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Should states or Union notify who’s a minority? No consensus among states, Modi govt tells SC

Union affidavit with responses from states & UTs came in response to pending PIL which claimed that non-compliance with 2002 SC ruling has 'kept Hindus from availing rights of minority'.

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New Delhi: The Union government informed the Supreme Court Thursday that it had received varied responses from 24 states and six union territories (UTs) on the question of whether minorities should be notified at the state or national level. The information, filed as part of an affidavit detailing the stand taken by these states and UTs, came in response to a pending public interest litigation (PIL).

The PIL, filed in 2020, has sought a direction to enforce the 2002 T.M.A. Pai Foundation vs State of Karnataka ruling by the Supreme Court, which had held that under the Constitution’s Article 30 — which deals with the rights of minorities to establish and administer minority institutions — religious and linguistic minorities will have to be identified at the state level.

The T.M.A. Pai verdict was a landmark 11-judge order which laid down the contours of governmental regulations on private institutions.

“Non-compliance of this judgment has kept Hindus from availing the rights of a minority in those states where they are lesser in number,” the PIL stated, adding that “the Centre is not empowered to notify minorities under the National Minorities Commission Act, 1992”.

According to the Union government, three major BJP-ruled states, Gujarat, Karnataka and Madhya Pradesh, want the current system of identifying and notifying minorities at the national level to continue, while Assam and Uttarakhand have contended that the unit of identification of minorities should be the state, as held in the T.M.A. Pai ruling.

Delhi is the only state that has mooted the idea of a separate category of “migrated minority status” that would be given to those Hindus who are a minority in their state of origin, but are now residing in the Capital after migration, according to the Union government’s affidavit.

The UTs have not taken any stand and said in the response that since they do not have an elected legislature, they would go by the stand taken by it. Puducherry, however, said Hindus are in the majority and it has no followers of Judaism or Bahaism.

The Union government received responses from the states during deliberations it held in the past two months to seek their views on the PIL.

Four states, Arunachal Pradesh, Rajasthan, Telangana and Jharkhand, and two UTs, Jammu & Kashmir and Lakshadweep, are yet to take a stand on the issue.

So far, the Ministry of Minority Affairs has filed a counter affidavit in the matter and has put the onus of granting minority status to Hindus upon states, saying even they have the power to declare a group as minority.

However, after filing of the affidavit, the Union government has been taking time to file a consolidated response to the PIL, claiming it needs to consult the states and other central government departments on the case.


Also read: Modi govt committed to ‘development’, not ‘discriminatory politics’ says Nadda to foreign envoys


With the Union government

Gujarat, Madhya Pradesh and Karnataka, in their opinion to the Union government, have supported the present procedure to identify minorities, in which it issues a national list. Gujarat said it was “comfortable” with it, while MP opined that it “will be followed”.

Karnataka preferred “status quo” on the matter and said that like the Union government, it too has declared Muslims, Christians, Buddhists, Jains and Parsis as minority communities. This was done following the state minority commission’s recommendation.

While Uttar Pradesh has offered to abide by “whatever decision” the Union government took following the constitutional process regarding identification of minorities, Maharashtra, where BJP is in coalition with the Shiv Sena, too preferred vesting the power to notify minorities with the Union government “in the interest of uniformity”.

Maharashtra, however, said that the “Central Government can use the census data and with the consultation of states notify the minority communities in the concerned state”. The state further mentioned that it had already notified six communities as religious minorities and those whose language is not Marathi are considered linguistic minorities.

But Manipur, where again the BJP is part of a coalition government, has favoured the state as the unit for determining religious minorities. It has said “any religious group which constitutes less than 50% of the state’s population should be recognised as a religious minority group of the state”. According to its response, followers of the Meitei Sanamahi religion should be considered for recognition as a religious minority group in the state.

BJP-ruled Goa and Tripura have not given any views and simply stated the factual position in their states. The Tripura government said Muslims, Christians, Buddhists, Sikhs and Jains were minorities in the state and added “in Tripura, minority communities are slightly lagging behind in education, social sector, business and in government services. In some pockets economic condition is not at par with the majority of people and needs to be improved”. The Goa government provided the percentage of population of minorities, Muslims, Christians, Sikhs and Buddhists, in the state.

Among the non-BJP-ruled states, Punjab, West Bengal, Andhra Pradesh and Tamil Nadu do not want identification of minorities at the national level.

State call

“In India, different communities are in majority or minority in different provinces/states depending on their population. Therefore, it becomes necessary to protect the interests of the respective minority residing industry in accordance with the constitutional provisions,” Punjab has said in its response to the Union government.

It added: “Keeping in view the above as well as the peculiar geographical and social scenario of the state of Punjab, only the state government is in the position to better appreciate the interests, well-being and problems of different sections/communities residing in the state. The state of Punjab being empowered to enact and notify… it is important that the state continue to do so in order to provide protection to minorities and safeguard their interests.”

Under The Punjab State Commission for Minorities Act, 2012, the state has already declared Jains to be a minority community in the state in April 2013.

While Himachal Pradesh is fine with the identification of minorities at the national level, Andhra Pradesh said it must be done at the state level.

As for West Bengal, the state has a Minorities Commission Act, 1996, under which it has declared those speaking Hindi, Urdu, Nepali, Oriya, Santali and Gurmukhi as linguistic minorities and Muslims, Sikhs, Christians, Buddhists, Parsis and Jains as religious minorities. “The power to declare a community as minority should vest with the state government/Uts,” it has opined.

Tamil Nadu too said the state, according to the T.M.A. Pai ruling, should be the unit for recognising minorities. But it also cautioned “about the likely adverse consequences of encouraging demands for minority status on the basis of religion”. This, it added, was also spelled out in a Supreme Court judgment delivered in 2005.

Tamil Nadu further said that religious minority status “cannot be conferred merely based on the population in a particular state, but should also take into account factors such as the actual or probable deprivation of the religious cultural and educational rights and their socioeconomic status which in turn have to be assessed from their overall position to influence the policies at the national level as policies and issues touching these aspects are often national in nature.”

In its response, Delhi’s AAP government informed about the religious minority status granted to followers of Judaism and Bahaism and added it would “have no objection if the central government declared them one (minority).” It further called for creating a category of “migrated minority status” to the followers of Hinduism who are religious minorities in their original state such as Jammu and Kashmir, Ladakh etc and are living in Delhi due to migration from their home state.

Kerala favoured continuation of the existing provisions under the National Commission for Minority Educational Institutions Act, 2004 and National Commission for Minority Act, 1992 “unless the Hon’ble Supreme Court takes a different view in the instant case”.

Odisha pointed out that the six communities notified by the centre are also minorities in the state and added that as far as it is concerned, “there is no justification to remove any of these 6 minority communities from the list nor to declare any other community as a minority community”.

(Edited by Nida Fatima Siddiqui)


Also read: Desi global minority index puts India at top, says CAA protest ‘notable sign of status of Muslims’


 

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