‘Laws for minority institutions do not breach principle of secularism,’ observes CJI
‘Laws for minority institutions do not breach principle of secularism,’ observes CJI
M.U.H
22/10/202427
The Supreme Court on Monday said that the provisions of the Uttar Pradesh Board of Madarsa Education Act 2004 may be in conflict with the University Grants Commission Act of 1956 as they authorise the Board to confer degrees .
Chief Justice of India (CJI) D Y Chandrachud, presiding over a three-judge bench which heard the appeal against the Allahabad High Court judgment holding the 2004 Act, unconstitutional pointed out that section 9(1) of the Act which speaks about the powers of the Board to grant degrees and postgraduate degrees like Alim, Kamil, Fazil etc.
He said, “as per UGC Act, the right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a central act, a provincial act or a state act or an institution deemed to be a university Under section 3 or an institution specially empowered by national parliament to confer or grant degree. For the purpose of this section, degree means any such degree as may with the previous approval of the central government be specified in this behalf by the commission. In other words, one thing is very clear that the state act does not constitute the madarsa board as a university. It’s not a university. Therefore, it cannot confer any degree. Therefore, perhaps the provisions of the state act in so far as they authorise the madrasa board to confer degrees may be in conflict with the UGC Act”.
Senior Advocate Menaka Guruswamy, appearing for the appellants, told the Bench also comprising Justices J B Pardiwala and Manoj Misra that the Board was only giving certificates and not degrees as it had only applied for permission in 2001 and the same was yet to be granted.
“We are conferring only certificates…Until we get that permission, we will not be conferring any degrees of any sort,” she told the Bench.
Justice Pardiwala asked, “You may be issuing a certificate. For example, Aalim graduate, Kamil postgraduate. What will be the legal authenticity of that certificate? Will that student be called a graduate on the basis of that certificate?”
“No”, said Guruswamy, adding, “the student would have been educated. And we will not be in conflict with any UGC regulations simply because a degree is not being confirmed.”
The CJI also said that “a law per se regulating an institution belonging to a particular community does not ipso facto offend the principle of secularism. For example, you have the Hindu religious endowments and charitable institutions act…There are laws providing for the proper administration of religious institutions run by Hindus. That does not offend secularism per se. Those are there in all states from Maharashtra to Tamil Nadu. Therefore, what we really need to see is this. The High Court says that this completely offends the principle of secularism. Article 30 enables linguistic and religious minorities to establish institutions of their choice. They are not confined only to teaching their religion. For instance, a Zoroastrian institution or a Buddhist institution can teach a course in medicine also. They can teach engineering. There’s no compulsion that a Buddhist institution must teach only Buddhism.”
CJI Chandrachud added, “Article 30 also contemplates that you can teach your religion as well. The bar is under Article 28 that no institution receiving aid from state funds shall sponsor any particular religion.”
Senior Advocate A M Singhvi, also appearing for the petitioners, contended that the HC order tantamount to a ban. “You suggest ways to improve, suggest regulation…The High Court has misdirected itself. Banning is per se wrong, unconstitutional. The perspective that you can do much more by regulation, suggestions, improvements, reforms. Here is a ban order.”
On April 5, the Supreme Court stayed the High Court order which declared the 2004 Act “unconstitutional” on the ground that it violates “the principle of secularism” as well as fundamental rights provided under Article 14 of the Constitution. Monday, the CJI noted that the act is regulatory in nature. “The board is not an authority which provides for education. It is regulating the character of affiliated institutions”.
Guruswamy said that “the HC wrongly conflates regulation with religious instruction and thereby says religious instruction violates secularism as provided for by the constitution.” She added that “it is only a regulatory mechanism which in fact we should be vested in if we are invested in excellence of educational institutions including madrasas.”
The CJI pointed out that even “Article 30 contemplates that the state can make regulations to further the excellence of education. Like Conditions of service for teachers, security of tenure and so on and so forth.”
He added, “The state may also have a vital interest in ensuring, for instance, these are young children who are coming to the madrasas. That they must be able to have some broad-based education apart from, of course, religious instruction. That they learn the essentials of all the subjects required to lead a proper life once they get out.”
Guruswamy said that “the regulations in fact understand that not only will you be exposed to the philosophy of religions which is constitutionally permissible but you will also be imparted education in social science, computer science, maths, english. This is also what these institutions do.”