States Can Also Declare Religious Or Linguistic Minorities: Center Before SC, Matter Adjourned For Completion Of Pleadings [Read Affidavit]

The Writ Petition filed by Advocate Ashwini Kumar Upadhyay seeking a determination of minorities at the state level has been adjourned to May 10 for fixing a date of hearing. While adjourning the batch of cases, the Court had directed the Center to file its replies in all cases and the Petitioners to file their rejoinders.

Senior Advocate Vikas Singh appeared for Advocate Ashwini Kumar Upadhyay, while Solicitor General Tushar Mehta and ASG K M Nataraj appeared for the Center. 

Tushar Mehta informed the Bench of Justice Sanjay Kishan Kaul and Justice M. M. Sundresh that he was not able to read the Affidavit that has been filed by the Center and sought an adjournment.

Vikas Singh submitted before the Court that in view of what has been stated in the Affidavit itself, the National Commission for Minorities Act, 1992 will "have to go".

The Center has filed its reply to Ashwini Upadhyay's plea stating that the State governments can declare any religious or linguistic community, including Hindus, as a minority within the said state.

The Counter Affidavit dated March 25, in response to Ashwini Upadhyay's plea seeking 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, has been filed by the Under Secretary to the Ministry of Minority Affairs.

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 Ministry of Minority Affairs in its response said that the State governments can also declare a religious or linguistic community as a minority community within the said state.

For instance, the Maharashtra government has notified 'Jews' as a minority community within the state. Moreover, the Karnataka government has notified Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lamani, Hindi, Konkani and Gujarati languages as minority languages within the state of Karnataka, it said.

"Therefore in view of the states also notifying minority communities, the petitioners' allegation that the 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 is not correct.", the Affidavit states.

The affidavit states that the Parliament has enacted the National Commission for Minorities Act, 1992, under Article 246 of the Constitution read with Entry 20 in the Concurrent List in Schedule 7.

"If the view that the States alone has the power to enact law on the subject of a minority is accepted, then in such a case, Parliament will be denuded of its power to enact law on the said subject and this would be contrary to the constitutional scheme," it says.

"The National Commission for Minorities Act, 1992 is not arbitrary or irrational and does not violate any of the provisions of the Constitution", it says.

The Ministry also denied that section 2(f) of the said act confers unbridled power to the Centre. It further told the Apex Court that minority welfare schemes are meant for underprivileged students and economically weaker sections of the minority community and are not for everyone belonging to the minority community.

"These schemes are only enabling provisions so as to achieve inclusiveness and therefore cannot be held to suffer from any infirmity. The support given, under these schemes, to the disadvantaged/underprivileged children/candidates of minority communities cannot be faulted with", the affidavit stated.

The Petition, filed through Advocate Ashwani Kumar Dubey, said that denial of benefits to the "real" minorities and "arbitrary and unreasonable" disbursements under schemes meant for them to the absolute majority infringes upon their fundamental right.

"In alternative, direct and declare that followers of Judaism, Bahaism & Hinduism, who are minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur, can establish & administer educational institutions of their choice in spirit of the TMA Pai Ruling," the plea said.

The Apex Court in the TMA Pai Foundation case 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.

Quoting Article 30 of the Constitution, the plea said that minorities whether based on religion or language shall have the right to establish-administer educational institutions of their choice.

The petition said that denial of minority rights to actual religious and linguistic minorities is a violation of the rights of minority enshrined under Articles 14 and 21 (no person shall be deprived of his life or personal liberty except according to procedure established by law) of the Constitution.

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.

Click here to read/download Center's Affidavit 

With PTI inputs