Recent ruling by two-judge bench removes autonomy from West Bengal madrasas
The protection of minorities is the mark of a civilization. Lord Acton added another dimension to this when he said: âThe most certain test by which we judge whether a country is truly free is the degree of security enjoyed by minorities. Minorities in general, and Muslims in particular, have accepted Sardar Vallabhbhai Patel’s commitment that “our mission is to satisfy all interests and safeguard the interests of all minorities to their satisfaction.” As a result, special guarantees are guaranteed to minorities and incorporated in article 30 with a view to instilling in them a sense of confidence and security. However, due to recent developments in Delhi and elsewhere, this confidence is being eroded even though in the Kesavananda Bharati (1973), minority rights were seen as part of the basic structure of the Constitution.
Over the past year, a new trend has emerged in the Supreme Court. The smaller benches no longer hesitate to override the decisions of the larger benches. Increasingly, judicial discipline is losing its charm. In the latest judgment on minority rights, a panel composed of two judges, Judge UU Lalit and Judge Arun Mishra, upheld the 1994 Law on the Board of Directors of West Bengal Madrasas and the 2008 Law on the West Bengal Madrasa Services Commission, both of which suppress the autonomy of madrasas in the state. The appointment of teachers to these theological institutions will henceforth be made by a council appointed by the government.
Rights under section 30
How important are the rights of minorities? Why the judgment by carelessness, that is to say contrary to the law?
In accordance with section 10 of the West Bengal Madrasah Services Commission Act 2008, all appointments of teachers in religious schools must be recommended by the commission and the management committee is bound by those recommendations. Article 11 says that any person appointed in violation of this law will not be considered a teacher and such appointment will be invalid. Section 12 empowers the government to deny grants to schools that refuse to make appointments in accordance with these recommendations. In addition, government recognition and affiliation of these schools may be withdrawn.
In March 2014, a single judge of the High Court of Calcutta invalidated the above provisions as being contrary to Article 30 which guarantees religious and linguistic minorities the right to establish and administer educational institutions in their choice. In December 2015, a division chamber of the High Court upheld this decision.
It is interesting to note that the last judgment notes that in Chandana Das (2019), a bench of three judges gave institutions of the Sikh minority in West Bengal the right to appoint teachers. In less than four months, a right granted to the institutions of the Sikh minority by the Supreme Court was denied to the religious institutions of the Muslim minority.
The drafters of the Constitution, in their wisdom, did not include any restrictions under Article 30 (unlike other fundamental rights). Therefore, the right of article 30 is absolute although the institutions of the minorities are very subject to sanitary, sanitary and municipal regulations.
The expression “administer” in Article 30 has been interpreted by the larger chambers of the court such as those of the judges in Ahmedabad St. Xaviers College (1974) and 11 judges in TMA Pai Foundation (2003). The Supreme Court has always held that the term includes the right of minority institutions to select their governing bodies, teachers and staff and exercise disciplinary control over them, as well as the right to set reasonable costs and admit students in a fair and transparent manner.
The double test criterion
In Rev. Sidharjbhai (1963), a bench of six Supreme Court judges observed that any government regulation concerning a minority institution is only valid when it satisfies the double test, i.e. that it is regulatory and non-destructive of the minority character of the organization and that it makes the minority institution an effective vehicle for minority education.
Justice Lalit, author of the last judgment, referred to the Kerala Education Bill (1957) of the Supreme Court, but he ignored the fact that a bench of seven judges led by Chief Justice SR Das had held that “the dominant word in Article 30 is ‘choice’ and the content of the law under this article is as broad as the choice of a particular minority community will make it. Each minority community can thus make a choice as to its relations with the government, the courses taught and the administration of today, including including the right to choose its teachers. The government, under reasonable restrictions, can certainly prescribe minimum qualifications. Thus, UGC regulations prescribing qualifications and experience are fully applicable. But the government cannot impose its own selection of teachers at minority institutions.
Judge Lalit himself noted several judgments on the right to choose teachers such as Reverend Father W. Proost (1969), where a bench of five judges annulled Article 48-A of the Bihar State Universities Act, 1960 which provided that no appointment, dismissal or reduction in the rank of a teacher could be made by a governing body of a minority establishment without the recommendation of the University Service Commission. Likewise, in Very Reverend Mother Provincial (1969), the appointment of a director was seen as a component of the right of a minority group to administer the institution.
In Ahmedabad St. Xaviers (1974), Section 33A (1) (b) of the Gujarat University Act, 1949 which required that a candidate from the affiliated university be part of the director and faculty selection committee was also rescinded. A bench of nine Supreme Court judges explicitly stated that minority institutions have the right to choose their teachers. In TMA Pai (2003), a panel of 11 judges reaffirmed 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 set by the government.
Justice Lalit ignored the quashing of provisions where state governments had attempted to take charge of or interfere with the selection of teachers and based his judgment on the broad and general observations of earlier verdicts where the court had stated that government regulations were allowed. It would have been much better if the learned judge had relied on Bihar State Madrasa Education Council (1990), which he cited, and where the court observed that âunder the pretext of regulating educational standards to ensure the effectiveness of the institution, the state does not have the right to make rules or regulations obliging the management to renounce its right to the administration â.
The Chief Justice of India has now returned this judgment to a wider bench and it is hoped that the Supreme Court will restore the confidence of minorities.
Faizan Mustafa is an expert in constitutional law. Views are personal