Image: Abhisek Saha/The Indian Express
In a shot in the arm for the Assam government’s purported strategy to “secularise” madrasas in Assam, the Gauhati High Court has upheld the Assam Repealing Act 2020. In a judgment delivered on Friday February 4, 2022, the HC said, “… we uphold the validity of Assam Repealing Act, 2020 and the subsequent executive orders and communications of the Government,” but put on record an important clarification.
“We must clarify at the very threshold that the changes brought about by the above legislative and executive action of the State are for the “Provincialised Madrasas” alone, which are Government schools. This is not for the “Community Madrasas” or the “Qawmi Madrasas” and “Maktabs”, which continue to function in Assam as usual. We have also been informed by the counsel representing the petitioners, Mr. A.R. Bhuyan that these Madrasas continue to get financial aid from the State. Thus the change in curriculum has been brought about only in ‘Provincialised Madrasas’,” clarified the court explaining the scope of the ramifications of its order.
According to statistics submitted by the state government before the court, at present there are 250 provincialised madrasas that cater to students of class 6 and 7. There are 133 senior madrasas where students from class 8 to 12 are educated. Then there are 4 Arabic Colleges for students from class 6 to those pursuing Post Graduate degrees. There are also 14 Title Madrasas where post graduate education is imparted.
Brief background of the case
The matter pertains to a decision taken by the Assam state government in 2020 about government aided madrasas and Sanskrit tols in the state. The on December 14, Himanta Biswa Sarma who was Assam’s Education and Finance Minister at that time announced, “The word ‘madrasa’ will be removed from the name of these schools. The High Madrasas will now be called High Schools and a 50-mark paper on the Quran will be dropped from the syllabus.” The decision was made to secularise education, reasoned the minister. In the same month, the Assam unit of the Jamiat Ulama-i-Hind has decided to legally contest the decision.
The services of the teachers of these Madrasas as well as the entire staff employed in these Madrasas were provincialised in the year 1995-96, by virtue of an Act, known as the Assam Madrassa Education (Provincialisation) Act, 1955. The Madrassas in question are of three types –
(a) Pre-Senior Madrasas; (b) Senior Madrasas, and (c) Title Madrasa.
The court recorded the events as they transpired in the run up to the passage of the Assam Repealing Act as follows:
“A decision was then taken by the Government of Assam on 13.11.2020 in its meeting of Council of Ministers to convert the “provincialised” Madrasas into regular High Schools and to withdraw the teachings of theological subjects in such Madrasas. There was a similar decision taken in the same meeting to convert the “provincialised” Sanskrit Tolls into Study Centres. In Sanskrit Tolls, inter alia, religious instructions were being given, though these too were fully maintained out of State funds.
6. This was followed by an Act of the State Legislature, called Assam Repealing Act, 2020, which received the assent of the Governor of Assam on 27.01.2021. The Act repealed the Assam Madrassa Education (Provincialisation) Act, 1995 and the Assam Madrassa Education (Provincialisation of Services of Teachers and Reorganisation of Educational Institutions) Act, 2018. This was followed by a series of executive orders passed by the Government of Assam. The first order was issued on 12.02.2021. This order converts Madrasas into High Schools and brings it under the State Education Board. Religious teachings and instructions in these Madrasas are withdrawn. Fresh admissions under the old course were barred from 01.04.2021. It also directed that the teachers teaching theological subjects would now be provided training for teaching general subjects of their aptitude. Further, the State Madrassa Education Board was dissolved and all records, bank accounts, etc., of the Board was transferred to the Board of Secondary Education, Assam. The State Madrasa Board also stands dissolved vide Notification dated 12.02.2021.”
The Petition
The present petition Imad Uddin Barbhuiya and ors vs. State of Assam (WP-C 3038 of 2021) was moved by 13 people who claim to be either owners of the land on which the Madrasas were constructed or the members of the management committee or the mutawallis.
They argued that this decision to convert government aided madrasas into regular government schools by the State Government “amounts to an invasion of their fundamental rights given to them under Articles 25 and 26 as well as under Articles 29 and 30 of the Constitution of India. It has further been argued that this is also violative of Articles 14 and 21 of the Constitution of India.”
Their counsel Senior Advocate Sanjay Hegde argued that “Articles 29 and 30 confers four distinct rights on the minorities. First is the right of any section of the minorities to conserve its own language, script or culture [Article 29(1)]. The second is the right of all religious and linguistic minorities to establish and administer educational institutions of their choice [Article 30(1)]. The third is the right of an educational institution not to be discriminated against in the matter of State aid only on the ground that it is under the management of a religious or linguistic minority [Article 30(2)]. The fourth is the right of the citizen not to be denied admission into any State maintained or State aided educational institution on the ground of religion, caste, race or language [Article 29(2)].”
He further argued that “the petitioner Madrasas are educational institutions established by a religious minority for the purposes of imparting education including religious education to minorities within the State of Assam.” Therefore, the State’s decision of withdrawing subjects on theological aspects and converting Madrasas to ordinary high schools, by bringing them under the State Education Board, is a “direct violation of the constitutionally guaranteed fundamental right of the individual petitioners as well as that of the Madrasas, which are established by members of the minority community.”
However, Advocate General of the State, Mr. Devajit Saikia argued that all the State has done is that “it has removed religious teachings which are in the form of religious instructions, from Government schools. The schools from where these teachings have now been stopped are not private institutions, leave aside minority institutions. They were provincialised way back in the year 1995-96 and since then they have lost their minority status. Since these institutions are not minority institutions and all the teaching as well as non-teaching staff of these institutions are Government servants, there is no question of Article 29 and 30 coming into play in any manner in the present case.”
AG Saikia drew a distinction between religious instruction and religious teachings or religious philosophy, and further argued that “what was being taught in these schools was nothing but religious instructions, which is in violation of the Constitution of India. This has now been stopped.” He would then submit that “not only the Madrasas have been closed but a similar action has been the case of “Sanskrit Tolls” as well where inter alia religious teachings were imparted in Sanskrit language Therefore, the State has been religiously neutral while implementing the mandate of Clause (1) of Article 28 of the Constitution of India.”
The Judgment
In its judgment the court agreed with the AG’s submission that “provincialization” was akin to “nationalization”. The court observed, “When the Central Government brings something within its control and ownership, which earlier was under private ownership, that would be “nationalisation”; like the nationalisation of Banks in the year 1971. This was done by the centre. A similar action at the level of a State, i.e. a province, would be called “provincialisation”. Naturally, when the Madrasas in Assam were provincialised in the year 1995 by a State Legislation, it cannot be called “nationalisation of Madrasss”, it has to be “provincialisation of Madrasas”. The effect, however, in both cases remains the same.”
The HC further observed, “We have absolutely no doubt in our mind that the ratio laid down by the Apex Court in S. Azeez Basha’s case is fully applicable in the present case. 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. We have already seen the meaning of provincialisation and the way provincialisation changes the nature of the school, inasmuch as, it is now fully under control of the Government and in fact the teaching and the non-teaching staffs of the Madrasas are Government servants, which has never been in tough. Therefore, these are not minority institutions anymore.”
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 entire judgment may be read here:
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