Explained: The Supreme Court judgment on the UP Madarsa Act

Why has a three-judge Bench of the Supreme Court overturned the Allahabad High Court's judgment on the validity of the Uttar Pradesh Board of Madarsa Education Act, 2004?

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ON Tuesday, the Supreme Court overruled the Allahabad High Court judgment striking down the Uttar Pradesh Board of Madarsa Education Act, 2004 in its entirety on the ground that it violated the principle of secularism and Articles 14 (equality before law) and 21-A (right to education) of the Constitution of India.

A three-judge Bench comprising Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra upheld the Madarsa Act. The statute regulates the standard of education in madarsas (schools meant for religious and, sometimes, secular education of Muslims) recognised by the Uttar Pradesh Board of Madarsa Education.

The Bench added that the Madarsa Act is consistent with the positive obligation of the State to ensure that students studying in recognised madarsas attain a level of competency that allows them to participate in society and earn a living effectively.

The Bench also opined that Article 21-A and the Right to Education (RTE) Act, 2009 have to be read consistently with the right of religious and linguistic minorities to establish and administer educational institutions of their choice.

The Madarsa Board, with the approval of the state government, can enact regulations to ensure that religious minority institutions impart secular education of a requisite standard without destroying their minority character, the Bench said.

The Bench also declared that the Madarsa Act is within the legislative competence of the state legislature since it is traceable to Entry 25 of List III of the Seventh Schedule of the Constitution. List III is the Concurrent List on which both Parliament and the state legislature can legislate.

Entry 25 pertains to education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65, and 66 of List I; vocational and technical training of labour. List I contains subjects on which only Parliament can legislate.

Also read: Why has the Allahabad HC struck down the Madarsa Act? Explained

The Bench, however, declared that certain provisions of the Madarsa Act which seek to regulate higher education degrees, such as fazil and kamil, are unconstitutional as they are in conflict with the University Grants Commission (UGC) Act, which has been enacted under Entry 66 of List I.

Fazil (literally, 'eminent' or 'superior') is considered equivalent to a bachelor's degree and kamil (literally, 'perfect') is equivalent to a postgraduate degree.

Entry 66 pertains to the coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.

Allahabad High Court's ruling

In March this year, a division Bench of the Allahabad High Court comprising Justices Vivek Chaudhary and Subhash Vidyarthi had declared that the state had 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.

It had directed the state government to take steps for accommodating madarsa students in regular schools recognised under the primary education and high school and intermediate education boards of Uttar Pradesh.

It is against this backdrop that multiple petitions were filed in the Supreme Court challenging the high court Order. On April 5, 2024, the Supreme Court granted an interim stay on the high court Order. The Supreme Court Bench found the high court's ruling untenable for various reasons.

The Madarsa Act is a regulatory legislation

The Bench, after minutely examining the Statement of Objects and Reasons of the Madarsa Act and the provisions of the Act observed that it has been enacted to regulate the standard of education in madarsas recognised by the Madarsa Board for imparting Madarsa education.

It added that the Madarsa Act grants recognition to madarsas to enable students to sit for an examination and obtain a degree, diploma, or certificate conferred by the Madarsa Board.

Also read: Why has the Supreme Court stayed the Allahabad HC judgment striking down the Madarsa Act?

The Bench observed that the Act envisages granting recognition to madarsas that fulfil the prescribed standards for staff, instructions, equipment and buildings.

"The grant of recognition imposes a responsibility on the madarsas to attain certain standards of education laid down by the board. Access to quality teachers, course materials and equipment will allow madarsa students to achieve stipulated educational and professional standards," the Bench said.

The Bench found the provisions of the Madarsa Act reasonable because they, in the opinion of the Bench, subserve the object of the recognition, that is, improving the academic excellence of students in recognised madarsas and making them capable of sitting for examinations conducted by the board.

Relying upon the earlier ruling of the Supreme Court in Ahmedabad St Xavier's College Society versus State of Gujarat, the Bench reiterated that the regulations pertaining to standards of education or qualification of teachers do not directly interfere with the administration of recognised madarsas. Such regulations are "designed to prevent maladministration of an educational institution", the Bench held.

Madarasa Act is part of positive secularism

The Bench also held that the Madarsa Act is consistent with the positive obligation of the State. Fundamental rights consist of both negative and positive postulates, the Bench averred. They require the State to restrain its exercise of power and create conducive conditions for the exercise of rights, it observed.

The Bench said the positive concept of secularism requires the State to take active steps to treat minority institutions on par with secular institutions while allowing them to retain their minority character.

Explaining Article 30(1), the Bench said its essence is the recognition and preservation of different types of people, with diverse languages and different beliefs, while maintaining the basic principle of equality and secularism.

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In the spirit of positive secularism, the Bench said, Article 30 confers special rights on religious and linguistic minorities "because of their numerical handicap and to instil in them a sense of security and confidence".

Explaining further, the Bench said the Madarsa Act secures the interests of the minority community because: (i) it regulates the standard of education imparted by recognised madarsas; and (ii) it conducts examinations and confers certificates to students, allowing them the opportunity to pursue higher education.

The Madarsa Act, thus, is consistent with the positive obligation of the State to ensure that students studying in recognised madarsas attain a minimum level of competency, which will allow them to effectively participate in society and earn a living.

For these reasons, the Bench also held that the Madarsa Act furthers substantive equality for a minority community. The Bench also disapproved of the high court's reasoning that the Madarsa Act violated the basic structure of the Constitution as it goes against 'secularism'.

The Bench said invalidation of a statute on the grounds of violation of secularism has to be traced to express provisions of the Constitution.

Interplay of Article 21-A and Article 30

The high court had also ruled that the Madarasa Act violated Articles 21 and 21-A of the Constitution.

It had held, "While students of all other religions are getting educated in all modern subjects, denial of the same quality by [students of] Madarsa Board amounts to a violation of both Article 21-A as well as Article 21 of the Constitution of India."

It had observed that the State could not hide behind the lame excuse that it is fulfilling its duty by providing traditional education at a nominal fee.

Article 21-A provides that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. In furtherance of Article 21-A, the Parliament enacted the Right to Education (RTE) Act in 2009.

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In Society for Unaided Private Schools of Rajasthan versus Union of India, the Supreme Court, while upholding the validity of the RTE Act, also declared that it applied to an aided school, including a minority school receiving aid or grant to meet whole or part of its expenses from the appropriate government or local authority.

Subsequently, the Parliament amended the RTE Act to exempt from its application Vedic pathshalas, madarsas and educational institutions primarily imparting religious instruction.

In Pramati Educational and Cultural Trust versus Union of India, a Constitution Bench held that the application of the RTE Act to minority educational institutions, whether aided or unaided, "may destroy the minority character of the school". The Constitution Bench had declared the RTE Act ultra vires the Constitution to the extent it applied to minority educational institutions.

Disapproving the high court's reasoning that the Madarsa Act violated Article 21-A, the Supreme Court Bench noted that the RTE Act, which facilitates the fulfilment of the fundamental right under Article 21-A, contains a specific provision by which it does not apply to minority educational institutions.

It added that the right of a religious minority to establish and administer madarsas to impart both religious and secular education is protected by Article 30 and the Madarsa Board, and the state government has sufficient regulatory powers to prescribe and regulate standards of education for madarsas.

The Madarsa Act is within the legislative competence of the State under Entry 25, List III

The Bench noted that the provisions of the Madarsa Act seek to "regulate" madarsas, since these are educational institutions run by a religious minority.

"There is a distinction between 'religious instruction' and 'religious education'. While the madarsas do impart religious instruction, their primary aim is education," the Bench held.

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The Bench added that the mere fact that the education, which is sought to be regulated, includes some religious teachings or instruction, does not automatically push the legislation outside the legislative competence of the State.

The Bench rejected the argument of those favouring the high court's ruling insofar it contended that Entry 25, List III of the Seventh Schedule of the Constitution is limited to only education that is devoid of any religious teaching or instruction and that the Madarsa Act (in its entirety) which seeks to regulate the functioning of madarsas in Uttar Pradesh is outside the competence of the state legislature.

The Bench also underscored that the concurrent exercise of power by the state legislature and the Parliament with respect to matters in List III (the Concurrent List) of the Seventh Schedule of the Constitution also provides for the doctrine of repugnancy to resolve inconsistencies between laws made by the Parliament and state legislatures. In such cases, it is the law made by the Parliament that prevails.

In the present case, the Bench noted, the question of repugnancy does not even arise as there is no parliamentary law that purports to regulate the functioning of madarsas.

In fact, the RTE Act, which is the legislation framed by the Parliament pursuant to Entry 25 of List III of the Seventh Schedule of the Indian Constitution, specifically states that it is inapplicable to madarsas. Thus, there is no question of conflict or repugnancy between the two Acts, the Bench held.

Conflict between provisions of the Madarsa Act and the UGC Act

Entry 66, List I (Union List) of the Seventh Schedule of the Indian Constitution refers to the "[c]oordination and determination of standards in institutions for higher education or research and scientific and technical institutions".

The UGC Act has been enacted by Parliament under Entry 66 and it seeks to make provisions for the coordination and determination of standards in universities and, for that purpose, to establish a University Grants Commission. On the other hand, the Madarsa Act has been enacted pursuant to Entry 25 of List III (Concurrent List) of the Seventh Schedule of the Indian Constitution.

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There has been a series of judgments of the Supreme Court holding that the UGC Act occupies the field with regard to the coordination and determination of standards in higher education.

Therefore, state legislation that seeks to regulate higher education in conflict with the UGC Act is beyond the legislative competence of the state legislature.

Under the UGC Act, the right to confer or grant degrees is restricted only to universities established or incorporated by a parliamentary or state statute or an institution deemed to be a university or an institution specially empowered by an Act of Parliament to confer degrees.

Under the Madarsa Act, the Madarsa Board is required to discharge various functions. Several of these functions pertain to the regulation of the fazil and kamil degrees.

The Bench found that this part of the Madarsa Act, to the extent to which it seeks to regulate higher education, including the 'degrees' of fazil and kamil, is beyond the legislative competence of the state legislature since it conflicts with Section 22 of the UGC Act.

Importantly, the fate of those who already have fazil and kamil degrees and have also been employed is not clear from the judgment.

The ruling of a court is considered retrospective unless declared otherwise by the court itself. Thus, the sword of Damocles hangs over the heads of those who have fazil and kamil degrees and are in employment by virtue of these degrees.