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Islam and Politics (20 Mar 2020 NewAgeIslam.Com)

An SC Verdict Violative Of Minority Rights: Protection of Minorities Is the Hallmark of a Civilisation

By Faizan Mustafa

March 19, 2020

Protection 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 2018. 


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.

Rights under Article 30

What is the importance of minority rights? Why is the judgment per incuriam, i.e. contrary to law?

As per 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 Further, government recognition and affiliation of such schools can be withdrawn.

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.

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, the 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 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.

The Dual Test Criterion

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 organisation’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 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 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), 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 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.

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 institution, the state is not entitled to frame rules or regulations compelling the management to surrender its right to 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.

Faizan Mustafa is an expert on constitutional law. Views are personal

Original Headline:  An SC verdict violative of minority rights

Source: The Hindu, India

URL: https://www.newageislam.com/islam-and-politics/faizan-mustafa/an-sc-verdict-violative-of-minority-rights--protection-of-minorities-is-the-hallmark-of-a-civilisation/d/121357


  • Hats Off has no qualms about comparing religious evangelism with Goebbels' or RSS's hate propaganda!

    By Ghulam Mohiyuddin - 3/31/2020 11:44:03 PM

  • Ayina,  I have never expressed hate either for Hindus or Christians or Ahmediyas.  I have used harsh words for Hindutvawadis, Islamists and those who persecute Ahmediyas. Compare that with your posts which are full of hate and vilification for  Muslims. In fact you come to this forum for the sole purpose of venting your venom. Such hatefulness can hurt only you. It eats you from inside. In this forum the followers of the Prophet do not express hate, only the followers of the RSS are full of hate.

    By Ghulam Mohiyuddin - 3/31/2020 11:23:25 PM

  • how else do you think religions spread? apart from other ways, propaganda is one of the moe most important ways in which to spread religion.

    and those who demand the right to preach and gain followers should not be complaining about propaganda.

    By hats off! - 3/31/2020 6:28:12 PM

  • Gulam Mohyuddin that what your paigamber did, when asked hard Question, he accused to all who was Questioning him and return accuse them as haters of Islam and him so game hate was started bye self declaring Paigmber and than who killed everybody and you did exodus of Kashmiri Hindus only one majority Muslim state which was not able to hold their Minoity in peace.

    So stop using your hate speech than calling me hater, your hate is deep from seventh century which your Paigmebr thought you and still, spreading hate and killing millions every year, tlaking of twenty century but acting like venomous of seventh century hate monger.

    By Aayina - 3/31/2020 1:12:56 PM

  • It is idiotic to blame Indian Muslims for the mess in Kashmir. Do these Sanghi hate pracharaks ever mention the fact that Muslims whose houses were burned and who were driven out of their communities in several states in recent decades are still not allowed to return to their homes? Should we blame all Hindus for that? Of course not! 
    The intensity of hatred and paranoia in Ayina's comments raise the question of mental health. It also shows that the brainwashing done by RSS's hate propaganda machine has been quite successful.

    By Ghulam Mohiyuddin - 3/31/2020 11:23:32 AM

  • So Gulam Mohyuddin Camden the Muslim of India first who spit venom toward Hindu and exodus of Kashmiri Pandits.
    Keep you hate culture with yourself, seventh century hate propated by your Paigmebr is killing non-Muslim and even Muslims what ISIS was doing.
    I will like she the names of Indian Muslims for, who use the words give 15 minutes we all kill all or we are 15% enough for other 85% can name them.
    Western Christian world has peace army to prevent atrocities on weaker section of world Muslim had never sicne your Paigmebr starred your religion until now otherwise Kashmiri Hindus exodus would never happen in 21st century which you are talking about.
    By Aayina - 3/31/2020 12:21:42 AM

  • Poor Ayina is  stuck in the idioms of  7th century Arabia because he/she cannot face what is going on in 21st century India. Just look at the hate and lies that he himself and other Sanghi hate-pracharaks in this forum are spewing whereas Muslim commentators do not speak ill of either Hindus or Hinduism. We do condemn the views and actions of the RSS and other Hindutvawadi outfits but then we do condemn the ill deeds and pronouncements of Islamists also. Do we ever hear Ayina condemning the hate emitted from the mouths of BJP ministers and legislators on a daily basis? No, because he/she is all wound up fighting what was said over a thousand years ago which no modern Indian Muslim repeats.
    By Ghulam Mohiyuddin - 3/30/2020 1:32:05 PM

  • Gulam Mohyuddin muslim actions never meets their words,
    Telling non-Muslims you hate Muslims or hate speech is tasting used by your Paigmebr that was the whole base of germicide of whole Arab freedom of religion to whom you called mushrikin.
    Same on you Gulam Mohsin, always try to show champion of humanity in your comment but did exactly what you Paigmebr  did by putting the foundation of hate allegation on mush ricin to genocide them.
    Meaning of genocide is when you finish the whole race or particular group nit Islamic germicide when riots happens both side is killed.
    You Muslims cannot be trusted your Paigmebr genocied of Banu Qureza, keep deceiving we Hindus will not be deceived.
    Keep running your fake agenda with sultan shahin,
    I want all of your Web Article writers and regular commenters to spit your venom by telling us we hate Islam but we will keep asking about the genicide of Mushrikin, Banu  Qureza and in Morden history exodus of Kashmiri Hindus, Kiloomg of Hindu in Pakistan, Bangldesh and Afghanistan.
    We will keep exposing your bad cop and good cop game.
    By Aayina - 3/29/2020 8:44:45 PM

  • Does anyone understand what Aayina is saying? Does Aayina understand anything that others are sayin? There seems to be more hate than sense in his/her comments.

    By Ghulam Mohiyuddin - 3/28/2020 11:07:22 PM

  • Gulam Mohyuddin is professional devicer and Lier on this website. He will talk of His Hindu hatred on the name of RSS, this whole website is hiding under the New Age Islam Name, which do not want to bring reform but want to bring new form of argument to legitimise the old norms.
    Mr Sultan Shahin is propagandist of Allowing new form twisted Argument to achieve old Muslim Norms and Haterd towards people who does not like or follow Islam.

    By Aayina - 3/28/2020 2:37:11 PM

  • Dr Anburaj,
    How come you are so ignorant? Islamic State's bombing of the Sikh Gurduwara has been universally condemned in the harshest terms by innumerable Muslim spokesmen and bloggers throughout the world. I wrote on Facebook that any Indian Muslim who has the slightest sympathy for the Islamic State should be ashamed of himself.
    By the way, what is a "Hindu-Sikh"?
    Anburaj, you lie again when you say that Indian Muslims are agitating to grant citizenship to Afghan terrorists.
    Why do you lie so much? How come you are so uninformed and so full of hate?

    By Ghulam Mohiyuddin - 3/26/2020 12:37:15 PM

  • In Afganistan a Guruthwara -Sikh temple was bombed and 25 Hindu -sikhs were killed on the sport.this Genocide /terrorism is inspired by Arabic imperialism . No article is published on that terrible incident. No Muslim leader has condemned it.No muslim leader has published programmes to protect Non-Muslims in Afgan. But Indian Muslims are agitating to grant citizenship to Afgan terrorists. What a shame.

    By Dr.A.Anburaj - 3/26/2020 1:40:42 AM

  • Dr. Anburaj,
    You lie when you say that I have admitted to anything except to identify you as an ignorant person. If you want to know who is spreading more hatred in India, just consider the fact that BJP ministers and legislators are coming out with communalist hate pronouncements on a daily basis whereas there has been only one hate speech from one stupid Muslim in the past 12 months. 

    By Ghulam Mohiyuddin - 3/24/2020 12:35:24 PM

  • Mr. Ghulam Mohiyuddin I thank you very much  for explicitly admitting that hatred of Non-Muslims,  are in the syllabus of Madarasas.But you have committed  the stupidity of dragging RSS into the subject. I have no evidence to charge RSS about anything. Hinduism openly admits that all religions are good. Hate Non-Muslims lessons  of Islam and hate Non-Hindu lessons of RSS  are  not observe and  reverse of a same coin. As a Muslim come forward to identitfy and eliminate such Monolithic lessons from the curriculum of Madarasa.Rss could not out shine  Swami Vivekananda and  Bhagavad -Gita.

    By Dr.A.Anburaj - 3/23/2020 10:42:48 PM

  • Dr. Anburaj,
    The question of hate being taught in madrasas, RSS shakhas and RSS shalas is of course important but it cannot be properly discussed by someone who has a  one-sided agenda.

    By Ghulam Mohiyuddin - 3/22/2020 1:17:29 PM

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