The Supreme Court of India dismissed the Special Leave Petition filed by the Manager of Nalloor Narayana L.P.Basic School on Friday, thereby upholding the judgement of the Division Bench of the Kerala High Court which set aside the judgement of the Ld. Single Judge thereby affirming the minority status of Nalloor Narayana L.P. Basic School. The decision of the Supreme Court has wide, far-reaching ramifications as thousands of schools were purchased by the minority communities from the majority community and the consequent grant of minority status to such educational Institutions, changed the very structure of these institutions. The close relatives the new owners were appointed as Head Masters of these schools, thereby overlooking the seniority and hampering the service rights of thousands of lower primary teachers. The rampant purchase of the educational institutions and consequent grant of Constitutional recognition had resulted in a chaotic situation, thereby creating serious ripples in the Society. A bench consisting of Hon’ble Justice D.Y.Chandrachud and Hon’ble Justice Hrishikesh Roy while dismissing the Petition, observed that the Kerala High Court Division Bench Judgement warrants no intervention of the Apex Court as minority rights cannot be granted to educational institutions established by persons belonging to non - minority.
On behalf of the 1st Respondent, i.e. the Manager of the School, it was contended that even though the School was initially established by Sri.Nalloor Narayana Menon, the subsequent purchase by Sri.T.K.MohammedHajee, who admittedly is a member of the minority Muslim community, changed the character of the School to that of a minority educational institution, since, after the transfer, the School is being administered by the members of a minority community, for the benefit of the students of their community.
The Ld. Single Judge held that, though in an etymological sense, the word 'established' means founding or creation, it can have a different meaning in the constitutional context, which is not limited to bringing into existence an educational institution through its founding.
That, the main object of Article 30(1) of the Constitution of India being to accord protection to minorities and to create a sense of feeling among the minorities that they have equal rights with the majority and to bring up institutions to compete with any other institution of excellence, an educational institution purchased by a minority and dedicated for the cause of minority would also fall within the meaning of the word 'established' under Article 30(1). It was therefore held that
the word 'established' would embrace giving life and soul to any existing institution through dedication. For arriving at such conclusion, the learned single Judge relied on the decision of this Court in Rt.Rev.Dr.Aldo Maria Patroni S.J. and another v. The AssistantEducational Officer [AIR 1974 Kerala 197] and that of the KarnatakaHigh Court in Dr.T.M.A. Pai Foundation v. State of Karnataka [ILR1985 Karnataka 1056].
“All minorities, whether based on religion or language,
shall have the right to establish and administer educational
institutions of their choice.”
The purpose behind Articles 29 and 30 is to provide theminorities with a sense of security and belonging, feeling of confidenceand consciousness of equality and to extend to the minorities an equal platform for providing education to the members of their community and thereby equip them to be at par with the others.
10. The question that looms large is as to whether, for the purpose of claiming minority status, the educational institutions are tobe established and administered by the minority, or whether either establishment or administration, by itself, would satisfy there quirement. A plain reading of Article 30(1) would indicate that only an institution which is established and administered by a minority could claim the status of a minority educational institution.
institution it had the right to administer it. It is true that at p.1062 (of SCR): at p. 982 of AIR) the Court spoke of Article 30 (l)giving two rights to a minority i. e. (i) to establish and (ii) to administer. But that was said only in the context of meeting the argument that educational institutions established by minorities before the Constitution came into force did not have the protection of Article 30 (1). We are of opinion that nothing in that case justifies the contention raised on behalf of the petitioners that the minorities would have the right to administer an educational institution even though the institution may not have been established by them. The two words in Article 30 (1) must be read together and so read the Article gives the right to the minority to administer institutions established by it. If the educational institution has not been established by a minority it cannot cliam the right to administer it under Article 30 (1). We have therefore to consider whether the Aligarh University was established by the Muslim minority;and if it was so established, the minority would certainly have the right to administer it.”
“8.Article 30 (1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority's choice. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same, and the intention, in either case, must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community, others from other minority communities or even from the majority community can take advantage of these
institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.9. The next part of the right relates to the administration of such institutions. Administration means 'management of the affair's of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution, in particular, will be best served. No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right.”
The Hon’ble Division Bench of Kerala High Court thereafter discussed in detail the intricacies of the National Commission for Minorities Act and the Act 2 of 2005 which guides the Educational Institutions. The Court observed as follows: Government enacted the National Commission for Minorities Act, 1992 for the purpose of constituting a NationalCommission for Minorities and to provide for matters connected therewith and incidental thereto. As per Section 2(c) of the Act,'minority', for the purposes of the Act, means a community notified as such by the Central Government. Accordingly, the Central Government, vide SO.No.816(E), F.No.1/11/93-MC(D) dated 23.10.1993notified the minority communities for the purposes of the Act, namely,
(v) Zorastrians (Parsis)
Later, Act 2 of 2005 was enacted with the purpose of constituting a National Commission for Minority Educational Institutions and to provide for matters connected therewith or incidental thereto. Section2(g) of the Act defines Minority Educational Institutions as, a college or an educational institution established and administered by a minority or minorities. Section 10 of the Act requires any person, who desires to establish a Minority Educational Institution to apply to the competent authority for the grant of No Objection Certificate for the said purpose.
As per Section 2(ca) 'competent authority' means, the authority appointed by the appropriate Government to grant no objection certificate for the establishment of any educational institution of their choice by the minorities. Appropriate Government has been defined under Section 2(aa) to be the Central Government, in relation to an educational institution recognised for conducting its programmes of studies under any Act of Parliament, and the State Government in relation to any other educational institution recognised for conducting its programmes of studies under any State Act, within the jurisdiction of which the educational institution is established. As per Section 11(f), the functions of the National Commission include the power to decide all questions relating to the status of the institution as a minority educational institution and to declare its status as such. Under Section12(b), the National Commission is conferred with the power to consider appeals filed against rejection of application for grant of minority status to any educational institutions by an authority established by the Central Government or State Government, as the case may be.
Hence, the competent authority is empowered to issue no-objection certificate for the purpose of establishing a minority educational institution and the National Commission is conferred with the authority to decide all questions relating to the status of any institution as a minority educational institution and declare its status as such.
The Hon’ble division Bench after a meticulous analysis of the judicial precedents and the law applicable in this regard came to the following conclusion :
“A perusal of Exhibit P2 order of the National Commission would show that the Commission had come to the conclusion that the School is eligible for grant of minority status on finding that the School was being administered by an individual Muslim. The other finding is that the evidence also prove that the School was established with the main objective of sub-serving the interest of the Muslim community.
According to us, the latter finding seems to have been rendered without any basis. Moreover, Article 30(1) and Section 2(g) mandate that a minority educational institution should be one established by a minority and not an educational institution established, with objective of sub-serving the interest the minority, by a person who does not belong to the minority community. For the aforementioned reasons, we are unable to ascribe to the reasoning in Exhibit P2 and the consequent decision granting minority status to the School.”