The government seeks time to address the issue and informs the Supreme Court that it is sensitive

Continuing to request time from the Supreme Court, the Centre has again requested time to complete consultations regarding demands to grant minority status to Hindus in states where Hindu numbers have declined, saying that “the matter is sensitive in nature and has far-reaching implications”.

In its fourth affidavit, filed Monday in response to petitions by Advocate Ashwini Kumar Upadhyay and others in this matter, the Centre stated that 14 states and 3 Union Territories have submitted their comments on the issue so far, and they have reminded others to submit their responses as soon as possible.

Based on the landmark 2002 Supreme Court decision in the TMA Pai case, the petitioners have challenged the legal validity of the consultation process, stating that the Centre is no longer able to notify anyone as a minority after the ruling in the case. Therefore, any deliberations under the National Commission for Minorities Act, 1992 “cannot confirm minority status to anybody in a state”.

The Supreme Court ruled in the TMA Pai case that in order to establish and administer educational institutions, religious and linguistic minorities must be identified at the state level in order to comply with Article 30.

According to the affidavit filed on Monday, the Central government “has held consultative meetings with all state governments and Union Territories, as well as with other stakeholders, including the Ministry of Home Affairs, the Department of Legal Affairs under the Ministry of Law and Justice, the Department of Higher Education under the Ministry of Education, the National Commission for Minorities (NCM) and the National Commission for Minority Educational Institutions (NCMEI).

It said that “some of the state governments/Union Territories have requested for additional time to have wider consultations with all the stakeholders before they form their considered opinion on the matter”, and that “the state governments were requested that in view of the urgency of the matter, they should expeditiously undertake the exercise with stakeholders in this regard so as to ensure that the views of the State Government are finalised and conveyed to the Ministry of Minority Affairs at the earliest”.

According to the Centre, “14 State Governments, including Punjab, Mizoram, Meghalaya, Manipur, Odisha, Uttarakhand, Nagaland, Himachal Pradesh, Gujarat, Goa, West Bengal, Tripura, Uttar Pradesh, Tamil Nadu, and three Union Territories, Ladakh, Dadra and Nagar Haveli, Daman and Diu, and Chandigarh, have submitted comments and views”.

This notice said those 19 states and union territories that are yet to submit their comments should do so as soon as possible so that the court may consider it.

According to the Centre, the court “may kindly consider allowing more time to allow the State Governments/Union Territories and stakeholders with whom consultative meetings have already been held to finalise their considered views on the matter due to the sensitive nature of the matter and its far-reaching implications”.

Upadhyay’s plea asserts that the expression “minority” does not have a definition anywhere, and that after the 2002 TMA Pai ruling, the notification issued by the Centre on October 23, 1993, in which Muslims, Christians, Sikhs, Buddhists, and Parsis were notified as minorities, had been rendered invalid.

Despite the addition of Jains to the list in 2014, Senior Advocate Vikas Singh, representing Upadhyay, questioned the Centre’s consultation process on the last date of hearing and stated that the Central government cannot issue such a notification since the TMA Pai (case). Therefore, whatever decisions they make under this Act cannot confirm minority status to anyone in a state.”

Despite the Supreme Court issuing notice to the Centre in August 2020, Upadhyay has not filed a response. Ultimately, it complied in March of this year after being cited for dragging its feet and fined Rs 7,500.

A counter-affidavit filed on March 25 sought to shift responsibility for granting minority status to Hindus from the central government to the state governments, saying “they have concurrent powers to do so as well”.

The government filed a new affidavit on May 9 “in supersession of the earlier affidavit”, which stated that “the center is responsible for notifying minorities”.

According to the Union Minority Affairs Ministry, the matter has “far-reaching ramifications”, and the government is seeking more time for discussions with “state governments and other stakeholders”.

This change in position drew the ire of the bench, headed by Justice S K Kaul, who nevertheless granted it time to conduct the proposed discussions.
In its third affidavit, filed on August 29, it stated that it had held discussions with eight states and two union territories and that they had requested more time to engage the stakeholders in a wider consultation. A request for an extension of the consultation period was made to the court.

The court agreed and granted the government an extension of six weeks.

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