Written by Vidisha Mathur
In the ongoing case of Devkindan Thakur Ji v Union of India and Others, the petitioner has challenged the religion-based classification of minorities, calling for a district-wise recognition of minorities to get a truer picture.
Advocate Ashutosh Dubey, in his plea, has questioned the constitutionality of the provisos of the National Commission for Minorities Act of 1993 and its consequent notification in 1993 by the Government of India which declared Muslims, Christians, Sikhs, Buddhists, Parsis, and Jains as nationally recognized religious minorities.
The plea contends that such a system prevents the ‘real minorities’ to benefit from minority-focused rights and provisions and claims that a closer observation would reveal that even Hindus are a minority in some states. This adversely affects the fundamental rights of such ignored minorities, permits discrimination, and hinders the government’s efforts to ensure equality. The petitioners argue that the classification of minorities based merely on religion is not valid, as there is no intelligible differentia.
The Central Government, in a response to Advocate Ashwini Kumar Upadhyay, told the Apex Court that if State governments observe a religious community as a minority in the state, they can declare them so. The State legislations, within their jurisdiction under the concurrent list, can enact laws to benefit the minorities they recognize. Supreme Court says the system should state-based.
Regarding the National Commission for Minorities Act 1993, it is within the legislative competency of the Parliament and hence, executive competence lies with the Central government, as per submitted affidavits. But this cannot guarantee that the schemes will be successful in helping all minorities. The Act herein cannot be declared arbitrary as it does nothing to provide unconstrained power to the central branch of the government.
The right to be recognized is inherent to a community and does not need a statute to provide for it. But for such litigation to continue, the court needs to observe a material example of such a denial of minority rights.
The presiding bench of Justice U.U. Lalit and Justice S. Ravichandra Bhat deliberated whether the top court can interfere in the matter, considering that precedents already establish state-level minority recognition; and Bhat holds that the minorities cannot be determined generally and that such a district-wise recognition of minorities is unjustifiable in law. The bench has asked the petitioner to concrete examples of states wherein minorities were not being recognized.