Identification Of Minorities : Centre Files Report In Supreme Court With Views Of States

The Central Government has submitted its Status Report, in a batch of petitions seeking district-wise identification of minorities, before the Supreme Court of India after consultations with the State Governments and other stakeholders on the issue of 'identification and notification of religious and linguistic minorities' based on the top court's earlier order.  

Earlier 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 reply by the Central Government states that, "Based on the above order, the Central government held consultative meetings with all the State Governments/Union Territories including other stakeholders such as the Ministry of Home Affairs, Ministry of Law and Justice, Ministry of Education, National Commission for Women and National Commission for Minority Educational Institutions." 

The reply further states that 24 state governments and 6 UT’s have sent their comments however 6 states/UT’s have not replied despite several reminders issued to them. The States/UT’s that haven't replied are - Arunachal Pradesh, Jammu & Kashmir, Lakshwadeep, Rajasthan, Telangana and Jharkhand.

Ministry of Home Affairs has replied by stating that it has no specific comments to make in the matter. It however also states that, “the issue of the authority of the Parliament or the State Legislature to exclusively legislate on matters pertaining to minority communities is to be examined in consultation with the Ministry of Law and Justice”.

Ministry of Education's response states that, “As per the judgment of the Hon’ble SC 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.” 

The National Commission for Minority Educational Institutions has stated that "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".

Reply of States 

The States of West Bengal and Punjab took the stand that the State Government should have the right to identify and notify religious and linguistic minorities.

Punjab said it had enacted The Punjab State Commission for Minorities Act, 2012 and declared Jains as a minority in April 2013. It said that “in India, different communities are in majority or minority in different provinces/states…. Keeping in view the above as well as the peculiar geographical and social scenario of the state of Punjab, only the state government is in the position to better appreciate the interests, well being and problems of different sections/communities residing in the state. It is important that the state continues to do so in order to provide protection to minorities and safeguard their interests”.

States of Andhra Pradesh, Tamil Nadu, Uttarakhand, Assam, Manipur and Sikkim that have specifically stated in their reply that it should be the State and not the Nation that should be treated as a unit for the purposes of identification and notification of religious and linguistic minority.

Tamil Nadu  however added that “even if the unit is considered to be the state, religious minorities status cannot be conferred merely based on the population in a particular state but it should also take into account factors such as the actual or probable deprivation of the religious, cultural and educational rights and their socioeconomic status…”.

Manipur, while favouring state as the unit for determining religious minorities, also said “any religious group which constitutes less than 50% of the states population should be recognised as a religious minority group of the state”.

A total of 10 states i.e. Nagaland, Bihar,  Gujarat, Karnataka, Kerala and Madhya Pradesh have preferred status quo in the matter. 

Odisha opposed the petitioners prayer to remove any of the six notified minorities from the list or to declare any other community as a minority(the petitioners also seek declaration of Hindus as minorities in certain states).

Chhattisgarh stated that present Section 2(f) of the National Commission for Minority Educational Institutions Act may be retained in the present form (this provision is also under challenge in the petitions).

The States of Haryana and Maharashtra said that the Central Government can notify the minorities. Maharashtra added that the state had notified the six communities as religious minorities and those whose language is not Marathi are considered linguistic minorities.

State of Uttar Pradesh said it has no objection if any decision is taken by the Central Government in the matter.

Meghalaya said it has no comments to offer.  Union Territories of Dadra and Nagar Haveli and Daman & Diu, Chandigarh, Andaman & Nicobar Islands, J&K&L have replied by stating that they would follow the directions of the Central Government in the matter.     

The only state that has specifically replied that the Nation must be treated as a Unit is Himachal Pradesh. Himachal Pradesh said that the existing notification issued by the Central Government in 1992 notifying 6 communities as minorities "adequately meet the Constitutional Standards".

State of Mizoram has replied by stating that the matter of reservation for minorities forms part of Concurrent list and therefore both the State Government and the Central Government have the authority/power to make laws on the subject and that this is a policy decision and should be left to the two governments.      

Delhi's reply is particularly interesting in so far as it states that it has no objection if the followers of Judaism and Buddhism are declared as minority communities by the Central Government. It further states that "the Central Government may declare 'migrated minority' status to the followers of Hinduism who are religious minority in their origin state (i.e. Jammu and Kashmir, Ladakh, etc.) and are residing in Delhi after migration from their home state"  

Puducherry has replied by stating that the prayers in the Writ Petition does not concern the Union Territory. 

The Centre said that comments from 6 States/UTs - Arunachal Pradesh, J&K, Jharkhand, Lakshadweep, Rajasthan and Telangana are awaited.

Background

The petitioners seeks a direction asking 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.

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.

Responding to one of the petitioner, Ashwini 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 and 30 by the concerned State Government.

Case Title : Ashwini Kumar Upadhyay versus Union of India WRIT PETITION (C) NO. 836 OF 2020