Lucknow, Mar 22 (UNI) In an important decision the Lucknow Bench of the Allahabad High Court on Friday declared the Madarsa Act, 2004 unconstitutional while directing the Uttar Pradesh government to accommodate Madrasa students in regular schools.
The order was passed by the division bench of Justice Subhash Vidyarthi and Justice Vivek Chaudhary on a bench of petitions filed by different petitioners.
The bench concluded, "We hold that the Madarsa Act, 2004, is violative of the principle of Secularism, which is a part of the basic structure of the Constitution of India, violative of Articles 14, 21 and 21-A of the Constitution and violative of Section 22 of the University Grants Commission (UGC) Act, 1956. Accordingly, the Madrasa Act, 2004 is declared unconstitutional."
It stated, "Further, we are not deciding the validity of Section 1(5) of the R.T.E. Act as we have already held the Madarsa Act to be ultra vires and we are also informed by learned counsel for both the parties that in the State of Uttar Pradesh Vadik Pathshalas do not exist."
The bench said that since there are large numbers of Madrasas and Madrasa students in the state of Uttar Pradesh., the state government is directed to take steps forthwith for accommodating these Madrasa students in regular schools recognised under the Primary Education Board and schools recognised under the High School and Intermediate Education Board.
"The state government for the said purpose shall ensure that as per requirement sufficient number of additional seats are created and further if required, a sufficient number of new schools are established. The state government shall also ensure that children between the ages of 6 to 14 years are not left without admission in duly recognised institutions," it said.
Citing past judgements, the bench said, "In all the aforesaid judgements, the consistent law settled by the Supreme Court is that higher education is a field reserved for the Union of India. Therefore, the state government has no power to legislate in the said field."
It stated, "Section 9 (a) of the Madarsa Act confers power on the Board to prescribe a course of instructions, textbooks, other books and instructional material even for Alim that is under-graduate course, Kamil that post-graduate course, Fazil that Junior Research Programme and other courses."
It said that Section 9 (e) empowers the Madarsa Board to grant Degrees to persons, who have pursued a course of study in an institution admitted to the privileges or recognition by the Board or even who have studied privately and have passed an examination of the Board.
"Section 9(f) of the Madarsa Act empowers the Board to conduct examinations of the Alim (Graduate), Kamil (Post Graduate) and Fazil (Junior Research Programme) courses, Section 9 (g) empowers the Madarsa Board to recognise institutions for its examination and Section 9 (h) empowers it to admit candidates to its examination. Section 9 (p) empowers the Madarsa Board to provide for research or training in any branch of Madarsa-Education," it said.
The bench observed, "All the aforesaid provisions confer powers on the Madarsa Board which are vested in the University Grants Commission by the UGC Act, falls within the purview of Entry 66 of List I of the Seventh Schedule to the Constitution of India and, therefore, the Madarsa Act is violative of the provision contained in Article 246 (1) of the Constitution of India and is unconstitutional to the said extent."
It observed that the Supreme Court has defined the term 'secularism', in the Indian context, to mean equal treatment to all religions and religious sects and denominations by the state, without either identifying itself with or favouring any particular religion, religious sect or determination.
It observed, "One thing which prominently emerges from the judgements is that whatever be the attitude of the state towards the religions, religious sects and denominations, religion cannot be mixed with any secular activity of the state. The encroachment of religion into secular activities is strictly prohibited."
It stated that the courts have gone to the extent of saying that secularism is a part of the basic structure of the Constitution and acts of the state government which are calculated to subvert or sabotage secularism as enshrined in the Constitution, can lawfully be deemed to give rise to a situation in which the Government of State cannot be carried on by the provisions of the Constitution.
It said, "The Constitution makes clear demarcation and purely religious matters are left personal to the individuals and the secular part is taken care of by the state. The state does not extend patronage to any particular religion and cannot be either pro-particular religion or anti-particular religion. It stands aloof. In other words, it maintains neutrality in matters of religion provides equal protection to all religions and actively acts on the secular part. state will treat all religions and religious groups equally and with equal respect without in any manner interfering with their rights of religion, faith and worship."
It said that the concept of a secular state is essential for the successful working of the democratic form of government. "It is in the aforesaid concept of secularism that this Court is to judge upon the constitutional validity of the Madarsa Act. The history and statement of objects and reasons of the Madarsa Act shows that initially private Arbi Farsi Madarsas were established by some persons, which were unregulated. Executive directions for their registration were issued for the first time in the year 1969. Later in the year 1987 non-statutory rules were framed for their regulation," it stated.
It observed, "A separate Minority Department in the state government was created on August 12, 1995 and on January 31, 1996, the work of Madarsas was transferred from Education Department to this new Minority Department. The earlier non-statutory regulations of 1987 were replaced by the impugned Madarsa Act of 2004 to 'remove the difficulties arisen in running and improving the merit in the Madarsas and to make available the best facility of study to its students'. The aims and objects of the Act is silent as to how and why the requirement arose to have a separate education Board for a particular religion while there are secular Primary Education Boards and Board for High School and Intermediate Education in the state of Uttar Pradesh providing education to one and all without making any differential between children of different religions."
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