Tuesday, August 3, 2021
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Minorities issue: Plea seeks transfer of all pending cases challenging validity of S 2(c) of NCMA to Supreme Court

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New Delhi (ILNS): A petition has been filed in the Supreme Court seeking transfer of all pending petitions challenging the validity of Section 2(c) of the National Commission for Minorities Act, 1992 in order to avoid multiplicity of litigations and conflicting views on the interpretation of Articles 29-30.

The petition filed by advocate Ashwini Kumar Upadhyay says that by using the unbridled power under Section 2(c) of the Act, the Central Government declared Muslims, Christians, Sikhs, Buddhists, Jains, and Zoroastrians as ‘minority’, but did not declare the followers of Bahaism, who are merely 0.1 percent and Judaism, who are just 0.2 percent as a religious minority, “which is arbitrary unjustified and abdication of the statutory powers of the Centre Government.”

The petitioner has further submitted: “Amongst the questions which were formulated for answer by eleven judges Bench in TMA Pai Case [2002 (8) SCC 481] the most important was, What is the meaning and content of the expression ‘minority’ in Article 30 of the Constitution of India?  The answer in the opinion of the majority in the Constitution Bench is thus: “Linguistic and religious minorities are covered by expression ‘minority’ under Article 30 of the Constitution. Since the reorganization of the States has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be State and not whole India. Thus, religious and linguistic minorities, who have been put on a par in Article 30, have to be considered statewise”. Therefore, for the purpose of notifying the community as‘minority’, Centre is empowered to consider the claim of a particular community for being notified as such under Section2 (c) and cannot shirk its statutory responsibility.”

Hence the petitioner has submitted that after the TMA Pai Judgment, the legal position stands clarified that henceforth the unit for determining the status of both linguistic and religious minorities would be ‘State’.

Further pointing out at the minority population of Hindus in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab, and Manipur, the petitioner has submitted that “the minority rights of Hindus are being siphoned off illegally and arbitrarily to the majority population because neither Centre nor respective States have notified them as‘minority’ under S.2(c) of the NCM Act. Hence, Hindus are being deprived of their basic rights and protections guaranteed under Articles 29-30.”

Since similar petitions are pending before the High Court of Delhi, Meghalaya, and Gauhati, the petitioner has urged the Court to transfer all the matters to the Supreme Court which can be dealt with collectively avoiding multiplicity of proceedings.

The petitioner has also urged the Court to declare S.2(c) of the NCM and Notification dated23.10.1993 invalid and ultra-vires.

The petitioner has further urged the Court to direct the Home Ministry to identify and notify the religious and linguistic minorities at the State level in the spirit of Articles 29-30 of the Constitution of India and the Judgment of the Supreme Court in the TMA Pai case.

-India Legal Bureau

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