New Delhi: Ruling that the Uttar Pradesh Board of Madarsa Education Act, 2004, violates the principle of secularism, the Allahabad High Court declared it unconstitutional Friday.
The 2004 law allowed the state government to establish an Uttar Pradesh Board of Madarsa Education, which was then empowered to impart education from primary level to postgraduate and research levels.
Since there are a large number of madarsas and madarsa students in UP, the bench comprising Justices Subhash Vidyarthi and Vivek Chaudhary has directed the state government to take steps to accommodate these students in regular recognised schools.
“The State Government for the said purpose shall ensure that as per requirement sufficient number of additional seats are created and further if required, sufficient number of new schools are established. The State Government shall also ensure that children between the ages of 6 to 14 years are not left without admission in duly recognised institutions,” the court asserted.
The court was hearing a petition filed last year by UP advocate Anshuman Singh Rathore challenging the 2004 law on the ground that it violated the principle of secularism, which is part of the basic structure of the Constitution of India as well Articles 14 (equality before law), 15 (which forbids discrimination) and 21-A (right to education) of the Constitution.
A single judge of the high court had also raised questions over the validity of the law back in 2019, and had asked for the questions to be referred to a larger bench. The petitions then pertained to payment of salaries to madarsa teachers.
Friday’s judgment was now pronounced on all such pleas.
In its judgment, the court asserted that the education being imparted in madarsas is “neither quality nor universal in nature”, referring to the subjects being taught by the Madarsa Board. It further asserted that “the State has 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”.
“Any such action on part of the State violates the principle of secularism, which is in the letter and spirit of the Constitution of India. The same also violates Article 14 of the Constitution of India, which provides for equal treatment to every person by the State,” it asserted.
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‘State cannot discriminate’
The statement of objects and reasons of the 2004 law says that the law was introduced “with a view to removing the difficulties arising in running the madarsas, improving the merit therein and making available the best facility of study to the students studying in madarsas”.
In its judgment, at the outset, the court asserted that the petitions against the law relate to the fundamental rights of “minor children of the marginalised and poor sections of the largest minority community of the State”.
Looking at the provisions of the law, the court then pointed out that the definition of “Madarsa Education” under the law included “Islamic studies”.
It then looked at the syllabus of primary classes — that is Classes 1 to 8 — to note that the Quran and Islamic studies, among other subjects, are taught in every class. Similarly, in Class 10, theology (Sunni and Shia), are compulsory subjects while only one optional subject is required to be taken from among maths, home science (only for girls), logic and philosophy, social science, science and Tib (medical science).
The court, therefore, opined that the scheme and purpose of the Act is only for promoting and providing education of Islam, its prescriptions, instructions and philosophy, and to spread it.
It also asserted that it is the duty of the state to provide education which is secular in nature, and that it “cannot discriminate and provide different types of education to children belonging to different religions”.
This, it said, would violate secularism, and observed: “Such an action on the part of the State is not only unconstitutional but also highly divisive of the society on religious lines.”
‘Neither quality, nor universal’
The judgment also looked at the subjects that the students were being taught in madarsas.
For instance, it pointed out that students of Class X have to study theology (Sunni and Shia), Arabic, Persian, Urdu, General English and General Hindi as compulsory subjects, and have to study only one of the subjects from maths, logic and philosophy, social science, science and Tib. Students up to Class X do not have an option to study science, maths and social science simultaneously, the court noted.
“From the above discussion, it is clearly established that education under the Madarsa Act is certainly not equivalent to the education being imparted to the students of other regular educational institutions recognised by the State Primary and High School and Intermediate Boards and, therefore, the educations being imparted in madarsas is neither ‘quality’ nor ‘universal’ in nature,” the court observed.
It then opined that while the students of all other religions are getting educated in all modern subjects, the denial of the same quality of education by the Madarsa Board amounts to the violation of Articles 21A and 21 of the Constitution.
It asserted that “the State cannot hide behind the lame excuse that it is fulfilling its duty by providing traditional education on a nominal fee”.
‘A genuine cause’
In its judgment, the court further asserted that “higher education” is a field reserved for the Union government under list I of the Seventh Schedule of the Constitution, and so, the state government does not have the power to legislate on it.
Highlighting various provisions of the 2004 law, the court opined that the law confers powers on the Madarsa Board which are vested in the University Grants Commission (UGC) by the UGC Act.
Therefore, it said, the 2004 is violative of Article 246(1) of the Constitution of India, which says that Parliament has exclusive power to make laws with respect to any of the matters in List I in the Seventh Schedule.
Before the court, the lawyers for the Madarsa Board, as well as the Teachers’ Association Madarsa Arabiya, Kanpur, raised objections to the court entertaining a petition filed by Rathore, asserting that he is a lawyer practicing in the high court and has no personal interest in the matter, so he could not have filed the said petition.
However, the court asserted that “there is no reason to disbelieve his (Rathore’s) intentions”.
“Further, the cause raised by him is a genuine cause, which impacts not only these children and their families, but also each and every citizen of this country… Those denied the benefits of modern quality education would find themselves stuck with limited options of growth and livelihood,” the bench explained.
(Edited by Nida Fatima Siddiqui)
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