Monday, March 20, 2023

Supreme Court adjourns transfer petition seeking moving all pleas against Section 2(c) of NCM Act

Similar petitions are pending before the High Courts of Delhi, Meghalaya and Gauhati

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The Supreme Court has adjourned the transfer petition seeking the 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 litigation and conflicting views on the interpretation of Articles 29-30.

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

A three-judge bench of Chief Justice S.A. Bobde, Justices A.S. Bopanna and V. Ramasubramanian heard the matter. While hearing the plea, Senior Advocate C.S. Vaidyanathan, who appeared for the petitioner, said petitions are pending in six Six High courts. He further informed the bench that all the petitioners have been made parties in the present petition.

The bench, however, pointed out that according to the copies placed before it, some of the petitioners before the High Courts have not been made parties.

The Senior Counsel replied that the copies had been corrected with the registry. The bench, however, insisted that their copies should also be corrected and adjourned the matter for hearing till next week.

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The petition has been filed by Advocate Ashwini Kumar Upadhyay, which 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 minorities, but did not declare the followers of Bahaism, who are merely 0.1%, and Judaism, who are just 0.2%, as religious minorities, “which is arbitrary, unjustified and abdication of the statutory powers of the Central government.”

The petitioner further submitted that among the questions which were formulated for answer by the 11-judge 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?

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 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 state wise. Therefore, for the purpose of notifying community as ‘minority’, the Centre is empowered to consider claim of a particular community for being notified as such under Section 2(c) and cannot shirk its statutory responsibility.”

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Hence, the petitioner submitted that after TMA Pai Judgment, the legal position stands clarified that henceforth the unit for determining 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.”

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The petitioner has also urged the Court to declare S.2(c) of the NCM and Notification dated 23.10.1993 invalid and ultra-virus.

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

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