Supreme Court on Muslim Minority Status in Jammu and Kashmir

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The Supreme Court is examining whether Hindus and other non-Muslim communities constitute a minority community in Jammu and Kashmir and whether they are eligible for reservation benefits in militancy-affected states.

Jammu and Kashmir is the only Indian state where Muslims are in majority.

Supreme Court bench comprising Chief Justice J S Khehar and Justices D Y Chandrachud and S K Kaul asked both the governments Centre and Jammu and Kashmir, to “sit together” and decide contentious issues including the question whether Muslims can be treated as minority in the state and submit a report to it within four weeks.

In February 2017, Supreme Court had imposed a cost of Rs 30,000 on it for not filing its reply to a PIL alleging that minority benefits are being enjoyed by majority Muslims in Jammu and Kashmir.

SC had accorded a last opportunity to the Centre to file its reply, saying the matter is very important. The court had, however, allowed the counsel for the Centre to file the response after depositing the cost and had also noted that a fine of Rs 15,000 was also imposed last time also for the same reason.

According to the 2011 census, Islam is practised by about 68.3% of the state population. Among the minorities, 28.4% are Hindus, followed by Sikhs (1.9%), Buddhists (0.9%) and Christians (0.3%).

In Kashmir valley, about 96.4% are Muslims, followed by Hindus (2.45%), Sikhs (0.98%) and others (0.17%).

Background:

The petition was filed by an advocate, Ankur Sharma, from Kathua district in Jammu and Kashmir, complaining of alleged discrimination against non-Muslim communities in the state.

The petition said Muslims accounted for 68.31 per cent of the states’ population in the 2011 census but regretted that several non-Muslim communities “eligible” to be notified as minorities were not awarded their due share of scholarships.

Although Ankur has not stated that Hindus deserve the minority status, he told that “as per a UN definition, any community which is less than 50 per cent of a state’s population qualify for minority status”.

The petitioner submitted that the term “minority” had not been defined in the statute. But he recalled that the Supreme Court had defined “minority” as a group of people who are numerically a minority in “a state as a whole”.

This essentially means that determination of minority has to be done on the basis of ‘a state as a unit’ i.e. state-wise. Merely because a community is numerically larger in number throughout the country does not disqualify it to be notified as a minority for the purpose of a state.

The petition referred to a central scheme that offered 20,000 high-value scholarships in 2007-08 for technical professional education. In Jammu and Kashmir, Muslims were allotted 717 scholarships out of a total of 753. Christians, Buddhists and Sikhs were awarded two, 22 and 12 scholarships, respectively, the petition claimed.

The petitioner urged the apex court to issue directives to the authorities to set up a state minority commission or form a committee to identify communities that qualify as religious and linguistic minorities at the state level.

The population of Muslims in Jammu and Kashmir according to the 2011 Census is 68.31 per cent.

Communities which are eligible to be notified as minorities, were not awarded their due share of scholarship owing to their non-identification as minorities, thereby jeopardising their constitutionally guaranteed rights enshrined under Part III of the Constitution of India.

WHAT IS A MINORITY?

The Union government recognises Muslims, Sikhs, Buddhists and Christians of Jammu and Kashmir as “minorities”. This in spite of the fact that the National Commission for Minorities Act, 1992, under which the national minorities are to be notified, is not applicable to J&K and thereby the recognition of Muslims as “minorities” was whimsical and illegal.

The SC had in the 2002 case TMA Pai Foundation and others Vs State of Karnataka ruled that linguistic and religious minorities are covered by the expression “minority” under Article 30 of the Constitution. Since reorganisation of the states in India has been on linguistic lines, therefore for the purpose of determining the minority, the unit will be the state and not the whole of India.

FUNDAMENTAL RIGHTS OF THE MINORITY

Constitutional guarantees under Article 29 and 30 (rights of minorities) are no guarantees at all in Jammu and Kashmir due to the failure of the government in identifying religious and linguistic minorities and declaring them as notified minorities.

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