Do States Really Have Power to Confer Minority Status? Has This Happened Before?

The Centre was responding to a plea seeking minority status for Hindus in several states.

“…(the) State governments can also declare a religious or linguistic community as 'minority community' within the said State," said Centre in its affidavit.

(Photo: Altered by The Quint)

Responding to a plea seeking minority status for Hindus in Mizoram, Nagaland, Manipur, Meghalaya, Arunachal Pradesh, Punjab, Lakshadweep, Ladakh and Kashmir, the central government said:

“…(the) State governments can also declare a religious or linguistic community as 'minority community' within the said State.”

The Centre reiterated that its own power to notify a community as a “minority”, and make legislations pertaining to the same, remains constitutionally valid at the same.

The Centre’s response came in an affidavit filed before the Supreme Court, in response to a 2020 petition by advocate and BJP leader Ashwini Upadhyay.

What Was the Petition?

Upadhyay has, in his latest petition cited the 2011 census and sought:

• a declaration that followers of Judaism, Bahaism and Hinduism, who are minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur, can establish and administer educational institutions of their choice in the spirit of the TMA Pai ruling of the Supreme Court;

• a declaration that Section 2(f) of the National Commission for Minority Education Institution Act 2004, is arbitrary, irrational and offends Articles 14, 15, 21, 29 and 30 of the Constitution since it appears to confer the power to declare a community as 'minority’ only on the central government.

Section 2(f) of the Act defines “minority” as a “community notified as such by the Central Government”

Upadhyay filed this petition in 2020 after former Chief Justice of India SA Bobde had refused to entertain his previous petition seeking declaration of Hindus as minorities in eight states of India.

What Was the TMA Pai Ruling?

In TMA Pai and Others vs State of Karnataka, the apex court had held that religious and linguistic minorities have to be considered state-wise for the purposes of Article 30 of the Constitution of India (right of minorities to establish and administer educational institutions).

“Linguistic and religious minorities are covered by the expression "minority" under Article 30 of the Constitution. Since reorganisation of the State in India has been on linguistic lines, therefore, for the purpose of determining the minority the unit will be the State and note the whole of India. Thus, religious and linguistic minorities, who have been put at par in Article 30, have to be considered State-wise.”

Supreme Court in TMA Pai judgment

Article 30 (1) of the Constitution of India specifies that “all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

What is the Centre Saying?

The Centre, in its counter-affidavit, has contended that state governments (in addition to the Centre) can also declare a religious or linguistic community as a ‘minority community’ within the State for the purposes of Article 30.

“It is submitted that matters such as declaring that followers of Judaism, Bahaism and Hinduism, who are minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur can establish and administer educational institutions of their choice in the said State and laying down guidelines for identification of minority at State level may be considered by the concerned State Governments.”

Union Ministry of Minority Affairs

But the Centre also maintained that the parliament is empowered under Article 246 of the Constitution, read with Entry 20 (‘Economic and Social Planning’) of the Concurrent List to enact laws in a bid to promote and protect the interests of the minority communities.

Further, the Centre refuted the petitioner’s contention that the National Commission for Minorities (NCM) Act is “arbitrary”.

"It is submitted that minority status based on religion does not automatically guarantee eligibility for benefiting from the schemes of the government. The schemes are for the benefit of economically weaker and socially disadvantaged amongst the minorities”.

The Centre has already notified six communities — Muslims, Christians, Sikhs, Buddhists, Parsis and Jains — as minorities under section 2(c) of the Act.

But How Can a State Declare Minority Status? Have They Done This Before?

As pointed out by the Union Ministry of Minority Affairs, identification of minority communities is part of the Concurrent List. Thus, both the Centre, as well as the states have the power to legislate over the same.

While the Centre can decide which communities make the linguistic or religious minority in the country, the state-governments can take a call on which ones do so in their state.

Further, as pointed by the Centre, various states have already done this in the past.

These include:

• The state government of Gujarat in 2018 granted minority status to the Jewish community within the state

• The state government of Maharashtra granted minority status to the Jewish community in 2016

• As pointed out by the Centre, themselves, “the Government of Karnataka has notified Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lamani (or Lambadi), Hindi, Konkani and Gujarati languages as minority languages” within the State