Is the new amendment to Gujarat’s education law violating minority rights?

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On March 31, the Gujarat State Assembly passed the Gujarat Secondary and Higher Secondary Education (Amendment) Bill, 2021 making the appointment of teaching faculty and principal of minority educational institutions a centralised process. State government records suggest that there are 397 secondary and higher secondary schools run by religious and linguistic minority organisations in Gujarat. Further classification indicates that there are 300 religious minority including 173 Muslim, 89 Christian, 10 Parsi, 25 Jain, 2 Jew and 1 Sikh schools. Further, there are 97 linguistic minority schools including Hindi (71), Sindhi (13), Marathi (10), Tamil (1), Urdu (1) and Malayalam (1).

The Catholic Church of Gujarat and Father Teles Fernandes, secretary of Gujarat Education Board of Catholic Institutions have challenged this amendment before the Gujarat High Court while contending that they are losing their autonomy in staff recruitment completely. The division bench of Chief Justice Vikram Nath and Justice Biren Vaishnav issued notice to the state government on June 22 and has sought a response within 3 weeks.

The State’s Education Minister Bhupendrasinh Chudasama spelled out the statement of objects and reasons while introducing the bill and cited Supreme Court’s judgement in TMA Pai Foundation & Ors vs. State of Karnataka & Ors 2002 to justify the amendment while stating that academic standard cannot be lowered in any manner.

“Regulations can be framed governing service conditions for teaching and other staff of minority educational institutions where the aid is provided by the State without interfering with overall administrative control of management over the staff,” said Chudasama.

The amendment

A bare reading of just the amendment Act will not give a complete picture of how this has affected the minority educational institutions and in what way. The amendment substitutes Section 40A as follows:

“Notwithstanding anything contained in this Act, sub-section 1 of section 34, and clause (b) of sub-section 1 and sub-sections 2, 3, 4 and 5 of section 36 shall not apply to any educational institutions established by a minority, whether based on religion or language”

Section 40A prior to the amendment as per the latest bill read as follows:

“Nothing contained in clause 26 of section 17, sections 34 and 35, and clause b of sub-section 1 and sub-sections 2, 3, 4 and 5 of section 36 shall apply to any educational institutions established and administered by a minority, whether based on religion or language”

Once read with the sections referred herein from the Act, the intentions of the state legislature become amply clear. The amendment effectively makes clause 26 of section 17 as well as the rest of the sub-sections of section 34, and the entirety of section 35 applicable to minority institutions.

Section 17 of the Act spells out powers and duties of the Gujarat Secondary and Higher Secondary Education Board and clause (26) which has now been made applicable to minority institutions empowers the Board to lay down qualifications, methods of selection and conditions of appointment, promotion and termination of employment and rules for conduct and discipline of the headmaster and the teaching and nonteaching staff of all secondary and higher secondary schools.

Prior to the amendment, the whole of section 34 was inapplicable to minority institutions but after the amendment, only sub-section 1 was made inapplicable while sub-section 2 has been now applied to minority institutions. Sub-section 1 mandates that schools must have 15% vacancy in teaching staff for persons belonging to Scheduled Castes and Scheduled Tribes. Sub-section 2 of section 34 allows the Board to regulate the recruitment and conditions of service including conduct and discipline of persons appointed as headmaster, teachers and members of non-teaching staff of all schools including minority-run schools of secondary and higher secondary level.

Prior to the amendment, section 35 was not at all applicable to minority-run schools but the amendment has completely reversed the situation. This means that the minority-run schools will need to appoint selection committees; one for recruiting the teaching staff and a Special Committee for appointing the headmaster. The staff selection committee shall be constituted by two representatives from the school management, the headmaster of the school, one representative of the Board and two teachers (if total teachers are more than 6) else, one teacher.

The Special Committee shall comprise two representatives of the school management and two representatives of the Board. Any appointment made in contravention to these provisions shall be ineffective.

After having read the amendment into the context of the Act and the previous section which existed before the amendment, it has become clear that the appointment of teachers and headmaster of minority-run schools is no longer autonomous to those schools as was the case earlier. Representatives of the Education Board will now be a part of this process and will get involved in the selection process. Moreover, due to application of sub-section 2 of section 34, the Board is empowered to regulate the conduct and discipline of headmaster, teachers and members of non-teaching staff thus appointed.

The amendment, thus, mandates minority institutions to follow a centralised recruitment policy of the state government.

Challenged in court

The Catholic Church of Gujarat, Father Teles Fernandes, secretary of Gujarat Education Board of Catholic Institutions have challenged this amendment before the Gujarat High Court while contending that they are losing their autonomy in staff recruitment completely. Earlier they were required to acquire a No Objection Certificate from the state government for the recruitments. After the amendment, the recruitment process has been practically taken over by the state government. The posts will be advertised by the state government, a merit list will be prepared based on the qualifications and appointments will be made.

Father Vinayak Jadhav, spokesperson of Catholic Church of Gujarat, told the Indian Express, “The right of disciplinary action against any erring staff has been taken away. These were the rights given to minority institutions under minority rights enshrined under Article 30 (1) of the Constitution of India, which is to establish and administer educational institutions of their choice. With this notification, the human right ensured to the minority, goes for a toss.”

Minority rights

The Article 30 of Indian Constitution provides minorities with the right to establish and administer educational institutions. While the word “minorities” has not been defined in the Constitution, it is a relative term used to refer to the smaller of the two numbers, sections or group called “majority”. Minority group just means a non-dominant group. The minority referred to in this Gujarat amendment is linguistic and religious minority.

Article 30 of the Constitution reads as follows:

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice

(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause ( 1 ), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause

(2) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language

Article 30 confers two rights: right to establish the institution and right to administer it. The latter refers to management of affairs of the institution. In Md. Joynal Abedin v. West Bengal AIR 1990 Cal 193 the Calcutta High Court held that the management of affairs must be free of external control so that the founders or their nominees can manage the institution as they think fit in accordance with their ideas of how best the interest of the community in general and the institution in particular will be served.

In State of Kerala, Etc. v. Very Rev. Mother Provincial, Etc. [(1971) 1 SCR 734] held that an exception to the right under Article 30 was the power with the state to regulate education, educational standards and allied matters and that the minority institutions could not be allowed to fall below the standards of excellence expected of educational institutions or under guise of the exclusive right of management, allowed to decline to follow general pattern.

In TMA Pai Foundation & Ors vs. State of Karnataka & Ors 2002 (8) SCC 481, which has been cited by Education Minister Chudasama, the 11-judge bench of the apex court has held that unaided minority educational institutions have the right to administer albeit not an absolute one and the state could still impose regulations for ensuring educational standards. In All Saints High School v. Andhra Pradesh AIR 1980 SC 1042, the Supreme Court held “standard” of education to not be a part of “management”.

In St. Xavier’s College v. state of Gujarat AIR 1974 SC 1389, the apex court had held that the regulation made by the state government cannot go to the length of annihilating the right guaranteed by Article 30 (1) and that the said regulation must be related to the interests if the institution as an educational institution and not merely in the interests of general public.

In Virendra Nath v. Delhi (1990) 2 SCC 307, the apex court held that while Article 30(1) is subject to the regulatory power of the State, the minority cannot be deprived of actual management of the institution due to such regulation.

However, the point of violation of rights under Article 30 (1) arises in cases of unaided minority institutions as reiterated by the Supreme Court in Sk. Md. Rafique v. Contai Rahamania High Madrasah (Civil Appeal No.5808 of 2017; decided on January 6, 2020). The Court held that Government-aided minority-run educational institutions do not have an absolute right to appoint teachers while upholding the validity of the West Bengal Madrasah Service Commission Act, 2008, that set up a commission to appoint teachers in government-aided madrasas in the state.

Thus, the new amendment to the the Gujarat Secondary and Higher Secondary Education Act imposed on minority run institutions is evidently a violation of minority rights under the Constitution.