Plea Against Identifying Minorities At National Level: Supreme Court Grants Last Opportunity To States, UTs That Are Yet To Submit Responses

The Supreme Court, on Monday, granted last opportunity to the State Governments and Union Territories that are yet to file their response stating their point of view regarding identification and notification of religious and linguistic minorities. The Apex Court directed them to submit their response to the Union Government within a period of six weeks.

A Bench comprising Justice SK Kaul and Justice Ahsanuddin Amanullah categorically recorded in the order that if the concerned States failed to file the report it would be presumed that they have nothing to say. On the last occasion, the Court had given a similar warning to the States that had failed to respond -

“We fail to appreciate why these States/Union Territories do not respond and thus give last opportunity to the Central government to obtain the responses from them, failing which we will presume that they have nothing to say.”

At the outset Additional Solicitor General, Mr. KM Nataraj apprised the Bench that Rajasthan and Telangana is yet to file their response, while Jammu and Kashmir has filed a partial response.

In May, 2022, the Apex Court had directed the central government to hold consultations with the states with respect to the issue of the identification of minorities. The Union Government had responded stating that it had held consultative meetings with the State Government/Union Territories and all other stakeholders including the Ministry of Home Affairs, Ministry of Law and Justice, Ministry of Education, National Commission for Women and National Commission for Minority Educational Institutions. It had informed the Court that 24 State Governments and 6 Union Territories had sent their comments. Arunachal Pradesh, Jammu and Kashmir, Lakshadweep, Rajasthan, Telangana and Jharkhand were identified as the States that had not filed their response. Along with the State Governments and UTs, the Union Ministries have also filed their response before the Apex Court. The Ministry of Home Affairs replied by stating that it has no specific comments to make in the matter. The responses of the Ministry of Education and National Commission for Minority Educational Institutions states that as per the judgment in TMA Pai Foundation, the identification of minorities at the district level is not legal because linguistic or religious minority is determinable only by reference to demography of the state because it differs from place to place.

Background

The petitioners seeks a direction to the Union Government to define the term 'minority' and lay down 'guidelines for identification of minorities at district level', in order to ensure that only those religious and linguistic groups, which are socially economically politically non-dominant & numerically very inferior get the benefits and protections guaranteed under Articles 29 and 30.

The petitions also challenge the constitutional validity of Section 2(c) of the National Commission for Minorities Act, 1992, which gives Centre power to notify minorities. In an affidavit filed by the Union Government on 28th March, 2022, it had said that the Hindus in States where they are in a minority can be notified as minorities for the purposes of Articles 29 and 30 by the concerned State Government. However, later, it changed its stand and filed a fresh affidavit retracting the earlier one. The Union Government said that it has the power to notify minorities, but a stand in this regard can be taken only after "wide consultations with State Governments and other stakeholders" to avoid "unintended complications in future". The Supreme Court was disappointed with the Union Government taking different stands. However, it had asked the Union Government to file a report on the consultative process with the State Governments.

[Case Title: Ashwini Kumar Upadhyay v. UoI And Ors. WP(C) No. 836/2020]

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