Religious Symbols
Senior advocate Ashwini Upadhyay has filed a writ petition before the Hon’ble Supreme Court challenging the constitutionality of Section 2(f) of The National Commission for Minority Educational Institutions Act, 2004 (NCMEI Act) and Section 2 (c) of The National Commission of Minorities Act, 1992 (NCM Act), alleging that these acts give unbridled power to the Centre government to notify any community as a minority. He went on to term these acts “manifestly arbitrary, irrational, and offending articles 14, 15, 21, 29 and 30 of the Constitution of India”. The petitioner urged the Apex Court to declare these acts unconstitutional; if not, then at least give the benefit of these provisions to Hindus in those states where they are a ‘minority’. A just and an expedient demand was made by the petition to define the word ‘minority’ used in a specific context in the Constitution and to formulate clear guidelines and manuals for ascertaining the same. The word minority was used in Articles 29, 30 and 350 of the Constitution, however, it has not been explicitly explained there. Taking advantage of this, the Congress-led dispensation indulged in vote bank politics at the time of the formation of the Minorities Commission in 1992. Questioning the prevailing definition of minority and linguistic minorities, Ashwini Upadhyay said that according to the current definition, there should be hundreds of religious minority groups and thousands of linguistic minority groups in the country today. But why has this status been granted to only a handful of communities? Isn’t this a rare example of the politics of communal appeasement? The Muslim, Sikh, Buddhist, Parsi and Christian communities have been treated as minorities under Section 2(c) of the National Commission for Minorities. In 2014, the Jain community was also given minority status, but not the Hindus, though they are a minority in six States and three union territories.
In the context of this petition, the Ministry of Minorities Affairs, Government of India, while filing its affidavit in the Supreme Court, clarified that it is not only the Central Government that has the authority to grant minority status; rather, the state government can equally give similar status to a community based on its numbers and socio-cultural status in that state. Based upon the data collated in the 2011 census, the Ministry of Minorities Affairs has further clarified that the population of Hindus is very less in the States/UTs like Jammu and Kashmir, Lakshadweep, Ladakh, Punjab, Mizoram, Nagaland, Meghalaya, Manipur, Arunachal Pradesh; Hence, they fulfil the eligibility to become a minority. The concerned State Government, if willing, may grant privileges and protection to them by declaring them as minorities within the geographical limits of the state. The Maharashtra government has taken the lead in this direction by giving minority status to Jews in their state. The Gujarat government had also granted minority status to the Jain community on similar lines.
In the light of the above, it is imperative to frame a comprehensive manual giving a more inclusive and rational definition of ‘minority’ so that the Centre / States do not misuse this provision arbitrarily. Ashwini Upadhyay based his petition on the historic judgment given in 2003 by an 11-member Constitution Bench of the Supreme Court in the case ‘TMA Pai Foundation Vs Union of India’. In this judgment, the Hon’ble Supreme Court made it clear that the unit determining the status of a religious or linguistic minority would be the State. Even for making laws related to minorities, the unit responsible will be the state(s) and not the whole of India. This judgment in the TMA Pai case since then has become the law of the land; hence the nomenclature of religious and linguistic minorities should be based on their population in the states, considering the state as a unit.
It is interesting yet unsettling that although the number of Muslims living in India (19.4 Crore) is more than those residing in Pakistan (18.4 Crore), they are still a minority in India; reasons for this are worth contemplating. Immediately after taking charge of the ministry of minority affairs in 2014, Najma Heptulla made a powerful comment on the minority status of Muslims. She said that since Muslims are in overwhelming numbers in India, they cannot be treated as a minority. Further, in this context, the definition of ‘minority’ given by the United Nations is significant. According to the United Nations, “A community which has no social, economic and political influence and whose population is negligible shall be called a minority.” Likewise, the Indian Constitution conceives ‘minority’ as an open category to protect the interests of various religious, linguistic, and culturally distinctive groups. The distinctiveness of a numerically inferior group is certainly recognised as a legal criterion to determine the minority status of any community. The constitution has no provision for granting rights to any specific community in general, and rather it guarantees equal rights to all the communities. However, under the ambit of NCMEI and NCM Act, the wrong practice of giving special facilities, rights, and preference to a particular community by arbitrarily granting minority status has been in practice and is completely in violation of the spirit of the Constitution. Thus, considering the definition of minority given by the United Nations and in the true spirit of the constitution, is the Muslim community entitled to minority status in India?
Taking serious cognisance of the above facts, the Hon’ble Supreme Court should pass necessary rulings to prevent the misuse of the provisions of the National Commission for Minorities Act, 1992 and the Minority Educational Institutions Act, 2005. Affidavit of the Central Government proposes a viable alternative in this direction. Whereby the historical injustice incurred can be mitigated by the State Governments by identifying and naming religious minorities within the geographical boundaries of their State. So far, those who are in the majority in terms of numbers in a particular state exist as a minority in the schemes of the state and central governments. However, for a complete solution to the problem, the hon’ble court should lay down just, logical, and clear guidelines to define minorities, grant this status to the communities that deserve it, and ensure that privileges and protections under these acts are granted to them only. The idea of giving minority status at the district or sub-division level is also talked about by making the population of the districts/sub-divisions as the base unit. However, this will not eradicate the problem; rather, it will further create chaos and disorder. India is a diverse country wherein the linguistic diversity is immense. Suggesting the language variations in India, it is often said, “The water changes after each mile & the language after every four”. Therefore, the proposal to give minority status at the state level by making the population of the state a unit is more reasonable and pragmatic. Apart from numbers, participation and presence in socio-cultural spaces, business and governance should also be made the basis of determining minority. In places like Lakshadweep (96.2%), Assam (34.2%), West Bengal (27%), Kerala (26.6%), Uttar Pradesh (19.3%) and Bihar (17%), the population and participation of the Muslim community are significant, from the legislatures to the bureaucracy and public life, they have proper participation in every sphere. While on the other hand, in states like Assam and West Bengal, the non-Muslim communities are fearful and insecure due to Muslim appeasement and their disproportionate share. Taking grasp of the above facts, the Allahabad High Court, in a landmark judgment in 2005, stated that Muslims are no longer a minority owing to their numbers and have significant representation in every sphere. They don’t even have an existential threat. It is henceforth imperative to keep in mind the basic spirit of the Constitution while formulating the definition of minority and the Directive Principles of the state policy.
Furthermore, it is essential to recognise that though a feeble number is a basis for being a minority, it cannot be the sole rationale for it. Also, while verifying scheduled castes, scheduled tribes, and backward classes, just as the status of a particular caste varies from one state to the other, on similar grounds, why don’t the change in the situation in the case of minorities is considered? The Hon’ble Supreme Court needs to formulate an exact guideline to put the kibosh on all the prevailing discrepancies and ironies vis-à-vis minorities so that Sabka Saath and Sabka Vikas can become a reality in every part of the country. Also, the constitutional provisions should be used to ensure proper participation of the communities concerned and not for the appeasement of a particular community and vote bank politics. Certainly, Jammu and Kashmir is the prime example of the misuse of these provisions.
The case of Jammu and Kashmir is quite bizarre and ironic, where the Muslim percentage is 68.31 per cent, while that of Hindus is only 28.44 per cent. Yet, in the eyes of not only the central government but all the state governments thus far, the Muslim community is a minority. Till today Muslims have been taking advantage of all the privileges and schemes available under the above two Acts. The Hindu community, on the other hand, being a de facto minority, has been deprived of constitutional privileges, protection, and remedies. J&K has become the symbol of the politics of calling the majority a ‘minority’. This reversal of the minority is the result of the ‘secular’ politics of the Congress and the ‘progressive’ intellect of the left-liberal gang. Today there is a need to review and urgently rectify this half-baked and convenient definition of minority, coined to benefit a particular community. Under the guise of this definition and its provisions, the actual minority (so-called majority)- the Hindu community in states like Jammu and Kashmir has been continuously exploited and harassed by the majority (so-called minority)- the Muslim community. Most unfortunate is that this endless game of exploitation, oppression, humiliation, and neglect is taking place under the patronage of the state. It’s time to bring about the reversal of the existing scenario by taking quantifiable steps. The genuine minority Hindu community has been massacred multiple times and repeatedly uprooted and displaced from Kashmir. It’s time to wipe their tears and provide them with the justice they deserve. The first step in this direction would be to immediately recognise the Hindus in Jammu and Kashmir as minorities and provide them security, respect, and rights.
In 2016, Advocate Ankur Sharma filed a PIL in the Supreme Court alleging that benefits accruing to the minorities (Hindus) were being taken away by the 68 per cent-strong Muslim community in Jammu and Kashmir. He further said that the rights of religious and linguistic ‘minorities’ in the state were being ‘siphoned off illegally and arbitrarily’ due to the extension of benefits to ‘unqualified sections’ of the population. The Muslims are reaping the benefits of the schemes made for the minorities there. Whereas the actual minority Hindu community is being neglected, despised, and oppressed. While reviewing the status of the minority community given to Muslims, he demanded the identification of actual minorities, giving them minority status by considering the population of a particular state as a unit instead of the whole of India. Considering the gravity of the situation, a three-member bench comprising Justice JS Khehar, Justice DY Chandrachud, and Justice SK Kaul directed both the Central and the State governments to resolve the matter at the earliest by indulging in a mutual dialogue. However, to date, no significant progress has been made in this direction.
The exodus and displacement of Hindus from Jammu and Kashmir have a long history. It all began in the 14th century during the rule of Sultan Sikandar Butshikan, also known as the butcherer of Kashmir. He committed innumerable atrocities against Hindus during his reign of terror. Actually, He was the ‘great grandfather of the present-day terrorists’. Large numbers of Hindus were forcefully converted; many fled or were killed for refusing to convert to Islam. Aurangzeb also executed similar atrocities in the 17th century. The painful tale of displacement, which began in the 14th century, continued till the last decade of the 20th century. Most disturbing is the fact that this trend did not stop even after independence. Hindus were either systematically wiped off or driven away from Kashmir, and this happened not only during the Partition of India in 1947. In fact, the Indo-Pakistani Wars of 1947, 1965 and 1971 and the genocide of 1990 witnessed the same. It is noteworthy that this bloody game was played by none other than the so-called minorities (as per the prevailing definition of the Government of India) of the valley. The result of this gradual racial cleansing is the existence of only a handful of Hindus present in Kashmir, the land of goddess Sharda and one of the cradles of the Hindu Civilization. Non-Muslims have been displaced from Jammu and Kashmir not once but at least seven times. Before the process of forced conversions and displacement began, the number of Muslim communities in Jammu and Kashmir was as negligible as the number of non-Muslim communities that exist in the Kashmir Valley today.
It is a questionable fact, how did the handful number of Arab, Turk and Mongol invaders rise steeply over the years? Had there been no Jammu in Jammu and Kashmir, what would have been the fate of the Hindus; it’s not hard to guess. In the shivering black nights of January 1990, in place of azaan, the demonic voices of “Raliv, Galiv, Chaliv” reverberated in the streets and mosques of the valley. In this one month, lakhs of Hindus either lost their lives or fled to save themselves. They were forced to become refugees in their own country. The film ‘The Kashmir Files’ explicitly portrays the story of Hindus becoming a minority in Jammu and Kashmir. It is ironic that those who were turned into minorities were not given any protection, security, or privileges by the government. Was this not playing with the basic spirit of the Constitution? Even today, when non-Muslim communities who have been victims of successive racial genocide want to return home, Islamic terrorists and their mentors resort to bloody carnage in the valley; so that the demographic (im)balance of Jammu and Kashmir is in their favour. They intend to remain a majority (in J&K) and continue enjoying the benefits given to the minorities (privileges given to the community by the central and state governments depending on the population of India). This is the real story of ‘Minorities of Jammu and Kashmir’; here, the hunter, instead of being tamed and booked, is flourishing under constitutional protection and government patronage.
On the lines of Kashmir, a conspiracy was afoot by the ruling parties, namely, the Muslim/National Conference, Congress, and People’s Democratic Party, to make Hindus a minority in the Jammu region as well. Since independence, all Jammu and Kashmir chief ministers have been from the Muslim community, starting with Sheikh Abdullah to the most recent being Mehbooba Mufti. Rohingyas from Myanmar and Bangladeshi infiltrators were deliberately nested in Jammu with an eye to changing the demographics of the area. Bathindi in Jammu is classic evidence of collusion to change the demography of Jammu. We are all familiar with the actual darkness behind the Roshni Act, better known as Land Jihad. Under this act, the government land was distributed among the people of a particular community at the cost of a penny. This was a well-knit plan launched as an attempt to change the demography of the Jammu region. There were more than 25000 illegal beneficiaries of the Roshini Act in the Jammu region alone, 90 % of which belonged to the Muslim community. Organisations like Ikjutt Jammu have played a key role in unearthing several well-planned conspiracies planned to change the demography of Jammu. Just as the ‘minorities’ of Kerala have resorted to love jihad, narcotic jihad, and Marks jihad to exhibit
their dominance and spread themselves, similarly, the ‘minorities’ of Jammu and Kashmir have resorted to land jihad with an agenda of altering the demography of Jammu. Not only do all the chief ministers of J&K been Muslims; rather, most of the high-ranking bureaucracy, government employees, MPs, and MLAs here, have been from the Muslim community. The Muslim community has absolute dominance over the industry, business, and market in the JK. Then what makes them still a minority? What kind of distress or insecurities do they still feel or face? How are they at risk, and by whom? Who threatens them? In a UT like Jammu and Kashmir, giving privileges to Muslims as a minority, making plans for their protection and development, opening minority institutions for them, isn’t it an abuse of this constitutional provision?
(The author is Dean, Students’ Welfare, Central University of Jammu)
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