The Allahabad High Court Friday declared the Uttar Pradesh Board of Madarsa Education Act, 2004, “unconstitutional,” maintaining that it violates “the principle of secularism” as well as fundamental rights provided under Article 14 of the Constitution.
Hearing a petition filed by a lawyer challenging the Act, a bench of Justices Vivek Chaudhary and Subhash Vidyarthi also directed the state government to “take steps forthwith for accommodating the madrasa students in regular schools recognised under the Primary Education Board and schools recognised under the High School and Intermediate Education Board of the state of Uttar Pradesh.
“The state government for the said purpose shall ensure that as per requirement sufficient number of additional seats are created and further if required, sufficient number of new schools are established. The government shall also ensure that children between the ages of 6 to 14 years are not left without admission in duly recognised institutions.”
Uttar Pradesh has a total of 16,513 recognised and 8,449 unrecognised madrasas with nearly 25 lakh students, reports The Indian Express.
The madrasa Act is also “violative of Section 22 of the University Grants Commission Act, 1956”, the bench said.
It, however, added, “Further, we are not deciding the validity of Section 1(5) of the RTE (Right to Education) Act as we have already held the madrasa Act to be ultra vires and we are also informed by learned counsel for both the parties that in state of UP Vedik Pathshalas do not exist.”
During the hearing on the petition filed by Anshuman Singh Rathore, the bench appointed advocates Gaurav Mehrotra, Akber Ahmad and Madhukar Ojha as amici curiae to assist the court.
After going through the madrasa syllabi, the court said that students are required to study Islam and its doctrines to progress to the next class and those modern subjects are either included or offered as optional, and that they have the choice to study just one optional subject.
In his petition, Rathore challenged the Act on the grounds that “the provisions, scheme and the environment” created by the madrasa Act violate Articles 14, 15 and 21-A of the Constitution.
“The fundamental rights under the aforesaid articles, more specifically under Article 14 and 21-A, include the right to universal quality education, which also includes secular education,” he submitted.
He also claimed that the madrasa Act failed to provide quality compulsory education up to the age of 14 years/class VIII, as required under Article 21-A of the Constitution and universal and quality school education to all the children studying in madrasas, as required under Article 21.
The petition also challenged vires of Section 1(5) of the RTE Act which excludes madrasas, vedic pathshalas and educational institutions primarily imparting religious instructions.
The amici curiae submitted that the Act violates secularism and Articles 14, 15, 16(5), 29(2), 30 and Article 51-A of the Constitution. To the extent of higher education, the Act “is directly in conflict with and violates the UGC Act and entrenches upon the field occupied by the central legislation and thus to the said extent is also ultravires”, they said.
The state government through the Additional Advocate General submitted “that no doubt the Madrasa Board is providing religious education and instructions to students, but the state has sufficient powers to impart such education under the Constitution and is rightly permitting such education.”
“These madrasas are providing cheap education to these children who belong to poor and marginalised families. The UGC Act does not relate to religious teachings, education and instructions or with traditional education and thus both occupy different fields,” the government counsel submitted.
The lawyer representing the Madrasa Board told the court that “nearly free education is being provided by these madrasas to minor children, with a monthly fee of Rs 10-20 per month and if these institutes are closed these children will be left without even this education”.
“These madrasas are surviving on the aid received from the government. Therefore the court, in the interest of these children from poor families, should dismiss the petition,” he submitted.
On behalf of Madrasa Board and the Teachers’ Association Madrasa Aribiya, Kanpur, senior advocates Sandeep Dixit and Prashant Chandra raised two objections to the maintainability of Rathore’s writ petition.
“Our first objection is that the petitioner is an advocate practicing in the High Court and he has no personal interest in the matter. At best, he may have filed a PIL and has no locus standi to file the writ petition,” the counsel submitted.
Replying to the objection, the petitioner’s lawyer Sudeep Kumar and the amici curiae said: “This is a matter relating to fundamental right to life and education of minor children of financially weak families of a minority community and, therefore, this court cannot refuse to entertain the writ petition..”
In a statement, UP Madrasa Board Chairman Iftikhar Ahmed Javed said, “It (order) will be examined. It (Act) was enacted by the government in 2004… It is unfortunate that our lawyers couldn’t explain to the court that the government grant given to madrasas is not for religious education.
The grant is for the promotion of oriental languages like Arabic, Farsi and Sanskrit. For this, the Arabic and Farsi Board as well as Sanskrit Board are also there. If the teachings are in Arabic and Farsi, then it is natural that there are some Islamic teachings. Same is for the Sanskrit Board where Vedas are taught.”
