Supreme Court delivers judgment 4.0
When the entire world is preparing itself for Globalisation 4.0, the new era of industrial revolution, can judiciary be left behind? Certainly not. The Supreme Court (SC) has recently delivered the 4.0 version of an issue that has seen three of its previous versions swinging in different directions and now rolled into a new direction. A two-judge bench has held that the provisions of the West Bengal Madrasah Service Commission Act, 2008, are not violative of the rights of minority educational institutions on any count.
The famous TMA Pai Foundation case (2002) seems to have been the sheet anchor of this judgement and discussed in three distinct headings—decisions pre-, decisions in and decision post-TMA Pai Foundation case. The pre-TMA Pai discussions were dominated by a seven-judge bench Presidential reference in respect of the Kerala Education Act, 1958, and the nine-judge bench order in the St Xavier’s College Society case (1974). The TMA Pai Foundation was a landmark 11-judge order which laid down the contours of governmental regulations on private institutions and still occupies the education field in so far as the constitutionality of statutes and regulations is concerned.
The post-TMA Pai was characterised by the seven-judge verdict in PA Inamdar case (2005) and the five-judge order in the Islamic Academy of Education case (2003). The current judgement reinforces the legal supremacy of the 11-judge TMA Pai case over the arithmetic 12-judge combination of Inamdar and Islamic.
The SC in its recent order records: “The decision in TMA Pai Foundation case, rendered by the 11 Judges of this Court, thus put the matter beyond any doubt and clarified that the right under Article 30(1) is not absolute or above the law” and highlighted the test laid down by Justice Khanna in the St Xavier’s College case as the correct approach. The essence of Article 30(1) was also stated by Justice Khanna—“to ensure equal treatment between the majority and the minority institutions” and that rules and regulations would apply equally to majority and minority institutions.
The SC in Para 47 of the order observes that the test accepted by the TMA Pai Foundation case and the balance between institutional excellence and preserving rights of minorities needs to be considered in the context of two categories of institutions. It records that maximum latitude must be given to management of minority institutions that directly aim to preserve their special religious and linguistic characteristics but for those minority institutions imparting purely secular education such as Physics, Chemistry, etc, excellence is of paramount importance. There cannot be a time more appropriate than this to recall former Chief Justice PB Gajendragadkar, who in 1972 said when minority institutions offer generic education with teachers and students predominantly cosmopolitan and have no connection whatever with the protection of the language, culture or script of the minority concerned, then “it may not be legitimate to grant such collegiate institutions the benefit of the absolute right conferred on religious & linguistic minorities by Articles 29 & 30 in general and Art. 30(1) in particular”. In short, the Supreme Court delivers Judgment 4.0.
(S Vaidhyasubramaniam, Vice-Chancellor, SASTRA Deemed University can be contacted at vaidhya@sastra.edu)