Supreme Court Issues Notice On Plea Seeking Removal Of Govt. Control over Appointment In National Commission for Minority Educational Institutions

BACKGROUND OF THE PLEA

The petition is filed by Jamiat Ulema-I-Hind, an organization established in 1919, with an objective of protecting Islamic culture, its heritage and tradition along with another petitioner who is a social worker and a General Secretary of Jamiat Ulema-I-Hind. Union of India through Secretary, Ministry of Human Resource Development is the respondent in the matter.

The petition seeks to protect the judicial independence by enforcing "judicial dominance" in appointments made to the National Commission for Minority Educational Institutions thereby ensuring that the fundamental rights of minorities under Art. 30(1) of the Constitution is protected. The plea however clarifies that "The present petition is not limited to the Muslim community but is concerned with all the minority communities as defined under Sec. 2(f) of the National Commission for Minority Educational Institutions Act, 2004."

The primary genesis of the petition lies on the history of tribunalization of judiciary in India. The plea therefore relies on National Commission for Minority Educational Institutions Act, 2004 which was passed by the Parliament to constitute a National Commission for dealing with matters concerning minorities educational institutions. It also relies on Salaries and Allowances and Conditions of Service of Chairpersons and Other Members Rules of 2006 made in furtherance of the Act.

According to Sec. 3 of the Act, the Central Govt. shall constitute a body to exercise the powers and to perform functions assigned to it under the provisions of the Act. The provision also talks about the composition of the commission which includes a Chairperson and 3 members nominated by the Central Govt.

The Commission is conferred upon the powers of a Civil Court and also has the power to decide, adjudicate or determine the minority character of any minority educational institution. According to the petition, "Sec. 12(1) of the Act confers powers on the Commission to give decision or definitive judgment which has finality and an authoritativeness which are essential tests of judicial pronouncement."

The petition focuses on the aspect of abysmal rate of disposal of cases by the Commission. "Though the statistics of disposal of cases is not available in public domain, however, as per estimation, on an average 10 to 15 cases annually are disposed of on merits." The plea states.

According to the petitioner, the term of two members of the Commission got expired in December 2020 however, only one member remains in office whose term will expire in 2023. It is also stated that in 2018, Hon'ble Rtd. Justice Narendra Kumar Jain was appointed as the Chairperson and his term will expire in 2023.

"Such appointments were made by the Central Govt without issuing any public advertisement and thus, are done without any effort to get the best of the people as members of the commission which omission makes these appointment arbitrary. The arbitrariness in the appointments is also manifest from the fact that out of 3 members, two members are from Sikh community whereas the Christian community which is a flag bearer in the field of education, has no representation in the Commission and the commission is also not represented by any member of Sunni Muslim community." The plea states.

PRAYER OF THE PETITIONERS

1. Issue a writ of mandamus or any other writ, order or direction on the respondent to appoint the members of National Commission of Minority Educational Institutions in place of the outgoing members and all the future appointments/ nominations to fill future vacancies in the commission on recommendation by the Chief justice of India till the constitution of the National Commission.
2. Pass any further orders as deem fit in the interest of justice.