Context:

Supreme Court upheld the West Bengal Madrasah Service Commission Act, 2008. The court set aside a Calcutta High Court verdict which had held the legislation was unconstitutional

What is the legislation all about?

• As per the provision of the act, the appointment of teachers in these theological institutions (Madrassas) shall now be made by a board nominated by the government.
• 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• Further, government recognition and affiliation of such schools can be withdrawn, if government guidelines are not followed

Why were cases filed against this law?

• Several petitions were filed in the court challenging the validity of the law, contending that the government, which funds or provides aid to the minority institutions, can formulate guidelines for appointments of teachers but cannot itself appoint them

• Also, the act violates Article 30 which stated that all minorities shall have the right to establish and administer educational institutions of their choice.
• Additionally, the judgment by a three-judge bench in Chandana Das (2019) case gave the Sikh minority institutions of West Bengal the right to appoint teachers. 

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., 
  1. It is regulative and not destructive of the organisation’s minority character 
  2. It makes the minority institution an effective vehicle of minority education.

Other Judgements which upheld the Minority Institution’s right to appoint teachers & Staff

• Kerala Education Bill case (1957) 
• Rev. Father W. Proost (1969)
• Very Rev. Mother Provincial (1969)
• Ahmedabad St. Xaviers (1974)
• Bihar State Madrasa Education Board (1990), where the court observed “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”.

• 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.
• 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.

Importance of Minority Rights

• Protection of minorities is the hallmark of a civilisation. 
• Lord Acton said: “The most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities.
• 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. 
• Also, in the Kesavananda Bharati case (1973), minority rights were held to be the part of basic structure of the Constitution.
• Minority rights and special privileges (like Article 30) is thus necessary to ensure a thriving and a vibrant Democracy

Conclusion

The Chief Justice of India has now referred this judgment to a larger bench where we need to see if the judgement is upheld or reversed.