Minority institutions have the fundamental right under Article 30 of the Constitution to establish and administer their educational institutions according to their choice. However, they cannot ignore the regulations recommended by the state. 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.

Body:

Importance of minority rights:

• 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, this confidence stands eroded even though, in the Keshavananda Bharati case (1973), minority rights were held to be part of the basic structure of the Constitution.

The Judgement upheld the following provisions of the Act:

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 Further, government recognition and affiliation of such schools can be withdrawn.

Is the judgment contrary to the law?

No:

• The latest judgment notes that in 2019, a three-judge bench gave the Sikh minority institutions of West Bengal the right to appoint teachers.
• A nine-judge bench of the Supreme Court explicitly held that minority institutions have the right to choose their teachers.
• In M.A. Pai (2003) case, 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.

Yes: 

• 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 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.
• Further the judgement goes against the spirit of Sidharjbhai (1963) case, 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.
• 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.

Conclusion:

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.