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New Delhi: The Union government has told the Supreme Court that state governments can now grant minority status to any religious or linguistic community, including Hindus.
The Supreme Court had sought the Union government’s response in a plea that sought directions for framing of guidelines identifying minorities at the state level. The plea contended that Hindus are in a ‘minority’ in six states and three Union Territories of India but were allegedly not able to avail themselves of the benefits of schemes meant for minorities.
The plea was filed by Bharatiya Janata Party leader Ashwini Kumar Upadhyay, who had last year been arrested in connection with the raising of anti-Muslim threats in the forms of slogans during a demonstration at the Jantar Mantar.
A bench of Justices S.K. Kaul and M.M. Sundresh had earlier imposed a fine of Rs 7,500 on the Union government for not taking a stand on Upadhyay’s petition. The bench will take up the matter for hearing on Monday, Hindustan Times has reported.
The Ministry of Minority Affairs submitted that matters concerning whether followers of Hinduism, Judaism, Bahaism can establish and administer educational institutions of their choice in the said states and those related to their identification as minority within the state may be considered at state level.
Upadhyay had challenged the validity of section 2(f) of the National Commission for Minority Education Institution Act, 2004 alleging that it gives unbridled power to the Union government and termed it “manifestly arbitrary, irrational, and offending”.
Section 2(f) of NCMEI Act empowers the Union government to identify and notify minority communities in India.
The Ministry of Minority Affairs in its response said: “It is submitted that the State governments can also declare a religious or linguistic community as a minority community within the said state.”
“For instance, the Maharashtra government has notified ‘Jews’ as a minority community within the state. Moreover, the Karnataka government has notified Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lamani, Hindi, Konkani and Gujarati languages as minority languages within the state of Karnataka,” it said.
The plea, filed through advocate Ashwani Kumar Dubey, said that denial of benefits to the “real” minorities and “arbitrary and unreasonable” disbursements under schemes meant for them to the absolute majority infringes upon their fundamental right.
The Union government has disagreed with the stance.
“Therefore in view of the states also notifying minority communities, the petitioners’ allegation 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.”
The apex court had earlier allowed a plea seeking transfer of cases from several high courts to it against the Union government’s notification to declare five communities – Muslims, Christians, Sikhs, Buddhists, and Parsis – as minorities and tagged the matter with the main petition.
The affidavit said that the parliament has enacted the National Commission for Minorities Act, 1992, under Article 246 of the Constitution read with Entry 20 in the Concurrent List in Schedule 7.
“If the view that the States alone has the power to enact law on the subject of a minority is accepted, then in such a case, Parliament will be denuded of its power to enact law on the said subject and this would be contrary to the constitutional scheme,” it said.
“The National Commission for Minorities Act, 1992 is not arbitrary or irrational and does not violate any of the provisions of the Constitution, it said.
The ministry also denied that section 2(f) of the said act confers unbridled power to the Union government.
It further told the apex court that minority welfare schemes are meant for underprivileged students and economically weaker sections of the minority community and are not for everyone belonging to the minority community.
“These schemes are only enabling provisions so as to achieve inclusiveness and therefore cannot be held to suffer from any infirmity. The support given, under these schemes, to the disadvantaged/underprivileged children/candidates of minority communities cannot be faulted with,” the affidavit stated.
In the plea, the petitioner also brought up the TMAPai Foundation order, in which the apex court had held that the state is well within its rights to introduce a regulatory regime in the national interest to provide minority educational institutions with well-qualified teachers in order for them to achieve excellence in education.
“In alternative, direct and declare that followers of Judaism, Bahaism & Hinduism, who are minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur, can establish & administer educational institutions of their choice in spirit of the TMA Pai Ruling,” the plea said.
Quoting Article 30 of the Constitution, the plea said that minorities whether based on religion or language shall have the right to establish-administer educational institutions of their choice.
The petition said that denial of minority rights to actual religious and linguistic minorities is a violation of the rights of minority enshrined under Articles 14 and 21 (no person shall be deprived of his life or personal liberty except according to procedure established by law) of the Constitution.
(With PTI inputs)