Minority Issue in J&K: A Theoretical Study

By Dr. K.N. Pandita

Minority groups in the State of Jammu and Kashmir are generally under an incorrect impression that they are formally recognized as minorities. This is not the case.

The Constitution of the State does not at any place specify any group as minority, nor does it provide any defined and specific safeguards for the minority groups. By and large, the constitution is silent on the subject.

However, the Report of Basic Principles Committee 1954, while dealing with the item of fundamental rights, states as this: “Having taken note of the fundamental rights provided in various constitutions including the Constitution of India, recommends the following rights . . . . “ Then under item 8, it states:  “Cultural and educational rights should also be guaranteed by the constitution.

The interests of the minorities should be protected and any section of citizens having a distinct language, script or culture should have the right to conserve the same”.

This is the only place where the Constitution of J&K has brought in the term “minorities” and then goes on to make a mention of citizens with distinct language, script or culture. Since langue, script and culture fall in one category, it inadvertently refers to cultural identity of a minority without, of course, specifying it in any detail. “Religious minority” does not occur anywhere.

Ordinarily, the state constitution speaks of groups, especially the labourers, peasants, craftsmen and others, but strictly not in the sense of minorities but as skilled or unskilled groups with obvious economic interests. It nowhere speaks of categorization of economically weaker sections, but generally, speaks of “poverty stricken people of the State” without categorizing them.

It is evident that the Constitution of Jammu and Kashmir written in 1952-53 was drafted by the Constituent Assembly in which there was absolute majority of NC members while there was no opposition whatsoever. So the constitution was the brainchild of one-track thinking and application.

We are aware that towards the last phase of freedom struggle led by the National Conference, this frontline political party was under great influence of leftists and the Naya Kashmir Manifeso was the bible of NC by which its leadership swore. The most important and immensely hyped issue before the NC during the freedom struggle and immediately after it was that of land to tillers, or, in other words, putting an end to feudal system of olden days. Naya Kashmir blinkers did not allow it to look sideways; it could not envision deep and wide social intricacies of a civil society on its way to long-range economic planning and development. What ignominious fate awaited Naya Kashmir soon after its lone achievement of land to tillers came to fruition is a major phenomenon for any serious student of contemporary Kashmir history.

Addressing the Constituent Assembly in 1951, Sheikh Muhammad Abdullah cited the French Constitution and said, “The source of all sovereignty resides fundamentally in the nation. Sovereignty is one and indivisible, inalienable and imperceptible. It belongs to the nation.”

He continued: “The future political set up which you (members of Constituent Assembly) decide upon for J&K must also take into consideration the existence of various sub-national groups in our state. Our constitution must not permit concentration of power and privileges in the hands of any particular group or territorial region. It must afford the fullest possibilities to each of these groups to grow and flourish with their cultural characteristics without detriment to the integral units of the state.”

This extract statement from the speech of the Sheikh shows that he had only the three geographical regions of the state in his mind, which, he did recognize in a sense, were three separate social, cultural and linguistic entities though integral to the main body of the state.  It can safely be said that he had the concept of geographical entities in mind and not of groups.

There is a fairly comprehensive discussion on the term “citizenship” in J&K Constitution. Good exercise has been done by the framers of the constitution to be specific on state-subject theme.

For example, reflecting on the Delhi Agreement of 11 August 1952, the Sheikh said it was agreed that, “The state legislature shall have powers to define and regulate the rights and privileges of the permanent residents of the state more particularly in regard to acquisition of immovable property, appointments to services and like matters. It was also agreed that special provision should be made in the laws governing citizenship to provide for the return of those permanent residents of J&K who went to Pakistan in connection with the disturbances of 1947 or in fear of them as well as those who had left for Pak earlier but could not return.”

Two inferences are drawn from this statement. One is that the state assembly being the representative of the people has cared for only those citizens of the state who went to Pakistan because of disturbance and the fear before or after 1947. There is no mention of those people who, under similar circumstances were forced to flee the state and move to other parts of the Indian Union. The second inference is that those who left the State in 1947 for identical reasons and went to India have, over a period of time, lost their State citizenship rights. So what the constituent assembly cared for was blocks of populations or citizens of the State not their religious, ethnic, linguistic and cultural denominators. This is how the rights of minorities were brushed aside.

As far as the Indian Constitution is concerned, though it, too, is not specific on the issue of minorities, however, it has identified four groups on the basis of religion, to be categorized as minorities. These are Muslims, Christians, Buddhists and Sikhs. Their minority status accrues to them when juxtaposed to the Hindu religious community with a majority of nearly 80 per cent in the country. By and large, Indian State has approached the minority issues only through the prism of religious distribution, which, however, has not stood the test of time.

Here two questions arise. First should this categorization made by the Indian Constitution become applicable to the State of Jammu and Kashmir or not? Second and more important question is what the definition of a minority is?

In regard to question number one, if the Constitutions of India and of J&K recognize that all citizens living in Indian Union including J&K enjoy equal rights then there should be no difficulty for the State of Jammu and Kashmir to follow the principle of categorizing minorities on the basis of their religion. This, however, is not the case.

As regards the second question, the truth is that there is no uniform definition of a minority anywhere in the world. Even the United Nations has been grappling with the definition. The core reason of inability to evolve a commonly acceptable definition of minority is that in the process of sustained economic development and emerging social changes, new social identities emerged looking for specific rights and privileges which the state needed to concede. Thus minority-ism is to be linked to economic-social development and that is an enduring process.

The concept of minority as an essential and integral part of larger civil society was given for the first time by the United Nations when it kook up the human rights issue. The UN Commission of Human Rights was initially named Commission for Minorities. Only lately it was re-christened Human Rights Commission and now Human Rights Council.

At the United Nations, Minority Rights edifice is actually built on the basis of General Assembly “Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities” adopted on December 18, 1992.  Thus we find that in accordance with the Declaration, the main criteria for a definition is that it has to be a national, ethnic, religious or linguistic “minority. Till this day, this broad definition has been the cornerstone of any debate or resolution of the UN Human Rights Council or any other subsidiary of the UN/ECOSOC on minority issues.

But experience gained by Human Rights specialists at the UN and international legal fraternity about new minority groups emerging owing to various factors like rising crescendo of Pan-nationalism, sub-nationalism, aggressive self-determination, assertion of trans-border ethnic, linguistic and religious identity or harsh diktats of history becomes catalyst to extended definition of a “minority” including that of “reverse minority” as in the case of Kashmir Pandits now adequately documented in official records at the UN.

Indian state is a signatory to the UN Charter on Human Rights. As such, she is bound to honour the definition provided by the UN bodies to “minority”. By implication, J&K State cannot escape the prerogative of international community.

The Minority Declaration is intended to contribute to the realization of the principles of the Charter of the United Nations and those of the Human Rights instruments adopted at the universal or regional level. The Declaration is inspired by Article 27 of the International Covenant on Civil and Political Rights. The promotion and protection of rights of minorities should contribute to the political and social stability of the states in which minorities live, and to the strengthening of friendship and co-operation among peoples and states.

One of the foundational principles of human rights is that of non-discrimination between individuals. The state is obliged to respect and ensure to every person within its territory and subject to its jurisdiction, without discrimination on any ground including race, ethnicity, religion or national origin, the rights contained in the instruments to which that state is a party.

Faced with the threat of losing political, social  cultural or religious identity a minority should justifiably come under the focus of following stipulations of the UN Declaration on Rights of Minorities adopted by UN General Assembly vide Resolution 1992/4 of 20 July 1992.

Art. 1.1. Casts a duty on the state to protect the existence and the ethnic, cultural, religious, linguistic identity of the minorities within their respective territories, and shall encourage conditions for the promotion of that identity.

Art. 1.2 Calls upon the state to adopt appropriate legislative and other measures to achieve those ends.

Art. 2.3 Reserves a right for the person belonging to the minorities to participate in the decision making process at national and appropriate regional levels, where in they live.

These are the obligations a state owes to its minorities. Therefore carrying out the obligations involves constitutional, legal and administrative measures which the state needs to evolve in consultation with the minorities.

Here another aspect of the entire issue needs to be attended. A crucial question in the context of minorities in a multi-ethnic, multi-religious and multi-linguistic state like the Indian Union is what should be the geographical and physical basis of recognizing a community as a minority? Is the “national” aspect sufficient to promote the aspirations and urges of minorities in this country or should “regional” component form the basis of identification of a minority?

In all fairness, a minority community should be identified on state level and not on national level principle. A national level minority could be a state level majority and vice versa. In such cases, the concerned minority enjoys the double benefit while the regional minority is deprived on both ends. This anomaly has to be done away with. We understand that in legal and constitutional circles, a debate to the purpose whether or not minority status be conferred on state level is being hotly pursued.

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