Plea Challenging National-Level Identification Of Minorities : Supreme Court Adjourns To March 21

The Supreme Court of India, while adjourning the batch of petitions challenging nation-wise identification of minorities to 21st of March, ordered on Tuesday that if the 6 remaining states/UTs, who have not responded to the Centre’s letter seeking comments on the issue of 'identification and notification of religious and linguistic minorities’, do not respond before the next hearing, then the court would presume that they have nothing to say in the matter.

Senior Advocate CS Vaidyanathan appearing for the Petitioner Ashwini Kumar Upadhyay in the matter started by submitting that, “Union has filed a status report. The report agrees that States should be the unit and not the Union. If this is the case, then 1991 notification(which notified 6 communities as minorities at national level) has to go.”

The Attorney General for India Senior Advocate R. Venkataramani informed the court in the beginning of the hearing, “6 states have not given their responses. Let me take stock from them and come back before your lordships.”

The Bench comprising Justices Sanjay Kishan Kaul, Abhay S Oka and JB Pardiwala immediately remarked, “We can't keep postponing like that. We will presume they have nothing to say.”

AG then pointed out and said, “These are major states who have not responded.”

The bench then passed an order stating, “Learned AG submits that 6 states have not given their response. We fail to appreciate why these states should not respond. We give last opportunity to the Central Government to take their response failing which we will presume they have nothing to say.”

At this point, Mr. Vaidyanathan remarked, “J&K is one of the states that have not responded. In J&K Hindus are minorities. We understand why they have not responded.”

The Bench then asked the AG, “But J&K is being administered by you right now. How much time do you need Attorney?”

The AG informed the bench that he was seeking for a date sometime in the month of March.

The petitioner who was also appearing in person Ashwini Upadhyay urged the court to give an early hearing as it was “an important matter”. “There is a complete vacuum in this aspect,” he added.

The bench did not appreciate the insistence and said, “Which matter is not important. All matters are important”. The Bench then listed the matter for the 21st of March.

Context

It is important to point out that 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 Central Government filed its status report before the top court stating that "Based on the above order, the Central government held consultative meetings with all the State Governments/Union Territories including other stakeholders." It further stated that 24 state governments and 6 UT’s had sent their comments however 6 states/UT’s had not replied despite several reminders issued to them.

It is important to note that the States/UT’s that have not replied are - Arunachal Pradesh, Jammu & Kashmir, Lakshwadeep, Rajasthan, Telangana and Jharkhand.   

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.

However, later, the Centre changed its stand and filed a fresh affidavit retracting 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 had 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 had then asked Centre to file a report on the consultative process with the State Governments in this regard within 3 months.

The Centre had submitted status report after consultation with State Governments and other stakeholders on the 12th of January. 

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

Click Here To Read/Download Order