Mere Conferment Of Power On State To Regulate Teacher Recruitment In Minority Schools Doesn't Violate Article 30: Gujarat High Court

Upholding the 2021 amendments to Gujarat Secondary and Higher Secondary Education Act which allowed the State to make rules regarding recruitment of teachers and principals in linguistic and religious minority schools, the Gujarat High Court said that the language of the provisions did not denote that the State had any "unfettered, uncannalized or unlimited power" to make regulations. It further emphasized that though power of the state to regulate is not unfettered however mere conferment of power by enabling provisions alone cannot be perceived as infringement of protection granted to minority institutions under Article 30 of the Constitution of India. A division bench Chief Justice Sunita Agarwal and Justice Pranav Trivedi in its 260 page order further said, "The power of the State to regulate, though, is not unfettered or unlimited but mere conferment of power by enabling provisions itself, cannot be perceived as infringement of the protection of Article 30 (1) of the Constitution. The language of the above provisions is not such, which can be said to be unfettered, uncannalized or unlimited power of the State to make regulations as while framing regulations, the State legislature or the Board are expected to be alive of the constraint on their powers in the matter of making law regulating minority institutions put forth by the Constitution [Article 30(1)], which do not interfere with the right of minorities management to administer their institutions".The court noted that the three provisions in the Act–Section 17 (26), Section (2) and Section 35, brought into force by the Amendment Act of 2021, are "merely enabling provisions" empowering the State Government and the Board (as the case may be) to make regulations, to regulate the minority institutions, so as to carry out the purposes Act, the "object of which is to achieve excellence in education by maintaining standards of minority institutions".The court was hearing a batch of pleas by various such institutions challenging the 2021 amendments which applied a centralised process of recruiting teachers and principals in such schools. On Grant-in-aid from State and if it curtails institution's rights The court noted that the question whether Article 30 gives a right to ask for grant or aid from the State and further, to what extent its autonomy in administration can be curtailed or regulated had been considered in TMA Pai Foundation & Ors. vs. State of Karnataka & Ors specifically in the matter of admission to educational institutions established by minority community."While answering, it was said that the grant of aid is not a constitutional imperative. Article 30 (1) would not justify a demand for aid, and it cannot be said that the absence of aid makes the right under Article 30(1) illusory. However, a minority institution shall not be discriminated against when aid to educational institution is granted. When the State chooses to grant aid to educational institutions, it cannot deny aid to a religious or linguistic minority institution only on the ground that the management of that institution is with the minority," the court said. It further noted that Supreme Court had held that "if an abject surrender of the right to management is made a condition of aid, the denial of aid would be violative of Article 30(2)". However, if the conditions of grant of aid do not involve a surrender of the substantial right of management it would not be inconsistent with constitutional guarantees, even if they indirectly impinge upon "some facet of administration".The conditions for affiliation, recognition and for grant-in-aid to educational institutions have to be uniformly applied whether it is a majority run institution or minority run institution. State can regulate if regulations do not impinge on rights of minoritiesReferring to TMA Pai and Ahmedabad St. Xavier's College Society v. State of Gujarat (1974) the court said that it well established that no educational institution established by religious or linguistic minority can claim total immunity from the regulations by the legislature or uniformity, if it wants affiliation or recognition.However the character of the permissible regulations must depend upon their purpose; such regulations will be permissible if they are relevant to the purpose of securing or promoting the object of recognition or affiliation. "On a conjoint reading of both the decisions (the Ahmedabad St. Xavier's and TMA Pai Foundation), we find that the consistent view has been on the concept of equality under Article 30 (1) in the matter of recognition, affiliation and grant-in-aid; autonomy of recognized private educational institutions whether aided and unaided and both the decisions are directly aimed towards one fundamental principle of the right of the State to regulate by making such regulations, which do not impinge upon the right of minorities under Article 30(1) of the Constitution. While making...

Mere Conferment Of Power On State To Regulate Teacher Recruitment In Minority Schools Doesn't Violate Article 30: Gujarat High Court

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