New Delhi: The Supreme Court Monday expressed displeasure that the Centre has not yet filed its counter affidavit on a plea, which has challenged the validity of section 2(f) of the National Commission for Minority Education Institution Act 2004, and granted one further opportunity to the government to file it subject to cost of Rs 7,500.
The plea, in the alternative, has sought direction to the Centre to lay down guidelines for identification of minority at the state level saying the Hindus are in minority in 10 states and are not able to avail the benefits of schemes meant for minorities.
The apex court, which had on January 7 granted “last opportunity” to the Centre to file counter affidavit within four weeks, said the government will have to take a stand on the issue.
A bench of Justices S K Kaul and M M Sundresh was informed that the Centre has circulated a letter requesting an adjournment in the matter.
Senior advocate Vikas Singh, appearing for petitioner Ashwini Kumar Upadhyay, said they have an objection to the letter circulated by the Centre only for the limited purpose as the government’s stand in the matter would be important and they should at least expedite it.
You have circulated a letter but you are circulating letters only. Everything else is happening. You have to take a stand, the bench told Additional Solicitor General (ASG) K M Nataraj, who was appearing for the Centre.
The ASG, who referred to COVID-19 situation, said the government would take a stand.
Don’t make excuse which we find very difficult to accept, the bench said, adding that notice was issued on the plea on August 28, 2020.
The bench said it is not fair that counter affidavit has not been filed by the Centre yet in the matter.
We grant one further opportunity of four weeks to file the counter affidavit subject to deposit of cost of Rs 7,500 to SCBA (Supreme Court Bar Association) Advocates’ Welfare Fund, as requested by the senior counsel for the petitioner, the bench said.
The bench, which posted the matter for hearing on March 28, said rejoinder, if any, be filed within two weeks thereafter.
During the hearing, the bench told the ASG that it had on January 7 granted last opportunity to the Centre to file the affidavit.
Do some contribution for some good cause, Justice Kaul said, adding, I must apply Article 14 (Equality before law) uniformly. Not impose cost on you and impose cost on others, that is not fair.
Upadhyay, in his plea, has challenged the validity of section 2(f) of the National Commission for Minority Education Institution Act 2004 for allegedly giving unbridled power to the Centre and being manifestly arbitrary, irrational and offending.
The plea, filed through advocate Ashwani Kumar Dubey, has said that denial of benefits to the “real” minorities and arbitrary and unreasonable disbursements under schemes meant for them to the absolute majority infringe upon the fundamental right under the Constitution.
It has sought to declare that section 2(f) of the Act is arbitrary, irrational and offends several Articles of the Constitution, including Article 14.
“In alternative, direct and declare that followers of Judaism, Bahaism & Hinduism, who are minorities in Laddakh, Mizoram, Lakshdweep, Kashmir, Nagaland, Meghalaya, Arunachal Pradesh, Punjab and Manipur, can establish & administer educational institutions of their choice in spirit of the TMA Pai Ruling,” the plea said.
The apex court in the TMA Pai Foundation case had held that the state is well within its rights to introduce a regulatory regime in the national interest to provide minority educational institutions with well-qualified teachers in order for them to achieve excellence in education.
Quoting Article 30 of the Constitution, the plea said that minorities whether based on religion or language shall have the right to establish-administer educational institutions of their choice.
“Rational basis of declaring certain religions as minority by central government as they have less population in the states is contravened when benefits of schemes for minority are acquired by those religious minorities in states where they are in majority and those religious communities who are actually minorities are not been given equal status,” it said.
The petition said that denial of minority rights to actual religious and linguistic minorities is a violation of right of minority enshrined under Articles 14 and 21 (no person shall be deprived of his life or personal liberty except according to procedure established by law) of the Constitution.
The apex court had earlier allowed a plea seeking transfer of cases from several high courts to it against the Centre’s notification to declare five communities — Muslims, Christians, Sikhs, Buddhists and Parsis — as minorities and tagged the matter with the main petition