The Supreme Court on Monday said that it was not the Court’s job to declare Hindus as a minority in a state where they are fewer in number compared to other communities. The Court stated that the process of determining minority status is outside the purview of the law since it depends on several factual variables and data.
The Supreme Court was hearing a petition filed by Devkinandan Thakur, who was contesting a section of the National Commission for Minorities (NCM) Act, 1992, and asking the Centre to define ‘minority’ and layout standards for identifying minorities at the district level.
Justice Lalit: Perhaps where Hindus are Minorities in some States, you have to give us concrete examples, we can’t just declare.— Bar & Bench (@barandbench) August 8, 2022
Justice Bhat: Why do you even want us to declare?
Upadhyay: Counter has been filed in matter.
“It is not the job of the court to declare minorities. This has to be on a case-by-case basis. There cannot be a general declaration to declare Hindus as a minority unless you show us something concrete about denial of rights”, the bench led by Justices Uday U Lalit and S Ravindra Bhat said on August 8.
The petition filed by Thakur in June alleged that the rights of Hindus under Articles 29-30 are being unjustly siphoned off to the state’s majority population since the Centre has not notified them as a ‘minority’ under the NCM Act, 1992. The petition challenged Section 2(C) of the Act, which designated Muslims, Christians, Buddhists, Parsis, Sikhs, and Jains to be national minorities, and asked for guidance on district-by-district designation of minorities and state-by-state status.
“Cause of action continues till date because followers of Judaism, Bahaism, and Hinduism; who are real minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab, Manipur, cannot establish and administer educational institutions of their choice because of non-identification of the minority at the state level, thus jeopardizing their basic rights guaranteed under Article 29-30”, the plea read.
On Monday, the bench informed Advocate Upadhyay appearing for Thakur that the Supreme Court has issued decisions since 1957 establishing that religious and linguistic minorities must be granted minority status by the state. According to the reports, the Supreme Court ruled in 1957 that the minority must be assessed in relation to the entire population of the state. “Why should we say or clarify anything now? The problem is that you want to make out a case when there is none”, the Court told Upadhyay.
Upadhyay goes through tma judgment.— Bar & Bench (@barandbench) August 8, 2022
Justice Bhat: You want to make out a case where there’s none. So it’s not TMA Pai. They can’t be identified on a general basis. Some are all-india Minorities like Jews and Konkanis.
Justice Lalit: Has to be case to case.
“If you give us examples where Hindus are in minority and some directions are required, we may perhaps look at that. But you are asking for a general direction to declare Hindus as a minority in some states. Why should we do that? We cannot declare any community as a minority because we don’t have the statistics of different states or other facts”, the Court added.
Regarding an appeal in the PIL on the declaration of minority status on a district level, the bench made it clear that such a plea is not proper. “If the Supreme Court has said it had to be state-wise, why should we interfere?”, the bench said to Upadhyay. It may be noted that in the case of TMA Pai and others vs State of Karnataka (2002), the Supreme Court held that minorities must be identified at the state level.
Meanwhile, Upadhyay asked the Supreme Court’s bench to associate Thakur’s PIL with another issue that was already pending before a separate bench. In that situation, Upadhyay is the one filing the petition. As Upadhyay submitted that the matter before the other bench is expected to come up on August 30, the bench listed Thakur’s plea in the first week of September along with the other PIL.
Upadhyay’s plea is still pending before the judge Sanjay Kishan Kaul-led panel. In that argument, Upadhyay contends that Section 2(f) of the NCMEI Act is invalid because it grants the Center unrestricted authority to limit minority benefits to the six registered religious communities.
According to the report, there are just 1% of Hindus in Ladakh, 2.5% in Mizoram, 2.7% in Lakshadweep, 4% in Jammu and Kashmir, 8.74% in Nagaland, 11.52% in Meghalaya, 29% in Arunachal Pradesh, 38.49% in Punjab, and 41.29% in Manipur. In his appeal, Upadhyay also questioned why the National Minorities Commission and the Minority Education Commission were established, claiming that the Center did so to divide and dominate.
In a decision stated by the Court in May, Justice Kaul’s bench gave the Centre time till August 30 to engage with the stakeholders and submit a report on whether Hindus may be granted minority status based on their numbers within a state. The court judgment came on the heels of the Union government’s announcement on May 10 that it will launch a wide consultation with states and other stakeholders to determine whether Hindus may be accorded minority status in states where their numbers are lower than those of other groups.
The government requested more time for consideration while abandoning its prior position in March when it sought dismissal of Upadhyay’s writ suit and upheld the NCM Act, 1992 and the NCM Educational Institutions (NCMEI) Act, 2004. In its first affidavit, filed in March, the central government placed the onus on states and Union territories (UTs) to decide whether or not to grant minority status to Hindus in areas where they are numerically smaller, adding that both the Centre and states have the legislative authority to enact laws protecting minorities.
However, in withdrawing its previous affidavit in May, the government acknowledged that the issue posed in the petition has far-reaching implications throughout the nation and that, as a result, any position taken without detailed deliberation with stakeholders may result in an unforeseen complication for the country. The May affidavit stated that, while the central government has the authority to notify minorities, the Centre’s position on the concerns raised in the batch of petitions on the issue will be finalized after extensive consultation with state governments and other stakeholders.