In a significant development, the Jammu and Kashmir High Court, has invalidated the orders concerning the seizure and takeover of madrasas in Kishtwar and Udhampur districts. The orders, issued by the Additional Deputy Commissioner (ADC) Kishtwar on July 3, 2023, and Tehsildar Majalta Udhampur, were contested in court through a Writ Petition filed under Article 226 of the Constitution of India.The Writ Petition (WP(C) No./1885/2023) that was filed by by four petitioners, namely Raj Ali, Chairman of Madrasa Ruqiya Islamic Educational and Charitable Trust in Udhampur; Mohammad Shafi, Chairman of Ashraf-ul-Uloom Sadiqia Taleem Aur Rifahi Trust in Kishtwar; Mohammad Arshad Lone, Chairman of Madarsa Taleem-ul-Quran in Kishtwar; and Bashir Ahmed, Chairman of Madarsa Ishaat-ul-Quran Educational and Charitable Trust in Jammu.
Firstly, the petitioners argued that the order dated June 14, 2023, passed by the Divisional Commissioner Jammu, leading to the seizure of madrasas, specifically applied only to the Madrasas operated by Maulana Ali Miyan Educational Trust, Bathindi.
They strongly asserted that their respective educational trusts were entirely unrelated to the mentioned trust and had absolutely no connection to any anti-national or anti-social activities.
Despite the high court’s warning of July 4, the administration, directly governed by the Bhartiya Janata Party (BJP)-led Union government, sealed Madrasa Taaleem-ul-Quran and Madrasa Asraful Aloom in Tatani Suroor area of Kishtwar’s Drabshalla tehsil on Tuesday, July 4. Officials stated that the two madrasas are associated with the Jammu-based Maulana Ali Miyan Nadwi Education Charitable (MAMNEC) Trust, which has been accused of violating Foreign Contributions Regulation Act (FCRA) norms under an order (No: 301/FCRA/2023/696-714) issued on June 14 by Divisional Commissioner Jammu, Ramesh Kumar.
On July 4, the court had prohibited the administration from taking any punitive action against madrasas in the Union territory, except for those operated by the trust. Consequently, nearly 100 students enrolled in the two schools have been affected by the administration’s recent move.
The case was presided over by Hon’ble Justice Sanjeev Kumar. During the proceedings, the arguments put forth by the petitioners’ counsel, Mr. Gagan Basotra, and the Senior Additional Advocate General, Ms. Monika Kohli, representing the respondents, were heard and considered in detail.
After a thorough examination of the material on record and the order issued by the Divisional Commissioner, Jammu, the court conclusively determined that the order dated June 14, 2023, specifically targeted the madrasas operated by Maulana Ali Miyan Educational Trust, Bathindi. Notably, the Divisional Commissioner had not issued any directives concerning other madrasas under different educational charitable trusts, including those managed by the petitioners.
Justice Sanjeev Kumar held that the Additional Deputy Commissioner, Kishtwar, committed an error in applying the June 14, 2023 order to close down or seize the madrasas run by the petitioners’ trusts, as there was no substantial evidence of their connection to the mentioned trust. The court emphatically stressed that the impugned orders were issued without affording the petitioners an opportunity to be heard or conducting any proper inquiry.
As a result of the comprehensive examination, the High Court granted its approval to the writ petition and nullified the orders of July 3, 2023, issued by the Additional Deputy Commissioner, Kishtwar, concerning the seizure of the madrasas operated by the petitioners.
Administrative misdemeanour
A letter written in Urdu was handed to the administrator of Madrasa Taleem-ul-Quran, indicating that the school has been handed over to the administration and ordered to be shut down as per the order (301/FCRA/2023/696-714) of Divisional Commissioner and Deputy Commissioner (DC) Kishtwar under DMK/K/23/686 (dated June 22, 2023) and Additional DC Kishtwar under DM/K/23/762-A (dated July 3, 2023).
The sealing of the madrasas has introduced a fresh dimension to the ongoing controversy, attracting considerable attention and prompting questions regarding the legality and fairness of the Deputy Commissioner’s order. The actions taken by the authorities have given rise to concerns about the potential disruption of education for the students currently enrolled in these institutions.
The petitioners contested the orders issued on July 3, 2023, by the Additional Deputy Commissioner Kishtwar. These orders directed the takeover of the management of the madrasas operated by them, with the buildings to be handed over to the District Administration through the concerned Tehsildar, as previously reported on The Chenab Times. In their challenge, they presented two primary grounds.
Firstly, the petitioners argued that the order dated June 14, 2023, passed by the Divisional Commissioner Jammu, leading to the seizure of madrasas, specifically applied only to the Madrasas operated by Maulana Ali Miyan Educational Trust, Bathindi.
They strongly asserted that their respective educational trusts were entirely unrelated to the mentioned trust and had absolutely no connection to any anti-national or anti-social activities.
Secondly, the petitioners strongly contended that the impugned orders were a clear violation of the principles of natural justice. They argued that these orders were issued without granting them a fair opportunity to be heard or conducting any proper inquiry into the matter.
The court further clarified that if any evidence of law violation emerges during an investigation or inquiry, the respondents have the liberty to take appropriate action. Nevertheless, the court emphasized that no adverse orders shall be passed against the petitioners without providing them due notice and a fair opportunity of hearing. He further added that if it comes to the notice of respondents regarding indulgence in any illegal activity then the action as per law can be initiated by them.
The initiated action against the madrasas is part of a broader crackdown on non-governmental organizations and their affiliates in Jammu and Kashmir, suspected of violating foreign funding norms. According to a Government of India survey in 2013, there were 372 madrasas in Jammu and Kashmir. However, a 2022 book by Dr. Nisar A Bhat, titled “Madrasa Education in Jammu and Kashmir,” indicates that the number has increased to 499, with 16 of them located in Kishtwar district alone. According to the book, these madrasas house nearly half a million books in their libraries, but only 94 have adopted a combination of modern education and religious teachings.
Arshad, the administrator of Madrasa Taleem-ul-Quran, expressed concern about the impact of the government’s decision on his students’ education. He stated that his students receive free education due to the generosity of the public, and denying them the opportunity to learn about their religion is unjust. However, DC Kishtwar, Dr. Yadav, countered this by stating that the students will be given a choice.
They can either continue their religious education, where the district administration plans to appoint a government teacher, or they can opt to join a government-run school anywhere in the district. This approach aims to provide the students with options to ensure continuity in their education. In recent years, the BJP-led Union government has undertaken a stringent action on non-government organizations (NGOs) under the Foreign Contribution Regulation Act (FCRA). Despite these measures, NGOs and other associations received over Rs 22,000 crore in foreign funds during the fiscal year 2021-22. This amount surpassed the funds received in the preceding two years, indicating a notable increase in foreign contributions despite the government’s efforts to regulate them.
This landmark ruling by the Jammu and Kashmir High Court brings immense relief to the petitioners and firmly reiterates the significance of adhering to the principles of natural justice and due process in matters involving educational institutions. The court’s decision constitutes a momentous milestone in the ongoing controversy surrounding the seizure of madrasas in Kishtwar and Udhampur
Judgement can be read here
(The article has been authored by Nabeel Masood an intern with the organisation)