Supreme Court stays Allahabad High Court order terming Madarsa Act unconstitutional

Tribune News Service

Satya Prakash

New Delhi, April 5

The Supreme Court on Friday stayed an Allahabad High Court order that declared unconstitutional the Uttar Pradesh Board of Madarsa Education Act, 2004, noting that the high court’s views appeared to be prima facie incorrect.

Future of 17L at stake

The HC has ordered that students will be relocated by the state… it will impinge on the future of education for all 17 lakh children (in madarsas)… this direction was not prima facie warranted. DY Chandrachud, CJI

“The object and purpose of Madarsa Board is regulatory in nature and the Allahabad High Court is not prima facie correct that establishment of the Board will breach secularism. It (high court judgment) conflates madarsa education with the regulatory powers entrusted with the Board ... The impugned judgment shall remain stayed,” a three-judge Bench led by CJI DY Chandrachud said.

The high court had on March 22 declared the Act unconstitutional and being violative of Articles 21 (right to life and liberty) and 21A (right to free and compulsory education for children between 6 and 14 years) of the Constitution. The high court had held that a secular state had no power to create a Board for religious education or to establish a Board for school education only for a particular religion and create separate education systems for separate religions.

The stay order came on a petition filed by Anjum Kadari and others who contended that the high court committed a grave error as it did not consider positive assistance of the Bar and passed an arbitrary order on issues never prayed for by the petitioner before it.

On behalf of the petitioners, senior advocates Abhishek Manu Singhvi, Mukul Rohatgi, Huzefa Ahmadi and Salman Khurshid pointed out that it would affect around 17 lakh students and 16,000 madarsas in Uttar Pradesh. “The high court, while striking down the Act, has ordered that the students will be relocated by the state. This will impinge on the future of education for all the 17 lakh children (in madarsas). We are of the view that this direction was not prima facie warranted,” said the Bench, which also included Justice JB Pardiwala and Justice Manoj Misra.

Even if the petition before the high court challenging the validity of the 2004 Act was meant to ensure that secular education was imparted at madarsas, the remedy was not in striking down the Act itself, it said.

Noting that the state had a legitimate public interest in ensuring that students got quality education that made them qualified enough to pursue a dignified life, the Bench said it needed to be considered if the Act should be jettisoned.

On behalf of the Uttar Pradesh Government, Additional Solicitor General KM Natraj refused to defend the Act, saying the state had accepted the high court’s verdict. The students will be accommodated in normal schools, he added.

Attorney General K Venkataramani also supported the state government. “In the facts presented before the high court, I could not persuade myself to say that the high court order was incorrect,” he submitted.

Senior counsel Guru Krishnakumar, who represented the petitioner against the Act before the high court, opposed the stay, saying. “Students of Class X do not have the option to study science, mathematics and humanities separately. Thus, there is a straight constitutional bar under Article 28(1) and they conceded before the high court that religious instruction is being imparted.”

Noting that the ‘State’ had the foremost duty of providing secular education to children, the high court had ruled that it could not discriminate and provide different types of education to children belonging to different religions as it would violate principles of secularism, which was part of the basic structure of the Constitution.

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