National Commission for Minority Educational Institutions Has Power To Decide Minority Status Of Existing Educational Institution, Holds SC [Read Judgment]

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 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 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) 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.