New Delhi: States and Union Territories (UTs) should be given the power to determine the linguistic and religious minorities in a particular region, the majority of state and UT governments argued, according to LiveLaw.
The view of the state and UT governments came to the fore in an affidavit filed by the Union government before the Supreme Court. The government’s affidavit was in response to a batch of petitions seeking district-wise identification and notification of religious and linguistic minorities.
According to the Union government, its affidavit is based on wide consultations held with the states, UTs and other stakeholders on the matter. The apex court had directed the Union government in May 2022 to carry out such deliberations.
Both Punjab and West Bengal held that state governments should have the right to identify and notify religious and linguistic minorities. For its part, Punjab highlighted that it had enacted ‘The Punjab State Commission for Minorities Act, 2012’.
“…in India, different communities are in majority or minority in different provinces/states…. 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. It is important that the state continues to do so in order to provide protection to minorities and safeguard their interests,” the Punjab government argued, according to LiveLaw.
Similarly, Andhra Pradesh, Tamil Nadu, Uttarakhand, Assam, Manipur, and Sikkim have underlined that states and not the nation should be treated as a unit for identifying and notifying minorities.
On the other hand, Tamil Nadu’s contention is that the conferring of minority status cannot be merely limited to the population of a certain community in a particular state in relation to the overall state population but should also consider “actual or probable deprivation of the religious, cultural and educational rights and their socioeconomic status”.
In addition to favouring states having the power to determine the minority status, Manipur said any religious group which has less than 50% population in a particular state should be conferred with minority status.
Since the issue of reservation for minorities is part of the Concurrent List of the constitution, Mizoram said both state and Union governments should have the power to make laws on the matter.
Maharashtra and Haryana said the Union government can notify minorities. Uttar Pradesh said it has no objection to whatever the Union government decides on the matter. Similarly, UTs of Dadra and Nagar Haveli, Daman and Diu, Chandigarh, Andaman and Nicobar Islands, Jammu and Kashmir, and Ladakh said they would fall in line with whatever the Union government proposes. Of all the states and UTs, Himachal Pradesh alone categorically stated that the nation should be treated as a unit for determining linguistic and religious minorities.
Meanwhile, Delhi said it has no objection if the Union government decides to declare Buddhists and Jains as minorities. It also proposed the introduction of a category called ‘migrated minority’ for Hindus in Jammu and Kashmir, and Ladakh where Hindus are not in majority.
The Union government said only 24 states/UTs have responded to the issue, and six states/UTs have not responded despite “several reminders”. Arunachal Pradesh, Jammu & Kashmir, Lakshwadeep, Rajasthan, Telangana and Jharkhand did not yet send their responses on the matter.
Of the other stakeholders, the ministry of home affairs said it has no specific comments to make and said “the issue of the authority of the parliament or the state legislature to exclusively legislate on matters pertaining to minority communities is to be examined in consultation with the ministry of law and justice”.
Meanwhile, the ministry of education said, “As per the judgment of the Hon’ble SC in TMA Pai Foundation, the identification of minorities at the district level is not legal because linguistic or religious minority is determinable only by reference to demography of the state because it differs from place to place.”
For its part, the National Commission for Minority Educational Institutions said “identification of minorities at the district level is not legal because a linguistic or religious minority is determinable only by reference to the demography of the state because it differs from place to place”.
The petitioners in the case argued that the identification of minorities at the district level allows socially, economically, and politically non-dominant and numerically inferior communities to get the benefits and protections guaranteed under Articles 29 (protection of interests of minorities) and Article 30 (right of minorities to establish and administer educational institutions). The petitioners also challenged Section 2(c) of the National Commission for Minorities Act, 1992, which vests powers with the Union government to notify minorities.
Earlier, the Union government, in response to a petition filed by one Ashwini Upadhyay, had said Hindus in states where they are in a minority can be notified as minorities for the purposes of Articles 29 and 30 by the state government concerned. However, the Union government changed its stance and filed the latest affidavit in court.
The latest affidavit by the Union government is based on consultations held with various states and UTs to avoid “unintended complications in the future”. The apex court had earlier pulled up the Union government for changing its stance on multiple occasions and asked it to give a proper thought before finalising the affidavit.