'Striking Down Madarsa Act Like Throwing Baby With Baby Water; Let's Preserve India As Melting Pot Of Religions' : Supreme Court Reserves Judgment

The Supreme Court today (October 22) reserved judgment on a batch of petitions filed against the judgment of the Allahabad High Court's March 22 judgment striking down the 'Uttar Pradesh Board of Madarsa Education Act 2004' as unconstitutional.A bench comprising Chief Justice of India DY Chandracuhd, Justice JB Pardiwala and Manoj Misra, which started hearing the matter yesterday, completed the hearing today.On the last hearing, the Court orally observed that laws regulating the educational institutions of a religious community cannot by that fact alone be considered a violation of secularism.'Secularism means to live and let live'Today, Senior Advocate Mukul Rohatgi, who started the arguments for the petitioners, submitted that Article 28(2) of the Constitution was an exception to Article 28(1). As per Article 28(2), the bar on imparting religious instructions in state-aided institutions is not applicable to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. So, as per Article 28(2), religious instructions can be imparted through institutions managed by trusts.CJI pointed out that Article 28(3) provides that a student can voluntarily obtain religious instructions and the only bar is that there should be no compulsion.Rohatgi also took exception to the High Court delivering the judgment in a PIL. He added that the High Court's judgment was actually against the principles of secularism as it had the effect of depriving minority students of their rights. "Hundreds of people are studying...you cannot force somebody. This is not secularism," Rohatgi submitted."Secularism means- live and let live," CJI Chandrachud said in response.The State of Uttar Pradesh, which has chosen to not challenge the High Court's judgment, took the stand that it was wrong to strike down the entire Act and only the violative provisions needed to be nullified (a separate story on this aspect can be read here).Senior Advocate Menaka Guruswamy, for the petitioners, in her rejoinder submissions, referred to the Constitution Bench judgment in Pramati Educational & Cultural Trust vs Union Of India & Ors - which states that the minority religious educational institutions were excluded from the RTE Act.What is wrong with the legislature recognizing religious institutions?Responding to the arguments of Senior Advocate Guru Krishnakumar, for an intervenor opposing the Act, CJI DY Chandrachud asked what was wrong in the legislature recognizing an institute imparting religious instructions and mandating that they should follow certain basic standards.Striking down the entire Act would mean that the Madarsas remain unregulated, CJI opined. "Is it not in our national interest that you regulate the Madrasas? .......you cannot wish away 700 yrs of history like this...suppose we uphold the HC order, the parents of children will still send them to Madrasa .....it will just be a silo without any legislative intervention.....it is a policy statement to regulate the madrasas.."CJI pointed out that the Act gives rule-making powers to the State to lay down standards. Krishankumar argued that the Act does not ensure secular education and was mostly focused on theological studies. Singling out the religious institution of one particular community for recognition was unconstitutional. The Act does not enable children in Madarsas to be at par with mainstream individuals, he argued. In response, CJI pointed out that the statute, as per its Section 20, empowered the State to intervene and it was for the State to act.Let's preserve India as a melting pot of cultures and religionsResponding to Krishnakumar, CJI said : "Ultimately we have to see it through the broad sweep of the Country. Religious instructions are there not just for the Muslims. It is there in Hindus, Sikhs, Christians etc. The country ought to be a melting pot of cultures, civilizations, and religions. Let us preserve it that way. In fact, the answer to ghettoisation is to allow people to come to the mainstream and to allow them to come together. Otherwise, what we essentially would be doing is to keep them in silos." Krishnakumar responded that the Act was in fact promoting ghettoisation and was not helpful in mainstreaming.Justice JB Pardiwala, referring to the Aruna Roy judgment, said that the teaching of religion has not been prohibited by the Constitution.CJI, again highlighting that religious instruction is not unique to Muslims, told Krishnakumar, "Suppose there is an institute training Buddhist monks and the State says provide some secular education.. that is the ethos of our country..Remember, what you are arguing in the context of Islam will apply across all religions in India right from Ved Pathshalas to institutions training Buddhist monks, Jain priests.."At the same time, CJI said that the judges were sharing the concerns raised by...

'Striking Down Madarsa Act Like Throwing Baby With Baby Water; Let's Preserve India As Melting Pot Of Religions' : Supreme Court Reserves Judgment

Anmol Kaur Bawa

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