The central authority directed the Supreme Court that affirmative states, where the number of Hindus or other communities is very small, may declare them as minorities in their own territories, allowing them to set up and operate private institutions.
Placing the onus on the states, the central government has stated in an affidavit that state governments have the power to declare communities as minorities.
“State governments can declare a religious or linguistic community within the state as a minority neighborhood,” the affidavit filed in the apex court with the help of the Union Ministry of Minority Affairs said.
States may also declare a spiritual or linguistic group as a minority within its territory, as Maharashtra did in 2016 with Jews, and Karnataka with Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lamani, Hindi, Konkani and Gujarati as minority languages.
The central government’s response came in a petition filed in 2020 using advocate Ashwini Upadhyay, that as per the 2011 census, Hindus were a minority in Lakshadweep, Mizoram, Nagaland, Meghalaya, Jammu and Kashmir, Arunachal Pradesh, Manipur. Punjab and in these states they must be given minority status as per the principles laid down by the Supreme Court in the TMA Pai Foundation judgment of 2002.
In the TMA Pai case, the Supreme Court held that for the purpose of Article 30 which deals with the right of minorities to establish and run academic institutions, spiritual and linguistic minorities should be considered by the state.
Under Section 2(c) of the National Commission for Minorities Act, 1992, the Center notified five communities – Muslims, Sikhs, Buddhists, Parsis and Christians – as minorities in 1993.
The affidavit stated that the petitioner’s contention was that followers of Judaism, Bahaism and Hinduism, who are minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur, cannot run their institutions. It won’t be right anymore.
“They may establish and operate academic institutions of their choice in the said states and suggestions for recognition of minorities in state degrees may additionally be looked into through the concerned state governments,” the Center’s affidavit launched.
In dismissing the petition, the Center said in the affidavit that “the relief sought by the petitioner is no longer in the larger public or national interest”.
It said that the issue of identification of non-communal and linguistic minorities cannot be directly jacketed and “Religious and linguistic minorities are spread all over the United States and are not now attached or confined to any single state/UT in India. India is a country of special character. A non-communal party that is the majority in one state may be the minority in another state.
The petition sought direction from the Center to recommend the identification of minorities at the state level as Hindus in 10 states are not able to avail benefits of schemes meant for minorities and minorities.
In his petition, the petitioner challenged the validity of Section 2(f) of the National Minority Educational Institutions Act, 2004 for giving unbridled power to the Center and being manifestly arbitrary, unreasonable and objectionable.
“Directly and declare that followers of Judaism, Bahaism and Hinduism, who are minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur, may establish and run educational institutions of their choice,” the petition said. In the spirit of Pai rule.”