Minority Educational Institutions under Article 30 of the Constitution of India are subject to various State Regulations. The interpretation of Article 30, which the framers of the Constitution of India infused with a sense of a special right to minorities of India to establish and administer educational institutions, was the matter in hand and of controversy in Sk. Md. Rafique v. Managing Committee, Contai Rahamania High Madrasah which was decided by the Supreme Court in 2020.The matter arose from the decision of the Single Bench of Calcutta High Court which was affirmed by the Division Bench of the High Court and later in appeal travelled to the Supreme Court. Madrasah Service Commission Act, 2008 did the litigation journey till the Supreme Court, where a two Judge Bench (of Justice Arun Mishra and Justice UU Lalit) finally decided to put a rest to it. In this backdrop, the present analysis lies on the right of the minorities to establish educational institutions and the government’s power to regulate the same.
‘The Controversial Act’ in question
The State Government in 2008 decided to enact the Madrasah Service Commission Act with the objective of recommending a panel of teachers for aided non-governmental madrasah across the State of West Bengal. The Act provided for the establishment of the Madrasah Service Commission having a Chairperson and 4 other members under Section 4 to recommend the appointment of teachers, which was binding on the Managing Committee of the State-aided Madrasah. Section 8 overrides every custom, contract and law and vests the power to recommend the appointment of teachers to the Commission. These recommendations are made binding on the Managing Committee of the aided madrasah under Section 10. The proviso added to the Section empowers the Managing Committee to issue an appointment letter.
Section 12 set out a penalty in case of refusal, delay or failure to issue appointment letter by Madrasah Committee The penalty stipulated under clause (i) are- firstly, dissolving the Managing Committee, secondly, laying off the State aid and, thirdly, derecognition of such madrasah. Clause (ii) sets forth the disciplinary proceedings against the Head of such madrasah. Section 18 empowers the State government to make rules for the purpose of the Act. In pursuance of the same West Bengal Madrasah Service Commission Recruitment (Selection and Recommendation of persons for Appointment and Transfer to the Post of Teachers and non-teaching staff) Rules, 2010 was enacted. The bone of contention inter alia is Sec 8, 10, 12 along with the Rules framed as depriving the minority institutes to select and appoint teachers of their choice as envisaged by Article 30 (1) of the Constitution of India.
The Supreme Court’s Decision
The Supreme Court culminating the legal precedents together dealt a blow to the Respondents by overturning the decision of Calcutta High Court. The Apex Court held that the members of the Commission appointed have erudite knowledge of Islamic theology and culture. The Court noted that the recommendations are binding in nature but it gave a “reasonable scope” to the madrasah to bring into the notice any error. The Court further stated that in due care has been taken by the statute to nominate the “best suitable candidate” in normal circumstances, but the Managing Committee shall be well within the parameters of proviso to Section 10 to point out an error apparent in the nomination. The Court held in paragraph 53 as:
“….in terms of second proviso to Section 10 of the Commission Act, if there be any error, it is open to the Managing Committee of the concerned Madrasah to bring it to the notice of the Commission for removal of such error. The concept of ‘error’ as contemplated must also include cases where the concerned Madrasah could appoint a better qualified teacher than the one nominated by the Commission.” (Emphasis Added by the Author)
The judgement gave emphasis that the interest of the minority is preserved by providing the fair selection procedure, essential academic qualifications, salaries, allowances and service conditions. The Court summed up the whole Act in challenge in comprehensible way: “…the provisions of the Commission Act would satisfy the national interest as well as the interest of the minority educational institutions and said provisions are not violative of the rights of the minority educational institutions.”
Article 30(1) is drafted as a positive right for religious, linguistic minorities to establish and administer educational institutions of their own choice. Article 30(2) was drafted in negative connotation with State obligation not to discriminate in granting aid on the ground that the institute is established by minority. Article 30 has been in grasp of litany starting from In re Kerala Education Bill to Ahmedabad St. Xavier’s and from St. Stephens Case to TMA Pai Foundation. What is churned out from the series of the cases is that the right to establish and administer educational institutions is not absolute but subject to State regulation for orderly, efficient and sound administration. Putting at rest the interpretation of article 30(1), TMA Pai Foundation made it subject to Article 28(1), Article 28(3) and Article 29(2) in regard to State aided educational institutions. The Court stated that once the educational institution is maintained out of State funds, there is a bar on religious instruction in such institutions as well as no requirement to take part in such instructions under Article 28(1) and Article 28(3) respectively. An institution loses the right to discretion to admit students by virtue of Article 29(2) once it is funded by the State. The Court elaborated it as: “A minority institution would fall within the ambit of Article 29(2) in the same manner in which Article 28(1) and Article 28(3) would be applicable to the educational institutions.” In cases of unaided minority educational institutions, the regulations shall be nominal and least possible.
Analyzing upon the principles adopted by the Court, the present judgement needs to be revisited on two counts. Firstly, the Act took away the substantial power to appoint teachers. Secondly, the binding nature of recommendation made by Commission under Section 10. It is a ‘colourable exercise’ of power by the State by doing things indirectly which it cannot do directly. It cannot ‘directly appoint’ teachers in aided minority institutions due to bar of Article 30(1) but indirectly did make a ‘binding recommendation’ to appoint teachers and other staff. Further penalty is stipulated for contravening such ‘binding’ nature of recommendation under Section 12. The Court failed to appreciate the degree of control the provisions have made in enjoyment of Article 30(1).
The founding member crafted the provision with absoluteness and nominal regulations to maintain the sanctity of education and its standard. Court over-emphasised the observation of T.M.A. Pai Foundation Case and based its operative order that regulations will suffice the national interest and interest of minorities. In overplaying both, the Court failed to note and put a threshold at which the regulations for aided minority institutes can be made. It is beyond a shred of doubt that the right to establish and administer educational institutions includes the right to select/appoint teachers and such realization can be made once the minority institutions are given the power to appoint suitable teachers which suits their ideological teachings and tenets for which the minority institute was established, abreast excellence. Mandating the Managing Committees to appoint teachers from the names recommended by Commission is none other than vile on Article 30(1) and completely taking over the appointment process ‘indirectly’. Court could at least have struck down the mandating provision adopting the severability principle. The provisions prescribing the selection mechanism, grievance redressal, qualifications, were well founded safeguard in consonance with the principles of TMA Pai Foundation case.
In the present Contai Rahamania Case, the Court had the opportunity to mummify the controversy boiling around the State regulations, but it failed the opportunity. The Court missed the chance to properly define the regime of regulations regarding the minority institutions receiving State aid.
This is a guest post by Atul Kumar Dubey. Atul is a student of LLM studying in Rajiv Gandhi School of Intellectual Property Law (RGSOIPL), IIT Kharagpur. You can contact him here.