On 5 April 2024, the Supreme Court of India stayed (Anjum Kadari and Anr v. Union of India and Ors) the judgment of the Allahabad High Court which had ruled that the Uttar Pradesh Board of Madarsa Education Act, 2004, violates the principle of secularism and declared it "unconstitutional".
The High Court was of the view that while the students of other religions are getting educated in modern subjects, denial of the same quality by the Madarsa Board amounts to a violation of both Article 21-A as well as Article 21 of the Constitution of India.
"The State cannot hide behind the lame excuse that it is fulfilling its duty by providing traditional education on nominal fee…. Education being provided by the Madarsa Board, therefore, is in violation of the standards prescribed by the Supreme Court while interpreting constitutional provisions. Therefore, this Court has no hesitation in holding that the education being provided under the Madarsa Act is violative of Articles 21 and 21A of the Constitution of India.”
The SC took such a step and stayed the HC judgment, not only because of the already established constitutional principles but also because of the fact that the Madarsa Act does not provide any religious instruction and hence, the object and purpose of the Statute is regulatory in character.
The Judgment of the Allahabad High Court
The Allahabad High Court held that the Madarsa Act 2004, is violative of the principle of Secularism, which is a part of the basic structure of the Constitution of India and also violative of Articles 14, 21 and 21-A of the Indian Constitution, and violative of Section 22 of the University Grants Commission Act, 1956.
Interestingly, in patagraph 100 of the judgment, the court held that “since there are large number of Madarsas and Madarsa students in the state of UP, the State Government is directed to take steps forthwith for accommodating these Madarsa students in regular schools recognized under the Primary Education Board and schools recognized under the High School and Intermediate Education Board of State of UP.”
The court asked the state government to ensure that as per requirement, a sufficient number of additional seats are created and further if required, a sufficient number of new schools are established and also ensure that children between the ages of 6 to 14 years are not left without admission in duly recognized institutions.
While staying the High Court judgment, the Supreme Court remarked that directions in para 100 of the judgment by the High Court regarding the re-location of students were "not warranted.”
SC’s Objection to Formalisation of Madrasa Education on Religious Grounds
The SC bench led by Chief Justice DY Chandrachud expressed concerns over the High Court judgment authored by Justices Vivek Chaudhary and Subhash Vidyarthi. While issuing notice on the appeal, the SC remarked that the HC "misconstrued the provisions of the Madarsa Act.”
"We are of the view that the issues raised in the petitions merit closer reflection. We are inclined to issue notice," …, the High Court in striking down the provisions of the Act directed the relocation of the students. This would affect 17 lac students; we are of the view that the direction of relocation of students to other schools was not warranted. .... states shall file counter on or before 30 June 2024. SLP be listed for final disposal on the second week of June 2024. The impugned order and judgment of the HC dated 22 March 2024 shall remain stayed," – the SC observed while issuing notice on five Special Leave Petitions filed against the Allahabad High Court's judgment.
During the hearing before the SC, Senior Advocate Manu Singhvi rightly objected to the direction issued by the Division bench of Justices Vivek Chaudhary and Vidhyarthi to the UP government to frame a scheme so that the students presently studying in Madrasas can be accommodated in the formal education system.
Interestingly, Singhvi also pointed out that there are some very good gurukuls in Haridwar, will they also be shut down because they teach religious lessons?
The SC also opined that the state has a legitimate public interest to ensure all students get quality education. However, whether this purpose would require jettisoning the entire statute enacted in 2004 needed consideration.
HC Judgment: 'A Basis For Prejudice'
It was also submitted by the counsel appearing for the Appellant (Madarsa and other parties) that the direction which has been issued by the HC causes serious prejudice since as many as 17 lakh students who are receiving education in Madarsa institutions will have to be relocated.
Apart from this, over 10,000 teachers who have been imparting education will be displaced.
While staying the judgment of the HC, the SC remarked, “The finding of the High Court that the very establishment of the Board would violate secularism appears to conflate Madarsa education with the regulatory powers of the Board, the Court observed. If the concern was to ensure that the students of Madarsas receive quality education, the remedy would not lie in striking down the Madarsa Act but in issuing suitable directions to ensure that the students are not deprived of quality education.”
The Roots of the Matter Before the High Court
It all started when in 2019, one Mohammed Javed filed a writ petition claiming that he was appointed as a part-time assistant teacher in the year 2011 for the primary section of Madarsa Nisarul Uloom Shahzadpur, Akbarpur Post Office, District Ambedkar Nagar on a fixed salary of Rs 4,000/- per month, subject to 8 per cent annual increment.
Javed prayed in his petition that no regular appointment should be made by respondent no 1 to 3, i.e., the state government, the Madarsa Shiksha Parishad and the District Minority Welfare Officer and that his service should be regularised, and that he should be paid a salary as is being paid to the regular teachers.
On 23 October 2019, a single-judge bench of the Allahabad High Court in Mohammed Javed v. State of Uttar Pradesh passed a reference order while framing certain questions for consideration for the larger bench.
It is interesting to note that the questions which were framed by the single judge were quite extraordinary in nature while alleging that the constitution and working of the Madarsa board was against the secular set of the country.
The following questions were framed by the single-judge:
Since the Madarsa Board is constituted for education in 'Arabic, Urdu, Persian, Islamic studies, Tibb Logic, philosophy and includes such other branches of learning as may be specified by the Board from time to time, how come persons of a particular religion are provided to be members of the same? It does not talk about exponence in the aforesaid fields, for the purposes of which the Board is constituted, but persons of a specific religion. It was put to learned Additional Chief Standing Counsel as to whether the purpose of the Board is to impart religious education only, to which he submits that a perusal of the Madarsa Education Act, 2004 does not indicate so.
With a secular constitution in India, can persons of a particular religion be appointed/nominated in a Board for education purposes or it should be persons belonging to any religion, who are exponent in the fields for the purposes of which the Board is constituted or such persons should be appointed, without any regard to religion, who are exponent in the field for the purposes of which the Board is constituted?
The Act further provides the Board to function under the Minority Welfare Ministry of State of UP, hence, a question arises as to whether it is arbitrary for providing the Madarsa education to be run under the Minority Welfare Department while all the other education institutions including those belonging to other minorities communities like Jains, Sikhs, Christians etc being run under the Education Ministry and whether it arbitrarily denies the benefit of experts of education and their policies to the children studying in Madarsa?
After framing the issues, the judge referred the matter to a larger Bench. Thereafter, based on the single-judge Order, other petitions were also referred to a larger Bench. The larger Bench of two judges reframed the issue to the effect: "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 Unknown Locus
When the matter was referred to the larger bench, one Anshuman Singh Rathore filed a petition challenging the validity of the Madarsa Act on the ground that the same violates the principle of secularism which forms a part of the basic structure of the Constitution of India as well Articles 14, 15 and 21-A of the same.
In this regard, one of the advocates, Sandeep Dixit had submitted that the Writ Petition filed by Rathore appears to have been filed for the benefit of Madarsas as in case the Madarsa Act is held to be unconstitutional or ultra vires, the State will lose control over the Madarsas and the Madarsas will become absolutely free, which will not be in the interests of the students of the Madarsas.
To the contrary, learned Amici Curiae submitted that this is a matter relating to the fundamental right to life and education of minor children of financially weak families of a minority community of this country. Therefore, this court cannot refuse to entertain the writ petition involving questions of Fundamental Rights of such minor children belonging to a marginal section of the society on technicalities.
Is SC’s Stay on the HC’s Interpretation of Act a Sensible Move?
The SC ruled that the Allahabad High Court had misconstrued the objective of the Madarsa Act and in a hurry, such a judgment was passed. This is reflective of the fact that the SC had orally remarked that prima facie it is a case for interference and consideration is required in the matter.
Furthermore, the last two paragraphs of the judgment – 99 and 100 – say they strike down the Madarsa Act and have directed to relocate the students, but is this really logical to strike down a 100-years-old act and direct for such re-location in the middle of the academic year?
In this regard, Singhvi had rightly argued that "the reason why you should strike down an Act of 100 years a status quo ante should prevail; para 100 has no meaning, 17 lacs students, 10000 teachers cannot be absorbed with the academic year ending, this is just a farmland, this size of UP is more than Europe, there will be chaos !”
In a nutshell, it is clear that the High Court’s reasoning was slightly incorrect in terms of "religious instructions.” This is to establish that there is a clear difference between religious education and religious instructions and the Madarsa Act is silent on that.
Lastly, the stay on the Allahabad High Court judgment is a step in the right direction and there’s an opportunity for the SC to undo a constitutional wrong, which has been done by the High Court by purpotedly misconstruing the provisions and objective of the Madarsa Act.
The principles governing secularism are very well settled and there is a difference between religious instructions and "education”.
As it was observed by Justice DM Dharmadhikari in Ms Aruna Roy and Others vs Union Of India, in a pluralistic society like India which accepts secularism as the basic ideology to govern its secular activities, education can include study based on "religious pluralism” which encourages inclusivism.
One has to now wait for the next hearing in the month of June for a fair resolution on the matter that will also duly safeguard constitutional principles.
(Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court. He writes on various legal developments. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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