States can declare minority communities on the basis of religion, language: Centre tells Supreme Court

The Centre on Monday apprised the Supreme Court that the followers of Hinduism, Judaism and Bahai, who are minorities in certain states, can be declared the same by the concerned state government.

Submitting an affidavit filed before the Apex Court, the Centre said the allegation that such communities, which are minorities in those states, cannot establish and administer educational institutions of their choice in places where they are in minority like in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh and Manipur, is not correct.

The state governments can declare a religious or linguistic community as ‘minority community’ within the said state… matters such as declaring that followers of Judaism, Bahaism and Hinduism, who are minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur can establish and administer educational institutions of their choice in the said State and laying down guidelines for identification of minority at State level may be considered by the concerned State Governments, noted the affidavit.

The affidavit was filed in response to a petition by BJP leader and Advocate Ashwini Kumar Upadhyay, seeking a declaration that followers of Judaism, Bahaism and Hinduism, who are minorities in Laddakh, Mizoram, Lakshdweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur, can establish and administer educational institutions of their choice in spirit of the TMA Pai ruling.

The plea further sought a declaration that Section 2(f) of the National Commission for Minority Education Institution Act 2004, is arbitrary, irrational and offends Articles 14, 15, 21, 29 and 30 of the Constitution since it confers unbridled powers on Central government to declare a community as ‘minority’

It is submitted that State governments can also declare a religious or linguistic community as ‘minority community’ within the said State.
Central government to Supreme Court
The Central government opposed the plea contending that the parliament is empowered under Article 246 of the Constitution of India read with Entry 20 i.e. ‘Economic and Social Planning’ of the Concurrent List in Schedule 7 of the Constitution to enact law to promote and protect the interests of minorities.

This power of the parliament is complemented by the executive powers of the Central government under Article 73.

Under section 2(c) of the Act, the Central government notified six communities – Muslims, Christians, Sikhs, Buddhists, Parsis and Jains – as minorities, it was highlighted.

Since parliament has the competence to enact law such as the National Commission for Minorities Act, the natural corollary is that executive competence to notify a community as ‘minority’ under the said Act is also vested in Central government, it was submitted.

The affidavit also said that declaration as minority does not automatically guarantee all minority community members from benefitting from the schemes of the government.

“The schemes are for economically weaker and socially disadvantaged amongst minorities,” it was stated.

Hence, the National Commission for Minorities Act is not arbitrary and Section 2(f) of the Act does not given any unbridled powers to the Central government, the affidavit submitted.

Further, the power of the State governments to enact legislations for the protection and promotion of the interest of minorities is derived from the Concurrent List and not from the State List (List II of Schedule 7).

“It will not be out of context to mention that in fact there is no heading under List II of Schedule 7 where under the State Legislature could have enacted law on the subject of minorities except under Entry 20 in the Concurrent list,” the Central government submitted.

If the view that the States alone have the power to enact law on the subject of minority in accepted, then in such case parliament will be denuded of its power to enact law on the said subject, and this would be contrary to the constitutional scheme, the Centre made it clear.

That said, the States are also empowered to notify ‘minorities’ in exercise of its powers, it was submitted.

In this regard, the examples of Maharashtra and Karnataka were cited.

“The Government of Maharashtra has notified ‘jews’ as minority community within Maharashtra. Moreover, the Government of Karnataka has notified Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lamani (or Lambadi), Hindi, Konkani and Gujarati languages as minority languages within the State of Karnataka,” the affidavit highlighted.

Hence, the petitioner is not correct in contending that the State governments cannot declare certain communities as minorities in their States.

Therefore, the petition must be dismissed as the same is wholly untenable and misconceived in law, the Centre said.

“The reliefs sought by the petitioner are not in larger public or national interest,” it was submitted.

The Supreme Court had in 2019, declined to entertain a plea by Upadhyay seeking declaration of Hindus as minorities in eight States.

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