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The Legal Affair

Let's talk Law

The Legal Affair

Let's talk Law

SC: Provide a state wise list of minorities, Determining minorities at district level not possible

SC: Provide a state wise list of minorities, Determining minorities at district level not possible

In a plea challenging the 1993 notification of the Central government declaring Muslims, Christians, Sikhs, Buddhists, Parsis, and Jains as minorities at the national level and questioning the constitutionality of the provisions under the National Commission for Minorities Act enabling the said notification, seeking the recognition of minorities at the district level, the bench of Justices UU Lalit and S Ravindra Bhat has directed that a state wise list of minorities be produced.

The plea has been filed by advocate Ashutosh Dubey.

The Supreme Court on Monday has asked the petitioner to provide concrete examples of States where any minority is not recognized.

The bench of judges of the Apex court presiding over the matter has also wondered if the top court can interfere in such a matter given the precedents already establishing that minority recognition has to be at the State level.

In response to the plea by BJP leader and advocate Ashwini Kumar Upadhyay, the Central government in March told the Supreme Court that Hindus, Jews, and Bahai followers who are minorities in certain States can be so declared by the concerned state government.

Justice Lalit insinuated to Advocate Ashwini Upadhyay, appearing in the related matter, that he may be right. Justice Bhat however, weighed in saying,

“You want to make out a case where there’s none…They can’t be identified on a general basis. Some are all-India minorities like Jews and Konkanis.”

Noticing a specific prayer in Upadhyay’s plea for district-wise recognition of minorities, Justice Bhat said,

“Prayer c (minorities at district level) is not tenable in law.”

Upadhyay urged that it can be on a State-level, referring to Hindus being a minority in some States.

Since Parliament has the competence to enact laws such as the National Commission for Minorities Act, the natural corollary is that executive competence to notify a community as a ‘minority’ under the said Act is also vested in the Central government, it was submitted in an affidavit.

The affidavit also said that any declaration as a minority does not automatically guarantee all minority community members benefits from the schemes of the government.

Hence, the National Commission for Minorities Act is not arbitrary and Section 2(f) of the Act does not give any unbridled powers to the Central government, the Centre submitted. Further, the power of State governments to enact legislation for the protection and promotion of the interests of minorities is derived from the Concurrent List, and not the State List.

At a previous hearing, the top court had stated that the right to be recognized as a minority is an inherent one that does not need a statute to be exercised.

The Court had further remarked that unless there was a concrete case of an eligible group being denied minority status, it could not entertain litigation in this regard.

“Supreme Court says that it should be state-based. It is an inherent right, and can be done without a statute also. See linguistic minorities. Kannada speaking person in Maharashtra is [a] minority.”

[Devkinandan Thakur Ji v Union of India & Ors.]