(Mr. Bhushan Lal Saraf, 67, was born in Batapora, Shopian. He finished his schooling from the Government Higher Secondary School in Shopian, and completed his professional degrees in B.Sc. (Hons.), Diploma L.L.B., and KCS (Judicial) from the University of Jammu and Kashmir, and from the University of Lucknow. Mr. Saraf retired as a Principal District & Sessions Judge. He is presently an Honorary Member of the J&K State Consumer Commission. He has authored a book, “New Lexicon for the Kashmiris,” published by UPS in New Delhi. In his leisure time, Judge Saraf, provides complimentary legal counselling, campaigns for legal awareness, and enjoys reading and writing.)
National Commission for Minorities Act 1992 And The State Minorities
Reportedly, Wajahat Habibuallah the Chairperson of National Commission for Minorities has written to the Central government to amend the National Commission for Minorities Act 1992 ( NCM Act ), to make it applicable to the State of J&K and other states , so that interests of Pandits and other state minorities are safe guarded . We are informed that National Commission for Minorities ( Commission ) has taken up the issue with the State Law Minister, Ali Mohammad Sagar ,in this regard .Copies of the letter have been marked to the Union Ministers of Home and Law .In the alternative , it has been suggested that J&K government promulgate a State Act on the lines of model Act developed by the Commission .According to the media reports , “ the State government is not averse to the benevolent recommendations of the Commission.”
It is a long pending demand of the Pandits and some other religious minority groups of the State ,like Sikhs , Christians and the Buddhists that they get statutorily assured benefits available to the minorities elsewhere .They have been peacefully agitating for this purpose and have been regularly interacting with the State and Central governments , as also the Commission . The then Chairperson of the Commission , Dr Tahir Mehmood, was kind enough to write to the then Chief Minister Dr Farooq Abdulah ,in 1999 , and invite his attention to the miserable plight of the minorities of the State . He wrote , “ Our Hindu brethren are in minority in the J&K State . We owe them the sacred responsibility of all that is necessary to protect their lives, properties, human rights and civil liberties .” ( Refer Commission No CH /4/ 88 NCM dt 21 01 1999) There , however , was no response from the governments Thanks to the present missive of the Commission , we at least have the inkling of government’s thinking on the issue .They are in a fix which ,as per the media reports, is reflected as ,“ Complexity in declaring any group a minority arises from the existence of a peculiar region-wise and community –wise composition in the State ,where no community is in minority in all the three regions of Jammu ,Kashmir and Ladakh.”
So far as we know J&K is a single federating unit with the Union Federation . It is so constitutionally and politically . Administratively , it has two Divisions . That being so , the Apex Court has , in number of cases , paved way for the government to come out of the dilemma . In TMA Pai Foundation case – (2002 )8 SCC 481- the Supreme Court has held since India has been reorganized on the linguistic basis , therefore , for determining minority the unit has to be the State and not the whole of India .Both religious and linguistic minorities are to be considered State –wise .In Bal Patil’s case ( AIR 2005 SC 3172 ) the Apex Court has made job of the State government easier by defining Minority in clear terms “ minority as understood from the Constitutional scheme signifies an identifiable group of people or community who were seen deserving protection from likely deprivation of their religious , cultural and educational rights by other communities , who happen to be in majority and are likely to gain power in a democratic form of government based on election .” In any case the nitty gritties could be sorted out well by obtaining expert legal advice on the issue .
Some communities , including the Pandits , are on the verge of extinction . Primarily for this reason they should come within the purview of United Nation’s declaration on rights of Minorities, which General Assembly adopted recalling Resolutions 46/115 of 17. 7 1991 , 1992 /16 of 21 . 2 . 1992 and 1992/ 4 of 20 ,7 .1992 on Human Rights . Articles 1.1 and 1.2 of these Resolutions cast a duty on the Member States to protect existence and the ethnic, cultural , religious and linguistic identity of the minorities within their respective territories ; and call upon the State to adopt appropriate legislative and other measures to achieve those ends . It may be worthwhile to recall that former Chief Minister Gulam Nabi Azad assured Sikh Sangat , Christian Congregation and Pandit representatives , number of times during his rule, that State shall have a Commission to safeguard rights of the regional minorities . Apart from that , one of the major recommendations of Prime Minister’s working group on good governance , lead by Naresh Chandra , is for the State of J& K to have a minority commission . Ajay Sadhotra and S M Bukhari , then N C MLAs , introduced private member’s Bill No 12 /2006 in the Assembly for constitution of State Minority Commission , with a view to safeguard , protect and ensure development of the minorities in the state . The Bill , however ,was not carried through .
Section 13 of J&K Constitution insists upon promotion of welfare of the people, consistent with the objectives of “ Naya Kashmir ” document . Section 25 casts a duty on the State to foster equality and secularism . It would be, therefore, in fitness of things that the State government pays urgent heed to the advice of the Commission and constitutes a Commission for the minorities living in J&K . It must be noted here that extension of NCM Act 1992 to our state would not be a right thing to do .Many insurmountable hurdles are in the way . Besides , if we go by the tone and tenor of prouncements of the Apex Court a concept of National Minorities does not get approval . The matter is well and truly within the domain of the State government The enumeration of the minority groups has to be done at the state level .So , the state government has to take a call .It may not be out of place to mention here the Proclamation issued by Maharaja Harisingh on 5th March 1948 , calling upon his Council of Ministers, lead by Shiekh Mohammad Abdullah , to frame Constitution which shall, among other things , provide adequate safeguards for the minorities. Viewed in the afore mentioned background, there is no escape for the state Govt. from seriously considering the advice of the Commission and to act with dispatch. It is heartening to note that the authorities concerned at state and national level have instilled hope in the leaders of various communities agitating over the matter
Number of times it has been agued that minority rights are inherent in the Constitution and United Nation’s declaration on Human Rights . State is only to recognize them as such and ensure that benefits accruing under law reach the deprived section of the society .