Gauhati High Court Upholds Constitutionality Of Assam Law, Holds Madrassas Run On State-Funds Can't Impart Religious Instructions

The law of 2020 had also converted the State-funded Madrassas into general schools and withdrew the teaching of theological subjects in such Madrassas.

The Bench in this important judgment has upheld the constitutional validity of the Assam Repealing Act, 2020 that had repealed the Assam Madrassa Education (Provincialisation) Act, 1995 and Assam Madrassa Education (Provincialisation of Services of Employees and Re-organisation of Madrassa Educational Institutions) Act, 2018.

Senior Advocate Mr. Sanjay Hegde appeared for the Petitioners while Advocate General Assam Mr. D. Saikia appeared for the State.

A total of 13 petitioners had challenged the Repealing Act of 2020 and the subsequent government orders alleging that this action of the State Government amounted to an invasion of their fundamental rights under Article 25, 26, 29, and 30 of the Constitution. Further, it was argued that this was also violative of Articles 14 and 21 of the Constitution.

The Petitioners were either the President of the Managing Committees and in some cases even donors and "mutawallis" of the land, on which these Madrasas were built.

Repealing Act of 2020 (Grounds of Challenge)

The changes brought under the Assam Repealing Act which were also the grounds of challenge before the Court (including the Repealing Act) were –

i) It converted Madrasas into High Schools and brings it under the State Education Board;

ii) Religious teachings and instructions in these Madrasas were withdrawn;

iii) Fresh admissions under the old course were barred from 01.04.2021;

iv) It also directed that the teachers teaching theological subjects would now be provided training for teaching general subjects of their aptitude;

v) Further, the State Madrassa Education Board was dissolved and all records, bank accounts, etc., of the Board was transferred to the Board of Secondary Education Assam.

vi) The State Madrassa Board also stood dissolved.

vii) Orders were passed removing courses relating to religious instructions from various grades of Madrasas.

Mr. D. Saikia, Advocate General of Assam appearing for the State argued that the changes brought about by the legislative and executive action of the State were for the e "Provincialised Madrasas" alone, which are Government schools. This is not for the "Community Madrasas" or the "Qawmi Madrasas" and "Maktabs", which continue to function in Assam as usual.

The Court noted that the question before the Court was to be seen from a broader perspective of a fundamental constitutional value which is 'secularism.'

"In a country which has multiple religions, the State has to be neutral while dealing with the matters relating to religion," the Bench opined.

Further, the Court held, "There are different castes, creeds, communities, religions, cultures, languages and traditions in India. If India is to remain strong and united, and a robust democracy, then the State has to be secular. There is no other way. Secularism in the matter of governance also means treating everyone equally."

"We live in a democracy and under a Constitution where all citizens are equal before the law. Therefore, preference given by the State to any one religion, in a multi-religious society like ours, negates the principle of Articles 14 and 15 of the Constitution of India. It is thus the secular nature of the State which mandates that no religious instruction shall be provided in any educational institution wholly maintained out of State funds [Article 28(1)]," the Court observed.

The Court further placed reliance on SR Bommai v. Union of India and held that though a religious minority has a right to establish and administer educational institution of its choice, yet once such educational institution starts getting maintained wholly out of the State funds then religious instructions cannot be imparted in such an institution.

The Court also held that the mandate of Article 28 is for all educational institutions and not just for those institutions that are established and administered by a minority.

Further, the Bench opined, "Clause (1) of Article 28 is extremely important. It states in clear and unambiguous terms that no religious instructions shall be imparted in any educational institution which is wholly maintained out of State funds. There is another restriction in Clause (3), which is that an educational institution, which is receiving aid out of State funds (it may not be fully funded), religious instructions oreligious worship cannot be forced upon the students. An exception is carved out in Clause (2) of Article 28 providing that an educational institution, which has been established under any endowment or trust but is being administered by the State, religious instruction can be imparted."

The Court noted that when Madrasas in Assam were provincialized in 1995 by a State Legislation, it could not be called "nationalization of Madrassas," it has to be "provincialisation of Madrasas."

"The word "Provincialisation" would mean brining something within the fold of a province, in other words, bringing it within the ownership of the Government, the Court added.

Additionally, the Court held, "The educational institutions in question are admittedly provincialised schools, the entire teaching and nonteaching staff of these educational institutions are Government servants, the school being a Government institute cannot be said to be either established or being administered by a minority."

"The venture Madrasas, which were established by a minority community, would cease to be an educational institution established by a minority community once such a school has been provincialised under the 1995 Act or the subsequent Provincialisation Acts," the Court observed.

The Court noted that the claim of Petitioners that these Madrassas are minority institutions and were established and administered by the minority is a claim which has no foundation and hence is not acceptable.

"Let us not forget that these educational institutions are Government institutions. It is not a grant-in-aid school. It is an admitted position that the entire salary of teaching and non-teaching staff of these provincialised Madrasas come from State exchequer. The annual maintenance, repairs of buildings etc. are all done by the State. Assuming that the students pay examination fees or tuition fees, but that in itself will not dilute the Government character of these Madrasas or make them any less "fully funded" by the State," the Court held.

Establish Arabic colleges, Court directs Government

The executive orders which are under challenge before us have not dispensed with the services of teachers who were so far imparting education in the Madrasas. They will now be required to teach Arabic or may even be trained for teaching other subjects.

Though by and large, the absorption of these teachers in Middle, Secondary, and Higher Secondary Schools seems to be in order, some of these teachers in Arabic Colleges and Title Madrasas were also teaching students at Graduate and Post-Graduate levels. They are being placed under Secondary Board, instead of being placed under a University.

The Court held that this was being held for their counterparts who were teaching in 'Sanskrit Tolls' have been placed under a University, after the abolition of 'Sanskrit Tolls.' Therefore, we direct that if such teachers in Arabic Colleges and Title Madrasas, who were so far imparting education to students at Graduate and Post-Graduate levels, their case shall also be considered for bringing under a University, like it has been done for the teachers in Sanskrit Tolls.

"But as the teachers are not before us, this shall be subject to a representation being made by such teachers, before the Commissioner and Secretary, Education (Secondary) Department, which shall then be considered in terms of our observations, by passing a speaking order," the Bench concluded.