Supreme Court Admits Plea Against Abolition Of State-Funded Madrassas In Assam

It was against this judgement of the Gauhati High Court that an appeal has been preferred by the petitioners by special leave. The petitioners have arraigned the Assam Government for an "arbitrary exercise of both legislative and executive powers". Such an "encroachment into the proprietary rights" of the madrassas without payment of adequate compensation is a "direct infraction" of Article 30(1A), the petitioners have claimed. It has also been claimed that the petitioners' rights to 'establish' and 'administer' educational institutions under Article 30(1) have also been abrogated.

Senior Advocate Sanjay Hegde, appearing on behalf of the petitioners, vehemently argued before the Bench of Justices Ajay Rastogi and C.T. Ravikumar, that the High Court decision was erroneous inasmuch as it had equated provincialisation with nationalisation. Hegde said –

"This is a matter dealing with the constitutional rights of minorities. The High Court assumes that the provincialisation of services is equivalent to the nationalisation of the institutions themselves. The High Court has held that the two substantially mean the same. These madrassas are institutions which were established by the minority community. There is no doubt about that. Thereafter, there was a process by which aid was given. If the institution ran into any deficit, the government would pay for it. The next step was, the provincialisation of the services of the staff in the institutions. However, that provincialisation is restricted and it is a form of aid…But after equating the two and having proceeded on the basis that the institutions were already taken over, the Court held that there cannot be any more religious education as the institutions are maintained fully by the state."

In the petition, it has been submitted that the 1995 Act, which was subsequently repealed in 2020, was limited to "the State undertaking to pay the salaries and providing consequential benefits" to teaching and non-teaching staff employed in madrassas, as also for the purposes of the administration, management and control of these religious institutions. The repealing Act, however, the petitioners claim, takes away property and impinges on the right of the minority community to impart religious instruction coupled with religious education. In this connection, Justice Rastogi enquired –

"What is your basis to say that the property belonging to the madrassas, or the minority community is also being taken over by the government? The notifications are only in reference to the service conditions of the employees, or the teachers posted in madrassas."

Hegde replied –

"Yes, the notification was only that. But in effect, the property of the madrassas was taken away."

The petitioners have also contended that the operation of the High Court judgment would result in the discontinuation of the petitioner-institutions as madrassas and would prevent them from admitting students for the old courses for this academic year, which would run counter to the constitutional guarantee given to minorities to preserve their religion and culture.

Case Titles

Md. Imad Uddin Barbhuiya & Ors. v. State of Assam & Ors. [SLP (C) No. 18991/2021]

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