Gauhati High Court upholds Assam Repealing Act that converted State funded Madrassas to Govt schools

The Gauhati High Court on Friday upheld the Assam Repealing Act of 2020, which turned existing provincialised madrassas in the State to regular government schools [Imad Uddin Barbhuiyan and ors vs State of Assam and ors]..A Bench of Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia noted that the claim of the petitioners that provincialised (government-funded) madrassas are minority institutions established and administered by the minority community is a claim which has no foundation."Though a religious minority has a right to establish and administer educational institution of its choice, yet once such educational institution starts getting maintained wholly out of the State funds then religious instructions cannot be imparted in such an institution." the Bench observed.Since the entire teaching and non-teaching staff of these educational institutions are government servants, State madrassas cannot be said to be established or run by minority institutions, the Court added..The High Court was hearing petitions challenging the Repealing Act and enabling executive orders issued pursuant to the Act. The Act repealed two laws - the Assam Madrassa Education Provincialisation Act, 1995, and the Assam Madrassa Education (Provincialisation of Services of Employees and Reorganisation of Madrassa Educational Institutions) Act, 2018.The petitioners had contended that the conversion of minority institutions to government ones by the Act amounted to an invasion of their fundamental rights under Articles 14, 21, 25, 26, 29 and 30 of the Constitution.The Court noted at the outset that "religious instructions and religious education continued to be imparted in these provincialised madrasas, although they were now wholly maintained out of State funds."The counsel for the petitioners submitted that the State’s decision of withdrawing subjects on theological aspects and converting madrasas to ordinary high schools under the State Education Board is a direct violation of the constitutionally guaranteed fundamental rights of the individual petitioners as well as that of the madrasas established by the minority.The counsel argued that even as the liability to pay their salaries and emoluments have been taken over by the government, the same cannot be a ground to "disentitle" madrasas from exercising their rights under Article 30 to establish and administer educational institutions of their choice.The State's funding of them, that too not even wholly, does not alter their minority status, it was argued. Further, in the absence of any formal study, the notion that the standard of education in such madrassas is not high enough for students to qualify several exams is false, it was submitted.Reliance was placed on the judgment of In Re Kerala Education Bill, 1957, in which the Supreme Court had on a presidential reference held that the State could not impose any condition on a school simply because it has given it grants as that would violate rights given to the minorities under Article 30(1) of the Constitution.The counsel for the State argued at the outset that petition can be dismissed on the grounds of locus or misjoinder of necessary parties, since the petitioners were not directly affected by the repeal nor have they impleaded beneficiary students and staff in the matter.The counsel added that all the State government had done was, via essentially a policy decision, remove religious instructions from the schools that were already provincialised and thus essentially government-run.Reliance was placed on S Azeez Basha Vs Union of India and a single-Judge order of the High Court to submit that educational institutions once provincialised lose their minority status, and thus the question of law in the instant case was not of minority rights but whether there can be religious instructions at a government school..The High Court after examining the contentions held that the right to freedom of religion is not absolute."The Right to Freedom of Religion and Cultural and Educational Rights are not absolute rights. They have their limitations under the Constitution," the Bench noted.The Court observed that while a Constitution Bench in the top court is yet to adjudicate whether the Aligarh Muslim University is a minority institution or not, the judgment in Azeez Basha holding that the minority status goes upon provincialisation, remains in force.Any act of provincialisation wholly changes the nature of the school in question, as it comes under the government, the Bench said in the instant case.The High Court relied on the decision in DAV College vs State of Punjab to reject the petitioner's contention that collection of examination and other fees makes it not wholly-funded by the State, given these are income for specific purposes and not running the institute."We must reiterate that secularism is a basic feature of our Constitution and Article 28(1) is nothing but a strong assertion of our secular principles," the Court stated.In view of the above, the High Court upheld the validity of Assam Repealing Act, 2020, and the subsequent executive orders and communications of the State government.Regarding teachers in Arabic colleges and Title madrasas, the Court was informed that they were being placed under Secondary Board, instead of being placed under a University.However, their counterparts, who were teaching in provincialised Sanskrit Tols which been converted to study centres, had been placed under a university, after abolition of Sanskrit Tols."Therefore, we direct that if such teachers in Arabic colleges and Title madrasas, who were so far imparting education to students at graduate and post-graduate levels, their case shall also be considered for bringing under a university, like it has been done for the teachers in Sanskrit Tolls," the Court directed.But this shall be subject to a representation being made by such teachers, before the Commissioner and Secretary, Education (Secondary) Department, the Court added..Senior Advocate Sanjay Hedge and advocate AR Bhuyan appeared for the petitioners. Advocate General Devajit Saikia and advocate P Chakraborty appeared for the respondent.[Read Judgment]