The year that was–11 | SC’s UP Madarsa Act judgment: Restoring the unity–diversity balance

THE Supreme Court on November 5, 2024 overturned the Allahabad High Court decision that struck down the Uttar Pradesh Board of Madarsa Education Act, 2004 as unconstitutional.

The high court had held that the Act violated Articles 14 (equality) and 21A and the principles of secularism and was therefore against the basic structure of the Indian Constitution.

The UP Madarsa Act, in essence, regulates madarsa education across Uttar Pradesh, in terms of upholding good standards of education, qualification of tutors and conducting examinations, etc.

At that point, there were about 13,000 madarsas, providing education to over 12 lakh students in the state. The high court judgment, in effect, had left these 12 lakh Muslim students without educational recognition and without any existing alternate infrastructure to absorb them into other schools. That was the colossal impact of the high court judgment.

What started as a writ petition by a madarsa teacher to regularise his service, snowballed into constitutional challenges to the entire Act, after a series of petitions were tagged together before a division Bench of the high court.

The court directed that the students be absorbed by creating new schools. The UP government planned to convert madarsas into regular schools by granting them recognition. On appeal, the Supreme Court framed three issues: whether the Act violates secularism as understood in the Indian constitutional context? Can an Act be struck down for being violative of the basic structure of the Indian Constitution? Whether the state legislature had the legislative competence to enact such a law, given the federal structure of the Constitution?

Of these three, my emphasis will be on the first one, which is also tied closely to the question of equality under Article 14. The Allahabad High Court understood the very existence of the UP Madarsa Act as the State giving special privileges or treatment to its Muslim minority and violative of secularism.

The division Bench’s understanding of secularism was based on equal treatment of religions by the State (formal equality of religion) and a clean separation of religious activities and secular activities of the State.

The three-judge Bench of the Supreme Court corrected that approach by reiterating that secularism as a facet of equal treatment imposes a dual obligation on the State: To not actively discriminate against a group or person based on religion (negative obligation) and to ensure that the State actively provides the infrastructure and conditions to fruitfully exercise the freedom to practice religion.

The court highlighted the scheme of the Constitution. Article 25 provides that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion subject to public order, morality, health, and other provisions of Part III.

Articles 29 and 30 pertain to the cultural and educational rights of minorities. This is understood as either religious or linguistic minorities. Read together, they confer a special right on religious and linguistic minorities to instill in them a sense of autonomy, confidence and security from the interference of the executive and legislature, except to ensure the quality of education.