of minorities is the hallmark of a civilisation. Lord Acton added another
dimension to this when he said: “The most certain test by which we judge
whether a country is really free is the amount of security enjoyed by
minorities.” The minorities in general, and Muslims in particular, accepted the
pledge of Sardar Vallabhbhai Patel that “our mission is to satisfy every
interest and safeguard the interests of all the minorities to their
satisfaction”. Accordingly, special safeguards were guaranteed to the
minorities and incorporated under Article 30 with a view to instil in them a
sense of confidence and security. However, due to recent developments in Delhi
and elsewhere, this confidence stands eroded even though, in the Kesavananda
Bharati case (1973), minority rights were held to be the part of basic
structure of the Constitution.
Children at a madrasa in Agartala in
In the last
one year, a new trend has emerged in the Supreme Court. Smaller benches now do
not hesitate to overrule larger benches’ decisions. Increasingly, judicial
discipline is losing its charm. In the latest judgment on minority rights, a
two-judge bench of Justice U.U. Lalit and Justice Arun Mishra upheld the West
Bengal Board of Madrasah Education Act, 1994, and the West Bengal Madrasah
Service Commission Act, 2008, both of which take away the autonomy of madrasas
in the State. The appointment of teachers in these theological institutions
shall now be made by a board nominated by the government.
under Article 30
What is the
importance of minority rights? Why is the judgment per incuriam, i.e. contrary
Section 10 of the West Bengal Madrasah Service Commission Act, 2008, 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and affiliation of such schools can be withdrawn.
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.
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.
the Constitution in their wisdom did not include any restrictions under Article
30 (unlike in the case of other fundamental rights). Hence, the Article 30
right is absolute though minority institutions are very much subject to health,
sanitary and municipal regulations.
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 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.
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 organisation’s minority character and it makes the minority institution an
effective vehicle of minority education.
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 today 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
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), appointment of a principal was held to be a component of a minority
group’s right to administer the institution.
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 day-to-day affairs of the institutions, for example, in
appointment of teaching and non-teaching staff and administrative control.
However, minimum qualifications, experience and other conditions may be fixed
by the government.
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
institution, the state is not entitled to frame rules or regulations compelling
the management to surrender its right to administration”.
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.
is an expert on constitutional law. Views are personal
Headline: An SC verdict violative of
Source: The Hindu, India