Guest Post: Minority Educational Rights and the Supreme Court’s Madrasah Judgment

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

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.

Institutional Philosophy

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.

A Strange “Notice”

[Editorial Note: 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 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.]

In 2005, the then-Government of India commissioned a High-Level Committee too look into the “social, economic, and educational” conditions of Indian Muslims. The Sachar Committee found that the Muslim community was severely deprived upon a wide range of parametres, and recommended a set of affirmative measures that the government could undertake to ameliorate the situation.

In this context, the filing of a petition before the Indian Supreme Court challenging the National Commission for Minorities Act of 1992, and assorted government welfare schemes under that Act, would be best understood as a misguided PIL crusade at best, and a barely-concealed dog-whistle at worst. In particular, the setting out of “legal grounds” in the petition such as “providing special benefit to minority community may allure (sic) a number of persons to embrace another religion and there may be demographic changes” should have – one might have thought – served as an instant red flag to the Court. But the decision of a bench of Nariman and Bhat JJ to issue notice on the petition raises uncomfortable questions about what passes for “legal reasoning” before the Supreme Court these days.

To “issue notice” on a petition means – in its simplest terms – that the Court believes that the government has a case to answer. Bracketing for the purposes of this post the specific challenges to concrete government schemes, what exactly did the two learned judges believe that the government needed to answer for in simply setting up of a Minorities Commission? The NMC Act stipulates that the functions of the Commission shall include “evaluat[ing] the progress of the development of minorities under the Union and States“, “caus[ing] studies to be undertaken into problems arising out of any discrimination against minorities and recommend measures for their removal“, “conduct[ing] studies, research and analysis on the issues relating to socio-economic and educational development of minorities“, and so on. Even at the threshold level, where exactly is the constitutional violation in any of this?

Or, to put it more specifically, what constitutional violations does the petition claim? A perusal of the Petition’s “legal grounds” makes it clear that there are broadly two main challenges. The first is a straightforward equality claim, that attacks the law on the basis that it gives certain benefits to minority communities that are not given to the majority community (the petition is quite clear that this is a case of the Hindu community being discriminated against, and predominantly with a view to benefiting Muslims). In doing so, however, the petition seems to be unaware of the basics of Indian equality law, which – at least since the 1970s – has been clear that the constitutional vision under Articles 14 through 16 is that of “substantive equality.” In other words, if Parliament finds that there exist individuals or groups that suffer from substantive disadvantage, Parliament can decide to ameliorate their situation. Such measures would not violate the equality guarantee. Notably, reservations – which need to pass the substantive requirements of Articles 15(4) or 16(4) of the Constitution – are only one of the methods that Parliament can choose to achieve substantive equality. The petition makes the elementary mistake of assuming that the only route open to Parliament is reservations (which, of course, are predicated on identifying social and economic backwardness through a specific procedure). But non-quota ameliorative measures are a standard feature of the Indian legal landscape – literally all social welfare laws and schemes proceed upon that premise.

What, then, is the legal basis for singling out the Minorities Act – and the Commission – as being particularly problematic? The petition makes two claims. First, it states that the Act – and the schemes – do not use economic condition as the basis to identify welfare beneficiaries. That argument – it should immediately be obvious – is bogus. Discrimination occurs along a host of parameters, and takes many different forms. In particular, when the locus of discrimination is group identity, and its form is political or cultural, economic deprivation has very little to do with either the disadvantage suffered, or the prescribed remedy. Secondly, the petition states that it is impermissible to legislate special benefits for religion, as the Constitution specifically bars that. That, however, is akin to saying that there can be no legislation for the benefit of the transgender community, as the Constitution bars discrimination on grounds of “sex.” The point is not the form of the legislation, but simply this: if discrimination occurs around certain axes, or loci (such as gender, or caste, or religion), then the remedy – if it is to be even remotely effective – needs to be framed around those very axes. Substantive equality makes it clear that that is not only permissible, but obligatory in order to achieve the true goal of equal treatment.

To counter this, therefore, the petition would have had to affirmatively show that minorities in India are not disadvantaged – a showing that would be rather difficult given the detailed facts reported by the Sachar Committee. Notably, however, the petition did not even attempt to do that – it only made the naked claim that the very act of setting up a Minorities Commission to look into – and ameliorate – the situation of minorities was unconstitutional. As the above points demonstrate, however, that is not an argument at all.

The second major claim – that occurs repeatedly in the petition – is this: that such schemes will be “detrimental for the Sovereignty and Integrity of India and give rise to separatists and may create a situation for another division of the nation.”

What on earth is going on here? Do Justices Nariman and Bhat believe that the government has to come and justify how scholarship and skill-development schemes for minority children are not, actually, going to “give rise to separatists” and cause a second Partition? Is this what the Supreme Court has reduced itself to – to not only quoting WhatsApp forwards at the beginning of judgments, but actively trafficking in WhatsApp arguments?

It is, of course, a different matter to say that certain specific schemes – such as financial assistance to waqfs – may violate Article 27 of the Constitution, and other provisions. However, the Supreme Court is perfectly capable of issuing a limited notice on challenges that do actually make out a constitutional case at a threshold level. What the Court has done, on the other hand, is (a) by issuing notice on the challenge to the Act as a whole, revealed a warped understanding of equality and discrimination, (b) ignores the fact that petition fails to make out a case even on its own terms, a basic requirement for issuing notice, and (c) winked at some of the lowest forms of minority-baiting and dog-whistling that poisons our public discourse today.

The Constitutional Challenge to S. 6A of the Citizenship Act (Assam Accord): A Primer

Tomorrow, a Constitution Bench of the Supreme Court will commence hearings in the constitutional challenge to Section 6A of the Citizenship Act. The case comes up for hearing as the result of a referral order under Article 145(3) of the Constitution, passed by a bench of two judges in Assam Sanmilita Mahasangha vs Union of Indiawho framed thirteen questions of law to be decided by a Constitution Bench.

Tomorrow’s hearing may be a brief one. The Bench has indicated that it is unlikely to hear the matter unless all counsel commit to finishing within seven working days. Given the scale and complexity of some of the questions (as we shall see), as well as the number of intervention applications that were allowed after the referral, this is unlikely. In light of the fact, however, that even if it is not heard at the present, it is likely to be taken up soon after the vacations (in July or August), I shall provide a brief primer to the case.


Migration has been a source of social and political conflict in the border-state of Assam at least the middle of the 19th century. During the framing of the citizenship provisions of the Constitution during the Constituent Assembly Debates, the representative from Assam highlighted issues pertaining to large-scale migration from Bengal, its impact upon the indigenous population and culture, and asked for specific constitutional provisions to deal with the issue. Ultimately, however, the Constitution contained only skeletal provisions on citizenship – in particular, to deal with the Partition – and left the issue to be addressed by Parliament. Article 5 of the Constitution incorporated the broad jus soli principle of citizenship, stipulating that all those who had their domicile in India at the time of the commencement of the Constitution, would be citizens if they were born here, if either of their parents were born here, or who had been ordinarily resident for not less than five years. Articles 6 and 7 were the Partition provisions, dealing with migrations to and from Pakistan, and fixing 19th July 1948 as the “cut-off date” for citizenship. And to clarify that these provisions were only dealing with the special situation created by the Partition, Article 11 contained an overriding clause authorising Parliament to legislate for citizenship. Parliament did so in 1955, with the Citizenship Act, and a special law for Assam titled the Immigrants (Expulsion from Assam) Act of 1950.

To regulate the entry of migrants into India, the colonial government had passed the Foreigners Act of 1946, which continued even after Independence. This Act conferred powers upon the government to prohibit entry of foreigners, among other things. In 1964, acting under the authority of the Act, the Government promulgated the Foreigners Tribunal Order. This Order authorised the Government to establish Tribunals to determine questions of nationality, in accordance with the provisions of the Foreigners Act. Consequently, the Constitution of India, the Citizenship Act of 1955, the Foreigners Act of 1946, and the Foreigners Tribunal Order of 1964 comprised a comprehensive statutory regime dealing with both substantive and procedural questions of citizenship and migration.

Meanwhile, issues of migration continued to cause conflict in Assam. Matters came to a head during the run-up to the Bangladesh War of 1971, where in fact a massive influx of refugees into India from (what was then) East Pakistan was cited as one of the reasons for India’s involvement in the war. The issues did not cease even after 1971, however, because it was perceived that many of “illegal immigrants” were being put on voting rolls by political parties attempting to create faithful constituencies. Ultimately, this led to a state-wide student movement called the Assam Agitation, which lasted six years, from 1979 to 1985. The movement was sometimes punctuated by violence, including the Nellie massacre of 1983. It was finally brought to a close in 1985, with the signing of the Assam Accord between the Government of India, and the leaders of the movement.

The Assam Accord, S. 6A of the Citizenship Act, and the IMDT Act 

The Assam Accord was effectively a political compromise between the government and the leaders of the Assam Agitation. While providing for two separate cut-off dates for regularisation of migrants (an issue we shall discuss in a moment), the Accord also contained provisions for the development of Assam, as well as obligating the Government to see that “the international border shall be made secure against future infiltration by erection of physical barriers like walls, barbed wire fencing and other obstacles at appropriate places.”

Section 6A of the Citizenship Act – introduced through an amendment in 1985 – was the legislative enactment of the legal part of the Assam Accord. Section 6A divided “illegal” immigrants of Indian origin (i.e., those whose parents or grandparents were born in undivided India) who came into Assam from Bangladesh into three groups: those who came into the state before 1966; those who came into the state between 1966 and 25th March, 1971 (the official date of the commencement of the Bangladesh War); and those who came into the state after 1971. The first group (pre-’66) was to be regularised. The second group (’66 – ’71) was to be taken off the electoral rolls, and regularised after ten years. The third group (’71-onwards) was to be detected and expelled in accordance with law.

Section 6A, therefore, was a special citizenship law for Assam, hammered out as a result of a political settlement. Meanwhile, two years before the Accord and S. 6A, the Parliament had also passed the Illegal Migrants (Determination by Tribunals Act) of 1983. This Act authorised the Government to set up Tribunals for the purposes of determining whether migrants were illegal. Under the Act, the Government framed the Illegal Migrant Rules of 1984. The Act and the Rules, taken together, made some departures from the procedure under the Foreigners Act and the Foreigners Tribunal Order: for example, the procedure for making a reference to the Tribunal was made more onerous, the burden of proof was shifted from the State to the individual, and so on.

Consequently, the statutory regime governing migration to Assam now became Section 6A of the Citizenship Act, read with the Illegal Migrants Act of 1983, and the Illegal Migrant Rules of 1984. While the Government defended this regime on the basis of protecting minorities, who were genuine citizens of India, from persecution they were also attacked as being too lax on illegal migration, and making it almost impossible to deport illegal migrants.

The Judgment in Sarbananda Sonowal vs Union of India

The Illegal Migrants Act and Rules were challenged before the Supreme Court in Sarbananda Sonowal vs Union of India. A three-judge bench of the Supreme Court held that the statutory regime, with its reversal of the burden of proof clause (placing the burden of proof upon the State rather than the alleged illegal migrant), and its procedural requirements of filing applications (“… accompanied by affidavits sworn by not less than two persons residing within the jurisdiction of the same police station in which the person referred to in the application is found, or residing, corroborating the averments made in the application.“), was insufficient to check the problem of illegal migration. Relying upon a 1998 report by the Governor of Assam, the Supreme Court held that there was a flood of Bangladeshi migrants into Assam, which the statutory regime had failed to check. This, the Court held, amounted to “external aggression” against the State of Assam, and under Article 355 of the Constitution, it was the duty of the Union to protect every state against external aggression. Holding the statutory regime of the Illegal Migrants Act and Illegal Migrants Rules to be directly responsible for this failure, the Court held the Act and Rules to be unconstitutional.

After Sarbananda Sonowal, therefore, the Tribunals under the IMDT ceased to function, and the statutory regime reverted to Section 6A of the Citizenship Act, and the Foreigners Act and the Foreigners Tribunal Order. The State’s attempt to get around this through passing the Foreigners Tribunal (for Assam) Order of 2006 was also struck down by the Court in Sarbananda Sonowal (II)

The Referral Order

It is in this context that the challenge to Section 6A of the Citizenship Act came before the Supreme Court. In his referral order, Justice Nariman framed thirteen questions of law:

“(i) Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6A of the Citizenship Act in as much as Section 6A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4 (2) read with Article 368 (1)?

(ii) Whether Section 6A violates Articles 325 and 326 of the Constitution of India in that it has diluted the political rights of the citizens of the State of Assam;

(iii) What is the scope of the fundamental right contained in Article 29(1)? Is the fundamental right absolute in its terms? In particular, what is the meaning of the expression “culture” and the expression “conserve”? Whether Section 6A violates Article 29(1)?

(iv) Whether Section 6A violates Article 355? What is the true interpretation of Article 355 of the Constitution? Would an influx of illegal migrants into a State of India constitute “external aggression” and/or “internal disturbance”? Does the expression “State” occurring in this Article refer only to a territorial region or does it also include the people living in the State, which would include their culture and identity?

(v) Whether Section 6A violates Article 14 in that, it singles out Assam from other border States (which comprise a distinct class) and discriminates against it. Also whether there is no rational basis for having a separate cut-off date for regularizing illegal migrants who enter Assam as opposed to the rest of the country; and

(vi) Whether Section 6A violates Article 21 in that the lives and personal liberty of the citizens of Assam have been affected adversely by the massive influx of illegal migrants from Bangladesh.

(vii) Whether delay is a factor that can be taken into account in moulding relief under a petition filed under Article 32 of the Constitution?

(viii) Whether, after a large number of migrants from East Pakistan have enjoyed rights as Citizens of India for over 40 years, any relief can be given in the petitions filed in the present cases?

(ix) Whether section 6A violates the basic premise of the Constitution and the Citizenship Act in that it permits Citizens who have allegedly not lost their Citizenship of East Pakistan to become deemed Citizens of India, thereby conferring dual Citizenship to such persons?

(x) Whether section 6A violates the fundamental basis of section 5 (1) proviso and section 5 (2) of the Citizenship Act (as it stood in 1985) in that it permits a class of migrants to become deemed Citizens of India without any reciprocity from Bangladesh and without taking the oath of allegiance to the Indian Constitution? 

(xi) Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special enactment qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh to the exclusion of the general Foreigners Act and the Foreigners (Tribunals) Order, 1964 made thereunder?

(xii) Whether Section 6A violates the Rule of Law in that it gives way to political expediency and not to Government according to law?

(xiii) Whether Section 6A violates fundamental rights in that no mechanism is provided to determine which persons are ordinarily resident in Assam since the dates of their entry into Assam, thus granting deemed citizenship to such persons arbitrarily?”

As we can see, these referral questions raise a host of complex issues about the interaction between the State’s sovereign power of conferring citizenship, the right to equal treatment, and the right to preservation of culture and identity; the interaction between rule of law and citizenship provisions arising as a result of political settlements; and the impact of a possible judgment of unconstitutionality upon vested rights that have stood for decades.

The Aftermath

After the referral order, some further petitions were filed, that were tagged with the main case. These included a petition asking that Section 3 of the Citizenship Act be read in a manner that children of illegal immigrants, when it came to Assam, ought not to be granted citizenship, on the basis that Section 6A was a comprehensive provision dealing with the issue of migration and citizenship in Assam. Petitions were also filed challenging the Foreigners (Amendment) Order of 2015 and the Passport (Entry into India) Amendment Rules, 2015, which stated that “persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before the 31 st December, 2014” would be granted exemption from application of the Foreigners Act and the Passport Rules. It is unclear whether the Court will take up these additional issues for hearing as well.

Either way, we shall know more about the progress of this case tomorrow.

(Disclosure: The writer is assisting the Respondents (AASU) in defending the constitutionality of S. 6A)

Guest Post: Same Sex Schools and Gender Discrimination under the Constitution – II: Minority Rights

(This is the second of a two-part series by Anindita Pattanayak on same-sex education and the right against discrimination)

In the previous post, we explored some of the arguments against state-aided same sex educational institutions. In this post, we will examine the issue of rights granted to minority institutions to control admissions, and how it affects the right against non-discrimination under Article 15.

Is Article 29(2) an Exception to Article 15(1)?

The position of same sex education is further complicated in cases where the educational institution in question is a minority institution. The minority institution’s rights to control admission under Article 30 of the Constitution and the permissibility of restricting admission on the ground of sex under Article 29 of the Constitution are then brought into question. Article 29 of the Constitution is titled “Protection of the Interests of Minorities”, and Article 29(1) guarantees to minorities the right to conserve their language, script or culture. Article 29(2) states:

   “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.”

In Shantha Bai, the High Court of Madras reasoned that Article 29(2) allowed Mahatma Gandhi Memorial College to discriminate on the basis of sex, as sex was not explicitly listed as a ground that the educational institution could not discriminate on, unlike in Article 15 where “sex” is clearly mentioned as a ground the State cannot discriminate on. On the relationship between the two rights, the Court reasoned – “it will be seen that while Article 15(1) enacts a general principle. Article 29(2) deals with a particular topic, viz., admission to educational institutions. If the principle generalia specialibus non derogant is to apply, the controlling provision would be Article 29(2) and not 15(1).” In other words, according to the Court, the individual right under Article 15 must yield to the right granted to institutions under 29(2). It must be noted here, that despite being located within the minority-protection scheme of Article 29, Article 29(2) was considered to be a stand-alone provision applicable to all educational institutions and not only minority educational institutions. Interestingly, it was considered special because it applied to educational institutions only.

This issue was addressed again by the High Court of Allahabad in Christian Inter College. Here, the High Court limited itself to examining the constitutionality of such a provision only within the context of minority institutions and held that Article 30 and 29 granted minority institutions the right to control admissions and restrict it on the ground of sex. Though, in that case, it resulted in the admission of girls into the institution, the judgment held that it was “open to the minority community to change its policy and to convert an institution from an institution meant for one of the sexes into a co-educational one and vice versa.

Both these judicial decisions are, however, flawed on this issue. First, the High Court in Shantha Bai completely ignored the issue of whether Mahatma Gandhi Memorial College is a minority institution to which Article 29 would apply at all and if Article 29(2) is applicable to all institutions regardless of minority status. Even if it was a minority institution, the judgment in Shantha Bai and Christian Inter College defy the precedent set by the High Court of Calcutta in Anjali Roy outright. The decision by Bose J. before appeal states,

Article 29(2) does not refer to the ground of sex. So this article by itself does not invalidate any order of the State Government or of the Authorities of an educational institution of the type described in Article 29(2) restricting the admission of women students into government or Government-aided institutions. Article 15(1) which is of wider application than Article 29(2) prohibits discrimination on the ground of sex on all matters and so it includes discrimination in matters of admission to educational institutions. The result is that Article 15(1) should be construed as controlling Art 29(2) of the Constitution, and tested in this light the order complained of would be bad being in contravention of Article 15(1) of the Constitution.”

On appeal, this observation was neither affirmed nor denied. Yet, Sen J, in the judgment on appeal held that it was open to a minority institution to restrict admission on the basis of sex. The justification provided was that, “the framers of the constitution may have thought that because of the physical and mental differences between men and women and considerations incidental thereto, exclusion of men from certain institutions serving women only and vice versa would not be hostile or unreasonable discrimination.”

This reasoning can no longer pass muster post Aruj Garg which warns against perpetuating gender stereotypes and reasoning grounded in the belief that males and females have particular tendencies or different ways of thinking.


Is Article 30 an Exception to Article 15?

Now, let us address the issue of the right granted to minority educational institutions under Article 30. Article 30 guarantees to minorities the right to “establish and administer educational institutions of their choice.” It becomes necessary to question why a minority institution decides to restrict admission on the ground of sex. The purpose of Article 30 is to allow religious and linguistic minorities to promote their cause or community. The Supreme Court, while trying to interpret the possible clashes between the right under Article 30 and Article 29(2) has taken this purpose into account and examined the reasons why a minority institution would draw a distinction between one class of persons and another and what purpose such a classification this would serve. According to the Supreme Court in TMA Pai v. State of Karnataka,when the right of admission is exercised not to meet the need of the minorities, the rights of admission given under Article 30 (1) is to that extent removed and the institution is bound to admit students for the balance in keeping with the provisions of Article 29 (2).” If a similar strain of interpretation is employed in determining the clash between Article 30 and Article 15, it can be seen that a minority educational institution cannot show the nexus between denying admission to female students and the promotion of the minority community’s interests. Thus, Article 15 should prevail to that extent.


Reconciling an Expanded 29(2) with 15(1)

Recent decisions on Article 15, Article 29 and Article 30 negate the reasoning employed in Christian Inter College as well. According to the High Court of Allahabad in that case, restriction on admission on the ground of sex was permissible only for minority institutions as “sex” is not listed in Article 29(2). However, the Supreme Court has held that Article 29(2) applies not just to minority institutions but all educational institutions maintained by the State or receiving aid out of State funds. Extending the Supreme Court’s logic, all educational institutions maintained by the State or receiving aid out of State funds can then restrict admission on the ground of sex. However, this conclusion is absurd as the High Court itself follows Tewari and agrees that denial of admission to women by non-minority institutions is unconstitutional.

The best way to reconcile this anomaly is to argue that education is a public function that requires even aided minority institutions to follow constitutional principles of gender equality. A similar strain of reasoning was adopted in T.M.A. Pai where it was argued that the State had an interest in maintaining standards in professional courses which allowed it greater powers of interference in the administration of educational institutions offering professional courses.

The practice of same sex education can no longer be declared constitutional without a direct engagement on the merits of same sex education and a discussion on the tangible benefits of segregation of men and women in education. The only attempt at discussing the merit of co-education has been by a half hearted one by Markandey Katju J. in the following words –

Co-education is healthy and good for the development of the personalities of both boys and girls. If there is co-education boys and girls will know how to interact with each other in a healthy manner and this will also help them towards social adjustability… A young man does not know how to interact with a young lady and behave in her presence and the young lady is terror stricken in the presence of a young man as she has only interacted with her father and brother till then. This segregation leads to several kinds of psychological and social problems fend hence it should be done away with.

Without more rigorous and well researched analysis on the merits of same sex education, denial of admission to state aided same-sex educational institutions has to be declared unconstitutional.