Mumbai: The Bombay High Court has admitted a batch of petitions challenging constitutional validity of certain provisions of an Act which require minority educational bodies to admit not less than 51 percent of the sanctioned strength of minority students in the state.
The petitions contended that the requirement under Section 6(2) of the Maharashtra Unaided Private Professional Educational Institution Act for an unaided minority educational institution to admit not less than 51 percent of the sanctioned intake of minority students from within the state was "illegal and unconstitutional".
"Even though, we have issued rule (admitted the petition), in each of these petitions, we do not deem it appropriate to grant any interim reliefs staying operation of Section 6(2) of the Act or staying Rules 3, 7 and 9 made under the Act," a bench of Chief Justice DH Waghela and Justice MS Sonak said in a recent order.
"At least prima facie, the petitioners have failed to demonstrate why or in what manner the impugned rules are ultra vires the Act or otherwise in contravention to the provisions contained in Articles 14, 19 and 30 of the Constitution. The grant of interim relief, at this stage, will possibly throw out of gear the elaborate admission process devised under the Rules," the bench observed.
The High Court admitted the petitions and placed them for final hearing on 16 June.
Counsel for petitioners, Rafiq Dada and Anil Anturkar, submitted that Section 6(2) of the Act stands vitiated on account of excessive delegation to the executive in the matters of framing policy, and it suffers from the vice of microclassification because it restricts admission to the minority students to 'within the state of Maharashtra' and in any case, and is violative of the rights guaranteed by Article 30 of the Constitution of India.
Article 30 of the Constitution gives right to the minorities, whether based on religion or language, to set up educational institutions of their choice anywhere in the country.
The lawyers submitted that the rules made under the Act, in particular rules 3,7 and 9, are ultra vires the provisions contained in Section 6(2) of the Act and even otherwise are violative of Articles 14, 19 and 30 of the Constitution.
The lawyers quoted apex court judgements to contend that the rights conferred upon minority institutions under Article 30 of the Constitution are absolute and the state, even by legislation, has no right or authority to impose any fetters upon the right of minority institutions to establish and administer educational institutions of their choice.
Dada argued that the Supreme Court in St Stephen's College case has held that the minority-aided educational institutions are entitled to prefer their community candidates to maintain the minority character of the institution and the state may regulate the intake in this category with due regard to the need of the community in the area, which the institution is intended to serve.
He also submitted that the ceiling of 51 percent referred in the said decision represents the maximum seats that a minority institution can retain for itself and not minimum, as provided in the impugned legislation.
Relying upon this dictum, Dada contended that the requirement under Section 6(2) of the Act, which provides an unaided minority educational institution to admit not less than 51 percent of the sanctioned intake of minority students from within the state, is illegal and unconstitutional.
The advocates for the petitioners further contended that as per the trends in last few years, the unaided minority educational institutions are not getting sufficient number of students belonging to minority communities.
As per the statistics placed on record by the petitioners, in 20132014, hardly four students from the minority community were admitted in GH Raisoni College of Engineering as against the intake capacity of 540.
In 2014-2015, only three students from minority community were admitted and in 2015-2016, nearly 26 students were admitted.
The court, however, was of the view that in any case, the circumstances that the petitioners' un-aided minority educational institutions are not getting sufficient number of minority students to fill in its intake capacity, is not prima facie a ground to fault the legislation itself or in any case, to seek a stay upon the implementation of the same.
Since the court admitted the petitions and placed them for final hearing on 16 June, the bench also issued notice to the Acting Advocate General Rohit Deo in each of these petitions.
On next occasion, the AG would have to appear in person and argue on behalf of the state.
Published Date: May 25, 2016 14:31 PM | Updated Date: May 25, 2016 14:31 PM