The Union Government submitted its ‘Status Report’ on January 12 stating that it had received diverse responses from twenty-four States and six Union Territories (UTs) on the issue of whether minorities should be notified at the state or national level. The report was filed as part of an affidavit outlining the stance taken by these states and UTs. It came in response to a pending Public Interest Litigation (PIL), filed by Advocate Ashwini Upadhyay that sought a direction to enforce the decision as laid down by the Supreme Court in the 2002 landmark T M A Pai case (T.M.A Pai Foundation versus the State of Karnataka) so that Hindus are recognised as a minority in states where they are few in number.
The previous year on May 10, the Supreme court had directed the Union government to conduct consultations with the states relating to the issue of the identification of the said minorities. On the basis of this order, the Union government conducted meetings with different state governments, union territories, the Ministry of Home Affairs, the Ministry of Law and Justice, the Ministry of Education, the National Commission for Women and the National Commission for Minority Educational Institutions.
While 24 State Governments and UTs have sent their responses, six have not responded in spite of repeated reminders issued to them. Arunachal Pradesh, Jammu & Kashmir, Lakshadweep, Rajasthan, Telangana and Jharkhand are the ones that have not submitted a response as of yet. As per the affidavit, Delhi is the only state that has proposed the idea of a distinct category of “migrated minority status” that would be provided to those Hindus who are a minority in their state of origin but are presently staying in Delhi after migration.
The Ministry of Minority Affairs has filed a counter affidavit in the matter and has levied the obligation of yielding minority status to Hindus upon states, specifying that even states have the power to assert a group as a minority. The Ministry of Education has responded by saying that the identification of minorities at the district level is not permissible because the linguistic or religious minority can be determined only by reference to the demography of the state, which varies from one state to another. The National Commission for Minority Educational Institutions has restated the same opinion as given by the Ministry of Education.
The petition filed by Advocate Upadhyay (Ashwini Kumar Upadhyay versus Union of India) stated that “Non-compliance of this judgment has kept Hindus from availing the rights of a minority in those states where they are lesser in number,” and that “the Centre is not empowered to notify minorities under the National Minorities Commission Act, 1992”. The PIL also challenged the constitutional validity of Section 2(c) of the National Commission for Minorities Act, 1992, which gives the Union authority to notify minorities.
In the T M A Pai judgment, an eleven Judge Bench of the Supreme Court decided the scope of the right of minorities to establish and administer educational institutions of their choice under Article 30(1) read with Article 29(2) of the Constitution. The majority opinion (pronounced by 6 Judges) held that only the State can determine the status of a religious or linguistic minority and religious and linguistic minorities, who have been put on a par in Article 30, have to be considered State-wise. However, the right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations and any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. Government regulations cannot terminate the minority character of the institution or make the right to establish and administer a mere illusion.
After filing of the affidavit, the Union Government said that it needs time to give a consolidated response to the petition, citing the reason that it needs to deliberate with the states and other Central Government departments on the matter.
