HC scraps UP madrasa law: ‘Shift students to govt schools’

LUCKNOW The Lucknow bench of the Allahabad high court on Friday declared the Uttar Pradesh Board of Madarsa Education Act, 2004, “unconstitutional” and violative of secularism, directing the state government to accommodate students studying in madrasas in regular schools, in what is a significant order potentially affecting the lives of tens of thousands of students in India’s most-populous state.

A division bench of justices Vivek Chaudhary and Subhash Vidyarthi passed the order on a petition filed by Anshuman Singh Rathore, a practising lawyer, challenging the constitutional validity of the act.

“The State has no power to create a board for religious education or to establish a board for school education only for a particular religion and philosophy associated with it,” asserted the court.

Any such action on part of the state government violated the principles of secularism, which is in the letter and spirit of the Constitution of India, added the court.

“It [the State] cannot discriminate and provide different types of education to children belonging to different religions. Any such action on part of the state would be violative of secularism, which is part of the basic structure of the Constitution of India,” said the bench in the 86-page order.

“We hold that the Madarsa Act, 2004, is violative of the principle of secularism, which is a part of the basic structure of the Constitution of India,” added the court.

The order will affect the lives of roughly 200,000 students currently enrolled in 16,500 recognised and 8,500 unrecognised madrasas or Islamic seminaries across UP, according to the state madrasa board. Muslims form 19.26% of Uttar Pradesh’s 190 million population.

The Samajwadi Party, which brought the act in 2004, said that the government did not represent the facts of the case which led to the court declaring it “unconstitutional”.

In its 86-page order, the court said that any policy of the state government that divides society on religious lines violates the constitutional principles.

“Aims and objectives of the act are silent as to how and why the requirement arose to have a separate education board for a particular religion while there are secular primary education board and board for high school and intermediate education in the state providing education to one and all without making any differential between children of different religions,” said the court in its order.

The court pointed out that modern subjects were either absent or optional in a madrasa and a student could opt only one of the optional subjects. “Scheme and purpose of Madarsa Act is only for promoting and providing education of Islam, its prescriptions, instructions and philosophy and to spread the same,” said the court.

This was contrary to the duty of the state government that has to provide education that is secular in nature, asserted the court. “Such an action on the part of the state is not only unconstitutional, but also highly divisive of society on religious lines,” added the court.

The court pointed out that the state government had sufficient power to frame laws related with education to be provided at school level, both primary and intermediate. However, such education had to be secular in nature.

“Under the provisions of Madarsa act for being recognised by the madrasa board it is compulsory for an institution to be set up as a Muslim minority institution and it is also compulsory for a student of madrasa to study in every class, Islam as a religion, including all its prescriptions, instructions and philosophies, to get promoted to the next class,” added the court.

The court said that the Madarsa Board was not an educational institution established and administered by any minority, but instead was an institution established by the state government for providing an education system. It prescribed courses, recognises degrees and certificates.

“We also find that since the very purpose of the Madarsa Act is found to be violative of secularism, it is not possible to segregate and save any portion of the act, which would be of any relevance,” said the court.

The court found that the Madrasa Board was performing the role assigned to the University Grants Commission by handing out degrees, framing courses and suggesting textbooks.

The court said the Madarsa Board provided education related to languages and Islam as a religion, and that modern subjects, including science, were only optional. “The entire school education can be completed without studying modern subjects,” pointed out the court.

The court asserted that the state government could not teach a particular religion in the name of traditional education. While fulfilling its duties of providing free and compulsory education from classes 1 to 6, the state government was bound to provide universal education, the bench said.

“Teaching merely one religion and a few languages without any study of modern subjects cannot be called quality education,” pointed out the court.

Therefore, the education being imparted in madrasas is neither “quality” nor “universal” in nature, asserted the court.

“Education being provided by the Madrasa Board was in violation of standards prescribed by the Supreme Court while interpreting constitutional provisions. Therefore, this court has no hesitation in holding that the education being provided under the Madarsa Act is violative of Article 21 and 21A of the Constitution of India,” the court held.

Samajwadi Party spokesperson Ashutosh Varma said, “We demand that the government study the decision and appeal in Supreme Court for the rights of minority education in the state.”