BJP leader Ashwini Kumar Upadhyay has moved the Supreme Court seeking a direction upon the Central Government to lay down guidelines for identification of minorities “at State level”, in spirit of its verdict in the TMA Pai case.
In the case of TMA Pai, the Top Court had held that the unit for determining status of linguistic and religious minorities would be State. It observed,
“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.“
The Petitioner is aggrieved by declaration of 5 communities, viz. Muslims, Christians, Sikhs, Buddhists and Parsee, as minorities “at national level”, thus giving them the right to establish & administer minority educational institutions even in those States where they are in majority, while depriving the same rights to followers of Judaism, Bahaism & Hinduism.
“It is respectfully submitted that denial of minority rights to the real minorities and arbitrary and unreasonable disbursement of minority benefits to the absolute majority, infringes upon the fundamental right to prohibition of discrimination on the grounds of religion race caste sex and place of birth [Article 15]; impairs the right to equality of opportunity in the matters related to public employment [Article 16]; and offends freedom of conscience and right to freely profess practice and propagate religion [Article 25]. It also erodes the obligation of the State ‘to endeavour to eliminate inequalities in status facilities opportunities’ [Article 38],” the plea states.
Giving instances of such discrimination the Petitioner, through Advocate Ashwani Kumar Dubey, has stated,
“Centre has arbitrarily declared Muslims as minority, who are 96.58% in Lakshdweep, 95% in Kashmir, 46% in Laddakh. Similarly, Centre has declared Christians as minority, who are 88.10% in Nagaland, 87.16% in Mizoram & 74.59% in Meghalaya. Hence, they can establish and administer educational institution of their choice. Likewise, Sikhs are 57.69% in Punjab and Buddhists are 50% in Laddakh and they can establish & administer educational institution of the their choice but not the followers of Bahaism and Judaism, who are merely 0.1% and 0.2% respectively at national level.“
He has sought that the Central Government through its Ministries of Affairs, Law & Justice and Minority Affairs, be directed to ensure that only those religious & linguistic groups, which are socially/ economically/ politically non-dominant and numerically inferior at state level, can establish and administer educational institutions of their choice.