Plea Challenging Centre's Power To Notify Minorities : Supreme Court Seeks Clarity On Which Ministry Should Respond

The Supreme Court on Monday pointed out that there is confusion regarding which Ministry of the Union Government should respond to a petition which seeks directions to notify Hindus as minority in certain states where they numerically less and challenges the validity of power of the Central Government to notify minority communities.

A bench led by Justice Sanjay Kishan Kaul noted that the Registry, in its office report dated March 28, 2022, has recorded the statement made by the Ministry of Home Affairs, which is arrayed as the first respondent in the case, that it has no role in the matter as the National Commission for Minorities and the National Commission for Minority Educational Institutions come under comes under the purview of the Ministry of Education (erstwhile MHRD) and Ministry of Minority Affairs respectively.

The statement from Mr. Rajendra Kumar Bharti, Under Secretary, Ministry of Home Affairs, further stated that since MHA has no role in the matter, the Ministry of Minority Affairs (respondent no. 3) may deal with the matter in consultation with Ministry of Education and Ministry of Law and Justice (respondent no. 2) and also protect the interest of MHA in the Writ Petition.

The relevant extract from the Office Report of the Registry is as follows :

"...an Office Memorandum F. No. 14018/02/2020-NI.I (Pt-I) dated 09.10.2020 from Mr. Rajendra Kumar Bharti, Under Secretary, Ministry of Home Affairs (IS-I Division : NI.I Section) has been received stating therein that the subject matter of the above petition is related to the National Commission for Minority Educational Institutions Act, 2004 and the National Commission for Minorities Act, 1992, which comes under the purview of the Ministry of Education (erstwhile MHRD) and Ministry of Minority Affairs respectively. As MHA (respondent no. 1) has no role to play in the matter, it is requested that Ministry of Minority Affairs (respondent no. 3) may deal with the matter in consultation with Ministry of Education and Ministry of Law and Justice (respondent no. 2) and also protect the interest of MHA in the Writ Petition".

When the matter was taken today, the bench pointed out this aspect to Solicitor General Tushar Mehta.

"The office report say that the MHA has said that the matter pertains to Minority Affairs Ministry", Justice Kaul said.

The Solicitor General agreed to look into this issue. The SG also sought adjournment saying that he is yet to examine the counter-affidavit stated to have been filed by the Ministry of Minority Affairs in the matter.

"The reply appears to be in the newspapers", Justice Kaul commented in a lighter vein.

"It is the peculiarity of some PILs that the the documents reach the media before it reaches the law officers", SG added.

In the affidavit, the Ministry said that States are also empowered to notify minorities and that 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 plea filed by lawyer Ashwini Upadhyay seeks minority status for Hindus in Mizoram,Nagaland, Manipur, Meghalaya, Arunachal Pradesh, Punjab, Lakshadweep, Ladakh, Kashmir etc.

The petition also challenges the validity of the power of the Central Government to notify minorities and challenges the National Commission for Minorities Act on the ground that as per Supreme Court verdicts, States are the unit for determining religious and linguistic minorities. In this regard, the Centre stated that as per Entry 20 of the Concurrent List of the Seventh Schedule, both Centre and States have concurrent power to enact laws for the protection of minorities and their interests.

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.