'Striking Down Madarsa Act Like Throwing Baby With Baby Water; Let's Preserve India As Melting Pot Of Religions' : Supreme Court Reserves Judgment

On the last hearing, the Court orally observed that laws regulating the educational institutions of a religious community cannot by that fact alone be considered a violation of secularism.

'Secularism means to live and let live'

Today, Senior Advocate Mukul Rohatgi, who started the arguments for the petitioners, submitted that Article 28(2) of the Constitution was an exception to Article 28(1). As per Article 28(2), the bar on imparting religious instructions in state-aided institutions is not applicable to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. So, as per Article 28(2), religious instructions can be imparted through institutions managed by trusts.

CJI pointed out that Article 28(3) provides that a student can voluntarily obtain religious instructions and the only bar is that there should be no compulsion.

Rohatgi also took exception to the High Court delivering the judgment in a PIL. He added that the High Court's judgment was actually against the principles of secularism as it had the effect of depriving minority students of their rights. "Hundreds of people are studying...you cannot force somebody. This is not secularism," Rohatgi submitted.

"Secularism means- live and let live," CJI Chandrachud said in response.

The State of Uttar Pradesh, which has chosen to not challenge the High Court's judgment, took the stand that it was wrong to strike down the entire Act and only the violative provisions needed to be nullified (a separate story on this aspect can be read here).

Senior Advocate Menaka Guruswamy, for the petitioners, in her rejoinder submissions, referred to the Constitution Bench judgment in Pramati Educational & Cultural Trust vs Union Of India & Ors - which states that the minority religious educational institutions were excluded from the RTE Act.

What is wrong with the legislature recognizing religious institutions?

Responding to the arguments of Senior Advocate Guru Krishnakumar, for an intervenor opposing the Act, CJI DY Chandrachud asked what was wrong in the legislature recognizing an institute imparting religious instructions and mandating that they should follow certain basic standards.

Striking down the entire Act would mean that the Madarsas remain unregulated, CJI opined. "Is it not in our national interest that you regulate the Madrasas? .......you cannot wish away 700 yrs of history like this...suppose we uphold the HC order, the parents of children will still send them to Madrasa .....it will just be a silo without any legislative intervention.....it is a policy statement to regulate the madrasas.."

CJI pointed out that the Act gives rule-making powers to the State to lay down standards. Krishankumar argued that the Act does not ensure secular education and was mostly focused on theological studies. Singling out the religious institution of one particular community for recognition was unconstitutional. The Act does not enable children in Madarsas to be at par with mainstream individuals, he argued. In response, CJI pointed out that the statute, as per its Section 20, empowered the State to intervene and it was for the State to act.

Let's preserve India as a melting pot of cultures and religions

Responding to Krishnakumar, CJI said : "Ultimately we have to see it through the broad sweep of the Country. Religious instructions are there not just for the Muslims. It is there in Hindus, Sikhs, Christians etc. The country ought to be a melting pot of cultures, civilizations, and religions. Let us preserve it that way. In fact, the answer to ghettoisation is to allow people to come to the mainstream and to allow them to come together. Otherwise, what we essentially would be doing is to keep them in silos."

Krishnakumar responded that the Act was in fact promoting ghettoisation and was not helpful in mainstreaming.

Justice JB Pardiwala, referring to the Aruna Roy judgment, said that the teaching of religion has not been prohibited by the Constitution.

CJI, again highlighting that religious instruction is not unique to Muslims, told Krishnakumar, "Suppose there is an institute training Buddhist monks and the State says provide some secular education.. that is the ethos of our country..Remember, what you are arguing in the context of Islam will apply across all religions in India right from Ved Pathshalas to institutions training Buddhist monks, Jain priests.."

At the same time, CJI said that the judges were sharing the concerns raised by Krishnakumar that the students of Madarsas should receive quality education. "But to throw out the Act is like throwing out the baby with the bathwater," CJI said.

CJI opined that "religious instructions are never an anathema in our country."

When Kumar said that the Madarsa education would not enable the students to be at par with the mainstream students, Justice Pardiwala said, "Why do you want them to be at par? You cannot compel them to be at par!"

Senior Advocate Madhavi Divan, appearing for an intervenor opposing the Act, submitted that Madarsa education negated the promise of quality education guaranteed under Article 21A of the Constitution. While one has the freedom to take religious instruction, it cannot be accepted as a substitute for mainstream education, she submitted. Divan argued that the scheme of the Madarsa Act gave predominance to religious scholars in the Board composition and this would mean that the children would be exposed to only one worldview. Education should enable a child to come out of one's own "birthmarks" she argued. Due to the overwhelmingly religious nature of the institution, the students would have a restricted world-view.

When the CJI pointed out that are other similar religious institutions where children at a young age join, Divan submitted those are instances of people taking monastic vows to renounce the world and cannot be compared to Madarsas, where the students are not seeking to renounce the world but to live there. 

She submitted that for pursuing professions like Navy, Pilot, Engineering, etc, the students of Madrasas will not have the opportunity as they are not studying the related subjects.

Why only concerned with Madarsas? SC asks NCPCR

Senior Advocate Swarupama Chaturvedi, appearing for the NCPCR, made similar submissions as Divan, stressing that Madarsas cannot be seen as an alternative to mainstream education. The NCPCR has no objection if Madarsa education is a supplement to the school education, but it cannot be a substitute.

When Chaturvedi submitted that the NCPCR has filed a report on the deficiencies of the Madrasa system and has written to the States to inspect them, the Court asked if the NCPCR has taken a similar stand against institutes of other religions.

"But NCPCR is aware of the fact that there are religious instructions provided across India to young children by institutions of their community. Has NCPCR adopted the same stand that it is contrary to fundamental Constitutional values?" CJI asked.

"Has NCPCR issued any instructions, cutting across communities, that you will not take children into your religious institutions unless they are taught secular subjects?" CJI asked. Chaturvedi replied that the stand of the NCPCR is that religious instruction should be a substitute for mainstream education.

"So tell us, has the NCPCR issued a directive that across communities, that don't send children to any monasteries, pathshalas...has NCPCR issued a directive that when children are sent to these institutes, then they must be taught science, maths etc.? Why are you only concerned with Madarsas? We would like to know if you have dealt with other institutions. Has NCPCR been even-handed in its treatment of all communities?" CJI asked.

Chaturvedi sought time to get instructions on that aspect and undertook to file an additional statement,

What is meant by "Religious instructions"?

Justice Pardiwala asked if the NCPCR has studied the entire syllabus of Madarsas. When the senior counsel replied in the affirmative, Justice Pardiwala observed: "What have they understood? What is religious instruction? It seems you all are mesmerised by one word "religious instruction'. And that is why you are not getting out of it. The entire premise of the arguments is not on a correct basis. There are no instructions. There is a fine distinction between religious instructions which Article 28 is talking about and the medium in which education is imparted."

The bench also heard Senior Advocates AM Singhvi, P Chidambaram, Salman Khurshid and MR Shamshad in brief rejoinder submissions on behalf of the petitioners. Singhvi said that the striking down of the Act amounts to a virtual ban of the Madarsas; if there are deficiencies in the standards, the State should exercise its powers under the Act to improve them instead of dismantling the whole structure. He added that all modern subjects are taught in Madarsas. Chidambaram suggested that the service conditions of the teachers in Madarsas be made the same as the other teachers.

Shamshad took objection to some comments in the NCPCR's report, terming them "Islamophobic". If the State opens more general schools in Muslim-dominated areas, the Madarsas will automatically shut down, he added.

The petitioners had mainly contended that the High Court had wrongly understood the UP Madarsa Act to be having the purpose of imparting religious instructions rather than seeing the actual purpose- which is providing a scheme of regulations for the education of the Muslim children.

While declaring the law as Ultra Vires, the High Court Division comprising Justice Vivek Chaudhary and Justice Subhash Vidyarthi also directed the Uttar Pradesh Government to frame a scheme so that the students presently studying in Madrasas can be accommodated in the formal education system.

The High Court's ruling came in a writ petition filed by one Anshuman Singh Rathore challenging the vires of the UP Madarsa Board as well as objecting to the management of Madarsa by the Minority Welfare Department, both by Union of India and State Government and other connected issues.

The petitions challenging the High Court's judgment wer filed by Anjum Kadari, Managers Association Madaris Arabiya(UP), All India Teachers Association Madaris Arabiya (New Delhi), Manager Association Arbi Madarsa Nai Bazar and Teachers Association Madaris Arabiya Kanpur.

Appearances for the petitioners: Dr. A. M Singhvi, Mr. Mukul Rohatgi, Mr. P.S. Patwalia, Mr. P Chidambaram, Dr. Menaka Guruswamy, Mr. Salman Khurshid, Mr. MR Shamshad Senior Advocates assisted by Rohit Amit Sthalekar AOR Sankalp Narain Adv, M.A Ausaf, Adv, HP Sahi Adv, Yash Johari Adv & Utkarsh Pratap Adv appeared for the Petitioners in the aforesaid matters.

Case Title : Anjum Kadari and another v. Union of India and others Diary No. 14432-2024, Managers Association Madaris Arabiya UP v. Union of India SLP(C) No. 7821/2024 and connected matters.