SC upholds validity of UP Board of Madarsa Education Act, 2004
The Supreme Court on Tuesday upheld the validity of the Uttar Pradesh Board of Madarsa Education Act, 2004, saying a law can’t be struck down on the grounds of secularism – a part of basic structure -- unless it violates a constitutional provision.
The verdict came as a major relief to 12,34,388 students studying in 13,364 madarsas in Uttar Pradesh who were ordered to be shifted to formal schools by the Allahabad High Court which had on March 22 declared unconstitutional the 2004 Act – which regulates the functioning of madrasas in the state.
“The Madarsa Act is within the legislative competence of the state legislature and traceable to Entry 25 of List III (Concurrent List). 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,” a three-judge Bench led by Chief Justice of India DY Chandrachud said.
The Bench -- which also included Justice JB Pardiwala and Justice Manoj Misra -- set aside the high court’s verdict, saying it erred in holding that education provided under the Madarsa Education Act was violative of right to education guaranteed to children in the age group of 6 to 14 years under Article 21A of the Constitution.
“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,” said the Bench which had reserved its verdict on the issue on October 22.
The Bench clarified that the RTE Act -- which facilitates the fulfilment of the fundamental right under Article 21A -- contained a specific provision which made it inapplicable to minority educational institutions.
The top court, however, declared that “the provisions of the Madarsa Act which regulates higher-education degrees, such as Fazil and Kamil (which correspond to a bachelor’s level and a postgraduate degree respectively) are unconstitutional as they are in conflict with the UGC Act, which has been enacted under Entry 66 of List I (Union List).”
“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 since it conflicts with Section 22 of the UGC Act. Entry 25 of List III, pursuant to which the Madarsa Act has been enacted, has been expressly made subject to Entry 66 of List I. The UGC Act governs the standards for higher education and a state legislation cannot seek to regulate higher education, in contravention of the provisions of the UGC Act,” it ruled.
However, it said, “The entire statute does not need to be struck down each time that certain provisions of the statute are held not to meet constitutional muster. The statute is only void to the extent that it contravenes the Constitution.”
The constitutional validity of a statute cannot be challenged for the violation of the basic structure (read secularism) of the Constitution. The reason is that concepts such as democracy, federalism and secularism are undefined concepts. Allowing courts to strike down legislation for violation of such concepts will introduce an element of uncertainty in our constitutional adjudication,” it said.
The Uttar Pradesh Government had said that it stood by its Act and that the Allahabad High Court was wrong in declaring the entire law unconstitutional.
However, describing madrasas as an "unsuitable and unfit" places to receive ‘proper’ education, the National Commission for Protection of Child Rights (NCPCR) had contended that madrasas not being schools -- as defined under the Right to Education Act, 2009 -- have no right to compel children or their families to receive madrasa education.
The state government has an annual budget of Rs 1,096 crore for salaries of teaching and non-teaching staff in the state-aided madrasas. It also provides books and midday meals to madrasa students and operates Industrial Training Institutes in recognised madrasas to impart skills in trades such as welding, mechanics and stenography.
