The Supreme Court will decide if Section 2(f) of The National Commission for Minority Educational Institutions Act, 2004 and Section 2(c) of The National Commission for Minorities Act, 1992 is constitutionally valid. It will also decide whether the Central Government disregarded TMA Pai which had mandated religious and linguistic groups to be granted minority status based on their state-wise population.
Section 2(f) of The National Commission for Minority Educational Institutions Act, 2004 [“NCMEI Act”] and Section 2(c) of The National Commission of Minorities Act, 1992 [“NCM Act”] defines minority as a community that the Central Government identifies and notifies as one. For the first time, in 1993, the Central Government identified Muslims, Christians, Sikhs, Buddhists and Parsis as minority communities. In 2014, the Government added Jains to the list.
Ashwini Kumar Upadhyay, lawyer and politician, has filed a writ petition before the Supreme Court challenging the constitutionality of Section 2(f) of the NCMEI Act and Section 2(c) of the NCM Act. The petitioner argued that the ‘unbridled’ Central Government power to notify any community as a minority is unconstitutional. Historically, the Government has not conducted a scientific, statistical survey and framed guidelines on identifying a minority community. By not evaluating population state-wise and declaring minority communities on a national scale, several communities which are a minority in several states are disadvantaged, the petitioner asserted. For example, Hindus constitute 1% of the population in Ladakh, 2.75% in Mizoram, 2.77% in Lakshadweep. As per the 2011 census, Hindus in six states and two Union Territories are minorities. They cannot avail constitutional benefits conferred to minorities.
Article 29 of the Constitution of India, 1950 secures the cultural and educational rights of minorities. Article 30 empowers minorities to establish and run educational institutions. The petitioner argued that the communities in each state in which they are in minority are denied these fundamental rights.
The petitioner believes that the nation-wide determination of minority status is “arbitrary, irrational and offensive”. It is discriminatory based on religionand violates Articles 14, 15, 21, 29 and 30 of the Constitution of India, 1950. Moreover, the Central Government has ignored the precedent in TMA Pai Foundation v. State of Karnataka. This eleven judge-bench judgment establishes the state as a unit for identifying and declaring minority communities.
The petitioner urges the Court to declare Section 2(f) of the NCMEI Act and Section 2(c) of the NCM Act unconstitutional. Alternatively declare followers of Judaism, Bahaism and Hinduism in a state where they are aminority as minority communities.
The petitioner had filed a similar PIL in 2017 seeking grant of minority status to Hindus in states where they are a minority. However, the Supreme Court bench led by then Chief Justice Ranjan Gogoi had directed Upadhyay to approach the National Commission for Minorities, asking him to withdraw the case.
The Supreme Court, in 2021, has decided to admit the new PIL. On 9th February 2021, the Court transferred similar challenges before the High Court to itself.
1. Whether Section 2(f) NCMEI Act and Section 2 (c) NCM Act violate Articles 14, 15, 21, 29 and 30 of the Constitution of India, 1950?
2. Whether the Central Government has disregarded TMA Pai by identifying minority communities on a national scale?