SC stays Allahabad HC order scrapping madrasa law in UP

The Supreme Court on Friday put on hold a controversial March 22 ruling by the Allahabad high court that declared the 2004 Uttar Pradesh Board of Madarsa Education Act unconstitutional and violative of secularism, noting that the high court prima facie “misconstrued” the law and reached wrong conclusions.

The highest court also stayed the HC directive to the state government to transfer madrasa students to regular schools, in an effort to protect the rights of tens of thousands of students from being compulsorily transferred to other schools and from having their academic pursuits interrupted in the middle of their studies.

A bench led by Chief Justice of India Dhananjaya Y Chandrachud emphasised that if the concern of the petitioners and HC was to ensure that the students of madrasas receive quality education, “the remedy would not lie in striking down the Madarsa Act but in issuing suitable directions to ensure that the students are not deprived of quality education.”

The court, however, refrained from issuing any direction to the Uttar Pradesh government for continuing to provide state aid to madrasas, which the state claimed to be around ₹1,098 crore annually.

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Welcoming the order, chairman of the UP Madrasa Education Board Iftikhar Ali Javed said, “I welcome this decision and congratulate all the people associated with this case. The Board is for education and promotion of languages like Arabic, Persian etc. & not religious education. Earlier we were thinking what if the students had to be shifted? It would not have been an easy task. Education of girls in Muslim community is a bit less. Even if the boys could be shifted to another school, sending the girls without hijab, niqab to other schools would not have been possible.”

The law was enacted in 2004 by then ruling Samajwadi Party.

The Yogi Adityanath government reversed course and backed the HC judgment quashing the law in the Supreme Court, arguing that it could not be forced to provide state funds to madrasas even though privately owned and managed madrasas continue to operate. The government had previously supported the 2004 act before the high court, but it told the apex court on Friday that it accepted the March 22 judgment.

While issuing the interim order on a clutch of petitions moved by madrasa owners, management societies and teachers’ associations, the bench said: “In striking down the act, the high court prima facie misconstrued the provisions of the act. The act does not provide for any religious instruction. The object and purpose of the statute is regulatory in character...The provision of the act does not provide for religious instruction per se.”

Mapping out several provisions of the 2004 act, the bench, also comprising justices JB Pardiwala and Manoj Misra, further noted that the HC order “did not appear to be correct” in holding that the statute was against the principles of secularism and thus, the state could not have enacted this law.

“The purpose of the (Madarsa) Board, which is constituted under the 2004 Act, shows that it is regulatory in nature. The high court did not appear to be correct in its conclusion that the very establishment of the board would amount to overreaching the principles of secularism,” said the court in its order.

Senior counsel Abhishek Singhvi, Mukul Rohatgi, PS Patwalia, Salman Khurshid, Huzefa Ahmadi and Menaka Guruswamy appeared for the batch of petitioners while attorney general R Venkataramani and additional solicitor general KM Nataraj argued for the Centre and the state government respectively, defending the HC ruling. Senior counsel V Chidambaresh, S Guru Krishnakumar and Swarupama Chaturvedi appeared for the writ petitioners, intervenor and the national child rights body respectively.

The apex court also found fault with the HC direction to the state government for accommodating students studying in madrasas in regular schools. “The direction passed by the high court would impinge on the future course of education of nearly 17 lakh students who are pursuing studies in these educational institutions. While it is entirely the choice of students and the parents in regard to the institution they wish to pursue their studies, the direction of the high court on relocation of students was not proper,” it said.

The bench stressed in its order that the best course of action would not be to nix the 2004 act but to issue suitable directions if the petitioners and the HC were concerned about ensuring that madrasa students receive high-quality education.

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It emphasised that the state undoubtedly has an interest in ensuring that students pursue education of the requisite quality and standard which can make them qualified enough to lead a dignified existence upon receiving the degrees which are awarded to them.

“Whether this purpose would require jettisoning the entire statue enacted by the state legislature in 2004 would merit closer reflection,” added the court in its order, issuing notice to the state and Union governments in the matter, asking them to file their affidavits by May 31.

The state madrasa board estimated that the HC order will have an impact on the hundreds of thousands of students who are now enrolled in 16,500 recognised and 8,500 unrecognised madrasas or Islamic seminaries throughout Uttar Pradesh. Of the 190 million people living in Uttar Pradesh, 19.26% are Muslims. According to Iftikhar Ahmed Javed, chairman of the Uttar Pradesh Madrasa Education Board, at least 10,000 teachers are attached to these seminaries.

On Thursday, J Reebha, director of the minority welfare department, said the department already started preparations to admit madrasa students into different schools till the Supreme Court finally gave a decision.

On March 22, the Lucknow bench of the Allahabad HC quashed the 2004 Act, directing the state government to accommodate students studying in madrasas in regular schools, casting a shadow of uncertainty over the future of thousands of young students enrolled in madrasas across the 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 who challenged the constitutional validity of the act.

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The HC said that the state had 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.

“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. It 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 HC in its 86-page judgment.

“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...any policy of the state government that divides society on religious lines violates the constitutional principles,” it asserted.

Opposing the HC judgment, senior counsel Singhvi on Friday led the appeals pointing out that the 120-year-old madrasa regime is sought to be dismantled by HC without looking at the locus of the petitioner or taking note that there is a prescription of state-mandated standards prescribed for curriculum in madrasas.

“The high court seems to say that if you are teaching religion, it amounts to imparting religious instructions. This is contrary to the idea of secularism. Article 25 (right to practice religion) is damned. How can it be called being ‘divisive of society’ if I also give teachings in religion apart from other subjects as prescribed by the state? You won’t have any gurukuls or any other such institutions left if this were to be upheld,” he contended.

Singhvi and other lawyers threw their weight behind the 2002 SC ruling in Aruna Roy Vs Union of India, in which the top court made a distinction between religious instruction and religious education or study of religion. It said the latter was permissible, and indeed desirable, while the former was banned.

Representing the state government, ASG Nataraj said that while they supported their legislation in the high court, they are now in agreement with what the HC ruled.

“We can accommodate the students in regular schools too. But when the state has accepted the high court judgment, it can’t be burdened to bear the expenses of a legislation which has been struck down by a constitutional court. By way of interim order, state can’t be asked to pay for such a legislation,” Nataraj pressed.

A-G Venkataramani, on his part, argued that entanglement of religion is a suspect issue. “The question is not to what degree. Then comes the question of state aid. If the consequence of the high court judgment is that they won’t shut down but only on state aid, is this a matter requiring intervention? The high court is not entirely wrong although it could have clarified something more,” he added.