It is most vital to note that in a significant move with far reaching implications, the Apex Court in a most learned, laudable, landmark, logical and latest judgment titled Anjum Kadari & Anr. Vs Union of India & Ors in Special Leave Petition (C) No. 8541 of 2024 With Ors and cited in Neutral Citation No.: 2024 INSC 831 that was pronounced as recently as on November 5, 2024 in the exercise of its civil appellate/original jurisdiction has upheld the Constitutional validity of the Uttar Pradesh Board of Madarsa Education Act, 2004 (2004 Act) except for its provisions allowing the Board to award higher degrees like Kamil (under-graduate studies) and Fazil (post-graduate studies).
It must be noted that a three-Judge Bench of the Apex Court headed by the CJI Dr DY Chandrachud and also comprising of Hon'ble Mr Justice JB Pardiwala and Hon'ble Mr Justice Manoj Misra who authored this notable judgment opined that granting these higher degrees contravened the University Grants Commission Act, 1956 (UGC Act) rendering it unconstitutional. Accordingly, we thus see that the Apex Court deemed it fit to set aside the judgment of Lucknow Bench of Allahabad High Court titled Anshuman Singh Rathore vs Union of India in Writ – C No. – 6049 of 2023 and cited in Neutral Citation No.: 2024:AHC-LKO:25324-DB that was reserved on 8.2.2024 and then pronounced finally on March 22, 2024 which had deemed the 2004 Act to be in breach of the principles of secularism.
It must be mentioned that the Allahabad High Court's ruling stemmed from a writ petition that had been filed by Anshuman Singh Rathore challenging the constitutional validity of the UP Madarsa Board and raising deep concerns pertaining to the management of Madarsas by the Minority Welfare Department both at the State and Union levels among other related matters.
We saw how on April 5, 2024, the CJI-led Bench had provided a breather to about 17 lakh Madarsa students by stepping in to stay the judgment of the Lucknow Bench of Allahabad High Court which had scrapped the Uttar Pradesh Board of Madarsa Education Act,2004. It is of immense significance to note that the UP Government in response to a query by the Bench maintained that it stood by the Uttar Pradesh Board of Madarsa Education Act, 2004 and was of the view that the Allahabad High Court should not have held the entire law as unconstitutional.
Fundamentally speaking, the Arabic word Madarsa denotes an educational institution. It must be mentioned that the Madarsa system has been in operation since last many centuries dating back to the Delhi Sultanate and received patronage from the Khilji and Tughlaq dynasties. As time progressed, the Madarsa system evolved into a very distinct education system that imparted both religious and secular training. It also needs to be mentioned that many prominent personalities like Raja Ram Mohan Roy who is the father of Indian Renaissance and so also the eminent writer Munshi Premchand and to top it all – Dr Rajendra Prasad who is India's first President are all historically believed to have gained their elementary knowledge from Madarsas and their teachers who are known as Maulvis!
At the very outset, this brief, brilliant, bold and balanced judgment sets the ball in motion by first and foremost putting forth in para 1 that:
The High Court of Judicature at Allahabad (High Court) has held the Uttar Pradesh Board of Madarsa Education Act, 2004 (Madarsa Act) to be unconstitutional on the ground that it violates the principle of secularism and Articles 14 and 21A of the Constitution. The Madarsa Act established the Uttar Pradesh Board of Madarsa Education, (Board) to regulate, among other things, the standards of education, qualifications for teachers, and conduct of examinations in Madarsas in the State of Uttar Pradesh. The entirety of the Act has been struck down by the High Court.
While delving on the background, the Apex Court observes in para 2 that:
The term 'madarsa' refers to any school or college where any sort of education is imparted. [Yoginder Sikand, Bastions of the Believers: Madrasas and Islamic Education in India (Penguin Books, 2005)]. The history of the establishment of Madarsas in the Indian subcontinent may be traced to the rule of the Tughlaqs. (ibid). The pre-colonial Madarsas were of two types:
- the Maktabs which were attached to mosques and imparted elementary education; and
- the Madarsas which were centres of higher learning and contributed to the administrative, religious, and cultural needs of the prevalent society. (Arshad Alam, 'Understanding Madrasas' (2003) 38(22) Economic and Political Weekly 2123).
During colonial rule, the relative importance of Madarsas diminished with the introduction of English as the language of the colonial administration. [Padmaja Nair, The State and madrasas in India (Working Paper 15, University of Birmingham 2009) 11].
As we see, the Apex Court then discloses in para 3 that:
The colonial government formulated the Education Code of 1908 to recognize Madarsas in Uttar Pradesh for conducting Arabi-Pharsi examinations. The Arabic institutions preparing candidates for Maulvi, Alim, and Fazil examinations and the Persian institutions preparing candidates for Munshi and Kamil examinations were required to make an application to the Registrar of Arabic and Persian Examinations.
Going ahead, the Apex Court then reveals in para 4 stating that:
After Independence, the Department of Education of the UP government issued the Madrasa Education Rules 1969 to bring Madarsas under the domain of the Education Department. Subsequently, the State government framed the UP Non-Government Arabic and Persian Madrasa Recognition Rules 1987 (1987 Rules) to govern the procedure for recognition and the terms and conditions of service of teachers in the Madarsas. According to the 1987 Rules, recognition to Madarsas was granted by the Recognition Committee and confirmed by the Registrar of Arabic and Persian Exams. The 1987 Rules also prescribed requirements for the quality of buildings and eligibility qualifications for teaching staff as a precondition to the grant of recognition. In 1996, the management of Madarsas was transferred to the Minority Welfare and Waqf Department of the UP government.
Briefly stated, the Apex Court specifies in para 6 stating that:
According to the data placed on record in the affidavit filed by the State of Uttar Pradesh, there are presently around thirteen thousand Madarsas catering to more than twelve lakh students in the state.
While elaborating further, the Apex Court specifies in para 7 observing that, The state government has an annual budget of Rupees one thousand and ninety-six crores for the salaries of teaching and non-teaching staff working in the state-aided Madarsas. The state government also provides books and midday meals to students of state-funded Madarsas. Moreover, it also operates Industrial Training Institutes in recognised Madarsas to teach trades such as welding, mechanics, and stenography.
Most significantly and most forthrightly, the Apex Court minces just no words to encapsulate in para 103 what constitutes the cornerstone of this notable judgment postulating that:
Having already disagreed with the High Court on the question of whether the entire Madarsa Act suffers from an infirmity on the principle of secularism and other contentions, the only infirmity lies in those provisions which pertain to higher education, namely Fazil and Kamil. These provisions can be severed from the rest of the Madarsa Act. As noted earlier, the purpose behind the Madarsa Act was to remove the difficulties in running the Madarsas, improve their merit and provide adequate facilities to students studying in these institutions.
The purpose was not limited to only regulating Fazil and Kamil, and the legislature would have still enacted the statute if it were aware that the portions pertaining to higher education were invalid. Further, if the provisions relating to higher education are separated from the rest of the statute, the Act can continue to be enforced in a real and substantial manner. On an examination of the Madarsa Act, it is clear that prescribing the instructional material, conducting exams and conferring degrees for Fazil and Kamil were only a part of the functions of the Board. The severance of these functions from the Board does not impact its entire character. Thus, only the provisions which pertain to Fazil and Kamil are unconstitutional, and the Madarsa Act otherwise remains valid.
Most sagaciously, the Apex Court propounds in para 104 holding that:
In view of the above discussion, we conclude that:
- The Madarsa Act regulates the standard of education in Madarsas recognized by the Board for imparting Madarsa education.
- The Madarsa Act is consistent with the positive obligation of the State to ensure that students studying in recognised Madarsas attain a level of competency which will allow them to effectively participate in society and earn a living.
- Article 21-A and the RTE Act have to be read consistently with the right of religious and linguistic minorities to establish and administer educational institutions of their choice. The Board with the approval of the State government can enact regulations to ensure that religious minority institutions impart secular education of a requisite standard without destroying their minority character.
- The Madarsa Act is within the legislative competence of the State legislature and traceable to Entry 25 of List III. However, the provisions of the Madarsa Act which seek to regulate higher-education degrees, such as Fazil and Kamil, are unconstitutional as they are in conflict with the UGC Act, which has been enacted under Entry 66 of List I.
It is worth noting that the Apex Court notes in para 105 that:
The judgment of the High Court of Judicature at Allahabad dated 22 March 2024 is accordingly set aside and the petitions shall stand disposed of in the above terms.
Finally, the Apex Court then concludes by holding in para 106 that:
Pending applications, if any, stand disposed of.
In conclusion, we thus see that the Apex Court very rightly upholds the validity of Uttar Pradesh Board of Madarsa Education Act. The CJI Dr DY Chandrachud during the hearing had observed most commendably that secularism means to live and let live. Most brilliantly, Dr Chandrachud underscored that:
Ultimately we have to see it through the broad sweep of the country. Religious instructions are there not just for Muslims. It is there for Hindus, Sikhs, Christians, etc. The country ought to be a melting pot of cultures, civilizations and religions. Let us preserve it that way. In fact, the answer to ghettoisation is to allow people to come to the mainstream and to allow them to come together. Otherwise, what we essentially would be doing is to keep them in silos.
The Apex Court very rightly wondered aloud that what was wrong with the law recognizing Madrasas imparting religious instructions mandating they followed certain basic standards but striking down the entire law meant such institutions remain unregulated. The Apex Court was most categorical to note that it should not be misunderstood as it was equally concerned about Madrasa students getting quality education. While adding a rider, the Apex Court was absolutely right in further holding that quashing the entire law was like throwing out the baby with the bathwater and also maintained that religious instructions were never an anathema in the country. Very rightly so!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
