The Centre’s shifting stands on who can grant minority status left the Supreme Court displeased on Tuesday even as the political push for giving Hindus the ‘minority’ tag in as many as 10 States where the religious community is numerically low turns increasingly strident.
On March 25, the Ministry of Minority Affairs, in an affidavit, told the court that both the Centre and States had “concurrent power” to notify minorities. It had even said that States could also recognise a community as a minority at the individual State level.
“States can also declare a religious or linguistic community as a minority community within the said State,” the Ministry had said.
Hardly two months later, a “superseding” affidavit filed by the same Ministry on May 9, reversed its own position.
This time, the Ministry claimed that the Centre alone was vested with the power to notify a minority community.
The three-page affidavit said Section 2(f) and Section 2(c) of the National Commission for Minorities Educational Institutions Act, 2004, and the National Commission for Minorities Act, 1992, respectively, passed by the Parliament, empowered the Centre to notify a minority community.
“The power is vested with the Central government to notify minorities,” the Ministry submitted.
The Centre, in the same second affidavit, however turned around to say it would still have to engage in a “wide consultation with the State governments and other stakeholders” before notifying any community as a minority.
The “wide consultations” would avoid “any unintended complications in future with regard to such a vital issue”, it reasoned with the court. The Centre said there were “several sociological and other aspects” at play here.
“You seem to have taken a U-turn from your earlier stand... You people have not been able to decide what you have to do... There is a lot of uncertainty. If you had wanted to consult, who was stopping the government of India... Taking different stands does not help. Consultations should have taken place before you filed your affidavits... We do not appreciate this,” Justice Sanjay Kishan Kaul, leading a Bench comprising Justice M.M. Sundresh, lashed out at the government.
Referring to the two affidavits, Justice Kaul said “first you say Parliament and State legislatures have concurrent powers, then you back out and say only Centre has the power. You also say that you need to consult as there are far-reaching ramifications which may have unintended complications”.
The court, however, for the time being acquiesced with Solicitor General Tushar Mehta’s request to give the Centre three months to hold the consultations. It posted the case on August 30 and directed it to file a status report three days before the court hearing.
Mr. Mehta said the second affidavit was filed after meetings among three Ministers, in which he was also present, to discuss the “potential fall-outs”.
The Bench said it was important for the Centre to take a stand as the country was religiously and linguistically diverse.
“In different States different communities are minorities. A community which is a majority in large parts of the country can be a minority in certain States. The interests of these communities must be protected,” the court noted.
Advocate Ashwini Upadhyay, the petitioner-in-person, said his petition was not focussed on Hindus. He said the petition was a challenge to the provisions of the 1992 and 2004 statutes which gave the Centre the exclusive power to notify a minority community.
Mr. Upadhyay has argued that the followers of Judaism, Baha’ism and Hinduism — who are the real minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur — cannot even establish and administer educational institutions of their choice in these States.
He argued that religious and linguistic minorities were spread all over the country and not restricted to any single State or Union Territory. He has sought a clear answer from the government as to whether it was the Parliament or the State legislatures which had the power to notify a minority community and protect its interests in accordance with the constitutional guarantees.
