On March 27, in an affidavit to Supreme Court, the Centre said that the states have the right to give minority status to Hindus if they are not in majority in their jurisdictions. Notably, the Supreme Court had earlier refused to give minority status to Hindus in states like Mizoram, Nagaland, Lakshadweep, Jammu and Kashmir, Manipur, Punjab and Arunachal Pradesh.
This time, the Supreme Court accepted the petition filed by advocate Ashwini Upadhyay in August 2020 and gave the Centre multiple chances to file an affidavit, but it failed. Eventually, SC had imposed a fine of Rs 7500 on the Centre in January this year for failing to file the affidavit.
In the petition, Upadhyay had demanded minority status for the Hindus in states where other communities like Muslims or Christians were in the majority based on the principle laid down by the Supreme Court in the TMA Pai ruling of 2002. In that ruling, the apex court had stated that the rights of the minorities to administer and establish educational institutions have to be considered state-wise.
OpIndia accessed the affidavit submitted by the Government of India. In the affidavit, signed by Shubhendu Shekhar Shrivastava, Under Secretary, Union Ministry of Minority Affairs, on behalf of the Union of India, it was mentioned that the state governments could declare a religious or linguistic community as a ‘minority community’ within the state.
The onus is on the states
The Centre, in its affidavit, said the petitioners’ argument that the followers of Judaism, Bahaism, and Hinduism, who are “real minorities” in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur, cannot establish and administer educational institutions of their choice “is not correct” since states can also “certify institutions as being minority institutions as per the rules of the said state”.
It said, “Religious and linguistic minorities are spread all over the country and are not related or restricted to any single state/Union Territory of India. A religious group that is in the majority in one state may be in the minority in another state.” It added, “In view of the provisions in the Constitution of India, the Parliament and the State Legislature have the concurrent powers to enact a law to provide for the protection of minorities and their interests.”
The Centre also mentioned that the Government of Maharashtra had notified Jews as a minority community in 2016. Furthermore, Karnataka had notified Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lamani, Hindi, Konkani and Gujarati as minority languages. “The states have the right to certify institutions as being minority institutions as per the rule of the said state,” the affidavit read.
It added, “Matters such as declaring the followers of Judaism, Buddhism and Hinduism who are in minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur can establish and administer educational institutions of their choices in the said state and laying down guidelines for identification of minorities at State level may be considered by the concerned State Governments.”
The timeline of petitions by Ashwini Upadhyay
In 2017, Ashwini Upadhyay moved to Supreme Court seeking minority status for Hindus in several states where other communities were in the majority. The apex court asked him to approach the National Commission of Minorities. The Commission said it did not have the jurisdiction to deal with the petition and states under Section 2(c) of the NCM Act, only Central Government has the power to declare a community as a minority.
He again approached SC, and the petition was listed by then-Chief Justice of India Ranjan Gogoi. He had sought the assistance of Attorney General KK Venugopal. However, by the time the case got listed, CJI Gogoi had demitted the office. CJI SA Bobde dismissed the plea without giving any reasons.
Upadhyay did not step down and filed a fresh plea in August 2020. He challenged the constitutional validity of Section 2(c) of the NCM Act. The SC accepted the plea and issued notice to the Central Government to file a counter-affidavit. Multiple reminders were sent, but the Centre did not respond. Finally, on January 31, 2022, the Supreme Court fined the government of Rs 7500 for not submitting the affidavit. It gave the final four weeks to submit the response.
