"If there is a concrete case that Hindus are denied minority status in Mizoram or Kashmir, we can consider...... Unless and until we get a concrete situation, we can't deal with this"
The PIL filed by Devknandan Thaukur challenges the 1993 notification of the Central Government declaring Muslims, Christians, Sikhs, Buddhists, Parsi and Jain as minorities at the national level and seeks directions to identify minorities at district-level.
Senior Advocate Arvind Datar, appearing for the petitioner, submitted that notification of 1993 notified Muslims, Christians, Sikhs, Buddhists, Parsi and Jain as minorities at the national level. However, the judgments say minorities have to notified qua the particular state, he added.
The bench asked Datar whether a notification granting minority status was necessary for a community to exercise rights available to religious and linguistic minorities.
Without a notification, rights under Articles 29 and 30 can't be exercised, Datar replied.
At this juncture, Justice Bhat pointed out, "Look at linguistic minorities. A Kannada speaking person in Maharashtra is a minority. Is there any notification needed?"
The Court observed that as per precedents, minorities have to be defined state-wise. A Sikh institution claiming in Punjab is a travesty of justice. A Christian institution claiming the status in Mizoram will be a reversal of the situation, the bench pointed out.
Unless a Hindu person is denied minority status in any state, the bench may not be able to consider the issue, the court added while pointed out that the court was unable to understand the injury claimed by the petitioner at present.
"We are talking about Hindus being denied minority status. There is a general perception that Hindus cannot be minority", Datar submitted.
"Are you denied the status in any state? Now we are considering it in the air", Justice Lalit said.
"Are you challenging the notification of any particular institution as minority? Challenge is to the legislation? Are you affected by this? Where exactly is claiming your status?Mr.Datar, we are not able to understand what is the injury the petitioner is claiming?", Justice Lalit said.
Datar requested a week's adjournment to clarify the queries of the bench. He also pointed out that a similar petition is being considered by a bench led by Justice SK Kaul.
The court then adjourned the matter for two weeks, as per Datar's request.
Devkinadan Thakur's plea also states that 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.
On this note, the plea also challenges the constitutional validity of Section 2(c) of the National Commission for Minorities Act, 1992, which gives Centre power to notify minorities.
It is the petitioner's case that Hindus are numerically less in certain states and regions, but they are not given the rights of minorities. Relying on statistics of Hindus, the petitioner highlights that the numbers 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 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.
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.
This apart, the petitioner further 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.
On a related note, the Supreme Court is considering a similar PIL filed by Aswhini Upadhyay challenging the provisions of National Commission for Minorities Act 1992 and National Commission for Minority Educational Institutions Act 2004 and also seeks 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 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.
Case Title : Devkinandan Thakur Ji vs Union of India | WP(c) 446/2022
