GUWAHATI: The Gauhati High Court has, in a landmark judgment delivered on Friday, upheld the constitutionality of the law passed by the Assam Assembly in 2020 to convert state-funded or provincialised madrassas into general educational institutions.
The High Court upheld the constitutional validity of the Assam Repealing Act 2020 which repealed the Assam Madrassa Education (Provincialisation) Act, 1995 and the Assam Madrassa Education (Provincialisation of Services of Employees and Re-Organisation of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 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.
“The madrassas 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.
Advocate General of Assam Devajit Saikia clarified that the changes brought by the government affected only provincialised madrasas which are run on state funds and not the “community madrasas” or the “qawmi madrasas” and “maktabs”, which continue to function in Assam as usual.
The court held that the madrassas ceased to be minority institutions once they were ‘provincialised’.
“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 observed.
“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,” it observed.
“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 added.
Clause (1) of Article 28 of the Constitution prohibits religious instruction in an educational institution which is wholly maintained out of state funds.
Petitioner’s counsel raised an argument that these institutions are not fully funded by the State and they charge the students for examination fees.
The court rejected the argument, observing, “Let us not forget that these educational institutions are government institutions. It is an admitted position that the entire salary of teaching and non-teaching staff of these provincialised madrasas come from the state exchequer. The annual maintenance, repairs of buildings etc. are all done by the state. Assuming that the students pay examination fees or tuition fees, but that in itself will not dilute the government character of these madrasas or make them any less “fully funded” by the State.”
The Court further noted that the government has not dispensed with the services of the teachers in the madrassas in question, and they would now be required to teach Arabic or may even be trained for teaching other subjects.
“Though by and large, the absorption of these teachers in Middle, Secondary and Higher Secondary Schools seems to be in order, but some of these teachers in Arabic Colleges and Title Madrasas, were also teaching students at Graduate and Post-Graduate levels. They are being placed under Secondary Board, instead of being placed under a University,” the Court observed.
In this regard, the Court noted that after the abolition of “Sanskrit Tolls”, the teachers were placed under a University.
“Therefore, we direct that if such teachers in Arabic Colleges and Title Madrasas, who were so far imparting education to students at Graduate and Post-Graduate levels, their case shall also be considered for bringing under a University, like it has been done for the teachers in Sanskrit Tolls,” the Court directed.
But as the teachers were not before the Court as petitioners, the High Court directed that they could give a representation to the commissioner and secretary, education (secondary) department, and a speaking order should be passed after considering the same in accordance with observations made in the judgment.
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