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Recent cases on Minority Rights by Malik

2018) All applications for the establishment of a minority educational institution after the

Amendment Act of 2006 must go only to the competent authority set up under the statute. On the

other hand,  for the declaration of its status as a minority educational institution at any stage

post establishment, the NCMEI would have the power to decide the question and declare such

institution’s minority status,  the bench said.

In an important judgment, the Supreme Court has held the National Commission for Minority

Educational Institutions (NCMEI) has the power to decide minority status of an already existing

educational institution and all applications for the establishment of a minority educational

institution after the Amendment Act of 2006 must go only to the competent authority set up

under the statute.

In writ petitions challenging NCMEI’s jurisdiction to decide minority status of educational

institutions, the Calcutta High Court had held that the NCMEI had no original jurisdiction to

declare the minority status of educational institution.

Senior Counsel Sanjay R Hegde, who appeared for the NCMEI, in the appeal before the

Supreme Court challenging the high court order, contended that the National Commission for

Minority Education Institutions Act, 2004 Act confers concurrent power on three sets of

authorities, namely, the competent authority set up by the statute, authorities set up by the

Central or the State Government for this purpose, as well as the NCMEI.

Shri Chander Uday Singh, Senior Advocate appearing on behalf of the petitioner-society, argued

that even under the impugned judgment, it was clear that there was no competent authority set up
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under the statute for the society to apply to, to establish a new college at the time such

application was made by the society. Consequently, according to him, it is clear that it was only

the NCMEI which the society could have approached. Further, according to him the institution,

being a minority institution which had already been established prior to the coming into force of

the 2004 Act, could only go under Section 11(f) to have its status declared as a minority

educational institution. Section 10(1), according to the learned senior counsel, is only for the

limited purpose of establishing a new minority institution for which alone one would have to go

to 8 the competent authority set up under the 2004 Act.

Senior Advocate Rajeev Dhawan argued that as none of the orders passed by the NCMEI have

looked in detail into the  aspect of whether such a college can be declared to be a minority

educational institution, after it has opted to be a secular institution, this is a case which should be

remanded to the NCMEI to decide

Referring to various provisions of the Act, the bench of Justice AK Goel and Justice RF Nariman

observed that Section 11(f) is a very wide provision which empowers the NCMEI to decide all

questions relating to the status of an institution as a minority educational institution and to

declare its status as such.

“The expression “all questions” as well as the expression “relating to”, which are words of

wide import, clothe the NCMEI with the power to decide any question that may arise, which may

relate directly or indirectly, with respect to the status of an institution as a minority education

institution. Looked at by itself, Section 11(f) would include the declaration of the status of an

institution as a minority educational institution at all stages. Article 30 of the Constitution of

India grants a fundamental right to all minorities, whether based on religion or language, to
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establish and administer educational institutions of their choice. The power under Section 11(f),

read by itself, would clothe the NCMEI with the power to decide any question that may arise

with regard to the right to establish and/or administer educational institutions by a minority.

The power does not stop there. It also includes the power to declare such institution as a

minority educational institution, which is established and administered as such, so that it can

avail of the fundamental right guaranteed under Article 30 of the Constitution,” Justice RF

Nariman said, speaking for the bench.

Referring to the 2006 Amendment, the bench said any person who desires to establish a minority

educational institution after the Amendment Act of 2006 came into force, must apply only to the

competent authority for the grant of a no objection certificate for the said purpose. The bench,

though disagreed with senior counsel’s argument of concurrent jurisdiction, said: “Harmoniously

read, all applications for the establishment of a minority educational institution after the

Amendment Act of 2006 must go only to the competent authority set up under the statute. On the

other hand, for the declaration of its status as a minority educational institution at any stage

post establishment, the NCMEI would have the power to decide the question and declare such

institution’s minority status.”

The court also referred to a recent judgment in Corporate Educational Agency v. James

Mathew and observed that it unequivocally holds that, insofar as existing minority institutions

are concerned, Section 11(f) clearly confers jurisdiction on the NCMEI to issue a certificate

regarding the status of the minority educational institution.

The Court also disapproved the view taken by Calcutta, Bombay and Punjab High Courts that an

appellate power cannot be confused with an original power and that, therefore, Section 11(f)
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cannot be pressed into service at all when it comes to declare of the status of a minority

institution. “This view, apart from stultifying Section 11(f), also ignores Section 12(2) of the Act,

which confers certain powers of a Civil Court, which powers refer only to a Court of first

instance,” the bench said.

The court also noted the Allahabad High Court view that Sections 10 and 11(f) operate in

different fields, i.e. Section 10 being the power to grant a no objection certificate to establish an

institution and Section 11(f) relating to the determination of all questions relating to the status of

an institution.

Chandana Das (Malakar) v. State of West Bengal (Sep. 24, 2019) The Supreme Court has
reiterated that the fundamental right of Minorities under Article 30 of the Constitution of India to
administer educational institutions cannot be waived.

The issue in this case was whether Khalsa Girls High School is a minority institution, if so,
whether the Institution's right to select and appoint teachers is in any way affected by the
provisions of the Rules of Management of Recognised Non-Government Institutions (Aided and
Unaided), 1969 framed under the provisions of the West Bengal Board of Secondary Education
Act, 1963?

The bench comprising Justice RF Nariman, Justice R.Subhash Reddy and Justice Surya
Kant was answering a reference which arose out of a split judgment by division bench (Justice
TS Thakur and Justice R Banumathi) in which one of the judges (Justice Banumathi) held that
the school having accepted the special constitution in terms of Rule 8(3) of the Rules, the school
is estopped from contending that it is a minority institution governed by special rules to be
framed by the State under Rule 33 of the Rules.
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Referring to the letter from the Secretary, West Bengal Board of Secondary Education to the
school setting up a special constitution of the managing committee of the school, the bench said:

It is obvious on a reading of this document that whereas Rule 6 required only one representative
of the Sikh community to be on the Management Board, there are three representatives
appointed. Equally, whereas Rule 6 requires that there be six guardian representatives to be
elected, only four are provided for by this letter. Thus, it cannot be said that by acceptance of this
letter, Respondent No.4 has, in any manner, unequivocally waived its right to be treated as a
minority institution. On the contrary, the application dated 19th April, 1976, was to recognise it
as a minority institution, and merely because Rule 8(3) of the Rules was purportedly applied, it
does not mean that the minority character of the institution was not kept in mind while framing
the special constitution for future management of the school. On facts, therefore, it is difficult to
appreciate how the Respondent No.4 can be said to have waived its right to be treated as a
linguistic minority institution set up by a linguistic minority, namely, the Sikhs in the State of
West Bengal.

The bench also referred to various judgments of the constitution bench including that in T.M.A.
Pai Foundation v. State of Karnataka, the court observed that if the school is a minority
institution, Rule 28 of the Rules for Management of Recognized Non-Government Institutions
(Aided and Unaided) 1969, cannot possibly apply as there would be a serious infraction of the
right of the school management to administer the institution with teachers of its choice. It said:

We have held that it cannot be said that Respondent No.4 is, in any manner, estopped from
claiming its minority status on the facts of this case. Quite apart from this, it is settled law that
the fundamental right under Article 30 cannot be waived

Sk. Md. Rafique v. Managing Committee, Contai Rahamania High Madrasah, 2020 SCC
OnLine SC 4, decided on 06.01.2020]

“If the intent is to achieve excellence in education, would it be enough if the concerned
educational institutions were to employ teachers with minimum requisite qualifications in
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the name of exercise of Right under Article 30 of the Constitution, while better qualified
teachers are available to impart education?”
Supreme Court: The bench of Arun Mishra and UU Lalit, JJ has upheld the constitutional
validity of Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act,
2008 that relate to the process of appointment of teachers in an aided Madrasah. While doing so
the Court noticed that the legislature has taken due care that the interest of a minority institution
will always be taken care of by ensuring that
1. in normal circumstances, the best qualified and suitable candidates will be nominated by
the Commission; and
2. in case there be any error on part of the Commission, the concerned Managing
Committee could not only point out the error which would then be rectified by the
Commission but the Managing Committee may also be within its rights in terms of
Section 12 (i) to refuse the nomination on a reasonable ground.
It was argued before the Court that the provisions of the Commission Act transgressed upon the
rights of a minority institution of choosing its own teachers as by virtue of the provisions of the
Commission Act, the process of appointment of teachers in an aided Madrasah, which was
recognised as a minority institution, was taken over and entrusted to the Commission appointed
under Section 4 of the Commission Act; and that the Commission was empowered under the
provisions of the Commission Act to make recommendations which would be binding on the
Managing Committee of an aided Madrasah.

The Court, however, wasn’t convinced with the submission and asked,

“if the candidates who are selected and nominated under the regulatory regime to impart
education which is purely secular in character, are better qualified, would the minority
institution be within its rights to reject such nomination only in the name of exercise of a
right of choice? The choice so exercised would not be in pursuit of excellence. Can such
choice then be accepted?”

It noticed that the regime put in place by the State legislature ensures that the Commission
comprising of experts in the field would screen the talent all across the State; will adopt a fair
selection procedure and select the best available talent purely on merit basis; and even while
nominating, the interest of the minority institution will also be given due weightage and taken
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care of. The statutory provisions thus seek to achieve ‘excellence’ in education and also seek to
promote the interest of the minority institutions.
The Court, also noticed that the composition of the Commission with special emphasis on
persons having profound knowledge in Islamic Culture and Theology, would ensure that the
special needs and requirements of minority educational institutions will always be taken care of.
It was further explained that though the recommendations or nominations of teachers made by
the Commission are otherwise binding on the Managing Committees of concerned Madrasahs,
but, in terms of second proviso to Section 10 of the Commission Act, if there be any error, it is
open to the Managing Committee of the concerned Madrasah to bring it to the notice of the
Commission for removal of such error. The concept of ‘error’ as contemplated must also include
cases where the concerned Madrasah could appoint a better qualified teacher than the one
nominated by the Commission. If any such error is pointed out, the Commission will certainly
have to rectify and remove the error. The further protection is afforded by Section 12 of the
Commission Act, under which the concerned Madrasah could be within its rights to refuse to
issue appointment letter to the candidate recommended by the Commission if any better qualified
candidate is otherwise available with the managing committee of the concerned Madrasah. Such
refusal may also come within the expression ‘any reasonable ground’ as contemplated in Section
12(i) of the Act.
“if the minority institution has a better candidate available than the one nominated under a
regulatory regime, the institution would certainly be within its rights to reject the
nomination made by the authorities but if the person nominated for imparting education is
otherwise better qualified and suitable, any rejection of such nomination by the minority
institution would never help such institution in achieving excellence and as such, any such
rejection would not be within the true scope of the Right protected under Article 30(1) of
the Constitution.”

Christian Medical Vellore Association v. Union of India, 2020 SCC OnLine SC 423  , decided
on 29.04.2020 Supreme Court: The 3-judge bench of Arun Mishra, Vineet Saran and MR Shah,
JJ has held that prescribing uniform examination of NEET for admissions in the graduate and
postgraduate professional courses of medical as well as dental science is not in violation of the
rights of the unaided/aided minority to administer institutions under Articles 19(1) (g) and 30
read with Articles 25, 26 and 29(1) of the Constitution. It said,
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The Court was hearing the challenge to the provisions of Medical Council Act, 196 and Dentists
Act, 1948 and Regulations thereto by which a uniform NEET examination was made mandatory
for admissions in graduate and postgraduate medical and dental courses. It was argued before the
curt that State had no power to compel an unaided minority institution to admit students through
a single centralized national examination such as NEET. The unaided minority professional
colleges have the fundamental rights to choose the method and manner in which to admit its
students, subject to satisfying the triple test of having a fair, transparent, and nonexploitative
process.

The Court, in a 108-pages log verdict, referred to a long list of judgments dealing with the right
of unaided/aided minorities and the scope of rights under Article 19(1)(g) and Article 30 of the
Constitution and came to the conclusion that,

“rights under Articles 19(1)(g) and 30 read with Articles 25, 26 and 29(1) of the
Constitution of India do not come in the way of securing transparency and recognition of
merits in the matter of admissions. It is open to regulating the course of study,
qualifications for ensuring educational standards. it is open to imposing reasonable
restrictions in the national and public interest.”

Unimpressed with the present education system, the bench said that by and large, at present
education is devoid of its real character of charity, it has become a commodity. To weed out
evils from the system, which were eating away fairness in admission process, defeating merit and
aspiration of the common incumbent with no means, the State has the right to frame regulatory
regime for aided/unaided minority/private institutions as mandated by Directives Principles,
Articles 14 and 21 of the Constitution.
On Article 19(1)(g)
The fundamental right under Article 19(1)(g) was subject to reasonable restriction in the interest
of the student’s community to promote merit, recognition of excellence, and to curb the
malpractices. Uniform Entrance Test qualifies the test of proportionality and is reasonable.
The minority institutions are equally bound to comply with the conditions imposed under the
relevant Acts and Regulations to enjoy affiliation and recognition, which apply to all institutions.
In case they have to impart education, they are bound to comply with the conditions which are
equally applicable to all.
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“There is no right given to maladminister the education derogatory to the national interest.
The quality of medical education is imperative to subserve the national interest, and the
merit cannot be compromised.”

On Article 30
The rights to administer an institution under Article 30 of the Constitution are not above the law
and other Constitutional provisions and hence, are not violated by provisions carved out in
Section 10D of the MCI Act and the Dentists Act and Regulations framed by MCI/DCI.
Reasonable regulatory measures can be provided without violating such rights available under
Article 30 of the Constitution to administer an institution. Professional educational institutions
constitute a class by themselves. Specific measures to make the administration of such
institutions transparent can be imposed.

“The regulatory measures by prescribing NEET is to bring the education within the realm
of charity which character it has lost. It intends to weed out evils from the system and
various malpractices which decayed the system.”

Scope of Government interference

While the Court agreed that there was no doubt as to the concept of limited Government and
least interference is welcomed, it however, said that in which field and to what extent balancing
with the larger public and national interest is required.

“The Constitution provides a limitation on the power of the State to interfere with life,
liberty, and rights, however, the concept of limited government cannot be extended to a
level when it defeats the very national interest.”
Holding that the impugned provisions qualify the doctrine of proportionality, the Court explained
that the maladies with which professional education suffers in this country are writ large and that
the regulatory framework created by the MCI/ DCI is concomitant of conditions, affiliation and
recognition, and providing central examination in the form of NEET cannot be said to be
violative of the rights under Articles 19(1)(g) and 30. The regulatory framework is not
restrictive, but caters to the effective enjoyment of the rights conferred under the aforesaid
provisions.
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