A plea has been filed in the Supreme Court challenging a provision of the National Commission for Minorities (NCM) Act and seeking a direction to the Centre to define "minority" and lay down guidelines for the identification of minorities at the district level. The plea sought to declare the notification on the minority community, issued by the government on October 23, 1993, as arbitrary, irrational, and contrary to Articles 14, 15, 21, 29, and 30 of the Constitution.
The petition was filed by Mathura-resident Devkinandan Thakur through advocating Ashutosh Dubey. It said the petitioner is filing this PIL under Article 32 to challenge the validity of Section 2(c) of the NCM Act 1992 for not only giving unbridled power to the Centre but also being manifestly arbitrary, irrational, and offending Articles 14, 15, 21, 29 and 30 of the Constitution. It sought direction to declare that Section 2(c) of the National Commission for Minorities Act is void, unconstitutional, and inoperative for being violative of Articles 14, 15, 21, 29, and 30 of the Constitution.
The plea said that the facts constituting the cause of action accrued on May 17, 1992, when the Act came into effect and by using unbridled power under section 2(c), the Centre arbitrarily notified five communities namely Muslims, Christians, Sikhs, Buddhists and Parsis as a minority at the national level against the spirit of the TMA Pai ruling of the top court.
“Cause of action continues till date because followers of Judaism, Bahaism, and Hinduism; who are real minorities in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab, Manipur, cannot establish and administer educational institutions of their choice because of non-identification of ‘minority’ at the state level, thus jeopardizing their basic rights guaranteed under Article 29-30”, it said. The plea said that their right under Articles 29-30 is being siphoned off illegally to the majority community in the state because the Centre has not notified them as ‘minority’ under the NCM Act.
"Followers of Judaism, Bahaism, and Hinduism are being deprived of their basic rights to establish and administer educational institutions of their choice. On the other hand, Muslims are in majority in Lakshadweep (96.58%) and Kashmir (96%) and there is a significant population in Ladakh (44%), Assam (34.20%), Bengal (27.5%), Kerala (26.60%), UP (19.30%) and Bihar (18%) and (they) can establish & administer educational institutions of their choice," it said.
The petition said that Christians are the majority in Nagaland (88.10%), Mizoram (87.16%), and Meghalaya (74.59%), and there is a significant population in Arunachal, Goa, Kerala, Manipur, Tamil Nadu, and West Bengal where they can also establish and administer educational institutions of their choice.
“Likewise, Sikhs are the majority in Punjab and there is a large population in Delhi, Chandigarh, and Haryana, but they can establish and administer. Similarly, Buddhists are the majority in Ladakh but they can establish and administer educational institutions of their choice," it said. The plea said that the injury caused to the followers of Judaism, Bahaism and Hinduism is large because Section 2(c) is manifestly arbitrary irrational and contrary to Articles 14, 15, 21, 29 and 30.
“Hindus are merely 1% in Ladakh, 2.75% in Mizoram, 2.77% in Lakshadweep, 4% in Kashmir, 8.74% in Nagaland, 11.52% in Meghalaya, 29% in Arunachal Pradesh, 38.49% in Punjab, 41.29% in Manipur but the Centre has not declared them ‘minority’, thus Hindus are not protected Articles 29-30 and cannot establish and administer educational institution of their choice," it said.
The plea further said that by using unbridled power under the Act, the Centre has arbitrarily declared Muslims who are 96.58% in Lakshadweep, 95% in Kashmir, and 46% in Ladakh, as minority. "Similarly, the Centre has declared Christians as a minority, who are 88.10% in Nagaland, 87.16% in Mizoram & 74.59% in Meghalaya. Hence, they can establish and administer educational institutions of their choice”, the plea said.
“Likewise, Sikhs are 57.69% in Punjab and Buddhists are 50% in Ladakh and they can establish & administer educational institutions of their choice but not the followers of Bahaism and Judaism, who are merely 0.1% and 0.2% respectively at the national level. Therefore, Section 2(c) of the NCM Act 1992, which gives unbridled power to the Centre, is manifestly arbitrary, irrational & contrary to Articles 14, 15, 21, 29, 30 of the Constitution," it said.
It further claimed that the Centre through the notification dated October 23, 1993 arbitrarily notified five communities as ‘minority’ communities without defining ‘minority’ and framing guidelines for identification at state level. “In 2014, Jains were added to the list as a sixth minority, though the three judges’ bench of this Court in Bal Patil Case (2005 verdict) had very categorically refused to grant minority status to Jains," it said. It further added that after the judgment in the TMA Pai case (2002), the legal position is very clear that the unit for determining status of linguistic and religious minorities would be state.
"The judgment in the TMA Pai case is law of the land; hence, the identification of religious and linguistic ‘minority’ has to be done by the state only and the Centre has to exercise its power under NCM Act...," it said. A similar plea filed by advocate Ashwini Upadhyay is pending before the top court.
