Hindu minority status: SC slammed govt in May for changing stand, now says no case, clubs pleas

The bench later agreed to tag Thakur’s petition — which among others, has also challenged the constitutional validity of the National Commission for Minorities Act- 1992 and sought directions to ‘define minority’ — with an already pending plea by Upadhyay who had raised nearly similar issues.

However, while a bench presided by Justice S K Kaul has already listed Upadhyay’s 2020 petition for hearing on August 30, the Justice Lalit bench directed that the new plea by Thakur — which was filed in June 2022 — be listed “along with” Upadhyay’s petition “and other connected matters in the first week of September 2022, before the appropriate court”.

Taking up Thakur’s plea on Monday, Justice Lalit said “theoretically what you say is right. Hindus may be minority in Kashmir, Mizoram, Nagaland, or even in Kerala”. Added Justice Bhat, “This issue has gone into by the Supreme Court… that it is state-wise. If that is the law, then why do we need to clarify? In concrete cases where minority communities are denied some programme…or are not declared as minorities for the purpose of an educational institution, it is open to them to go to the court”.

Upadhyay, who also appeared for Thakur, pointed out that in the landmark TMA Pai ruling, it was laid down that for the purposes of Article 30 that deals with the rights of minorities to establish and administer educational institutions, religious and linguistic minorities will have to be identified at state-level but this was not happening even after the judgement.

Justice Bhat responded, “The problem is you want to somehow bring out a case where there is none…Identification by whom? It cannot be done on a general basis…When you talk of minorities, you have minorities who will be all-India minorities, for instance…Konkani speaking people, people with small populations in a particular language and the minorities all over. So, how do you declare everyone in every place? It’s not the job of the court.”

“It will have to be done on case-to-case basis. For instance, there was this judgement which was, I think, by Justice T S Thakur, Justice R F Nariman and Justice Banumathi. Say for instance, SGPC, if it runs a school in Punjab, it may not have the minority status. But if it is running a school in Calcutta, it may have…We are just giving you the examples…So, therefore if you give us concrete examples that perhaps the Hindus who are in minority in states like Mizoram or Nagaland where the majority religion is Christianity, then, if you give us those kinds of examples, we can certainly look into that. But you are just generally saying that Hindus must also be declared…”.

“And we cannot declare. Why…because we do not have the statistics for every particular state and every particular religion,” Justice Bhat said. He also referred to one of the four prayers in Thakur’s petition seeking identification of minorities at district level and said “you can’t claim prayer C. This is contrary to law. You are saying it should be done at district-level. We cannot entertain this. This is contrary to 11 judges (TMA Pai case)”.

In January this year, the bench presided by Justice Kaul had pulled up the central government for dragging its feet in the matter and imposed a cost of Rs 7,500 after it failed to file its response despite repeated opportunities. “You have not filed counter despite several opportunities. This is not fair. You have to take a stand,” the court had told the government’s law officer.

Subsequently, the Centre in a counter affidavit filed on March 25, after repeated prodding from the court, sought to put the onus of granting minority status to Hindus upon states saying “they too have concurrent powers to do so”. However in a new affidavit filed on May 9 “in supersession of the earlier affidavit”, it said that “the power is vested with the Centre to notify minorities”. The Ministry of Minority Affairs said that matter has “far-reaching ramifications”, and added that it needed more time for discussions with “state governments and other stakeholders”.

The Justice Kaul-led bench while allowing more time and fixing the hearing for August 30, however conveyed its displeasure over the change in stand and said “they have turned turtle…It seems to an extent to back out of what was stated earlier, something we don’t appreciate…What I am not able to understand is (that) Union of India is not able to decide what it wants to do…”