Evolution of the NCMEI

The National Commission for Minority Educational Institutions (NCMEI) is a statutory body established by the Government of India in the year 2004 via an ordinance. Subsequently, the ordinance was converted into an Act by Parliament in 2005.

In the years 2006 and 2010, two amendment Acts were passed by Parliament, and the current NCMEI Act is the net result of the original ordinance/Act and the 2 amendment Acts.

The original NCMEI Act:

Going through the statement of Objects and Reasons of the original 2004/2005 Act, it appears NCMEI was intended to serve a very distinct purpose. The NCMEI was to serve as a body to grant affiliation to minority run colleges to specific Central Universities.

Since minority run colleges, like non-minority ones, were governed by rules made by State Governments, some of them apparently expressed difficulty in getting affiliation to Central Universities. Hence the Commission was put in place.

The “Objects and Reasons” of the original Act says the following

“In one of the sections of the National Common Minimum Programme, there is a provision to establish a Commission for Minority Educational Institutions (hereinafter referred to as the National Commission) that will provide direct affiliation for minority professional institutions to Central Universities….”

In line with the above Objects and Reasons, the first version of the Act defined the powers of the NCMEI in Chapter III as follows

Right of a Minority Educational Institution to seek affiliation to a Scheduled University.

10. Right of a Minority Educational Institution to seek affiliation to a Scheduled University.-

(1) Notwithstanding anything contained in any other law for the time being in force, a Minority Educational Institution may seek recognition as an affiliated college of a Scheduled University of its choice.

(2) The Scheduled University shall consult the Government of the State in which the minority educational institution seeking affiliation under sub-section (1) is situate and views of such Government shall be taken into consideration before granting affiliation.

Notice the specific usage of the term “Scheduled University”.

At the end of the Act, there was a “Schedule” which listed the Universities covered by this Act.

1. University of Delhi.

2. North-Eastern Hill University.

3. Pondicherry University.

4. Assam University.

5. Nagaland University.

6. Mizoram University.

Under Chapter IV of the Act, the powers of the Commission were listed. It could do the following:

  • Advise the Central and State Governments on any question related to minority institutions
  • Look into complaints of minorities being deprived of their rights under Article 30(1) or any dispute related to affiliation to *Scheduled* Universities

Of course, when one goes through the list of institutions granted certificates by NCMEI, we find many schools also in the list in 2005-06 itself. However, the Act itself granted very specific (limited, rather) powers to the Commission to deal with affiliation to Scheduled Universities.

The 2006 Amendment Act:

In the year 2006, the UPA Government amended this Act significantly. With this amendment, the functions of the Commission and the powers that it wielded underwent significant changes.

  • From the entire Act, the term “Scheduled University” was replaced with the word “University”. So the Commission could now deal with matters related to any University.
  • The Schedule listing the Universities was dropped altogether!
  • Chapter III of the Act which dealt with rights of a minority institution, and in the original Act, spoke only about affiliation, was re-written completely. The terms “Competent Authorities” (Central and State Govt departments) was introduced. Explanation of the procedure to obtain a “no-objection certificate” was introduced.
  • The term “Competent Authority” was defined in Section 1(c)(ca) in which the issuance of NOCs to “any educational institution of their choice by the minorities” was specified.
  • Suo moto powers to the Commission to enquire into any matter related to rights of minorities in the context of Article 30(1) were granted.
  • It also introduced new Sections 12A to 12F under Section 12 of the Act. Under these new sections
    • NCMEI could now be approached by a minority institution if a NOC wasn’t granted by the Central or State Govt.
    • NCMEI obtained the power to decide on the minority status of “an educational institution” (read as any-minority-educational institution, not just colleges)
    • NCMEI could now cancel the minority status of an educational institution.
    • Only High Courts and the Supreme Court had jurisdiction to entertain any suit or proceedings against the decisions made by NCMEI.

As we can see, it is with this amendment that NCMEI got powers to decide on matters related to the minority character of an educational institution. The new definition of “Competent Authority” also clearly stated that any minority institution (schools, colleges, any other type of institution) would be covered by the Act, and come under the jurisdiction of the NCMEI. And by removing the word “Scheduled” from the Act, it became applicable to all Universities.

The 2010 Amendment Act:

This amendment granted one significant additional power to the Commission.

In the previous version of the Act, Section 12(B)(4) stated the following

On receipt of the appeal under sub-section (3), the Commission may, after giving the parties to the appeal an opportunity of being heard, and in consultation with the State Government, decide on the minority status of the educational institution and shall proceed to give such directions as it may deem fit and, all such directions shall be binding on the parties.

Whenever a dispute arose with regard to the minority nature of an educational institution, NCMEI still had to consult with the concerned State Government before arriving at a decision.

In this amendment Act, the phrase “and in consultation with the State Government” was removed completely. Therefore, NCMEI now became the sole authority, throughout the nation, in deciding the minority status of ANY educational institution.

References:

  1. The Objects and Reasons of the 2004/05 Act.
  2. The 2004/05 NCMEI Act.
  3. The 2006 NCMEI Amendment Act.
  4. The 2010 NCMEI Amendment Act.
  5. List of institutions granted minority status certificates by NCMEI
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Government Support for Madrassas & Veda Pathashalas

Edit: 26th April:

Please see comment from Prathisthan member. The institution gets Rs 30 crores annually. I am retaining the article to highlight the difference in the amounts granted. But the conclusion below about funding being stopped is wrong.

———

Today the Minister of Minority Affairs announced 1 lakh madrassas in the country will be upgraded to modern technology.

It’s a good time to look at the treatment given by the Central Government for Madrassas vs Veda Pathashalas.

Madrassas:

In the budget for the year 2017-18, a sum of Rs 120 crores has been provisioned by the Ministry of Human Resources Development (MHRD) for Madrassas. See item #20 in this document.

In the 2 previous years, sums of Rs 120 crores and Rs 295 have been granted for the same.

The main purpose of this budgetary allocation is for a scheme known as CENTRAL SPONSORED SCHEME FOR PROVIDING QUALITY EDUCATION IN MADRASA (SPQEM).

This scheme has provisions for student grants, assistance for libraries, infrastructure improvement and so on.

In addition to the above budget, the Ministry of Minority affairs grants financial assistance to Madrasas under the Multi-sectoral Development Program. Per an answer provided in the Lok Sabha, the following amounts were granted in the various years up to 2014-15.

Year             Amount (crores)

2011-12       3.10

2012-13       118.4

2013-14       11.73

2014-15       3.22


Veda Pathashalas:

The MHRD runs an institution called as the “Maharshi Sandipani Rashtriya Veda Vidya Pratishthan, Ujjain” which is aimed at promoting Veda Pathashalas and Vedic Culture.

In the year 2011-2012, a sum of Rs 12 crores was allocated to this institution.

In the year 2012-13, a sum of Rs 30.80 crores was allocated to this institution (see same link as above)

In the year 2013-14, a sum of Rs 3 lakhs (YES – 3 lakhs only) was allocated to this institution. (see row 28 in the link)

From the year 2014-15 onwards, the budgetary allocations for this institution were completely stopped. See page 89 of this document.

Even in the budget of 2017-18, in line with the decision to stop budgetary support for this Prathisthan, no amount has been allocated. (Read footnote 67, notice the name of the Prathisthan missing).

Summary:

A sum of Rs 120 crores annually for Madrassa support

A sum of Rs 0 crores annually for Veda Pathashala support

Note:

  • Some may argue that the support for Madrassas is given for teaching non-religious subjects. Numerous Veda Pathashalas also teach Science, Maths and the ilk.

HRD at Parliament in the 3 years of NDA-2

In the next 3 weeks, the 16th Lok Sabha and the NDA-2 Government under Narendra Modi will be completing 3 years. In these 3 years, it has had fairly reasonable success in pushing through several legislation in both the houses of Parliament. In fact, up to April 2014, the Government has been successful in pushing through 122 bills in both houses thus converting them into Acts (and amendments to the Constitution, as applicable).

From a #Core point of view, the most important ministry, undoubtedly, is the Ministry of Human Resources Development (MHRD). In this post, let us look at the legislative performance of the MHRD in the first 3 years of the Government.

Note:

  1. The analysis here is only corresponding to Bills. Other legislative activity such as reports, answers to questions, etc are not considered here.
  2. Only those bills which have been introduced AND passed in both houses of Parliament have been considered here (only these constitute Acts – and become law of the land. Hence)

Between May 2014 and April 2017, there were 11 sessions of Parliament. In these sessions, the MHRD has introduced 11 bills in either house of Parliament. Out of these 11, 7 bills have been passed by the Lok Sabha, and 6 by the Rajya Sabha. In effect, 6 of these bills are Acts now. Let us look at some details of the bills passed in the below table.

Sl Num

Bill Title Passed in LS Passed in RS

Key Objectives

1

The IIT Bill, 2014 26/11/2014 01/12/2014 1)      Provide independent statutory status to 4 IITs

2)      Power to grant degrees

2 The Central Universities (Amendment) Bill, 2014 26/11/2014 09/12/2014 1)      Establishing Mahatma Gandhi Central University in Bihar

2)      Renaming of Central University situated in Bihar

3 The School of Planning and Architecture Bill, 2014 03/12/2014 10/12/2014 1)      Establish a Council for the 3 schools of planning and architecture

2)      Empower them to grant degrees

4 The Indian Medical Council (Amendment) Bill, 2016 19/07/2016 01/08/2016 1)      Allow conduct of NEET exams in English, Hindi and other languages

2)      NEET not applicable for 2016-17 for states which have not (yet) opted for it

5 The IITs (Amendment) Bill, 2016 25/07/2016 02/08/2016 1)      Integrated ISM, Dhanbad with rest of IITs
6 The NIT, Science Education and Research (Amendment) Bill, 2016 21/07/2016 01/08/2016 1)      Creation of NIT, Andhra Pradesh (needed due to bifurcation of Andhra)
7 The NIT, Science Education and Research (2nd Amendment) Bill, 2016 28/03/2017 Not yet passed

1)      Creation of Indian Institute of Science Education and Research  (IISER) at Tirupati

2)      Creation of IISER at Berhampur, Odisha

As you can see,

  • 3 out of the 6 bills are for creation of individual institutions. In fact, 2 out of these 3 were necessitated by the bifurcation of Andhra Pradesh into Andhra and Telengana (Bills 6 and 7 in the table)
  • 1 bill – the NEET one – was due to the time limitations in enforcing NEET exams in all states. Purpose was to ensure there is no situation of a violation of the NEET Act.
  • 2 bills involved granting autonomous status to institutions (bills 1 and 3 in the list).
  • In the calendar year 2015, which had 3 sessions of Parliament, no bill corresponding to the MHRD were introduced or passed.

I will leave it to the readers to adjudicate the performance of this *most* important ministry in the 3 years so far. However, it is important to highlight that there has been no significant piece of legislation enacted by the MHRD.

Just for comparison purpose, here is some data from the 1st 3 years of the UPA-1 Govt between 2004 and 2007.

  • A total of 14 bills related to the MHRD were passed in the first 3 years of UPA-1
  • There were at least 3 MAJOR bills passed in the first 3 years
    • The NCMEI Act, 2004 was passed in December, 2004 i.e. within a year of the formation of the Government.
    • The 93rd amendment was passed in December 2005.
    • The Central Education Institutions Bill was passed in 2006.
  • The remaining bills set out to establish Univerisities and IITs in various parts of the country, such as the University of Allahabad Bill, the Manipal University Bill, Sikkim University Bill, Tripura University Bill and so on.

Disclaimer: Let there be no confusion whether I support the UPA’s actions in this ministry 🙂 The remainder of the posts in this blog vouch for my stance on that topic. However, the concern is that, just like the “Golden Hour” during medical emergencies, the “Golden Years” of this Government have been wasted in the #Core area.

Pramati: The Judgement that is changing India – Part II

In Part I of the post, we had looked at the arguments, opinions and decision of the Supreme Court on the 93rd amendment. In this part, let us look at the same judgement with respect to Article 21A of the Constitution.

(Note: It would help if one goes through Part I so the background and other details of the case is understood)

Opening remarks:

The judgement on this section starts by giving some background into the evolution of Article 21A and the accompanying 2009 Act (the RTE Act).

The judges noted that the 2009 RTE Act was to give effect to Article 21A. The said Act was challenged in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr, in which the Act was held as valid and the following schools were brought under its fold, as a result of a 2:1 split verdict.

  • Government schools
  • Aided Hindu schools
  • Aided minority schools
  • Specified category schools
  • Unaided Hindu schools

In other words, only unaided minority schools were kept out of the RTE Act.

The judges also noted the dissenting opinion by J Radhakrishnan who held that the Act cannot apply to even Hindu unaided schools.

Interestingly, the judges conclude the opening remarks by noting the 2012 amendment by Parliament whereby reference to Articles 29 and 30 were introduced into the RTE Act, thereby making it subservient to them.

Objections raised by the Petitioners:

  • Mukul Rohatgi argued that Article 21A cast a responsibility on ONLY the State, and not on unaided institutions. Therefore, the 2009 Act abrogated the rights conferred by Art19(g). He opined that the minority judgement in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr was the right decision.
  • R F Nariman argued that the word “State” in Article 21A meant that it was applicable only to arms of the Government, and its institutions, and not to private educational institutions.
  • R F Nariman then argued that the original Article 45 of the Constitution, which Article 21A replaced, clearly placed the responsibility on the State, and State alone, by the use of the word “for” in it. Therefore, even though the word “for” is missing in Article 21A, the intent remains the same. Hence, forcing private institutions to comply with the RTE Act would violate Art19(g)
  • R F Nariman further argued that the RTE Act does not make any reference to Art15(5) at all. Hence the 25% reservation portion of the Act would violate rights conferred under Art19(g).

Objections raised by the Petitioners appearing for minority institutions:

  • Ajmal Khan and T R Andhyarujina argued that the RTE Act violates the rights conferred to minorities vide Article 30(1). They referred to a host of case laws right from Kerala Education Bill to TMA Pai to press home the point that non-minority students cannot be forced on to a minority educational institution.
  • Both the counsel brought to the attention of the judges, the 2012 amendment of the RTE Act making it subservient to Articles 29 and 30.
  • They argued that even the aided minority educational institutions should be exempted from the purview of the RTE Act.

Submissions on behalf of the Union of India:

  • ASG K V Vishwanathan submitted that the 2009 RTE Act was to give effect to Article 21A. This is especially intended by Section 12(1)(c) of the Act.
  • The ASG argued that since in the matter of schools, the private institutions performed a role akin to the State, they too come under the term “State” as mentioned in Article 21A
  • Further, referring to TMA Pai, the ASG argued that admitting a small percentage of students under Section12(1)(c) would not violate the rights provided under Art19(g).
  • On the issue of minority institutions, the ASG mentioned the decision of the Society for Unaided Private Schools of Rajasthan v. Union of India & Anr case and then highlighted the 2012 amendment of the RTE Act.

(Note: The ASG did NOT take any particular stance with regard to minority institutions)

Opinion of the Bench:

  • The bench remarked that since Article 45 was only a Directive Principle, it lacked the necessary power to enforce implementation and hence the Government introduced Article 21A into the Constitution.
  • The bench agreed with the contention that the word “State” in Art21A meant only the Government and its institutions. However, it pointed to the wording of the Article whereby the State could, by law, determine the “manner” in which this obligation will be discharged. The bench therefore felt that a new power was vested with the State as a result of this phrase.
  • The bench commented that it does not find any conflict between the rights given under Art21A and Art19(1)(g) & Art30. However, it opined that there may be conflicts between the law enacted to support Art21A and Art19(1)(g) & Art30(1).
  • The bench reiterated its earlier comment that reserving a small percentage of seats for weaker sections does not abrogate the rights granted under 19(1)(g).
  • The bench’s opined that the provisions under Art19 had an element of voluntariness to them. However the new power vested to the State due to Art21A “affected the voluntariness of the right under Article 19(1)(g) of the Constitution“. So it opined that the State could now impose restrictions, related to admissions, on educational institutions, and such restrictions would not be destructive of the rights granted under Art19(1)(g)
  • It noted that per Section 12 of the RTE Act, private unaided institutions have to admit students from weaker sections up to 25%. However, since the State will reimburse the costs of these students, the rights of the schools are in no way affected.
  • The bench then stated that due to the rights conferred upon the minorities due to Art30(1), the State cannot enforce any regulation on it related to admission of students. Since Section 12(1)(c) imposes such a regulation on schools, minority institutions could be put under a legal obligation to admit children who do not belong to the minority communities.
  • The bench felt that such an imposition could affect the minority nature of the institution, and also would abrogate the rights conferred under Art30(1).
  • Therefore, the bench concluded that the decision under Society for Unaided Private Schools of Rajasthan v. Union of India & Anr regarding aided minority schools was NOT correct.
  • The bench, therefore, overturned the previous ruling and held that the RTE Act would not be applicable to any kind of minority educational institution.

Conclusion:

The operative portion of the Judgement is produced in full below for quick reference.

“47. In the result, we hold that the Constitution (Ninety third Amendment) Act, 2005 inserting clause (5) of Article 15 of the Constitution and the Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article 21A of the Constitution do not alter the basic structure or framework of the Constitution and are constitutionally valid. We also hold that the 2009 Act is not ultra vires Article 19(1)(g) of the Constitution. We, however, hold that the 2009 Act insofar as it applies to minority schools, aided or unaided, covered under clause (1) of Article 30 of the Constitution is ultra vires the Constitution. Accordingly, Writ Petition (C) No.1081 of 2013 filed on behalf of Muslim Minority Schools Managers’ Association is allowed and Writ Petition (C) Nos.416 of 2012, 152 of 2013, 60 of 2014, 95 of 2014, 106 of 2014, 128 of 2014, 144 of 2014, 145 of 2014, 160 of 2014 and 136 of 2014 filed on behalf of non-minority private unaided educational institutions are dismissed

One cannot help but notice the following:

  1. A huge number of Hindu schools went to the Court, engaged the very best of lawyers, and presented numerous objections regarding both Art15(5) and the RTE Act. All their petitions were dismissed.
  2. A single minority school association approached the Court, and made few simple submissions. The Court held all their contentions valid.

Such is the power of #IOI laws.

Pramati: The Judgement that is changing India – Part I

From a #Core point of view, there can be no dispute that the “Pramati Educational and Cultural Trust and Others Vs Union of India and Others” judgement on the issues of validity of the 93rd amendment to the Indian Constitution and the validity of Article 21A/RTE Act is the single most important judgement in India’s history.

The purpose of this post is to give an insight into this important judgement so that more and more people are aware of what actually the Supreme Court of this country delivered as the rationale behind upholding the sectarian education laws of this country.

This post will not get into the analysis of the judgement per-se, but will focus on summarising and highlighting the various aspects of the judgement, with respect to Article 15(5) i.e. the 93rd amendment.

In a subsequent post, we will look at the judgement of the validity of Article 21A.

The 93rd Amendment of the Indian Constitution:

Date of delivery: May 06 2014

Nature of bench: 5 Judge Constitutional bench – Justice R M Lodha, Justice A K Patnaik, Justice Sudhansu Jyoti Mukhopadhaya, Justice Dipak Misra and Justice F M Ibrahim Kalifulla.

Nature of judgement: Unanimous, authored by Justice Patnaik.

Background: 

As part of hearing the Society for Unaided Private Schools of Rajasthan v. Union of India & Anr case, the 3-judge bench in that case made a reference to a Constitutional Bench to determine the validity of

  1. Article 15(5) of the Constitution inserted via the 93rd amendment of the Constitution in 2005
  2. Article 21A of the Constitution inserted via the 86th amendment of the Constitution in 2002

A strange situation had developed due to which the above reference had to be made. In 2008, in Ashoka Kumar Thakur v. Union of India & Ors, the Supreme Court’s Constitutional bench had deliberated over the validity of Article 15(5) and held that it is indeed constitutional and does not violate the basic structure of the Constitution. However, it held that it’s interpretation was applicable only to State held institutions and aided educational institutions. This was because in the particular case, no “private unaided” educational institutions were party to the case!!

(It’s a strange situation where the highest court of the land leaves open the question of the validity of a significant amendment ONLY because no affected party had questioned it. The very same courts apply the *suo moto* principle on many other not-so-serious issues)

With regard to Article 21A, even though the Supreme Court, in Society for Unaided Private Schools of Rajasthan v. Union of India & Anr, had held the RTE Act to be constitutionally valid, it had not ventured into evaluating Article 21A.

So, when Pramati Educational, and other institutions, approached the Court, the above 2 questions related to validity were taken up.

Counsels for the Petitioners:

An entire galaxy of legal luminaries operating in the Supreme Court of India appeared for the petitioners belonging to Hindu private unaided schools. This included R F Nariman, Mukul Rohatgi, Rajiv Dhawan and Anil B Divan.

For the minority institutions, arguing for non-applicability of the RTE Act, Ajmal Khan and T R Andhyarujina appeared as counsels.

Counsels for the Union of India:

Mohan Parasaran appeared for the UOI on the issue of validity of Article 15(5)

K V Vishwanathan appeared for the UOI on the issue of validity of Article 21A

Key provisions of the Constitution:

A quick summary of some of the important provisions of the Constitution touched upon in this judgement. Note that a summary has been provided below, and not the actual wording of the provisions.

  • Article 15(5): Amendment inserted that allows the state to take away seats in Hindu educational institutions for SCs, STs, BCs and DGs,
  • Article 15(1): Prohibition of discrimination on grounds only of religion, race, caste, sex, place of birth
  • Article 14: Equality to one and all before law
  • Article 19(g): The right for every citizen to practise any profession, or to carry on any occupation, trade or business
  • Article 21: Protection of life and personal liberty of every citizen
  • Article 21A: Right to free and compulsory education for all children between 6 and 14 years of age

Objections raised by the Petitioners:

  • Mukul Rohatgi’s main contention was that Art15(5) infringes upon the rights guaranteed under Art19(g) to practise any occupation. He opined that Art19(g) was a basic feature of the Constitution and the 93rd amendment altered the liberty guaranteed under that. He contented Art15(5) abrogated Art19(g) and hence was ultra vires of the Constitution.
  • R F Nariman argued that since Art15(5) explicitly leaves out minority institutions, it violates Art14 bu which all have to be treated equally. He termed the 93rd amendment as discriminatory and violative of the basic principle of equality of the Constitution.
  • R F Nariman next argued that Art15(5) forces schools to give up seats and thus violates the liberty guaranteed under Art19(g). He argued that the SC itself in PA Inamdar had opined that private institutions cannot be forced to reserve seats, which can have an impact on their excellence. Art15(5) takes away the choice for admission of students and hence violates Art19(g)
  • R F Nariman argued further that the amendment creates a roadblock for the schools to achieve excellence in their activity and thus violates the right to excellence under Art21 and Art51A(j) of the Constitution.
  • Rajiv Dhawan pleaded with the court to apply the ‘identity test’ and the ‘width test’ to the 93rd amendment. His argument was that the width of the power vested with the State due to this amendment overrides the right given to citizens under Art19(g) and hence it is violative of the basic structure of the Constitution.
  • Anil B Divan argued that the amendment has been brought in with the aim of gaining political mileage with socially and economically backward classes and that the court needs to protect liberty when political parties are intent on pleasing particular classes for preferential treatment.
  • Anil B Divan then argued that the purpose of Art30 was to ensure equality of minorities with respect to majority, but Art15(5) actually reverse discriminates by treating minorities favourably. He argued that the amendment actually goes against secularism.

Submissions by the counsels for Union of India:

  • Mohan Parasaran argued that the 93rd amendment was only an enabling provision, and that reserving a small portion of seats in private unaided schools does not take away any of their rights under Art19(g).
  • Mohan Parasaran mentioned that per P A Inamdar, the SC opined that there was nothing in the Constitution to take away seats from private unaided institutions and hence the Parliament introduced the 93rd amendment to obtain this power.
  • Mohan Parasaran next argued that minorities enjoy a special constitutional privilege vide Article 30 and hence have been excluded. Since minorities are especially protected, this exclusion does not violate the equality principle of Art14.

Opinion of the Bench:

  • The bench reviewed the “Statement of Objects and Reasons” of the bill for the 93rd amendment and concluded that the intention of the Government was to enable equal opportunity to socially and economically disadvantages classes by way of reserving these seats. It opined that in spite of the provisions of Art15, over the years, many classes have had opportunities denied in educational institutions. Therefore, it felt, that the amendment actually “amplifies” the provisions of Art15. It considered the amendment as “an enabling provision to make equality of opportunity promised in the Preamble in the Constitution a reality.”
  • It then opined on whether Art15(5) violates Art19(g). It quoted TMA Pai and stated that running educational institutions is per-se a charitable activity. It further quoted TMA Pai and said that though Art19(g) does grant the right to admit students of choice into an institution, “this right and autonomy will not be affected if a small percentage of students belonging to weaker and backward sections of the society were granted freeships or scholarships, if not granted by the Government”. It felt such reservations were the actual charitable element of running educational institutions.
  • The bench too felt that Parliament overcame the “handicap” introduced by P A Inamdar in concluding that there was no provision to reserve seats in private unaided institutions by bringing in the 93rd amendment.
  • The bench opined, taking support from TMA Pai and P A Inamdar, that all provisions of Art19 can be subjected to reasonable restrictions but reserving seats was beyond the permitted reasonable restrictions. Hence Parliament was right in adding Art15(5) which brought seat reservations under the “reasonable restrictions” umbrella.
  • The bench then looked at whether Art15(5) satisfied the “width test”. It said that Art15(5) can be used ONLY to make laws that are applicable to socially and economically backward classes, and SCs/STs. A law made for any other class cannot take shelter under Art15(5). Further, any law made regarding any aspect other than admissions to educational institutions can also NOT take refuge under this amendment. Therefore, the bench concluded that the amendment passes the width test.
  • The bench then reviewed the contention of R F Nariman that Art15(5) treats aided and unaided institutions alike. However, it said that any enabling law, as long as the State compensates for the seats taken away as part of reservation, is fine. Although any law will be subjected to the test of Article 14, the amendment by itself does not state that it will not comply with the requirements of equality. Hence the objection was over-ruled.
  • Next, the bench dealt with the contention of Anil Divan that preferential treatment of minorities was inappropriate. It relied upon the judgement in Ashoka Kumar Thakur v. Union of India and said minorities enjoy special privileges as a protected class due to Art30 and hence the 93rd amendment does not violate Art14.
  • The bench then opined that such preferential treatment of minorities actually enhances the secular credentials of the nation, and does not harm it !!
  • The bench then dismissed the contention of R F Nariman that the amendment prevents institutions from reaching their goals of excellence. It felt that the integration of disadvantaged classes into the mainstream overrides any such concerns.

With all these explanations, the Supreme Court upheld the validity of the 93rd amendment. The exact words in the judgement were as follows.

“29. We accordingly hold that none of the rights under Articles 14, 19(1)(g) and 21 of the Constitution have been abrogated by clause (5) of Article 15 of the Constitution and the view taken by Bhandari, J. in Ashoka Kumar Thakur v. Union of India (supra) that the imposition of reservation on unaided institutions by the Ninety-third Amendment has abrogated Article 19(1) (g), a basic feature of the Constitution is not correct. Instead, we hold that the (Ninety-third Amendment) Act, 2005 of the Constitution inserting clause (5) of Article 15 of the Constitution is valid”

Thus, the 93rd amendment of the Indian Constitution came to stay.

NGT: Principles of ‘Unnatural’ Justice?

In India, there are many tribunals established over the past few decades with the aim of delivering speedy and efficient justice over disputes, that can otherwise take years to get addressed.

The Central Administrative Tribunal (CAT), Income Tax Appellate Tribunal (ITAT), Customs, Excise and Service Tax Appellate Tribunal (CESTAT), the Armed Forces Tribunal and the National Green Tribunal (NGT) are some examples of Tribunals in India.

One of the common features found in the Acts governing each of the Tribunals is the exemption to them from the CPC, or the Code of Civil Procedure. The Tribunals are bound by “Principles of Natural Justice” in hearing and dispensing matters.

When it comes to the National Green Tribunal, Parliament has gone a step further and exempted it from even the Indian Evidence Act. Therefore, the basis on which NGT will operate is purely on “Principles of Natural Justice”.

Here is the relevant portion of the NGT Act, exempting it from well established laws.

“19. (1) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice.”

“(3) The Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872.”

Reading some literature available on the concept of, we gather that there are some fundamental principles when it comes to Natural Justice.

Nemo Judex in Causa Sua

  • This essentially means no one can be a Judge in one’s own cause, or in a cause where one has a personal interest.
  • Rule against bias is what fundamentally this principle translates into.
  • There are many forms of bias that can manifest in such scenarios. For e.g. Personal bias, Pecuniary bias and also *subject matter* bias.
  • Subject matter bias means the person who is in a position to deliver a decision has an expertise in the field to which the dispute corresponds to, and therefore his own understanding and beliefs can color his judgement.

Now, in the NGT, the composition of the Tribunal is as below

  • A chairperson – must be a retired Supreme Court Judge
  • Up to 20 Judicial members – who can be retired Supreme Court or High Court Judges
  • Up to 20 “Expert members“. The requirements to qualify as an expert member are
    • has a degree in Master of Science (in physical sciences or life sciences) with a Doctorate degree or Master of Engineering or Master of Technology and has an experience of fifteen years in the relevant field including five years practical experience in the field of environment and forests (including pollution control, hazardous substance management, environment impact assessment, climate change management and biological diversity management and forest conservation) in a reputed national level institution; or
    • has administrative experience of fifteen years including experience of five years in dealing with environmental matters in the Central or a State Government or in a reputed National or State level institution.

To simplify, the “Expert member” is a “Subject Matter Expert” on Environmental issues. As we have seen above, a Subject-Matter-Expert sitting to decide on a matter goes against the very foundational principle on which the concept of natural justice is built.

The NGT Act also specifies, per Section 4(4)(c), that in any sub-group formed to hear an application or an appeal, the number of expert members in a bench will always be equal to the number of Judicial members in the bench.

“Provided that the number of Expert Members shall, in hearing an application or appeal, be equal to the number of Judicial Members hearing such application or appeal”

This essentially means that if the subject matter experts concur, a decision can never be given against what they believe in. Also, it will then take only one Judicial member to concur with them for the overall decision to be based on their line of judgement. This is because the NGT Act says the following with regard to decision making

21. Decision to be taken by majority.—-The decision of the Tribunal by majority of Members shall be binding:

Therefore, it is quite clear that “Subject Matter Bias” can clearly decide judgements in NGT, and it goes orthogonal to the Principles of Natural Justice, based on which it is supposed to deliver justice!!

Let us now come to another fundamental rule that governs Principles of Natural Justice

The Evidence Rule

  • Any decision which is supposed to be based on natural justice should provide for submission of logical evidence, and rebuttal of opposing evidence.
  • The defendant, and the applicant/appellant have the right to present their case and evidences.

However, the NGT Act, in spite of the presence of the mature Indian Evidence Act, does away with its applicability, and leaves the whole evidence procedure in the hands of the Committee members. In other words, the entire evidence process is left to the discretion of the Tribunal members.

Again, a violation of one of the fundamental principles of Natural Justice.

In conclusion, I am reminded of what Jean Jacques Rousseau says in his seminal work – “The Social Contract“, on natural-justice and the need for laws.

Humanly speaking, the laws of natural justice, lacking any natural sanction, are unavailing among men. In fact, such laws merely benefit the wicked and injure the just, since the just respect them, while the others do not do so in return. So there must be covenants and positive laws to unite rights with duties and to direct justice to its object”

Ban against Cow-slaughter: Need for a Constitutional Mandate

There has been a lot of anger and outrage at the recent killing of a cattle rearer in Alwar. Such private violence is totally unacceptable and without a shadow of doubt, the culprits must be given the harshest possible punishment for such a ghastly murder.

In this post, I am not going to delve into the issue of cow vigilante groups, and their violent actions. The #Core position on that is very clear – no room in a democracy for private violence. However, the focus of this post is on the Constitutional and Legal status of cow slaughter in India.

As it stands today, there is just a Directive Principle in our Constitution, vide Article 48, which asks the State to move towards prevention of slaughter of cattle.

Article 48 says the following.

“Organisation of agriculture and animal husbandry The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle”

As one can see, it only advises the Government to “take steps” towards prohibition of cow slaughter.

It is left to the various state governments to frame laws regarding cow slaughter. A majority of the states have banned cow slaughter while some like West Bengal and the North Eastern states allow it, under certain terms and conditions.

The issue of prohibition of cow slaughter is an important one for Hindus. In spite of all the intellectual exercises undertaken by secular liberals, it remains an undisputed fact that cows hold a special place in the Hindu scheme of things. It is a divine being, revered by many tens of crores of Hindus. Go-pooja or the worship of cows is an integral part of Hindu religion.

The demand from Team #Core on this issue, has been aptly surmised by RealityCheckIndia in this post. I reproduce the relevant portion here.

Cow slaughter : Need to have  a better law that openly says that cows get protection due to their special position in Hindu religion. The laws also have to be deeper and more well thought out. An example might be for outlaw and enforce in letter the killing of male calves. Today the laws are worded as if the target is the butcher, consumer, and not the seller and the calf-killer. Can also institute a permanent amnesty regime by micro-chipping the herds. Today, if Congress comes back in MH the herds who are immune from slaughter today can be picked up.  The costs of maintaining cattle must also be borne as far as possible by Hindus via tax deductions and special assessments on temples.”

The key point is that the ambiguity regarding the State’s position with respect to cow slaughter must be removed.

  • Cows hold an exalted position in Hindu religion and culture.
  • Ban of cow slaughter does not deprive any other community of any Fundamental Right.
  • Hence Cow Slaughter must be prohibited in the Constitution itself.

When we look closely at the framing of Article 48 of the Constitution, we realize that the makers of the Constitution also expressed their intent along the above lines. Even more surprisingly, the members of the drafting committee who were from the Muslim community were vocal in demanding that there be a proper law banning cow slaughter enshrined in the Constitution.

In its original form, Article 38A of the Draft Constitution looked as below.

“The State shall endeavour to organize agriculture and animal husbandry on modern and scientific lines and shall in particular take steps for preserving and improving the breeds of cattle and prohibit the slaughter of cow and other useful cattle, specially milch and draught cattle and their young stock”

This Article was in fact not present in the initial draft, and was introduced by Sri Pandit Thakur Dass Bhargava. A majority of the members, during the subsequent course of debate, support the insertion of this Article, and hence it came be part of the Constitution as Article 48.

During his speech when introducing the amendment Sri Bhargava gave multiple reasons for this Article, including religious and economic ones. His actual intent was to see cow slaughter ban as being part of Fundamental Rights! Some excerpts below

“To my mind it would have been much better if this could have been incorporated in the Fundamental Rights,but some of my Assembly friends differed and it is the desire of Dr. Ambedkar that this matter, instead of being included in Fundamental Rights should be incorporated in the Directive Principles.”

….

Therefore, I want to submit before you that the slaughter of cattle should be banned here Ours is an agricultural country and the cow is `Kam-Dhenu’ to us – fulfiller of all our wants. From both points of view, of agriculture and food, protection of the cow becomes necessary. Our ancient sages and Rishis, realising her importance, regarded her as very sacred. here, Lord Krishna was born, who served cows so devotedly that to this day, in affection he is known as “Makhan Chor”. I would not relate to you the story of Dalip, how that Raja staked his own life for his cow. But I would like to tell you that even during the Muslim rule, Babar, Humayun, Akbar, Jahangir and even in the reign of Aurangzeb, cowslaughter was not practised in India; not because Muslims regarded it to be bad but because, from the economic point of view, it was unprofitable.”

Seth Govind Das, who spoke during the debate was also vociferously supportive

AsPandit Thakur Das told you, I had submitted this earlier to be included in Fundamental Rights but I regret that it could not be so included. The reason given is that Fundamental Rights deal only with human beings and not animals.”

“I consider myself a religious minded person, and have no respect for those people of the present day society whose attitude towards religion and religious minded people is one of contempt. It is my firm belief that Dharma had never been uprooted from the world and nor can it be uprooted.”

Prof Shiban Lal Saxena had this to say

“Sir, I had given notice of an amendment in which I desired that cow slaughter should be banned completely. But after the agreement arrived at about Pt. Thakur Dass Bhargava’s amendment, I waive my right to move my amendment.”

Dr Raghu Vira, Sri R V Dhulekar and others also strongly supported a full ban.

MR Z H Lari, who was a Muslim, and a representative of United Provinces, made some very interesting comments during the debate. It is perhaps reflective of the Muslim mindset on this issue.

“We are not here to obstruct the attitude that the majority community is going to adopt. But let there not linger an idea in the mind of the Muslim public that they can do one thing, though in fact they are not expected to do that.”

….

“Therefore, if the House is of the opinion that slaughter of cows should be prohibited, let it be prohibited in clear, definite and unambiguous words. I do not want that there should be a show that you could have this thing although the intention may be otherwise. My own submission to this House is that it is better to come forward and incorporate a clause in Fundamental Rights that cow slaughter is henceforth prohibited, rather than it being left vague in the Directive Principles”

Syed Muhammad Sa’adulla, another prominent Muslim representative from Assam made similar comments.

“Some who want to have a section in our Constitution that cow killing should be stopped for all time probably base it on the religious front. I have every sympathy and appreciation for their feelings; for, I am student of comparative religions. I know that the vast majority of the Hindu nation revere the cow as their goddess and therefore they cannot brook the idea of seeing it slaughtered. I am a Muslim as everyone knows. In my religious book, the Holy Qoran, there is an injunction to the Muslims saying –

“La Ikraba fid Din”,

or, there ought to be no compulsion in the name of religion.I therefore do not like to use my veto when my Hindu brethren want to place this matter in our Constitution from the religious point of view”

“I mean the Constituent Assembly if they come out in the open and say directly:”This is part of our religion. The cow should be protected from slaughter and therefore we want its provision either in the Fundamental Rights or in the Directive Principles

At the end of the debate, Dr B R Ambedkar accepted the amendment and the House voted this amendment to be one of the Directive Principles.

Over the past 70 years, we have witnessed the confusion that has resulted due to the lack of clear direction from our Constitution with regard to this sensitive issue.

It is time, as part of the #Core agenda, to revisit this, and prohibit cow slaughter as a Constitutional Law rather than leaving it as a Directive Principle which cannot be mandated (as clarified by the Supreme Court in Akhil Bharat Gosewa Sangh vs State of A.P 2006)

Note: It is left to the discretion of the State Laws as it stands today. In that sense, the Constitution does not mandate cow slaughter prohibition.

No doubt there will be economic effects (I wouldn’t term it *costs*) of such a move. But I am sure the State has in its crafts various devices to overcome any potential adverse impacts. On the other hand, the positive impact it will have on the Hindu community in terms of re-assuring their religious, spiritual and cultural beliefs will be immeasurable.