The recent Guwahati High Court judgement upheld the Assam government’s act of shutting down all the state-aided madrasas basing its decision solely on Article 28 (1) which prohibits imparting “religious instruction” in any educational institution maintained “wholly” out of state funds. While undertaking a wrong interpretation of the word “secularism”, especially considering the Indian context, the judiciary committed a further blunder by equating the “provincialized” madrasas with “government schools” thereby completely dispensing with the question of rights accrued to Muslim minority institutes under Article 30 of Indian Constitution.
Sprinting to the extreme, the court claimed that by virtue of Assam Madrassa Education (Provincialisation) Act, 1995, the madrassa entirely came under state control and hence they couldn’t be classified as institutes “established” by a minority community coming under Article 30. In holding this, they took the anomaly committed in Azeez Basha judgement a notch higher. The “provincialized” madrassas in Assam were a full-fledged educational institute even before any sort of state assistance and were even introducing modern courses into their curriculum. The Act merely provided financial assistance to such madrassas and provincialized the services of teachers and other associated staff. Even going by the narrow interpretation of the word “establish” as laid down in Azeez Basha, the madrassas in Assam had complete locus standi to claim rights under Article 30 as they were “brought into existence” by Muslim minorities in every literal sense of the phrase.
However, assuming that the court did identify them as institutes established by religious and linguistic minority coming under the ambit of article 30, the fact remains that those madrassas, like numerous others in India, were maintained entirely out of state funds thereby falling under the radar of Article 28 (1) which, without carving any exception for minority institutes, prohibits the preaching of religious “instruction” in any such institutes in its entirety. Considering this legal premise, can the state be justified in putting a complete halt to “every” sort of religious teaching carried out in the provincialized madrassas and in dilapidating the very form and substance of such institutes by imposing upon them the norms of other secular government schools? Was it not possible for the state to opt for a less restrictive measure thereby making some space for education “of” Islam? Most importantly, does Article 28 take precedence over Article 30 in every case the minority institute is entirely state-funded or do both Articles supplement each other?
This blog, in consideration of above-mentioned scenarios, tries to showcase how government, without completely trampling upon the right of Muslim minorities to “establish” and “administer” madrasas and at the same time lying within the prescribed limits of regulation laid down through numerous case laws, can take “proportional” measures to bring the functioning of these aided and recognized madrasas outside the radar of Article 28.
To what extent does Article 28 curtail the rights granted to minority institutes under Article 30?
The majority opinion in TMA Pai explicitly mentioned that the rights granted to religious and linguistic minorities under Article 30 to run educational institute “of their choice” cannot be taken in an absolute sense and if any such institute is maintained “wholly” out of state funds, then their right will be curtailed to the extent that such institutes will no more be permitted to impart “religious instruction”. However, the same cannot be stretched to the extent so as to bestow absolute power on the State to dissolve the religious nature of madrasas altogether and to take over its administration thus stripping the Muslim minorities of all the power. A 1989 judgement, where the statute giving authority to the School Education Board of Bihar to dissolve the managing committee of madrasas was held invalid, serves as an appropriate precedent to showcase how the Assam government overstepped the permissible limits of interference.
Since the main justification behind the Assam Repeal Act was the curriculum followed in madrassas, the maximum state could have done was to modify the same so as to remove any form of ‘religious instruction in Islam’ from the syllabus while at the same time, giving the minorities their due right to carry on moral and philosophical teachings deriving from their religion as Article 28 (1) only prohibits the former. As held in landmark judgements of D.A.V college as well as Aruna Roy, ‘religious instruction’ has to be construed narrowly to include rituals, modes of worship, observances, traditions and other “non-essential observances” of a faith, while excluding all forms of moral teachings dissociated from any denominational doctrines which have an impact on secular aspects of life such as law and order, citizenship etc.
A close scrutiny of the theological subjects taught in madrasas showcases how a major portion of the same falls under the permissible category. While Tafsir deals with areas like linguistics and jurisprudence, Hadith is a repository of data about Mohammad and is a paramount source of Islamic law and moral guidance forming the backbone of ‘Islamic Civilization’ (it was explicitly held in the Guru Nanak Case that perusal of teachings and philosophy of any Indian saint and its impact on civilization from academic perspective would not fall under the ambit of Article 28). Although the syllabus also comprises subjects like Fiqh, which deals with rituals and customs, the madrassa could have been mandated to oust the same from the curriculum and focus more on modern subjects, specially at the higher level (as since higher-secondary onwards, the focus is almost entirely on theological subjects).
However, the Guwahati High Court, without taking any notice of the same, fell hook, line and sinker to the government’s contestations that the madrasas violated Article 28 (1) in its entirety, and astonishingly allowed the complete takeover of madrasas by the state in complete disregard of Article 30. In doing so, the Court went against the established law which allows state to modify the curriculum and make regulations for the maintenance of educational standards in such institutes. while at the same time, prohibiting state interference in areas concerning management.
Can the partially funded Madrasas, which are still allowed to run abetted, said to be operating within the four corners of Constitution?
While the ‘provincialized’ Madrasas were held to be in violation of Article 28 (1), the legality of operations carried on in partially aided/recognized Madrasas was not taken up by the Guwahati Court even when the government explicitly declared that the non-provincialized Madrasas would continue to receive state -aid. Although Article 28 (3) doesn’t prohibit religious instruction in institutes partly funded/recognized by the state, the same cannot be mandated for all the students attending such institutes. However, as mentioned above, Madrasas do impart religious instruction and such courses are often mandatory without granting any alternative option to students. This goes against the right of religious autonomy of such individuals especially considering the fact that currently, Madrasas have students from diverse religions and their composition isn’t confined to pupils from Muslim community.
Although such madrasas weren’t the point of contention in the mentioned case, the least restrictive way to deal with this violation would be permitting the students to opt out of subjects dealing with religious instruction while abstaining from interfering with the management. This will ensure the balancing of religious rights granted to an individual under Article 28 with the cultural and educational rights granted to minority community under Article 30.
Is the Secular Character of Article 28 in conflict with protection granted to ‘religious’ minorities under Article 30?
As mentioned in the judgement, Secularism in one of the basic features of our constitution and Article 28, by ensuring that no particular religion is propagated by the state and that public funds aren’t utilised for religious purposes, bolsters the same. However, madrasas are not merely a religious institute but a means of imparting education to the downtrodden sections of Muslim education and unless fanaticism and religious bigotry are promoted in such places, state has an obligation to aid this social cause specially concerning the fact that after 86th Amendment, right to education is a fundamental right. Moreover, as mentioned in Re Kerela Education Bill, state aid and recognition is necessary for effective carrying out of right under Article 30 as the minorities cannot be expected to run an educational institute of their own.
The concerns about the utilisation of public funds for religious purposes can be catered to merely by modifying the curriculum in a way that only humanitarian and moral aspects having a common appeal to all religions is dealt with during classes. In addition to this, interested students in the state-maintained Madrasas can be provided religious education outside the class hours which, according to the analogy drawn from Zorach v Clauson case, cannot be said to impinge upon the secular nature of such institutes
The Assam government defended the Assam Repeal Act by saying that the Act did nothing more than altering a few portions of the curriculum of effected madrasas. However, the state went much beyond this by completely taking over such madrassas and changing its basic structure and code of conduct thus transgressing the permissible limits of interference. The judiciary, in complete disregard of the “doctrine of proportionality” test, which mandates the state to take the least restrictive measure while impinging upon a fundamental right, validated this extreme measure thus opening the floodgates for similar acts all over the country. A commencement towards the same has already been made by the Assam government in its recent act of imposing regulations on “private” madrassas accompanied with the threat of demolition in case of any deviation.
As this case lies pending for an appeal, the Supreme Court is expected to take a more considerable approach towards minorities so that the right granted to them under Article 30 doesn’t turn into a “teasing illusion”.
BSM Education Board, Patna v. M.C of MHA College, 1990 AIR 695. ↑
Bikash Singh, ‘Guwahati High Court Upholds Assam Laws on Madrassas’ The Economic Times (4 February 2022). ↑
DD Basu, Justice SS Subramnai, Commentary on the Constitution of India (Vol 6, 9th Edn., Lexis Nexis 2015) ↑
West Bengal Board on Madrasa Education. < https://wbbme.org/curriculum-syllabus/> ↑
Shiv Sahay Singh,’ Madrasas Throwing open door to non-muslim students’ The Hindu (Kolkata, 11 July 2016). ↑
Modern Dental College v State of Madhya Pradesh, (2016) 7 SCC 353 ↑
(This post has been authored by Garima Banka, a second-year law student from the National Law School of India University, Bangalore. )