Minority Status To Hindus In Some States
The Supreme Court gave the Centre four more weeks to place its stand on a plea challenging the Centre’s power to notify minorities under the National Minorities Commission Act, 1992, and seeking minority status for Hindus in states where their numbers have gone below that of others. The petition by advocate Ashwini Upadhyay has contended that the 2011 census showed Hindus have become a minority in Lakshadweep (2.5%), Mizoram (2.75%), Nagaland (8.75%), Meghalaya (11.53%), J&K (28.44%), Arunachal Pradesh (29%), Manipur (31.39%), and Punjab(38.40%), but were being denied minority benefits.
Earlier, The Narendra Modi government has told the Supreme Court that certain States, where Hindus or other communities are less in number, can declare them a minority community within their own territories, to enable them to set up and administer their own territories, to enable them to set up and administer their own institutions. It said States can also declare a religious or linguistic group as a minority community within its territory, as Maharashtra did in case of Jews in 2016, Karnataka Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lamani, Hindi, Konkani, and Gujrati languages as minority languages over there. "The States too can certify institutions as being minority institutions as per rules of the said State," it said.
The submission was made in response to a plea filed by advocate Ashwini Kumar Upadhyay that sought directions for framing of guidelines identifying minorities at the state level contending that Hindus are in a minority in 10 states and are not able to avail the benefits of schemes meant for minorities. The Ministry of Minority Affairs submitted that matters concerning whether followers of Hinduism, Judaism, Bahaism can establish and administer educational institutions of their choice in the said states and those related to their identification as minority within the state may be considered at state level.
Upadhyay had challenged the validity of section 2(f) of the National Commission for Minority Education Institution Act, 2004 alleging that it gives unbridled power to the Centre and termed it “manifestly arbitrary, irrational, and offending”. Section 2(f) of NCMEI Act empowers the Centre to identify and notify minority communities in India
The Constitution refers to “minorities” in some Articles, but does not define the term. Neither does the National Minorities Commission (NMC) Act, 1992, under which the Centre notifies which communities are minorities. In the Constitution:
■ Article 29, which deals with the “Protection of interests of minorities”, says that “any section of the citizens residing in the territory of India or any part there of having a distinct language, script or culture of its own shall have the right to conserve the same”.
■ Article 30, which deals with the “right of minorities to establish and administer educational institutions”, says that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
■ Article 350(A) says there shall be a Special Officer for linguistic minorities to be appointed by the President. “It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under this Constitution and report to the President upon those matters...”
Parliament under Article 246 of the Constitution, read with Entry 20 in Concurrent List in Schedule Seven, has enacted the National Commission for Minorities Act, 1992. If the view that the State alone has the power to enact the law on the subject of the minority is accepted, then Parliament would be denuded of its power, which would be contrary to constitutional scheme.
The apex court in the TMA Pai Foundation case (2002) had held that the state is well within its rights to introduce a regulatory regime in the national interest to provide minority educational institutions with well-qualified teachers in order for them to achieve excellence in education. In Bal Patil Judgement (2005), the unit for determining status of both linguistic and religious minorities would be ‘state’.
The apex court had earlier allowed a plea seeking transfer of cases from several high courts to it against the Centre’s notification to declare five communities — Muslims, Christians, Sikhs, Buddhists, and Parsis — as minorities and tagged the matter with the main petition.