The State has a vital interest in ensuring quality education, other than religious teachings, at government-aided madrasas so that students live a "decent" life after they pass out, the Supreme Court observed on Monday.
On April 5, a bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra had provided a breather to about 17 lakh madrasa students by staying the verdict of the Allahabad high court that had scrapped the Uttar Pradesh Board of Madarsa Education Act, 2004 calling it "unconstitutional" and violative of the principle of secularism.
Commencing final arguments on a batch of pleas against the verdict, the bench, heard senior lawyers including Abhishek Manu Singhvi, Salman Khursheed and Menaka Guruswamy for the petitioners.
"The State has a vital interest in providing that a certain quality of education of excellence is maintained at madrasas. They may have a vital interest so that a broad-based education is imparted other than religious education to ensure that a decent life can be lived after the students pass out of the institute," the CJI orally observed.
The bench also referred to Articles 28 and 30 of the Constitution which deal with the right of minorities to establish and administer educational institutions.
Referring to Article 28, the bench said, "No religious instruction shall be provided in any educational institution wholly maintained out of state funds".
Senior advocate Salman Khursheed said madrasas have to be fully funded by states to fall under Article 28 and moreover, such institutes are partially funded by the states which only pay salaries to the teachers.
Article 30 guarantees the right of minorities to establish and administer educational institutions of their choice and this includes the right to determine the type of institution, its affiliation, and the right to appoint staff.
At the outset, the bench perused the high court order and the state law.
Guruswamy said the high court started like a service case and then took suo-motu cognisance and wrongly held the Act violative of principle of secularism.
The bench asked why the Act was held unconstitutional when the madrasa board regulates the course content, conditions of service of teachers and other requirements.
The high court conflated the regulatory structure with religious instructions as referred to under Article 28 and said it violated the principle of secularism, the senior lawyer said and referred to syllabus being taught at madrasas.
"Sanskrit is being taught. Hindi, elementary math, social science, everything is being taught," she said.
The bench asked whether madrasas have discretion to teach or not teach particular subjects.
"The (UP) Madrasa Board is ensuring that the discretion of madrasa is removed," the senior lawyer responded.
Justice Pardiwala remarked the suo motu cognisance might have been taken by the high court because it felt quality education was not being imparted and only religious teachings were being offered.
The bench noted madrasas were only granting certificates and not awarding degrees.
The CJI said a law-regulated institution of a religious community does not "ipso facto violates the principle of secularism" and referred to the Hindu endowment institutions saying it did not offend secularism of the state.
"A Zoroastrian institution or a Buddhist institution may teach a course in medicine, not necessary it only gives religious teachings," the CJI said.
The hearing will resume on October 22.
While staying the high court verdict, the top court had said the issues raised in the petitions merited a closer reflection and issued notices to the Centre, the Uttar Pradesh government and others on the pleas against the high court order.
Attorney General R Venkataramani had said the high court judgement did not have an impact of paralysing madrasas and the only consequence was there being no state aid.
On March 22, the high court declared the Uttar Pradesh Board of Madarsa Education Act, 2004, as "unconstitutional" and violative of the principle of secularism, and asked the state government to accommodate students in the formal schooling system.
The high court had declared the law ultra vires on a writ petition filed by advocate Anshuman Singh Rathore.
It said the state had no power to create a board for religious education or to establish a board for school education only for a particular religion and philosophy associated with it.
"We hold that the Madarsa Act, 2004, is violative of the principle of secularism, which is a part of the basic structure of the Constitution of India," it held.
The petitioner had challenged the constitutionality of the UP Madrasa Board as well as objected to the management of madrasas by the Minority Welfare Department instead of the education department.
