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The concepts of Socialism, Secularism, Sovereignty, Fraternity, Equality, and welfare state form the substratum of the Indian Constitution. The framers of the Constitution meticulously incorporated good features of constitutions operating in different countries of the world. They introduced various new provisions suiting to the needs of our country- INDIA. For instance, the cultural and educational rights conferred upon the minorities under Article 30 of the Constitution.
Recently on January 6, 2020, the Apex Court upheld the constitutionality of the West Bengal Madrasah Service Commission Act 2008, observing that the right of minority institutions to appoint teachers is not unfettered and is subject to regulations made by the state. The court held that regulation framed in the national interest must necessarily apply to all institutions regardless of whether they are run by majority or minority institutions.
An objection can be raised if an unfavourable treatment is meted out to an educational institution established and administered by a minority. 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 may stand on a completely different footing.
What are minority institutions?
According to section 2(g) of the National Commission for Minority Education Institution Act, a minority institution means a college or institution (other than a university) established or maintained by a person or group of person from amongst the minority. Here, a minority is to be determined only by reference to the demography of the state and not by taking into consideration the population of the country as a whole as held by the Honourable court in the case of TMA Pai Foundation v. State of Karnataka[i] Article 30 provides two rights i.e., to establish and to administer educational institutions to the Linguistic or religious minorities.
The expression ‘establish and administer’ are to be read conjunctively. It means that to claim the benefit of Article 30(1), the community must show that it is a linguistic or religious minority and that the institution was established by it to claim the right to administer it.
The Constitution provides for the cultural and educational rights of the minorities under Article 29 and 30.
Article 29 is general protection to the minorities to conserve their language etc. It protects the rights only of the Indian citizens. Article 30 deals explicitly with the rights of the minorities to establish institutions of their choice.
The spirit behind these provisions is to preserve the integrity and unity of the country so that the minority community does not feel isolated and separated. Minorities can best conserve their culture, script, language through educational institutions, for it is through education that language and culture of a minority can be implanted in the impressionable minds of the children of the community.
Article 30 gives choice to the minorities to establish and administer an educational institution of their choice which means that it is upon them to choose they want to establish an educational institution which will serve their religion, language and culture and also the purpose of giving a thorough good education to their children so that they become eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institution imparting general secular education.
Landmark judgments regarding minority institutions
Time and again, the Supreme Court has defined the scope of words ‘establishment’ and ‘administration’ used in Article 30 of the Constitution. The scope of ‘regulation’ by the state has been discussed in a plethora of cases.
In Re Kerala Education Bill,[ii]the Hon’ble court held that-
“Right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. Such a right is subject to regulations which do not affect the substance of the guaranteed rights but ensure the excellence of the institution and its proper functioning in matters of education are permissible. Regulation could be made to maintain educational character and standard of the institution.”
In the case of Ahmedabad St. Xaviers College,[iii]it was held that-
“University can prescribe qualifications for the academic staff, the actual selection of teachers must remain in the hands of the administration of the institution, and any dilution of this right of the management infringes Article 30(1).”
Similarly, the bench of eleven Judges in the case of TMA Pai Foundation v. State of Karnataka,[iv] held that –
“While the State or any other statutory authority has no right to interfere with the internal administration or management of the minority institution, the State can certainly take regulatory measures to promote efficiency and excellence of educational standards and issue guidelines to ensure the security of services of the teachers or other employees of the institution.”
Implications of the current judgment
The decision of the Honourable Supreme Court in the present case is a remarkable one. In Pramati Educational and Cultural Trust & Others v. Union of India,[v] it was held that the Right of Children to Free and Compulsory Education Act, 2009 is not applicable to minority institutions. Whereas, present judgment has reversed the position as quality education has been given primacy to any other right.
The Honourable Supreme Court has taken a step forward and given the right to the State to regulate the appointments of the teachers to ensure the quality of education in the minority schools. At the same time, no right of the minority community will be infringed by striking a balance between the objectives for which such an institution was established. The dual goals are (1) Preservation of Minorities and (2) Excellence in Education.
For this purpose, the court divided education into two parts i.e., Secular education and education “directly aimed at or dealing with the preservation and protection of the heritage, culture, and script of the minorities. In the former situation where secular education is to be provided, for instance Mathematics, Sciences, etc., the teachers must be selected on the basis of merit and experience to maintain the level of education in these institutes so that children are prepared to face tough challenges ahead. In case of education relating to preservation & protection of culture, maximum latitude should be given to the management to appoint teachers who themselves believe in the ideology of the community.
Some prominent minority institutions
For instance, St. Stephens College and Jesus and Mary College in Delhi are minority educational institutions that were established by the Christian Community and are till now being administered by the same community. The college has a majority of reservations for the Christian community, but students from other communities are offered admission based on their merit and to such an extent as would not annihilate its minority status as laid down in the case of TMA Pai Foundation. Similarly, Shri Guru Teg Bahadur Khalsa College, Mata Sundri College for Women, and Sri Guru Nanak Dev Khalsa College affiliated to the University of Delhi are Sikh minority educational institutions founded and maintained by Gurudwara Prabhandak Committee.
Although this judgment might be seen as a deep encroachment upon the rights of the minorities, but if a balance is created as provided by the court, this remarkable move would be a great success. At one place, we give high regard to the quality education and set high standards for the minority institutions but, at the same time, do not leave the minorities behind. The court has duly protected their interests in the current judgment
Author: Mehak Mehra from University Institute of Legal Studies, Panjab University, Chandigarh.
Editor: Tamanna Gupta from RGNUL, Patiala
[i] AIR 2003 SC.355
[ii] AIR 1958 SC
[iii] AIR 1974 SC 1389
[iv] AIR 2003 SC 355
[v] (2014) 8 SCC 1