Minority tag for Hindus: SC hearing on March 28, govt yet to file counter-affidavit
THE UNION government is yet to file its counter affidavit in the Supreme Court in a petition which has raised the politically sensitive prayer to identify minorities at the state level as laid down in the 2002 T M A Pai case and grant minority status to Hindus in states where their numbers are lesser. Censured by the top court last time for dragging its feet in the matter, the BJP-led government has instead sought to shift the onus of dealing with the question from one ministry to another.
On January 7, a Bench of Justices S K Kaul and M M Sundresh had given the Centre four more weeks as the “last opportunity” to file its counter affidavit on the petition filed by advocate Ashwini Upadhyaya in August 2020.
As the Centre failed to file any response even after this, the SC on January 31 imposed a cost of Rs 7,500 on it, to be deposited with the Supreme Court Bar Association Advocates Welfare Fund and gave it one “further opportunity” of four weeks. Conveying its displeasure with the government for not taking a stand, the Bench told Additional Solicitor General K M Nataraj, who appeared for the Centre, that “on August 28, 2020, we issued notice to you. On October 12, 2020, we granted time to file counter-affidavit. After that, how many opportunities have gone by?…This is not fair. You have to take a stand”.
“Definitely we will take a stand. It is almost ready. Only because of the (Covid-19) situation we could not get it signed,” the law officer had replied, seeking one more opportunity.
But with the matter due for hearing again on March 28, an office report drawn up by the SC Registry has noted that no counter-affidavit has been filed, though the January 31 order was communicated to all the three respondents in the matter – Ministry of Home Affairs (MHA), Ministry of Law and Justice and Ministry of Minority Affairs.
“The counsel for the Ministry of Minority Affairs has neither filed counter affidavit nor submitted proof of depositing Rs 7,500 with the Supreme Court Bar Association Advocates Welfare Fund, to date,” said the report prepared on March 25, adding that no one had even filed “vakalatnama” on behalf of the Secretary, Ministry of Home Affairs.
It added that “however, an office memorandum… dated October 9, 2020, from Rajendra Kumar Bharti, Under Secretary, Ministry of Home Affairs…has been received stating therein that the subject matter of the…petition is related to the National Commission for Minority Educational Institutions Act, 2004, and the National Commission for Minorities Act, 1992, which comes under the purview of the Ministry of Education and Ministry of Minority Affairs, respectively. As MHA… has no role to play in the matter, it is requested that Ministry of Minority Affairs… may deal with the matter in consultation with Ministry of Education and Ministry of Law and Justice… and also protect the interest of MHA in the writ petition”.
What it does not say is that this is not the first time that the prayer for determining minority status is being raised in the SC and that even on earlier occasions, the Centre had not pressed for an early resolution of the question.
Upadhyay had first moved the SC in 2017, praying for appropriate guidelines for the identification of minorities and quashing the notification issued by the government on October 23, 1993, under Section 2(c) of the National Minorities Commission (NCM) Act declaring Muslims, Christians, Sikhs, Buddhists and Parsis as ‘minority’ community. He pointed out that Jains were also added in the list in 2014, but not the Hindus, though they are minority in seven states and one union territory, as per 2011 Census.
Taking it up for hearing in November 2017, a Bench of Justices Ranjan Gogoi and Navin Sinha asked him to approach the Nation Commission for Minorities (NCM).
He accordingly gave a representation to the NCM but received no reply following which he again moved the SC.
On February 11, 2019, a Bench comprising Justice Gogoi — who had by then taken over as the Chief Justice of India — and Justice Sanjiv Khanna asked the NCM to take a decision on the representation within three months after which it said Upadhyay “will be free to avail of such remedies as available to him in law”.
Deciding the representation after the SC order, the Commission, however, took the stand that it “does not have the jurisdiction to deal with the prayer…” and that under Section 2(c) of the NCM Act, “the repository of powers to declare a community as a ‘minority community’ is vested with the Centre,” which it cannot usurp.
Upadhyay raised this before the SC where a Bench of CJI Gogoi and Justices Deepak Gupta and Aniruddha Bose on July 19, 2019, sought the assistance of Attorney General K K Venugopal.
Arguing a matter sometime thereafter before Justice S A Bobde, who was then the second most senior judge, Venugopal had referred to this and said he would be rendering his assistance.
But by the time it was listed next for hearing on December 17, 2019, CJI Gogoi had demitted office and the new Bench headed by then CJI S A Bobde dismissed the petition without giving any reasons.
The fresh plea also challenges the Constitutional validity of Section 2(c) of the NCM Act. Similar petitions against the NCM Act were also filed in the meanwhile before the High Courts of Delhi, Meghalaya and Gauhati, which the SC transferred to itself on January 7, 2022.
Upadhyay’s plea relies on the majority judgment of the Supreme Court in the 2002 TMA Pai case in which it said that for the purposes of Article 30 that deals with the rights of minorities to establish and administer educational institutions, the religious and linguistic minorities have to be considered state-wise.
