Context: The top court upheld the validity and constitutionality of a 2008 West Bengal law that set up a Commission to select teachers in government-aided ‘Madrasa’ over there.
Mains: GS II-
- Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions, and basic structure.
- Structure, organization, and functioning of the Executive and the Judiciary Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.
- Following the passage of the West Bengal Madrasah Service Commission Act, 2008, the process of appointment of teachers in an aided ‘Madrasa’, recognized as a minority institution, was taken over and entrusted to the Commission.
- As per Section 10 of the Act, all appointments of teachers to the religious schools are to be recommended by the commission and the management committee shall be bound by such recommendations.
- Section 11 says that anyone appointed in contravention of this Act shall not be considered a teacher and such an appointment shall be invalid.
- Section 12 empowers the government to deny grants to the schools that refuse to make appointments in accordance with such recommendations.
- Further, government recognition and affiliation of such schools can be withdrawn.
- It was contended that the provisions of the Act transgressed upon the rights of a minority institution of choosing its own teachers.
- A single judge of Calcutta High Court in March 2014 struck down the above provisions as violative of Article 30 that guarantees religious and linguistic minorities the right to establish and administer educational institutions of their choice.
- In December 2015, a Division Bench of the High Court upheld that decision.
Acting on a batch of petitions, the top court set aside the Calcutta High Court’s single bench as well as division bench’s judgments declaring the provisions of the law as ultra vires.
Supreme Court verdict on WB Commission’s power to nominate Madrasa teachers
- The top court upheld validity and constitutionality of a 2008 West Bengal law that set up a Commission to select teachers in government-aided ‘Madrasa’ over there, saying appointing meritorious candidates would satisfy national interest as well as those of minority institutions.
- The Supreme Court said that if merit was not the sole and governing criteria for the selection of teachers in minority institutions, they may lag behind non-minority institutions rather than keep in step with them.
- “Any departure from the concept of merit and excellence would not make a minority educational institution an effective vehicle to achieve what has been contemplated in various decisions of this court,” a bench of Justices Arun Mishra and U U Lalit said.
- The top court relied upon the Constitution bench decision in the T M A Pai Foundation case (2002) and other judgements to hold that the provisions of the West Bengal Madrasah Service Commission Act, 2008, are not violative of the rights of the minority educational institutions on any count.
- The selection of the teachers and their nomination by the Commission constituted under the Act would satisfy the national interest as well as the interest of the minority educational institutions.
- The court said that the legislature has taken due care to protect the interest of a minority institution by ensuring that the best-qualified candidates would be nominated by the Commission.
What does the Constitution say about minority institutions?
Article 30 grants the following rights to minorities, whether religious or linguistic:
- All minorities shall have the right to establish and administer educational institutions of their choice.
- The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them.
- This provision was added by the 44th Amendment Act of 1978 to protect the right of minorities in this regard.
- The Act deleted the right to property as a Fundamental Right (Article 31).
- In granting aid, the State shall not discriminate against any educational institution managed by a minority.
The right under Article 30 also includes the right of a minority to impart education to its children in its own language.
Minority educational institutions are of three types:
- institutions that seek recognition as well as aid from the State;
- institutions that seek only recognition from the State and not aid; and
- institutions that neither seek recognition nor aid from the State.
The institutions of the first and second types are subject to the regulatory power of the state with regard to syllabus prescription, academic standards, discipline, sanitation, employment of teaching staff and so on. The institutions of the third type are free to administer their affairs but subject to the operation of general laws like contract law, labour law, industrial law, tax law, economic regulations, and so on.
Criticism of the verdict
- The verdict has invited criticism from experts who say that it is violative of minority rights.
- Interestingly, the latest judgment notes that in Chandana Das (2019), a three-judge bench gave the Sikh minority institutions of West Bengal the right to appoint teachers.
- In less than four months, a right given to Sikh minority institutions by the apex court has been denied to Muslim minority religious institutions.
- Framers of the Constitution in their wisdom did not include any restrictions under Article 30 (unlike in the case of other fundamental rights).
- Hence, Article 30 right is absolute though minority institutions are very much subject to health, sanitary and municipal regulations.
- The expression ‘administer’ in Article 30 has been interpreted by the larger benches of the court such as those of judges in Ahmedabad St. Xaviers College (1974) and 11 judges in T.M.A. Pai Foundation (2003).
- The apex court has been consistent in holding that the term includes the rights of minority institutions to select their governing bodies, teachers, and staff and exercise disciplinary control over them and a right to fix reasonable fees and admit students in a fair and transparent manner.
- In Rev. Sidharjbhai (1963), a six-judge bench of the Supreme Court observed that every government regulation in respect of a minority institution shall be valid only when it satisfies the dual test, i.e., it is regulative and not destructive of the organization’s minority character and it makes the minority institution an effective vehicle of minority education.
- Justice Lalit, who authored the latest judgment, did refer to the Kerala Education Bill case (1957) of the Supreme Court but he overlooked the fact that a seven-judge bench headed by Chief Justice S.R. Das had held that “the dominant word in Article 30 is ‘choice’ and the content of the right under that Article is as wide as the choice of a particular minority community will make it.”
- Every minority community can thus make a choice in respect of its relationship with the government, the courses taught and the day to day administration, including the right to select its teachers.
- The government, under reasonable restrictions, can certainly prescribe the minimum qualifications.
- Thus UGC regulations prescribing qualifications and experience are very much applicable.
- But the government cannot impose its own selection of teachers on the minority institutions.
- Justice Lalit himself noted several judgments on the right to choose teachers such as Rev. Father W. Proost (1969), where a five-judge bench had struck down Section 48-A of Bihar State Universities Act, 1960 that had provided that no appointment, dismissal or reduction in the rank of any teacher could be made by any governing body of a minority institution without the recommendation of University Service Commission.
- Similarly, in Very Rev. Mother Provincial (1969), the appointment of a principal was held to be a component of a minority group’s right to administer the institution.
- In Ahmedabad St. Xaviers (1974), Section 33A(1) (b) of Gujarat University Act, 1949 that required that a nominee of the affiliating university must be part of the selection committee of principal and teachers was also struck down.
- A nine-judge bench of the Supreme Court explicitly held that minority institutions have the right to choose their teachers. In T.M.A. Pai (2003), an 11-judge bench reiterated that the management of minority institutions should have freedom in the day-to-day affairs of the institutions,
for example, in the appointment of teaching and non-teaching staff and administrative control.
- However, minimum qualifications, experience, and other conditions may be fixed by the government.
- Justice Lalit overlooked the striking down of provisions where State governments had tried to take over or interfere with the selection of teachers and based his judgment on the broad and general observations in the earlier verdicts where the court had said government regulations are permissible.
- It would have been much better if the learned judge had relied on Bihar State Madrasa Education Board (1990), which he did cite, and where the court had observed that “under the guise of regulating educational standards to secure efficiency in the institution, the state is not entitled to frame rules or regulations compelling the management to surrender its right to the administration”.
- The Chief Justice of India has now referred this judgment to a larger bench and one hopes that the apex court will restore the confidence of the minorities.