The Madrasa Judgement

I Mallikarjuna Sharma

Some of the last judgements reserved by and delivered before his retirement by Sri Y V Chandrachud, Chief Justice of India are very interesting, informative and of utmost importance to the progress and promotion of India’s secular democratic polity. The judgement by a 3-Judge Bench decision delivered by the CJI in Anjum Kadari & Another v Union of India & Ors on 5 November 2024 substantially upholding and validating the constitutional and legal propriety of the U P Madarsa Act is historic.

Madrasa [officially written as ‘Madarsa’!] is a school/college maintained and established by Islamic religious bodies, especially attached to Mosques, to dispense to the children–mainly or solely Muslim children–Islamic religious and also some modern education in Arabi-Farsi media. The establishment of Madarsas in India is dated way back to the Tuglaq rule (14th century AD) in India and later adopted and regularised under the British Rule for Arabi-Farsi media education to Muslim students, which brought about an Education Code 1908 to recognise Madrasas in United Provinces (U P) for conducting Arabic-Pharsi examinations. After independence the Uttar Pradesh Government issued Madarsa Education Rules 1969 to regulate the Madrasa education in the State and then enacted the Uttar Pradesh Board of Madrasa Education Act 2004, which has been struck down as unconstitutional by the Allahabad High Court but that was reversed by this judgement of Justice Chandrachud.

Madarsas generally teach religious matters only and not any modern education regularly though after independence the above-mentioned Rules and Act made provisions for dispensing modern education also through the madrasas. Only quite recently (on 7 November 2024) the Uttarakhand Waqf Board Chairman Shadab Shams told PTI that they have decided to introduce NCERT syllabus and a dress code in its Madarsas from next year as part of efforts to modernise madrasa education in the state. The board has also decided to open the doors of its madrasas for children of all religions, which is quite a welcome step.

In contrast, as regards the majority Hindu community in India there are Gurukul Schools (in Telangana) and Vedic Schools (set up by Kanchi Kamakoti Peetham, etc. religious bodies) dispensing traditional Sanatana dharma oriented education but in Gurukul Pathasalas students have to cover the usual syllabus followed in all government schools and sit for the same SSC and Inter Board examinations but in addition they are given instruction about Vedas, Upanishads, etc. It is claimed that curriculum taught in Gurukul Pathshalas in Telangana includes: Vedas and Upanishads, Mathematics, Astronomy, Science, Languages, Medicinal theories, Yogic sciences, War science practicals, Martial arts, and Sports; and that they also emphasise extracurricular activities, such as: Arts and crafts, Sports and physical education, and Community service. As regards Vedic Pathshalas established by Kanchi Kamakoti Peetham they also claim that they are dispensing modern education and also training in sports and games in addition to the Vedic studies, which are the main subjects therein, but it is not clear whether the admissions are open to all sections of people or to Hindus of certain sections only. They claim to be dispensing totally free education but there are also many conditions placed which deter the prospective students. For example, Sampradaya Pathasalas insist on the students continuing their education up to 12th class in the same school or else they will have to pay Rs 10,000 per year for the entire course if they want to leave in the middle and get a transfer certificate! It seems there is some amount fixed for education in UP Madarsas also but not known whether there are any similar restrictive conditions accompanying.

It was on appeal from the High Court judgement setting aside the UP Madarsas Act that this case came before the Apex Court. The Apex Court noted:

“On the merits, the High Court [on 22 March 2024] held that the Madarsa Act violates the principle of secularism and Articles 14, 21 and 21-A of the Constitution of India and is ultra vires Section 22 of the UGC Act. According to the High Court, the object and purpose of the Madarsa Act itself violated the principle of secularism, and thus, it is not possible to segregate or save any portion of the legislation. // …The High Court held that the Madarsa Act in its entirety was unconstitutional and directed that the State Government take steps to accommodate all students studying in the Madarsa in regular schools recognised under the Primary Education Board and the High School and Intermediate Education Board of the State of Uttar Pradesh. The State Government was directed to establish a sufficient number of additional seats and new schools, if required for this purpose and to ensure that no child between the ages of six and fourteen is left without admission in a duly recognised institution.” 

Pursuant to the above High Court Division Bench judgment, the UP Government took prompt action by issuing a GO on 4 April 2024 directing that Madarsas which apply for and get recognition from education boards can run primary and secondary schools under the concerned education boards, but as for madrasas which do not get such recognition, they have to be closed with arrangements to be made for admitting the students studying there to schools run by the education department.

Special Leave Petitions to appeal were filed assailing the correctness of the above High Court decision on which the Apex Court heard all the concerned parties in detail and finally set aside the HC decision. The Court observed:

“Fundamental rights consist of both negative and positive postulates. They require the State to restrain its exercise of power and create conducive conditions for the exercise of rights. The essence of Article 30(1) is the recognition and preservation of different types of people, with diverse languages and different beliefs, while maintaining the basic principle of equality and secularism. In the spirit of positive secularism, Article 30 confers special rights on religious and linguistic minorities “because of their numerical handicap and to instil in them a sense of security and confidence”. The positive concept of secularism requires the State to take active steps to treat minority institutions on par with secular institutions while allowing them to retain their minority character. Positive secularism allows the State to treat some persons differently to treat all persons equally. The concept of positive secularism finds consonance in the principle of substantive equality.” “The Madarsa Act secures the interests of the minority community in Uttar Pradesh because: (i) it regulates the standard of education imparted by the recognised Madarsa; and (ii) it conducts examinations and confers certificates to students, allowing them the opportunity to pursue higher education. The Madrasa Act is consistent with the positive obligation of the State to ensure that students studying in the recognised Madarsas attain a minimum level of competency which will allow them to effectively participate in society and earn a living. Therefore, the Madarsa Act furthers substantive equality for the minority community. // The High Court erred in holding that a statute is bound to be struck down if it is violative of the basic structure. Invalidation of a statute on the grounds of violation of secularism has to be traced to express provisions of the Constitution. Further, the fact that the State legislature has established a Board to recognise and regulate Madrasa education is not violative of Article 14. The Madrasa Act furthers substantive equality.”

The Supreme Court also stated:
“The High Court erred in holding that education provided under the 2004 Act is violative of Article 21A because (i) The Right to Education Act (RTE Act) which facilitates the fulfilment of the fundamental right under Article 21–A contains a specific provision by which it does not apply to minority educational institutions; (ii) The right of a religious minority to establish and administer Madarsas to impart both religious and secular education is protected by Article 30; and (iii) the Board and the state government have sufficient regulatory powers to prescribe and regulate standards of education for the Madarsas.”

And the Apex Court also ruled that the Madarsa Act is within the legislative competence of the State under Entry 25, List III of the Constitution. However, the Court also opined that the Madarsa Act contains a serious infirmity which can be struck down but the Act can be validated per the doctrine of severability.

“[The] only infirmity lies in those provisions which pertain to higher education, namely Fazil and Kamil. These provisions can be severed from the rest of the Madarsa Act. As noted earlier, the purpose behind the Madrasa Act was to remove the difficulties in running the Madrasa, improve their merit and provide adequate facilities to students studying in these institutions. The purpose was not limited to only regulating Fazil and Kamil, and the legislature would have still enacted the statute if it were aware that the portions pertaining to higher education were invalid. Further, if the provisions relating to higher education are separated from the rest of the statute, the Act can continue to be enforced in a real and substantial manner. On an examination of the Madarsa Act, it is clear that prescribing the instructional material, conducting exams and conferring degrees for Fazil and Kamil were only a part of the functions of the Board. The severance of these functions from the Board does not impact its entire character. Thus, only the provisions which pertain to Fazil and Kamil are unconstitutional, and the Madarsa Act otherwise remains valid.”

As such the Hon’ble Supreme Court concluded that–“a) The Madarsa Act regulates the standard of education in Madrasas recognised by the Board for imparting Madrasa education;  b) The Madrasa Act is consistent with the positive obligation of the State to ensure that students studying in recognised Madarsas attain a level of competency which will allow them to effectively participate in society and earn a living; c) Article 21-A and the RTE Act have to be read consistently with the right of religious and linguistic minorities to establish and administer educational institutions of their choice. The Board with the approval of the State government can enact regulations to ensure that religious minority institutions impart secular education of a requisite standard without destroying their minority character; d) The Madarsa Act is within the legislative competence of the State legislature and traceable to Entry 25 of List III. However, the provisions of the Madarsa Act which seek to regulate higher-education degrees, such as Fazil and Kamil are unconstitutional as they are in conflict with the UGC Act, which has been enacted under Entry 66 of List I.” and, accordingly, set aside the judgment of the High Court of Judicature at Allahabad dated 22 March 2024 and disposed of the appeals in the above terms.

[Advocate and Editor, LAW ANIMATED WORLD, Hyderabad]

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Vol 57, No. 23, Dec 1 - 7, 2024