Context: The Supreme Court has said that the Govt can regulate the appointment of teachers in minority institutes, it is not a violation of Article 30.
- 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.
Constitutional provisions: -
Right to Cultural and Educational Rights (Article 29 and 30)
Article 29 of the Constitution of India - Protection of interests of minorities.
- Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
- No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
Article 30 of the Constitution of India - Right of minorities to establish and administer educational institutions.
- All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
- In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
- The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
- Supreme Court observation: in the Kesavananda Bharati case (1973), minority rights were held to be the part of basic structure of the Constitution.
- The SC upheld constitutional validity of West Bengal Madrassas Service Commission Act, 2008, under which the selection and appointment of teachers in madrassas are to be decided by a commission.
The SC Judgement
- A two-judge bench of the top court upheld the Act saying the selection of teachers and their nomination by the panel was not violative of the rights of minority educational institutions.
- Such institutions cannot claim to have absolute right in deciding appointment of teachers and it can be regulated by a government to ensure excellence in imparting education.
Key takeaways of the SC Judgement
Reference to TMA Pai Foundation case: ensuring equal treatment between the majority and the minority institutions
- The essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions and that rules and regulations would apply equally to the majority institutions as well as to the minority institutions.
- TMA Pai Foundation itself lays down that even in an unaided minority educational institution, a mechanism must be evolved and appropriate Tribunal must be constituted to consider the grievances and till then the Tribunals could be presided over by a judicial officer of the rank of a District Judge.
Reference to P.A. Inamdar case: Preference for merit
- The decision in P.A. Inamdar case shows that the selection of meritorious students has been accepted to be in the national interest.
- A minority institution cannot in the name of right under Article 30(1) of the Constitution, disregard merit or merit-based selection of students as regards professional and higher education.
- The statutory provisions thus seek to achieve ‘excellence’ in education and also seek to promote the interest of the minority institutions.
Right to admit students not absolute: Out of five incidents namely that constitute "the right to establish and administer" an educational institution as noted in the leading judgment in the TMA Pai Foundation case, the right to admit students has not been considered to be an absolute and unqualified right.
The right to take disciplinary action against the staff has also not been accepted to be an unqualified right.
The five incidents that constitute "the right to establish and administer" an educational institution in TMA Pai case were
- reservation policy,
- admission policy,
- fee structure,
- regulation and control by the state and
- the role of committees dealing with admission
4. Differentiating between secular and religious education: To achieve a balance between the twin objectives of ensuring excellence in education and preserving the rights of minorities, the court divided education into two categories – secular education and religious education.
Religious education is “directly aimed at or dealing with preservation and protection of the heritage, culture, script and special characteristics of a religious or linguistic minority.”
The court advocated that “maximum latitude” be given to the management to appoint teachers.
The court also held that only “teachers who believe in the religious ideology or in the special characteristics of the concerned minority'' would alone be able to imbibe in the students admitted in such educational institutions, what the minorities would like to preserve, profess and propagate.
- Secular education: for example subjects like Arithmetic, Algebra, Physics, Chemistry or Geography, the intent must be to impart education availing the best possible teachers.
Concerns over SC judgement:
- Article 30 right is absolute though minority institutions are very much subject to health, sanitary and municipal regulations
- The dual test criterion: In Rev. Sidharjbhai (1963), 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.
- The expression ‘administer’ in Article 30: In Ahmedabad St. Xaviers College (1974) and T.M.A. Pai Foundation (2003) the SC held 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 dominant word in Article 30 is ‘choice’: In Kerala Education Bill case (1957), SC held that 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 like UGC regulations. But the government cannot impose its own selection of teachers on the minority institutions.
- 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.
- 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): 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.
- Bihar State Madrasa Education Board (1990): 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”.
Various Court Judgements on Minority Educational Rights
Pai Foundation case
- In 2003, an 11 Judge Bench of the Supreme Court decided the question of the scope of the right of minorities to establish and administer educational institutions of their choice under Article 30(1) read with Article 29(2) of the Constitution.
- It held that only the State can determine the status of a religious or linguistic minority and religious and linguistic minorities, who have been put on a par in Article 30, have to be considered State-wise.
- The right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations on that behalf.
- Any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority of the minority. Such a limitation must necessarily be read into Article 30.
- Government regulations cannot destroy the minority character of the institution or make the right to establish and administer a mere illusion.
- Right under Article 30(1) is not absolute or above other provisions of the law and regulatory measures can be imposed for ensuring educational standards and maintaining excellence thereof especially in professional institutions.
- It further held that the status of linguistic minority is to be determined in the context of states and not India as a whole.
- The supremacy of 19(1) (g): TMA Pai judgment removed the restriction for an individual to start an educational Institution. One is no longer dependent on creating a Charitable Institution to start a Professional College; the rights flow directly from Article 19(1)g.
- Article 19(1) (g) in the Constitution Of India states that All citizens shall have the right to practice any profession or to carry on any occupation, trade or business
- TMA Pai's judgment was widely criticized for its stand for advocating the rights of Unaided Private Educational Institutions keeping away the Government from implementing social welfare legislations in the field of education.
P.A. Inamdar & Ors. vs. State of Maharashtra case,2005: The Supreme Court delivered a unanimous judgement by 7 judges declaring that the
- State can’t impose its reservation policy on minority and non-minority unaided private colleges, including professional colleges.
- Up to the level of undergraduate education, the minority unaided educational institutions enjoy total freedom.
- Graduate and Post Graduate education cannot be imparted by any institution unless recognized by or affiliated with any competent authority created by law, such as a University, Board, Central or State Government or the like.
Pramati Educational & Cultural Trust & Ord. Union of India & Ors case
- A five-Judge Constitutional Bench upheld the Constitutional validity of the 93rd amendment to the Constitution of India and RTE Act to the extent that it makes a provision for unaided educational institutions to provide education to economically and socially weaker sections, through 25 % reservation in their educational institutions.
- The Court, however, excluded minority institutions from the purview of the Act.
- This was a reaffirmation of the court’s earlier position, pronounced in 2012, in “Society for Unaided Private Schools of Rajasthan versus Union of India and others".
- The judgment in effect reduced the rigour of the TMA Pai case regarding the supremacy of 19(1) (g) as interpreted in 11 bench judgment.
- Minority institutions here refer to both religious and linguistic minorities, as referred to within the Constitution.
1967 Constitution Bench judgment in Azeez Basha
- The question of whether the AMU was established by Muslims was important to decide whether Article 30 (1) of the Constitution applied to it.
- Once Article 30 (1) applies to an institution, it has the freedom to reserve seats for students belonging to the community it represents.
The judgement: The SC ruled that AMU was not a minority institution because it had been established by an Act of Parliament and had not been set up by Muslims.
Subsequently, on the recommendations, Beg committee and Minorities Commission of India, the AMU Act 1920, was amended again in 1981 by the Parliament so as to remove the technicalities which prevented AMU from being declared a minority institution in Azeez Basha.
The Dr. Naresh Agarwal versus Union of India and Others: Allahabad High Court Judgement
Issue: Do Article 30 applies to the AMU and whether it is violative of Article 29 (2) of the Constitution.
The judgement: The High Court had in January 2006 struck down the provision of the AMU (Amendment) Act, 1981 by which the University was accorded minority status.
Linguistic minorities issue: National Commission for Minority Educational Institutions (NCMEI) Act, 2004 case
- The Supreme Court has held that the National Commission for Minority Educational Institutions (NCMEI) has original jurisdiction to determine which institution should be granted minority status.
- The National Commission for Minorities Educational Institutions (NCMEI) gives the minority status to educational institutions on the basis of six religious communities notified by the Ministry of HRD under the NCMEI Act, 2004-- Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains only.
- Linguistic Minorities do not come under the ambit of the NCMEI Act, 2004.
Sources: The Hindu, the Times of India