Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].
[This is a guest post by Debarshi Chakraborty.]
Very few areas have been the subject of more controversial constitutional litigation in India than the right of minority educational institutions. The decision of the Supreme Court in Sk. Md. Rafique v. Managing Committee, Contai Rahamania High Madrasah & Ors (2020) is one among many instances that demonstrate the level of confusion, even clutter, which earmarks this area. It also adds to the myriad ways in which the constitutional mandate of Article 30(1) – conferring on religious and linguistic minorities the right to establish and administer educational institutions – is yet to be realised and achieved entirely.
The events, briefly, were as follows: The Respondent, the Managing Committee of the Madrasah (situated in West Bengal), in 2013 filed a petition before the Calcutta High Court challenging the validity of specific provisions of the West Bengal Madrasah Service Commission Act, 2008 (hereinafter Commission Act). The impugned sections, according to the Respondent’s submission, deprived the aided Madrasahs of their discretion to appoint teachers and bestowed such powers on a Commission established under the Commission Act. Furthermore, the recommendations that were made by the Commission, regarding the appointment of teachers, were binding on the aided Madrasahs. Disobeying such recommendations was to be met with a penalty. Therefore, the provisions of the Act transgressed upon the right of a minority educational institution to choose its teachers, which is protected by Article 30(1) of the Constitution. The single judge and the division bench of the High Court, on realising this incongruity, struck down the impugned provisions of the Act holding: “[t]he right of the Commission to select and recommend teachers for these institutions in a very major way interfered with the right to administer those institutions rendering a constitutional mandate virtually ineffective” (paragraph 13.3).
Consequently, the Appellant, whose name was recommended by the Commission pending appointment as a teacher, filed an appeal before the Supreme Court, which set aside the decision of the High Court. It held that while Article 30(1) may appear to have been drafted in absolute terms, nevertheless, it does not fetter the state from interfering with the administration of the minority institutions for securing academic excellence and merit. Any departure from it is not only antithetical to the national interest but makes a minority educational institution incapable of achieving its purpose. The division bench of Arun Mishra, J. and UU Lalit, J. thus implied that when the restrictions are dealing with secular matters, then the state by law is permitted to intervene.
The Legislative Conundrum
Before addressing why the approach taken by the Supreme Court is problematic, it is essential to understand the set of laws that came to define this situation. Before aided Madrasahs had been granted the status of minority educational institution, they were administered by the State as per the West Bengal School Service Commission Act, 1997 (hereinafter WBSSC Act). The State government wielded significant control in the selection and appointment of teachers and non-teaching staff to the schools, under that statute. Upon promulgation of the West Bengal Minorities Development and Welfare and Madrasah Department’s Notification (12.10.2007), and other subsequent notifications, the matter of selection of teachers for aided Madrasahs went out of the purview of the WBSSC Act.
Consequently, the Commission Act was enacted to provide for the Madrasah Service Commission in West Bengal, which retained State control in the appointment of teachers. According to Section 4, the Commission should comprise eminent educationists with profound knowledge in Islamic culture, individuals who are proficient in teaching experience, former principals of colleges and officers of the State government. The Commission Act, as its objective, tries to project the Commission as a guarantor of fairness and transparency in the appointment of teachers to the Madrasahs, which otherwise could not have been guaranteed.
Some aspects of compulsion further bolster this presumption. For instance, Section 10 provides that “the Managing Committee shall be bound to appoint the candidates recommended by the Commission”. If not, the state government under Section 12 reserves the power to dissolve the Managing Committee or exclude that particular Madrasah from receiving financial assistance. More than academic excellence, the Commission appears to be a vehicle that guarantees State preeminence over the administration of aided Madrasahs. For refuting this, the State in its submissions argued that it fully aids the concerned Madrasah for its financial requirements, and “therefore, it is bound to follow recruitment procedures”. And, “the Commission merely selects and recommends a teacher, but overall control of such staff lies with the Managing Committee…the role of the Commission is that of a mere recommendatory body” (Paragraph 12).
State Aid and Regulation
Admittedly, the Supreme Court, in a catena of cases, has upheld the applicability of State regulations for institutions that seek State aid or recognition. For example, in Rev. Sidhajbhai Sabhai v. State of Bombay, under similar circumstances, it was held that the State could prescribe regulations to ensure the excellence of these institutions. However, by seeking aid these institutions do not waive their rights. The aspects sought to be regulated should not prejudice the ethos of the institution. In Ahmedabad St. Xavier’s College v. State of Gujarat & Anr., Khanna, J. observed: “Regulations made in the true interest of efficiency of instructions, discipline, health, sanitation, morality, public order and the like may undoubtedly be imposed…such regulations are no restrictions on the subsistence of the right which is guaranteed.”
In this case, regardless of the defense taken by the State, of funding and a recommendatory body, the nature of the recommendations would certainly touch upon the administrative autonomy of the minority institutions as they would not have the option to choose individuals beyond the recommendations received. Highlighting this fear, the High Court, while dismissing the appeal, had opined: “It is one thing to regulate the process of appointment by providing guidelines…it is however entirely different to clog the right of choice of the minority institution by prohibiting them to choose any candidate otherwise eligible except from those recommended by the Commission” (Paragraph 14).
When the dispute reached the Supreme Court, it relied heavily on the 11-judge bench decision in T.M.A. Pai Foundation v. State of Karnataka, which in turn relied on Ahmedabad St. Xavier’s College and other cases, to point out – in cases of aided minority educational institutions; State regulation was warranted up to a certain threshold. However, it failed to explain the extent of this threshold and the factors on which it should be ascertained. Interestingly enough, the question about the relationship between state aid and the degree of control that may be exercised by the State has never been tested in any of the Supreme Court rulings on aided minority educational institutions. This continues to be one of the Constitution’s many abiding quandaries.
This case could have been an opportunity for the Supreme Court to delve into such a question and set the record straight. However, the Court seemed contented in merely adverting to the opinion of Khanna, J. in Ahmedabad St. Xavier’s College to iterate that a “[b]alance has…to be kept between the two objectives, that of ensuring the standard of excellence of the institution and that of preserving the right of the minorities to establish and administer their educational institutions. Regulations which embrace and reconcile the two objectives can be considered to be reasonable”. Could there be a broader or more generic expression about the kind of regulation that should be imposed by the State on minority educational institutions? Probably not. In no way does this judgment expound on the nexus between the State’s financial assistance and the precise degree of control that the State may have in administering that institution.
UU Lalit, J., writing the judgment for the bench, has devoted considerable paragraphs studying the situation where the candidates recommended by the Commission are more meritorious and better qualified than those in the opinion of the Managing Committee – to conclude that the compulsive element of the statute is in the interest of education. Very little thought, if at all, has been spared for a reverse situation. What happens if the minority institution has a better candidate available than the one nominated by the Commission? The Supreme Court gives a rather vague answer. It says that in such a situation the institution shall be well within its right to differ from the nomination made by the Commission. Further, it attributes this to the phrase “reasonable ground”, as mentioned in Section 12(i) of the Commission Act:
“If the Managing Committee, the ad hoc Committee or the Administrator of a Madrasah, as the case may be, refuses, fails or delays to issue appointment letter to the candidate recommended by the Commission within the period stipulated in the letter of recommendation by the Commission, without any reasonable ground, the State Government may direct the Board to dissolve the Managing Committee or the ad hoc Committee, or discharge the Administrator, as the case may be, or stop all financial assistance to such Madrasah recording reasons thereof and may also issue direction upon the Board or Council, as the case be, to withdraw recognition or affiliation of such Madrasah.”
This marks the eruption of all troubles, which may be attributed to the Court’s shallow endorsement of minority rights without regarding the actual concern. The underlying question that the Court fails to answer is what happens in a case of disagreement between the minority educational institution and the Madrasah Commission over the appointment of teachers? Whose word should prevail? The Court has evaded answering that question. The Supreme Court’s concern for academic excellence in minority educational institutions, but its failure to address this crucial concern is yet another instance where the Court talks the talk but does not walk the walk.
On a finer reading of this judgement, it reveals hints of reverse-engineering. With the conclusion first established in its mind, the Court has tried to trace the premise which could substantiate it. In the process, the Court has referred to its case law, which when taken in its context, contradicts the Court’s conclusion. For example, in the 2006 judgment in Malankara Syrian Catholic College v. T. Jose, the Court was concerned with the selection and appointment of Principal in an unaided minority educational institution. A constructive reading of that judgment divulges that the choice of actors who are responsible for the quality in educational institutions as well as maintaining the philosophy and objectives of the institution is fundamental to the right of any minority educational institution. Similarly, in Frank Anthony Public School Employees’ Association v. Union of India, the Court had noted that the excellence of each institution depends on the quality and contentment of the teachers. Hence, their appointment should rest with the institution itself. This cannot be dismissed merely highlighting the fact that the Madrasah Commission comprises individuals with “profound knowledge in Islamic culture”. The philosophy of each institution, independent of the minority belief to which it ascribes, is all the more important. Therefore, Managing Committees are within their right to assess candidates on that basis as well rather than merely submitting to an external recommendation.
Thus, on the whole, this judgment manifests the fact that issues of minority educational institutions and the protection of their right under Article 30(1) are yet to be realised entirely. Slight praise may be accorded to the Court for marginally recognising the right of the Madrasahs to disagree with the regulatory authority. However, it is hoped that as the three-judge bench revisits this judgment, it will deliberate on the aspects raised above.