Context

A two-judge bench of Justice U.U. Lalit and Justice Arun Mishra, in their latest judgement on minority rights, has 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.

Background

• The vision of Sardar Vallabhbhai Patel that “our mission is to satisfy every interest and safeguard the interests of all the minorities to their satisfaction” was widely accepted by the minorities in general and Muslims in particular.
• In order to provide a sense of confidence and security among the minorities, special safeguards were guaranteed under Article 30 of the Indian Constitution.
• In the landmark Kesavananda Bharati case (1973), the apex court held that minority rights are part of basic structure of the Constitution.

Minority Rights under Article 30

• Whether based on religion or language, all mіnorіtіes shall have the right to establish and administer educational іnstіtutіons of their choice.
• The State shall not dіscrіmіnate against any educational іnstіtutіons in granting aid to educational іnstіtutіons on the ground that it is under the management of a minority.
• The farmers of the Constitution incorporated article 30 in the Constіtutіon with the vision of providing confidence among minorities against any legislative or executive encroachment on their right to establish and administer educational іnstіtutіons.
• Minority educational institutions referred to in clause (1) of Article 30 have been kept out of the purview of Article 15(4) of the Constitution.
• The Constitution does not impose any restrictions under Article 30 (unlike in the case of other fundamental rights). Hence, the Article 30 is an absolute right though minority institutions are very much subject to health, sanitary and municipal regulations.
• The most important term in the Article 30 is ‘choice’ and the provisions of the right under that Article is as wide as the choice of a particular minority community will make it.
• Every minority community can 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.

Judicial verdicts Against Minority Rights

• In March 2014, a single judge of Calcutta High Court struck down that the provisions of Article 30 that guarantees religious and linguistic minorities the right to establish and administer educational institutions of their choice as violative.
• Division Bench of the High Court upheld the decision of the single judge bench of Calcutta High Court.
• The 2019 verdict has provided for setting up of a commission which will recommend all appointments of teachers to the religious schools and the management committee is bound by the recommendations.

Judicial verdicts in favour of Minority Rights

• In Ahmedabad St. Xaviers College (1974) and 11 judges in T.M.A. Pai Foundation (2003), the apex court has been consistent in holding that the term ‘administer’ 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.
• A six-judge bench of the Supreme Court, in Rev. Sidharjbhai (1963), observed that every government regulation in respect of a minority institution shall be valid only when it satisfies the dual test.
  • It shall be regulative and shall not destruct the organization’s minority character.
  • It shall make the minority institution an effective vehicle of minority education.
• A five-judge bench, in Rev. Father W. Proost (1969), 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.
• The appointment of a principal was held to be an important part of a minority group’s right to administer the institution in Very Rev. Mother Provincial (1969).
• In Ahmedabad St. Xaviers (1974), Section 33A (1) (b) of Gujarat University Act, 1949 was struck down that a nominee of the affiliating university must be part of the selection committee of principal and teachers.
• In T.M.A. Pai (2003), an 11-judge bench reiterated that the management of minority institutions should have freedom in appointment of teaching and non-teaching staff and administrative control. However, the government may fix minimum qualifications, experience and other conditions.

Consequences of Judicial Verdict against Minority Rights

• The verdict of the judiciary may have cascading effect on various laws based on religious classifications.
• A verdict against the constitutionality of the provisions under Article 29 and 30 might also imply that the creation of minority-specific ministries and commissions is unconstitutional.
• It empowers the government to intervene in the functioning of the institutions and thus violating their minority rights enshrined under Article 30.

Constitutional and Legal challenges faced by Minorities

• There is no exact definition of minority in the Indian Constitution and Articles 29, 30, 350A, and 350B of the Indian Constitution use the word “minority” in its plural form.
• The anti-conversion laws do not explicitly ban conversions but in practice these laws “both by their design and implementation infringe upon the individual’s right to convert, and represent a significant challenge to Indian secularism.
• Though Indian Constitution prohibits the practice of untouchability under Article 17 but the practice continues to blight the lives of millions of minorities today.
• Caste discrimination persists and caste categories are legally recognizedin order to implement a form of affirmative action known as “reservations.”
• Deprivation of beneficiary job opportunities and quality education has been a major challenge that has led to the members of some of these communities to struggle for a minimum standard of living.
• The minority communities have felt disoriented and displaced due to their fear of being engulfed by the overwhelming majority.

Way Forward

• The term “minority” shall be operationalized in its federal laws and comply with the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities.
• Adopting the provisions incorporated in International Convention on the Elimination of All Forms of Racial Discrimination.
• Reform the anti-conversion laws and appreciate that both conversion and re-conversion by use of force, fraud, or allurement are equally bad and infringe upon a person’s freedom of conscience.
• By establishing educational institutions of secular education, minorities assist the government in implementing the citizen’s right to education.
• The Central government must issue comprehensive guidelines for the recognition of minority institutions.

Source: The Hindu