State-Wise Grant of Minority Status #3: SC Grants Six Weeks to Union to Consult With States/UTsState-Wise Grant of Minority Status
On November 22nd, 2022, a Bench led by Justice Sanjay Kishan Kaul granted six weeks adjournment to the Union government to gather the opinion of States in a PIL filed by Ashwini Upadhyay challenging the validity of National Commission for Minorities Act (NCM) 1992.
Ashwini Kumar Upadhyay, a lawyer and politician, filed a writ petition before the Supreme Court challenging the constitutionality of Section 2(f) of the National Commission For Minority Education Institutions Act and Section 2(c) of the NCM Act. The Petition noted that the ‘unbridled’ Central Government power to notify any community as a minority is unconstitutional. It argues that 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. It cited that 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 religion and 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 (2002). 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 a minority, as minority communities.
Today, ASG KM Natraj, appearing for the Union submitted that it has held consultative meetings with all State governments and Union territories for identification of minorities at the state level and 14 states have responded thus far.
Mr. Natraj submitted that 19 states and Union territories are yet to respond, owing to the far reaching consequences of the matter. He submitted that the Union will take any decision on this issue only after discussion with states and Union Territories.
The Bench, also consisting of Justice Abhay Oka, thus granted Centre six more weeks to hold consultations with the States and Union Territories.