States too can declare religious or linguistic community, including Hindus, as minority: Centre

New Delhi, Mar 27 (PTI) State governments can declare any religious or linguistic community, including Hindus, as a minority within the said state, the Centre has told the Supreme Court.

The submission was made in response to a plea filed by advocate Ashwini Kumar Upadhyay that sought directions for framing of guidelines identifying minorities at the state level, contending that Hindus are in a minority in ten states and Union Territories, and are not able to avail the benefits of schemes meant for minorities.

The Union Ministry of Minority Affairs submitted that matters concerning whether followers of Hinduism, Judaism, Bahaism can establish and administer educational institutions of their choice in the said states and those related to their identification as minority within the state may be considered at state level.

Upadhyay had challenged the validity of Section 2(f) of the National Commission for Minority Education Institution [NCMEI] Act, 2004 alleging that it gives unbridled power to the Centre and termed it "manifestly arbitrary, irrational, and offending".

Section 2(f) of NCMEI Act empowers the Centre to identify and notify minority communities in India.

The Ministry of Minority Affairs in its response said: "It is submitted that the State governments can also declare a religious or linguistic community as a minority community within the said state.

Therefore in view of the states also notifying minority communities, the petitioners' allegation that the followers of Judaism, Bahaism, and Hinduism, who are real minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab, and Manipur cannot establish and administer educational institutions of their choice is not correct."

The affidavit said that the Parliament has enacted the National Commission for Minorities Act, 1992, under Article 246 of the Constitution read with Entry 20 in the Concurrent List in Schedule 7.

"If the view that the States alone has the power to enact law on the subject of a minority is accepted, then in such a case, Parliament will be denuded of its power to enact law on the said subject and this would be contrary to the constitutional scheme," it said.

"The National Commission for Minorities Act, 1992 is not arbitrary or irrational and does not violate any of the provisions of the Constitution", it said.

The ministry also denied that section 2(f) of the NCMEI act confers unbridled power to the Centre.

It further told the Supreme Court that minority welfare schemes are meant for underprivileged students and economically weaker sections of the minority community, and are not for everyone belonging to the minority community.

"These schemes are only enabling provisions so as to achieve inclusiveness and therefore cannot be held to suffer from any infirmity. The support given, under these schemes, to the disadvantaged/underprivileged children/candidates of minority communities cannot be faulted with", the affidavit stated.

The plea said that denial of benefits to the "real" minorities and "arbitrary and unreasonable" disbursements under schemes meant for them to the absolute majority infringes upon their fundamental right.

"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," the plea said.

The Supreme Court, in the T.M.A. Pai Foundation case, had held in 2003 that the state is well within its rights to introduce a regulatory regime in the national interest to provide minority educational institutions with well-qualified teachers in order for them to achieve excellence in education.

Quoting Article 30 of the Constitution, the plea said that minorities whether based on religion or language shall have the right to establish-administer educational institutions of their choice.

The petition said that denial of minority rights to actual religious and linguistic minorities is a violation of the rights of minority enshrined under Articles 14 (equality before law) and 21 (no person shall be deprived of his life or personal liberty except according to procedure established by law) of the Constitution.

The Supreme Court had earlier allowed a plea seeking transfer of cases from several high courts to it against the Centre's notification to declare five communities – Muslims, Christians, Sikhs, Buddhists, and Parsis – as minorities and tagged the matter with the main petition.