The Narendra Modi government has told the Supreme Court that states with a small number of Hindu or other communities can declare them a minority community within their own borders, allowing them to establish and administer their own institutions.
It stated that states can declare a religious or linguistic group as a minority-community within their borders, as Maharashtra did in the case of Jews in 2016. Karnataka declared Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lamani, Hindi, Konkani, and Gujrati languages as minority languages.
“The States too can certify institutions as being minority institutions as per rules of the said State,” it said.
The Ministry of Minority Affairs stated in an affidavit that the claim made by BJP leader and advocate Ashwini Kumar Upadhyay in a PIL that followers of Judaism, Bahaism, and Hinduism, who are minorities in Laddakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab, and Manipur, can’t administer their institutions.
“It is submitted that matters such as declaring that followers of Judaism… 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 the state level may be considered by the concerned state government.”
According to the affidavit, the Central Government decided on October 29, 2004, to establish a National Commission for Religious and Linguistic Minorities, whose mandate was to propose criteria for identifying socially and economically backward sections of religious and linguistic minorities.
“They can establish and administer educational institutions of their choice in the said State and laying down guidelines for identification of minorities at State level may be considered by the concerned state governments,” it said.
The Ministry of Minority Affairs to improve the socio-economic conditions of minorities
The Ministry of Minority Affairs was established, according to the Union government, to improve the socio-economic conditions of minorities through affirmative action and inclusive development, so that every citizen has an equal opportunity to actively participate in building a vibrant nation.
It also stated that the various schemes launched are only for the economically disadvantaged, underprivileged children, and minority community candidates, and not for everyone who belongs to the minority community.
At the same time, the Centre argued that giving states sole authority over minority laws would be contrary to the constitutional scheme and would be in violation of several Supreme Court decisions.
“Parliament under Article 246 of the Constitution, read with Entry 20 in Concurrent List in Schedule Seven, has enacted the National Commission for Minorities Act, 1992. If the view that the State alone has the power to enact the law on the subject of the minority is accepted, then Parliament would be denuded of its power, which would be contrary to constitutional scheme,” it said.
The Centre argued that the Supreme Court’s decisions in the T M A Pai and Bal Patil cases did not limit or place a legal restriction on Parliament’s and the central government’s legislative and executive powers to declare a community of minorities.
In his petition, Upadhyay requested that the Centre issue guidelines for identifying minorities at the state level, claiming that Hindus are in the minority in ten states and are unable to benefit from minority-specific schemes.
“India is a country with unique characteristics where religious and linguistic minorities are spread all over and not related to or restricted to one State or Union Territory,” it said
Furthermore, since Parliament passed the 1992 law, the natural corollary is that the central government has legislative authority to notify a community of minorities, according to the report.