New Delhi: The Supreme Court observed Friday that the Allahabad High Court had “prima facie erred” in understanding the provisions of the Uttar Pradesh Board of Madarsa Education Act, 2004, which it had struck down as unconstitutional.
Staying the operation of the high court’s order, a three-judge bench led by Chief Justice of India D.Y. Chandrachud found that the HC had misconstrued the provisions of the 2004 act in its judgment delivered on 22 March. Contrary to the HC’s finding, the top court said the law was meant to regulate madarsa education and not impart religious instruction. “The object and purpose of the statute is regulatory in character,” the bench said.
Promulgated two decades ago by the Uttar Pradesh government, the act defined madarsa education as including education in Arabic, Urdu, Persian, Islamic studies, philosophy and other branches of learning as may be specified by the Uttar Pradesh Board of Madarsa Education.
It regulated imparting of education through madarsas – institutions where Islamic studies are also pursued by students – and empowered the state to oversee their functioning. However, on a public interest litigation (PIL), the HC on 22 March declared that the act was violative of the principle of secularism enshrined in the Constitution of India.
On Friday, however, the Supreme Court said, “The finding of the HC that the very establishment of the board (under the 2004 act) would violate secularism appears to conflate madarsa education with the regulatory powers of the board.”
While granting interim relief to the petitioners who questioned the HC order through a set of appeals, the bench prima facie opined: “The act per se does not provide for religious institutions maintained by the state fund.”
The SC’s interim order came on petitions filed by Anjum Kadri, Managers Association Madarsis Arabiya (UP), All India Teachers Association Madaris Arabiya (New Delhi), Manager Association Arbi Madarsa Nai Bazar and Teachers Association Madaris Arabiya Kanpur.
It issued notices to the UP government, the Centre and the petitioners on whose appeal the HC had quashed the 2004 act, and asked them to file their responses by 31 May, while fixing the matter for further hearing in the second week of July.
UP govt ready to comply with HC’s directions
In its order striking down the act, the high court had held that the state could not discriminate between two religions while performing its duties and concluded that the act also violated articles 14 (right to equality), 21 (right to life and personal liberty) and 21A (right to education for children between six and 14 years of age) of the Constitution, in addition to Section 22 of the University Grants Commission (UGC) Act, 1956, which deals with the conferment of degrees by an educational institution.
As part of its directions, the HC asked the state to take immediate steps to ensure that students attending madarsas in UP were accommodated in other state-run schools. Significantly, the state had supported the validity of the law and opposed the PIL in the HC. But before the top court Friday, it said it was ready to accept the high court’s judgment.
A battery of senior advocates appeared for the petitioners in the top court, including Abhishek Manu Singhvi and Mukul Rohatgi. Singhvi told the bench that the HC judgment disturbed the regime existing in UP for close to about 120 years and affected 17 lakh students studying at these institutions, while upending the lives of almost 10,000 teachers.
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Singhvi added that it was difficult to adjust these students and teachers in the state education system abruptly. He rebutted the HC’s findings that modern subjects were not taught in madarsas and submitted that significant subjects such as maths, science, social studies, English and Hindi were also taught.
According to him, there was a code in 1908 for madarsas, followed by regulations in 1987 and then the 2004 act, which was only regulatory in nature. Singhvi argued the state under the Constitution was competent to enact such a law.
The senior counsel faulted the HC for concluding that if religion was taught, it would amount to religious instruction, thus, violating the principles of secularism. Singhvi quoted a 2002 judgment by the top cour to highlight the definition of the phrase “religious instructions”.
“Because Sanskrit, Hinduism or Islam is taught, it will not per se become religious instruction – this was the dictum of the Aruna Roy judgemnt (of 2002),” Singhvi submitted.
Rohatgi argued that the HC had misinterpreted Article 28, which barred religious instruction in educational institutions wholly maintained out of state funds. He informed the bench that there were fully aided, partially aided and private madarsas operational in UP and the 2004 act regulated all of them.
The UP government counsel, Additional Solicitor General K.M. Nataraj informed the bench that though the state had supported the 2004 act in the HC, it was willing to now comply with its directions. He assured the court that a smooth transition of students and teachers would be ensured.
Nataraj clarified that the HC order did not direct the closure of madarsas, but simply struck down the act, which meant the state would be free from the yearly financial burden of over Rs 1,096 crore that it spends to support them.
Attorney General R. Venkataramani opposed the petitioners in SC and said: “Entanglement of religion is a suspect issue in any degree. And this is beyond the tolerable degree, especially since state aid is involved.” He asked the court to deliberate on issues arising out of the petitions, echoing Nataraj’s views that the HC judgment did not paralyse madarsas.
Though the bench accepted the point that the petitions merit a detailed reflection, it was inclined to issue interim directions owing to the HC’s misconstruction of the provisions of the law.
Holding the objective of the act to be regulatory in nature, it said that the expression “religious instruction” employed in Article 28 – which the HC had quoted while striking down the law – had been explained in the 2002 judgment in the Aruna Roy case.
The bench went on to even comment on the purpose of the PIL filed in the HC.
If the object was to ensure that secular education in core subjects such as math, science, social studies and history, besides language, was imparted in madarsas, the remedy “would not lie in striking down the act but in issuing suitable directions to ensure all students are not deprived of quality of education made available by the state”, the bench said.
“The state has a legitimate public interest to ensure all students get quality education, which makes them qualified enough to pursue a dignified existence. Whether this purpose will require jettisoning the 2004 act merits serious consideration,” the court further observed.
(Edited by Tikli Basu)
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