New Delhi > The Supreme Court on Monday said it cannot direct the legislature to legislate but has “simply” asked the Centre and the Jammu and Kashmir government to deliberate on issues including whether the majority Muslim community in the state could be regarded as a minority for availing benefits.
The Centre informed a bench headed by Chief Justice Dipak Misra that it was still deliberating on a host of issues including whether Muslims, who are majority in Jammu and Kashmir, can be treated as minority to get benefits which are only available to minorities in the state.
“We have legal difficulties. We cannot direct the legislature to legislate on a particular issue. We just asked them (Centre and state) to deliberate,” the bench, which also comprised Justices A M Khanwilkar and D Y Chandrachud, said.
It considered the statement of Attorney General K K Venugopal that the process of deliberations was on and a decision would be taken, and granted eight weeks to the Centre. The bench had on August 8 granted the last opportunity to the Centre and other stakeholders to take a final decision within three months on issues raised in the petition filed by Ankur Sharma, a Jammu-based lawyer.
The Centre had then sought time saying it has been holding consultations with the state government. Prior to this, the top court had issued notice to the Centre, the state government and the National Commission for Minorities (NCM) on the plea filed by Sharma who alleged that benefits accruing to the minorities were being taken away by the 68%-strong Muslim community in J-K.
The court had asked the Centre and the state government to “sit together” and find a solution to “contentious” issues including whether the Muslims in the state could be regarded as a minority to avail benefits under that category.
The plea has alleged that the rights of religious and linguistic ‘minorities’ in the state were being “siphoned off illegally and arbitrarily” due to extension of benefits to “unqualified sections” of the population.
Sharma alleged the provisions of the National Commission for Minorities Act were not applicable to Jammu and Kashmir due to a caveat put by Article 370 of the Constitution. “Moreover, crores of rupees are being given to the members of the majority community under various schemes meant for linguistic and religious minorities,” he said.
The state government was violating Article 29 (protection of interests of minorities) and Article 30 (right of minorities to establish and administer educational institutions) under the Constitution, he has alleged. The PIL has also sought setting up of a state minority commission for identification of minorities and extension of National Commission for Minorities (NCM) Act, 1992 to Jammu and Kashmir.
“The population of Muslims in Jammu and Kashmir according to the 2011 Census is 68.31%. Communities which are eligible to be notified as minorities, are 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,” it has said.
“This clearly reflected the unfairness and discrimination of the state government towards other communities in Jammu and Kashmir which were eligible to be notified as minorities,” the petition has alleged.
It has pleaded that a committee of experts functioning under the direct supervision of the apex court be appointed and a comprehensive report be submitted identifying communities in the state which qualified as religious and linguistic minorities.
The petition has also demanded that a special investigation team (SIT), headed by a retired high court judge working under direct supervision of the top court, be constituted for investigating the illegal and arbitrary disbursement of minority benefits.
