Minority tag for Hindus: Govt seeks time, tells Supreme Court it is sensitive

In its fourth affidavit, filed Monday in the matter in response to petitions by Advocate Ashwini Kumar Upadhyay and others, the Centre said it had received comments from 14 states and 3 Union Territories on the issue so far, and has sent reminders to others to send in their views at the earliest.

The petitioners, who have relied on the Supreme Court’s landmark 2002 decision in the TMA Pai case, have cast doubts on the legal sanctity of the consultation process, saying that after the ruling in the case, the Centre cannot notify anyone as minority anymore and, therefore, whatever deliberations it may be holding under the National Commission for Minorities Act, 1992 “cannot confirm minority status to anybody in a state”.

In the TMA Pai case, the Supreme Court laid down that for the purposes of Article 30 — which deals with the rights of minorities to establish and administer educational institutions — religious and linguistic minorities will have to be identified at the state-level.

Monday’s affidavit said the Central government “has held consultative meetings with all the state governments/ Union Territories and also with the other stakeholders, viz. Ministry of Home Affairs, Department of Legal Affairs – Ministry of Law and Justice, Department of Higher Education – Ministry of Education, National Commission for Minorities (NCM) and National Commission for Minority Educational Institutions (NCMEI)”.

It said that “some of the state governments/Union Territories have requested for additional time to have wider consultations with all the stakeholders before they form their considered opinion on the matter”, and that “the state governments were requested that in view of the urgency of the matter, they should expeditiously undertake the exercise with stakeholders in this regard so as to ensure that the views of the State Government are finalised and conveyed to the Ministry of Minority Affairs at the earliest”.

The Centre said that “14 States Governments namely Punjab, Mizoram, Meghalaya, Manipur, Odisha, Uttarakhand, Nagaland, Himachal Pradesh, Gujarat, Goa, West Bengal, Tripura, Uttar Pradesh, Tamil Nadu and 3 Union Territories namely Ladakh, Dadra and Nagar Haveli and Daman and Diu, and Chandigarh have furnished their comments/views”.

It said a reminder has been sent to the other 19 state governments/Union Territories to send their comments at the earliest so that it can be placed before the court.

The Centre said that “since the matter is sensitive in nature and will have far-reaching ramifications”, the court “may kindly consider allowing more time to enable the State Governments/Union Territories and stakeholders with whom consultative meetings have already been held, to finalise their considered views in the matter”.

Contentiding that the expression “minority” has not been defined anywhere, Upadhyay’s plea said that after the 2002 TMA Pai ruling, the October 23, 1993 notification by which the Centre had notified Muslims, Christians, Sikhs, Buddhists and Parsis, as ‘minority’ community, had become as good as invalid.

In 2014, the Centre had added Jains to the list, but on the last date of hearing, Senior Advocate Vikas Singh, appearing for Upadhyay, questioned the consultation process being undertaken by the Centre and said “after TMA Pai (case), the Central government can’t issue any such notification. So whatever deliberations they are doing under this Act cannot confirm minority status to anybody in a state”.

Although Upadhyay filed the plea in August 2020, the Centre did not file any response despite the Supreme Court issuing notice to it. Finally, it did so in March this year after it was pulled up for dragging its feet and a cost of Rs 7,500 was imposed on it.

In a counter-affidavit filed on March 25, the government sought to put the onus of granting minority status to Hindus upon state governments, saying “they, too, have concurrent powers to do so”.

With the stand drawing criticism, the government filed a new affidavit on May 9 “in supersession of the earlier affidavit”, which said “the power is vested with the Centre to notify minorities”.

The Union Minority Affairs Ministry said that the matter has “far-reaching ramifications”, and sought more time for discussions with “state governments and other stakeholders”.

This change in stand earned the ire of the bench, headed by Justice S K Kaul, which however allowed its request for time to carry out the proposed discussions.
Subsequently, on August 29, it filed its third affidavit in the matter stating that it had held discussions with eight states and two Union Territories and that they had sought more time for wider consultations with the stakeholders. It urged the court to grant more time for the consultations.

The court agreed and granted six more weeks to the government.