Supreme Court: While considering the correctness of Allahabad High Court’s judgment in March 2024 wherein it had declared U.P. Board of Madarsa Education Act, 2004 (Madrasa Act) to be unconstitutional; the 3 Judge Bench of Dr D.Y. Chandrachud, CJ*., J.B. Pardiwala and Manoj Misra, JJ., upheld Madarsa Act’s validity holding that it 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. The Court further held that Article 21-A of the Constitution and the Right to Education Act, 2009 must be read consistently with the right of religious and linguistic minorities to establish and administer educational institutions of their choice.
The Board of Madarsa Education (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. Furthermore, Madarsa Act is within the legislative competence of the State legislature and traceable to Entry 25 of List III.
However, the Court also held that 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 of the Constitution.
With this judgment, the 3-Judge Bench also reversed the decision of Division Bench of Allahabad High Court, which had declared the Madarsa Act as unconstitutional for being violative of the principle of Secularism, Articles 14, 21 and 21-A of the Constitution and violative of Section 22 of the University Grants Commission Act, 1956 (‘UGC Act’).
Background:
The State legislature of Uttar Pradesh enacted the Madarsa Act which was deemed to come into force on 3-9-2004 with a view to removing the difficulties arisen in running the Madarsas, improving the merit therein and making available the best facility of study to the students studying in Madarsas it was decided to make a law to provide for the establishment of a Board of Madarsa Education in the state and for the matters connected therewith or incidental thereto.
Section 9 of Madarsa Act deals with Functions of the Board which are wide-ranging and relate to inter alia prescribing the course material, granting degrees or diplomas, conducting examinations, recognizing institutions to conduct exams, conducting research and training, and other incidental functions. These functions are exercised at various levels of education.
The matter first came to the fore when a writ petition was filed claiming that one of the petitioners was appointed as a part-time assistant teacher praying that no regular appointment should be made, and his service should be regularized.
The main question that arose before Allahabad High Court was whether the provisions of the Madarsa Act stand the test of Secularism, which forms a part of the basic structure of the Constitution.
Subsequently on 22-3-2024, the Allahabad High Court declared Madarsa Act to be unconstitutional and directed the State to take steps forthwith for accommodating the Madarsa students in regular schools recognized under various education Boards and ensure that sufficient number of additional seats, and if required, additional schools, are created and established, respectively. The Court also directed that the State Government shall ensure that children between the ages of 6 to 14 years are not left without admission in duly recognized institutions.
In April Supreme Court directed to put a stay on the afore-stated judgment stating that though the State has a legitimate interest in ensuring quality education for students to enable them to earn a degree, the High Court was prima facie wrong in striking down the legislation, which was only regulatory in nature.
Court’s Assessment:
Perusing the history of Madarsas in India, legislative background and the submissions advanced by the parties, the Court analysed the case in the following manner:
Secularism and regulation of minority educational institutions
The preamble to the Constitution enshrines the declaration to constitute India into a Sovereign, Socialist, Secular, Democratic, Republic. Articles 14, 15, and 16 of the Constitution make up the Equality Code, which mandates the State to treat all people equally irrespective of their religion, faith, or belief. Articles 25 to 30 contain the other facet of secularism, that is, the practice of religious tolerance by the State. The constitutional scheme under Articles 25 to 30 distinguishes between the right of an individual to practice religion and the secular part of religion, which is amenable to State regulation. Articles 29 and 30 deal with the cultural and educational rights of minorities.
Considering whether the Basic Structure doctrine can be applied to invalidate ordinary legislation, the Court stated that a statute can be declared ultra vires on two grounds alone: (i) it is beyond the ambit of the legislative competence of the legislature; or (ii) it violates Part III or any other provision of the Constitution. Relying on several precedents on the issue, the Court explained that the constitutional validity of a statute cannot be challenged for the violation of the basic structure of the Constitution because concepts such as Democracy, Federalism, and Secularism are undefined concepts.
Concerning regulation of minority educational institutions, the Court stated that the right of minorities to administer educational institutions includes the right to manage the affairs of the institution in accordance with the ideas and interests of the community in general and the institution in particular. “However, the right to administer minority educational institutions is not absolute. The right to administer educational institutions implies an obligation and duty of minority institutions to provide a standard of education to the students. The right to administer is, it is trite law, not the right to maladminister”. The State has an interest in ensuring that minority educational institutions provide standards of education similar to other educational institutions. The State can enact regulatory measures to promote efficiency and excellence of educational standards. Regulations about standards of education do not directly bear upon the management of minority institutions.
The Court further explained that the State may impose regulation as a condition for grant of aid or recognition which must satisfy the three tests: (i) it must be reasonable and rational; (ii) it must be conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it; and (iii) it must be directed towards maintaining the excellence of education and efficiency of administration to prevent it from falling standards.
Coming onto the Madarsa Act, the Court pointed out that the legislative scheme of the Madarsa Act suggests that it was enacted to regulate the standard of education in Madarsas recognized by the Board for imparting Madarsa education. The Madarsa Act grants recognition to Madarsas to enable students to sit for an examination and obtain a degree, diploma, or certificate conferred by the Board. The statute envisages granting recognition to Madarsas which fulfil the prescribed standards for staff, instructions, equipment and buildings. The grant of recognition imposes a responsibility on the Madarsas to attain certain standards of education laid down by the Board. Access to quality teachers, course materials, and equipment will allow Madarsa students to achieve stipulated educational and professional standards. Failure of the Madarsas to maintain the standards of education will result in the withdrawal of their recognition.
The Court further noted that the Madarsa Act allows the Board to prescribe curriculum and textbooks, conduct examinations, qualifications of teachers, and standards of equipment and buildings geared to ensure the maintenance of standards of education in Madarsas. The provisions of the Madarsa Act are reasonable because they subserve the object of recognition, that is, improving the academic excellence of students in the recognised Madarsas and making them capable to sit for examinations conducted by the Board. The statute also enables the students studying in the recognised Madarsas to pursue fields of higher education and seek employment. The Court stated that the Madarsa Act secures the interests of the minority community in Uttar Pradesh because: (i) it regulates the standard of education imparted by the recognised Madarsas; and (ii) it conducts examinations and confers certificates to students, allowing them the opportunity to pursue higher education. Therefore, the Madarsa Act furthers substantive equality for the minority community.
The Court said that Allahabad High Court erred in holding that a statute is bound to be struck down if it is violative of the basic structure. Invalidation of a statute on the grounds of violation of secularism has to be traced to express provisions of the Constitution. Further, the fact that the State legislature has established a Board to recognise and regulate Madarsa education is not violative of Article 14 of the Constitution.
Concerning interplay of Articles 21-A and 30 of the Constitution, the Court said that Article 21-A imposes a constitutional obligation on the State to impart elementary and basic education, which in turn led to the enactment of RTE Act. Article 30(1) guarantees the right to establish and administer educational institutions of their choice to religious and linguistic minorities. The constitutional scheme allows the State to strike a balance between two objectives of ensuring the standard of excellence of minority educational institutions; and preserving the right of the minority to establish and administer its educational institution.
The Court pointed out that Allahabad High Court erred in holding that education provided under the 2004 Act is violative of Article 21A because (i) The RTE Act which facilitates the fulfilment of the fundamental right under Article 21-A contains a specific provision by which it does not apply to minority educational institutions; (ii) The right of a religious minority to establish and administer Madarsas to impart both religious and secular education is protected by Article 30; and (iii) the Board and the State Government have sufficient regulatory powers to prescribe and regulate standards of education for the Madarsas.
Legislative Competence
Considering whether Madarsa Act is within the legislative competence of the State under Entry 25, List III of the Constitution, the Court noted that when the Constitution was enacted, the subject of “education” was part of the State List of the Seventh Schedule. However, via the Constitutional Amendment of 1977, the legislative entry pertaining to “education” was moved from the State List to the Concurrent List. Entry 25, List III.
The Court pointed out that the provisions of the Madarsa Act seek to “regulate” Madarsas. These are educational institutions run by a religious minority. There is a distinction between “religious instruction” and “religious education”. While the Madarsas do impart religious instruction, their primary aim is education. Legislative entries must be given their widest meaning, and their ambit also extends to ancillary subjects which may be comprehended within the entry. The mere fact that the education which is sought to be regulated includes some religious teachings or instruction, does not automatically push the legislation outside the legislative competence of the State. The Court further pointed out that Entry 25, List III itself provides specific carve-outs as it is subject to entries 63, 64, 65 and 66 of List I. None of these entries in the Union List seek to regulate ‘religious education’.
The Court explained that the question of repugnancy does not rise in the instant case as there is no central law which purports to regulate the functioning of Madarsas. The RTE Act, which is the legislation framed by Parliament pursuant to Entry 25, specifically states that it is inapplicable to Madarsas, and thus, there is no issue of a conflict or repugnancy between the two Acts.
Provisions of Madarsa Act in conflict with the UGC Act enacted under Entry 66, List I
The UGC Act was enacted pursuant to Entry 66 and to make provisions for the “co-ordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission”. The Madarsa Act has been enacted pursuant to Entry 25 of List III. It has been held in a consistent line of precedent that the UGC Act occupies the field regarding the coordination and determination of standards in higher education. Therefore, state legislation which seeks to regulate higher education, in conflict with the UGC Act, would be beyond the legislative competence of the State legislature.
Section 22 of the UGC Act pertains to the right to confer degrees. Section 9 of the Madarsa Act specifies the functions of the Board wherein several of these functions pertain to the regulation of the Fazil and Kamil degrees, which correspond to a bachelor’s level and a post-graduate degree, respectively. The UGC Act governs the standards for higher education and state legislation cannot seek to regulate higher education, in contravention of the provisions of the UGC Act. Hence the Madarsa Act to the extent to which it seeks to regulate higher education, including the ‘degrees’ of Fazil and Kamil, is beyond the legislative competence of the State Legislature.
Entire Madarsa Act need not be struck down
The Court said that in failing to adequately address the question of severability that the Allahabad High Court fell into error and ended up “Throwing the baby out with the bathwater”. The entire statute does not need to be struck down each time that certain provisions of the statute are held to not meet constitutional muster. The statute is only void to the extent that it contravenes the Constitution. The provisions of Madarsa Act concerning regulation of higher education can be severed from the rest of the Act. Even after severing these specific provisions, the Act can continue to be enforced in a real and substantial manner.
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