NEW DELHI: Delhi is the only state in the country which said migrated Hindus from Jammu & Kashmir and Ladakh could be granted status of minority for availing various benefits accrued to them.
Rest of the States including those ruled by the BJP took a different stand with regard to declaring minorities as per the population of the State.
The stand of the Delhi government was disclosed as part of an affidavit submitted by the Centre in the Supreme Court on Thursday. Of the 24 states and Union territories (UTs), Delhi was the only government that openly backed granting minority status to Hindus in any form at the state or UT level. Some other states — including Andhra Pradesh, Assam, Tamil Nadu, Punjab, West Bengal and Uttarakhand — favoured identification of a “minority community” at the state level but didn’t name any particular faith or group. In all these states, except Punjab, Hindus are the religious majority community at the state level. In Punjab, Sikhs comprised the majority.
In its written statement, Union government has told the Supreme Court that it has held consultative meetings with States on issue of declaring a particular community as minority on the basis of state population but the comments from Arunachal Pradesh, Jammu & Kashmir, Jharkhand, Lakshadweep, Rajasthan and Telengana are still awaited.
In its response to a PIL by advocate Ashwini Kumar Upadhyay, the Ministry of Minority Affairs said it has held meetings with all state governments and Union Territories in the matter.
"Inspite of consultative meetings dated 25.07.2022, 10.09.2022 and 05.12.2022 held under the chairmanship of Secretary with the officers of the said States/UTs and several reminders issued. However, inputs / comments from the remaining 6 State Governments / UTs namely Arunachal Pradesh, Jammu & Kashmir, Jharkhand, Lakshadweep, Rajasthan and Telengana are still awaited," it said.
The government also said it has sent a reminder to the four states and two UTs in the matter on December 21, 2022.
Notably, the plea by Upadhyay sought declaring the minorities at State level while another plea by Devakinandan Thakur ji pleaded to define minority and lay down guidelines for identification of minorities at the district level.
The Centre had earlier sought time from the court to hold consultations with the States.
The top court is scheduled to hear the matter on Friday.
With regard to the top court's query on Allahabad High Court's judgement of April 5, 2007 which stated that Muslims can't be declared as minority in the country, the government said it has sought an opinion of Ministry of Law and Justice on the issue and their response was still awaited.
In November, 2022, the Union government has told the court the matter related to identifying minorities at the state and district levels, is "sensitive in nature and will have far-reaching ramifications", so it should be granted more time for holding consultation with States.
The Ministry of Minority Affairs had earlier said "State governments can also declare a religious or linguistic community as a minority community within the said state."
Let's see what different Central Government ministries and departments said on the issue:
MHA: The subject matter of the petition is relating to the NCMEI Act, 2004 and NCM Act, 1992 which are dealt with by Ministry of Education and Ministry of Minority Affairs respectively. Further, the issue of authority of the Parliament or the State Legislature to exclusively legislate on matters pertaining to minority communities is to be examined in consultation with Ministry of Law & Justice. This Ministry has no specific inputs/ comments to offer in the matter.
Ministry of Education: There is no specific definition of what a minority group particularly is or can comprise of. Accordingly, as a matter of principle, this Commission does not grant Minority status Certificate to those educational institutions established & administered by minority or minorities which are in majority in a particular state/UT. As per the judgment of Hon'ble Supreme Court in TMA Pai Foundation, the identification of minorities at 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.
Department of Legal Ministry of Legal Affairs, Ministry of Law and Justice: It has reiterated the stand in the Minutes of the meeting held on 18.08.2022 that the comments of concerned State Government should be obtained by the Ministry in the matter. Further, they have stated that nothing more is to be added at this stage.
The National Commission for Minority Educational Institutions: It is bound by the National Commission for Minority Minority Educational Institutions Act, 2004. As per Section 2 (f) of the NCMEI, 2004 "minority" means a community notified as such by the Central Government. The Central Government has notified six religious minorities namely Muslim, Christian, Sikh, Buddhist, Parsi and Jain. The term "minority" is not defined in the Constitution of India. Supreme Court of India in a landmark case "The Kerala Education Bill" observed that minority means a community which is numerically less than 50%.
It has been held by the Eleven Judges Bench of the Hon'ble Supreme Court in TM A Pai Foundation Vs State of Karnataka (2002), that a minority, whether linguistic or religious, is determinable only by reference to demography of the State and not by taking into consideration the population of the county as a whole. The application of numerical test with reference to religion in states like Punjab, Jammu & Kashmir and Nagaland makes Sikhism, Islam and Christianity, the majority religions in those States respectively. (D A V Collage Vs State of Punjab AIR 1971).
It is important to note that there is no specific definition of what a minority group particularly is or can comprise of. Accordingly as a matter of principle, this Commission does not grant Minority Status Certificate to those educational institutions established & administered by minority or minorities which are in majority in a particular State/UT. As per the judgement of the Supreme Court in TMA Pai Foundation the identification of minorities at 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.
Views of the States and UTs
Andhra Pradesh: It is the State, and not the whole of India, that shall have to be taken as the unit for determining a religious minority.
Assam: Identification of minorities should be State-wise.
Andaman and Nicobar Islands: The UT is without Legislature and will follow the direction of the Central Government.
Bihar: The present system for identification of minority can be continued.
Chhattisgarh: Out of the minority communities notified by the Government of India, Muslims, Christians, Sikhs, Buddhists, Parsis and Jains respectively; on the basis of the total population in the State, Muslims, Christians, Sikhs, Buddhists, and Jains are minority in the Chattishgarh State. Therefore, in Chhattisgarh, which includes the establishment and operation of minority educational institutions by minority communities residing in the State, the population of minorities in the State of Chhattishgarh is not affected by Section 2(f) of the Act. Therefore, the opinion of the State government that Section 2(f) of the NCMEI Act, 2004 may be retained in context of the State.
Chandigarh: "There is no legislature of its own in UT of Chandigarh. The Parliament legislates for UT of Chandigarh. As the matter is concerned with regard to identification of minorities at the National level for pan India purpose, or identify minorities at state-wise at the National Level, it is further intimated that UT Chandigarh being without legislature follows all the instructions/guidelines of Government of India. Any directions passed by Government of India on the subject matter will be complied.
Delhi: (i) The followers of Judaism and Bahaism residing in Delhi are religious minority, so the Govt. of NCT of Delhi have no objection, if the Central Government declare them the minority status. (ii) The followers of Hinduism are not the 'religious minority' in the NCT of Delhi but the Central Government may declare the 'migrated minority status to the "followers of Hinduism who are the religious minority in their origin state (i.e. Jammu and Kashmir, Laddakh etc) and residing in Delhi after migration from their home state."
Dadra & Nagar Haveli and Daman & Diu: The said UT is a Union Territory without Legislature. Therefore, no separate guidelines or notifications can be issued by this UT. Further, it is stated that the directives in the form guidelines / notifications / rules etc, as issued by the Government of India shall only be adopted by the said UT in toto.
Gujarat: Government of Gujarat is of the opinion that they are comfortable with present procedure of identifying minorities communities.
Goa: The State has only provided the information pertaining to State of Goa regarding Minority Population as per Census 2011 which is as under: Muslim-8.33%, Christian-25.10%,Sikh-0.10% and Buddhist-0.08%.
Himachal Pradesh: The State is of the view although the Constitution does not define a minority or provide details relating to the geographical and numerical specification of the concept, it is felt that the Constitutional scheme envisages this to be determined at National Level. Hence, the present notification of a Minority status to any group under the National Commission for Minorities Act, 1992 by the Central Government adequately meets the Constitutional schemes.
Haryana: The power to notify any community as a minority community is vested with the Central Government. Therefore, in the future, if a community has to be given the status of a minority community on the basis of religion or language in the state of Haryana, then recommendations will be sent to the Government of India by the State Government on the basis of the latest census and the decision taken by the Government of India in this regard will be final.
Karnataka: In exercise of the powers conferred in section 10(b) of the Karnataka State Minorities Act, 1994, Karnataka State Minorities Commission has recommended the Government of Karnataka to declare Muslims, Christian, Sikhs, Buddhists, Jains and Zoroastrarians (Parsees) as Minority Communities. Accordingly, Social Welfare Secretariat of Govt of Karnataka declared the above communities as Minority Communities under Section 2(d) of the said Act. The stand of the State of Karnataka is "Status Quo".
Kerala: Government of Kerala holds the view that the existing provisions under NCMEI Act, 2004 and NCM Act, 1992 may continue, unless the Hon'ble Supreme Court
takes a different view in the instant case.
Ladakh: Ladakh is a UT without Legislature, so the power to legislate on matters pertaining to minority communities does not arise. Regarding framing of guidelines for identifying minorities at the state level, and whether State Governments can/should notify minorities, it is stated that such a decision required political consultations and Ladakh is a UT without legislature Accordingly, any opinion on the same falls under the purview of the Ministry of Home Affairs.
Madhya Pradesh: Approval is given for continuation of present system for identification of minority.
Maharashtra: They have informed that in exercise of the power conferred by clause (d) of section 2 of the Maharashtra State Minorities Commission Act, 2004, the Government of Maharashtra notified six communities as minority communities, viz. Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Paresis), and Jains vide notification dated October 9, 2006. In addition to these six communities, the government of Maharashtra notified the Jews as a minority community vide notification dated July 2, 2016. In the State of Maharashtra people whose languages are other than Marathi considered Linguistic Minorities. In the interest of Uniformity, Central Government can notify the Minority Communities. Central Government can, use the census data and with the consultation to States, notify the Minority Communities in concerned State.
Manipur: Religious minority group should be recognized at State level. Any religious group which constitutes less than 50% of the State's population should be recognised as a religious minority group of the State. Followers of Meitei Sanamahi religion should be considered for recognition as a religious minority group of the State of Manipur.
Meghalaya: Notification of Minorities falls under Concurrent List of the Constitution. Hence, Central Govt is the competent authority to recognise and notify Minorities as per the National Commission for Minorities Act, 1992. Therefore, Govt. of Meghalaya has no views and comments to offer on this matter.
Mizoram: The matter in issue is listed under List III (Concurrent List) of the Constitution and therefore both the Central and State Government has authority/ power to make laws. As such, any legislation to be made in regard to the matter in issue would be a policy decision which is to be exercised on need basis by the Central Govt or State Govt.
Nagaland: That while granting minority status, the category of people who experience relative disadvantage in relation to members of dominant social group should be looked into. The numerical strength simpliciter cannot determine who can be classified as minority. It may be stated that under no circumstance privileges and rights accorded to the people of the state will be interfered with. The minority status as is being followed presently is acceptable to the state.
Odisha: As far as Odisha is concerned, there is no justification to remove any of the six notified minorities from the list nor to declare any other community as a Minority community.
Punjab: The Parliament and the State legislature, both have a right to enact law to provide for the protection of the Minorities and their interests, being a subject in the Concurrent list. In India, different communities are in majority or in minority in different provinces/ States depending on their population. Therefore, it becomes necessary to protect the interests of the respective minority residing in the State in accordance with the Constitutional provisions. 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 a position to better appreciate the interests, well being and problems of different sections/communities residing in the State. The State of Punjab being empowered to enact and notify as detailed in the above Paras, it is important that the State continues to do so in order to provide protection to minorities and safeguard their interests.
Puducherry: Govt of Puducherry has informed that they have notified six minorities as notified by the Central Government, vide notification dated 22.03.2017. As per the UT of Puducherry is concerned, Hindus are majority (87.30%) and the followers of Judaism and Bahaism does not exist in the UT of Puducherry. Hence, the followers of Hinduism, Judaism and Bahaism are not being deprived of their basic rights to establish and administer educational institution of their choice in the UT of Puducherry, alteration does not applicable to the UT of Puducherry. Further, two private self-financing Medical Colleges under the Linguistic Minority are functioning as minority institutions in the UT of Puducherry in order to ensure the religious & linguistic Minority can establish and administer educational institutions of their choice. As prayed by the Petitioner in the Writ Petition, are not applicable to the UT of Puducherry is concerned.
Sikkim: The question as to what unit is to be used -- State or entire Country - to determine the linguistic minority and religious minority under Article 30 of the Constitution has been settled by the Constitution Bench of the Supreme Court in T. M. Pai. The relevant unit will be the State.
Tamil Nadu: The State is of the view that identification and notification of religious and linguistic minority communities should be made at State level. However, the actual or probable deprivation of their religious, cultural and educational rights and their socio economic status besides the population of these communities in the concerned State are to be the factors to be considered.
Tripura: As per State government Notification dated 18.04.2007; Muslim, Christians, Buddhists, Sikhs and Jains have been notified as minorities communities in Tripura. Further, they have stated that in Tripura Minority communities are slightly lagging behind in education, social sector, business and in government services. In some pockets, economic condition is not at par with the majority people and requires to be improved. Minorities should be identified at State level so that the followers of a religious
group who are actually less in number can get their Constitutional Rights as envisaged under Article 30 of the Constitution of India.
Uttar Pradesh: Government of UP has stated that they will have no objection if any decision taken by the Central Government in the matter.
West Bengal: As per section 2 of the West Bengal Commission Act, 1996, the State Government has declared the Muslim, Sikh, Christian, Budhist, Parsi and Jain as religious Minorities. Further, the State Government is of the view that power to declare a community as minority should vest with the State Governments / UTs.