'Can't Entertain Plea To Declare Minorities At District Level', Supreme Court Tells Petitioner Seeking Minority Status For Hindus In Some States

A Bench of Justices UU Lalit and Ravindra Bhat was considering a writ petition filed by Devkindan Thakur challenging a 1993 notification of the Central Government declaring Muslims, Christians, Sikhs, Buddhists, Parsi and Jain as minorities at the national level and seeking directions to identify minorities at district-level.

In the landmark Judgment, TMA Pai and ors vs State of Karnataka, the Supreme Court had held that minorities must be identified at the state-level. The bench also pointed out in the In Re Kerala Education Bill case(1958), the Court had rejected the argument that minorities should be identified at block level or district level.

When the matter was taken, the bench pointed out that in the last hearing, it had asked Senior Advocate Arvind Datar, who appeared for the the petitioner then, to produce concrete examples of Hindus being denied the benefits of minority status in States where they are numerically less.  Today, Datar was not appearing and the counsel representing the petitioner sought for listing the matter with another similar petition which is being considered by a bench led by Justice Sanjay Kishan Kaul.

At this juncture, Advocate Ashwini Upadhyay, who filed the other petition, pointed out that there are Hindu minorities in some states. Upadhyay has filed the petition challenging the provisions of National Commission for Minorities Act 1992 and National Commission for Minority Educational Institutions Act 2004 and also seeks minority status for Hindus in certain States/UTs.

"Theoretically you're right, But if the Supreme Court has said it had to be State-wise, why should we interfere?", Justice Lalit told Upadhyay.

When Upadhyay referred to the TMA Pai judgement, the bench observed that minorities can't be identified on a general basis.

"You want to make out a case where there's none. You go back to Kerala (In Re Kerala Education Bill judgment). In Kerala, the argument was it should be done at the block level or district level. Court said no and it should be state-wise.  TMA Pai is reiterating what Kerala and St.Xaviers decisions said...When you are talking about minorities, there are all India minorities, for example, you have Parsis, Konkani speaking people. There are people who are minorities in a small place. So how do you declare? It is not the job of the Court (to declare)", Justice Bhat said.

The Bench further asked the counsel to give concrete examples of cases where Hindus are denied the protection of Article 30 in states where they are in a minority

"You are just generally saying that Hindus must be declared as minority, we can't just declare", Justice Lalit said.

"And why can't be declare, because we don't have the statistic for every particular state and every particualr religion", Justice Bhat added.

"We will list this with the other matter, at best all you want is that, correct?", Justice Lalit asked the petitioner. "Correct", Upadhyay replied.

"The learned counsel submits that the issues involved in the present matter are engaging the attention of this court in writ petition civil number 836 of 2020. List the instant petition along with it in the first week of September along with the connected matter before the appropriate court",the bench dictated the order.

After the order was dictated, Justice Bhat said, "You can't claim prayer [c], it is contrary to law. You are saying it should be done at a district level. We cannot entertain this. This is contrary to the 11 judges(decision in TMA Pai case)."

In a previous hearing as well, the Supreme Court had said that a clear and concrete case indicating that Hindus are being denied minority status in certain states needs to be shown for the Court to entertain a plea seeking minority tag for Hindus in states where they are numerically less.

Thakur's plea also challenges the constitutional validity of Section 2(c) of the National Commission for Minorities Act, 1992, which gives Centre power to notify minorities.

It is the petitioner's case that Hindus are numerically less in certain states and regions, but they are not given the rights of minorities. Relying on statistics of Hindus, the petitioner highlights that the numbers are: 1% in Ladakh, 2.75% in Mizoram, 2.77% in Lakshadweep, 4% in Kashmir, 8.74% in Nagaland, 11.52% in Meghalaya, 29% in Arunachal Pradesh, 38.49% in Punjab, 41.29% in Manipur.

But the Centre has not declared them a 'minority'. On the other hand, the Centre has declared Muslims as minority, who are 96.58% in Lakshadweep, 95% in Kashmir, 46% in Ladakh. Similarly, Centre has declared Christians as minority, who are 88.10% in Nagaland, 87.16% in Mizoram & 74.59% in Meghalaya.

Hence, they can establish and administer educational institutions of their choice as per Article 30. In this backdrop, the petitioner argues that Section 2(c) of the NCM Act 1992, which gives "unbridled power to the Centre" to notify minorities, is manifestly arbitrary, irrational & contrary to Articles 14, 15, 21, 29, 30 of the Constitution.

This apart, the petitioner further seeks a direction asking the Union Government to define the term 'minority' and lay down 'guidelines for identification of minorities at district level', in order to ensure that only those religious and linguistic groups, which are socially economically politically non-dominant & numerically very inferior, get the benefits and protections guaranteed under Articles 29 and 30.

Responding to Upadhyay's petition, the Centre, in an affidavit filed on March 28, had said that the Hindus in States where they are in a minority can be notified as minorities for the purposes of Articles 29 and 30 by the concerned State Government.

However, later, the Centre changed its stand and filed a fresh affidavit retracting the earlier one.

In the latest affidavit, the Centre said that it has the power to notify minorities, but a stand in this regard can be taken only after "wide consultations with State Governments and other stakeholders" to avoid "unintended complications in future".

On May 10, the Supreme Court had expressed disappointment at the Centre taking different stands in the case, and said that proper thought should have been taken before finalizing the affidavit. The Court had then asked Centre to file a report on the consultative process with the State Governments in this regard within 3 months.

Case Title : Devkinandan Thakur Ji vs Union of India | WP(c) 446/2022