Lucknow Bench Of Allahabad HC Strikes Down UP Madarsa Act

Legal Article

While grabbing news headlines most prominently in virtually every newspaper and all other forms of all types of print, electronic, newschannels and social media, we see that in a path-breaking, pragmatic and progressive move, the Lucknow Division Bench of the Allahabad High Court comprising of Hon’ble Mr Justice Vivek Chaudhary and Hon’ble Mr Subhash Vidyarthi in a most concise, cogent, composed, creditworthy, courageous and current judgment titled Anshuman Singh Rathore vs Union of India in Writ – C No. – 6049 of 2023 and cited in Neutral Citation No. – 2024:AHC-LKO:25324-DB that was reserved on 08.02.2024 and then finally pronounced on 22.03.2024 has gone to the extent of unequivocally declaring the Uttar Pradesh Board of Madarsa Education Act, 2004 “unconstitutional” and violative of secularism directing the State Government to accommodate students studying in Madrasas in regular schools. The Bench concluded 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 of India and violative of Section 22 of the University Grants Commission. Resultantly, we see that the Madarsa Act, 2004 is ultimately declared unconstitutional.

It must be noted that the plea was filed by one Anshuman Singh Rathore challenging the legality of the UP Board of Madarsa Education Act, 2004 and certain provisions of the Right of Children to Free and Compulsory Education (Amendment) Act, 2012. It also must be borne in mind that Anshuman had challenged the constitutionality of the UP Madarsa Board as well as objected to the management of Madarsa by the Minority Welfare development both by the Union of India and the State Government.

Needless to say, this will potentially impact the lives of tens of thousands of students in the most populous State of India that is Uttar Pradesh. The order will affect the lives of roughly 200,000 students currently enrolled in 16,500 recognised and 8,500 unrecognised madarsa or Islamic seminaries across UP according to the State Madarsa Board, Muslims form 19.26% of Uttar Pradesh’s 190 million population. It will definitely be challenged in the Apex Court. As of now, we see quite clearly that the Division Bench of the Lucknow Bench of Allahabad High Court has forthrightly directed the State Governments to accommodate the Madarsa students in the formal education system.

At the very outset, this brief, brilliant, balanced and bold judgment authored by the Lucknow Division Bench of the Allahabad High Court comprising of Hon’ble Mr Justice Vivek Chaudhary and Hon’ble Mr Subhash Vidyarthi sets the ball in motion by first and foremost putting forth in para 2 that, “Thereafter, on the basis of the aforesaid reference order, other writ petitions, namely, Writ A No. 3735 of 2012, 5548 of 2014, 3615 of 2020 and Writ (C) No. 481 of 2020, were also referred to the Larger Bench.”

To put things in perspective, the Division Bench envisages in para 3 that, “The matters referred were nominated to different Benches, but, could not be taken up. Finally, by order dated 18.05.2023 of the Chief Justice, the present Bench was nominated to hear the reference. Writ (C) No. 6049 of 2023 (Anshuman Singh Rathore versus Union of India and others) was filed meanwhile, challenging the vires of the U.P. Board of Madarsa Education Act, 2004 (for short ‘the Madarsa Act’) on the ground that the same violates the principle of Secularism, which forms a part of the basic structure of the Constitution of India as well Articles 14, 15 and 21-A of the same. He further challenges Section 1(5) of Right of Children to Free and Compulsory Education Act, 2009 (for short ‘the R.T.E. Act’) This Writ Petition was also nominated to this Bench by order dated 31.07.2023 of the Chief Justice. Hence, all these matters with regard to vires of the Madarsa Act are before us.”

As we see, the Bench then observes in para 4 that, “These petitions relate to the enforcement of Fundamental Rights of minor children of the marginalised and poor Sections of the largest minority community of the State. Looking into the vastness of the issues involved and depth of impact it would have upon them, this Court appointed Sri Gaurav Mehrotra, Sri Akber Ahmad and Sri Madhukar Ojha, Advocates, as Amici Curiae to assist the Court vide order dated 14.07.2023 passed in Writ A No.29324 of 2019.”

To be sure, the Division Bench underscores in para 76 that, “The aforesaid judgments repeatedly emphasis the need of quality education for the children which is universal in nature. Without quality, idea of education in itself is a failure. Teaching merely one religion and a few languages, without any study of modern subjects, cannot be called quality education.”

Truth be told, the Division Bench unfolds in para 80 that, “Thus it is apparent that the students of Class X have to study Theology (Sunni) and Theology (Shia), Arabic, Persian, Urdu, General English and General Hindi as compulsory subjects and they are to study only one of the subjects from amongst Maths, Logic & Philosophy, Social Science, Science and Tib (Medical Science). Home science is an optional subject for girls only. Students upto Class X do not have an option to study science, Maths and social science simultaneously.”

While continuing in the same vein, the Division Bench enunciates in para 81 that, “Similarly, the students of Class XII have to study Theology (Sunni) and Theology (Shia), Arabic, Persian, Urdu and General English, but the General English taught to the students of Class XII is of the level of NCERT books of Class X. They can study only one of the subjects from amongst General Hindi, Logic & Philosophy, Social Science, Science, Tib (Medical Science) or Typing. Home science is an optional subject for girls only. The students upto Class XII also do not have an option to study Maths as a subject. The optional subject Science taught to Class XII students is of the level of Classes VIII, IX and X. Whereas in State Board, Physics, Chemistry and Biology are separate subjects.”

Not stopping here, it is then pointed out in the same vein in para 82 that, “In the same manner, subject Tib (Medical Science) is taught as an optional subject from Classes 9th to 12th. It is surprising to note that there is no regular Science subject from Classes 9th to 12th and Science is also an optional subject. Without giving basic education of Science particularly Biology, Medical Science education is being provided in the name of Tib to the students of Classes 9th to 12th.”

As a corollary, the Division Bench then lays bare in para 83 that, “From the above discussion it is clearly established that education under the Madarsa Act is certainly not equivalent to the education being imparted to the students of other regular educational institutions recognized by the State Primary and High School and Intermediate Boards and, therefore, the educations being imparted in Madarsas is neither ‘quality’ nor ‘universal’ in nature.”

Most forthrightly and most significantly, the Bench propounds in para 84 that, “While the students of all other religions are getting educated in all modern subject denial of the same quality by the Madarsa Board amounts to violation of both Article 21-A as well as Article 21 of the Constitution of India. The State cannot hide behind the lame excuse that it is fulfilling its duty by providing traditional education on nominal fee. The Supreme Court has repeatedly emphasised on modern education with modern subjects, an education that is universal in nature that prepares a child to make his future bright and to take this country forward. It does not prescribe, by any stretch of imagination, limited education with emphasis only upon a particular religion, its instructions and philosophies. Education being provided by the Madarsa Board, therefore, is in violation of the standards prescribed by the Supreme Court while interpreting constitutional provisions. Therefore this Court has no hesitation in holding that the education being provided under the Madarsa Act is violative of Article 21 and 21A of the Constitution of India.”

It cannot be glossed over that the Division Bench notes in para 86 that, “As per the provision contained in Section 22 of the UGC Act, only Universities or institutions deemed to be Universities under Section 3 of the Act can confer degrees and no other person or authority, including any Madarsa or the Madarsa Board, can confer any degree.”

What’s more, the Division Bench clearly specifies in para 87 that, “The University Grants Commission has issued numerous Notifications in exercise of the power conferred by Section 22 of the UGC Act, which have specified numerous Bachelor’s, Master’s and Doctorate degrees that can be awarded by the Universities and no degree, which has not been notified by the UGC, can be awarded by any University. Kamil, Fazil, Alama and Ductoora degrees have not been notified by the UGC and these degrees, therefore, cannot be awarded by any body.”

As a corollary, the Division Bench then mandates in para 99 that, “In view of the foregoing discussion, 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 of India and violative of Section 22 of the University Grants Commission Act, 1956. Accordingly, the Madarsa Act, 2004 is declared unconstitutional. 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 State of U.P. Vadik Pathshalas do not exist.”

Most remarkably, the Division Bench directs in para 100 that, “Since there are large number of Madarsas and Madarsa students in State of U.P., the State Government is directed to take steps forthwith for accommodating these Madarsa students in regular schools recognized under the Primary Education Board and schools recognized under the High School and Intermediate Education Board of State of U.P. 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 State Government shall also ensure that children between the ages of 6 to 14 years are not left without admission in duly recognized institutions.”

Further, the Division Bench directs in para 101 that, “The Writ-C No.6049 of 2023 stands allowed and Writ-A Nos.29324 of 2019, 3735 of 2012, 5548 of 2014, 3615 of 2020 and Writ-C No.481 of 2020, which are placed before this Court on reference, are returned to the appropriate Court.”

In a nutshell, we thus see quite discernibly that the Lucknow Division Bench of the Allahabad High very rightly resoundingly strikes down the UP Madarsa Act. The Division Bench clearly states that the scheme and purpose of the Act is only for promoting and providing the education of Islam and is therefore violative of the touchstone of Constitution itself! No denying it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.