'Madrassas Won't Lose Minority Status By Mere Receipt Of State Aid' :Plea In Supreme Court Challenges Assam Repealing Act 2020

The SLP assails High Court's order dated February 4, 2022 by which the bench of Chief Justice Sudhanshu Dhulia (now elevated as Supreme Court Judge) and Justice Soumitra Saikia had upheld the constitutional validity of the Assam Repealing Act 2020 which repealed the Assam Madrassa Education (Provincialization) Act, 1995 and the Assam Madrassa Education (Provincialization of Services of Employees and Re-Organisation of Madrassa Educational Institutions) Act, 2018.

The High Court pronounced the verdict dismissing the writs preferred by 13 petitioners, who were either President of the Managing Committees or the donors (mutawallis) of the lands on which the Madrassas were built.

Now, the petitioners before the High Court have approached the Supreme Court against the High Court verdict contending that the Repealing Act and the subsequent government orders violated the fundamental rights of the petitioners under Articles 25, 26, 28 and 30 of the Constitution of India.

"The repealing Act of 2020 takes away property coupled with statutory recognition of Madrassa education and the impugned order dated 12.02.2021 issued by the Governor disbands the 'Assam State Madrasa Board' created in 1954. It amounts to an arbitrary exercise of both legislative and executive powers and amounts to a denial of the Petitioner Madrassas' ability to continue as madrassas providing religious instruction coupled with religious education," the plea states.

According to the petitioners, the Government's decision which withdraws subjects on theological aspects like the Quran, converts madrassas into high schools and brings it under the State Education Board is a direct violation of the aforementioned constitutionally guaranteed fundamental right of the individual Petitioners as well as that of the madrassas established by members of the community.

It has been argued in the plea that the High Court has erroneously observed that the Petitioner Madrassas being government schools, and wholly maintained by the State through provincialization are hit by Article 28(1) of the Constitution of India and as such, cannot be permitted to impart religious instruction.

The mere receipt of aid by madrassas in the form of provincialization of the services of its employees under the Act of 1995 through which the liability to pay their salaries and emoluments have been taken over by the Government cannot be grounds to disentitle Madrassas from exercising their rights under Article 30 of the Constitution to establish and administer educational institutions of their choice.

The State of Assam cannot obliterate the minority status of the madrassas only because it passed the Act of 1995 which provincialized the services of employees in the Madrassa.

"Firstly, the State cannot compel Madrassa to receive aid through the provincialization of the services of its employees , secondly, the grant of aid by the State cannot have such conditions attached to it which would have the effect of diluting the minority status of the recipient madrassas (interreference in curriculum being the primary ground of challenge) and thirdly, if aid is being given to other non-minority educational institutions then the same should be given to madrassas without changing their fundamental character", the plea states.

It has further been argued in the petition that such an encroachment into the proprietary rights of the Petitioner Madrassas without payment of adequate compensation is a direct infraction of Article 30(1A) of the Constitution of India.

"The operation of the impugned judgment would result in the discontinuation of the Petitioner Madrassas as Madrassas and would prevent them from admitting students for the old courses for this academic year. The Respondents by way of the Notification in question dated 12.02.2021 have abrogated the right of the Petitioner Madrassas under Article 30(1) to 'establish' and 'administer' educational institutions of their choice inclusive of the right to decide their own curriculum which may also be based on their perception of ways to preserve their religion or culture," plea further states.

The SLP has been filed through AOR Adeel Ahmed.

Case Title: Md Imad Uddin Barbhuiya & Ors. v The State of Assam & Ors| Diary No. 17346 of 2022