UP Madarsa Education Act | 'Law Regulating Institution Of A Community Not Per Se Against Secularism', Says Supreme Court During Hearing

A bench comprising Chief Justice of India DY Chandracuhd, Justice JB Pardiwala and Manoj Misra was hearing the challenge to Allahabad High Court's March 22 judgment striking down the 'Uttar Pradesh Board of Madarsa Education Act 2004' as unconstitutional.

The CJI during the hearings, remarked, "A law per se regulating an institution belonging to a community does not ipso facto violate the principle of secularism."

Drawing a parallel to other Statutes regulating religious affairs in different states, the CJI pointed out : 

"Hindu Religious Endowments Charitable Institutions Act... the law is providing for the proper administration of the religious institutions. That does not offend the secularism. It is in all states, from Maharashtra to Tamil Nadu." 

He added that it may not be necessary that a religious institutions only limits itself to religious teachings.

"A Zoroastrian institution or Buddhist institution may teach a course in medicine, not necessary it only gives religious teachings."

The CJI also noted that Article 30 of the Constitution does provide for a community to promote its religious education; only if the institution receives state funds such religious instructions or education cannot be done under Article 28. However, Article 28(2) also carves an exception to that by providing that such a prohibition does not apply 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. 

At the same time, the Court also pointed out that it was the State's preliminary duty to ensure that the quality of education given to young children is not compromised as it may deter them in their journey to grow into worthy citizens. 

"The state govt also has a vital interest in ensuring that all children receiving primary and secondary education must get basic education to become worthy citizens."

Previously, the Court, while staying the High Court's decision, also observed that the state has a legitimate public interest to ensure all students get quality education; however, whether this purpose would require jettisoning the entire statute enacted in 2004 needed consideration. 

HC Errors In Conflating Regulations On Religious Education With 'Religious Instructions' : Sr Adv Menaka Guruswamy Explains 

The main contention furthered by Senior Advocate Menaka Guruswamy, for the petitioners, was that the High Court has 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.

"The conflation of regulation with religious instructions is patently wrong - the Madarsa Board provides a general education."

However, the CJI remarked that the Madarsa Board was only acting to regulate that quality education is imparted. 

"Board is not the authority which provides education. It is only a regulatory mechanism to ensure the quality."

Guruswamy clarified several aspects which the High Court according to her overlooked : (1) the Madarsas provided education in all modern and basic subjects like maths, science, social sciences etc and prescribed relevant NCERT textbooks; (2) the discretion of Madarsas to impart or not to impart teachings for certain subjects gets removed by virtue of the syllabus specifications by the Board; (3) the Madarsa Board only issues certifications for completion of Higher Education after 12th class and does not confer any degree per se as its application seeking recognition to grant University Degrees is still pending with the UGC. 

During the hearings, Justice Pardiwala pointed at paragraph 66 of the Impugned Judgement which reads : 

"From the aforesaid it is clear that under the provisions of the Madarsa Act for being recognized by the Madarsa Board it is compulsory for an institution to be setup as a Muslim minority institution and it is also compulsory for a student of Madarsa to study in every class, Islam as a religion, including all its prescriptions, instructions and philosophies, to get promoted to next class. The modern subjects are either absent or are optional and a student can opt to study only one of the optional subjects. Thus, the scheme and purpose of the Madarsa Act is only for promoting and providing education of Islam, its prescriptions, instructions and philosophy and to spread the same. This fact is admitted to the State and the Board and is also not disputed by any of the respondents/interveners." 

Referring to the above, he asked how the High Court has arrived at such a conclusion. To which, Guruswamy replied that the High Court has conflated that the teachings under the regulation are religious teachings, and there is nothing on record for the High Court to conclude this. 

Senior Advocate PS Patwalia,  appearing for a few Madarsa teachers, in his brief submissions stressed that the purpose of the Board under the UP Madarsa Act was to bring Muslim education in conformity with mainstream boards like CBSE and ICSE but the striking down of the Act defeats this purpose. 

Understanding The Levels Of Education Under The UP Madarsa Act 2004 

Senior Advocate MR Shamshad (for petitioners) and AOR Anas Tanwir (for Madarsa Board) explained to the Court that the Madarsa Board under S.9(a) of the Act mentions outlining the teaching framework of the  following - 

(a) to prescribe course of instructions, text-books, other books and instructional material, if any, for Tahtania, Fauquania, Munshi, Maulavi, Alim, Kamil, Fazil and other courses

It was submitted that the examination for Tahrania was equivalent to 1st-5th Class; Fauquania was akin to 6th-8th class; Munshi was equal to schooling till 10th grade and Alim was the same as 11th-12th class. 

Kamil and Fazil meant higher education courses which received no funding from the state. 

Shamshad also added that the High Court has errored in interpreting 'religious education' as 'religious instruction' and that as per the decision in Aruna Roy v. Union of India, there is a thin line between Religious Education and Religious Instruction.

Senior Advocate Salman Khurshid briefly submitted the following points : (1) Since certificates by Madarsa are not recognised as equal to degrees by UGC, several Universities like the Aligarh Muslim University sought to issue the certificate under their name for Kamil and Fazil so that admissions by students can be sought in different colleges for Post Graduate purposes;  (2) In Madarsas. only the fees of the teachers is given by the State, the hostel and travel etc are managed by the madarsa itself hence they cannot be called fully funded under Article 28 of the Constitution. 

In the brief submissions made by Sr Advocate AM Singhvi, he stressed that banning the Madarsa Board was incorrect. If the court had noted any infirmities it could have ironed those out through way of seeking reforms etc. 

 "Banning is per se wrong, that's the perspective...you can do much more by reforms and suggestions...there may be infirmities there also, but you cannot ban it."

In the alternative, Singhvi argued that even if it assumed that religious instructions are given, that is protected under Article 28(2) and the decision in Aruna Roy states that even if certain religious instructions are imparted they may be covered under Article 28.

In a related development, the Court today stayed the communications issued by NCPCR to withdraw the recognition of Madarssas which are not compliant with the Right to Education Act 2009 and to conduct an inspection of all Madarssas.

The petitions were 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.

The Court completed the hearing of the petitioners' side today and will hear the State and other respondents tomorrow.

Background

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 Madarsas 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.

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.