States also empowered to declare a community as minority, Centre tells Supreme Court

If members of the Hindu, Jew and Bahai communities are minorities in a state, they can be officially declared so by the respective governments, the Centre has told the Supreme Court, reported Live Law on Sunday.

The Centre made the submission in an affidavit filed in response to a petition filed by Bharatiya Janata Party leader Ashwini Kumar Upadhyay. His plea argued that Hindus are a minority in ten states and Union Territories, but cannot avail benefits of government schemes aimed at minorities. These 10 states are Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur.

Upadhyay had claimed that minority rights of the Hindus were being “siphoned off illegally and arbitrarily” as neither the Centre nor states have notified them as minority under Section 2(c) of the National Commission for Minorities Act.

Upadhyay had also sought directions from the court so that followers of Judaism, Bahaism and Hinduism are allowed to establish educational institutions in states where they are in a minority.

In an affidavit filed in the matter on March 25, the Union Ministry of Home Affairs said that minorities are determined as per the state’s population, Live Law reported. The ministry cited the Supreme Court’s verdict in the 2003 TMA Pai case that held that minorities have to be considered statewise in order to abide by Article 30 of the Constitution, which provides minorities the right to establish educational institutes.

In its affidavit, the Centre cited example of the Maharashtra government’s 2016 decision to declare Jews as a minority in the state. The affidavit also cited a notification issued by the Karnataka government to declare those who speak in Urdu, Telugu, Malayalam, Tamil, Marathi and Tulu, among other languages, as linguistic minorities in the state.

“Therefore, in view of the states also notifying minority communities, the petitioner’s 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,” it said.

The Centre contended that state government could consider laying down guidelines of identifying minorities and allowing them to establish educational institutions.

‘Parliament can pass laws for minorities’

The Centre also defended its legislative powers to enact the National Commission for Minorities Act, 1992 and National Commission for Minority Educational Institutions Act, 2004.

Upadhyay had alleged in his petition that Section 2(f) of the National Commission for Minority Education Institution Act, 2004 was arbitrary and irrational and that it violates Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), 21 (right to life), 29 (protection of interests of minorities) and 30 of the Constitution.

He had claimed that the provision gives “unbridled powers” to the government to declare a community as a minority. The section defines minority as “a community notified as such by the central government”.

In its response, the Union home ministry said in the affidavit, that the Supreme Court’s declaration that states should be the unit for declaring minorities does not prevent the Centre from making laws on rights of the minorities.

The home ministry argued that Parliament is empowered under Article 246 of the Constitution and Entry 20 of the Concurrent List of the Seventh Schedule to enact laws to promote and protect the interests of minorities, reported Bar and Bench.

The Seventh Schedule defines allocation of powers and functions between the Union and state governments. The Concurrent List, which is a part of the Seventh Schedule, lists powers that both the central and state government share.

The home ministry said that declaring a community as a minority does not automatically guarantee that all its members will benefit from government schemes.

“The schemes are for economically weaker and socially disadvantaged amongst minorities,” it said.

The affidavit also noted that the the Centre had the constitutional obligation to protect minorities under Articles 38 and 46 of the Constitution.

The ministry submitted that Supreme Court had earlier dismissed three petitions filed by Upadhyay seeking similar reliefs and recommended that the judges should dispose off the current plea as well.

The court will hear the matter later on Monday.