Assam to shut aided madrasas, Sanskrit schools: What Constitution says on minority institutes

New Delhi, Feb 14, 2020: In a significant decision, the Assam government has decided to shut down all government madrasas and Sanskrit tols, to reinvent themselves as high and higher secondary schools.

Finance and education minister Himanta Biswa Sarma quoted as saying that the government would bring about a regulation “requiring madrasas to make certain mandatory disclosures and impart compulsory general education along with religious teachings”.

The decision has been met with criticism, with the All Assam Minority Students’ Union (AAMSU) having since declared the decision as having “a communal undertone”.

But can the government impose conditions on minority educational institutions to which it grants aid? ThePrint explains.

What does the Constitution say?
Article 29 and 30 of the Constitution primarily focus on the rights of minorities.

Article 29 states that “any section of citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same”. Clause 2 of the Article provides the right to citizens to not be denied admission into state maintained and state-aided institutions only on the grounds of religion, race, caste, or language.

Article 30 of the Constitution of India grants minorities the right to establish and administer educational institutions. It protects both religious and linguistic minorities. Clause 2 of the provision also prohibits the government from discriminating against any educational institution on the grounds that it is managed by a minority community, while granting aid to educational institutions.

Additionally, Article 28 (1) bars “religious instruction” in any educational institution “wholly maintained out of State funds”. But clause 2 of Article 28 makes an exception for those educational institutions which are administered by the State but have been established under any endowment or trust which requires that religious instruction be imparted in the institution.

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What does “right to administer” mean?
In the 2002 case of TMA Pai Foundation & Ors v. State of Karnataka & Ors, an 11 judge Supreme Court bench considered the scope of the right of minorities under Article 30(1) read with Article 29(2) of the Constitution.

The court noted that the right to establish and administer broadly comprises five rights: to admit students; to set up a reasonable fee structure; constitute a governing body; appoint teaching and non-teaching staff; and take action if there is dereliction of duty on the part of any employees.

However, the approach accepted by the courts so far has been on a case-to-case basis, on the basis of certain ‘tests’ evolved by them.

Can the government impose conditions while granting aid?
The court ruled that the right under Article 30 is not absolute and that the government can impose legal and regulatory measures while granting aid to minority institutions, for ensuring that requisite educational standards are maintained.

It, however, asserted that these conditions should not, in any way, dilute the rights or status of the minority institution.

“This means that the right under Article 30(1) implies that any grant that is given by the state to the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfillment of the objectives of the grant,” it observed.

What conditions can be imposed?
The Supreme Court has, over the years, upheld some of the conditions imposed by the governments on aided minority institutions.

For instance, the Supreme Court held in the Gandhi Faiz-e-Am College, Shahjahanpur v. University of Agra and another that the question that would have to be asked is whether the conditions are “tenable as ensuring the excellence of the institution without injuring the essence of the right”.

In the 1958 judgment in the case of In Re: The Kerala Education Bill, which is a landmark decision on minority educational institutions, the court held that the regulation “must satisfy a dual test – 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.”

So on 6 January this year, the Supreme Court upheld the Constitutional validity of the West Bengal Madrasah Commission Act 2008, which empowered a commission to nominate teachers for aided madrasas in West Bengal. These madrasas had been declared minority education institutions in the state in 2007.

Analysing the provisions of the Act, the court opined that the law took care of the interest of the minority institutions, while also balancing “national interest”.

Other attempts at “modernising madrasas”
The idea of modernising madrasas in the country dates as far back as 1983, by the then Congress government, in the form of an ‘Area Intensive and Madrasa Modernization Programme’ sponsored by the Ministry of Human Resource Development.

More recently, the ‘Scheme for Providing Quality Education in Madrasas’ (SPQEM) was launched in 2008-09, with five major objectives ranging from financial assistance to introduce subjects like science, mathematics etc, to in-service training of teachers appointed under the scheme.

Up until 2018, the scheme was being implemented in 18 states in the country, including Assam. However, SPQEM has since been entangled in controversies, with teachers of UP madrasas taking it to the streets in September last year, claiming that they had not been paid for over 43 months.

The Yogi government in Uttar Pradesh had also rolled out the agenda of modernising madrasas in the state, even launching a dedicated portal, madarsaboard.upsdc.gov.in, for ushering in the modernisation of madrasas and ensuring transparency in their functioning.