Kerala High Court
Justine Pallivathukkal vs State Of Kerala on 28 May, 2021
W.P.(C) No.24355/2020 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 28TH DAY OF MAY 2021 / 7TH JYAISHTA, 1943
WP(C) NO. 24355 OF 2020
PETITIONER:
JUSTINE PALLIVATHUKKAL
AGED 43 YEARS
S/O JOSEPH, PALLIVATHUKKAL HOUSE, PUTHUPARIYARAM P.O.PALAKKAD.
BY ADVS.
RAJU JOSEPH (SR.)
SRI.J.JULIAN XAVIER
SRI.FIROZ K.ROBIN
SRI.ROY JOSEPH
SRI.JOSE. V.V. (THENGATHARA)
SMT.AANNIES MATHEW
SRI.E.HARIDAS
RESPONDENTS:
1 STATE OF KERALA
REP BY ITS SECRETARY, GENERAL ADMINISTRATION (MINORITY WELFARE)
DEPARTMENT, THIRUVANANTHAPURAM-695 001.
2 KERALA STATE COMMISSION FOR MINORITIES,
REP BY ITS SECRETARY, MANGALA LANE, JAWAHAR NAGAR,
SASTHAMANGALAM P.O.,THIRUVANANTHAPURAM, KERALA-695 010.
3 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, MINISTRY OF MINORITY AFFAIRS,
ROOM NO.1110 INT 306, PANDIT DEENDAYAL ANTYODAYA BHAWAN,
LODHI ROAD, NEW DELHI-110003.
*4 MINORITY INDIANS PLANNING AND VIGILANCE COMMISSION TRUST,
REPRESENTED BY ITS CHAIRMAN, V.K.BEERAN,
11/147, HOLY GHOST CONVENT ROAD, ALUVA, KERALA-683108.
*4th RESPONDENT IS IMPLEADED AS PER ORDER IN I.A.No.2/2021
DATED 28.05.2021
BY ADVS.
SRI.K.V.SOHAN, STATE ATTORNEY
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SRI.HARIS BEERAN
SMT.O.A.NURIYA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.05.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.24355/2020 2
CR
JUDGMENT
SHAJI P.CHALY,J
This is a Public Interest Litigation filed by an Advocate who is also claiming
to be a public spirited person acting for the common cause of the society,
particularly related to minorities in the State of Kerala. Petitioner is a member of
Roman Catholic community, which is one of the minority communities. The
grievance highlighted by the petitioner is that while most of the socio, economic
and educational empowerment schemes and programmes of the Central
Government are meant for the socio economically poor and downtrodden
sections of the society including the six centrally notified minorities, while
implementing various schemes in the State of Kerala there is marked
discrimination favouring one minority against other minority communities
without any rationale.
2. According to the petitioner, in order to translate the intention of the
framers of the constitution and to safeguard the minority communities and to
protect them from discrimination and deprivation of their rights, the Union
Government had set up the National Commission for Minorities under the
National Commission for Minorities Act, 1992, hereinafter called, 'Act, 1992'. It is
the case of the petitioner that, as per section 20 of the said Act, minority
community for the purpose of the Act means, communities notified as such by
the Central Government. Therefore, according to the petitioner, six religious
communities viz., Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis)
and Jains have been notified in the gazette of India as minority communities by
the Union Government.
3. It is further submitted that the functions of the National Commission in
contemplation of section 9 of Act, 1992 make it clear that it should govern the
overall development of the minority communities without any undue favour to
any particular community. Thereafter, on 9.3.2005, a notification was issued by
the Central Government for the constitution of a High Level Committee to
prepare a report on the social, economic and educational status of the Muslim
community of India known as "the Prime Minister's High Level Committee",
chaired by Justice Rajindar Sachar.
4. The Committee consisted of 7 members and it has submitted a report to
the Prime Minister on 17.11.2006 with various recommendations and findings.
The recommendations include; (1) set up an equal opportunity commission to
look into the grievances of the deprived groups like minorities; (2) create a
nomination procedure to increase participation of minorities in public bodies; (3)
establish a determination procedure that does not reserve constituencies with
high minority population for scheduled castes; (4) increase employment share of
Muslims, particularly where there is great deal of public dealing. Work out
mechanisms to link Madrasas with Higher Secondary School Board; and (5)
recognise degrees from Madrasas for eligibility in defence, civil and banking
examinations.
5. Anyhow, in 2006, the Union Government under the Prime Minister's New
15 point programmes for the welfare of minorities announced scholarship
schemes for minority students from minority communities. On the basis of the
scheme formulated, the Union Government is providing scholarships to students
belonging to minority communities to promote pre-matric and post-metric
financial assistance. Scholarships are also given on merit cum means basis.
According to the petitioner, nowhere it is stated that scholarships shall be
provided to any particular minority community in preference to other minority
communities.
6. Therefore, the legal contention advanced by the petitioner is that the
scheme formulated by the Union Government is in accordance with the
constitutional principles as well as the provisions of Act, 1992 and the Kerala
State Commission for Minorities Act, 2014. Exhibit P1 produced by the petitioner
is a scheme published by the Union Government for the years 2017-2020 for
pre-matric scholarship for students belonging to minority communities. It seems
similar schemes are formulated in regard to post-matric students as well as on
the basis of merit cum means. The sum and substance of the contention is that
a perusal of Exhibit P1 would clearly show that the criteria is "minority status" as
a whole and not individual religions forming part of minority communities.
7. Anyhow the State Government has formed a 11 member committee for
submitting proposals necessary for implementing the recommendations of
Justice Rajindar Sachar Commission report in Kerala, headed by Paloly
Muhammed Kutty, the then Minister for Local Self Government. The said
committee also submitted a report on 21.2.2008 after considering various
proposals and representations. As part of implementing the said report, the
State Government established a minority cell and thereafter, various orders
have been issued as part of implementing the report. One of the orders issued
on 16.8.2008 by the State Government is Exhibit P2. As per Exhibit P2, it is
clear that the Government approved the report of the Pololy Muhammed Kutty
Committee and a Minority Cell was started in the Secretariat. Accordingly, 5000
scholarships have been set apart for degree and post graduate professional
courses for Muslim women per year and 14 posts of clerks have been created in
14 districts. An amount of Rs.10 Crores was set apart for the implementation of
the above scholarships. Thereafter, 1st respondent extended the benefit given in
Exhibit P2 to Latin Catholics and other Converted Christians as per Exhibit P3
Government Order dated 22.2.2011 bearing G.O.(Rt.)No.57/2011/GAD. In
Exhibit P3 it is only stated that the benefits given to the Muslim students in
regard to the scholarships and hostel stipend shall also be given to Latin
Catholic Christians and Converted Christian students.
8. The predominant contention advanced by the petitioner in that regard is
that, contrary to what is stated in Exhibit P3, without any rationale, the State
Government issued Exhibit P4 order bearing G.O.(Rt.)No.3427/2015/GAD dated
8.5.2015 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 is further stated that 30% of the seats
shall be reserved for girls. Therefore, it is contended that the fixation of ratio in
Exhibit P4 is arbitrary, unjust and illegal and accordingly violative of Articles 14
and 15 of the Constitution of India. It is to be noted that the State Government
passed the Kerala State Commission for Minorities Act, 2014 with an intention to
constitute a State Commission for the comprehensive educational advancement,
welfare, protection and empowerment of minorities in the State of Kerala and to
provide for matters connected therewith or incidental thereto, which Act has
come into force w.e.f. 15.05.2013.
9. Minorities is defined under section 2(d) of the Act to mean, " a
community notified by the Central Government under the Act, 1992". Section 9
of the Act, 2014 deals with the functions of the Commission, the details of the
same would be discussed hereafter. It is further contended by the petitioner
that as per the 2011 census, in the State of Kerala 54.73% are Hindus, 26.56%
are Muslims and 18.38% Christians and rest of the religious minorities are
0.33%. Thus, the total population of the minority communities in Kerala is
45.27% and out of which, 58.67% is Muslims and 40.6% is Christians and
0.73% constituted other minority communities. However, studies conducted by
the Vital Statistics Division, Department of Economics and Statistics, Government
of Kerala, regarding the percentage of birth analysis for the year 2017 shows
that there are 14.96% Christians, 43% Muslims and 41.70% Hindus, and there
is a drastic decrease of the Christian population. Consequent to the said
development, complaints have been submitted before the Kerala State
Commission for Minorities - the 2nd respondent and Exhibit P5 memorandum was
submitted by the Catholics Bishops Conference of India Council for Laity
regarding the sufferings of Christian Minority in India. Likewise, other
memorandums were also submitted but according to the petitioner, the
discrimination of granting largesse to one section of the minority community is
still continuing without any legal backing and in total disregard to the available
data on the subject. To highlight the same, petitioner has produced Exhibit P7
information dated 14.10.2009 issued by the Public Information Officer under the
State Government, wherein it is stated that the ratio of 80:20 is continued in the
light of Exhibit P3 order dated 22.2.2011, and the case of the petitioner is that,
the said ratio has no basis and formulated without conducting any study.
Therefore, according to the petitioner, it is clear that under the cover of minority
rights, the respondents are supporting a particular section.
10. Matters being so, petitioner has submitted Exhibit P8 representation
before the State Government on 3.10.2020 with copy to the 2 nd and 3rd
respondents viz., State Minority Commission as well as the Union of India.
Therefore, the grievance highlighted by the petitioner is that, in spite of the
earnest efforts made by the other minority community in the State viz.,
Christians, the same is not attended to by the State or the Minority Commission,
which persuaded the petitioner to file this writ petition.
11. The State Government have filed a counter affidavit stating that the
Paloli Committee relied on statistics from Justice Sachar Committee report and
Kerala Padana report for finalizing its report, which reveals Muslims are far
behind Christian in the college enrolment (and even behind scheduled castes and
scheduled tribes) i.e. 8.1% for Muslims and 28.1, 20.5,16.7,11.8 and 10.3 for
forward Hindus, Christians, backward Hindus, Scheduled Tribes and Scheduled
Castes respectively. It is also stated that the unemployment percentage is 55.2
among Muslims, while it is 31.9 among Christians and 40.2 among backward
Hindus. With regard to land ownership, there are only 3% Christians is landless
while it is 37.8% among Muslims. In the matter of poverty also, there is a wide
gap between Muslims and Christians. The reality is that the Muslims in Kerala
stand far behind than the other communities in the social economic and
educational fields and the standard of education of the Kerala Muslims stands
too low to that of Christians. Hence, the issue is that Muslims in Kerala are 'in
toto' a backward community and included in OBC category by the State
Government while in other religious minorities including Christians, the Roman
Catholics and some other sects among Christians are not backward communities
in toto. Besides, the Sachar committee report clearly emphasized on the
backwardness of Muslims in the education field and the necessity of their
upliftment and improving their educational conditions. Hence, based on the
Committee report, the Government took affirmative action like granting of
separate scholarships schemes for the development of backward Muslim
Community.
12. It is further stated that the Petitioner himself has quoted in the writ
petition the main recommendations of the Prime Minister's High level committee,
chaired by Justice Rajindar Sachar, in which it is clearly stated to increase
employment share of Muslims particularly where there is great deal of public
dealing and work out mechanism to link Madrasas with higher secondary school
board and even to recognize degree from Madrasas for eligibility in defence, civil
and banking examinations. According to the 1 st respondent, it is a well known
fact that, if there is no opportunity for education and training, there will be no
chance for employment. In addition to that, there is a positive correlation
between education and employment and more higher education means a chance
for more employment. In order to increase the chance of employment, the
Government should increase accessibility to education. Hence, the Government
gave due consideration to weaker and under privileged groups of religious
minorities while envisaging its programmes, as in the case of Scheduled Castes
and Scheduled Tribes.
13. It is stated that the Justice Sachar Committee was constituted only to
study and report the status of Muslims and it is to safeguard the spirit of Sachar
Committee, the Government are implementing special programmes and
packages for the most weakest sections of the Minority communities from
Muslims, Latin and Converted Christians and SC/ST from the Hindu
communities. At the same time, if there are any other underprivileged and
unrepresented groups, they also to be considered, and included. On the other
hand, if there is any ineligible among the group of Muslims, Christians or others,
they should be eliminated and that portion too should be distributed among
other eligible groups.
14. It is also stated that the Central Government and State Governments
have their own policy to implement the programmes and Projects using the
respective funds. The pre-metric, post-matric and merit-cum means scholarships
under Exhibit P1 Scheme are distributed directly by the Central Government and
the State Government is only the Nodal agency. The State Government is
providing about 13 Vidhya Samunnathi Scholarships/programmes to forward
caste students through Kerala State Welfare Corporation for forward
Communities, which is not available in Central Government Schemes. The State
Government have different schemes to meet different requirements. Just like
Minority Scholarship for Muslims, the State Government spends nearly
Rs.9,33,92,000/- per annum for payment of Scholarships for forward caste
students including Christians. Further, financial aid is provided for undertaking
coaching for competitive examinations to forward caste students including
Christians, evident from Exhibit R1(b).
15. It is further stated that the State Government is free to implement such
scholarships or other educational supports as per the need of the hour.
According to the 1st respondent, the 80:20 ratio, evidently based on the rough
population ratio of respective communities, is neither arbitrary nor unjust or
illegal and this action does not violate Articles 14 and 15 as contended and the
accessibility to education for the weakest sections of the community is the
prime objective of the Prime Minister's 15 Point Programme.
16. Additional 4th respondent viz., an organisation called Minority Indians
Planning and Vigilance Commission Trust, has also filed an affidavit justifying
the stand adopted by the State Government in Exhibit P3 order fixing 80:20
ratio by and between the Muslims and the Latin Catholic Christians and other
Converted Christians. The Union of India have filed a statement contenting as
follows;
"2. The Pre-Matric Scholarship Scheme for students of the Minority
Communities was initially approved on 30 th January, 2008. It is a Central
Sector Scheme with 100% Central Government funding. The students
studying in India in a government/ recognised private school, in Class I to
X, who secure 50% marks in the previous examination and whose parents /
guardians' annual income does not exceed Rs.1 lakh, are eligible for award
of the Pre-Matric scholarship under the scheme. Under the scheme, 30 lakh
fresh scholarships are awarded every year in addition to the renewals. 30%
of the scholarships are earmarked for girl students. Scholarship ranging
from Rs. 1,000/- to Rs. 10,700/- is awarded to every selected student.
3. The Post Matric Scholarship Scheme was launched in November,
2007. It is a Central Sector Scheme. Post Matric Scholarship is awarded for
studies in a Government/recognized private higher secondary
schools/colleges/Universities including residential higher secondary
schools/colleges of India.
4. Students who secure 50% marks in the previous year's final
examination and whose parents'/ guardians' annual income does not
exceed Rs. 2.00 lakh are eligible for award of scholarship under the Post
Matric Scholarship scheme. Five lakhs Fresh scholarships are awarded
every year in addition to the renewals. 30% of scholarships are earmarked
for girl students. In case sufficient numbers of girl students are not
available, then eligible boy students are given these scholarships.
Scholarship ranging from Rs. 2,300/- to Rs. 15,000/- is awarded to every
selected student. The details related to rate of Scholarship are given below:
Rate of Scholarships:
Pre-Matric Scholarship scheme
S.No Item Hostell Day Scholars
.
1 Admission fee from class VI to Rs.500/- per Rs.500/- per
X annum annum
subject to actual subject to actual
2 Tuition fee from class VI to X Rs.350/- per month Rs.350/- per
subject to actual month
subject to actual
3 Maintenance allowance is
payable for a period not
exceeding 10 months in an
academic year
(i) Class I to V Nil Rs.100/- per month
(ii) Class VI to X Rs.600/- per month Rs.100/- per month
subject to actual
Post Matric Scholarship scheme
S.No Item Hostell Day Scholars
.
1 Admission and tuition fee from Actual subject to a Actual subject to a
class XI to XII maximum ceiling of maximum ceiling
Rs.7,000 per annum of Rs.7,000 per
annum
2 Admission and course/tuition Actual subject to a Actual subject to
fee for technical and vocational maximum ceiling of a maximum ceiling
courses of XI and XII level Rs.10,000 per of Rs.10,000 per
(Inludes fees/charges for raw annum annum
materials, etc.)
3 Admission and tuition fee for Actual subject to a Actual subject to a
under graduate, post graduate maximum ceiling of maximum ceiling
Rs.3,000 per annum of Rs.3,000 per
annum
4 Maintainance allowance for 10
months only in an academic
year (includes expenses for
study material, etc.) Rs.380 per month Rs.230 per month
(i) Class XI and XII including
technical and vocational courses
of this level
(ii) Courses other than technical Rs.570 per month Rs.300 per month
and professional courses at
under-graudate and post
graduate level.
(iii) M.Phil and Ph.D (For those Rs.1200 per month Rs.550 per month
researchers who are not
awarded any fellowship by
university or any other)
5. It is respectfully submitted that, to improve transparency in the
implementation of the scholarship schemes, a new and revamped version of
National Scholarship Portal (NSP) has been launched by the Government
during 2015-16 for various Ministries of Government of India including
Ministry of Minority Affairs. All the above Scholarship Schemes of this
Ministry are implemented through this portal. The scholarships are
transferred into the bank accounts of students through Direct Benefit
Transfer (DBT) mode. The details of Community-wise scholarships
sanctioned under Pre-Matric and Post Matric Scholarship Schemes for
Minorities in respect of Kerala State for the last six years, 2014-20, are
produced as Annexure R3 (a).
6. As per the Scheme guidelines, a total of thirty (30) lakh
scholarships and five lakh scholarships are targeted to be distributed as
Fresh' Scholarships under Pre-Matric and Post Matric Scholarship Schemes
respectively. These are besides Renewal scholarships. The distribution of
scholarship among the States/Union Territories, under Fresh category,
including Kerala, are made on the basis of community-wise population of
minorities in the States/Union Territories as per Census 2001 (for 2014-15
to 2017-18) and as per the population of minorities in the States/Union
Territories of Census 2011 (for 2018-19 and 2019-20).Thus, it is stated
that there is an annual community-wise target for Kerala under each of the
schemes. However, under some communities, the number of sanctioned
scholarships is less due to non-availability of sufficient eligible applicants,
while under some communities it is more due to re-allocation of unfilled
quota from other States/communities by the Ministry of Minority Affairs.
7. It is further stated that the 3 rd Respondent (Ministry of Minority
Affairs) has enacted the National Commission for Minority Act, 1992 to
ensure the safeguards to six notified minority communities viz. Buddhist,
Christian, Jain, Muslim, Parsi and Sikh and also to protect them from
discrimination and from the deprivation of their rights. Admittedly,
Christians and other religious minorities are similarly situated and the
statutory functions of the Commission do not provide for any undue favour
to any particular minority community."
17. We have heard Senior Adv. Sri.Raju Joseph, assisted by Adv.
Julian Xavier for the petitioner, Assistant Solicitor General of India
Sri.P.Vijayakumar for the Union of India and O.A.Nuriya for the additional 4 th
respondent and perused the pleadings and materials on record.
18. In the backdrop of the above contentions petitioner seeks to quash
Exhibits P2 to P4 orders issued by the State Government dated 16.8.2008,
22.2.2011 and 8.5.2015. In Exhibit P2, the General Administration Department
(Minority Cell) states 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 formed and started
functioning in the Secretariat. Paragraph 4 thereto states that 5000 scholarships
of Rs.3,000/-, Rs.4,000/- and Rs.5,000/- each per year will be allotted to Muslim
girl students, who are undergoing degree, Post-graduate professional courses
on merit-cum-means basis, which would be executed by the Department of
Collegiate Education, and paragraph 6 specifies that a clerk post each in 14
districts will be created under the Deputy Collector (General) for the purpose
and an amount of Rs.10 Crores is set apart for Minority Welfare Programme as
allotted in the supplementary request made in July 2008 budget.
19. Exhibit P3 order specifies that on the basis of the report of the
committee specified above, Government have considered the matter elaborately
and have decided to give scholarships and hostel stipends to Latin Catholics and
Converted Christians as given to Muslim girl students. It further denotes that
criteria for getting scholarship and hostel stipends for Muslim girl students will
be applicable to the above category as well. However, it is significant to note in
the said order that the Latin Catholics and Converted Christian girl students are
only permitted to get 20% of the total number of scholarships/hostel stipends,
which are given to Muslim girl students and further that, the number of
scholarships/hostel stipends, which are given to Muslim girl students will
continue as Rs.5000/- and Rs.2000/- respectively. Exhibit P4 Government order
is in regard to scholarship scheme for minority students pursuing courses such
as Chartered Accountancy (C.A) and Works Accountancy (I.C.W.A) and
Company Secretaryship, wherein after specifying the nature of the scheme it is
categorically stated that the selection will be based on merit and income basis
having 60% marks in B.Com/other graduation and students having annual
income below Rs.6 lakhs are eligible for scholarship and preference will be given
to BPL candidates. The crucial aspect therein is that the reservation among
Muslims and other minority communities is in the ratio 80:20 and 30% of seats
will be reserved for girl students. Thus, altogether an amount of
Rs.1,80,00,000/- is provided towards scholarship 1) to the students undergoing
coaching for intermediate 2) to the students undergoing coaching for final and
3) foundation course, at the rate of Rs.12,000/-, Rs.12,000/- and Rs.6,000/-
distributed among 500, 500 and 1000 students respectively.
20. It was in the said background that the Catholic Bishops Conference of
India and the petitioner submitted Exhibits P5 and P8 representations
respectively. These are the basic background facts available before us to decide
the issues raised by the petitioner in regard to the distribution of the merit cum
means scholarship to the students belonging to the minority communities.
Basically the rights available to minority communities stems out from Article 29
of the Constitution of India dealing with protection of interest of minorities.
Clause 1 thereto clearly specifies that any section of the citizens residing in the
territory of India or any part thereof having a distinct language, script or culture
of its own shall have the right to conserve the same and clause 2 thereunder
specifies that no citizen shall be denied admission into any educational
institution maintained by the State or receiving aid out of State funds on
grounds only of religion, race, caste, language or any of them. Article 30 of the
Constitution deals with the right of minorities to establish and administer
educational institutions .
21. A conjoint reading of Articles 29 and 30 makes it clear that while
granting any aid by the State to educational institutions the State shall not
discriminate against any educational institution on the ground that it is under
the management of a minority whether based on religion or language, which in
fact clearly translates the true intention of the framers of the Constitution of
India.
22. Viewed in that background we are proceeding to understand the
provisions of the National Commission for Minorities Act, 1992. The statements
of objects and reasons of Act, 1992 states that the Minorities Commission was
set up in January, 1978 for providing an institutional arrangement for evaluating
the safeguards provided in the constitution for the protection of the minorities
and to make recommendations for ensuring implementation of the safeguards
and the laws. It was also found that the Minorities Commission with statutory
status would infuse confidence among the minorities about the working and the
effectiveness of the Commission and it would also carry more weight with the
State Governments/Union Territory Administrations and the
Ministries/Departments and the other organisations of the Central Government.
That is how the Commission was constituted consisting of a Chairperson and six
members.
23. The main task shouldered on the Commission shall be to evaluate the
progress of the development of minorities, monitor the working of the
safeguards provided in the constitution for the protection of the interests of
minorities and in laws enacted by the Central Government besides looking into
the specific complaints regarding deprivation of rights and safeguards of the
minorities. It shall also cause studies, research and analysis to be undertaken
on the issues relating to socio economic and educational development of the
minorities and make recommendations for the effective implementation of the
safeguards for the protection of interests of minorities by the Central
Government or State Governments. Section 9 of the Act, 1992 deals with the
functions of the Commission, which reads thus:
"9. Functions of the Commission.-(1) The Commission shall perform all or
any of the following functions, namely:-
(a) evaluate the progress of the development of minorities under the Union
and States;
(b) monitor the working of the safeguards provided in the Constitution and in
laws enacted by Parliament and the State Legislatures;
(c) make recommendations for the effective implementation of safeguards for
the protection of the interests of minorities by the Central Government or the
State Governments;
(d) look into specific complaints regarding deprivation of rights and
safeguards of the minorities and take up such matters with the appropriate
authorities;
(e) cause studies to be undertaken into problems arising out of any
discrimination against minorities and recommend measures for their removal;
(f) conduct studies, research and analysis on the issues relating to socio-
economic and educational development of minorities;
(g) suggest appropriate measures in respect of any minority to be undertaken
by the Central Government or the State Governments;
(h) make periodical or special reports to the Central Government on any
matter pertaining to minorities and in particular difficulties confronted by
them; and
(i) any other matter which may be referred to it by the Central Government.
(2) The Central Government shall cause the recommendations referred to in
clause (c) of sub-section (1) to be laid before each House of Parliament along
with a memorandum explaining the action taken or proposed to be taken on
the recommendations relating to the Union and the reasons for the non-
acceptance, if any, of any of such recommendations.
(3) Where any recommendation referred to in clause (c) of sub-section (1) or
any part thereof with which any State Government is concerned, the
Commission shall forward a copy of such recommendation or part to such
State Government who shall cause it to be laid before the Legislature of the
State along with a memorandum explaining the action taken or proposed to
be taken on the recommendations relating to the State and the reasons for
the non-acceptance, if any, of any of such recommendation or part.
(4) The Commission shall, while performing any of the functions mentioned in
sub-clauses (a), (b) and (d) of sub-section (1), have all the powers of a civil
court trying a suit and in particular, in respect of the following matters,
namely:-
(a) summoning and enforcing the attendance of any person from any part of
India and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or
office;
(e) issuing commissions for the examination of witnesses and documents;
and
(f) any other matter may be prescribed."
24. Section 10 makes it clear that the Central Government shall after due
appropriation made by Parliament by law in that behalf pay to the Commission
by way of grants such sums of money as the Central Government may think fit
for being utilised for the purposes of the Act. It is significant to note that section
2(c) defines 'minority' for the purposes of the Act to mean a community notified
as such by the Central Government. It is undisputed that the Central
Government has notified six religious communities viz., Muslims, Christians,
Sikhs, Buddhists, Zoroastrians (Parsis) and Jains, in the gazette of India.
25. Therefore, on a reading of section 9 and section 2(c) along with the
notification so issued, it can 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. The Kerala State Commission for Minorities Act, 2014 was introduced
with the intention to constitute a State Commission for the comprehensive
educational advancement, welfare, protection and empowerment of minorities
in the State of Kerala and to provide for matters connected therewith or
incidental thereto, which has come into force on and w.e.f. 15.5.2013. Section
2(d) thereto defines 'minority' to mean, a community notified by the Central
Government under the National Commission for Minorities Act, 1992. Section 9
of the Act deals comprehensively with the functions of the Commission which
reads thus:
"9.Functions of the Commission.- The Commission shall perform the following
functions, namely:-
(a) to evaluate the progress of the development of minorities in the State;
(b) to enquire and monitor the manner of functioning of various safeguards
provided in the Constitution of India or under any other law or under any order of
the Government, for the welfare, protection and empowerment of the minorities in
Kerala;
(c) to enquire into specific complaints about deprivation of social,
economic,educational and linguistic rights, safeguards and benefits of the minorities,
to bring such matters into the notice of authorities concerned, to suggest remedial
measures and to monitor the follow-up actions thereon;
(d) to participate in and give creative suggestions on, the planning programmes for
the educational, social and economic development of the minorities:
(e) to make recommendations as to the steps to be taken by the Government for the
effective implementation of the measures and safeguards for the educational, social
and economic development, welfare and protection of the minorities and to make
report to the Government either annually or at such other time, as the Commission
may deem fit and to monitor their timely implementation;
(f) to cause studies to be undertaken into various problems arising out of
discrimination towards minorities and recommend measures for their removal
(g) to conduct studies, research and analysis and to organize seminars, symposium
and awareness classes on the issues relating to social, economic and educational
advancement of minorities;
(h) to suggest appropriate measures to be adopted by the Government in respect of
minority,
(i) to submit report to the Government periodically or specially, on any matter
pertaining to minorities, particularly in respect of difficulties being faced by them and
their remedial measures;
(j) to discharge such other functions in relation to the protection, welfare,
development and advancement of the minorities, as may be prescribed:
(k) to take necessary steps to ensure the representation of minorities proportionate
to their population in various employment projects and
social development projects;
(l) to ensure the efficient functioning of the law and order system in communal
conflict prone areas and to bring lapses to the notice of the
Government;
(m) any other matter pertaining to minorities, entrusted by the Government".
26. Therefore, the intention of constituting the National and State
Commission is clear, to protect the interests of the minorities notified by the
Union Government by taking into account various aspects including educational,
social and economic development of the minorities as such and not any
particular minority. Which thus means, 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. It is clear
from 2011 census that total population of minority communities in Kerala is
45.27% out of which 58.67% is Muslims and 40.6% is Christians and the
balance 0.73% constituted other minority communities.
27. On an analysis of section 9 of Act, 1992 what we could gather is that
the Commission itself was constituted to evaluate the progress of the
development of minorities under the Union and States taking into account the
constitutional safeguards and the laws enacted by Parliament and the State
Legislatures and accordingly make recommendations for the effective
implementation for the protection of the interests of minorities by the Union
Government and the State Governments. Further, the said Commission has got
a duty to look into any specific complaints regarding deprivation of rights and
safeguards of the minorities and is also obliged under law to take up such
matters with the appropriate authorities.
28. Here is a case where the Christian Minority community had made
representations before the State Government and State Minority Commission
regarding the discrimination meted out to the said community in the matter of
award of merit-cum-means scholarship, but no action was initiated. Likewise,
section 13 of the State Commission for Minorities Act, 2014, encompasses a
duty on the commission to look after the welfare of the minority communities
within the State without any discrimination. However, the orders passed by the
State Government viz., Exhibits P2, P3 and P4 show that clear discrimination is
shown by favouring 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, formation of which is mandated by virtue of
the Constitutional guarantee extended to the minority communities. 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. It is also equally important to note that the Act, 1992 and the Act,
2014 envisions the Commission to treat the minority communities as a whole,
and if at all the development of weaker sections among each of the minority
communities is required, the Commission is to take into account the
requirements of such weaker sections in each of the communities and divide the
merit-cum-means scholarship equally by and between the members of the
minority communities. However, in utter violation of the constitutional mandates
contained under Articles 14, 15, 29 and 30, the State Government has issued
the impugned orders.
29. Article 14 clearly mandates that the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of
India, whereas Article 15 (1) specifies that the State shall not discriminate
against any citizen on grounds only on religion, race, caste, sex, place of birth
or any of them, but at the same time we are concious of the fact that the
provisions of Article 15 would not stand in the way of the State from making
any provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes in so
far as such special provisions relate to admission of such classes of citizens to
educational institutions including private educational institutions by virtue of
Clauses (4) and (5) thereto, irrespective of the provisions of Articles 29 and 30
of the Constitution dealing with minorities.
30. It is also clear from clause (6) of Article 15 that nothing in the said
Article or sub-clause (g) of clause 1 of Article 19 or clause (2) of Article 29
would stand in the way of the State from making, a) any special provision for
the advancement of any economically weaker sections of citizens other than the
classes mentioned in clauses (4) and (5) ; and b) any special provision for the
advancement of any economically weaker sections of citizens other than the
classes mentioned in clauses (4) and 5 in so far as such special provisions relate
to their admission to educational institutions including private educational
institutions whether aided or unaided by the State, other than the minority
educational institutions referred to in clause (1) of Article 30 etc.
31. On a reading together of Articles 14 and 15, it is clear that the State is
endowed with a duty coupled with an obligation to look after the welfare and
well being of the socially, educationally and economically weaker sections of
citizens irrespective of the special provisions dealing with minorities. Therefore
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.
32. But here is a case where without taking into account the entitlement of
the Christian Minority community within the State available from the population
ratio, 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. Article 29 also casts a duty to protect the educational
interests of the minority community in equal measure and not in a
discriminatory manner.
33. A five member Constitutional Bench of the Apex Court in Chinnaiah v.
State of A.P. [(2005)1 SCC 394] had occasion to consider 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, sub-
classify or sub-group the castes which are found in the presidential list of
Scheduled Castes. In our considered view, the Union Government in
contemplation of section 2(c) of the Act, 1992 has notified six communities as
minority communities in India which includes Muslims and Christians and
therefore, the principles contained in the judgment in Chinnaiah supra would
squarely apply to the facts and circumstances to the case at hand.
34. True, taking into account various constitutional provisions and the
aspects thereto, the judgment in Chinnaiah supra is referred to a Larger
Bench of Seven Judges or more in the order in State of Punjab and Others
v. Davinder Singh and Others [(2020)8 SCC 1]. Anyhow, as of now, the
proposition of law guiding the field is the judgment in Chinnaiah, the
constitutional provisions, and the provisions of the Act, 1992 and Act, 2014.
That apart in Davinder singh (supra), the Apex Court expressed its opinion
that the State Government has an obligation to undertake the emancipation of
the deprived section of the community and eradicate inequalities and for that
purpose it can make sub-classification within reserved castes within the SC and
ST and adopt distributive justice method to redistribute and reallocate resources
and opportunities to fulfil the very purpose of the Constitutional mandate of
equal justice to all.
35. Therefore, even if the findings rendered in the reference order for
revisiting the findings in Chinnaiah (supra) by a Larger Bench is taken into
account, the sub- division envisaged can only be within minority communities
and not by taking the weakness of a particular minority community alone. In
our view, in order to protect the interest of the notified minority communities as
such, adoption of such a course is the only alternative and not otherwise as is
done by the State Government .
36. Therefore, deducing the facts, circumstances and the laws, we are of
the considered opinion 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 cannot be legally sustained. In that view of the matter, we quash
Exhibits P2, P3 and P4 orders of the State Government deliberated above in
detail, and hereby direct the Kerala State Government to pass requisite and
appropriate Government orders providing merit-cum-means scholarship to the
members of the notified minority communities within the State equally and in
accordance with the latest population census available with the State Minority
Commission.
Upshot of the above discussion is that the writ petition is allowed to the
extent specified above.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P.CHALY
smv JUDGE
// true copy// P.A. To Judge/
APPENDIX OF WP(C) 24355/2020
ANNEXURE/EXHIBITS
EXHIBIT P1 TRUE COPY OF THE SCHEME DOWNLOADED FROM THE
WEBSITE OF MINISTRY OF MINORITY AFFAIRS
EXHIBIT P2 TRUE COPY OF GO(MS) NO 278/2008/GAD DATED
16.8.2008 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P2(a) TRUE ENGLISH TRANSLATION OF EXT.P2
EXHIBIT P3 TRUE COPY OF GO(MS) NO.57/2011 GAD DATED
22.2.2011 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P3(a) TRUE ENGLISH TRANSLATION OF EXT.P3
EXHIBIT P4 TRUE COPY OF THE GO (RT) NO.3427/2015/GAD
DATED 8.5.2015 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P5 TRUE COPY OF MEMORANDUM DATED 29.6.2019
SUBMITTED BY CATHOLIC BISHOPS CONFERENCE OF
INDIA COUNCIL FOR LAITY BEFORE THE 2ND
RESPONDENT
EXHIBIT P5(a) TRUE ENGLISH TRANSLATION OF EXT.P5
EXHIBIT P6 COPY OF THE COMPLAINT DATED NIL SUBMITTED
BEFORE THE 2ND RESPONDENT BY THE DIOCESE OF
IDUKKI
EXHIBIT P6(a) TRUE ENGLISH TRANSLATION OF EXT.P6
EXHIBIT P7 TRUE COPY OF THE INFORMATION DATED
14.10.2019 ISSUED BY THE PUBLIC INFORMATION
OFFICER UNDER THE 1ST RESPONDENT
EXHIBIT P7(a) TRUE ENGLISH TRANSLATION OF EXT.P7
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED
3.10.2020 SUBMITTED BY THE PETITIONER BEFORE
THE 1ST RESPONDENT WITH COPY OF RESPONDENTS
2 AND 3
EXHIBIT P8(a) TRUE COPY TO ACKNOWLEDGMENT CARD SIGNED BY
1ST RESPONDENT
EXHIBIT P8(b) TRUE COPY OF THE ACKNOWLEDGMENT CARD SIGNED
BY THE 2ND RESPONDENT
EXHIBIT R1(a) TRUE COPY OF THE REPORT OF SRI.PALOLI
MOHAMMED KUTTY COMMITTEE DATED 21.02.2008
EXHIBIT R1(b) TRUE COPY OF THE GUIDELINES ISSUED BY THE
FORWARD CASTE WELFARE CORPORATION ALONG WITH
EBGLISH TRANSLATION
EXHIBIT R1(c) TRUE COPY OF THE G.O.(MS)NO.214/2020/HOME
DATED 05.11.2020 ALONG WITH ENGLISH
TRANSLATION
EXHIBIT P9 TRUE COPY OF THE NOTIFICATION DOWNLOADED
FROM THE WEBSITE OF DEPARTMENT OF MINORITY
WELFARE, GOVERNMENT OF KEARALA DATED NIL.
EXHIBIT P9(a) TRUE ENGLISH TRANSLATION OF EXT.P9
EXHIBIT R4(1) TRUE COPY OF THE TERMS OF REFERENCE OF
JUSTICE RAJINDER SACHAR COMMITTEE DATED
9.3.2005
EXHIBIT R4(2) TRUE COPY OF THE RELEVANT PAGES INCLUDING
TABLES 9.4 AND 9.5 FROM JUSTICE RAJINDER
SACHAR COMMITTEE REPORT
EXHIBIT R4(2)(a) TRUE COPY OF THE RELEVANT PAGES INCLUDING
TABLE 9.6 FROM JUSTICE RAJINDER SACHAR
COMMITTEE REPORT
EXHIBIT R4(2)(b) TRUE COPY OF THE RELEVANT PAGES INCLUDING
TABLE 9.7 FROM JUSTICE RAJINDER SACHAR
COMMITTEE REPORT
ANNEXURE R3(a) TRUE COPY OF THE DETAILS OF COMMUNITY-WISE
SCHOLARSHIPS SANCTIONED UNDER PRE-MATRIC AND
POST MATRIC SCHOLARSHIP SCHEMES FOR
MINORITIES IN RESPECT OF KERALA STATE FOR
THE LAST SIX YEARS 2014-20.
EXHIBIT R4(3) TRUE COPY OF THE TRUST DEED DATED 16.07.2018
