Bangalore Educ Institutions – Orissa’s Example

Orissa, July 12, 2012: The Government of Orissa had fixed 50% or more students to be admitted from minority community in an institution as criteria to grant a minority status certificate .The Buckley Primary School did not have even 15% minority students. Hence the state did not issue Minority Status certificate. The school moved to the National Commission for Minority Educational Institution and filed a case which was registered as Case No. 1320 of 2009. The matter was heard and an historic judgement was passed stating that no fixed percentage can be made to grant Minority Status certificate. Gist of the said judgment is appended below. I was the Advocate in that case. The entire judgment is available in the official website of the National Commission for Minority Educational Institutions, New Delhi.
 
The matter may be looked from another angle. If any State Government has fixed 50% or more as the identifying criteria of minority students admitted to a minority institution for conferral of minority status. Fixation of such a percentage by the State Government obliges a minority educational institution to admit not less than 50% students from within the State from the minority community to which the institution belongs. The question is: whether a fixed percentage such as 50% as the minimum limit of admission of students of the same community within the State would be unworkable, unreasonable and impractical as also against the rights of minority educational institutions conferred on them under Article 30(1) of the Constitution.

We may mention here at the cost of repetition that it has been held by the Supreme Court in TMA Pai (Supra) that the intake of minority students in the concerned institution has to be dependent upon variety of factors like what kind of institution it is, whether primary, secondary, high school or college or otherwise, the population of that community in the State and to the need of the area in which the institution is located. It is by considering these factors that the State may fix a minimum intake of minority and non-minority students. The Supreme Court has also held that “what would be a reasonable extent would depend upon variable factors, and it may not be advisable to fix any specific percentage.” From the above it is clear that a ceiling of 50% cannot be imposed against the minority institutions, requiring them to compulsorily admit the minority students’ upto 50%. There cannot be a common rule or regulation in respect of all types of educational institution from primary to college level and for the entire State fixing the uniform ceiling in the matter of admission of students in minority educational institutions.

As stated earlier, the population of Christians in the State of Orissa is roughly 2.439%. It is common knowledge that educational institutions established by the Christian Community, even if they make all out efforts, may not be able to secure 50% admission from their own community. In this view of the matter, Christian Community of Orissa would lose its right to establish and administer educational institutions of its choice guaranteed under Article 30(1) of the Constitution. Surely, if the fixed formula of 50% is to be adhered to, said right of the Christian Community of Orissa under Article 30(1) would stand forfeited. In no case, the Christian, Community shall be able to admit 50% of students from its community because such members of students are not available. To illustrate the impracticability of the said fixed formula we may further give an illustration. In a given academic year, say 2007-2008, an institution run by the Christian Community may be able to secure 50% of admissions from its Community. In that academic year, it would be a religious minority capable of exercising its right enshrined in Article 30(1). For the next academic year, 2008-2009, it may not be able to secure 50% admissions from its Community and for that academic year it would lose the right guaranteed to it under Article 30(1).

In the next academic year, 2009-2010, it may again be able to secure 50% admission from its community, its character as a minority educational institution shall be again restored. Would any educational institution established by the Christian Community of Orissa in such a situation would be able to manage its affairs. The only answer appears to us is an emphatic no. The aforesaid fixed formula of percentage governing admission of students in a minority educational institution virtually involves an abject surrender of the right of establishment and management of educational institutions and the same is inconsistent with the Constitutional guarantee enshrined in Article 30(1). In our considered view, the aforesaid identifying test of a minority educational institution is not only impracticable, unworkable but also an ever changing phenomena. It is also an unreasonable restriction wholly impermissible either by virtue of mandate of Article 30(1) of the Constitution or by judicial precedents governing the field.

As stated by Sardar Patel as he Chairman of the Advisory Committee dealing with the rights of minority Communities that “as long as the Constitution stands as it is today, no tampering with those rights can be countenanced. Any attempt to do so would be not only an act of breach of faith; it would be constitutionally impermissible and liable to be struck down by the Courts.” (Extract from the speech delivered by him on 27.02.1947). Thus, imposition of a uniform ceiling on admission of minority students in all types of educational institutions established by the Minorities is virtual negation of the constitutional protection of autonomy to minorities in running educational institutions of their choice as guaranteed under Article 30(1) of the Constitution. We need not enlarge the protection but we may not reduce a protection naturally flowing from the words. Consequently, we find and hold that the identifying criteria of fixation of a percentage governing admission of a Minority Community in a Minority Educational Institution cannot be included in the indicia for determining the minority status of such an institution.

Needless to add here that a minority educational institution imparting secular education in order to claim the constitutional protection of Article 30(1) must show that it serves or promotes in some manner, the interest of the minority Community or a considerable section thereof. Without such proof, there would be no nexus between the institution and the minority as such. In A.P. Christian Medical Association vs. State of A.P., AIR 1986 SC 1490, the Supreme Court has observed that “what is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities”. We have already held that the petitioner school was established and administered by a minority community. Viz, the Christian Community which is indisputably a religious minority in the State of Orissa where the School is located. We have also held that admission of students in the said school is not violative of the minority character thereof. Consequently, the petitioner school is entitled to claim the constitutional protection of Article 30(1).

For the reasons discussed above, we find and hold that the Buckley Primary School, Mission Road, P.O.:- Buxibazar, Dist. – Cuttack, Orissa run by the Buckley Primary School is eligible for grant of Minority status on religious basis. Consequently, Buckley Primary School is declared as a Minority Educational Institution within the meaning of Section 2(g) of the National Commission for Minority Educational Institutions Act. A certificate be issued accordingly. Justice MSA Siddiqui was chairman of the National Commission for Minority Educational Institutions, with Dr. Cyriac Thomas and Dr. Mohinder Singh as members.

– B D Das bddas26@gmail.com