Minority Institutions and state control

Reading time: 6-8 minutes.

The Indian Constitution visualizes the social order “in which justice – socio, economic and political – shall inform all the institutions of the national life. It envisages a welfare state, which would not only serve the immediate needs of the society but would protect, promote and preserve enduring values. Often, conflicting and competing constitutional values arise which need constant reconciliation and readjustment.

On 6^th January, 2020, the Supreme Court delivered a judgment regarding the constitutional validity of the West Bengal Madrasah Service Commission Act, 2008 observing that there is no unconditional and unequipped right of appointment for minority educational institutions. The judgment was delivered after the filing of appeals by few teachers who had got appointment under the said act.

The issue considered by the Apex Court bench was whether the provisions, Sections 8, 10, 11 and 12 of the Commission Act are ultra vires and whether these provisions transgress the right of minority institutions guaranteed under the Constitution of India?

Upholding the aforementioned Act’s constitutionality, the apex court observed that “the objection could be raised only if an unfavorable treatment has been meted out to an educational institution established and administered by the minorities, but if ensuring of excellence in educational institutions is the underlying principle behind a regulatory regime and the mechanism of selection of teachers is so designed to achieve excellence in institutions, the matter stands on a completely different footing”.

Article 30 of the Constitution of India

Article 30(1) gives the linguistic or religious minorities the following two rights:

• the right to establish, and

• the right to administer educational institutions of their choice.

The benefit of Art.30(1) extends only to linguistic or religious minorities and not to any other section of the Indian citizens. The expression ‘educational institutions’ means institutions that impart education, including education at all levels from the primary school level up to postgraduate level, as also professional education.

A linguistic minority for the purposes of this article is one which has a separate spoken language. It is not necessary that the language should also have a separate script. The Constitution uses the term minority without defining it. In re The Kerala Education Bill, the SC opined that a group would constitute a minority if it was less than 50% of the whole population or larger group, but the question loomed large which population would be taken into consideration, i.e, the population of a locality, a city or the whole country.

Eventually, it did decide this point definitely by stating that ‘minority’ is to be determined only in relation to particular legislation which is being challenged, and not in a general sense.

West Bengal Madrasah Service Commission Act of 2008

The West Bengal Service Commission Act, 1997 was enacted by the State government to provide for the constitution of Regional School Service Commission and a Central School Service Commission in the state under which, in Section 15, it was specifically enumerated that the provisions of the act would not apply to:

1)a school established and administered by a minority, whether based on religion and language,

2)a school under any trust, established and administered by a minority, whether based on religion or language.

But after the declaration of recognized madrasahs as minority educational institutions vide notification of 28.12.2007 of the Government of West Bengal, the state saw that since West Bengal School Service act of 1997 cannot recommend panel of teachers, there needs to be a new legislation to fill up the lacunae. With this came the West Bengal Madrasah Commission Act of 2008, some part of which was challenged in the court.

Section 10: The Managing Committee, the ad hoc Committee or the Administrator of the minority institution, as the case may be, shall be bound to appoint the candidate recommended by the Commission to the post of teacher in the Madrasah concerned as per vacancy report.

Now as per the rival parties’ submission it was totally against the spirit of Art. 30 of the Constitution.

Question of law in current case

The bone of contention between both the parties was whether the relevant provisions of the Act transgress upon the rights of a minority institution or the said provisions can be termed as tenable as ensuring the excellence of the institution without injuring the essence of the right of a minority institution.

Right from Re: The Kerala Education Bill Case the issue that has engaged the attention of this Court is about the content of rights of minority educational institutions and the extent and width of applicability of regulations and what can be said to be permissible regulations. If the cases in the first segment i.e. up to the decision in TMA Pai Foundation are considered, the following principles emerge:-

• In Re: The Kerala Education Bill Case, Clause 11(2) in terms of which the State Public Services Commission was empowered to select candidates for appointment as teachers in Government and aided schools, was found to be a permissible regulation. It was observed that such provision, inter alia, was applicable to all educational institutions and was designed to give protection and security to the teachers engaged in rendering service to the nation.

• The decision in Sidhajbhai Sabhai, however, observed, “Unlike Art.19, the fundamental freedom under clause (1) of Art.30, is absolute in terms; it is not made subject to any reasonable restrictions of the nature the fundamental freedoms enunciated in Art. 19 may be subjected to.” It went on to add “Regulation made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed.”

• In Ahmedabad St. Xavier’s College case, according to Khanna, J., “The regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be designed so as to make them an effective vehicle for imparting education.

Thus, going by the decision of eleven Judges of this Court in TMA Pai Foundation, so long as the principles laid down therein are satisfied, it is permissible if any regulations seek to ensure the standard of excellence of the institutions while preserving the right of the minorities to establish and administer their educational institutions.

Salient features of the judgment

The judgment accepted the test propounded by TMA Pai Foundation Case, that there needs to be a balance between two objectives which need to be considered in the context of two categories of institutions; one, the institutions imparting education which is directly aimed at or dealing with preservation and protection of the heritage, culture, script and special characteristics of a religious or a linguistic minority and two, the category of institutions which are imparting what is commonly known as secular education.

When it comes to the institutions in the former category, the teachers who believe in the religious ideology would alone be able to imbibe these values and ideas in the students admitted in such educational institutions. But, if the subjects in the curriculum are purely secular in character such as subjects like arithmetic, algebra, etc., the intent must be to impart education availing the best possible teachers.

If the right is taken to be absolute and unqualified, then certainly such choice must be recognized and accepted. But, if the right has not been accepted to be absolute and unqualified and the national interest must always permeate and apply, the excellence and merit must be the governing criteria.

Conclusion

There are very few areas have been the subject of more vexed constitutional litigation in India than the rights of the minority educational institutions and state’s control over it. After this judgment, the law is clear that the regime put in place by the State legislature thus ensures that the Commission comprising of experts in the field would screen the talent all across the State, will adopt a fair selection procedure and select the best available talent purely on merit basis.

However, even while nominating, the interest of the minority institution will also be given due weightage and taken care of. The statutory provisions thus seek to achieve ‘excellence’ in education and also seek to promote the interest of the minority institutions.

Author: Kunwar Bir Singh from University Institute Of Legal Studies, Panjab University, Chandigarh.

Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.

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The curious case of declaring minorities in India

Reading time: 3-4 minutes.

In July 2019, the National Commission of Minorities sub-committee through its report refused to entertain a plea filed by Advocate and BJP leader Ashwini Kumar Upadhyay to declare Hindus a “minority community” in states where they don’t form the majority of the population.

As per 2011 census, Hindus are in minority in 8 states and union territories, namely: Jammu & Kashmir, Punjab, Nagaland, Mizoram, Meghalaya, Manipur, Arunachal Pradesh and Lakshadweep. The plea requested the Commission, established under the National Commission of Minorities Act (1992), to declare Hindus a minority community under Section 2(c) of the Act in States where they are in minority.

What was the response of the commission?

The Commission, while rejecting the plea, stated that the power to declare minorities lies solely with the Central Government and the Commission is only empowered to work and ensure the progress and development of minorities and safeguard their social, educational and cultural rights. The Commission further claimed that Section 2(c) of the Act clearly states that only the Central Government can notify a community as a “minority”. 

Further, the report by the sub-committee referred to the Supreme Court judgment in the case of Bal Patil v. Union of India (2005) in which the Court held that the Commission is not empowered to define minorities. Moreover, the Court also ordered the Commission to abstain from entertaining such pleas and instead focus on bridging the majority-minority divide.

Who are ‘minorities’ in India?

The term minority has nowhere been defined under the Indian Constitution. However, it is defined under Section 2(c) of the NCM Act, 1992 as a community which has been notified as such by the Central Government. Furthermore, International Law defines minorities as groups which possess distinct and stable ethnic, religious and linguistic characteristics.

That having being said, the word minority has been used in the Indian Constitution under Articles 29, 30, 350-A and 350-B but no clear definition has been provided as such. Articles 29 and 30 of the Indian Constitution primarily refer to social and cultural rights of linguistic and religious minorities in India.

Moreover, the Government through notifications in 1993 and 2004 has declared six religious minorities in the country, namely: Muslims, Sikhs, Christians, Jains, Buddhists and Parsis. However, the criterion for determining such minorities remains vague and ambiguous.

What is the constitutionality of declaring minorities in India?

In the case of The Kerala Education Bill (1958), the question of ascertaining the status of a minority community first arose in front of the Supreme Court. While the Court stated that a minority simply means a community which is numerically less than 50%, but 50% of what? The Court remained unclear whether such numerical inferiority is limited to the entire country, or an entire state or a part thereof. It is possible that a community might be in majority in a particular state (Muslims in J&K) but in majority in the country or vice versa.  

Further, in the case of TMA Pai v. State of Karnataka (2002), the Supreme Court took a more specific view regarding the status of minority communities in a state. The court opined that the status of a minority community should be determined on the basis of the state since states have been reorganised on linguistic basis. Therefore, the Court held that both linguistic and religious minorities have provided equal status under Article 30 and have to be determined state-wise. 

Finally, in the case of Bal Patil v. Union of India (2005), the Supreme Court stated linguistic and religious minorities are different from each other but concurred with the TMA Pai verdict that minorities should be determined state-wise. However, the Court clarified that only linguistic minorities should be declared state-wise and not religious minorities. The Court believed that it is pertinent to declare religious minorities nation-wise to preserve the unity and integrity of the nation. Moreover, the court held that the National Commission of Minorities is not empowered to declare a community as a minority and only the central government is empowered to do so.

The way forward…

The status of religious and linguistic minorities still remains highly ambiguous and further clarity is required in order to create a clear distinction between the two. Moreover, the creation of the state of Telangana has further debunked the criteria that linguistic minorities should be determined state-wise since the creation of Telangana was not on linguistic basis. However, the formula devised in the Bal Patil case could be implemented to provide a distinction between linguistic and religious minorities.

Further, if a minority community is seeking protection in a State, then a law should be enacted by the state government to identify such community. On the other hand, if a minority community is seeking protection at the national level, then a parliamentary enactment should be passed.

Finally, a clear procedure should be introduced to determine the status of minorities both at state as well as national level to streamline the identification process. A robust and fair identification process would allow such communities to avail their legitimate share in the state resources.

–This article is brought to you in collaboration with Ritwik Sharma from Amity Law School, Delhi.