Secularism means live and let live, mainstreaming answer to ghettoisation: Supreme Court in UP Madrasa Act case

He said, “The state does have a vital interest even in ensuring standards in places of religious instruction. You interpret it that way. But to throw out the Act is to throw the baby out with the bathwater.”

The UP government, meanwhile, told the bench, also comprising Justices J B Pardiwala and Manoj Misra, that it stood by the constitutionality of 2004 Act. The Allahabad HC had said that the Act violated the principle of secularism.

“It is our legislation which has been struck down by the High Court… The only aspect that needed to be examined was whether any of its provisions violated part 3 of the Constitution (dealing with fundamental rights). For that purpose, the entire legislation could not have been struck down… If there is some provision which offends part 3, then it can be examined,” Additional Solicitor General K M Nataraj submitted.

Senior Advocate Mukul Rohatgi, appearing for some appellants, said the HC decision was “against the principles of secularism”. “Hundreds of people are studying… you cannot force somebody. This is not secularism,” he contended.

The CJI then remarked, “secularism means live and let live”.

On Monday, the Supreme Court had said that some of the provisions of the 2004 Act, which empowers the madrasa board to give degrees like Kamil, Fazil etc., may be in conflict with the provisions of The University Grants Commission Act of 1956, which says that only universities within the meaning of the UGC statute can award such degrees.

On Tuesday, Rohatgi said as per the UGC Act, only those degrees which are specified by notification in the official gazette cannot be awarded. He added that the degrees being awarded by the madrasas do not figure in any such notification and therefore there was no bar in giving them.

The UGC, however, informed the bench subsequently that there was indeed a notification dated July 5, 2014 listing degrees like Fazil and Kamil.

Taking note, the CJI said, “Once there is a notification, then it falls within the bar imposed by the UGC Act.”

Nataraj agreed that madrasas have been exempted from the application of the Right to Education (RTE) Act, and added, “however, the underlying principle under Article 21, which has been recognised as a fundamental right, which has been interpreted by this court – the need to promote quality education” should be given effect to.

The CJI said “independent of the RTE Act, the Madrasa Act itself confers a power on the state government to issue directions… And the state government can yet exercise that authority to effectuate the right under Article 21”.

Appearing for an intervenor, senior advocate Guru Krishnakumar said the Madrasa Act is unconstitutional “for the simple reason that the Act singles out religious instructions provided by one particular community and gives state recognition for such education”.

The CJI said, “Whether you recognise it by the state or otherwise, you cannot exclude the historical and social cultural context that in India we do have religious instruction… whether it is the Vedic pathshalas, whether it is madrasas.” He asked “what’s wrong… If a statute enacted by Parliament or a statute enacted by the state legislature seeks to regulate it to ensure that while you are training young people, young minds, you must train them in a manner which is conducive to the quality of education, the broader national interest?”

Krishnakumar said the state’s objective in securing secular education is to ensure that persons who qualify are able to participate in the democratic process and be part of the mainstream.

The CJI said this can be achieved by the state exercising its regulatory powers under the Act.

Stating that the Act has a “salutary purpose”, the CJI said that even if it wasn’t there, “that doesn’t outlaw the madrasas. The madrasas will still continue to exist through the length and breadth of Uttar Pradesh. But these children who go to the madrasas will have no recognition at all”.

He asked, “Is this really in the national interest? Or is it in the national interest that you regulate the madrasas so that you can mainstream these children? Ultimately, these children will find employment. They will go into national open schools, so on and so forth. You can’t just wish away several 100 years of history of the nation like this.”

The CJI added that even if the SC were to uphold the HC judgment, what would happen is that parents who want to send their children to the madrasas will continue to do so “bereft of any regulation…”

Reminding that the state has the “power…to prescribe regulations…to prescribe rules, which the state must do”, he said “but if there is no regulation, this will be just a sort of a silo into itself without any legislative or executive intervention”.

The CJI said “therefore, it’s a policy statement in the Act that says look, rather than leaving these madrasas completely unregulated, we recognise them, but we subject them to conditions”.

He said “whether the state government has thus far since 2004 properly exercised its power of regulation is a different thing. A particular state government may feel, look, we need to have a more proactive approach”.

Hearing Krishnakumar, the CJI also said “ultimately we have to also have a look at the broad sweep of the country. Religious instruction is not something unique only to the Muslims. You have it among the Christians, Jews, Sikhs, Hindus. It’s a country which is a melting pot of cultures, civilizations and religions. Let’s preserve it that way. In fact, the answer to ghettoisation is to mainstream, is to allow people to come together. Otherwise, what we essentially would be doing is putting people in a silo, to be shunted and forgotten”.

Krishnakumar said the Act was in fact promoting ghettoisation and was not helpful in mainstreaming.