THE SUPREME Court on Monday gave states and union territories which are yet to respond to petitions seeking identification of religious minorities at the state level, in accordance with the 2002 TMA Pai Foundation case judgment, a last opportunity to do so. A bench of Justices S K Kaul and Ahsanuddin Amanullah gave them six weeks to submit their reply to the central government, failing which the Supreme Court said, it would presume they had nothing to say on the subject. The directive came after Additional Solicitor General K M Nataraj, appearing for the Centre, told the bench that Rajasthan and Telangana were yet to file their response, while Jammu and Kashmir had filed a partial reply. In the TMA Pai Foundation case, the SC laid down that for the purposes of Article 30 — which deals with the rights of minorities to establish and administer educational institutions — religious and linguistic minorities will have to be identified at the state-level. The Constitution refers to “minorities” in some Articles, but does not define the term. Neither does the National Minorities Commission Act, 1992, under which the Centre notifies which communities are minorities. Citing this, the petitions have also challenged Section 2(c) of the National Commission for Minorities Act, 1992, which gives the Centre power to notify minorities, asking how the Centre can do so without a clear definition of what constitutes a minority. One of the petitions by Advocate Ashwini Upadhyay contends that after the TMA Pai judgment, the October 23, 1993 notification, by which the Centre had notified Muslims, Christians, Sikhs, Buddhists and Parsis as “minority” community, had become as good as invalid. Although Upadhyay filed the plea in August 2020, the BJP-led central government did not file any response despite the SC issuing notice to it. Finally, it did so in March 2022 after it was pulled up for dragging its feet and slapped with a cost of Rs 7,500. In a counter-affidavit filed on March 25, 2022, the Centre sought to put the onus of granting minority status to Hindus upon state governments, saying “they, too, have concurrent powers to do so”. With the stand drawing criticism, the government filed a new affidavit on May 9, 2022 “in supersession of the earlier affidavit”, which said “the power is vested with the Centre to notify minorities”. It then sought time from the SC to hold consultations with “state governments and other stakeholders” saying the issue has “far-reaching ramifications”. After multiple extensions to complete the consultation process, the Centre, in an affidavit filed in January this year, said that BJP-ruled Gujarat, Karnataka and Madhya Pradesh have favoured the current system of identifying and notifying minorities at the national level — which leaves out Hindus from the list of religious minorities — while its governments in Assam and Uttarakhand have opined that the unit of identification of minorities should be the state as laid down in the T M A Pai judgment. The Centre said in its affidavit that 24 states and 6 union territories have furnished their views and sought more time for discussions. The SC granted the request.
