By Daya Sagar
It was on 09-02-2021 that once again that three-judge bench SC headed by Chief Justice of India (CJI) Sharad Arvind Bobde comprising Justices AS Bopanna and V Ramasubramanian issued a notice to the Centre after hearing a petition led by lawyer (a BJP associate), Ashwini Kumar Upadhyay, seeking the apex court`s order to define the term minority and issue necessary guidelines for its identification of minority and also challenging validity of section 2(C) of the National Commission for Minorities Act, 1992, which gives unbridled power to the Centre to declare any community minority arbitrarily. So the petitions in one form or other are being filed on the issue of minorities, determination of minorities and particularly the preferences being given to communities declared minority at all India level but who are in majority at State level in terms of the state quota allocated as national minority. Courts have so far opined that it is for the Centre/ State governments to nominate minorities.Like reservations the subject of identification of minorities on all India level and on state level has become an issue of discussions in public forms and for filing PILs in courts also. It has been so more after enactment of the National Minorities Commission Act 1992 , Act No. XIX of 1992 (an Act to constitute a National Commission for Minorities) and notification of 5 religious minorities on national level in Muslims , Christians, Sikhs, Buddhist and Zoroastrians ( Parsis) vide r Ministry of Welfare Notification No.816 ( E) dated 23-10- 1993 (Jain community was notified as minority community by Ministry of Minority Affairs Notification No. S.O. 267(E) dated January 27, 2014). o be brief the national level minorities have been declared on the basis of a religious community being less than 50 % at the national level. The special support in the form of scholarships, reservations in jobs / skill development and share in welfare schemes of GOI are presently being availed by members of national level minority community members even in in states where the population of national level minorities is more than 50 % at state level like Muslims in J&K & Lakshadweep, Sikhs in Punjab, Christians in Meghalaya, Mizoram, Nagaland. The question 2 has been that should not some % be fixed below which a community could face the fear of discrimination or domination by larger group/ groups ( Christian population in Manipur at 41.3% and Arunachal Pradesh at 35%, Goa at 25%, Kerala at 18.28%: Muslim populations Ladakh 44%, ), Assam (34.20 per cent), Bengal (27.5 per cent), Kerala (26.60 per cent), Uttar Pradesh 19.30%, UP 20%,Bihar 18 % )This question has also attracted the attention of Judges. Question 3 is that should not the States also declare religious minorities at State level and what about states where no religious community is more than 50% (As per the census 2011 Ladakh population Muslims 46%, Budhist40% population and Hindu 12% )It was in March 2007, a Division Bench of Allahabad HC ( Justice S R Alam and Justice Krishna Murari) had stayed proceedings on a writ petition ( Bahuri Alpasankhyak Balika Inter College of Kushinagar ) before Justice Srivastava after he had asked the State of UP and the Central governments as to (i) who should be recognised as the minority community ,(ii) what should be the criteria for such recognition (iii) whether such communities would be recognised at national, provincial and regional levels and (iv) whether a community having more than five per cent of the total population of the country could be recognised as a minority. Arguing against single bench order UP Advocate General, S M A Kazmi had stated that questions framed by the single Judge were not cognisable with the writ petition under reference.In another petition ( Anjuman Madarsa Noorum Islam, Dera Kalan of Ghazipurin reference to grant in aid from Government ) before Justice Srivastava of Allahabad High Court it was pronounced on 06-04-2007 that court has considered various demographic criteria relating to Muslims in the census reports of 1951 and 2001 where Muslims accounted for roughly 20 per cent of the 16.6 crore population of Uttar Pradesh. A notice was issued to Centre and the UP government to take appropriate steps to modify October 23, 1993 notification issued by the Central government on grant of minority status saying that< ” “The court finds that Muslims have ceased to be a religious minority community in the state of Uttar Pradesh on consideration of the material on record which include various census reports including those of 1951 and 2001.The UP government should treat any member of Muslim community equal to other non-minority religious communities without discriminating in any respect in accordance with law being an integral part of citizenry of India”>. But it was on 25 July 2009 that a Division Bench of Justices SR Alam and Sudhir Agrawal allowing the special appeal filed by UP State Government , observed that it was not open for the single judge to direct the Centre to modify the 1993 notification declaring 5 minorities on national basis .Court observed that the status of Muslims as a religious minority ought not to have been examined by the Judge in the way it was done.The bench over riding the April 2007 judgment delivered by a single Bench of Justice SN Srivastava said that (i) Muslims in Uttar Pradesh were not a religious minority by a notification dated October 23, 1993 issued under Section 2(c) of the National Commission for Minorities Act 2002 and (ii) nobody can challenge either the validity of the National Minorities Commission Act, 1992 or the said notification adding further that (iii) <“The Minority Commission has been set up with a statutory status, it could also aid and advise the government regarding the identification of any community as minority. Though the ultimate power in this regard shall vest with the Central government under Section 2(c) of the Act, it is always open for the commission to consider this aspect>.It was on 17-12-2019 that a Supreme Court of India bench comprising of Chief Justice S A Bobde and justices B R Gavai & Surya Kant dismissed a PIL ( The PIL was filed by BJP leader and lawyer Ashwini Kumar Upadhyay (i) challenging the validity of the 1993 notification declaring five communities — Muslims, Christians, Sikhs, Buddhists and Parsis — as minorities and (ii) seeking laying of guidelines to accord minority status based on state-wise population of a community) observing that (i) Religion must be considered pan-India and isn’t decided on geography, (ii) adding further that where as states were formed on linguistic lines so states could not be considered as units in deciding on the question, The bench said, “Where is the problem? We cannot declare anyone as minority. It is always done by the Govt.” Attorney general K K Venugopal did say that Hindu population was in minority in seven states & Union Territories. As per the Census, Hindus were in minority in Punjab (Sikh majority), Arunachal-?,Meghalaya/Mizoram/ Nagaland (Christian majority), J&K/ Lakshadweep (Muslim majority).Another PIL was filed by BJP Delhi Leader Ashwani Upadhyay seeking benefits in education and government jobs on the basis of ‘minority’ status to Hindus in eight states ( Lakshadweep (2.5 per cent), Mizoram (2.75 per cent), Nagaland (8.75 per cent), Meghalaya (11.53 per cent), J&K (28.44 per cent), Arunachal P (29 per cent), Manipur (31.39 per cent) & Punjab (38.40 per cent) but same was reject by Supreme Court on 20-02-2020 , however apex court directed petitioners to approach individual High Courts of the states where Hindus are in minority/ approach an appropriate forum.It was also on 29-08-2020 that The Supreme Court had issued notice to the Union Ministries of law and Minority welfare on a petition filed by Ashwani Upadhayaseeking the declaration of Hindus as minorities in nine states to enable them to run and manage their own educational institutions where petitioner had also challenged the validity of Section 2(f) of the National Commission for Minority Educational Institutions Act, 2004, “for not only giving unbridled power to the Centre but also allegedly being manifestly arbitrary, irrational” and offending Articles 14 (equality), 15 (non-discrimination), 21 (life and liberty), 29 and 30 of the Constitution of India” with regard to Hindus in the nine states where they are said to be in minority.Present NDA government has surely laid resolving hands successfully on some outstanding issues ,why is present government not settling the controversies regarding fixing norms for naming minorities at all India level and at State/ Ut levels is not understood ?.
(Daya Sagar is a Sr Journalist & analyst of J&K Affairs. [email protected])
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