Plea In Supreme Court Challenges Notification Of Muslims, Christians, Sikhs, Buddhists, Parsis & Jains As Minorities At National Level; Seeks District-Wise Identification

A petition has been filed in the Supreme Court seeking directions to identify minorities at district level for the purposes of granting benefits under Article 29 and 30 of the Constitution.

The petition seeks to declare the 1993 notification of the Central Government declaring Muslims, Christians, Sikhs, Buddhists, Parsi and Jain as minority at national level, is arbitrary irrational and contrary to Articles 14, 15, 21, 29 and 30 of the Constitution.

As per notification dated October 23, 1993, the Ministry of Welfare of Government of India had notified these five religions as "minority communities" in exercise of the powers conferred by Section 2(c) of the National Commission for Minorities Act, 1992.

The PIL filed by Devkinandan Thakur also challenges the constitutional validity of Section 2(c) of the National Commission for Minorities Act, 1992, which gives Centre power to notify minorities.

The petitioner states that Hindus are numerically less in certain states and regions, but they are not given the rights of minorities. It is stated that Hindus are 1% in Ladakh, 2.75% in Mizoram, 2.77% in Lakshadweep, 4% in Kashmir, 8.74% in Nagaland, 11.52% in Meghalaya, 29% in Arunachal Pradesh, 38.49% in Punjab, 41.29% in Manipur. But the Centre has not declared them a 'minority'.

On the other hand, the petitioner says that Centre has declared Muslims as minority, who are 96.58% in Lakshadweep, 95% in Kashmir, 46% in Ladakh. Similarly, Centre has declared Christians as minority, who are 88.10% in Nagaland, 87.16% in Mizoram & 74.59% in Meghalaya. Hence, they can establish and administer educational institution of their choice as per Article 30.

Likewise, Sikhs are 57.69% in Punjab and Buddhists are 50% in Ladakh and they can establish & administer educational institution of their choice but not the followers of Bahaism and Judaism, who are merely 0.1% and 0.2% respectively at national level.

In this backdrop, the petitioner argues that Section 2(c) of the NCM Act 1992, which gives "unbridled power to the Centre" to notify minorities, is manifestly arbitrary, irrational & contrary to Articles 14, 15, 21, 29, 30 of the Constitution.

It is further stated that after the judgment in TMA Pai Case, [(2002) 8 SCC 481] the legal position is that the unit for determining status of linguistic and religious minorities would be State.

"The Judgment in the TMA Pai Case is law of the land; hence, the identification of religious and linguistic 'minority' has to be done on State only and Centre has to exercise its power under NCM Act & National Commission for Minority Educational Institutions Act(NCMEI) Act, not merely on the advice and recommendation of the National Commission for Minorities but also on consideration of social cultural and religious conditions of the community in each State. Religious and linguistic minorities for the purposes of Articles 29-30 must be determined State-wise countenancing numeric proportions of various groups and communities in each State. However, despite the above unequivocal position of law, the Centre has completely failed to apply the above principle evenly by excluding not only Hindus but also the followers of Bahaism and Judaism from the purview of 'minority' status under Section 2(c) of the NCM Act and Section 2(f) of the NCMEI Act", the petition filed through Advocate Ashutosh Dubey states.  

The petitioner seeks a direction to the Union Government to define '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 29-30.

It may be noted that the Supreme Court is considering a similar PIL filed by Aswhini Upadhyay challenging the provisions of NCM Act and NCMEI Act and seeking minority status for Hindus in certain States/UTs. Responding to Upadhyay's petition, the Centre, in an affidavit filed on March 28, had said that the 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 Government. Since states have the power to notify minorities, the petitioner's argument that the "real minorities" in the specified States are denied the protection of minority rights is untenable, the Centre had argued in that affidavit. 

However, later, the Centre changed its stand and filed a fresh affidavit retracting from the earlier one. In the latest affidavit, the Centre 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".

On May 10, the Supreme Court expressed disappointment at the Centre taking different stands in the case, and said that proper thought should have been taken before finalizing the affidavit. The Court asked Centre to file a report on the consultative process with the State Governments in this regard within 3 months.