New Delhi: The Supreme Court Tuesday reversed the Allahabad High Court judgment that quashed Uttar Pradesh Board of Madarsa Education Act, 2004 and with that allowed the state government to regulate madrasas that are either funded or recognised by it.
In doing so, a three-judge bench led by Chief Justice of India D.Y. Chandrachud also underlined the State’s power to regulate minority educational institutions if they are government-funded or recognised, partially or fully. The court said in such situations the right of minorities to administer educational institutions is not “absolute” and that the State “has an interest in maintaining the standards of education” in them.
That said, it rejected the submission that state funding of minority institutions defies the Basic Structure of the Constitution on account of violation of the principle of secularism.
Dismissing it as a flawed argument, since legality of a law cannot be challenged on the ground it frustrates the Basic Structure doctrine, but rather constitutional provisions that aim to promote secularism, the court said providing financial assistance or recognition to minority institutions furthers substantive equality.
Hence, the State, it said, may impose conditions for grant of aid or recognition to achieve the constitutional goal of striking a balance between two objectives: to ensure standard of excellence of minority educational institutions; and to preserve a minority group’s right to establish and administer its educational institutions.
A religious minority community’s right to manage its own institution does not mean “the right to maladminister,” the bench emphasised.
Aspects such as courses of study, qualification and appointment of teachers, health and hygiene of students and facilities for libraries are amongst a host of subjects that can be regulated by the State, the court outlined.
However, it added a caveat—such regulations must be rational and reasonable, accompanying recognition of minority educational institutions.
The judgment is likely to have ramifications over functioning of religious minority state-aided and recognised educational institutions across the country. It allows state governments to have a say in the management of these institutions and impose conditions aimed at improving their overall efficiency in imparting education. But the judgment does not permit the State to intervene in the day-to-day affairs of these institutions.
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HC verdict on Madarsa Act
The Supreme Court verdict came on an appeal arising out of the 22 March Allahabad High Court verdict that scrapped the 2004 state law, while holding it unconstitutional on the ground it was against the concept of secularism.
It directed the state to accommodate madrasa students in the formal schooling system.
High court division bench of justices Subhash Vidyarthi and Vivek Chaudhary struck down the Madarsa Act in its entirety. It was deemed unconstitutional on three grounds: it vitiated secularism; was in violation of the Right to Education Act and in conflict with the central law, University Grants Commission Act, 1956, since it also conferred a master’s degree.
Around 13,000 madrasas catering to more than 12 lakh students in Uttar Pradesh were affected by the order. While 560 madrasas receive state grants, another 12,804 are non-state funded, of which 3,834 have permanent and 8,970 temporary recognition.
On 5 April, the CJI-led bench stayed the high court verdict.
Meanwhile, National Commission for Protection of Child Rights (NCPCR) issued two communications, 7 and 25 June, directing UP government to probe all recognised madrasas and admit non-Muslim students enrolled there to schools imparting formal education.
The child rights body also intervened as a party in the top court and supported the high court verdict, contending madrasas were not compliant with Right to Education (RTE) Act, 2009, which mandates compulsory and quality education to all children up to the age of 14.
The BJP-led Uttar Pradesh government had defended the law and contended that the high court should not have held that the entire law is unconstitutional.
The law regulates operation of madrasas in the state and was framed to ensure quality education, while adhering to constitutional principles, it argued. The state submitted that it had supported the law and yet did not file any appeal against the high court verdict.
What did 2004 UP law say
The legislative scheme of the law aims to remove difficulties in running madrasas and improve the merit of students studying there. Section 3 provides for the constitution of a Board, comprising persons who are related to or know about education in madrasas.
This Board was statutorily empowered to prescribe courses of instruction and textbooks for courses; cancel or withhold the result of an examination; prescribe fees for conducting examinations; refuse or withdraw recognition to institutions that do not fulfil the standards of staff, instructions, equipment, or buildings laid down by the Board; inspect to ensure due observance of prescribed courses of study and facilities for instruction, among others.
The act envisages a legal framework for madrasa education, apart from the curriculum of the National Council of Educational Research and Training (NCERT).
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Arguments made before SC
Two moot questions were raised before the Supreme Court during the argument. The first was whether a madrasa imparts religious education or religious instructions. The second was whether the high court was right in striking down the entire act, or should it have limited the decision to specific provisions and allowed government to regulate madrasas.
It was argued that the act was not designed to ensure students receive secular education to enter the mainstream. It only cemented the status quo, where mainstream subjects are optional and religious education mandatory.
Regulation of minority educational institutions
Besides dealing with legal questions related to the 2004 law, the top court delved into the State’s competence to administer minority educational institutions and affirmed it.
The mere fact that the education sought to be regulated includes some religious teachings or instruction, does not automatically push the legislation outside legislative competence of the State, it said, adding that minority institutions that do not seek aid or recognition from the State would be protected from any government interference.
But those that seek aid or recognition cannot run their institutions without competent teachers, in unhealthy surroundings, and not maintain even a fair standard of teaching or which teaches matters subversive of welfare of scholars.
“The State has an interest in ensuring that minority educational institutions provide standards of education similar to other educational institutions. The State can enact regulatory measures to promote efficiency and excellence of educational standards,” the court said, elaborating the extent to which the State can regulate such institutions.
Regulations, the bench added, must satisfy the triple test principle and must be reasonable and rational, conducive to making the institution an effective vehicle of education for the minority community or other persons, and must be directed towards maintaining excellence of education and efficiency of administration to prevent it from falling standards.
State regulation would ensure students enrolled in minority educational institutions have “qualifications in the shape of degrees necessary for a useful career in life”.
Though education falls in the Concurrent List of the Constitution, which means both Centre and State can frame laws on it, the bench said the UP government was competent to enact the 2004 law. It rejected the argument that the state legislature is not empowered to regulate functioning of madrasas because it imparts religious teaching or instruction.
The court said there is no jurisprudential basis for this submission. In the absence of a central law to regulate madrasas, the court said there is no question of repugnancy as well.
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‘Does not violate secularism’
The Supreme Court overturned the high court’s finding that the law was in the face of the principle of secularism.
Secularism is one of the facets of the right to equality and the equality code is outlined in Articles 14, 15, and 16 of the Constitution. This code means that all persons, irrespective of their religion, should have equal access to participate in society.
Supreme Court held that constitutional validity of a statute cannot be challenged for violation of the Basic Structure. This is because concepts such as democracy, federalism, and secularism–part of the Basic Structure doctrine—are undefined.
To allow courts to strike down legislation for violation of such concepts will introduce an element of uncertainty in our constitutional adjudication, it said, adding that infraction in a law has to be traced to the provisions of the Constitution related to secularism.
In the present case, the court said, the Madarsa Act and its sections are reasonable because they subserve the object of recognition, that is, improving academic excellence of students in recognised madrasas and making them capable to sit for examinations conducted by the Board.
Since the act is not designed to directly interfere with daily administration of recognised madrasas, but to prevent maladministration, while allowing the community to overcome social and economic barriers, it does not violate the equality code, it said. Adding, “Positive secularism allows the State to treat some persons differently to treat all persons equally. Concept of positive secularism finds consonance in the principle of substantive equality.”
RTE does not apply to minority institutions
According to the high court, Article 21 of the Constitution mandates the State to provide free and compulsory education to all children aged 6-14 in such manner as the State may, by law, determine. This right, the high court had ruled, was being denied to children belonging to that age group as they were not getting access to quality education.
“The State cannot hide behind the lame excuse that it is fulfilling its duty by providing traditional education on a nominal fee,” it had said.
In its verdict the Supreme Court studied the interplay between Article 21 and Article 30 (1) that allows minority communities to establish their own institutions for imparting education.
It declared that the high court “erred in holding that the education provided under the Madarsa Act is violative of Article 21A (of the Constitution) because the Right to Education Act, which facilitates the fulfilment of the fundamental right under Article 21A, contain the specific provision by which it does not apply to minority educational institutions”.
It added that the right of religious minorities to “impart both religious and secular education is protected by Article 30” and the “Board and state government have sufficient regulatory powers to prescribe and regulate standards of education for madrasas”.
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Conflict with central law
Over the state law being in conflict with the UGC Act, the high court had held that provisions of Madarsa Act empowering the Board to grant degrees was incompatible with the central law to regulate higher educational institutions. It said only universities or institutions deemed to be a university under Section 3 of the UGC Act can grant degrees.
“No other person or authority, including any madrasa or the madrasa Board, can confer any degree,” it had said.
Supreme Court agreed with the high court view and set aside the act to the extent that it gave degrees to Fazil (Post graduate course) and Kamil (junior research programme), which it said was beyond the legislative competence of the legislature in view of the UGC Act. “The UGC act governs the standards for higher education, and the state legislation cannot seek to regulate higher education in contravention of the provision of the UGC Act,” it said, adding the Constitution permits Centre to frame laws for higher education.
‘Primary aim is education’
Supreme Court also said that “while the madrasas do impact religious instruction, their primary aim is education”. The word education in the Concurrent List, it said, must be given a wide meaning to include all ancillary subjects comprehended within the entry.
It added: “Article 28(3) of the Constitution provides that no person who is attending any educational institution recognised by the State or receiving aid out of state funds shall be compelled to take part in religious instruction or attend religious worship without their consent”.
This means that religious instruction may be imparted in an educational institution, which is recognised by the State or which receives government aid, but no student can be compelled to participate in religious instruction in such an institution.
Dissemination of religious instruction does not change its fundamental character as an institution that imparts education, the three-judge bench of the Supreme Court underlined.
(Edited by Amrtansh Arora)
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