Minorities’ Fundamental Right under Article 30 cannot be waived, Supreme Court reiterates [Read Judgment]

A three-judge Bench of the Supreme Court recently reiterated that the fundamental right of minorities to establish and administer educational institutions of their own under Article 30 of the Constitution cannot be waived..Observations to this effect were made while dealing with a case that involved the question of whether a Sikh school set up in Calcutta would continue to retain its minority status under Article 30, in the particular facts of the matter. The Bench of Justice RF Nariman, Subhash Reddy and Surya Kant ruled,.“… it is settled law that the fundamental right under Article 30 cannot be waived (See St. Xavier’s (supra) at pages 260 to 262 per Mathew, J.; Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 and 569 to 571.) In the recent judgment in K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, Chandrachud, J. has echoed this sentiment…”.Factual Background.The case had its genesis in the appointment of two teachers to the Khalsa Girls High School in West Bengal. These appointments were blocked by State authorities citing that they were not made with the sanction of the School Service Commission (SSC) established under the Rules for Management of Recognised Non-Government Institutions (Aided and Unaided), 1969 (1969 Rules)..Aggrieved by the decision, the two teachers moved the Calcutta High Court in 2003. In 2004, a Single Bench ruled in their favour, finding that the school was a minority institution and therefore entitled to make its own faculty appointments in view of their fundamental rights under Article 30..On appeal, however, a Division Bench of the High Court set aside the verdict and the quashed appointments on the ground that the Khalsa School was a recognised aided institution and was thereby bound by the 1969 rules. It opined that the institution had not made any claim to being a minority institution under the 1969 Rules, and therefore its employees cannot claim such status on its behalf..Further, it was also noted that the school had applied for a special constitution under Rule 8. Once a minority community applies for a special constitution under sub-rule (3) of Rule 8 of the said Rules it represents to the State Government that it was not claiming the status of a minority institution, the Court held..This led to the appeal in Supreme Court. The appeal in the case before the Supreme Court saw a split verdict between Justices TS Thakur and R Banumathi in 2015..Justice Thakur ruled that it was clear that the school was a minority institution and therefore entitled to its autonomy when it comes to appointing teachers, in the exercise of its rights under Article 30. Justice Banumathi, on the other hand, agreed with the High Court Division Bench that in the absence of any State education authority granting it minority status, the school could not claim to be minority institution for the purpose of Article 30. Moreover, since it had applied for a special constitution, it would be bound by the 1969 rules..The difference in opinion led to the matter being placed before a three-judge Bench of the Supreme Court..What the three-judge Bench held.The three-judge Bench was of the unanimous view that the stance adopted by Justice TS Thakur was correct. On facts, it was noted that the school was conceived as a minority institution for the benefit of the Sikh community – a minority in West Bengal. In this regard, a letter issued in 1976 was relied upon, which spoke of the establishment of the school for the welfare of the Sikh community..As far as the 1969 Rules were concerned, the Court pointed out that the approval of the special constitution applied for by the school was done in deviation of the normal procedure followed under Rule 6, recognising the fact that it was a minority institution. The Bench also noted that there was no other rule in the 1969 Rules applicable specifically to minority institutions. While this is the case, the Court highlighted that, after a 2008 amendment, Rule 32 (c) of the 1969 Rules provided that minority institutions would be exempted from its purview..The Court proceeded to reject the arguments that the absence of a report by any Special Officer for linguistic minorities under Article 350B of the Constitution and the absence of a declaration of minority status by an authority under the West Bengal Board of Secondary Education Act, 1963 would take away the minority status of the school..In any case, the Bench held that once it has been established that the school is a minority institution, particularly in view of the reasons prompting its inception, the school cannot waive its minority status as the same constitutes a fundamental right. In view of these observations, the Court held,.“… if Respondent No.4 (Khalsa Girls School) is a minority institution, Rule 28 of the Rules for Management of Recognized Non-Government Institutions (Aided and Unaided) 1969, cannot possibly apply as there would be a serious infraction of the right of Respondent No.4 to administer the institution with teachers of its choice.”.While rejecting yet another argument that the use of the “national language” Hindi would indicate that the school is not a minority institution, the Court added,.“There can be no doubt that qua the State of West Bengal, Sikhs are a linguistic minority vis-à-vis their language, namely, Punjabi, as against the majority language of the State, which is Bengali. The argument of the learned counsel appearing on behalf of the State that the school is, in fact, teaching in the Hindi medium is neither here nor there. .What is important is that the fundamental right under Article 30 refers to the “establishment” of the school as a linguistic minority institution which we have seen is very clearly the case, given paragraphs 5(a) and 5(b) of letter dated 19th April, 1976. Therefore, the medium of instruction, whether it be Hindi, English, Bengali or some other language would be wholly irrelevant to discover as to whether the said school was founded by a linguistic minority for the purpose of imparting education to members of its community. This argument also, therefore, must be rejected. “.On the strength of these observations, the Court allowed the appeals and upheld the initial Single Judge High Court order, passed over 15 years ago..[Read Judgment]