BREAKING| Madrassas Run On State-Funds Can't Impart Religious Instructions: Gauhati High Court Upholds Assam Law

In a significant judgment delivered on Friday (February 4), the Gauhati High Court has upheld the constitutionality of the law passed by the Assam assembly in 2020 to convert State-funded Madrassas (called "provincialized Madrasas") into general schools.The High Court upheld the constitutional validity of the Assam Repealing Act 2020 which repealed the Assam Madrassa Education (Provincialization) Act, 1995 and the Assam Madrassa Education (Provincialization of Services of Employees and Re-Organisation of Madrassa Educational Institutions) Act, 2018. A division bench comprising Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia dismissed a writ petition filed by 13 petitioners, who were either President of the Managing Committees or the donors (mutawallis) of the lands on which the Madrassas were built. The Court rejected the arguments made by Senior Advocate Sanjay Hegde for the petitioners that the Repealing Act and the subsequent government orders violated the fundamental rights of the petitioners under Articles 25, 26, 28 and 30 of the Constitution of India.Advocate General of Assam D Saikia clarified to the Court that the changes brought by the Government affected only "provincialised Madrasas", which were run on State funds and not the "Community Madrasas" or the "Qawmi Madrasas" and "Maktabs", which continue to function in Assam as usual. What were the changes brought to "provincialised Madrasas"The Government Orders challenged in the writ petition brought the "provincialised Madrasas" under the State Education Board. Religious teachings and instructions in these Madrasas are withdrawn. Fresh admissions under the old course were barred from 01.04.2021. It also directed that the teachers teaching theological subjects would now be provided training for teaching general subjects of their aptitude. Further, the State Madrassa Education Board was dissolved and all records, bank accounts, etc., of the Board was transferred to the Board of Secondary Education. Courses relating to religious education were removed and the general education curriculum was introduced.Secularism means state cannot favour any particular religion "In a country which has multiple religions, the State has to be neutral while dealing with the matters relating to religion", the Court observed in the judgment. Affirming that secularism is a part of the basic structure of the Constitution, after referring to various Supreme Court judgments, the High Court observed :"We live in a democracy and under a Constitution where all citizens are equal before the law. Therefore, preference given by the State to any one religion, in a multi-religious society like ours, negates the principle of Articles 14 and 15 of the Constitution of India. It is thus the secular nature of the State which mandates that no religious instruction shall be provided in any educational institution wholly maintained out of State funds [Article 28(1)]"Religious minority institution receiving state funds cannot impart religious instructionsThough a religious minority has a right to establish and administer an educational institution of its choice, the Court said, once such educational institution starts getting maintained wholly out of the State funds then religious instructions cannot be imparted in such an institution. The Court emphasized that the mandate of Article 28 is for all educational institutions and not just for those institutions that are established and administered by a minority."Clause (1) of Article 28 is extremely important. It states in clear and unambiguous terms that no religious instructions shall be imparted in any educational institution which is wholly maintained out of State funds. There is another restriction in Clause (3), which is that an educational institution, which is receiving aid out of State funds (it may not be fully funded), religious instructions or religious worship cannot be forced upon the students. An exception is carved out in Clause (2) of Article 28 providing that an educational institution, which has been established under any endowment or trust but is being administered by the State, religious instruction can be imparted. We must state here for the sake of record that the petitioners have placed no evidence before this Court to show that they are covered by the exception given in Clause (2) of Article 28", the Court observed.Provincialised Madrasas can't be held to minority institutionsThe Court held that the madrasas ceased to be minority institutions once they were 'provincialised'. The word "Provincialisation" would mean brining something within the fold of a province, in other words, bringing it within the ownership of the Government, the Court noted. These Madrasas were "provincialised" in 1995 and the salaries and allowances were paid from the state exchequer."The educational institutions in question are admittedly provincialised schools, the entire teaching and non- teaching...

BREAKING| Madrassas Run On State-Funds Can't Impart Religious Instructions: Gauhati High Court Upholds Assam Law

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"The Madrasas in question, which are "wholly maintained out of State funds", cannot impart religious instructions in terms of the mandate of Article 28(1) of the Constitution of India", the Court observed.

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