The petitioners have sought to challenge the constitutional validity of the National Commission for Minorities Act, 19921 on the ground that Parliament lacks legislative competence and that the law infringes the fundamental rights enshrined in Part - III of the Constitution. The petitioners also seek to challenge the legality of the notification issued by the Union Government in exercise of powers conferred by clause (c) of Section 2 of the Act, notifying certain communities "as minority communities" for the purposes of the legislation.
The Act was preceded by the setting up of a Minorities Commission in January 1978 for evaluating the safeguards provided in the Constitution for the protection of minorities and to make recommendations for ensuring the implementation of safeguards and legislation. Parliament gave statutory status to the Minorities Commission by the enactment of the legislation in question. The statement of objects and reasons accompanying the introduction of the Bill envisages the following functions for the National Commission for the Minorities:-
"The main task of 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 or State Governments, 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. It may also suggest appropriate measures in respect of any minority to be undertaken by the Central Government or State Governments.
The Bill seeks to achieve the said objects."
Section 2(c) defines the expression 'minority' for the purposes of the Act to mean a community notified as such by the Central Government. At the outset, it would be necessary to notice that the designation of a community as a minority Community is only for the purposes envisaged in the Act. Section 3 provides for the constitution of a National Commission for Minorities2. Sections 4 to 8 govern the term of office and conditions of service of the Chairperson and Members, officers and employees, salaries and procedure. Section 9 provides for the functions of the Commission in the following terms:-
"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 or 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 socioeconomic 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."
Under sub-section (2) of Section 9, the Central Government has to cause the recommendations of the Commission referred to in clause (c) of sub-section (1) to be laid before each House of Parliament. Where a recommendation is one which relates to a State Government, the Commission has to forward the recommendation to the State Government. In either case, the Central or the State Government, as the case may be, has to present a memorandum explaining the action taken or proposed to be taken on the recommendations and the reasons for non-acceptance of any of the recommendations, if any. Chapter IV of the Act deals with finance, accounts and audit, while Chapter V makes miscellaneous provisions.
The submissions which have been urged on behalf of the petitioners are that (i) it is for the minorities to establish and administer educational institutions of their choice under Article 30 and not for the Commission to evaluate the progress of the development of minorities as envisaged in Section 9(1)(a) and hence there is an infringement of the provisions of Article 30; (ii) there is no safeguard in the Constitution in respect of the rights of minorities, save and except for Article 30 and hence there is no reason or justification to include provisions in clauses (a), (b) and (f) of sub-section (1) of Section 9 to enable the Commission to evaluate the progress in the development of minorities, monitor the working of safeguards provided in the Constitution and in the legislation and to conduct studies into problems arising out of discrimination against minorities; (iii) the provisions of the Act are discriminatory and violate Article 14 by conferring a special status upon minorities; (iv) under Article 15(4), special provisions are contemplated only in regard to the socially and educationally backward classes of citizens, whereas the provisions of Section 9 constitute a discrimination on the ground of religion without reference to social or educational backwardness; and (v) the legislature cannot determine which communities are in a minority.
On the other hand, a preliminary objection has been raised to the maintainability of the writ petition on the ground that the constitutional validity of the provisions of the Act was challenged before a Division Bench of this Court in Renaissance Forum, Allahabad Vs. Union of India and another3 and was upheld by a judgment dated 28 May 1999. Moreover, it has been submitted that the petition is not a bona fide recourse to the jurisdiction in public interest and, in any event, the challenge to the notifications of the Central Government cannot be entertained in the absence of even a representative of the body who would be directly affected by a challenge, if were to be accepted. The Division Bench has held that Parliament has the legislative competence to enact the law, and the provisions of the Act are not vague or violative of the provisions contained in Part III of the Constitution. But it has been urged on behalf of the petitioners that the judgment of the Division Bench has rested on a decision of the Supreme Court in Misbah Alam Shaikh Vs. State of Maharashtra and another4 and that since, according to the petitioners, the decision of the Supreme Court rested on a concession, the judgment of the Division Bench of this Court cannot be treated as a precedent that would be binding on this Court.
We will shortly examine the legitimacy of the contentions.
Section 9 of the Act confers upon the Commission which was constituted under Section 3, certain functions as stipulated in clauses (a) to (i) of sub-section (1). The Commission has a recommendatory position because it is evident from sub-sections (2) and (3) that the recommendations of the Commission have to be placed before each House of Parliament or, as the case may be, the State Legislature where the recommendations relate to a State. The recommendations are what they purport to be, namely, recommendations and do not bind the Central or the State Governments because sub-sections (2) and (3) contemplate that a memorandum explaining the action taken, proposed to be taken or the reasons for non-acceptance of the recommendations has to be placed before the legislature. Though, the Commission has been constituted as a statutory body, it is evident that its position is that of a recommendatory authority. The role of the Commission can be deduced from the diverse sub clauses of sub-section (1) of Section 9. The Commission is envisaged to evaluate the progress of development of the minorities under the Union and the States. The emphasis in clause (a) is on development. In clause (b), the Commission has to monitor the working of the safeguards which are provided by the Constitution or in legislation. These safeguards are in the matter of protecting such rights as the Constitution confers or empowering provisions of legislation in the matter of providing socio economic guarantees. Clause (c) empowers the Commission to make recommendations for effective implementation of safeguards for the protection of the interest of minorities. In other words clauses (b) and (c) empower the Commission to ensure that the safeguards which have been provided to the minorities are duly observed and to secure the effective implementation of these safeguards by making suitable recommendations to the Government. Under clause (d) the Commission has been empowered to look into the specific complaints regarding deprivation of rights and safeguards and to take up such matters with the appropriate authorities. Under clause (e), the Commission can cause studies to be undertaken into problems arising out of discrimination against minorities. Clause (f) empowers the Commission to conduct studies, research and analysis on issues relating to socio economic and educational development of minorities. Clause (g) empowers the Commission to suggest appropriate measures in respect of any minority to be undertaken by the Union or States. Under clause (h) the Commission may make periodical or special reports to the Central Government in matters pertaining to minorities and the difficulties which are faced particularly by them. Other matters can be referred by the Central Government under clause (i).
These provisions make it abundantly clear that the object and purpose of the establishment of the Commission is to provide a safeguard that would instill a sense of confidence in the minorities and it is in that context that the Commission is empowered to enquire into issues relating to development, the protection of socio economic rights and educational development amongst the minorities. The Commission is a body which is intended to oversee the working out and implementation of actual safeguards which are enacted in law or in the Constitution and to take up issues relating to the deprivation of those rights which are conferred upon the minorities in duly enacted legislation. In other words, the Commission does not create any substantive rights of its own, since it is not a legislating body in the first place. The Commission is a statutory authority which has been entrusted with the function of acting as a body which would look into issues such as whether rights of a socio economic nature and other fundamental freedoms are being properly implemented as envisaged in the law. The Commission, in other words, cannot be regarded as being a body which is constituted as an institution in aid of or for the protection of a religion but is an institution which has been created by an Act of Parliament to ensure that minorities as defined in Section 2(c) are able to realize the rights to development and freedom which the Constitution and the law recognize.
From this perspective, it would be clear that the Act does not run into the prohibited area of discrimination only on the grounds of religion which is forbidden by Article 15(1) of the Constitution. Article 15 (1) mandates that State shall not discriminate against any citizens on grounds only of religion, race, caste, sex, place of birth or any of them. The Commission is not a body which oversees either religion or any issues of that nature. The Commission is essentially a recommendatory body which is intended to oversee whether the rights which are conferred by the Constitution and by the law in favour of the minority groups in the country are being duly implemented. The Commission is subservient to democratic governance based on the rule of law because every recommendation is subject, firstly to a decision by the Central Government or, as the case may be, the State Government, to accept or not to accept it and, thereupon, by the ultimate responsibility to Parliament and the State Legislature before whom the memorandum of any action taken, or proposed to be taken or in regard to the refusal to implement the recommendation has to be tabled.
The position of the Commission was explained in the judgment of the Supreme Court in Misbah Alam Shaikh (supra) in the following observations:-
"3... The object, thereby, is to integrate them in the national main stream in the united and integrated Bharat providing facilities and opportunities to improve their economic and social status and empowerment."
The issue in that case was whether the decision of the State Government to abolish a State Commission for Minorities was legal and valid. The Supreme Court held that the decision was not invalid nor could the decision be regarded as mala fide. It would be an improper reading of the judgment of the Supreme Court to hold that it proceeded on a concession. A reading of the judgment would indicate that the Supreme Court had observed that it was not in dispute that the State Commission which had been constituted by an earlier Government came to be abolished by a successor. This does not, in any manner, detract from the principle which has been laid down by the Supreme Court which is that the whole object and purpose of setting up the Commission for minorities was to integrate them into the national mainstream by providing facilities and opportunities that would improve the economic and social status of minorities and provide a sense of empowerment. The concession if, at all, was only that the Act does not require the State Government to constitute or reconstitute a Commission compulsorily. The provisions of the Act have also been construed in a subsequent decision of the Supreme Court in Bal Patil and another Vs. Union of India and others5. The Supreme Court held as follows:-
"14. The Commission set up under the Act has several functions to perform, which are provided in Section 9. The functions entrusted are for ensuring progress and development of minorities and protecting their religious, cultural and educational rights."
The Supreme Court has also observed that the recommendations of the Commission are in the nature of an advice and have no binding effect on the Central Government. Both the decisions in Misbah Alam Shaikh (supra) and in Bal Patil (supra) have construed the position of the Commission as a body entrusted with the function to ensure the progress and development of minorities. The Commission is, in other words, an instrument of assessing the development of minorities, by realizing the fundamental freedoms which are conferred by the Constitution.
We find no merit in the submission that the provisions of Section 9(1) (c) are in conflict with Article 30 of the Constitution. Article 30 confers upon religious and linguistic minorities, the right to establish and administer educational institutions of their choice. A minority for the purposes of Article 30, it is well settled, has to be determined in relation to the State in which an educational institution is sought to be established, as the decision of eleven learned Judges of the Supreme Court held in T.M.A. Pai Foundation Vs. State of Karnataka6 :-
"76. If, therefore, the State has to be regarded as the unit for determining 'linguistic minority' vis-a-vis Article 30, then with 'religious minority' being on the same footing, it is the State in relation to which the majority or minority status will have to be determined.
81... Language being the basis for the establishment of different States for the purposes of Article 30, a 'linguistic minority' will have to be determined in relation to the State in which the educational institution is sought to be established. The position with regard to the religious minority is similar, since both religious and linguistic minorities have been put on a par in Article 30."
The designation of a community as a minority under Section 2(c) is for the purposes of the Act. This is evident from the definition of the expression 'minority' in Section 2(c) of the Act, which clarifies that it is for the purposes of the Act. In other words, the mere designation of a community as a minority for the purposes of the Act, does not either restrict or expand upon the ambit of the constitutional guarantee which is conferred by Article 30 of the Constitution.
Much of the argument on behalf of the petitioners is based on the wisdom of the legislative policy underlying the conferment of power by Section 9(1) of the Act. It is well settled that the Court, in the exercise of the power of judicial review, is not concerned with the wisdom, efficacy or policy underlying a legislation but with whether the legislature, which has enacted the law, has the legislative competence to enact it and whether the legislation infringes a constitutional guarantee.
In our view, the legislation in question is clearly within the competence of Parliament. The head of legislative power is referable to Entry 97 of the Union List to the Seventh Schedule. For the reasons which we have already indicated, we have come to the conclusion that the legislation does not constitute a discrimination on grounds of religion. On the other hand, the functions of the Commission under Section 9(1) of the Act would indicate that the role of the Commission as a recommendatory body is to inquire into the realization of fundamental human freedoms that are conferred by the Constitution upon minorities and as such are recognized by law.
Finally, it would be appropriate for the Court to refer to the following observations in the judgment of the Supreme Court in Ahmedabad St. Xavier's College Society Vs. State of Gujarat7 which were referred to in the decision in TMA Pai Foundation (supra):-
"77... Their real effect was to bring about equality by ensuring the preservation of the minority institutions and by guaranteeing to the minorities autonomy in the matter of the administration of these institutions. The differential treatment for the minorities by giving them special rights is intended to bring about an equilibrium, so that the ideal of equality may not be reduced to a mere abstract idea but should become a living reality and result in true, genuine equality, an equality not merely in theory but also in fact."
For these reasons, we find no merit in the constitutional challenge to the provisions of the Act. Insofar as the notifications which have been issued under Section 2(c) are concerned, we are not inclined to inquire into the challenge in these proceedings. No representative body of the communities which would be directly affected by the reliefs which have been sought, are impleaded as parties to these proceedings. The Court must, above all, be governed by the fact that the present proceedings is a proceeding purportedly in the public interest. The Court must tread with care and circumspection and not adjudicate upon such aspects in the absence of a representative voice of communities which would directly be affected by the reliefs which have been claimed. We, however, leave it open to the petitioners, insofar as the notifications are concerned, to take recourse to the appropriate remedies as may be available in law, after impleading all the necessary parties.
For the aforesaid reasons, we decline to entertain the writ petition. The writ petition is, accordingly, dismissed. There shall be no order as to costs.
Order Date :- 25.7.2014 VMA (Dr. D.Y. Chandrachud, C.J.) (D.K. Upadhyaya, J.)