We are aware that Article 15 of the Constitution of India prohibits any kind of discrimination on grounds of religion, race, caste, sex or place of birth. It prohibits discrimination on the grounds of religion, race, caste, sex or place of birth. However, the state can make any special provision for women and children and also for the advancement of any socially and educationally backward classes of citizens. This is necessitated because in spite of constitutional sanction against it discrimination of various kinds exists on the ground.
The Union Government set up the National Commission for Minorities (NCM) under the National Commission for Minorities Act, 1992. Six religious communities, viz; Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains have been notified in Gazette of India as minority communities by the Union Government all over India including the states in which one or the religious minority is a Majority. Thus we have instances where notified minority is enjoying rights as local majority and national minority at the same time. Jammu Kashmir is the classical example of this contradiction.
The United Nations Sub commission on Prevention of Discrimination and Protection of Minorities renamed in 1999 as The United Nations Sub-Commission on the Promotion and Protection of Human Rights defined minority as “a group numerically inferior to the rest of the population of a state, in a non-dominant position, whose members – being nationals of the State – possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if not implicitly, a sense of solidarity directed towards preserving their culture, traditions, religion or language”. This background is essentially helpful in understanding the case of religious minorities of Kashmir valley for demanding a mechanism for political representation in elected fora.
The reorganisation of Jammu and Kashmir in the year 2019 put an end to the institutionalised discrimination, restriction of fundamental rights and denial of justice that had been rampant in the erstwhile state for decades. The entire country, especially the residents of J&K, rejoiced. They are since been witnessing a spurt in developmental activities, enhancement in delivery mechanisms and transparency & accountability in governance. All these developments have amplified people’s expectations and there is hope that the historical wrongs that occurred in the past due to the biased, belligerent and inequitable demarcation of parliamentary and assembly constituencies will finally be undone.
Historically, the religious minorities (both Hindus & Sikhs) of Kashmir have been the worst victims and have had to face organised marginalisation, exclusion and ultimately, outright expulsion. During and after 1947 this process of victimisation became more implicit instead of declining. This gradual, torturous process of exclusion and marginalisation resulted in the decline of their representation in the state legislature from 4 in 1951 to 0 in 2009 and 2014. Not only have they been completely eliminated from the state assembly, but their political influence within territorial constituencies has also been deliberately downsized to the lowest possible level. This is a result of the gerrymandering of constituencies like HabbaKadal and AmiraKadal in Srinagar district; Anantnag, Bijbehara and Kothar in Anantnag and Devsar in Kulgam districts; and Handwara and Kupwara in Kupwara district. Institutionalised ostracism and segregation packaged as ‘popular sentiment’ resulted in the enforced extirpation of practically the entire religious minority from the Kashmir province.
It will be pertinent to mention here that it is an internationally recognised obligation to ensure mechanisms are in place so that the diversity of society with regard to minority groups gets reflected in public institutions such as parliaments, civil services etc. During its second session, on 12 and 13 November 2009, the Forum on Minority Issues focused on minorities and effective political participation. A key reference for the session was article 2 (2) of the United Nations Minorities Declaration, which provides for the right of persons belonging to national or ethnic, religious and linguistic minorities “to participate effectively in cultural, religious, social, economic and public life”. For such participation to be effective, states must ensure that beyond token representation, minority representatives have an equally substantial influence on the decisions being taken. Only then can there be actual collective ownership and impact of such decisions.
Around the world, many nation states have taken cognisance of this obligation and made sure that minority groups are empowered to elect representatives of their choice. For example, both New Zealand and the US worked to implement effective increases in minority representation in national legislatures. In the United States, this was achieved by drawing special majority-minority districts that maximize the number of blacks in a congressional district. New Zealand has an almost 150 year old tradition of separate electorates for its minority, indigenous Maori community which constitutes around 15 percent of the population. Other countries such as Belgium, Lebanon, Slovenia, and Zimbabwe also make special provisions for ethnic minority representation.
In our nation itself, the constitution makers were conscious of this responsibility of ensuring the inclusion of marginalised, underprivileged and deprived sections of the society. This led to the concrete measure of political reservation for Scheduled Castes (SC) and Scheduled Tribes (ST). Even Anglo-Indian representation was ensured in the form of seats in Parliament and state assemblies. The Sangha constituency in Sikkim assembly, is another example of special, affirmative accommodation to ensure representation of underprivileged sections. It has no geographical boundaries and comprises around 3500 monks and nuns as voters. The Jammu and Kashmir Reorganisation Act, 2019 (15) reads “Notwithstanding anything in sub-section (3) of section 14 the Lieutenant Governor of the successor Union territory of Jammu and Kashmir may nominate two members to the Legislative Assembly to give representation to women, if in his opinion, women are not adequately represented in the Legislative Assembly”.
This is under the same principle recognising the need to include under-represented and unrepresented sections of the society and providing adequate & effective participation in policy planning and decision making process. This is an unarguable fundamental of democracy.
Another fact that needs to kept in mind while dealing with the question of the religious minorities of Kashmir is that Jammu region and Kashmir Province are recognised as two different entities mostly having dissimilar opinion and understanding on almost all issues. That is why governments have established two units of any institution like AIIMS, Central University, and NIT etc. It is possible that in future they may be detached states/UTs.
In this vein, we, the religious minorities (Sikhs, Hindus etc) of the Kashmir valley plead for an affirmative action by the Delimitation Commission. It is hoped that justice though delayed, will be delivered now.
Case is simple and can be summed up as:
a. Owing to our systematic marginalisation, exclusion, discrimination and ultimately expulsion from our homes and hearths and
b. Recognising the universally accepted principle of taking affirmative action to ensure adequate and meaningful minority representation in public institutions
A well-defined and constitutionally guaranteed mechanism is ensured by the amply empowered and profusely cognisant Delimitation Commission to ensure appropriate, adequate, plausible and quantifiable representation of the Religious minorities (Both Hindus & Sikhs) of Kashmir valley by way of rightful participation in the mainstream political scene through a guaranteed electoral mechanism.
This is further necessitated by the absence of Upper House or Legislative Council that could have accommodated some representatives from among the unrepresented sections of the society.
(Author is Spokesperson BJP J&K and Former Member of Legislative Council)