Gauhati HC cites secularism to uphold Assam law abolishing state-funded madrasas

Reacting to the development, the chief minister tweeted in the evening: “Division Bench of Honble Gauhati High Court in a landmark judgment delivered today upheld the Act of 2020 to repeal Madrassa Education Procincialisation Acts and also upheld all other notifications to convert 397 provincialised madrrassas to general educational institutions.”

Thirteen petitioners —who were either donors or presidents of managing committees of land on which madrasas were built —moved the high court saying the law violated the fundamental rights under Articles 25, 26, 29 and 30 of the Constitution, among other rights.

After hearing both sides, a division bench comprising Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia dismissed the petition, while saying that secularism was a “basic structure of the constitution”, and that as per Article 28 (1), this secular nature “mandates that no religious instruction shall be provided in any educational institution wholly maintained out of state funds”.

Recapping the history of madrasas in the state, the court said that they had begun as community schools, following which they were made into “venture” madrasas receiving government money. In 1995 they were provincialised under 1995 Provincialisation Act and brought wholly under state funding. Under the 2018 Provincialisation Act, still more madrasas were provincialised.

During the hearing, Advocate General Devajit Lon Saikia had clarified that the government’s law was applicable to “provincialised” or government madrasas alone, and not “community (qawmi) madrasas”, or “maktabs”, which continue to function in Assam.

Senior advocate Sanjay Hegde argued that the petitioners could, “under Article 30(1) to ‘establish’ and ‘administer’ educational institutions of their ‘choice’, which gives them a right, inter alia, to decide their own curriculum, which is based on their perception to preserve their religion or culture.”

But Saikia argued that “all the state has done is that it has removed religious teachings from government schools”. “The schools from where these teachings have now been stopped are not private institutions, leave aside minority institutions. They were provincialised way back in the year 1995-96 and since then they have lost their minority status,” he said.

The court observed that Clause (1) of Article 28 was extremely important. “It states in clear and unambiguous terms that no religious instructions shall be imparted in any educational institution which is wholly maintained out of state funds. There is another restriction in Clause (3), which is that in an educational institution which is receiving aid out of state funds (it may not be fully funded), religious instructions or religious worship cannot be forced upon the students,” the judges said.

They added that the madrasas in question were “fully under control of the government”. “Consequently, the claim of the petitioners that these madrasas are minority institutions and were established and administered by the minority is a claim which has no foundation and is hence not acceptable,” the judges observed.

On the matter of the government placing those teaching at Arabic colleges and “title madrasas” under the board of secondary education, the judges said they could be brought to the university level “subject to a representation being made by such teachers” before the commissioner and secretary of the secondary education department, “which shall then be considered in terms of our observations, by passing a speaking order”.