On Friday (February 4), the Gauhati High Court upheld the constitutionality of the law that was used by the Assam government to convert state-run Islamic schools (madrassas) into general schools. Rejecting a petition filed against the Assam govt decision, the High Court said that educational institutions funded by the government can’t impart religious education, even the institution is a minority institution.
The BJP-led Assam government had passed the Assam Repealing Act 2020, which nullified the Assam Madrassa Education (Provincialization of Services of Employees and Re-Organisation of Madrassa Educational Institutions) Act 2018 and Assam Madrassa Education (Provincialization) Act, 1995.
Under the new law, religious teaching and instructions in state-funded madrassas were stopped. The religious curriculum was replaced with general education and the teachers were given training for teaching general subjects. The Assam government also dissolved the State Madrassa Education Board and transferred all bank accounts and records to the Assam Board of Secondary Education.
Although the BJP government’s decision affected only the ‘provincialised madrassas’ and not the ‘Qawmi Madrassas/Community Madrassas’, a total of 13 petitioners had filed a writ petition in the Gauhati High Court challenging the constitutionality of the Assam Repealing Act of 2020.
The matter was heard by a Division Bench of Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia. The Gauhati High Court rejected the argument that the government’s order and the Assam Repealing Act of 2020 somehow violated Articles 25, 26, 28 and 30 of the Indian Constitution.
Observations made by the Gauhati High Court
While upholding that secularism is a basic structure of the Constitution, the court ruled, “In a country which has multiple religions, the State has to be neutral while dealing with the matters relating to religion. We live in a democracy and under a Constitution where all citizens are equal before the law.”
The court rejected the argument of the petitioners that the Assam govt decision violated the fundamental rights of the petitioners under Articles 25, 26, 28 and 30 of the Constitution of India, and said that instead, it was govt-funded madrasas that had violated the principles of Articles 14 and 15 of the Constitution. The court said, “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)1”.
The High Court also said that once a minority-run institution like a Madrasa is provincialised and starts being run completely on public money, it no longer can be run as a minority school. Although minorities have the right to set up and run educational institutions for their community, once such institutions are provincialised and start getting run completely on state funds, then religious instructions cannot be imparted in such institutions. “The educational institutions in question are admittedly provincialised schools, the entire teaching and non-teaching staff of these educational institutions are Government servants, the school being a Government institute cannot be said to be either established or being administered by a minority,” the High Court emphasised.
The Gauhati High Court said, “The venture Madrasas, which were established by a minority community, would cease to be an educational institution established by a minority community once such a school has been provincialised under the 1995 Act or the subsequent Provincialisation Acts. The court made it clear that the madrasas in Assam ceased to be minority institutions once they were ‘provincialised’ by the state govt. The Madrasas under question were “provincialised” in 1995 under Assam Madrassa Education (Provincialization) Act, 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 staff of these educational institutions are Government servants, the school being a Government institute cannot be said to be either established or being administered by a minority”, the Court said. “Consequently, the claim of the petitioners that these Madrasas are minority institutions and were established and administered by the minority is a claim which has no foundation and is hence not acceptable”, the court concluded, rejecting the petition.
The High Court further said that according to Clause (1) of Article 28 of the Constitution, it is clearly stated that no religious instructions shall be imparted in any educational institution which is wholly maintained out of State funds. Clause (3) of the same Article also states that if some institution is aid from the state fund but not fully funded by govt, such institutions can’t force religious instructions or religious worship upon the students.
BJP govt in Assam took the landmark decision in 2017 itself
The state govt had announced the intention to end religious and separate language schools in 2017 itself. As part of that initiative, in 2018, the Assam government had scrapped the two controlling boards — State Madrassa Education Board and Assam Sanskrit Board. The Madrassas were brought under the Secondary Board of Education Assam (SEBA) and the Sanskrit tols were brought under Kumar Bhaskar Varma Sanskrit and Ancient Studies University respectively. The move to merge two bodies was to introduce modern education to students and to bring them into the mainstream.
Reportedly, there are more than 600 government-run madrassas in Assam and 900 other private madrassas, which are run by Jamiat Ulama. The Assam government spends nearly Rs 4 crore to run these madrassas in the state and about Rs 1 crore on Sanskrit tols annually.