SC stays order striking down UP madrasa law, says Allahabad High Court misread Act

Staying the High Court order, the bench said it “would impinge on the future course of education of nearly 17 lakh students who are pursuing education in these institutions”.

Fixing it for final hearing in the second week of July, the bench said “pending the hearing and final disposal of the petitions, the judgement and order of the High Court dated March 22 shall remain stayed”.

The bench, which perused the provisions of the Act, said they “abundantly make it clear that the object and purpose of the statutory board which is constituted under the Act is regulatory in nature”.

It said “the finding of the High Court that the very establishment of the board would amount to breach of the principles of secularism appears to conflate the concept of madrasa education with the regulatory powers which have been entrusted to the board”.

It said that “in striking down the provisions of the Act, the High Court prima facie has misconstrued the provisions of the Act”. It said “the Act does not per se provide for religious instruction in an educational institution maintained out of state funds”.

The bench pointed out that Article 28(1) of the Constitution provides that no religious instruction shall be provided in any educational institution wholly maintained out of state funds and referred to a 2002 judgement which explains the expression religious instruction as employed in the Article.

It said “if the object, and purpose of the PIL, was to ensure that secular education in core subjects such as mathematics, science, social studies and history, besides, the languages is provided in institutions imparting madrassa education, the remedy would not lie in striking down the provisions of the 2004 Act, but issuing suitable directions to ensure that all students who pursue their education in these institutions are not deprived of the quality of education that is made available by the state in other institutions”.

“The state in our view does have a legitimate public interest in ensuring that students who pursue education in all institutions, whether primary, secondary or higher secondary level, receive education of a requisite quality and standard which makes them qualified enough to pursue a dignified existence upon receiving the degree which are awarded to them. Whether this purpose would require the jettisoning of the entire statute which has been enacted by the state legislature in 2004 would merit serious consideration,” it said.

The High Court, while striking down the provisions of the Act, had directed that all the students be relocated by the state.

The Supreme Court, however, said “while it is entirely the choice of the students and the parents in regard to the institution in which they wish to pursue their studies, we are of the view that the impugned direction of the High Court for relocation of the students was prima facie not warranted”.

The High Court had said that as per the madrasa syllabi, the students are required to study Islam and its doctrines to progress to the next class and that modern subjects are either included or offered as optional, and that they have the choice to study just one optional subject. It also held the Act to be “violative of Section 22 of the University Grants Commission Act, 1956”.

Pressing for interim stay, Senior Advocate Abhishek Manu Singhvi, who appeared for an association of managers, said “The reason why the Court should stay is: a regime is there, uninterrupted for 120 years. 17 lakh students and 10,000 teachers cannot be absorbed in other schools with the academic year ending. There will be chaos.”

He pointed out that the High Court order came on a PIL and said it had not examined the petitioner’s locus standi. On the HC’s finding that modern subjects were not taught in the madrasas, he said that subjects like science, maths, English etc are taught there. Singhvi said “religious education does not mean religious instruction”.

Responding to a query from the bench, Additional Solicitor General K M Nataraj, appearing for the state, said it had in the course of the proceedings before the HC supported the provisions of the statute but after the judgement, decided to accept it. He said the madrasas had not been asked to close down but the ruling only relieved the state from financial burden on account of them.

Attorney General R Venkataramani said the “entanglement of religion is a suspect issue, in any degree whatsoever. The question is not what is the tolerable limit when it comes to state aid. Therefore, the court may only have to debate that”. He said the madrasas are not paralysed except that they will not get state funds.