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

A detailed analysis of why the Supreme Court has stayed the Allahabad High Court judgment striking down the Uttar Pradesh Board of Madarsa Education Act, 2004.

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LAST week, the Supreme Court stayed the operation of the Allahabad High Court's judgment striking down the Uttar Pradesh Board of Madarsa Education Act, 2004 (Madarsa Act, 2004) enacted by the state government.

A three-judge Bench comprising the Chief Justice of India (CJI) D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra observed that the finding of the high court that the very establishment of the Madarsa Board would amount to a breach of the principles of secularism appeared to conflate the concept of madarsa education with the regulatory powers which have been entrusted to the Board.

The Bench noted that if the purpose of the petitions before the high court was to ensure that secular education is provided in institutions imparting madarsa education, the remedy would not lie in striking down the provisions of the Madarsa Act, but in issuing suitable directions to ensure that students who pursue their education in these institutions are not deprived of the quality of education that is made available by the State in other institutions.

The Bench was ruling on petitions seeking to challenge the Allahabad High Court's March 22 judgment holding 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.

The high court held that the Madarsa Act, 2004 was against the principle of secularism which is part of the basic structure of the Constitution of India and also violative of Articles 14, 21 and 21-A of the Constitution of India and violative of Section 22 of the University Grants Commission Act (UGC), 1956.

Arguments against the high court's Order

A battery of senior lawyers appeared for the petitioners to argue that the Madarsa Act is principally a regulatory statute that deals with issues such as curriculum, instruction, standard of education, conduct of examinations and qualifications for teaching.

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It was also contended that the Madarsa Act, 2004 does not provide for religious instruction and does not conflict with Article 28(1) of the Constitution. The functions of the Board of Madarsa Education are regulatory.

Article 28(1) provides that no religious instruction shall be provided in any educational institution wholly maintained out of State funds.

On behalf of the petitioners, it was also said that the state legislature was competent to enact the law because of the provisions of Entry 25 of List III of the Seventh Schedule of the Constitution.

It was also contended that imparting religious instruction is proscribed by Article 28(1) in an educational institution that is wholly maintained out of State funds. But imparting religious education, per se, in secular institutions has not been proscribed by the Constitution.

The petitioners also submitted that the high court judgment had unsettled the position which has held the field both before the enactment of the statute and after since madarsa education has been in existence for 120 years in what is now Uttar Pradesh.

The petitioners also argued that the high court conflated Article 28 with Article 30. They also argued that out of nearly 16,000 madarsas in the State of Uttar Pradesh, only about 560 are in the receipt of State aid.

The petitioners also argued the high court's Order has caused serious prejudice since as many as 17 lakh students 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.

The high court has proceeded on a misconceived notion that madarsa education consists of religious instruction. The circulars which have been issued from time to time by the government indicate that apart from subjects pertaining to Islamic theology, instruction in other subjects is also imparted, the petitioners argued.

Submissions by the Attorney General of India

Attorney General for India R. Venkataramani argued that the entanglement of religion with education is, per se, a suspect issue that will need deliberation; and as a result of the directions of the high court, the functioning of schools imparting madarsa education is not paralysed and the consequence would be only a denial of State funds.

Change of stand of Uttar Pradesh government

The Uttar Pradesh government, which defended the Madarsa Act of 2004 in the high court, chose to submit to the Supreme Court that it has decided to accept the judgment.

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Additional Solicitor General of India K.M. Nataraj, for the Uttar Pradesh government, also submitted that no madarsas were being shut down by the government and the directions of the high court merely required the relocation of students pursuing their education to other secular institutions.

Other counsel who argued in support of the high court judgment submitted that in the absence of compulsory education in subjects such as maths, science and social studies, there was an apprehension that the educational needs of students would not be catered to.

Error committed by the high court

The Supreme Court Bench, after scanning through the various provisions of the Madarsa Act, opined that it was abundantly clear that the object and purpose of the statutory board which was constituted under the Madarsa Act were regulatory in nature.

"The finding of the high court that the very establishment of the board would amount to a breach of the principles of secularism appears to conflate the concept of madarsa education with the regulatory powers which have been entrusted to the board," the Bench ruled.

The Bench observed that in striking down the provisions of the Madarsa Act, the high court misconstrued the provisions of the Madarsa Act.

"The Madarsa Act, per se, does not provide for religious instruction in an educational institution maintained out of State funds. The object and purpose of the statutory provisions is regulatory in character," the Bench observed.

On the meaning of 'religious instruction', the Bench referred to the judgment of the court in Aruna Roy versus Union of India, in which it was observed that the expression 'religious instructions' used in Article 28(1) had a restricted meaning.

It conveys that teaching of customs, ways of worship, practices or rituals cannot be allowed in educational institutions wholly maintained out of State funds. But Article 28(1) cannot be read as prohibiting the study of different religions existing in and outside India.

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"If that prohibition is read with the words 'religious instruction', study of philosophy which is necessarily based on a study of religions would be impermissible.

"That would amount to denying children a right to understand their own religion and the religions of others, with whom they are living in India and with whom they may like to live and interact.

"Study of religions, therefore, is not prohibited by the Constitution and the constitutional provisions should not be read so, otherwise the chances of spiritual growth of the human being, which is considered to be the highest goal of human existence, would be totally frustrated. 

"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," the Supreme Court had said in the Aruna Roy judgment.

The Bench also highlighted that if the object and purpose of the public interest litigation was to ensure that secular education in core subjects, such as maths, science, social studies and history, besides the languages, is provided in institutions imparting madarsa education, the remedy would not lie in striking down the provisions of the Madarsa Act, but issuing suitable directions to ensure that students who pursue their education in these institutions are not deprived of the quality of education that is made available by the State in other institutions.

"The State does have a legitimate public interest in ensuring that students who pursue education in all institutions, whether at the primary, secondary or higher level, should receive education of a qualitative standard which makes them qualified to pursue a dignified existence upon receiving the degrees which are awarded to them. Whether this purpose would require jettisoning the entire statute which has been enacted by the State legislature in 2004 would merit serious consideration," the Bench observed.

Lastly, the Bench observed the high court Order would impinge seriously on the future course of the students studying in madrasas.

"Nearly 17 lakh students are 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," the Bench held.

While staying the high court Order, the Bench directed the state government to file its counter affidavit to the petition challenging the high court Order. It listed the matter for final disposal in the second week of July 2024.