Omar Rashid 
New Delhi: The Supreme Court today, November 5, upheld the constitutional validity of the Uttar Pradesh Madarsa Act, 2004, the legislation through which madarsas are governed in the state. The apex court set aside a judgment of the Allahabad high court which had earlier this year declared the Act as unconstitutional, ruling that it violated the principle of secularism.
The high court had struck down the entirety of the Act, which regulated the standard of education, qualifications for teachers and conduct of examinations in madarsas.
A bench of Chief Justice of India D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra, while setting aside the high court ruling, said the Madarsa Act was “consistent with the positive obligation of the State to ensure that students studying in recognized Madarsas attain a level of competency which will allow them to effectively participate in society and earn a living.”
The Supreme Court decided against striking down the entire legislation even though it found that certain provisions in the Madarsa Act, which pertain to the regulation of higher education and the conferment of such degrees, were unconstitutional on the ground of lack of legislative competence.
“Thus, the question that arises is whether the entire legislation must be struck down on this ground. In our view, it is in failing to adequately address this question of severability that the High Court falls into error and ends up throwing the baby out with the bathwater,” the court said in its 70-page-judgment.
The Uttar Pradesh government, headed by chief minister Adityanath, informed the court that around 12.35 lakh students were studying in 13,364 madarsas across the state.
Of these, as many as 1.92 lakh students were enrolled in in 560 state funded madrasas; 4.37 lakh students were receiving education in 3,834 non-state funded permanently recognised madarsas and 6.04 lakh students were studying in 8,970 non-state funded temporarily recognised madarsas.
‘State cannot hide behind the lame excuse…’
The Allahabad high court had in March struck down the Madarsa Act on a petition filed by a lawyer, Anshuman Singh Rathore, who had submitted that the legislation 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. The high court bench, while ruling the Act as unconstitutional, had observed that the ““denial” of modern education and quality of education in madarsas 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 high court had ruled that the Madarsa 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 high court’s decision was challenged in the Supreme Court by various stakeholders including madarsa associations. The Supreme Court concluded that the Madarsa Act regulates the standard of education in Madarsas recognised by the Board for imparting Madarsa education.
‘State government can enact regulations’
The apex court also said that Article 21-A, which mandates free and compulsory education of all children in the age group of six to 14, and the Right to Education, 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,” the Supreme Court said.
The apex court ruled that the Madarsa Act was 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, the apex court said.
A few madarsa award certificates of Kamil (undergraduate degree) and Fazil (post-graduate degree), which the state declared were not recognised by it as alternatives to graduate and post-graduate degrees respectively. “These courses have not been given equivalence by the Government of Uttar Pradesh/Government of India/any university established by law, nor has the education of these courses been recognised as an alternative to the graduation/post-graduation degree of a university established by law for employment at the level of Uttar Pradesh Government or Government of India,” the UP government informed the court.