States Can Give Hindus Minority Status If They're In Minority There; Minority Welfare Schemes Not Unconstitutional : Centre Tells Supreme Court

Hindus in States where they are in a minority can be notified as minorities for the purposes of Articles 29 &30 by the concerned State Governments, the Central Government has told the Supreme Court in a plea seeking minority status for Hindus in Mizoram,Nagaland, Manipur, Meghalaya, Arunachal Pradesh, Punjab, Lakshadweep, Ladakh, Kashmir etc.

Referring to the precedents in TMA Pai case and other cases, the Centre has told the Court that minorities are determined in reference to the entire population in a State Government.

The counter-affidavit filed in the PIL filed by Ashwini Upadhyay has stated that States have also the power to declare minorities. The example of the Government of Maharashtra declaring "jews" as a minority in the State in 2016 is cited. Also, Karnataka Government has notified Urdu, Telugu, Malayalam, Tamil, Marathi, Tulu etc. as linguistic minorities in the State.

Therefore, the Centre says that the petitioner's argument that followers of Judaism, Bahaism and Hinduism, who are the real minorities in Ladakh, Mizoram, Lakshadweep, Meghalaya, Nagaland, Punjab, Arunachal Pradesh and Punjab, cannot exercise the rights of minorities under Article 29 and 30 is not correct.

"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 is submitted that matters such as declaring the followers of Judaism, Bahaism and Hinduism, who are minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Manipur, Arunachal Pradesh and Manipur can establish and administer educational institutions of their choice in the said States and laying down guidelines for identification of minority at state level may be considered by the concerned State Governments", the affidavit filed by the Union Ministry of Minority Affairs stated.

Parliament also has legislative competence to pass legislations for minority

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

It is argued that the Supreme Court's declaration that States should be the unit for determining minorities will not denude the Centre and the Parliament of its competence to make laws and regulations with respect to minorities rights. Referring to Entry 20 of the Concurrent List of the Seventh Schedule, it is stated that both Parliament and State Legislatures have concurrent power to enact laws for the protection of minorities and their interests.

The Centre's affidavit also extracts quotations from the Supreme Court judgments regarding the intention behind Articles 29 and 30 to state that they are enacted to allay the apprehensions and fears in the minds of religious and linguistic minorities in India by giving them special guarantees.

Minority welfare schemes not arbitrary

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 and hence do not suffer from any constitutional infirmity, the Centre further said. "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.

"It is submitted that minority status based on religion does not automatically guarantee eligibility for benefiting from the schemes of the government. The schemes are for the benefit of economically weaker and socially disadvantaged amongst the minorities" ,the Centre adds. Reference is made to the directive principles under Articles 38(2) and 46 to highlight the constitutional obligation to protect the interests of weaker sections amongst the minorities.

Therefore, the Centre has refuted the argument that the National Commission for Minorities Act 1992 is arbitrary or irrational.

The Centre has also said that the Supreme Court has either disposed or dismissed three earlier writ petitions filed by the same petitioner seeking similar reliefs and has therefore sought for the dismissal of the instant petition as well.

The affidavit, sworn to by Shubendu Shekhar Srivastava, Under Secretary to the Ministry of Minority Affairs, was filed on March 25. Earlier, on January 7, the Supreme Court had imposed costs of Rupees 7500 on the Centre for not filing the affidavit despite several opportunities.

A bench led by Justice Sanjay Kishan Kaul will consider the matter on March 28.