Manas Dasgupta
NEW DELHI, Apr 5: The Supreme Court on Friday stayed the Allahabad High Court order which struck down the Uttar Pradesh Board of Madrasa Education Act, 2004, declaring it “unconstitutional” on the ground that it violated “the principle of secularism” as well as fundamental rights provided under Article 14 of the Constitution.
The SC order come as a big relief to about 17 lakh madrassa students in UP as its pausing the High Court order would allow about 16,000 madrassas in the state to continue functioning under the 2004 law.
Admitting a Public Interest Litigation (PIL) challenging the HC order, a three-judge bench presided by Chief Justice of India D Y Chandrachud, fixed them for final hearing in the second week of July and added, “pending the hearing and final disposal of the petitions, the judgement and order of the High Court dated March 22 shall remain stayed.”
The bench also comprising Justices J B Pardiwala and Manoj Misra which perused the provisions of the Act said they “abundantly make it clear that the object and purpose of the statutory board which is constituted under the Act is regulatory in nature.”
The bench said the high court decision was prima facie not correct and issued notices to the UP and central governments, and the Madrassa board. The high court had last month declared the 2004 law “unconstitutional” for violating the principle of secularism and had directed the government to accommodate the madrasa students in the formal education system.
The Supreme Court said the aims and objectives of the Madrassa Board were regulatory in nature and that the establishment of the board itself would not affect secularism. “The high court, in striking down the provisions of the Act, directed the relocation of the students. This would affect the 17 lakh students. We are of the view that the direction of relocation of students to other schools was not warranted,” said the Chief Justice.
The Court pointed out that Article 28(1) of the Constitution provides that no religious instruction shall be provided in any educational institution wholly maintained out of state funds and referred to a 2002 judgement which explains the expression ‘religious instruction’ as employed in the Article.
The SC said, “if the object, and purpose of the PIL, was to ensure that secular education in core subjects such as mathematics, science, social studies and history, besides, the languages is provided in institutions imparting madrassa education, the remedy would not lie in striking down the provisions of the 2004 Act, but issuing suitable directions to ensure that all students who pursue their education in these institutions are not deprived of the quality of education that is made available by the state in other institutions.”
The central and state governments backed the high court judgment in the Supreme Court, with the centre saying suspected entanglement of religion and other relevant issues must be debated.
While staying the High Court order, the SC said, “The finding of the High Court that the very establishment of the board would amount to breach of the principles of secularism appears to conflate the concept of madrassa education with the regulatory powers which have been entrusted to the board.”
Senior advocate Abhishek Manu Singhvi, representing the madrassas, said religious education could not mean religious instruction and that the high court order would leave 10,000 madrassa teachers and 17 lakh students in lurch. But the state government said it has made arrangements for the teachers and students.
Mr Singhvi argued it was wrong to say madrassa education did not have quality, was not universal in nature, and was not broad-based. Singling out the madrassas for a ban was discriminatory and the Supreme Court had said so in the Aruna Roy vs Union of India, 2002 verdict, he pointed out.
The Chief Justice said the issues that have been raised merit closer reflection and posted the matter for further hearing in the second week of July. Issuing notice, the bench asked the state to file its counter affidavit before May 31 and gave the appellants time till June 30 to respond to the state’s views.
The HC while striking down the Act had said as per the madrasa syllabi, the students are required to study Islam and its doctrines to progress to the next class and that modern subjects are either included or offered as optional, and that they have the choice to study just one optional subject.
It also held the Act to be “violative of Section 22 of the University Grants Commission Act, 1956.”