State governments can declare any religious or linguistic community, including Hindus, as a minority within that state, the center told the Supreme Court.
The submission was made in response to a plea filed by attorney Ashwini Kumar Upadhyay seeking guidelines for the development of guidelines identifying minorities at the state level, saying Hindus are in the minority in 10 states and are not able to benefit from the advantages of the schemes intended for minorities.
The Ministry of Minority Affairs argued that issues concerning the ability of followers of Hinduism, Judaism and Bahaism to establish and administer educational institutions of their choice in those states and those related to their identification as a minority within the state can be examined at the state level.
Mr Upadhyay had challenged the validity of Section 2(f) of the National Commission for Minority Education Act 2004, alleging that it gave unbridled power to the Center and called it “grossly arbitrary , irrational and offensive”.
Section 2(f) of the NCMEI Act empowers the Center to identify and notify minority communities in India.
The Ministry of Minority Affairs said in its response: “It is suggested that state governments may also declare a religious or linguistic community as a minority community within said state. “For example, the government of Maharashtra has notified ‘Jews’ as a minority community within the state. Additionally, the government of Karnataka has notified the languages Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lamani , Hindi, Konkani and Gujarati as minority languages in the state of Karnataka,” he said.
“Therefore, in view of the fact that States have also notified minority communities, the petitioners’ allegation that followers of Judaism, Baha’ism and Hinduism, who are genuine minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur cannot establish and administer educational institutions of his choice is not correct.” The affidavit states that Parliament enacted the National Commission for Minorities Act 1992, pursuant to Section 246 of the Constitution, read with entry 20 in the concurrent list of Schedule 7.
“If the idea is accepted that only the States have the power to enact laws on the subject of a minority, then, in such a case, Parliament will be deprived of its power to enact laws on the said subject, which would be contrary to the constitutional regime,” he said.
“The National Commission for Minorities Act 1992 is neither arbitrary nor irrational and does not violate any provision of the Constitution,” he said.
The ministry also denied that section 2(f) of the said law confers absolute power on the Centre.
He further told the Supreme Court that minority welfare programs are for disadvantaged students and economically weaker sections of the minority community and are not for everyone who belongs to the minority community.
“These programs are only enabling provisions aimed at achieving inclusion and therefore cannot be considered as suffering from any disability. The support provided under these programs to disadvantaged/disadvantaged children/candidates from minority communities is beyond reproach,” the affidavit stated.
The plea, filed through lawyer Ashwani Kumar Dubey, said denial of benefits to ‘true’ minorities and ‘arbitrary and unreasonable’ payments under programs aimed at absolute majority violate their basic right .
“Alternatively order and declare that followers of Judaism, Bahaism and Hinduism, who are minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur, may establish and administer educational institutions of their choice in the spirit of the TMA Pai decision,” the plea reads.
The Supreme Court in the TMA Pai Foundation case held that the state was fully entitled to introduce a regulatory regime in the national interest to provide minority educational institutions with qualified teachers so that they achieve excellence in education.
Citing Article 30 of the Constitution, the plea says that minorities, whether based on religion or language, have the right to establish and administer educational institutions of their choice.
The petition stated that the denial of minority rights to genuine religious and linguistic minorities is a violation of minority rights enshrined in Articles 14 and 21 (no one shall be deprived of life or personal liberty except in accordance with the procedure established by law) of the Constitution.
The Supreme Court previously allowed a plea seeking the transfer of cases from several high courts against the Center’s notification to declare five communities – Muslims, Christians, Sikhs, Buddhists and Parsis – as minorities and tagged the case with the main motion . .
(Except for the title, this story has not been edited by NDTV staff and is published from a syndicated feed.)