The story so far: The Supreme Court on April 5 stayed the operation of the Allahabad High Court’s decision declaring the Uttar Pradesh Board of Madarsa Education Act, 2004 (Act) unconstitutional. The legislation allowed the State government to establish the Uttar Pradesh Board of Madarsa Education to regulate madarsas in the State and impart education from primary to postgraduate and research levels.
A Bench comprising Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra passed the interim stay order, observing that the High Court’s views appeared to be prima facie incorrect and that the object of the statute is merely regulatory in nature.
Notably, after the Bench enquired why the State was not defending the legislation as it had done in the High Court, Additional Solicitor General (ASG) K.M. Nataraj clarified that the Uttar Pradesh government has now learnt to “accept” the High Court’s verdict.
There are 16,513 recognised madarsas, of which 560 are aided by the government, and over 8,400 unrecognised madarsas in Uttar Pradesh. Iftikhar Ahmed Javed, chairman of the Uttar Pradesh Board of Madarsa Education, told Reuters earlier that the High Court’s ruling had the potential to impact 2.7 million students and 10,000 teachers in 25,000 madarsas in the State.
What was the case?
A single judge of the Allahabad High Court on October 23, 2019, while hearing a petition filed by Mohammed Javed, expressed doubt regarding the validity of the Act. Mr. Javed was appointed as a part-time assistant teacher in 2011 for the primary section of Madarsa Nisarul Uloom Shahzadpur, Akbarpur Post Office, District Ambedkar Nagar on a fixed salary of ₹4,000 per month, subject to an 8% annual increment. He approached the High Court contending that he should be paid a salary equivalent to regular teachers and that appointments to madarsas should instead be regulated by the State government, the Madarsa Shiksha Parishad and the district minority welfare officer.
While referring the matter to a larger Bench, the judge observed, “With a secular Constitution in India, can persons of a particular religion be appointed or nominated in a board for education purposes or should it be persons belonging to any religion, who are exponent in the fields for the purposes of which the board is constituted...?”
Meanwhile, lawyer Anshuman Singh Rathore filed a Public Interest Litigation (PIL) petition in the High Court challenging the validity of the Act on the ground that it violated secularism as well as Articles 14 (equality before law), 15 (which forbids discrimination) and 21-A (right to education) of the Constitution. The larger Bench accordingly framed the question of law for adjudication as — “Whether the provisions of the Madarsa Act stand the test of secularism, which forms a part of the basic structure of the Constitution of India?” The impugned verdict was jointly pronounced on all such pleas.
Why did the High Court strike down the law?
After perusing the subjects taught in the madarsas, a Bench comprising Justices Subhash Vidyarthi and Vivek Chaudhary observed that the education imparted in such institutions is “neither quality nor universal in nature” and that “the State has no power to create a Board for religious education or to establish a Board for school education only for a particular religion and philosophy associated with it.”
Accordingly, it asserted that “any such action on the part of the State violates the principle of secularism, which is in the letter and spirit of the Constitution of India. The same also violates Article 14 of the Constitution of India, which provides for equal treatment to every person by the state.” On the submissions of the State about the substantial presence of madarsas in Uttar Pradesh, the Court directed it to forthwith take steps for accommodating these students in regular schools recognised under the Primary Education Board and the High School and Intermediate Education Board of Uttar Pradesh.
“The State Government for the said purpose shall ensure that as per requirement sufficient number of additional seats are created and further if required, a sufficient number of new schools are established. The State Government shall also ensure that children between the ages of 6 to 14 years are not left without admission in duly recognised institutions,” it ordered.
The Court further noted that the definition of “madarsa-education” under Section 2 (h) of the Act includes “Islamic studies.” It also perused the syllabi that the students were being taught and found that it was compulsory to study Islam as a religion in every class including all its doctrines to get promoted to the next class. However, modern subjects such as Hindi, English, maths, science, and social sciences are either absent or are optional, and students have the choice to study just one optional subject.
Thus, the Bench concluded that the scheme and the purpose of the Act was only to promote and provide education on Islam and its prescriptions and is therefore not equivalent to the education being imparted to the students of other regular educational institutions recognised by the State Primary, High School and Intermediate Boards. This amounted to a violation of Articles 21A and 21 of the Constitution, it underscored. It was also emphasised that the State could no longer hide behind the “lame excuse” that it is fulfilling its duty by providing traditional education at a nominal fee.
Pointing out that “higher education” is a field reserved under Entry 66 of the Union List of the Seventh Schedule of the Constitution, the Court opined that the State government lacks the competence to legislate on such matters.
What were the arguments before the top Court?
Appearing for an association of madarsa teachers which challenged the High Court ruling, senior advocates A.M. Singhvi, Salman Khurshid and Maneka Guruswamy, said that the verdict affected the lives of nearly 17 lakh students spread across 16,000 madarsas in Uttar Pradesh. They said that contrary to the State’s submission, only 560 of the 16,000 madarsas were recognised by State funds. It was also pointed out that subjects other than Islamic theology are also taught in the madarsas.
Pressing for an interim stay, Mr. Singhvi, said, “The reason why the Court should stay is: a regime is there, uninterrupted for 120 years. 17 lakh students and 10,000 teachers cannot be absorbed in other schools with the academic year ending. There will be chaos.” He also pointed out that the High Court had not examined the locus standi and bonafide of the petitioner who filed the PIL.
Contending that the Act is only regulatory in nature, the petitioners apprised the Court that the State under Entry 25 of the Concurrent List of the Seventh Schedule of the Constitution is competent to enact such legislation. If the statute is revoked, it will mean that madarsas will be left unregulated and the standards will fall, they further argued.
Addressing the embargo entailed in Article 28 of the Constitution which prohibits the imparting of any religious instruction in educational institutions “wholly maintained out of State funds,” the petitioners pointed out that partly funded and private madarsas also exist. Reliance was also placed on the Supreme Court’s verdict in Ms Aruna Roy v. Union of India (2022), to point out that imparting religious instruction in secular institutions was not proscribed in the Constitution.
Defending the High Court ruling, Attorney General R. Venkataramani submitted in Court, “How did you support a law which provides for a wide array of State entanglement with religion and religious institutions? That is the basic question” He also asserted that the impugned ruling did not paralyse the madarsas but only relieved the State from providing financial aid to them. ASG K.M. Nataraj further pointed out that State government bears a financial burden of ₹1096 crore in providing aid to madarsas.
Explained | Why have madarsas been in the spotlight in Uttar Pradesh?
What did the Supreme Court say?
Staying the High Court order, the Supreme Court said that the issues raised in the petitions merit a “closer reflection” and accordingly decided to list the matter for final arguments in the second week of July. It observed at the outset that the High Court prima facie misconstrued the provisions of the Act since it does not facilitate the imparting of religious instructions in educational institutions maintained out of State funds.
The Court also referred to the interpretation of “religious instruction” under Article 28(1) of the Constitution as elucidated in Ms Aruna Roy which stipulates that “any interpretation of Article 28(1), which negates the fundamental right of a child or a person to get education of different religions of the country and outside the country and of his own religion would be destructive of his fundamental right of receiving information, deriving knowledge and conducting his life on the basis of a philosophy of his liking.”
Highlighting that the provisions of the Act make it abundantly clear that the object and purpose of the statutory Board constituted under the Act is regulatory in nature, the Chief Justice underscored that the High Court seems to have conflated the concept of madarsa education with the regulatory powers which have been entrusted to the Board.
Refuting the State’s submission that the study of secular subjects was optional in the madarsas, the Chief Justice reasoned that the remedy would lie in not striking down the Act but instead issuing suitable directions to ensure that students studying in madarsas are not deprived of the quality of education that is made available by the State in other institutions.
While acknowledging that the State has a “legitimate public interest” in ensuring that all students, including those in madarsas, “receive education of a qualitative standard which makes them qualified to pursue a dignified existence” — the Court pointed out that whether achieving this purpose would require the jettisoning of the entire statute would merit serious consideration.
The Chief Justice also highlighted that the directive of the High Court to direct the transfer of all the madarsa students to regular schools would adversely affect the future of nearly 17 lakh students pursuing their education in these institutions. “While it is entirely the choice of the students and parents to choose the institutions in which the students wish to pursue their studies, we are of the view that the impugned direction of the High Court for the relocation of the students was, prima facie, not warranted”, he reasoned.
