New Delhi: The Allahabad high court has declared the Uttar Pradesh Madrasa Act, 2004 – through which madrasas are governed in the state – as unconstitutional, ruling that it violates the principle of secularism. The possibility of madrasas closing down following the court’s judgment has left around 10,000 madrasa teachers and over 26 lakh madrasa students with an uncertain future, said those affected by the verdict.
The court directed the Adityanath-led state government to take “steps forthwith” for accommodating the large number of madrasa students in regular state-run schools at the primary, secondary and intermediate levels. Sufficient number of additional seats must be created and if required, sufficient number of new schools should also be established to accommodate these students, Justices Vivek Chaudhary and Subhash Vidyarthi directed the Adityanath government in a judgment dated March 22. Madrasa associations said they would challenge the HC decision in the Supreme Court, even as they wondered what would be the immediate impact of the ruling.
There are 16,513 recognised madrasas, out of which 560 are aided by the government, and over 8,400 unrecognised madrasas in UP.
Iftikhar Ahmed Javed, chairman, Uttar Pradesh Board of Madrasa Education, told The Wire the HC’s decision would impact over 26 lakh students – 19.5 lakh in recognised madrasas and seven lakh in unrecognised madrasas.
‘Secularism’
A division bench of the HC, while ruling the Act as unconstitutional, said the “denial” of modern education and quality of education in madrasas violated constitutional norms mandating free and compulsory education of all children in the age group of six to 14.
“While the students of all other religions are getting educated in all modern subject denial of the same quality by the Madrasa Board amounts to violation of both Article 21-A as well as Article 21 of the Constitution of India. The State cannot hide behind the lame excuse that it is fulfilling its duty by providing traditional education on nominal fee,” the HC said.
The HC passed the judgment on a petition filed by a lawyer, Anshuman Singh Rathore, who had submitted that the Madrasa Act violated secularism and failed to provide quality compulsory education up to the age of 14 years or class 8, as was mandatorily required to be provided under Article 21-A of the Constitution. Rathore also contended that the Madrasa Act failed to provide universal and quality school education to all the children studying in madrasas.
The HC in an 86-page judgment, ruled that the Madrasa Act was “violative of the principle of Secularism, which is a part of the basic structure” of the Constitution. The Act was violative of Articles 14, 21 and 21-A of the Constitution and Section 22 of the University Grants Commission Act, 1956, the court said.
The Bench, after analysing the syllabus of madrasas from class 1 to 12, also noted that the education under the Madrasa Act was “certainly not equivalent to the education” being imparted to the students of other regular educational institutions recognized by the state boards. “…the education being imparted in Madrasas is neither ‘quality’ nor ‘universal’ in nature,” said the court.
The HC observed that the syllabus of class 1 to 8 in madrasas “shows that the study of Islam is necessary in every class along with the study of languages” and that a “student cannot get promoted to the next class” unless he or she clears their exam in religion.
Quran and Islam, amongst other subjects, are taught in every class from class 1 to 8, the court noted. In class 10 (maulvi or munshi), Theology Sunni and Theology Shia are compulsory subjects while only one optional subject was required to be taken from among Maths, Home Science (only for girls), Logic and Philosophy, Social Science and Tib (medical science). In class 12 (alim), Theology (both Sunni and Shia) are compulsory subjects while one of the optional subjects is to be chosen from home science (only girls), Hindi, Logic and Philosophy, Tib, Social Science, Science and Typing.
Also read: ‘Imagine Not Getting Paid for 5 Years’: Awaiting Dues From Centre, Madrasa Teachers in Dire Straits
‘All subjects are taught’
Wahidullah Khan, national general secretary of the All-India Teachers Association, Madarsa Arabia, said the madrasas were neither being run merely for transmitting religious education nor were they receiving grants for that purpose.
“Grants are given for the promotion of the oriental languages (Arabic, Persian and Sanskrit),” said Khan. The only difference is that while the Vedic schools are run by the state education department, the madrasas have since 1996 been governed by the minority department, he said, adding that the Arbi-Farsi Board (Arabic-Persian) later became the Madrasa Board.
“In our syllabus we impart modern education. And all subjects are taught,” said Khan, adding that even Hindu teachers and students teach and study in madrasas, respectively.
Javed also said providing religious education was not the aim of madrasas but to keep languages alive and “save their dignity.”
Explaining the importance of madrasas in the state’s landscape, Javed said the madrasas were running out of places where formal education would take many more years to reach.
“There are places that are located in interior and far-off places and without schools, where the poor people send their children to madrasas which provide them free education through donations and zakat. Shutting them down will give rise to the illiteracy rate,” said Javed.
‘No work, no pay’
The court’s judgment has also created a crisis for the students as well as the teachers in madrasas. Faiyaz Ahmed Misbahi (36), a madrasa teacher in Balrampur, who has been teaching for the last nine years, fears that the HC verdict could render him and thousands of others without work. He was also concerned by the silence of the court on the future of teachers. Misbahi pointed out that while the HC spoke of rehabilitating madrasa students, it was quiet about the teachers. “What about the teachers? They will have no work, no pay,” he said.
Khan also raised similar questions. “What will happen to the government land and the big building complexes of these madrasas,” he asked, while also asking how the state would execute the direction to transfer madrasa students to regular schools immediately.
Misbahi, who is also a zonal coordinator of the Teachers Association Madaris Arabiya, UP in Devipatan zone, said the government could have been directed by the court to amend the portions of the 2004 Act that it deemed unconstitutional. He wondered how the government would accommodate the madrasa students and provide them quality education when it was already struggling to do with regular students. “In the madrasas, we provide children free education along with food and medical facilities. Religious education is not our purpose. Since 2018, we have been teaching with NCERT Books and as per that syllabus,” said Misbahi.
In 2018, the Adityanath government approved the introduction of NCERT books in Hindi, Urdu and English in the state’s Madrasa Board.
Also read: UP Government Ends Honorarium to Madrasa Teachers, Move to Adversely Affect 1 Million Students
‘Why so much unemployment then?’
Those associated with madrasas feel the court’s assessment that madrasas lagged in providing quality and universal education was not accurate.
“There are numerous examples of people who studied in the madrasa stream who have gone on to crack civil services and become IAS officers. Others are getting degrees in law and clearing medical entrance tests,” said Misbahi.
Many madrasa-educated persons are also becoming professors at the Banaras Hindu University, Aligarh Muslim University and the Jamia Millia Islamia University, added Khan.
“And if we talk about quality education in a total sense, do all students in regular schools succeed? If they do, then why is there so much unemployment,” he asked.
While striking down the Madrasa Act, the HC said that under the law, for being recognized by the Madrasa Board it was compulsory for an institution to be setup as a Muslim minority institution and it was also compulsory for a student to study in every class, Islam as a religion, including all its prescriptions, instructions and philosophies, to get promoted to next class.
The HC also said that the State cannot “discriminate and provide different type of education to children belonging to different religions.” “Such an action on the part of the State is not only unconstitutional but also highly divisive of the society on religious lines. Any policy of the State which is divisive of society on religious lines is violative of the constitutional principles,” it said.
Union government’s stance
Interestingly, while the Adityanath government defended the Madrasa Act, the Union government submitted in the court that religious education and religious instructions of a single religion cannot be included in school education and that the state government has no power to create statutory education boards permitting religious education.
The UP government and the Madrasa Board opposed the petition to declare the Act unconstitutional and argued that the State government had sufficient power to frame laws with regard to education, including traditional education, which includes religion. They argued that the State had enacted the Madrasa Act in exercise of its powers under entry 25 of list III of schedule VII of the constitution.
The HC, while acknowledging the power of the state to frame laws with regard to education at the school level, however, stressed that such education has to be “secular in nature.” The bench also said that the state had no power to create a board for religious education or establish a board for school education only for a particular religion and philosophy associated with it.
The board and other madrasa associations also argued that Article 25 to 29 provided rights to propagate religion while Article 30 protected the rights of minorities to establish and administer their educational institutions. The court, however, said that Articles 25 to 29 were concerned with the rights of the citizens and not of the State.
“The State has to remain secular. It must respect and treat all religions equally. The State cannot, in any manner whatsoever, discriminate between religions while performing its duties. It cannot provide for education of a particular religion, its instructions, prescriptions and philosophies or create separate education systems for separate religions,” said the HC.
‘What of accreditation?’
The Madrasa Board argued in court that madrasas were providing “nearly free education” to minor children, with a monthly fee of hardly Rs 10 or 20 per month.
Khan said his association, which had opposed the petition in court, will study the detailed judgment to understand its legal nuances. There is still some confusion on the scope of its impact.
“If the government wants, the verdict, if implemented, can impact all madrasas. But I think it should not impact any recognised madrasa already existing because the court has declared the 2004 Act unconstitutional but not said if all the accreditation given under it would also be declared invalid,” said Khan.
Post-independence, private madrasas continued to run in the state but were not regulated or recognized by the government. It was in 1969, that the government for the first time came out with the ‘Rules of Recognition of Arabic and Persian Madarsas, U.P,’ which mandated that such institutions seeking recognition apply to the Registrar, Arabic and Persian Examinations, U.P., Allahabad. Then, in 1987, the government formed non-statutory rules for their regulation and in 1995 created a new department called ‘Minority Welfare Department’. In 1996, rules were framed to transfer the working of madrasas and other minority-related schemes to the Minority Welfare Department from the state Education Department. The earlier 1987 non-statutory regulations of 1987 were replaced by the Madrasa Act of 2004.
