[PIL for minority status to Hindus] Some PILs, pleadings reach media before law officers: SG Tushar Mehta

Monday's hearing before the Supreme Court in the plea concerning the declaration of Hindus as minorities in certain States under the National Commission for Minority Education Institution Act, 2004 witnessed some interesting exchanges between the Bench and Solicitor General (SG) Tushar Mehta..This, after the SG told the Bench that he has not seen the affidavit submitted by the Union Ministry of Minority Affairs to the top court.In the plea filed by Advocate and BJP leader Ashwini Kumar Upadhyay, the Ministry had stated in an affidavit submitted before the top court that states are already empowered to confer linguistic or religious communities including Hindus and Jews minority status in the concerned state where they are in minority.The affidavit also said that the allegation by the petitioner that such communities cannot establish and administer educational institutions of their choice in places where they are in minority like in Ladakh, Mizoram, Lakshadweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh and Manipur, is not correct..When the matter was taken up for hearing today, SG Mehta said that he has not seen the stand taken by the Minority Department. "The reply appears to be there in newspapers," the Bench headed by Justice Sanjay Kishan Kaul said."Some public interest litigation (PIL) petitions, have this peculiarity that before law officers, it reaches the media," Mehta said..The Court recorded Mehta's submission and proceeded to adjourn the matter by four weeks."SG Tushar Mehta states that he has not gone through the reply by the minority department though reports are in press. We list this after four weeks and Centre to file a reply by then. Rejoinder to be filed two weeks after that," the Court said..Upadhyay in his plea has sought a declaration that Section 2(f) of the National Commission for Minority Education Institution Act, 2004, is arbitrary, irrational and offends Articles 14, 15, 21, 29 and 30 of the Constitution since it confers unbridled powers on the Central government to declare a community as a 'minority'..The Ministry of Minority Affairs by its affidavit, has opposed the plea, contending that Parliament is empowered under Article 246 of the Constitution of India read with Entry 20 i.e. ‘Economic and Social Planning’ of the Concurrent List in Schedule VII of the Constitution to enact law to promote and protect the interests of minorities. This power of Parliament is complemented by the executive powers of the Central government under Article 73, the Ministry stated.Under Section 2(c) of the National Commission for Minorities Act, the Central government notified six communities - Muslims, Christians, Sikhs, Buddhists, Parsis and Jains - as minorities, it was highlighted.Since Parliament has the competence to enact law such as the National Commission for Minorities Act, the natural corollary is that executive competence to notify a community as 'minority' under the said Act is also vested in the Central government, the affidavit submitted.It also said that a declaration of a community as a minority does not automatically guarantee all members the right to benefit from the schemes of the government."The schemes are for economically weaker and socially disadvantaged amongst minorities," it was stated.Hence, the National Commission for Minorities Educational Institutions Act is not arbitrary and Section 2(f) of the Act does not given any unbridled powers to the Central government, the affidavit submitted..Further, the power of the State governments to enact legislation for the protection and promotion of the interests of minorities is derived from the Concurrent List and not from the State List (List II of Schedule VII), the affidavit stated.“It will not be out of context to mention that in fact there is no heading under List II of Schedule 7 where under the State Legislature could have enacted law on the subject of minorities except under Entry 20 in the Concurrent list,” the Central government submitted.If the view that the states alone have the power to enact law on the subject of minority in accepted, then in such case, Parliament will be denuded of its power to enact law on the said subject, and this would be contrary to the constitutional scheme, the Centre made it clear.That said, the states are also empowered to notify 'minorities' in exercise of its powers, it was submitted. In this regard, the examples of Maharashtra and Karnataka were cited.“The Government of Maharashtra has notified 'jews' as minority community within Maharashtra. Moreover, the Government of Karnataka has notified Urdu, Telugu, Tamil, Malayalam, Marathi, Tulu, Lamani (or Lambadi), Hindi, Konkani and Gujarati languages as minority languages within the State of Karnataka,” the affidavit highlighted.Hence, the petitioner is not correct in contending that the state governments cannot declare certain communities as minorities. Therefore, the petition must be dismissed as the same is wholly untenable and misconceived in law, the Ministry said.