EXPLAINER
The story so far: A public interest litigation (PIL) under the consideration of the Supreme Court of India challenges the power of the Centre to notify minority communities at a national level.
Who is a minority and who decides that?
The PIL specifically questions the validity of Section 2(f) of the National Commission for Minority Educational Institutions or NCMEI Act 2004, terming it arbitrary and contrary to Articles 14, 15, 21, 29 and 30 of the Constitution. Section 2(f) says “minority ,”for the purpose of this Act, means a community notified as such by the Central Government.” Section 2(c) of the of National Commission for Minorities (NCM) Act, 1992 also gives the Centre similar powers.
In 2005, the Congress-led United Progressive Alliance (UPA) at the Centre notified five communities — Muslims, Christians, Sikhs, Buddhists and Parsis — as minorities at the national level. In 2014, the Manmohan Singh government notified followers of Jainism as a minority community, making them the sixth on the national list.
What does the PIL argue?
The petitioner argues that the Centre’s decision was arbitrary since the SC had held, in the T. M. A. Pai Foundation vs State Of Karnataka case of 2002 that, “for the purpose of determining minority, the unit will be State and not whole India.” The petitioner argued that the Centre’s notification has created an anomalous situation in which the communities declared as minorities by the Centre enjoy the status even in States/UTs where they are in majority (Muslims in Jammu and Kashmir and Christians in Nagaland for instance) while followers of Hinduism, Judaism and Bahaism who are minorities are not accorded the same status under the Act.
The petition seeks the SC to curtail the Centre’s power to notify national minorities or direct the Centre to notify followers of Hinduism, Bahaism and Judaism as minorities in States/UTs where they are actually fewer in numbers; or direct that only those communities that are “socially, economically and politically non-dominant” besides being numerically smaller in States/UTs be allowed the status of minorities.
How has the Centre responded?
The Centre filed two affidavits in the case, the second one on May 9, suppressing its first affidavit that was filed on March 25. In both, the Centre said it had the power to notify minority communities. In the first, the Centre categorically defended the concept of minorities at the national level; in the second, it remains silent on that specific question. In other words, the Centre has not taken a position, one way or the other, about continuing the national list of minorities while it reiterated its power to notify communities as minorities under Central Acts. In the first affidavit, the Centre had pointed out that it had concurrent powers with States to take measures for the welfare of minorities. States could have minorities notified as such within their jurisdiction, and it even cited the examples of Maharashtra recognising Jews as a minority community and Karnataka recognising speakers of several languages as linguistic minorities. In the second affidavit there is no such elaboration. While it says the power is vested in it, the affidavit does not go as far as questioning the powers of the State on this question.
In the first affidavit, the Centre said the pleas made by the petitioner must be rejected; in the second, the Centre said the PIL dealt with ‘vital’ issues and sought time to consult with all stakeholders before it could take a position. In the first instance, the Centre went on to defend the constitution of the new Ministry of Minority Affairs and the Sachar Committee that studied the backwardness of Muslims in India — both UPA measures, criticised by the Opposition Bharatiya Janata Party then. In the second affidavit on May 9, the Centre did not defend these decisions of the previous Congress regime.
The May 9 affidavit, in fact, leaves all questions open, other than the emphatic claim that the Centre has the power to notify minorities under the two Acts.
What next?
The Centre’s second affidavit leaves its own stand on the entire issue ambiguous, and perhaps it was intended that way. The Centre has said it would come back to the apex court “after consideration of several sociological and other aspects.” It said “any stand without detailed deliberations with stakeholders may result in an unintended complication for the country.” Though the power is vested with the Central government, it would consult the States and other stakeholders.
