Minority Institutions and state control

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The Indian Constitution visualizes the social order “in which justice – socio, economic and political – shall inform all the institutions of the national life. It envisages a welfare state, which would not only serve the immediate needs of the society but would protect, promote and preserve enduring values. Often, conflicting and competing constitutional values arise which need constant reconciliation and readjustment.

On 6th January, 2020, the Supreme Court delivered a judgment regarding the constitutional validity of the West Bengal Madrasah Service Commission Act, 2008 observing that there is no unconditional and unequipped right of appointment for minority educational institutions. The judgment was delivered after the filing of appeals by few teachers who had got appointment under the said act.

The issue considered by the Apex Court bench was whether the provisions, Sections 8, 10, 11 and 12 of the Commission Act are ultra vires and whether these provisions transgress the right of minority institutions guaranteed under the Constitution of India?

Upholding the aforementioned Act’s constitutionality, the apex court observed that “the objection could be raised only if an unfavorable treatment has been meted out to an educational institution established and administered by the minorities, but if ensuring of excellence in educational institutions is the underlying principle behind a regulatory regime and the mechanism of selection of teachers is so designed to achieve excellence in institutions, the matter stands on a completely different footing”.

Article 30 of the Constitution of India

Article 30(1) gives the linguistic or religious minorities the following two rights:

  • the right to establish, and
  • the right to administer educational institutions of their choice.

The benefit of Art.30(1) extends only to linguistic or religious minorities and not to any other section of the Indian citizens. The expression ‘educational institutions’ means institutions that impart education, including education at all levels from the primary school level up to postgraduate level, as also professional education.

A linguistic minority for the purposes of this article is one which has a separate spoken language. It is not necessary that the language should also have a separate script. The Constitution uses the term minority without defining it. In re The Kerala Education Bill, the SC opined that a group would constitute a minority if it was less than 50% of the whole population or larger group, but the question loomed large which population would be taken into consideration, i.e, the population of a locality, a city or the whole country.

Eventually, it did decide this point definitely by stating that ‘minority’ is to be determined only in relation to particular legislation which is being challenged, and not in a general sense.

West Bengal Madrasah Service Commission Act of 2008

The West Bengal Service Commission Act, 1997 was enacted by the State government to provide for the constitution of Regional School Service Commission and a Central School Service Commission in the state under which, in Section 15, it was specifically enumerated that the provisions of the act would not apply to:

1)a school established and administered by a minority, whether based on religion and language,

2)a school under any trust, established and administered by a minority, whether based on religion or language.

But after the declaration of recognized madrasahs as minority educational institutions vide notification of 28.12.2007 of the Government of West Bengal, the state saw that since West Bengal School Service act of 1997 cannot recommend panel of teachers, there needs to be a new legislation to fill up the lacunae. With this came the West Bengal Madrasah Commission Act of 2008, some part of which was challenged in the court.

Section 10: The Managing Committee, the ad hoc Committee or the Administrator of the minority institution, as the case may be, shall be bound to appoint the candidate recommended by the Commission to the post of teacher in the Madrasah concerned as per vacancy report.

Now as per the rival parties’ submission it was totally against the spirit of Art. 30 of the Constitution.

Question of law in current case

The bone of contention between both the parties was whether the relevant provisions of the Act transgress upon the rights of a minority institution or the said provisions can be termed as tenable as ensuring the excellence of the institution without injuring the essence of the right of a minority institution.

Right from Re: The Kerala Education Bill Case the issue that has engaged the attention of this Court is about the content of rights of minority educational institutions and the extent and width of applicability of regulations and what can be said to be permissible regulations. If the cases in the first segment i.e. up to the decision in TMA Pai Foundation are considered, the following principles emerge:-

  • In Re: The Kerala Education Bill Case, Clause 11(2) in terms of which the State Public Services Commission was empowered to select candidates for appointment as teachers in Government and aided schools, was found to be a permissible regulation. It was observed that such provision, inter alia, was applicable to all educational institutions and was designed to give protection and security to the teachers engaged in rendering service to the nation.
  • The decision in Sidhajbhai Sabhai, however, observed, “Unlike Art.19, the fundamental freedom under clause (1) of Art.30, is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Art. 19 may be subjected to.” It went on to add “Regulation made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed.”
  • In Ahmedabad St. Xavier’s College case, according to Khanna, J., “The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be designed so as to make them an effective vehicle for imparting education.

Thus, going by the decision of eleven Judges of this Court in TMA Pai Foundation, so long as the principles laid down therein are satisfied, it is permissible if any regulations seek to ensure the standard of excellence of the institutions while preserving the right of the minorities to establish and administer their educational institutions.

Salient features of the judgment

The judgment accepted the test propounded by TMA Pai Foundation Case, that there needs to be a balance between two objectives which need to be considered in the context of two categories of institutions; one, the institutions imparting education which is directly aimed at or dealing with preservation and protection of the heritage, culture, script and special characteristics of a religious or a linguistic minority and two, the category of institutions which are imparting what is commonly known as secular education.

When it comes to the institutions in the former category, the teachers who believe in the religious ideology would alone be able to imbibe these values and ideas in the students admitted in such educational institutions. But, if the subjects in the curriculum are purely secular in character such as subjects like arithmetic, algebra, etc., the intent must be to impart education availing the best possible teachers.

If the right is taken to be absolute and unqualified, then certainly such choice must be recognized and accepted. But, if the right has not been accepted to be absolute and unqualified and the national interest must always permeate and apply, the excellence and merit must be the governing criteria.

Conclusion

There are very few areas have been the subject of more vexed constitutional litigation in India than the rights of the minority educational institutions and state’s control over it. After this judgment, the law is clear that the regime put in place by the State legislature thus ensures that the Commission comprising of experts in the field would screen the talent all across the State, will adopt a fair selection procedure and select the best available talent purely on merit basis.

However, even while nominating, the interest of the minority institution will also be given due weightage and taken care of. The statutory provisions thus seek to achieve ‘excellence’ in education and also seek to promote the interest of the minority institutions.

Author: Kunwar Bir Singh from University Institute Of Legal Studies, Panjab University, Chandigarh.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

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