'How Can This be Done?' SC Questions BJP Leader's PIL for District-Wise Identification of Minorities

The court's remarks came in response to a contention by lawyer and BJP leader Ashwini Kumar Upadhyay that minority status can be awarded to Hindus in Uttar Pradesh because they are in a minority in a number of the state's districts.

New Delhi: The Supreme Court on Tuesday, November 22, questioned a petition seeking the designation of minority communities on a district-wise basis, remarking that such a demand could appear to lead to one for “street-wise” designation of minority groups.

The court was hearing a batch of petitions seeking for the district-wise identification of minorities in India, contending that the identification of religious communities such as Christians, Muslims, Parsis, Sikhs and Buddhists as ‘national minorities’ ignores the fact that so-called ‘majority’ communities, such as Hindus, are “socially, economically, politically non-dominant and numerically inferior” in several states.

The lead petition in the batch was filed by lawyer and Bharatiya Janata Party (BJP) leader Ashwini Upadhyay.

Upadhyay has often found himself at the centre of communal flashpoints. In August last year, Upadhyay was among the six individuals arrested for shouting anti-Muslim slogans at a gathering at Delhi’s Jantar Mantar, many of which called for outright violence against the Muslim community.

Upadhyay was accused of organising the gathering after being denied prior permission for the same, but denied the charges after he was released on bail the following day.

According to a report in Live Law, in the November 22 hearing, Upadhyay submitted to the bench of Justices S.K. Kaul and A.S. Oka that the Allahabad high court, in a 2007 order, had directed the Uttar Pradesh government to treat all Muslim institutions applying for grant-in-aid at the same level as ‘non-minority’ institutions, without discrimination.

“For 20 districts of the state, the High Court said that given the percentage of the population, Muslims cannot be considered minorities. This was based on 2001 census. Now, we are in 2022. As per my information, the number has increased to 26 districts now,” Live Law quoted Upadhyay as telling the court.

Justice Kaul, however, retorted by asking if minority status can be considered district-wise, saying, “Then why not each street-wise? How can this be done?”

Upadhyay’s lead petition also challenges a number of provisions of laws dealing with the identification of minorities. It challenges Sections 2(c) and 2(f) of the National Commission for Minorities Educational Institutions Act, 2004 as well as the National Commission for Minorities Act, 1992, as a whole. These sections pertain to the power of the Union government authorities to notify minorities.

It should be noted that Upadhyay has, of late, filed numerous petitions on issues of religion, many of which have drawn criticism from the top court. Notable among them was his petition seeking the implementation for a Uniform Civil Code (UCC) to ensure that uniform grounds are afforded for procedures of divorce, guardianship, adoption, and so on.

The BJP-led Union government itself opposed Upadhyay’s plea in an affidavit, praying that it be dismissed.

Other such petitions filed by Upadhyay include one seeking directions to tackle forced religious conversions, as well as those on non-religious issues such as pending criminal cases against legislators and ‘freebies’ in electoral politics.

The other petitions in the present batch contend that Hindus are in the minority in 10 states in India and seek for the court to pass directions for Hindus to be notified as minorities in these 10 states.

Pursuant to an earlier hearing in the case, the Union Ministry of Minority Affairs, in March this year, had filed an affidavit with the top court noting that each individual state has the power to grant minority status to any linguistic or religious community.

However, two months later in May, the Union government revised its affidavit, saying that the power to notify minorities lies with the Union government but can only be taken after “wide consultations with state governments and other stakeholders” to avoid “unintended complications in the future.”

Justice Kaul had expressed disappointment at the Union government’s ‘u-turn’, noting that more thought should have gone into the matter before the first affidavit was filed. Thereafter, he directed the Union government to undertake the said consultation process with the states.

Also read: ‘Taking Different Stands Doesn’t Help’: SC Tells Centre on Minority Tag Issue

By the time of the present hearing, however, additional solicitor general K.M. Nataraj informed the court that while the consultative process was underway and some states/Union Territories had submitted responses, those of 19 states/UTs are yet to be filed, according to a status report filed by the minority affairs ministry.

Accepting ASG Nataraj’s request, the court granted six weeks’ time for the remainder of responses to be filed and posted the matter for further hearing in January next year.

Further, the court directed the 19 states and UTs that have not yet filed their responses to do so with the Union government within four weeks.