The Supreme Court has issued notice to the Centre on a PIL challenging validity of provisions of National Commission for Minority Education Institution Act 2004, for failing to recognise minorities at state level.
Petitioner Ashwini Kumar Upadhyay, Advocate and BJP Leader, has urged that by using unbridled power under S. 2(f) of the Act, the Centre arbitrarily notified 5 communities viz. Muslims, Christians, Sikhs, Buddhists and Parsis as minorities at the national level against the spirit of the TMA Pai ruling. Followers of Judaism, Bahaism & Hinduism, who are real minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab, Manipur, cannot establish & administer educational institutions of their choice because of non-identification of 'minority' at the State level, thus jeopardising their basic rights guaranteed under Article 29-30. "Their right under Articles 29-30 is being siphoned off illegally to the majority community in the State because Centre has not notified them 'minority' under NCMEI Act", it is advanced.
It is submitted that while the followers of Judaism, Bahaism & Hinduism are being deprived of their basic rights, on the other hand, Muslims, who are in majority in Lakshadweep (96.58%) & Kashmir (96%) and of significant population in Ladakh (44%), Assam (34.20%), Bengal (27.5%), Kerala (26.60%), UP (19.30%) & Bihar (18%), can establish & administer educational institutions of their choice.
Similarly, Christians are in majority in Nagaland (88.10%), Mizoram (87.16%) and Meghalaya (74.59%), and of significant population in Arunachal, Goa, Kerala, Manipur, Tamil Nadu & West Bengal, and still enjoy the same rights.
Likewise, Sikhs, who are the majority (57.69%) in Punjab, and occupy a large segment of the population in Delhi, Chandigarh, Haryana, are entitled to the right to establish and administer their educational institutions. Similarly, Buddists are the majority (50%) in Ladakh but they enjoy the said right.
"The injury caused to the followers of Judaism, Bahaism & Hinduism is large because S. 2(f) is manifestly arbitrary irrational & contrary to Articles 14, 15, 21, 29 & 30. Hindus are merely 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 Centre has not declared them as 'minority'", it is submitted, stressing that Hindus are not protected under Articles 29-30 and cannot establish & administer educational institution of their choice. Similar is the grievance of the followers of Bahaism and Judaism, who are merely 0.1% and 0.2% respectively at national level.
The PIL seeks the following reliefs:
a) direct and declare 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 hence void;
b) 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 [(2002)8 SCC 483]
c) in the alternative, direct the respondents to lay down guidelines for identification of minority at State level, in order to ensure that only those religious & linguistic groups, which are socially economically politically non-dominant and numerically inferior, can establish and administer educational institutions of their choice