Plea against SC judgment in Bengal Madarsah case about minority institutions rights


The judgment declared valid law, few provisions of which were held to be unconstitutional by the Calcutta High Court on two occasions

Jan13, Contai Rahmania High Madrasah filed a plea against a recent Supreme Court judgment which allowed appointment of teachers to a minority institution by a Commission, as per the law formulated by West Bengal legislature and upheld the to be constitutional.


A writ petition was filed by Managing Committee of Contai Rahmania High Madrasah challenging validity of Sections 8, 10, 11 and 12 of the West Bengal Madrasah Service Commission Act, 2008. The contention of the Madrasah was that the process of appointment of teachers at unaided Madrasah was entrusted to the Commission and also to make recommendations which would be binding on the Madrasah. These provisions were said to be transgressing upon the rights of a minority institution like the Madrasah of choosing its own teachers.

This submission was accepted by a Single Judge of the Calcutta High Court and later affirmed by a division Bench of the same court in appeal.

The Single Judge, while relying on judgments of the Supreme Court held that the right to administer an institution is primarily to consist of four principal aspects:

1. the right to choose its managing or governing body

2. the right to choose its teachers having compatibility with their ideals, aims and aspirations,

3. the right not to be compelled to refuse admission to the students,

4. the right to use its properties and assets for the benefit of its institution.

The Single Judge while citing a few Supreme Court judgments observed that

“a minority institution’s right to select its teachers is a part of the right to administer an institution which Article 30 has conferred on it.  The Single Judge had thus concluded that the West Bengal Madrasah Service Commission Act tends to take away the protected right conferred upon the minorities to administer institutions according to their choice.  The right of the Commission to select and recommend teachers for these institutions in a very major way interferes with the right to administer those institutions rendering a constitutional mandate virtually ineffective.”

The Court also held of Sections 8, 10, 11 and 12 of the Act to be not in consonance and in derogation of the protection guaranteed by the Constitution. It held,

“Read with the subsequent provisions there is an element of compulsion in the effect of the recommendation made by the Commission which is really against the freedom guaranteed in Article 30 of the Constitution of India.  Section 8 of the said Act is hereby declared ultra vires the Constitution.  In view of what has been discussed before the prayer of the petitioner is moulded and Sections 10, 11 and 12 of the Act are also declared ultra vires the Constitution.”

The Division Bench while affirming the judgment had held,

“the scheme of the Act instead of being regulatory, prohibits the freedom of minority institutions in selecting its own personnel.  It is one thing to regulate the process of appointment by providing guidelines etc. 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.”

The Supreme Court’s stand

The Supreme Court bench comprising of Justice Arun Mishra and Justice Uday Umesh Lalit, while subverting the decisions of the Calcutta High Court referred to The Kerala Education Bill case which laid down a dual test for regulations for minority institutions receiving government aid: the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it.

Further it also referred to the Ahmedabad St. Xavier’s College case wherein it was observed that,

“The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service.”

The Supreme Court conclusively held that,

“a regulation framed in the national interest must necessarily apply to all institutions regardless whether they are run by majority or minority as the essence of Article 30(1) is to ensure equal treatment between the majority and minority institutions.  An objection can certainly be raised if an unfavourable treatment is meted out to an educational institution established and administered by minority.  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 may stand on a completely different footing.”

It also upheld that principle that regulations which will serve the interest of the students so also regulations which will serve the interest of the teachers are of paramount importance in good administration; that regulations in the interest of efficiency of teachers are necessary for preserving harmony amongst the institutions; and that the appointment of teachers is an important part in educational institutions.

The Court questioned if excellence in education can be achieved if the institutions were to employ teachers with minimum requisite qualifications in the name of exercise of Right under Article 30 of the Constitution, while better qualified teachers are available to impart education in the second category of institutions. It held that any departure from the concept of merit and excellence would not make a minority educational institution an effective vehicle to achieve what has been contemplated in various decisions of this Court.

While considering the impugned provisions of the Act, the Court held that 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 and such error may be that the Madrasah has a better qualified teacher than one recommended by the Commission and the Commission “will certainly have to rectify and remove the error.”

The Court held that since the minority institutions rights have been well-protected by the legislation by giving them power to point out error of the Commission and also gives it power to refuse the recommendation basis reasonable ground, the provisions cannot be said to be unconstitutional and hence deemed Sections 8, 10, 11 and 12 of the Commission Act to be valid and constitutional.

The plea against this judgment of the Supreme Court is to be heard by a bench headed by Chief Justice S.A. Bobde and comprising Justices B.R. Gavai and Surya Kant will be heard in the coming week.

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