Kerala High Court: The Division Bench comprising of S.Manikumar, CJ., and Shaji P. Chaly, J., addressed the issue of disparity shown by the State regarding grant of scholarship to the minority community in the State. The Bench held that,
“The orders passed by the State Government viz., Exhibits P2, P3 and P4 show that clear discrimination is shown by favoring a particular minority community by providing scholarships in the ratio of 80:20 i.e., 80% to Muslims and 20% to the Latin Catholic Christians and Converted Christians, which is not the letter and spirit of the provisions of the Act, 1992 and the Act, 2014. Moreover, the mandates contained under Articles 14 and 15 of the Constitution of India are clearly violated by the State Government in the matter of the award of scholarships.”
Factual Fulcrum of the Case
The Union Government under the Prime Minister’s New 15 point programmes for the welfare of minorities had announced scholarship schemes for students from minority communities. On the basis of the scheme formulated, Scholarships were to be given on merit cum means basis. The petitioner, a member of Roman Catholic community, one of the minority communities, contended before the Court that while implementing various schemes in the State of Kerala there was marked discrimination favouring one minority against the other without any rationale. Therefore, under the cover of minority rights, the State government was supporting a particular section.
The predominant contention advanced by the petitioner was that, contrary to the said scheme, without any rationale, the State Government issued Exhibit P4 order bearing dated 08-05-2015 that reservation among the Muslims and other minority communities will be in the ratio of 80:20 i.e., 80% to Muslim Community and 20% to Latin Christians and Converted Christians. It was further stated that 30% of the seats shall be reserved for girls. Therefore, the petitioner contended that the fixation of ratio was arbitrary, unjust and illegal and accordingly violative of Articles 14 and 15 of the Constitution of India. Therefore, according to the petitioner, it is clear
Disparity among Equals
In Exhibit P2, the General Administration Department (Minority Cell) stated that on the basis of the study conducted by Paloly Muhammed Kutty Committee regarding the implementation of Justice Rajindar Sachar Commission report in Kerala, a minority cell was formed and started functioning in the Secretariat. Exhibit P3 order specified that on the basis of the report of the committee specified above, Government had decided that the Latin Catholics and Converted Christian girl students were only permitted to get 20% of the total number of scholarships/hostel stipends, which were given to Muslim girl students and further that, the number of scholarships/hostel stipends, which were given to Muslim girl students would continue as Rs.5000/- and Rs.2000/- respectively. The crucial aspect therein is that the reservation among Muslims and other minority communities was in the ratio 80:20 and 30% of seats would be reserved for girl students.
Constitutional and Statutory Mandate
Section 2(c) of the National Commission for Minorities Act, 1992 define ‘minority’ for the purposes of the Act to mean a community notified by the Central Government. It was undisputed that the Central Government had notified six religious communities viz., Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains, in the gazette of India. On a reading of section 9 and section 2(c) of the Act, 1992 and Kerala State Commission for Minorities Act, 2014 along with the notification so issued, it could be clearly seen that the functions of the Commission should govern the overall development of the minority communities as such without discriminating by and between the minority communities so identified. Thus, the Bench opined,
“The National Commission and the State Commission are not entitled to segregate such backwardness among the minorities so as to protect the interests of any particular minority.”
Basically, the rights available to minority communities stem out from Article 29 of the Constitution dealing with protection of interest of minorities. A conjoint reading of Articles 29 and 30 makes it clear that while granting any aid by the State to educational institutions the State should not discriminate against any educational institution on the ground that it was under the management of a minority whether based on religion or language, which in fact clearly translate the true intention of the framers of the Constitution.
Findings of the Court
The Bench opined that was clear from the 2011 census that the total population of minority communities in Kerala was 45.27% out of which 58.67% was Muslims and 40.6% was Christians and the balance 0.73% constituted other minority communities. The Bench remarked,
“There is nothing wrong in the State Government providing facilities to weaker sections of the community, but when it comes to dealing with the notified minorities, it has to treat them equally, and it is not vested with any powers to treat them unequally, which is quite discernible from the provisions of the Constitution and the laws discussed above.”
Relying on the decision of the Supreme Court in Chinnaiah v. State of A.P., (2005)1 SCC 394, wherein the Court had considered the issue with respect to sub-classification among the Scheduled Castes and Scheduled Tribes and held that, “except for a limited power of making an exclusion or inclusion in the list by an act of Parliament, there is no provision either to sub-divide, subclassify or sub-group the castes which are found in the presidential list of Scheduled Castes”, the Bench held that,
“State is indulging in providing scholarship to the Muslim minority community at 80%, which according to us, is an unconstitutional act and unsupported by any law. Mere executive orders issued by the State Government cannot overreach the provisions of the Minority Commissions Acts, 1992 and 2014, and the imperatives contained under the provisions of the Constitution of India discussed above.”
In the above backdrop, the Bench held that the action of the State Government in sub-classifying the minorities by providing merit-cum-means scholarship at 80% to Muslim community and 20% to the Latin Catholic Christians and Converted Christians could not be legally sustained. Hence, the impugned orders were quashed and the State Government was directed to pass requisite and appropriate orders providing merit-cum-means scholarship to the notified minority communities in accordance with the latest population census available with the State Minority Commission.[Justine Pallivathukkal v. State of Kerala, 2021 SCC OnLine Ker 2551, decided on 28-05-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court by:
For the Petitioner: Sr. Adv. Raju Joseph, Adv. J.Julian Xavier, Adv. Firoz K.Robin, Adv. Roy Joseph, Adv. Jose. V.V., Adv. Aannies Mathew and Adv. E.Haridas
For the State of Kerala: GP K.V.Sohan, State Attorney P.Vijayakumar, ASGI Haris Beeran and Adv. O.A.Nuriya