that would facilitate expressing of their political will through recognised means of election, the Government would have strengthened the civil society. Non-participation of a minority in the political process makes a lame assembly.

The crucial point in regard to minority rights is how would it be possible to ensure an effective role by minorities in policy and decision making process of a state?  It is unrealistic to think that a minority while caring for its interest and concerns ignores the interests of the nation and the majority community. Even if this .thinking prevails, the majority community and the ruling groups have the responsibility of removing their doubts and fears. A process of regular liaison between the two sides will considerably reduce irritants and iron out angularities.

If the major institutions of the state or the organs of the state do not have adequate minority representation, the path of the entire nation will be strewn with thorns. To own a minority is the quality of leadership, to carry it along is the quality of statesmanship.

Rehabilitation of IDPs:

Nearly the entire Kashmir Pandits of the valley had to go into exile in 1990. They are Internally Displaced Persons in accordance with the jurisprudence of the UN Charter on Refugees. The State calls them “migrants”, which is not only fallacious and arbitrary, not only a suppression of their human rights but also a blatant violation of the UN Charter on Human Rights to which The Union of India is a signatory. In recent turmoil and military action in the region of Swat in our neighbourhood, a million people were forced to leave their homes and hearths and seek shelter in other parts of the province. The Government of Pakistan immediately declared them Internally Displaced Persons. The United Nations made an appeal and many countries reacted favourably to discharge their obligations in providing succour to the affected people.

Kashmiri Muslims are among the minority on national level but majority on local level. Theoretically the benefits of minority privileges and majority rights both should accrue to them. Kashmiri Pandits who comprised barely 3 per cent of total population of the Valley prior to their exodus in 1990 are not included in the list of national minorities. Their peculiar status made the UN Human Rights Commission’s Working Group on Minorities add a new definition for them as “reverse minority” an affront to the state and the union government. Discrimination against them speaks itself.

Return and rehabilitation of Pandit displaced persons is linked to the basics of minority disadvantages. We may explain it:

  • The essential ingredient of inter-religious cooperation in democratic dispensation is evocation of national identity. But if national identity is under argument, it puts inter-religious cooperation into serious jeopardy. In other words re-vitalised national identity will make inter-religious cooperation realistic.
  • Can an assembly of peoples’ representatives be a valuable national symbol as long as the minority is not part of it? 
  • An assembly is the commitment of the state to the preservation of cultural heritage of minorities. Non-representation of the minority in the assembly absolves the state of any such commitment.
  • Democratic institutions, particularly at local levels, are crucial for minorities to voice their concerns and achieve meaningful solutions to their problems. As we see the State institutions are not fully geared to full transition of democracy. Mainstream political parties are loath to take on sectarian agenda of dissident segment.
  • Rehabilitation of an internally displaced people is essentially a matter of goodwill generated between the majority and the minority. Political leadership on both sides is a crucial catalyst to this process. In absence of political will, neither the bridges of understanding can be created nor the concept of peaceful co-existence implemented. Rhetoric is different from what the ground situation is.
  • According to the recommendations of the Working Group on Minorities of the UN Council on Human Rights, the Internally Displayed Person enjoy almost same rights as international refuges do; which includes seeking asylum or a concentrated habitat within the limits of their land of birth. This means first a political approach to the issue of rehabilitation and then the economic package in one form or the other. The logic is that Prime Minister’s package, essentially an economic package, should follow a political package. So far nothing of the sort has happened.
  • In regard to cultural dimension, though there is commonality of Kashmiri language among majority-minority groups but there is the vital inappropriateness and discrepancy of a scientific script of their written word. Turkey adopted the Roman script for Turkish language and Central Asian States adopted Cyrillic script for their languages. The Arabic script presently used for writing Kashmiri is unscientific and cumbersome.

(The writer is the former Director of the Centre of Central Asian Studies, Kashmir University).

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