An Eye-opener for the Advocates of Madrasas Registration with State Boards

Syyed Mansoor Agha studies the serious plight of Madrasa Education in Assam and underlines the stand of eminent organisations associated with Madrasa education against the desirability of Madrasa registration with the State Boards.

In a controversial act, the Government of Assam, on April 1 this year, converted some 600 state-run madrasas into upper primary, high, and higher secondary schools, disbanding religious education, a distinct character and the basic objective of founders of Madrasas. This was done after the BJP-ruled State Government, on December 31, 2020, passed the Assam Repealing Act, 2020, rescinding “Assam Madrassa Education (Provincialisation) Act, 1995 and all consequential government orders.”

THE HIGH COURT VERDICT

Thirteen locals associated with Madrasas challenged the politically motivated Act, 2020 in Guwahati High Court. Upholding the constitutional validity of the Act, a division bench of Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia dismissed the petition and validated scrapping the Act- 1995 along with “Assam Madrassa Education (Provincialisation of Services of Teachers and Reorganisation of Educational Institutions) Act, 2018.”

The court order said, “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, hence it is not acceptable.” 

The court also rejected the argument of the petitioners that the Repealing Act and the subsequent government orders violated the fundamental rights of the petitioners under Articles 25, 26, 28 and 30 of the Constitution of India.

The court held that under the Constitution, all citizens are equal before the law. “Therefore, preference given by the state to any one religion, in a multi-religious society like ours, negates the principle of Articles 14 and 15 of the Constitution of India.” It also said, “It is thus the secular nature of the state which mandates that no religious instruction shall be provided in any educational institution wholly maintained out of state funds.”

THE PRIMACY OF AFFIRMATIVE ACTION

It looks like the Judges have missed due consideration to the concept of ‘affirmative action’, for uplifting the lives of economically and educationally weaker sections and providing them with social justice in a socially diverse country like India.

It may be recalled that while adopting her wonderful Constitution, the nation had pledged “to secure social, economic and political justice to all its citizens” and “ensure equality of status and of opportunity.”

Under this sacred pledge, studded in the Preamble of the Constitution, the state is surely duty-bound to do whatever is needed to achieve these objectives. And so, an affirmative action aimed to achieve it should have overall primacy. Such an action should be invoked in accordance with the needs of suffering sections irrespective of their faith or religion and without any political motivation. The repealed Acts of 1995 and 2018 were enacted under this Constitutional obligation. Therefore, repealing of the impugned Acts hurts the soul and spirit of the Constitution of India.

SOME IMPORTANT FACTS

There is no doubt that the Madrasas in question were established by the Muslim community for the religious education of their children. After ‘Assam State Madrasa Board was created in 1954’ many were lured to join the Board, for a little monetary benefit. In 1995, the State Congress Government led by Bhumidhar Barman took one step further. He brought in The Assam Madrassa Education (Provincialisation) Act, 1995, with the stated objective: “Whereas it is expedient to provide for Provincialisation of Madrasa Education covered by the deficit scheme of grants-in-aid of the Government of Assam for its improvement and for better management and control of such Education in the State of Assam.”

Under this Act, the Islamic Madrasas, registered under the state “Madrasa Board” were taken under the care and control of State Government. The Act recognised the Madrasas in two categories: (a) ‘Madrasa (in Arabic) or the College’ means an institution imparting Madrassa Education up to Mumtazul Muhaddisin (M.M.) level, and (b) ‘The Deficit Madrassa’ means a ‘Madrassa receiving grants from the Government under the deficit scheme of grants-in-aid.’

The statement of object and reasons of the ‘Act-1995’ said: The object of the Bill is to provincialize the services of 1418 teachers and supporting staff of different categories now employed in 74 Nos. of Senior Madrassas, Title Madrassas or Arabic Colleges imparting instructions at the Secondary level. These institutions are covered for so long by the deficit system of grants in aid. Under this Bill better administration, management, and control of the specified teachers and supporting staff of the recognised Senior Madrassas, Title Madrassas or Arabic Colleges are aimed at the purpose of improving standard of education.

This categorisation speaks for itself when the State Government took over the management of these educational institutions, which were identified as Islamic Schools with a curriculum of religious subjects. However; other subjects were also taught. As was previously, these Madrasas continued to fetch students from the Muslim community mainly for “Religious Education” like the Qur’ān and Hadith, etc. along with other subjects. Scrapping of the Act of 1995 is clearly aimed to completely change the historical face and character of these Madrasas. Now “Religious Education” as the teaching of the Qur’ān and Hadith etc. is out of curriculum and the doors are open for general education for all communities.  

The Government says, henceforth there will be no change of status, pay, allowances, and service conditions of the teaching and non-teaching staff. This means the staff shall not be entitled to get pay scales as applicable in Government-run schools and colleges of equal status. They shall have to suffer as on a contract basis, which means less salary, no job security, and no benefits like post-retirement pension, etc.

THE PETITION IN SC

The petitioners, who had challenged the Repealing Act of 2020 in HC, filed an appeal in the Supreme Court in March, challenging the verdict of the High Court of February 4, 2022.

The petitioners maintained, “The high court has erroneously observed that the petitioner madrassas being government schools, and wholly maintained by the State through provincialisation are hit by Article 28(1) of the Constitution of India and as such, cannot be permitted to impart religious instruction.”

They also pleaded, “The land and building belonging to the madrassas are maintained by the petitioners and the petitioner Madrassas themselves bear the expenditures on electricity and furniture.” The plea contended that the operation of the high court judgment would result in the discontinuation of the petitioner madrassas as madrassas and would prevent them from admitting students for the courses being taught as curriculum for this academic year.

The plea also contended that “the Act takes away property rights of Madrasa management coupled with statutory recognition of madrassa education and the impugned order dated February 2, 2021, issued by the Governor disbands the ‘Assam State Madrasa Board’ created in 1954.”

The appeal says, “It amounts to an arbitrary exercise of both legislative and executive powers and amounts to a denial of the petitioner madrassas’ ability to continue as madrassas providing religious instruction coupled with religious education,” added the plea.

They also argued that “madrassas are essentially and basically minority educational institutions created by a religious minority for the purposes of imparting religious instruction as well as other categories of education in the state of Assam.”

ADVOCATE HEGDE PLEA IN SC

Now, on November 1, a two-judge bench of the Supreme Court, comprising Justices Ajay Rastogi and C.T. Ravikumar issued notice to the Assam government on the petition filed by Md. Imad Uddin Barbhuiya and others who sought stay on the operation of the Guwahati High Court’s order as an interim relief.

Senior Advocate Sanjay Hegde, appearing for petitioners, argued before the Bench that the High Court decision is erroneous. He said: “This is a matter dealing with the constitutional rights of minorities. The High Court assumes that the ‘Provincialisation of services of Staff’ is equivalent to the ‘Nationalisation of the institutions themselves’.” He argued, “The High Court has held that the two (Provincialisation and Nationalisation) substantially mean the same.”

Advocate Hegde asserted, “These madrasas were established by the minority community. There is no doubt about that. Thereafter, there was a process by which aid was given. If the institution ran into any deficit, the government would pay for it. The next step was the provincialisation of the ‘services of the staff in the institutions’. However, that provincialisation is restricted and it is a form of aid in grant. But after equating the two and having proceeded on the basis that the institutions were already taken over, the High Court held that there cannot be any more religious education as the institutions are maintained fully by the state.”

STATUS OF NON-REGISTERED MADRASAS

It may be noted that around 900 privately managed non-registered madrassas, known as “Qawmi Madrasas” and “Maktabs”, have survived the government bluff. Hopefully, they will remain functional though such Madrasas are not fully safe. The social atmosphere is full of communal hatred and run by rumours. Recently a Madrasa in Pakhiura Char in District Goalpara was destroyed by locals on the false pretext of “terror activities”. The BJP Government had also damaged three Madrasas on the same pretext.

AN EYE-OPENER

The case of Assam, usurping Madrasas in steps, initially registered with the Madrasa Board, is an eye-opener. Eminent organisations, associated with Madrasa education, including JUH and Darul Uloom Deoband, have once again cautioned against the desirability of Madrasa registration with the State Boards. During the UPA regime, the proposal of the “Central Madrasa Board” was rightly ignored by Muslim leadership, apprehending the State interference in religious instructions.

[The writer is Chairman, Forum for Civil Rights. Email: [email protected]]

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