Consult states, says SC as Centre changes stance on identifying minorities

The Supreme Court on Tuesday expressed displeasure over the Centre taking different stands on the issue of identification of minorities, including Hindus, at the state level and directed it to hold consultations with the states on the issue within three months.

In supersession of its earlier stand, the Centre had on Monday told the apex court that the power to notify minorities is vested with the Union government and any decision in this regard will be taken after discussion with states and other stakeholders.

The Centre had in March said that it was for the states and Union territories to take a call on whether or not to grant minority status to Hindus and other communities where they are less in number.

A bench of Justices SK Kaul and MM Sundresh said in a matter like this an affidavit is filed that Centre and state both have powers.

“Later, you say the Centre has powers. In a country like ours, which has so much diversification, we understand but somebody should have been more careful. Before these affidavits are filed everything is in public domain which has its own consequences. Therefore, you have to be more careful in what you say,” the bench observed.

Dictating it order, the bench said, ”A fresh affidavit has been filed by the ministry of minority affairs which seems to back out what was said in the earlier affidavit. Something we don't appreciate. It is now sought to be stated that the question sought to be adjudicated has far-reaching ramifications throughout the country."

“The stand has already been taken in the first affidavit. But as per fresh affidavit, the power is vested with central government to identify minorities… Aforesaid being the position, it is necessary that the exercise is taken by the Centre as proposed. List on August 30,” the bench said while seeking a status report three days before the hearing.

The top court also refused to entertain a plea filed by a Meghalaya-based socio-cultural organisation seeking intervention in the matter and asked it to approach authorities concerned with a representation.

Solicitor general Tushar Mehta, appearing for the Centre, sought three months time to hold consultation with the states and submitted that some PILs are filed and simultaneously they go into the public domain.

“We cannot file an affidavit without serving it to the other party and the moment we serve it goes in public domain,” Mehta said

He informed the bench that there was a meeting where three ministers of the concerned departments were present along with secretaries and the issues were discussed.

The apex court said these are matters which require resolution and everything cannot be adjudicated.

As the hearing commenced, a junior counsel sought pass-over saying that solicitor general Tushar Mehta was busy in some other court.

“What I am unable to understand is Union of India is not able to decide what to do. All this thought should have been given before. This creates uncertainty and all this comes into public domain before we put our eyes on it. This creates another problem."

The bench then observed,”If the Centre wants to consult states, we will have to take a call. Solution can't be that everything is so complex, we will do so. This cannot be answer from the government of India. You decide what you want to do. If you want to consult them do it. Who is stopping you from doing so?"

“These are matters which require resolution. Taking different stands doesn't help. If Consultation is required, it should have been done before the affidavit was filed,” the SC said.

The apex court had earlier granted four weeks to the Centre to respond to a plea, which has sought directions for framing of guidelines for the identification of minorities at the state level, contending that Hindus are in minority in 10 states.

In an affidavit filed in response to a plea filed by advocate Ashwini Kumar Upadhyay, the ministry of minority affairs said the central government has notified six communities as minority communities under section 2C of the National Commission for Minorities Act, 1992.

“It is submitted that the question involved in the writ petition has far-reaching ramifications throughout the country and therefore any stand taken without detailed deliberations with the stakeholders may result in an unintended complication for the country.

“Though the power is vested with the central government to notify minorities, the stand to be formulated by the central government with regard to issues raised in this group of petitions will be finalised after having a wide consultation with the state governments and other stakeholders,” the affidavit said.

The ministry said this will ensure that the central government is able to place a considered view before the apex court taking into consideration several social, logical, and other aspects obviating any unintended complications in the future concerning such a vital issue.

The ministry of minority affairs had earlier told the apex court that state governments can declare any religious or linguistic community, including Hindus, a minority within the said state.

The ministry had also submitted that matters concerning whether followers of Hinduism, Judaism, and Bahaism can establish and administer educational institutions of their choice in the said states and those related to their identification as a minority within the state may be considered at the state level.

Upadhyay had challenged the validity of section 2(f) of the National Commission for Minority Education Institution Act, 2004, alleging that it gives unbridled power to the Centre and termed it "manifestly arbitrary, irrational, and offending".

Section 2(f) of the Act empowers the Centre to identify and notify minority communities in India.