The government on March 28 apprised the Supreme Court that the followers of Hinduism, Judaism and Bahai, who are minorities in certain states, can be declared as such by the concerned state government.
Submitting an affidavit before the Court, the centre said the allegation that these communities cannot establish and administer educational institutions of their choice in places where they are in minority like in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh and Manipur is not correct.
The affidavit was filed in response to a petition by BJP leader and Advocate Ashwini Kumar Upadhyay, seeking a declaration that the followers of these faiths can establish and administer educational institutions of their choice in these places in the spirit of the TMA Pai ruling. The plea further sought a declaration that Section 2(f) of the National Commission for Minority Education Institution Act 2004, is arbitrary, irrational and offends Articles 14, 15, 21, 29 and 30 of the Constitution since it confers unbridled powers on the central government to declare a community as “minority”.
The petitioner submitted that followers of Judaism, Bahaism and Hinduism, who are real minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur cannot establish and administer educational institutions of their choice because of non-identification of “minority” at the state level. This, he said, jeopardises their basic rights guaranteed under Articles 29-30, which is being siphoned off illegally to the majority community in that state because the centre had not notified them “minority” under the NCMEI Act.
The PIL pointed out that Hindus are merely 1% in Ladakh, 2.75% in Mizoram, 2.77% in Lakshadweep, 4% in Jammu and Kashmir, 8.74% in Nagaland, 11.52% in Meghalaya, 29% in Arunachal Pradesh, 38.49% in Punjab and 41.29% in Manipur.
The plea asked for directions to be given to the respondents to lay down guidelines for identification of minorities at the state level in order to ensure that only those religious and linguistic groups which are socially, economically and politically non-dominant and numerically inferior, can establish and administer educational institutions of their choice.
The central government opposed the plea contending that Parliament is empowered under Article 246 of the Constitution read with Entry 20, i.e., “Economic and Social Planning” of the Concurrent List in Schedule 7 of the Constitution to enact a law to promote and protect the interests of minorities. This power is complemented by the executive powers of the central government under Article 73.
Under Section 2(c) of the Act, the central government notified six communities—Muslims, Christians, Sikhs, Buddhists, Parsis and Jains—as minorities, it was highlighted.
As Parliament has the competence to enact law, such as the National Commission for Minorities Act, the natural corollary is that executive competence to notify a community as “minority” under the said Act is also vested in the central government, it was submitted. The affidavit also said that declaration of a community as minority does not automatically guarantee all minority community members from benefiting from the schemes of the government. Hence, the National Commission for Minorities Act is not arbitrary and Section 2(f) of the Act does not give any unbridled powers to the central government, the affidavit submitted.
Further, the power of state governments to enact legislations for the protection and promotion of the interest of minorities is derived from the Concurrent List and not from the State List (List II of Schedule 7). If the view that states alone have the power to enact law on the subject of the minority is accepted, then Parliament will be denied its power to enact law on the said subject, and this would be contrary to the constitutional scheme, the centre made it clear.
The Union Ministry of Minority Affairs told the Supreme Court that while the central government has notified six communities, namely Christians, Sikhs, Muslims, Buddhists, Parsis and Jains, as minorities at the national level, it is open for states and UTs to notify Hindus as a religious or linguistic minority where they are less in number.
State governments can declare a religious or linguistic community as a “minority community” within the said state. Matters, such as declaring that followers of Judaism, Bahaism and Hinduism, who are minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur, can establish and administer educational institutions in the said state and laying down guidelines for identification of minority at the state level may be considered by the concerned states, noted the affidavit.
The centre submitted that the Maharashtra government notified Jews as a minority community in 2016. The Karnataka government notified Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lamani, Hindi, Konkani and Gujarati languages as minority languages. Therefore, the state government can also declare a religious or linguistic community as a “minority community”.
A bench of Justices SK Kaul and MM Sundresh had earlier imposed a fine of Rs 7,500 on the Union government for not taking a stand on Upadhyay’s petition. In 2019, the Court had declined to entertain a plea by Upadhyay seeking declaration of Hindus as minorities in eight states.
In the TMA Pai case, the Supreme Court had said that for the purposes of Article 30 that deals with the rights of minorities to establish and administer educational institutions, religious and linguistic minorities have to be considered state-wise.
In the case of DAV College Bathinda vs State of Punjab, the apex court rejected the contention that as Hindus are in majority in the country, they cannot be held as minority in the state. In Bal Patil vs Union of India, the question before the top court was whether Jains can be declared as minorities under Section 2(c) of National Commission for Minorities Act, 1992.
Article 29 of the Constitution deals with the “Protection of interests of minorities”, whereas Article 30 deals with the “right of minorities to establish and administer educational institutions”. The term “minority” has not been defined under the Constitution. Section 2(c) of the National Commission for Minorities Act, 1992, simply says that “Minority” for the purposes of this Act means a community notified as such by the central government.
The centre issued a notification on October 23, 1993, which simply declared Muslims, Christians, Sikhs, Parsis and Buddhists as minorities without there being any guidelines. Jains were added to the list in 2014, based on their demographic numbers. Currently, only those communities notified under Section 2(c) of the National Minorities Commission Act, 1992, by the central government are regarded as minority.
Himanta Biswa Sarma, the chief minister of Assam, speaking in the state assembly on March 30, said that the state government was in favour of defining minority status to religious groups district-wise, instead of the existing norm of a nationwide declaration of minorities. The chief minister further said that in Assam, people of some communities were availing benefits accorded to religious minorities as well as those meant for other backward castes, scheduled castes and scheduled tribes.
Earlier on March 16, the Assam chief minister said that Muslims constitute 35% of Assam’s population and cannot be considered a minority there anymore. He said that it was their responsibility to ensure communal harmony in Assam.
—By Shivam Sharma and India Legal Bureau