On the 12^th of November, the administration of the Union Territory of Ladakh issued a notification under Section 4(2) of the LAHDC Act nominating the BJP worker Advocate Reyaz Ahmad Khan as the fourth nominated member/councillor of the 5^th Ladakh Autonomous Hill Development Council Kargil. He had unsuccessfully contested council elections on the BJP ticket for the Chuliskambo constituency in 2023. The government is empowered to nominate up to four members to the council under the said provision of the act. However, the government cannot nominate a member of the district’s majority community to the council. Section 4(2) of the act empowers the government to nominate members only from (i) the principal minority, i.e., the Buddhist community, and (ii) women of the district. The government’s power provided by the subsection is thus restricted, and hence, the nomination of Advocate Reyaz Khan is absolutely ultra vires, beyond the power.

Advocate Reyaz Khan and Advocate Asgar Ali Yarkain responded to objections with the claim that Shias were recognized by the High Court of Jammu and Kashmir in its judgement in Anjuman-i-Ahli Sunnat Wal Jamat Kargil Vs. State and Ors. as members of the principal minority as referred to in Section 4(2) of the LAHDC Act. This is an incorrect and misleading reading of the judgement. The nomination is an abuse of the LAHDC Act and the High Court’s 2004 judgement has been completely misrepresented to the public. 

The wording of Section 4(2) of the LAHDC Act is as follows:

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“The Government may nominate not more than four persons from amongst the principal religious minorities and women in the district to be members of the Council.”

First, let’s clarify a potential confusion in the wording of the section. The word “minorities” is a malaprop, a grammatical mistake inserted into the text due to shoddy legislative drafting, of which the LAHDC Act, 1997 is not the only instance in legislation. The Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007, is another example in which the word “appeal” is used in place of “repeal” on one occasion. The words “principal” and “minorities” cannot go together, as “principal” means the singular main while “minorities” is in plural. Hence, basic English grammar demands using the word “minority” instead, and the section ought to be read this way. In fact, this is exactly what the High Court did in Anjuman-i-Ahli Sunnat Wal Jamat Kargil Vs. State and Ors. as well.

The intended phrase “principal minority” is hardly found in legal texts in India, and is not defined in the LAHDC Act. But it has been used frequently to refer to the largest religious minorities of countries around the world, including Muslims of India. See here, here and here for instances. It is therefore a colloquial phrase imported into legislation. Yet, the meaning and import of the phrase is far from ambiguous. Especially in the context of the LAHDC Act, whose holistic reading easily indicates the legislative intent behind the functioning of Section 4(2). Hence, before breaking down the high court’s judgement in Anjuman-i-Ahli Sunnat Wal Jamat Kargil Vs. State and Ors., it will be helpful to demonstrate the clear and correct interpretation of the phrase “principal minorities” from a simple reading of the act. 

In section 4(2), the phrase “in the district” immediately after “the principal religious minorities and women” requires attention. It qualifies “principal religious minorities” and “women” to mean minorities and women of the district. Women are women irrespective of their domicile status, so is a woman eligible to be nominated to Kargil’s council even if she belongs to or is domiciled in Leh, or vice versa? This is where Section 16 of the act becomes relevant. The section is as follows:

“A person shall not be qualified to be a member of the Council unless he is an elector.”

This provision clearly lays down one necessary eligibility criterion for someone to become a member of the council, i.e., being an elector. But who is an elector? Section 2(i) of the act defines an elector to mean “a person whose name is in the electoral roll referred to in section 6” of the act. Section 6 defines electoral roll to mean such electoral rolls as are in force for elections to the Jammu and Kashmir Legislative Assembly, to be used in relation to constituencies formed under section 5 of the act for elections to the hill councils. No assembly constituency in Ladakh fell within the jurisdiction of both Leh and Kargil in the erstwhile state. Kargil district had two assembly constituencies, 49-Kargil and 50-Zanskar and together the two made up the entirety of the district’s geography. Simply put, a joint reading of the relevant sections of the act shows that one is eligible to become a councillor only if his name is on an electoral roll in the district.

The scope of the LAHDC Act vis-à-vis the demography to which it applies is limited to the electorate of the district in question. The act for the purpose of the working of Kargil’s Hill Council is concerned “only” with the electorate of Kargil, and not that of the whole erstwhile state or the union territory of Ladakh, or India, or any other administrative unit. This means that the group of people from which “persons” in section 4(2) are nominated, after qualifying as belonging to either the main minority or the female gender, is a narrow and limited set, i.e., the electorate of Kargil. Hence, for the purpose of functioning of the LAHDC Act, the terms majority and minority must be seen in the context of the communal makeup of the concerned district’s electorate. Mere common sense is sufficient to determine that the majority of souls in Kargil’s electorate are Muslims. Shia Muslims alone constitute more than half of the electorate. Therefore, to say that Shia Muslims qualify as the principal minority or a minority at all for the purpose of functioning of the LAHDC Act in Kargil district is a baseless and nonsensical proposition.

In 2004, before the High Court of J&K, members of the Sunni community of Kargil had contended that they qualify as the principal religious minority in the district hence the SRO issued by the government nominating councilors to the then hill council be revoked. To the credit of Advocate Yarkain and Advocate Reyaz, the court did assert that the Shia and Sunni sects together form a single minority within the expression of “principal religious minority”. However, this statement has been taken completely out of context by them and its use for their purpose defies the ruling of the judgement itself.

The contention made by the Sunni community inevitably, and I believe without such an intention from their side, entailed that Sunnis are to be classified as a religion in minority in a region where Shias are the religion in majority. For the court, this warranted addressing the question of whether Sunnis and Shias were to be considered as separate religions in general. In fact, this pretty much shaped the ratio of the judgement. This has consequences for the purpose of functioning of Section 4(2) of the LAHDC Act. The second paragraph of the judgement reads thus;

“Admittedly the expression ‘principal religious minority’ is not defined in the Act, therefore, it has to be understood in its grammatical meaning which would mean the fundamental and primary religion. The primary religion of sunni and shia sects of muslims being Islam, therefore, both the sects are its constituents and together they form a single minority within the expression of ‘principal religious minority’.”

In the absence of a definition for the expression of “principal religious minority” in the act, the court made use of what is called literal construction in the interpretation of statutes in order to get at the correct understanding of it. This is a cardinal tool of interpretation in law with which an expression is interpreted in its ordinary, grammatical, and plain sense. This is the context in which the court asserted that Shias and Sunnis together form a single minority within the expression of “principal religious minority”. In other words, Shias and Sunnis together form a single religious minority in general, due to their religion being fundamentally the same. The court did not rule anywhere in the judgement that this attribution of minority status to Shias and Sunnis applies in the functioning of Section 4(2) of the LAHDC Act in Kargil. Rather, the context was the general interpretation of the expression. In fact, a mere cursory reading of the paragraph, which forms the main operating portion of the judgement, unsurprisingly shows that the contention made was rejected by the court. The same paragraph immediately after what was quoted by Advocate Yarkain reads thus;

“The classification urged by the learned counsel for the petitioners, if accepted, no wonder that all the four sub sects of sunni muslims namely Hanfi, Maliki, Hambli and Shaafi may raise similar voices and claim a minority status qua each other. Needless to say that any interpretation other than the one aforementioned, if allowed to hold good, absurdity will be the fall out. Viewed thus contention ) does not stand the test of rationality.”

Still, one may argue that notwithstanding the position of the court on the meaning of the expression, the scope of the issue before the court in 2004 was seemingly narrower and somewhat different from the case we have at hand. Since both Shias and Sunnis form the principal religious minority in general, what is the problem with members from either of the communities being nominated under Section 4(2)? Many. First, it must be understood that by including both Shias and Sunnis within a single minority in the expression “principal religious minority”, the court was merely addressing the contention that where Shia Muslims may constitute a majority, Sunni Muslims, while being merely a sect of the same religion, qualify as a religious minority on their own. Therefore, the judgement does not support such an application of the section. Secondly, if it is conceded that Shias and Sunnis both qualify as minorities for the purpose of the functioning of Section 4(2) of the LAHDC Act in Kargil, then who is in the majority? Minority status is by definition a relative status. There is a minority group only if there exists a majority group at the same time and in the same place. If the claims made by Advocate Reyaz and Advocate Yarkain are accepted, there remains no majority community in Kargil which would be a logical absurdity. Thirdly, as explained above, the expression “principal religious minority” accommodates only a single minority group, not multiple. Not all the three communities of Shias, Sunnis, and Buddhists or even the two communities of Muslims and Buddhists can fit together within the ambit of the expression. Fourth, the purpose of and the legislative intent behind Section 4(2) are defeated if both Muslims and Buddhists, who together make up almost the entirety of the population in both the districts of Ladakh, are brought under the ambit of the expression “principal religious minority”.

Hence, the only way to avoid all these absurdities and inconsistencies is to reject the idea that for the functioning of Section 4(2) of the LAHDC Act, any community other than the Buddhists qualify as the principal religious minority in Kargil, and any community other than the Muslims qualify as the principal religious minority in Leh. The whole case, to be fair, is a theoretical non-issue. The wording of the act is not confusing enough to warrant a controversy of such a degree. Neither is the judgement referred to by Advocates Reyaz and his supporters too lengthy or complicated for any literate person to not understand it. The incorrect representation of the judgement to the public created sufficient rationale to warrant a refutation. Moreover, it is highly unfortunate that the LAHDC Act is being abused this way as if it has not been abused enough already. The 2018 amendment which granted further powers to the councils and was a welcoming step towards decentralisation, has not been implemented even after seven years have passed. Strangely enough, there has hardly been a display of dissatisfaction from the public or those who claim to represent it, let alone calls for its implementation.

Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of Voice of Ladakh or its editorial team.