FOR the past six months, an internal, three-member committee set up by the National Commission for Minorities (NCM) has been deliberating upon an unusual representation received by it from Ashwini Upadhyay, a Supreme Court advocate and a member of the Bharatiya Janata Party (BJP). The representation, among other things, seeks to declare Hindus as a minority community in eight States of India.
Late last year, there was a flutter when the advocate approached the Supreme Court with a public interest litigation petition seeking declaration of Hindus as a minority community in these States. The court did not entertain the petition and directed Upadhyay to approach the NCM.
In his representation to the NCM, the advocate has prayed for the following four things: a) repeal the Notification on Minority Community dated October 23, 1993, as it is “ ultra-vires the Constitution and its basic structure”; b) exercise the power conferred by Section 2(c) of the NCM Act and “define ‘Minority’ in spirit of the United Nations General Assembly Resolution dated 18.12.1992 and the Supreme Court Judgment in Civil Appeal - 4730/1999”; c) frame guidelines for “identification of minorities at State level” and ensure that “only those groups of persons which are socially, economically and politically non-dominant and numerically inferior to the other groups, enjoy rights and protections guaranteed to minorities under Articles 29-30”; and d) in the alternative, exercise the power conferred by Section 2(c) of the NCM Act to “declare Hindus as the ‘Minority’ for the States where they don’t form a majority of population”.
The 1993 notification is the only document that expressly identifies five religious communities—Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) as minorities. Upadhyay has argued that this notification is beyond the legal power granted by the Constitution and its basic structure. Arguing that a proper legal definition of what constitutes a minority has not been worked out in the Indian system, he claims in the second prayer that the NCM can suggest a definition by looking at a United Nations General Assembly resolution and a Supreme Court judgment. The third prayer, of identifying minorities at the State level, draws on the point about U.N.-approved definition.
Not unexpectedly, the advocate’s last prayer is more controversial, and has as such attracted some attention in the legal and political fraternity in the national capital. Upadhyay argues that the National Commission for Minorities Act, 1992, can be used to declare Hindus as “minority” where “they don’t form a majority of population”.
Eight States have been mentioned in the representation: Jammu and Kashmir, Punjab, Lakshwadeep (Union Territory), Mizoram, Nagaland, Meghalaya, Arunachal Pradesh and Manipur. Upadhyay’s representation argues that some of these States (Jammu and Kashmir and Lakshwadeep) have Muslims in the majority while the rest have Christians in the majority (Mizoram Nagaland and Meghalaya) or in substantial numbers (as in Arunachal Pradesh and Manipur) and Punjab has Sikhs in the majority. Yet, Hindus have not been declared a minority in these States, he argues.
It is unclear if this line of reasoning has legal sanction or acceptance, but the lawyer insists it does. This reasoning, which lays emphasis on State populations instead of national populations, stems from an understanding, which Upadhyay claims to have developed from his reading of some apex court judgments, that India cannot have a legally backed national-level identification of minority communities.
This is an argument that he sought to impress upon a three-member subcommittee set up by the NCM. Upadhyay told Frontline that he told the subcommittee “that you may set a parameter [for identifying which community can be declared as minority] and, according to the TMA Pai [judgment of the Supreme Court], identify it at the State level; whatever parameter it may be. In developed countries, it is 2 per cent [of the total population]. Socially, economically, politically non-dominant and less than 2 per cent, this is the practice in developed countries. So, we said, make a parameter and declare it at the State level but, on the national level, minorities cannot be decided based on religion. This is wrong. We have been told that they will decide within a week. If it goes against us, we can again go to the Supreme Court.”
The NCM’s first hearing on the representation was held on June 14. It was unclear, at the time of going to press, whether there would be more hearings and how long it would take for a decision to be made. George Kurian, Vice Chairman of the NCM and Chairman of the three member subcommittee tasked with looking into the representation, told this correspondent in mid June that the committee members sat down for deliberations about 10-12 times before organising the hearing. The subcommittee was formed in January, he said. When asked to comment on the petitioner’s arguments, Kurian expressed his inability to do so citing propriety of his position as Chairman of the subcommittee.
Speaking to Frontline on June 14, Kurian explained the issue and the consequences of the hearing, thus: “We studied the representation because he has quoted several Supreme Court judgments and we had to give him opportunity to be heard. That is the legal procedure. Today we called him and he explained his side, now the sub-committee will sit and put together a report, which will be submitted to the full commission. The full commission will discuss the matter [report] and, if approved, it will be sent to the authorities concerned and this applicant [Upadhyay] as well. On that basis, he can again approach whosoever [authority] he desires. We heard him, but haven’t decided anything yet. We will have to again sit and discuss his submission. Ultimately, it will become a legal matter because everything is connected to the Supreme Court.”
Evidently, the issue may well go back to the Supreme Court, unless the Union government decides to weigh in. Upadhyay had sent copies of his representation to Prime Minister Narendra Modi, the Minister for Law and Justice and the Minister for Minority Affairs.
