SC gives Centre last chance to wrap up collection of States’ views on minority identification

Centre given last opportunity to break the silence of J&K, Lakshadweep, Arunachal Pradesh, Jharkhand, Rajasthan and Telangana on NCM’s view that religious and linguistic minority communities ought to be identified State-wise

January 17, 2023 12:54 pm | Updated January 18, 2023 12:37 am IST - New Delhi

A view of the Supreme Court building, the apex judicial body of India, in New Delhi.

A view of the Supreme Court building, the apex judicial body of India, in New Delhi. | Photo Credit: ANI

The Centre's position in the Supreme Court on Tuesday remained uncertain on whether its 1993 notification identifying Muslims, Christians, Sikhs, Buddhists and Parsis as minority communities needed reconsideration in light of a view by the National Commission for Minorities that religious and linguistic minority communities ought to be identified State-wise. Instead, the Centre sought more time in court to gather the views of six States and Union Territories which have so far remained mum on the question.

Currently, 24 State governments and Union Territories have given a mixed response, some leaving the task of identifying minorities to the Centre or preferring status quo while others, including BJP-ruled Assam and Uttarakhand, and States like West Bengal and Tamil Nadu, maintaining that minorities should be identified at the State-level.

Appearing before a Bench led by Justice Sanjay Kishan Kaul on Tuesday, Attorney General R. Venkataramani said the six who have remained silent include Jammu & Kashmir, Arunachal Pradesh, Lakshadweep, Jharkhand, Rajasthan, and Telangana.

"I would presume that they have nothing to say then? Frankly, Jammu & Kashmir is administered by you at the moment. So is Lakshadweep… Is it that your own administrations are not responding?" Justice Kaul asked.

The Attorney General said Rajasthan, Jharkhand and Telangana were major States and their responses were important.

"We give a last opportunity to the Centre to get their responses, failing which we will presume that they have nothing to say," the court observed in its order, listing the case on March 21.

The hearing began with senior advocate C.S. Vaidyanathan, for petitioner-advocate Ashwini Upadhyay, drawing the court's attention to a status report filed by the Centre on January 10.

"The National Commission for Minorities (NCM) agrees with the definition of 'minority' not on a nationwide basis but State-wise… In spite of this, the 1993 notification continues… The government may either have to withdraw it or come up with a fresh notification," Mr. Vaidyanathan submitted.

The NCM's input, dating back to October 2020 and reproduced in the Centre's status report in January 2023, said "the State has to be regarded as the unit for determining linguistic and religious minority".

The Commission had referred to the court's 11-judge Bench judgment in the T.M.A. Pai Foundation case of 2002 and Bal Patil verdict of 2005, in which the apex court had clarified that "henceforth the unit for determining status of both linguistic and religious minorities would be 'State'".

The National Commission for Minority Educational Institutions, a statutory body notified by the Centre, too had referred to the T.M.A. Pai Foundation judgment’s conclusion that “a minority, whether linguistic or religious, is determinable only by reference to the demography of the State and not by taking into consideration the population of the country as a whole”. The Ministry of Education had also pointed to the logic presented by the 11-judge Bench decision.

Meanwhile, the Home Ministry said it has “no specific input or comments to offer in this matter”. The Law Ministry remained non-committal, saying the comments of the State governments were needed and it had “nothing more to add at this stage”.

Mr. Upadhyay has challenged 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. These Sections specifically empower the Centre to notify a minority community.

Mr. Upadhyay’s petition argued: “In exercise of the unbridled powers conferred by Section 2(c) of the NCM Act, the central government through notification dated October 23, 1993 arbitrarily notified five communities viz. Muslims, Christians, Sikhs, Buddhists and Parsis as ‘minority’ community, without defining ‘minority’ and framing guidelines for identification at State level. In 2014, Jaina were added in the list as the sixth minority, though the three judges Bench of the Supreme Court in Bal Patil case had very categorically refused to grant minority status to them.”

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