Supreme Court of India
Anjum Kadari vs Union Of India on 5 November, 2024
Author: Dhananjaya Y Chandrachud
Bench: Dhananjaya Y Chandrachud
Reportable
2024 INSC 831
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ ORIGINAL JURISDICTION
Special Leave Petition (C) No.8541 of 2024
Anjum Kadari & Anr. …Appellants
Versus
Union of India & Ors. …Respondents
With
Special Leave Petition (C) No.7857 of 2024
With
Special Leave Petition (C) No.7821 of 2024
With
Special Leave Petition (C) No.7878 of 2024
With
Special Leave Petition (C) No.7890 of 2024
With
Special Leave Petition (C) No.13038 of 2024
With
Signature Not Verified Contempt Petition (C) No.591 of 2024
Digitally signed by
SANJAY KUMAR
Date: 2024.11.05
In SLP (C) No.7878 of 2024
12:39:29 IST
Reason:
And with
Transfer Petition (C) No.2697 of 2024
Page 1 of 70
JUDGMENT
Dr Dhananjaya Y Chandrachud, CJI
Table of Contents
A. Introduction …………………………………………………………………………………………….4
B. Background …………………………………………………………………………………………….4
a. History of Madarsas ……………………………………………………………………………..4
b. Teaching in Madarsas …………………………………………………………………………..6
c. Madarsa Act …………………………………………………………………………………………9
d. Steps taken by the State Government and the Board pursuant to the
Madarsa Act ……………………………………………………………………………………….18
e. Proceedings before the High Court and Impugned Judgment ……………… 20
f. Steps taken by the State Government and the proceedings before this
Court ………………………………………………………………………………………………….23
C. Submissions …………………………………………………………………………………………24
D. Secularism and regulation of minority educational institutions ………………. 29
a. Secularism in the constitutional context …………………………………………….. 29
b. Testing the validity of a statute for violation of the basic structure of the
Constitution ……………………………………………………………………………………….34
c. Regulation of minority educational institutions …………………………………… 41
d. The Madarsa Act is a regulatory legislation ………………………………………… 45
Page 2 of 70
e. Interplay of Article 21-A and Article 30 ………………………………………………… 51
E. Legislative Competence …………………………………………………………………………54
a. The Madarsa Act is within the legislative competence of the State under
Entry 25, List III …………………………………………………………………………………..54
b. Certain provisions of the Madarsa Act conflict with the UGC Act enacted
under Entry 66, List I …………………………………………………………………………..59
c. The entire Madarsa Act need not be struck down on the above ground .. 65
F. Conclusion ……………………………………………………………………………………………69
Page 3 of 70
PART A & B
A. Introduction
1. The High Court of Judicature at Allahabad 1 has held the Uttar Pradesh Board
of Madarsa Education Act, 2004 2 to be unconstitutional on the ground that it
violates the principle of secularism and Articles 14 and 21A of the Constitution.
The Madarsa Act established the Uttar Pradesh Board of Madarsa Education,3
to regulate, among other things, the standards of education, qualifications for
teachers, and conduct of examinations in Madarsas in the State of Uttar
Pradesh. The entirety of the Act has been struck down by the High Court.
B. Background
a. History of Madarsas
2. The term ‘madarsa’ refers to any school or college where any sort of education
is imparted.4 The history of the establishment of Madarsas in the Indian
subcontinent may be traced to the rule of the Tughlaqs. 5 The pre-colonial
Madarsas were of two types: (i) the Maktabs which were attached to mosques
and imparted elementary education; and (ii) the Madarsas which were centres
of higher learning and contributed to the administrative, religious, and cultural
needs of the prevalent society. 6 During colonial rule, the relative importance of
Madarsas diminished with the introduction of English as the language of the
colonial administration. 7
1
“High Court”
2
“Madarsa Act”
3
“Board”
4
Yoginder Sikand, Bastions of the Believers: Madrasas and Islamic Education in India (Penguin Books, 2005)
5
ibid
6
Arshad Alam, ‘Understanding Madrasas’ (2003) 38(22) Economic and Political Weekly 2123
7
Padmaja Nair, The State and madrasas in India (Working Paper 15, University of Birmingham 2009) 11
Page 4 of 70
PART B
3. The colonial government formulated the Education Code of 1908 to recognize
Madarsas in Uttar Pradesh for conducting Arabi-Pharsi examinations. The
Arabic institutions preparing candidates for Maulvi, Alim, and Fazil
examinations and the Persian institutions preparing candidates for Munshi and
Kamil examinations were required to make an application to the Registrar of
Arabic and Persian Examinations.
4. After Independence, the Department of Education of the UP government issued
the Madrasa Education Rules 1969 to bring Madarsas under the domain of the
Education Department. Subsequently, the State government framed the UP
Non-Government Arabic and Persian Madrasa Recognition Rules 1987 8 to
govern the procedure for recognition and the terms and conditions of service of
teachers in the Madarsas. According to the 1987 Rules, recognition to
Madarsas was granted by the Recognition Committee and confirmed by the
Registrar of Arabic and Persian Exams. The 1987 Rules also prescribed
requirements for the quality of buildings and eligibility qualifications for teaching
staff as a precondition to the grant of recognition. In 1996, the management of
Madarsas was transferred to the Minority Welfare and Waqf Department of the
UP government.
5. The Central government has also framed schemes to modernize education
imparted in Madarsas. In 1993-1994, the Central Government implemented the
Area Intensive and Madrasa Modernization Programme9 to encourage
8
“1987 Rules”
9
“Madrasa Modernization Programme” (Under the Madrasa Modernization Programme, the government
covered the salary of two madrasa teachers who taught modern subjects. It also provided one-time grants
for purchase of science and math kits and book-banks for the madrasa libraries. See PIB, Ministry of Human
Page 5 of 70
PART B
Madarsas and Maktabs to teach modern subjects such as Science,
Mathematics, English, Hindi, and Social Studies alongside the traditional
curriculum. The Madrasa Modernization Programme subsequently became a
part of the Sarva Shiksha Abhiyan. During the 11th Five Year Plan (2007 to
2011), the Ministry of Human Resource Development implemented the Scheme
for Providing Quality Education in Madrasas to encourage and incentivize
Madarsas and Maktabs to impart education in modern subjects by providing
them financial assistance. 10 Only Madarsas which have been in existence for
at least three years and registered under central or state legislation, Madarsa
boards, or waqf boards are eligible to apply for assistance under this scheme.11
b. Teaching in Madarsas
6. According to the data placed on record in the affidavit filed by the State of Uttar
Pradesh, there are presently around thirteen thousand Madarsas catering to
more than twelve lakh students in the state. The following table is instructive:
Type of Madarsas Number of Madarsas Number of students
State funded 560 1,92,317
Permanently recognized 3,834 4,37,237
(non-state funded)
Temporarily recognized 8,970 6,04,834
(non-state funded)
Total 13,364 12,34,388Resource Development, Centre Releases Rs. 5.9 crore for madrasa modernization (12 December 2003)
https://archive.pib.gov.in/archive/releases98/lyr2003/rdec2003/12122003/r1212200330.html)
10
Department of School Education and Literacy, https://dsel.education.gov.in/spemm
11
Central Sponsored Scheme for Providing Quality Education in Madrasa,
https://www.education.gov.in/sites/upload_files/mhrd/files/upload_document/SPQEM-scheme.pdfPage 6 of 70
PART B
7. The state government has an annual budget of Rupees one thousand and
ninety-six crores for the salaries of teaching and non-teaching staff working in
the state-aided Madarsas. The state government also provides books and
midday meals to students of state-funded Madarsas. Moreover, it also operates
Industrial Training Institutes in recognised Madarsas to teach trades such as
welding, mechanics, and stenography.
8. Academic education in Madarsas is broadly divided into four levels: (i) Tathania
(equivalent of elementary classes I to V); (ii) Fauquania (equivalent to upper
elementary classes VI to VIII); (iii) Maulvi or munshi (equivalent to a certificate
of secondary school or Xth standard); and (iv) Alim (certificate of senior
secondary level examination or XIIth standard).
9. The syllabus until the Alim classes is in accordance with the syllabus of the
Uttar Pradesh State Council of Educational Research and Training.12 For the
Munshi/Maulvi and Alim levels, the Madarsas teach subjects such as theology
(Sunni and Shia), Arabic literature, Persian literature, Urdu literature, General
English, General Hindi, and optional subjects such as Mathematics, Home
Sciences, Logic and Philosophy, Social Sciences, Science, Tibb (medical
science), and Typing. The Munshi/Maulvi and Alim certificates are treated
equivalent to High School and Intermediate levels respectively by the Uttar
Pradesh government and the Government of India. The Sachar Committee
12
“SCERT”
Page 7 of 70
PART B
Report suggests that most students study in Madarsas only till primary and
middle classes. 13
10. A few Madarsas also award certificates of Kamil (undergraduate degree) and
Fazil (post-graduate degree). The State of Uttar Pradesh has stated in its
affidavit that Kamil and Fazil degrees awarded by Madarsas are not recognised
as alternatives to graduate and post-graduate degrees respectively. The
government further states:
“At the undergraduate and post graduate level, the
U.P Madrasa Board grants the Qamil and Fazil
degrees respectively, specialized courses for the
education of Arabic-Persian and Deenyat subjects,
which are the minimum educational qualifications
required for imparting education of Arabic-Persian
and Deenyat subjects in Madrasas. These courses
have not been given equivalence by the Government
of Uttar Pradesh/Government of India/any university
established by law, nor has the education of these
courses been recognized as an alternative to the
graduation/post-graduation degree of a university
established by law for employment at the level of
Uttar Pradesh Government or Government of India.”
11. Consequently, students educated in Madarsas are only eligible for occupations
that have High School or Intermediate as qualification requirements. While
Kamil and Fazil are not considered to be alternatives to the regular
undergraduate and post-graduate degrees, a notification issued by the
University Grants Commission 14 in March 2014 which lists the degrees
governed by the University Grants Commission Act 1956 15 includes both Fazil
13
Social, Economic and Educational Status of the Muslim Community of India: A Report (Prime Minister’s
High Level Committee, Cabinet Secretariat, Government of India) Appendix Table 4.4 (293)
14
“UGC”
15
“UGC Act”
Page 8 of 70
PART B
and Kamil under the title of ‘Specification of Degrees with Urdu/Persian/Arabic
nomenclature’. The effect of the notification shall be considered in the course
of the judgment.
c. Madarsa Act
12. The State legislature of Uttar Pradesh enacted the Madarsa Act which was
deemed to come into force on 3 September 2004. The long title of the Madarsa
Act states that it is “an Act to provide for the establishment of a Board of
Madarsa Education in the State and for the matters connected therewith and
incidental thereto”. The Statement of Objects and Reasons indicates the reason
for the enactment:
“In para 55 of the Education Code the Registrar,
Arabi-Pharasi Examinations, Uttar Pradesh,
Allahabad had been authorised to recognise the
Arabi-Pharasi Madarsas in the State and for
conducting the examinations of such Madarsas.
These Madarsas were managed by the Education
Department. But with the creation of the Minority
Welfare and Wakfs Department in 1995 all the works
relating to such Madarsas were transferred from
Education Department to the Minority Welfare
Departments by virtue of which all the works relating
to Madarsas are being performed under the control
of the Director, Minority Welfare, Uttar Pradesh and
the Registrar/Inspector Arabi-Pharasi Madarsas,
Uttar Pradesh. The Arabi-Pharasi Madarsas were
being administered under the Arabi-Pharasi
Madarsas Rules, 1987 but since the said rules have
not been made under an Act, many complication
[sic] arose in running the Madarsas under the said
rules. Therefore, with a view to removing the
difficulties arisen in running the Madarsas,
improving the merit therein and making available
the best facility of study to the students studying
in Madarsas it was decided to make a law to
provide for the establishment of a Board of
Madarsa Education in the state and for thePage 9 of 70
PART Bmatters connected therewith or incidental
thereto.
…”
(emphasis supplied)
13. Section 2 provides definitions. The expressions “institution”, “Madarsa
Education” and “recognition” have been defined as follows:
“2. Definitions. — In this Act unless the context
otherwise requires: —
…
(j) “institution” means the Government Oriental
College, Rampur and includes a Madarsa or an
Oriental College established and administered by
Muslim Minorites and recognized by the Board for
imparting Madarsa-Education;
(h) “Madarsa-Education” means education in Arabic,
Urdu, Parsian, Islamic studies, Tibb Logic, Philosophy
and includes such other branches of learning as
may be specified by the Board from time to time;…
(j) “recognition” means, recognition for the purpose of
preparing candidates for admission to the Board’s
Examination;
…”
(emphasis supplied)
14. Section 3 provides the constitution of the Board. Sub-section (1) of Section 3
provides that the Board shall be established at Lucknow on the date declared
by the State government by a notification. Sub-section (2) states that the Board
shall be a body corporate, while Sub-section (3) details the composition of the
Board. The majority of the members of the Board are either part of the State
Page 10 of 70
PART B
Government (or the legislature) or nominated by the State Government. The
Board consists of the following members:
a. a renowned Muslim educationist in the field of Madarsa Education,
nominated by the State Government, who is the Chairperson;
b. the Director, Minority Welfare, Uttar Pradesh, who is the Vice
Chairperson;
c. principal, Government Oriental College, Rampur;
d. one Sunni-Muslim Legislator to be elected by both houses of the State
Legislature;
e. one Shia-Muslim Legislator to be elected by both houses of the State
Legislature;
f. one representative of the National Council for Educational Research and
Training (NCERT);
g. two heads of institutions established and administered by Sunni Muslims,
nominated by the State Government;
h. one head of institution established and administered by Shia Muslims,
nominated by the State Government;
i. two teachers of institutions established and administered by Sunni
Muslims nominated by the State Government;
j. one teacher of an institution established and administered by Shia
Muslims, nominated by the State Government;
k. one Science or Tibb teacher of an institution nominated by the State
Government;
Page 11 of 70
PART Bl. the Account and Finance Officer in the Directorate of Minority Welfare,
Uttar Pradesh;
m. the Inspector 16; and
n. an officer not below the rank of Deputy Director nominated by the State
Government, who is the Registrar.
15. Sub-section (4) of Section 3 deals with the issuance of a notification by the
State Government that the Board has been duly constituted, after the election
and nomination of the members. Sub-section (5) pertains to the procedure to
nominate or elect members who are Sunni-Muslim or Shia-Muslim legislators
in certain special circumstances. Sub-section (6) stipulates that from the date
of the establishment of the Board, the erstwhile Arbi and Farsi Education Board
shall stand dissolved.
16. Section 4 pertains to the power of the State Government to remove members,
other than ex-officio members, from the Board. This removal may be ordered,
if in the opinion of the State Government, the member has “so flagrantly abused
his position … as to render his continuance on the Board detrimental to the
public interest”. Section 5 specifies the term of office of the members and
Section 6 mandates that the State Government take steps to reconstitute the
Board before the expiry of the terms of office of the members. Section 7 governs
the procedural specificities of the meetings of the Board, while Section 8
16
“Inspector” has been defined in S.2(e) of the Act as: “(e) ‘‘Inspector’’ means the inspector, Arabic Madarsas,
Uttar Pradesh and includes an officer authorised by the State Government to perform all or any of the
functions of the inspector under this Act”
Page 12 of 70
PART B
clarifies that no acts of the Board or its committees may be invalidated on the
ground of a vacancy or defect in its constitution.
17. Section 9 which enunciates the functions of the Board, is relevant to the
constitutional challenge before us. The functions of the Board are wide-ranging
and relate to inter alia prescribing the course material, granting degrees or
diplomas, conducting examinations, recognizing institutions to conduct
exams, conducting research and training, and other incidental functions. These
functions are exercised at various levels of education detailed above – Tahtania,
Fauquania, Munshi, Maulvi, Alim, Kamil, Fazil, and other courses. The provision
reads thus:
“9. Functions of the Board. — Subject to the other
provisions of this Act the Board shall have the following
functions, namely: —
(a) to prescribe course of instructions, textbooks, other
books and instructional material, if any, for Tahtania,
Fauquania, Munshi, Maulavi, Alim, Kamil, Fazil and
other courses;
(b) prescribe the course books, other books and
instruction material of courses of Arbi, Urdu and Pharsi
for classes up to High School and Intermediate
standard in accordance with the course determined
there for by the Board of High School and Intermediate
Education;
(c) to prepare manuscript of the course books, other
books and instruction material referred to in clause (b)
by excluding the matters therein wholly or partially or
otherwise and to publish them;
(d) prescribe standard for the appointment of Urdu
translators in the various offices of the State and
ensure through the appointing authority necessary
action with respect to filling up of the vacant posts;
(e) to grant Degrees, Diplomas, Certificates or other
academic distinctions to persons, who—
(i) have pursued a course of study in an institution
admitted to the privileges or recognition by the Board;Page 13 of 70
PART B
(ii) have studied privately under conditions laid down in
the regulations and have passed an examination of the
Board under like conditions;
(f) to conduct examinations of the Munshi, Maulavi,
Alim and of Kamil and Fazil courses;
(g) to recognize institutions for the purposes of its
examination;
(h) to admit candidates to its examination;
(i) to demand and receive such fee as may be
prescribed in the regulations;
(j) to publish or withhold publication of the result of its
examinations wholly or in part;
(k) to co-operate with other authorities in such a
manner and for such purposes as the Board may
determine;
(l) to call for reports from the Director on the condition
of recognised institutions or of institutions applying for
recognition;
(m) to submit to the State Government its views on any
matter with which it is concerned;
(n) to see the schedules of new demands proposed to
be included in the budget relating to institutions
recognised by it and to submit if it thinks fit its views
thereon for the consideration of the State Government;
(o) to do all such other acts and things as may be
requisite in order to further the objects of the Board as
a body constituted for regulating and supervising
Madarsa-Education up to Fazil;
(p) to provide for research or training in any branch of
Madarsa-Education viz, Darul Uloom Nav Uloom,
Lucknow, Madarsa Babul lim, Mubarakpur, Azamgarh,
Darul Uloom Devband, Saharanpur, Oriental College
Rampur and any other institution which the State
Government may notify time to time.
(q) to constitute a committee at district level consisting
of not less than three members for education up to
Tahtania or Faukania standard, to delegate such
committee the power of giving recognition to the
educational institutions under its control.
(r) to take all such steps as may be necessary or
convenient for or as may be incidental to the exercise
of any power, or the performance or discharge of any
function or duty, conferred or imposed on it by this Act.”
Page 14 of 70
PART B
18. Section 10 pertains to the ‘Powers of the Board’. Sub-section (1) defines these
powers in general terms and stipulates that the Board shall have all such
powers as may be necessary for the performance of its functions and the
discharge of its duties under the Madarsa Act or the allied rules and regulations.
Sub-section (2) details specific powers of the Board, without prejudice to the
generality of the powers of the Board detailed in sub-section (1). These powers
inter alia include the power to cancel or withhold the result of an examination,
prescribe fees for the examinations conducted, refuse recognition of an
institution, call for reports from and inspect institutions to ensure compliance
with the prescribed rules and regulations and fix the maximum number of
students to be admitted to a course. Sub-section (3) clarifies that the decision
of the Board with regard to the matters dealt with in this provision shall be final.
Section 11 allows the Board, to recognize an institution “in any new subject or
group of subjects for a higher class”, with the prior approval of the State
government. Section 12 deals with the proper utilization of donations by the
institutions.
19. Section 13 details the ‘Power of the State Government’ to inter alia issue
directions and orders which are binding on the Board. Sub-section (1) states
that the State Government shall have the right to address and to communicate
its views to the Board on any matter with which it is concerned. Sub-section (2)
requires the Board to report to the State Government if any action has been
taken pursuant to the communications or proposals made by the State
Government. Sub-section (3) stipulates that in circumstances where the Board
does not act within a reasonable time to the satisfaction of the State
Page 15 of 70
PART B
Government, after considering the explanation or representation by the Board,
the State Government may issue necessary directions with which the Board
shall comply. Sub-section (4) states that in cases, where the State Government
is of the opinion that it is necessary or expedient to take immediate action, it
may, without making any reference to the Board, pass an order or take other
action consistent with the Act, including modifying, rescinding or making any
regulation. Sub-section (5) stipulates that such actions by the State
Government shall not be called into question in any court.
20. Section 14 deals with officers and other employees of the Board and provides
that they are appointed by the Board, with the prior approval of the State
Government. Sections 15 and 16 pertain to the powers and duties of the
Chairperson and Registrar of the Board, respectively, while Section 17 deals
with the appointment and constitution of committees and sub-committees.
21. Section 20 stipulates the power of the Board to make regulations.17 Sub-section
(1) provides this power in general terms and empowers the Board to make
regulations “for carrying out the purposes of the Act”. Sub-section (2) details
17
Section 20 reads: “20. (1) The Board may make regulations for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing powers, the Board may make
regulations providing for all or any of the following matters, namely:–
(a) constitution, power and duties of committees and sub-committees;
(b) the conferment of Degrees, Diplomas and Certificates;
(c) the conditions of recognition of institutions;
(d) the courses of study to be laid down for all Degrees, Diplomas and Certificates;
(e) the conditions under which candidates shall be admitted to the examinations and research programme of
the Board and shall be eligible for Degrees, Diplomas and Certificates;
(f) the fees for admission to the examination of the Board;
(g) the conduct of examination;
(h) the appointment of examiners, moderators, collators, scrutinisers, tabulators, Centre inspectors,
Superintendents of Centres and invigilators and their duties and powers in relation to the Board’s
examinations and the rates of their remuneration;
(i) the admission of institutions to the privilege of recognition and the withdrawal of recognition;
(j) all matters which are to be, or may, provided for by regulations.”
Page 16 of 70
PART B
particular matters for which the Board may make regulations, without prejudice
to the generality of its powers. This includes subjects such as inter alia the
conferment of degrees, diplomas and certificates, conditions for recognition of
institutions, the course of study, and the conduct of examinations. Section 21
mandates that these regulations shall be made with the prior approval of the
State Government and published in the Gazette. The State Government may
approve the regulations with or without modifications. Pursuant to these
provisions, the Board has framed the Uttar Pradesh Non-Governmental Arabic
and Persian Madarsa Recognition, Administration and Services Regulations,
2016, with the approval of the State Government. 18
22. Sections 22 to 26 deal with subjects such as the requirement of a ‘scheme of
administration’ for every institution; the procedure for appointment and
conditions of service of heads of institutions, teachers, and other employees;
casual vacancies; and the power of the Board and Committees to make by-
laws, respectively. Section 27 states that no suit, prosecution or legal
proceedings shall lie against the State Government, the Board or any of its
committees/sub-committees in respect of anything which is done in good faith
or under the Madarsa Act and its allied rules, regulations, by-laws, orders or
directions. Section 28 bars the jurisdiction of Courts and states that no order or
decision of the Board or its committees/sub-committees shall be called into
question in any court.
18
“2016 Regulations”
Page 17 of 70
PART B
23. Section 32 confers on the State Government the power to make rules for
carrying out the purposes of the Madarsa Act. 19
d. Steps taken by the State Government and the Board pursuant to the
Madarsa Act
24. The provisions of the Madarsa Act grant the Board and the State Government
wide-ranging powers to frame regulations, directions and rules and to regulate
education in the Madarsas. After the enactment of the Madarsa Act, both the
Board and the State Government have in fact taken various steps. Some of the
steps detailed below indicate that there is a marked shift by the State
Government and the Board towards including modern subjects in the curriculum
and adopting the established curriculum (such as the NCERT curriculum).
These steps are:
a. On 15 May 2018, the Board issued a circular with the stated aim of
“bringing educational upgradation in standardization and uniformity” in
the Madarsas. The circular states that it has been decided that for
education in the Madarsas in Mathematics, Science, English, Hindi,
Computer Science and Social Science, the curriculum will be based on
the available textbooks of NCERT. Subsequently, by a letter dated 30
May 2018, the State Government sent a copy of the Circular and directed
all the District Minority Welfare Officers to include the books prescribed
by the NCERT in the syllabus of Madarsa Education from the Academic
19
Section 32 reads: “32. The State Government may, by notification, make rules for carrying out the purposes
of this Act.”Page 18 of 70
PART BSession of 2018-19. The District Minority Welfare Officers were directed
to take steps to ensure that there are sufficient NCERT Books and to
apprise the Board if training is required for the teachers in the Madarsas
in the district;
b. Pursuant to Section 20, the Board has framed the 2016 Regulations with
the approval of the State Government. Two amendments were made to
the 2016 Regulations in 2017 and 2018, respectively. The latter amended
the provision which dealt with the medium of instruction in the Madarsas.
Originally, the Regulations provided that while all subjects could be
taught, the medium of education should be Urdu, Arabic and Persian.
However, the provision was amended to stipulate that while the medium
of instruction in “Deenayat and other Arabic, Persian subjects” shall
remain in Urdu, Arabic and Persian, the medium of instruction for “Maths,
Science, Social Science, Computer etc.” may be Urdu, Hindi or English,
as the case may be; 20 and
c. The functions of the Board under the Madarsa Act include prescribing the
course of instruction, textbooks and instructional material for courses at
various educational levels and classes. For this purpose, the Board has
held several meetings from time to time. The Minutes of one such
meeting dated 12 October 2021 have been placed on record before this
Court, which contains a discussion on the curriculum to be implemented
in Madarsas. It is noted in the Minutes of the Meeting that the Board has
20
Uttar Pradesh Non-governmental Arabic and Persian Madarsa Recognition, Administration and Services
(Second Amendment) Regulations, 2018Page 19 of 70
PART Bapproved the inclusion of Elementary Math and Elementary Science,
History and Civics as compulsory subjects from Class 1 to secondary
level in accordance with the NCERT curriculum.
e. Proceedings before the High Court and Impugned Judgment
25. In 2019, a Writ Petition was instituted before the High Court by an individual
appointed as a part-time assistant teacher in one of the Madarsas. 21 He sought
regularization of his services and salary at par with regular teachers, relying on
several provisions of the Madarsa Act and the allied Regulations. By an Order
dated 23 October 2019, a Single Judge of the High Court issued notice on the
Writ Petition and observed that certain questions related to the vires of the
Madarsa Act arose for consideration, which warranted consideration by a larger
bench. The Single Judge observed as follows:
“…
7. From perusal of the same, following questions arise
for consideration: –
(i) Since the Madarsa Board is constituted for
education in ‘Arabic, Urdu, Parsian, Islamic-studies,
Tibb Logic, Philosophy and includes such other
branches of learning as may be specified by the Board
from time to time’, how come persons of a particular
religion are provided to be member of the same? It
does not talks about exponence (sic) in the aforesaid
fields, for the purposes of which the Board is
constituted, but persons of specific religion. It was put
to learned Additional Chief Standing Counsel as to
whether the purpose of the Board is to impart religious
education only, to which he submits that a perusal of
the Madarsa Education Act, 2004 does not indicate so.
21
Writ A No. 29324 of 2019.
Page 20 of 70
PART B
(ii) With a secular constitution in India can persons of a
particular religion be appointed/nominated in a Board
for education purposes or it should be persons
belonging to any religion, who are exponent in the
fields for the purposes of which the Board is constituted
or such persons should be appointed, without any
regard to religion, who are exponent in the field for the
purposes of which the Board is constituted?
(iii) The Act further provides the Board to function under
the Minority Welfare Ministry of State of U.P., hence, a
question arises as to whether it is arbitrary for providing
the Madarsa education to be run under the Minority
Welfare Department while all the other education
institutions including those belonging to other
minorities communities like Jains, Sikhs, Christians etc
being run under the Education Ministry and whether it
arbitrarily denies the benefit of experts of education
and their policies to the children studying in Madarsa?
8. All these questions impacts the vires of the
Madarsa Act, 2004 and are important questions to
be decided before looking into the application of
the Madarsa Act, 2004 and the regulations framed
thereunder. Thus, I find it appropriate that the
matter may be placed before the Larger Bench for
decision on the aforesaid issue.
…”
(emphasis supplied)
26. Other similar Writ Petitions were also referred to a larger bench and the Chief
Justice of the High Court constituted a bench to hear the reference. During the
pendency of the reference, another Writ Petition was filed challenging the vires
of the Madarsa Act on the ground that it violates the principle of secularism and
Articles 14, 15 and 21-A of the Constitution. 22 A challenge was also mounted on
the constitutionality of Section 1(5) of the Right of Children to Free and
Compulsory Education Act, 2009 23, which inter alia states that the Act does not
22
Writ (C) No. 6049 of 2023 – Anshuman Singh Rathore versus Union of India and others.
23
“RTE Act”
Page 21 of 70
PART B
apply to Madarsas. 24 This petition was filed by an advocate practicing before
the High Court.
27. All these petitions were tagged together and placed before the Division Bench
of the High Court. By an Order dated 14 July 2023, the High Court appointed
three amici curiae to assist the Court. Several organizations, some of whom are
before this Court in the present proceedings, moved intervention applications
before the High Court. In the Impugned Judgement, the Division Bench
recorded the position of the State of Uttar Pradesh and the Madarsa Board, to
the effect that the Madarsas impart not only religious education but also
“religious instruction and teachings.” Accordingly, the reference was re-framed
by the High Court in the following terms:
“Whether the provisions of the Madarsa Act stand the
test of Secularism, which forms a part of the basic
structure of the Constitution of India.” 25
28. By a judgment dated 22 March 2024, the High Court rejected the preliminary
objections raised by some of the parties with respect to the locus standi of the
petitioner and the purported absence of adequate pleadings on the subject. On
the merits, the High Court held that the Madarsa Act violates the principle of
secularism and Articles 14, 21 and 21-A of the Constitution of India and is ultra
vires Section 22 of the UGC Act. According to the High Court, the object and
24
Section 1(5) reads: “(5) Nothing contained in this Act shall apply to Madrasas, Vedic Pathsalas and
educational institutions primarily imparting religious instruction.”
25
Para 9, Impugned Judgment.
Page 22 of 70
PART B
purpose of the Madarsa Act itself violated the principle of secularism, and thus,
it is not possible to segregate or save any portion of the legislation.
29. The High Court held that the Madarsa Act in its entirety was unconstitutional
and directed that the State Government take steps to accommodate all students
studying in the Madarsas in regular schools recognized under the Primary
Education Board and the High School and Intermediate Education Board of the
State of Uttar Pradesh. The State Government was directed to establish a
sufficient number of additional seats and new schools, if required for this
purpose and to ensure that no child between the ages of six and fourteen is left
without admission in a duly recognized institution.
f. Steps taken by the State Government and the proceedings before this
Court
30. In view of the Impugned Judgement, the Government of Uttar Pradesh took
steps to implement the directions. On 4 April 2024, a Government Order was
issued by the Chief Secretary, Government of Uttar Pradesh, with the following
directions:
a. Madarsas eligible to get recognition from the education boards, at the
state or central level, based on various parameters, can run primary or
secondary schools after getting recognized by the concerned education
boards; and
b. Madarsas which cannot get formal recognition because of “sub-
standard” facilities will be closed. Committees are to be set up at the
Page 23 of 70
PART Cdistrict level to ensure that the students studying in such Madarsas are
admitted to the schools run by the education department.26
31. Special leave petitions were instituted by the appellant(s) before this Court
assailing the correctness of the Impugned Judgement. On 5 April 2024, this
Court heard the counsel for the various parties and issued notice on the lead
petition. While staying the implementation of the Impugned Judgement, this
Court recorded the brief reasons for issuing the interim direction. Accordingly,
on 12 April 2024, in view of the stay on the Impugned Judgement, the above
Government Order issuing directions for implementation were withdrawn by the
State Government.
C. Submissions
32. Dr Abhishek Manu Singhvi, Mr Salman Khurshid, and Dr Menaka Guruswamy,
senior counsel assailed the Impugned Judgment and advanced the following
submissions:
a. The State legislature is empowered under Article 246 read with Entry 25 of
List III of the Seventh Schedule to enact legislation to regulate Madarsa
education. The Madarsa Act principally deals with the regulation of
Madarsas concerning curriculum, instruction, standard of education,
conduct of examination, and qualifications for teaching. The enactment of
laws for regulating secular activities of minority institutions or prescribing
standards of education is consistent with Articles 25 to 30;
26
G.O. No. 43/52-3-3034-2099/4/2024.
Page 24 of 70
PART Cb. In S R Bommai v. Union of India,27 it was held that secularism is a positive
concept of equal treatment of all religions. Articles 25 to 30 secure the rights
of religious and linguistic minorities, including their right to establish and
administer educational institutions. By recognizing and regulating the
Madarsa education, the State legislature is taking positive action to
safeguard the educational rights of the minorities;
c. Article 28 prohibits religious instructions in educational institutions wholly
maintained out of state funds. Madarsas impart education based on modern
curriculum such as Mathematics, Social Sciences, and Science.
Additionally, Madarsas impart education about religion and not “religious
instructions.” Article 28 does not bar the State from funding schools
providing religious education;
d. Article 21-A recognizes the fundamental right of children between the ages
of six to fourteen to free and compulsory education. Section 1(5) of the RTE
Act excludes Madarsas from the purview of the legislation. The law enacted
by the State in pursuance of Article 21-A cannot violate the fundamental
rights of minorities to establish and administer educational institutions; and
e. Striking down the Madarsa Act will create a legislative vacuum and result in
the deregulation of Madarsas. This will affect the future of more than twelve
lakh students studying across the Madarsas in UP. Further, the direction of
the High Court to relocate students studying in Madarsas to regular schools
will effectively shut down all Madarsas in the state and result in violation of
Article 30.
27
(1994) 2 SCR 644Page 25 of 70
PART C
33. Mr KM Natraj, Learned Additional Solicitor General, appeared for the State of
Uttar Pradesh. In its Counter Affidavit, the State of Uttar Pradesh states that it
had accepted the decision in the Impugned Judgement and taken steps to
implement it. However, it would comply with the final decision of this Court and
has accordingly, withdrawn the government order which sought to implement
the Impugned Judgement. Mr Nataraj contended that while some provisions of
the Madarsa Act may be unconstitutional, the High Court erred in striking down
the entire Madarsa Act without severing the invalid provisions from the rest of
the Madarsa Act.
34. Mr Guru Krishna Kumar, learned Senior Counsel made the following
submissions:
a. The Act does not make any provisions to impart secular subjects as part of
the curriculum and is a measure undertaken by the state to recognize and
regulate “religious instruction” traceable to a particular community;
b. Article 28 inter alia prohibits institutions which receive funds from the state
from imparting ‘religious instruction’. Thus, as a corollary, the state cannot
seek to regulate and thereby, recognize religious instruction;
c. The preamble which specifies that India is a “secular” republic, Article 21-
A, Article 25, Article 28, Article 30 and Article 41 all point to the “pervasive
principle” of secularism underlying the Constitution. This principle militates
against the state regulating religious instruction;
d. The striking down of the Act would only discontinue the functioning of the
Board and the consequent state recognition of religious instruction. The
Page 26 of 70
PART Ceducation provided in the Madarsas and their existence would continue to
be protected by Article 30;
e. The word “education” in Entry 25, List III of the Seventh Schedule must be
construed to mean “secular education” and cannot include “religious
instruction”. Thus, the state legislature only has the competence to enact a
law that regulates educational institutions, but no power to recognize and
regulate religious instruction; and
f. Entry 25, List III is subject to Entry 66 List I, which pertains to higher
education and standards. The Parliament has enacted the UGC Act under
Entry 66, List I. Section 22 of the UGC Act provides that no degrees can be
conferred by any institution other than the institutions defined under the
UGC Act. Thus, the provisions of the Madarsa Act which regulate higher
education, at the undergraduate, graduate and grant the Board power to
grant equivalent degrees are beyond the legislative competence of the state
legislature.
35. Ms Madhavi Divan, learned Senior Counsel, advanced the following
submissions:
a. The Madarsa Act deprives students enrolled in such institutions of the
benefits of mainstream, holistic, secular education, thereby violating Articles
21 and 21A;
b. The Madarsa Act divests students of equal opportunity in relation to future
employment opportunities (Articles 14, 15, 16) and the right to practice any
profession, occupation, trade or business of their choice (Article 19(1)(g). It
Page 27 of 70
PART C
creates two classes of children — the first, who receive secular, mainstream
education, and the second, who receive religious instruction, which
prohibits them from even attempting to adopt professions which are easily
available for the former class. This deprivation of choice also violates the
constitutional value of dignity and deprives students of the liberty of thought
and expression protected under Article 19;
c. The Madarsa Act violates the constitutional value of ‘fraternity’ as the
dissemination of Madarsa education creates intellectual and outlook
barriers, which prevent students from integrating into a pluralistic society;
d. The definition of “Madarsa Education” in Section 2(h) indicates that the
focus on “other branches of learning” is only tertiary. The focus of the statute
and the competence of the Board is restricted to religious instruction;
e. The Board is disproportionately populated by persons whose competence
is in the field of religious instruction. As decisions of the Board are taken by
a majority of members, present and voting, the views of the “non-secular”
members would prevail and the curriculum is likely to be skewed in favour
of religious education. The functions of the Board delineated in Section 9
also indicate disproportionate weightage to religious instruction; and
f. The qualifications for teachers in the Madarsas laid down in the regulations
are not adequate to ensure quality education. The qualifications are rooted
in the “same Madarsa echo chamber”, and the minimum requirements for
teaching in regular educational institutions are not prescribed.
Page 28 of 70
PART D
36. The National Commission for the Protection of Child Rights (NCPCR)
supported the arguments of the respondents and assailed the constitutional
validity of the Madarsa Act.
D. Secularism and regulation of minority educational institutions
37. The preamble to the Constitution enshrines the declaration to constitute India
into a sovereign, socialist, secular, democratic, republic. The 42nd Amendment
to the Constitution incorporated the expression ‘secular’ in the preamble.
However, the constitutional amendment merely made explicit what is implicit
according to the scheme of the Constitution. 28
a. Secularism in the constitutional context
38. Articles 14, 15, and 16 mandate the State to treat all people equally irrespective
of their religion, faith, or belief. 29 Article 14 provides that the State shall not deny
to any person equality before the law or equal protection of laws within the
territory of India. Article 15 provides that the State shall not discriminate against
any citizen on grounds only of religion, race, caste, sex, place of birth or any
of them. Article 16 mandates that there shall be equality of opportunity for all
citizens in matters relating to public employment or appointment to any office
under the State. Article 16(2) further provides that no citizen shall be
discriminated against in respect of any employment or office under the State on
28
S R Bommai, [304] Justice BP Jeevan Reddy (for himself and Justice Agrawal)
29
S R Bommai (supra) [304] (Justice BP Jeevan Reddy)
Page 29 of 70
PART D
the grounds of religion, race, caste, sex, descent, place of birth, residence, or
any of them.
39. Secularism is one of the facets of the right to equality. 30 The equality code
outlined in Articles 14, 15, and 16 is based on the principle that all persons,
irrespective of their religion, should have equal access to participate in society.
The State cannot give preference to persons belonging to a particular religion
in matters of public employment. As a corollary, the equality code prohibits the
State from mixing religion with any secular activity of the State. 31 However, the
Constitution recognizes that equal treatment of persons is illusionary unless the
State takes active steps in that regard. Therefore, the equality code imposes
certain positive obligations on the State to provide equal treatment to all
persons irrespective of their religion, faith, or beliefs. 32
30
Dr M Ismail Faruqui v. Union of India, (1994) 6 SCC 360 [37]
31
S R Bommai (supra) [148] Justice Sawant [“148. One thing which prominently emerges from the above
discussion on secularism under our Constitution is that whatever the attitude of the State towards the
religions, religious sects and denominations, religion cannot be mixed with any secular activity of the State.
In fact, the encroachment of religion into secular activities is strictly prohibited.”]
32
S R Bommai (supra) [304] (Justice B P Jeevan Reddy) [“148. […] Articles 14, 15 and 16 enjoin upon the
State to treat all its people equally irrespective of their religion, caste, faith or belief. While the citizens of this
country are free to profess, practice and propagate such religion, faith or belief as they choose, so far as the
State is concerned, i.e., from the point of view of the State, the religion, faith or belief of a person is immaterial.
To it, all are equal and all are entitled to be treated equally. How is this equal treatment possible, if the State
were to prefer or promote a particular religion, race or caste, which necessarily means a less favourable
treatment of all other religions, races and castes. How are the constitutional promises of social justice, liberty
of belief, faith or worship and equality of status and of opportunity to be attained unless the State eschews
the religion, faith or belief of a person from its consideration altogether while dealing with him, his rights, his
duties and his entitlements? Secularism is thus more than a passive attitude of religious tolerance. It is a
positive concept of equal treatment of all religions. This attitude is described by some as one of neutrality
towards religion or as one of benevolent neutrality. This may be a concept evolved by western liberal thought
or it may be, as some say, an abiding faith with the Indian people at all points of time.”]
Page 30 of 70
PART D
40. Articles 25 to 30 contain the other facet of secularism, that is, the practice of
religious tolerance by the State. 33 Article 25 provides that all persons are equally
entitled to freedom of conscience and the right to freely profess, practise, and
propagate religion subject to public order, morality, health, and other provisions
of Part III. The provision allows the State to make any law to regulate or restrict
any economic, financial, political or other secular activity associated with
religious practice. The Constitution distinguishes between religious and secular
activities, permitting the State to regulate the latter. 34
41. Article 26 guarantees every religious denomination the right to establish and
maintain institutions for religious and charitable purposes. It further guarantees
religious and charitable institutions the right to manage their own affairs in
matters of religion; own and acquire movable and immovable property; and
administer the property in accordance with law. The right of management given
to a religious body is a fundamental right that cannot be abridged by any
legislation. On the other hand, the State can regulate the administration of
property owned or acquired by a religious denomination through validly enacted
laws. 35
33
S R Bommai (supra) [183] Justice K Ramaswamy [“183. […] Constitution made demarcation between
religious part personal to the individual and secular part thereof. The State does not extend patronage to any
particular religion, State is neither pro particular religion nor anti particular religion. It stands aloof, in other
words maintains neutrality in matters of religion and provides equal protection to all religions subject to
regulation and actively acts on secular part.”]
34
Seshammal v. State of Tamil Nadu, (1972) 2 SCC 11 [19]; Bijoe Emmanuel v. State of Kerala, (1986) 3
SCC 615 [19]
35
Ratilal Panachand Gandhi v. State of Bombay, (1954) 1 SCC 487 [16] [“16. […] The language of the two
clauses (b) and (d) of Article 26 would at once bring out the difference between the two. In regard to affairs
in matters of religion, the right of management given to a religious body is a guaranteed fundamental right
which no legislation can take away. On the other hand, as regards administration of property which a religious
denomination is entitled to own and acquire, it has undoubtedly the right to administer such property but only
in accordance with law. This means that the State can regulate the administration of trust properties by means
of laws validly enacted; but here again it should be remembered that under Article 26(d), it is the religious
denomination itself which has been given the right to administer its property in accordance with any law which
Page 31 of 70
PART D
42. Article 27 provides that no person shall be compelled to pay any taxes, the
proceeds of which are specifically appropriated in payment of expenses for the
promotion or maintenance of any particular religion or religious denomination.
The rationale underlying Article 27 is that public funds should not be utilized for
the promotion or maintenance of any particular religion or religious
denomination. 36
43. Article 28 prohibits the imparting of “religious instruction” in any educational
institutions wholly maintained out of State funds. The provision further provides
that no person attending any educational institution recognised by the State or
receiving aid from the State funds should be compelled to take part in any
religious instruction without their consent. Religious instruction is the inculcation
of tenets, rituals, observances, ceremonies, and modes of worship of a
particular sect or denomination. 37 Article 28 does not prohibit educational
institutions maintained out of State funds from imparting religious education.
Religious education is imparted to children “to make them aware of thoughts
and philosophies in religions without indoctrinating them and without curbing
their free-thinking, right to make choices for conducting their own life and
deciding upon their course of action according to their individual inclinations.” 38
Article 28 does not prohibit educational institutions from teaching about the
philosophy and culture of a particular religion or a saint associated with that
the State may validly impose. A law, which takes away the right of administration altogether from the religious
denomination and vests it in any other or secular authority, would amount to violation of the right which is
guaranteed by Article 26(d) of the Constitution.”]
36
S R Bommai [304] (Justice BP Jeevan Reddy)
37
D A V College v. State of Punjab, (1971) 2 SCC 269 [26]
38
Aruna Roy v. Union of India, (2002) 7 SCC 368 [78] (Justice D M Dharmadhikari)
Page 32 of 70
PART D
religion. 39 Article 28 does not prohibit the State from granting recognition to
educational institutions imparting religious instruction in addition to secular
education. 40
44. Articles 29 and 30 deal with the cultural and educational rights of minorities.
Article 29(1) provides that Indian citizens have a right to conserve their distinct
language, script, or culture. Article 29(2) guarantees that no citizen shall be
denied admission into any educational institution maintained by the State or
receiving aid out of State funds on grounds only of religion, race, caste,
language or any of them. A citizen who has requisite academic qualifications
cannot be denied admission into any educational institution funded by the State
on grounds of religion. 41
45. Article 30 pertains to the right of minorities to establish and administer
educational institutions. It provides that all minorities, whether based on religion
or language, have the right to establish and administer educational institutions
of their choice. Article 30(2) enjoins the State not to discriminate against any
educational institution in granting aid on the ground that it is under the
management of a minority, whether based on religion or language. Article 30
confers a special right on religious and linguistic minorities to instill in them a
39
D A V College (supra) [26] [26. […] To provide for academic study of life and teaching or the philosophy
and culture of any great saint of India in relation to or the impact on the Indian and world civilizations cannot
be considered as making provision for religious instructions.”]
40
Ahmedabad St Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717 [139] (Justice K K Mathew
and Justice Y V Chandrachud) [“139. We fail to see how affiliation of an educational institution imparting
religious instruction in addition to secular education to pupils as visualized in Article 28(3) would derogate
from the secular character of the state. Our Constitution has not erected a rigid wall of separation between
church and state. We have grave doubts whether the expression “secular state” as it denotes a definite
pattern of church and state relationship can with propriety be applied to India. It is only in a qualified sense
that India can be said to be a secular state. There are provisions in the Constitution which make one hesitate
to characterize our state as secular.”]
41
See In re Kerala Education Bill 1957, 1958 SCC OnLine SC 8 [22]
Page 33 of 70
PART D
sense of security and confidence. 42 It secures equal treatment of majority and
minority institutions and preserves secularism 43 by allaying all apprehensions
of interference by the executive and legislature in matters of religion.44 The
constitutional scheme under Articles 25 to 30 distinguishes between the right of
an individual to practice religion and the secular part of religion, which is
amenable to State regulation. 45
b. Testing the validity of a statute for violation of the basic structure of the
Constitution
46. The provisions discussed in the above segment indicate that secularism is
embodied in the constitutional scheme, particularly Part III. In Kesavananda
Bharati v. State of Kerala, this Court held that Article 368 does not enable
Parliament to alter the basic structure or framework of the Constitution. 46 It was
held that the power of Parliament to amend the Constitution cannot have the
effect of destroying or abrogating the basic structure or framework of the
Constitution. 47 Further, the judges constituting the majority enumerated certain
42
T M A Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 [157]
43
Ahmedabad St Xavier’s College Society (supra) [9]; T M A Pai Foundation (supra) [138] [“138. As we look
at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their
right to establish and administer educational institutions of their choice. Secularism and equality being two of
the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities,
thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily
apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities
with regard to the establishment and administration of educational institutions vis-à-vis other educational
institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a
disadvantage when compared to the institutions run by the others will have to be struck down.”]
44
Ahmedabad St Xavier’s College Society (supra) [75] (Justice H R Khanna)
45
S R Bommai (supra) [183]
46
(1973) 4 SCC 225
47
Kesavananda Bharati (supra) [1426] (Justice H R Khanna) [“1426. […] The word “amendment” postulates
that the old Constitution survives without loss of its identity despite the change and continues even though it
has been subjected to alterations. As a result of the amendment, the old Constitution cannot be destroyed
and done away with; it is regained though in the amended form. What then is meant by the retention of the
old Constitution? It means the retention of the basic structure or framework of the old Constitution. A mere
retention of some provisions of the old Constitution even though the basic structure or framework of the
Constitution has been destroyed would not amount to the retention of the old Constitution. Although it is
Page 34 of 70
PART D
basic features of our Constitution, including the secular character of the
Constitution. 48 In S R Bommai v. Union of India,49 a nine-Judge Bench held
that secularism is a basic feature of the Constitution. The issue that arises for
our consideration is whether the basic structure doctrine can be applied to
invalidate ordinary legislation.
47. The Constitution imposes certain limitations on the legislative powers of
Parliament and the State legislatures. Article 13(2) provides that the State shall
not make any law that takes away or abridges the rights conferred by Part III.
Statutes enacted by the State legislatures must be consistent with the
fundamental rights enumerated under Part III of the Constitution. Further, Article
246 defines the scope and limitations of the legislative competence of
Parliament and State legislatures. A statute can be declared ultra vires on two
grounds alone: (i) it is beyond the ambit of the legislative competence of the
legislature; or (ii) it violates Part III or any other provision of the Constitution.50
48. In Indira Nehru Gandhi v. Raj Narain, 51 the Allahabad High Court disqualified
the then Prime Minister for indulging in corrupt practices according to the
Representation of the People Act, 1951. To nullify the decision of the High
permissible under the power of amendment to effect changes, howsoever important, and to adapt the system
to the requirements of changing conditions, it is not permissible to touch the foundation or to alter the basic
institutional pattern. The words “amendment of the Constitution” with all their wide sweep and amplitude
cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution.”]
48
Kesavananda Bharati (supra) [292] (Chief Justice Sikri); [487] (Justice Shelat and Grover); [1426] (Justice
H R Khanna).
49
(1994) 3 SCC 1; [29] (Justice AM Ahmadi); [151] (Justice P B Sawant (for himself and Justice Kuldip
Singh)); [182] (Justice K Ramaswamy); [304] (Justice B P Jeevan Reddy (for himself and Justice S C
Agrawal))
50
State of A P v. McDowell & Co., (1996) 3 SCC 709 [43] [“43. […] The power of Parliament or for that matter,
the State Legislatures is restricted in two ways. A law made by Parliament or the legislature can be struck
down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2)
violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other
constitutional provision.”]; State of Kerala v. Peoples Union for Civil Liberties, (2009) 8 SCC 46 [45]
51
1975 Supp SCC 1
Page 35 of 70
PART D
Court, Parliament enacted the Representation of the People (Amendment) Act
1974 and Election Laws (Amendment) Act 1975 and placed them under the
Ninth Schedule of the Constitution. The issue before this Court was whether the
amendments violated the basic structure of the Constitution.
49. Chief Justice A N Ray held that the constitutional validity of a statute depends
entirely on the existence of the legislative power and the express provision in
Article 13. Since the legislation is not subject to any other constitutional
limitation, applying the basic structure doctrine to test the validity of a statute
will amount to “rewriting the Constitution.” 52 The learned Judge further observed
that application of the undefinable theory of basic structure to test the validity of
a statute would denude legislatures of the power of legislation and deprive them
of laying down legislative policies. 53 Justice K K Mathew similarly observed that
the concept of a basic structure is “too vague and indefinite to provide a
yardstick to determine the validity of an ordinary law.”54 Justice Y V
Chandrachud (as the learned Chief Justice then was) observed that
constitutional amendment and ordinary laws operate in different fields and are
subject to different limitations. 55
52
Indira Nehru Gandhi (supra) [134] and [137]
53
Indira Nehru Gandhi (supra) [136] [“136. The theory of basic structures or basic features is an exercise in
imponderables. Basic structures or basic features are indefinable. The legislative entries are the fields of
legislation. The pith and substance doctrine has been applied in order to find out legislative competency, and
eliminate encroachment on legislative entries. If the theory of basic structures or basic features will be applied
to legislative measures it will denude Parliament and State Legislatures of the power of legislation and
deprive them of laying down legislative policies. This will be encroachment on the separation of powers.”]
54
Indira Nehru Gandhi (supra) [357]
55
Indira Nehru Gandhi (supra) [691] and [692]. [“691 […] The constitutional amendments may, on the ratio
of the Fundamental Rights case, be tested on the anvil of basic structure. But apart from the principle that a
case is only an authority for what it decides, it does not logically follow from the majority judgment in
the Fundamental Rights case that ordinary legislation must also answer the same test as a constitutional
amendment. Ordinary laws have to answer two tests for their validity: (1) The law must be within the
legislative competence of the legislature as defined and specified in Chapter I, Part XI of the Constitution,
and (2) it must not offend against the provisions of Article 13(1) and (2) of the Constitution. “Basic structure”,
Page 36 of 70
PART D
50. The majority in Indira Nehru Gandhi (supra) held that the constitutional validity
of a statute cannot be challenged for the violation of the basic structure doctrine.
However, Justice M H Beg (as the learned Chief Justice then was) dissented
with the majority view by observing that the basic structure test can be used to
test the validity of statutes because statutes cannot go beyond the range of
constituent power. 56
51. In State of Karnataka v. Union of India,57 Justice N L Untwalia (writing for
himself, Justice P N Shingal, and Justice Jaswant Singh) reiterated that the
validity of a statute cannot be tested for violation of the basic structure of the
Constitution. Justice Y V Chandrachud (as the learned Chief Justice then was)
also observed that a statute cannot be invalidated on supposed grounds so
long as it is within the legislative competence of the legislature and consistent
with Part III of the Constitution. 58 However, Chief Justice M H Beg observed
that testing a statute for violation of basic structure does not “add to the contents
of the Constitution.” 59 He held that any inference about a limitation based on
the basic structure doctrine upon legislative power must co-relate to the express
provisions of the Constitution. 60
by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution.
The theory of basic structure is woven out of the conspectus of the Constitution and the amending power is
subjected to it because it is a constituent power. “The power to amend the fundamental instrument cannot
carry with it the power to destroy its essential features — this, in brief, is the arch of the theory of basic
structure. It is wholly out of place in matters relating to the validity of ordinary laws made under the
Constitution.]
56
Indira Nehru Gandhi (supra) [622]
57
(1977) 4 SCC 608 [238]
58
State of Karnataka (supra) [197]
59
State of Karnataka (supra) [128]
60
State of Karnataka (supra) [123]
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PART D
52. In Kuldip Nayar v. Union of India,61 a Constitution Bench held that ordinary
legislation cannot be challenged for the violation of the basic structure of the
Constitution. Statutes, including State legislation, can only be challenged for
violating the provisions of the Constitution. 62 However, in Madras Bar
Association v. Union of India,63 a Constitution Bench applied the basic
structure doctrine to test the validity of Parliamentary legislation seeking to
transfer judicial power from High Courts to tribunals. Justice J S Khehar (as the
learned Chief Justice then was), writing for the Constitution Bench, held that
the basic structure of the Constitution will stand violated if Parliament does not
ensure that the newly created tribunals do not “conform with the salient
characteristics and standards of the court sought to be substituted.” 64
53. In Supreme Court Advocates-on-Record Association v. Union of India,65
this Court had to decide the constitutional validity of the Constitution (Ninety-
ninth Amendment) Act 2014 and the National Judicial Appointments
Commission Act 2014. Justice J S Khehar (as the learned Chief Justice then
was) built upon his reasoning in Madras Bar Association (supra) by observing
61
(2006) 7 SCC 1 [“107. The basic structure theory imposes limitation on the power of Parliament to amend
the Constitution. An amendment to the Constitution under Article 368 could be challenged on the ground of
violation of the basic structure of the Constitution. An ordinary legislation cannot be so challenged. The
challenge to a law made, within its legislative competence, by Parliament on the ground of violation of the
basic structure of the Constitution is thus not available to the petitioners.”]
62
Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 [116]
63
Madras Bar Association v. Union of India, (2014) 10 SCC 1 [109] [“This Court has repeatedly held that an
amendment to the provisions of the Constitution would not be sustainable if it violated the “basic structure”
of the Constitution, even though the amendment had been carried out by following the procedure
contemplated under “Part XI” of the Constitution. This leads to the determination that the “basic structure” is
inviolable. In our view, the same would apply to all other legislations (other than amendments to the
Constitution) as well, even though the legislation had been enacted by following the prescribed procedure,
and was within the domain of the enacting legislature, any infringement to the “basic structure” would be
unacceptable.”]
64
Madras Bar Association (supra) [136]. [“136. (iii) The “basic structure” of the Constitution will stand violated
if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure that the newly
created court/tribunal conforms with the salient characteristics and standards of the court sought to be
substituted.”]
65
(2016) 5 SCC 1
Page 38 of 70
PART D
that a challenge to ordinary legislation for violation of the basic structure would
only be a “technical flaw” and “cannot be treated to suffer from a legal
infirmity.” 66 He observed that the determination of the basic structure of the
Constitution is made exclusively from the provisions of the Constitution. The
observations of the learned Judge are instructive and extracted below:
“381. […] when a challenge is raised to a legislative
enactment based on the cumulative effect of a
number of articles of the Constitution, it is not always
necessary to refer to each of the articles concerned
when a cumulative effect of the said articles has
already been determined as constituting one of the
“basic features” of the Constitution. Reference to the
“basic structure” while dealing with an ordinary
legislation would obviate the necessity of recording
the same conclusion which has already been
scripted while interpreting the article(s) under
reference harmoniously. We would therefore
reiterate that the “basic structure” of the Constitution
is inviolable and as such the Constitution cannot be
amended so as to negate any “basic features”
thereof, and so also, if a challenge is raised to an
ordinary legislation based on one of the “basic
features” of the Constitution, it would be valid to do
so. If such a challenge is accepted on the ground of
violation of the “basic structure”, it would mean that
the bunch of articles of the Constitution (including
the Preamble thereof, wherever relevant), which
constitute the particular “basic feature”, had been
violated. We must however credit the contention of
the learned Attorney General by accepting that it
would be technically sound to refer to the articles
which are violated, when an ordinary legislation is
sought to be struck down as being ultra vires the
provisions of the Constitution.”66
Supreme Court Advocates-on-Record Association (supra) [381]Page 39 of 70
PART D
54. However, Justice Lokur differed with Justice Khehar on the issue of testing the
validity of a statute for violation of the basic structure doctrine. Justice Lokur
followed the view of the majority in the State of Karnataka (supra) 67 that a
statute cannot be challenged for violating the basic structure doctrine.
55. From the above discussion, it can be concluded that a statute can be struck
down only for the violation of Part III or any other provision of the Constitution
or for being without legislative competence. The constitutional validity of a
statute cannot be challenged for the violation of the basic structure of the
Constitution. The reason is that concepts such as democracy, federalism, and
secularism are undefined concepts. Allowing courts to strike down legislation
for violation of such concepts will introduce an element of uncertainty in our
constitutional adjudication. Recently, this Court has accepted that a challenge
to the constitutional validity of a statute for violation of the basic structure is a
technical aspect because the infraction has to be traced to the express
provisions of the Constitution. Hence, in a challenge to the validity of a statute
for violation of the principle of secularism, it must be shown that the statute
violates provisions of the Constitution pertaining to secularism.
67
Supreme Court Advocates-on-Record Association (supra) [795] [“795. For the purposes of the present
discussion, I would prefer to follow the view expressed by a Bench of seven learned Judges in State of
Karnataka v. Union of India [State of Karnataka v. Union of India, (1977) 4 SCC 608 (Seven-Judge Bench)]
that it is only an amendment of the Constitution that can be challenged on the ground that it violates the basic
structure of the Constitution—a statute cannot be challenged on the ground that it violates the basic structure
of the Constitution. [The only exception to this perhaps could be a statute placed in the Ninth Schedule of
the Constitution.] The principles for challenging the constitutionality of a statute are quite different.”]
Page 40 of 70
PART D
c. Regulation of minority educational institutions
56. The right of minorities to administer educational institutions includes the right to
manage the affairs of the institution in accordance with the ideas and interests
of the community in general and the institution in particular.68 The right to
administer minority educational institutions encompasses: (i) the right to
constitute the managing or governing body; (ii) the right to appoint teachers; (iii)
the right to admit students subject to reasonable regulations; and (iv) the right
to use property and assets for the benefit of the institution. 69 However, the right
to administer minority educational institutions is not absolute. The right to
administer educational institutions implies an obligation and duty of minority
institutions to provide a standard of education to the students.70 The right to
administer is, it is trite law, not the right to maladminister.
57. In re Kerala Education Bill 1957, 71 this Court classified minority educational
institutions into three categories: (i) those which do not seek either aid or
recognition from the State; (ii) those which want aid; and (iii) those which want
only recognition but not aid. The first category of institutions is protected by
68
State of Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417 [9].
69
Ahmedabad St Xavier’s College Society (supra) [19] (Chief Justice A N Ray) [“19. […] The right to
administer is said to consist of four principal matters. First is the right to choose its managing or governing
body. It is said that the founders of the minority institution have faith and confidence in their own committee
or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that
minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution.
Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions
want to have the right to admit students of their choice subject to reasonable regulations about academic
qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.”]
70
Ahmedabad St Xavier’s College Society (supra) [30] [“30. […] The minority institutions have the right to
administer institutions. This right implies the obligation and duty of the minority institutions to render the very
best to the students. In the right of administration, checks and balances in the shape of regulatory measures
are required to ensure the appointment of good teachers and their conditions of service. The right to
administer is to be tempered with regulatory measures to facilitate smooth administration.”]
71
1958 SCC OnLine SC 8 [23]
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PART D
Article 30(1). 72 As regards the second and third categories, Chief Justice S R
Das observed that the “minority cannot surely ask for aid or recognition for an
educational institution run by them in unhealthy surroundings, without any
competent teachers, possessing any semblance of qualification, and which
does not maintain even a fair standard of teaching or which teaches matters
subversive of the welfare of the scholars.”73
58. The State has an interest in ensuring that minority educational institutions
provide standards of education similar to other educational institutions.74 The
State can enact regulatory measures to promote efficiency and excellence of
educational standards. 75 Regulations about standards of education do not
directly bear upon the management of minority institutions.76 The State can
regulate aspects of the standards of education such as the course of study, the
qualification and appointment of teachers, the health and hygiene of students,
and facilities for libraries. 77
59. The State may impose regulation as a condition for grant of aid or recognition.
Such regulation must satisfy the following three tests: (i) it must be reasonable
and rational; (ii) it must be conducive to making the institution an effective
vehicle of education for the minority community or other persons who resort to
it; and (iii) it must be directed towards maintaining the excellence of education
72
In re Kerala Education Bill (supra) [24]
73
In re Kerala Education Bill (supra) [31]
74
Very Rev Mother Provincial (supra) [10]
75
All Saints High School v. Government of AP, (1980) 2 SCC 478 [63]; Dayanand Anglo Vedic (DAV) College
Trust and Management Society v. State of Maharashtra, (2013) 4 SCC 14 [32]
76
Ahmedabad St Xavier’s College Society (supra) [90]
77
Very Rev Mother Provincial (supra) [10]; St Xavier’s College (supra) [18]
Page 42 of 70
PART D
and efficiency of administration to prevent it from falling standards.78 To
determine the issue of the reasonableness of a regulation, the court has to
determine whether the regulation is calculated to subserve or will in effect
subserve the purpose of recognition or affiliation. 79
60. In P A Inamdar v. State of Maharashtra, this Court held that the considerations
for granting recognition to a minority educational institution are subject to two
overriding conditions: (i) the recognition is not denied solely on the ground of
the educational institution being one belonging to minority; and (ii) the
regulation is neither aimed at nor has the effect of depriving the institution of its
minority status. 80
61. In Ahmedabad St Xavier’s College Society v. State of Gujarat, 81 the issue
before a Bench of nine Judges was whether religious and linguistic minorities
who have the right to establish and administer educational institutions of their
choice have a fundamental right to affiliation or recognition. Chief Justice A N
Ray held that minority educational institutions have no fundamental right to
recognition. The learned Chief Justice observed that the primary purpose of
recognition is to ensure that students reading in minority educational institutions
have “qualifications in the shape of degrees necessary for a useful career in
life.” 82 He further observed that a minority educational institution seeking
affiliation must follow the statutory educational standards and efficiency, the
78
Sidhrajbhai Sabbai v. State of Gujarat, 1962 SCC OnLine SC 150 [15]; P A Inamdar v. State of Maharashtra,
(2005) 6 SCC 537 [94], [122]
79
Ahmedabad St. Xavier’s College Society (supra) [176] (Justice KK Mathew and Justice Y V Chandrachud)
80
P A Inamdar (supra) [103]
81
(1974) 1 SCC 717
82
Ahmedabad St. Xavier’s College Society (supra) [14]
Page 43 of 70
PART D
prescribed courses of study, courses of instruction, qualification of teachers,
and educational qualifications for entry of students. 83 However, the learned
Chief Justice held that a law providing for recognition should not result in
abridgement of the right of linguistic and religious minorities to administer and
establish educational institutions of their choice under Article 30(1).84
62. Justice K K Mathew (writing for himself and Justice Y V Chandrachud), in his
concurring opinion stated that the principle of juridical equality ensures the “co-
existence of several types of schools and colleges including affiliated colleges”
with proportionate equal encouragement and support from the State.85 The
learned judge further held that the State’s interest in the education of religious
minorities would be served if minority educational institutions impart secular
education accompanied by religious education. He also observed:
“145. The State’s interest in secular education may
be defined broadly as an interest in ensuring that
children within its boundaries acquire a minimum
level of competency in skills, as well as a minimum
amount of information and knowledge in certain
subjects. Without such skill and knowledge, an
individual will be at a severe disadvantage both in
participating in democratic self-Government and in
earning a living. No one can question the
constitutional right of parents to satisfy their State-
imposed obligation to educate their children by
sending them to schools or colleges established and
administered by their own religious minority so long
as these schools and colleges meet the standards
established for secular education.”83
Ahmedabad St. Xavier’s College Society (supra) [16]
84
Ahmedabad St. Xavier’s College Society (supra) [14]
85
Ahmedabad St. Xavier’s College Society (supra) [144]Page 44 of 70
PART DThe State has an interest in maintaining the standards of education in minority
educational institutions. Affiliation or recognition of minority educational
institutions by the Government secures the academic interests of students
studying in such institutions to pursue higher education. 86
d. The Madarsa Act is a regulatory legislation
63. The Statement of Objects and Reasons of the Madarsa Act indicates that it is
enacted to remove difficulties in running Madarsas and improve the merit of
students studying in Madarsas by making available to them facilities of study of
the requisite standard. Section 3 provides for the constitution of the Board. The
Board comprises persons who are related to or know about education in
Madarsas. The Board has been statutorily empowered to: (i) prescribe courses
of instruction and text-books for courses; (ii) grant degrees, diplomas,
certificates and other academic distinctions; (iii) conduct examinations; (iv)
recognise institutions for examination; (v) admit candidates for examinations;
86
In re Kerala Education Bill 1957 (supra) [32] [“32. […] The minorities evidently desire that education should
be imparted to the children of their community in an atmosphere congenial to the growth of their culture. Our
Constitution makers recognised the validity of their claim and to allay their fears conferred on them the
fundamental rights referred to above. But the conservation of the distinct language, script or culture is not
the only object of choice of the minority communities. They also desire that scholars of their educational
institutions should go out in the world well and sufficiently equipped with the qualifications necessary for a
useful career in life. But according to the Education Code now in operation to which it is permissible to refer
for ascertaining the effect of the impugned provisions on existing state of affairs, the scholars of unrecognised
schools are not permitted to avail themselves of the opportunities for higher education in the university and
are not eligible for entering the public services. Without recognition, therefore, the educational institutions
established or to be established by the minority communities cannot fulfil the real objects of their choice and
the rights under Article 30(1) cannot be effectively exercised. The right to establish educational institutions of
their choice must, therefore, mean the right to establish real institutions which will effectively serve the needs
of their community and the scholars who resort to their educational institutions. There is, no doubt, no such
thing as fundamental right to recognition by the State but to deny recognition to the educational institutions
except upon terms tantamount to the surrender of their constitutional right of administration of the educational
institutions of their choice is in truth and in effect to deprive them of their rights under Article 30(1).”]; Milli
Talimi Mission v. State of Bihar, (1984) 4 SCC 500 [4]
Page 45 of 70
PART D
(vi) publish the results of the examination; and (vii) to provide for research and
training in any branch of Madarsa education.
64. Section 10 empowers the Board to: (i) cancel an examination or withhold the
result of an examination; (ii) prescribe fees for conducting examinations; (iii)
refuse recognition to institutions that do not fulfil the standards of staff,
instructions, equipment, or buildings laid down by the Board; (iv) withdraw
recognition to an institution not able to adhere to the standards of staff,
instructions, equipment, or buildings laid down by the Board; and (v) inspect an
institution to ensure due observance of the prescribed courses of study and
facilities for instruction.
65. The legislative scheme of the Madarsa Act suggests that it has been enacted
to regulate the standard of education in Madarsas recognized by the Board for
imparting Madarsa education. The Madarsa Act grants recognition to Madarsas
to enable students to sit for an examination and obtain a degree, diploma, or
certificate conferred by the Board. The statute envisages granting recognition
to Madarsas which fulfil the prescribed standards for staff, instructions,
equipment and buildings. The grant of recognition imposes a responsibility on
the Madarsas to attain certain standards of education laid down by the Board.
Access to quality teachers, course materials, and equipment will allow Madarsa
students to achieve stipulated educational and professional standards. 87
87
Frank Anthony Public School Employees’ Association v. Union of India, (1986) 4 SCC 707 [16] [“16. The
excellence of the instruction provided by an institution would depend directly on the excellence of the teaching
staff, and in turn, that would depend on the quality and the contentment of the teachers. Conditions of service
pertaining to minimum qualifications of teachers, their salaries, allowances and other conditions of service
which ensure security, contentment and decent living standards to teachers and which will consequently
enable them to render better service to the institution and the pupils cannot surely be said to be violative of
the fundamental right guaranteed by Article 30(1) of the Constitution.”]
Page 46 of 70
PART D
Failure of the Madarsas to maintain the standards of education will result in the
withdrawal of their recognition.
66. In Bihar State Madarasa Education Board v. Madarasa Hanfia Arabic
College,88 the State legislature enacted the Bihar State Madarasa Education
Board Act 1982 to constitute an autonomous State Madarasa Education Board
to grant recognition, aid, and to supervise and control the academic efficiency
in the Madarsas aided and recognized by it. Section 7(2)(n) of the legislation
empowered the Board to dissolve the managing committee of a Madarsa for
non-compliance with its directions. The issue before this Court was whether the
provision was violative of Article 30(1) of the Constitution. This Court observed
that the State has the power to regulate the administration of minority
educational institutions in the interests of educational needs and discipline of
the institution. However, it was observed that the State has no power to frame
rules to completely take over the management of such institutions by
superseding or dissolving their management. Hence, Section 7(2)(n) was
declared invalid for violating Article 30(1).
67. The other issue before this Court was whether a statutory Board established
for recognition of minority educational institutions must only comprise of
persons belonging to the minority community. It was held that there is no
constitutional obligation that such a Board must exclusively consist of members
belonging to the minority community. It was observed:
“7. […] Article 30(1) does not contemplate that an
autonomous Educational Board entrusted with the88
(1990) 1 SCC 428Page 47 of 70
PART Dduty of regulating the aided and recognised
minorities institution, should be constituted only by
persons belonging to minority community. Article
30(1) protects the minorities’ right to manage and
administer institutions established by them
according to their choice, but while seeking aid and
recognition for their institutions there is no
constitutional obligation that the Board granting aid
or recognition or regulating efficiency in minority
institution should consist of members exclusively
belonging to minority communities. In the instant
case the constitution of the Board under Section 3 of
the Act ensures that its members are only those who
are interested in teaching and research of Persian,
Arabic and Islamic studies. This provision fully
safeguards the interest of Madarasa of the Muslim
community.”
68. The Madarsa Act allows the Board to prescribe curriculum and textbooks,
conduct examinations, qualifications of teachers, and standards of equipment
and buildings geared to ensure the maintenance of standards of education in
Madarsas. The provisions of the Madarsa Act are reasonable because they
subserve the object of recognition, that is, improving the academic excellence
of students in the recognised Madarsas and making them capable to sit for
examinations conducted by the Board. The statute also enables the students
studying in the recognised Madarsas to pursue fields of higher education and
seek employment.
69. Regulations pertaining to standards of education or qualification of teachers do
not directly interfere with the administration of the recognized Madarsas. Such
regulations are “designed to prevent maladministration of an educational
institution”. 89 The Madarsa Act does not directly interfere with the day-to-day
89
Ahmedabad St Xavier’s College Society (supra) [92]
Page 48 of 70
PART D
administration of the recognized Madarsas. 90 Further, the provisions of the
Madarsa Act are “conducive to making the institution an effective vehicle of
education for minority community” without depriving the educational institutions
of their minority character.
70. Fundamental rights consist of both negative and positive postulates. They
require the State to restrain its exercise of power and create conducive
conditions for the exercise of rights. 91 The essence of Article 30(1) is the
recognition and preservation of different types of people, with diverse
languages and different beliefs, while maintaining the basic principle of equality
and secularism.92 In the spirit of positive secularism, Article 30 confers special
rights on religious and linguistic minorities “because of their numerical handicap
and to instil in them a sense of security and confidence”. 93 The positive concept
of secularism requires the State to take active steps to treat minority institutions
on par with secular institutions while allowing them to retain their minority
character. Positive secularism allows the State to treat some persons differently
to treat all persons equally. 94 The concept of positive secularism finds
consonance in the principle of substantive equality.
90
P A Inamdar (supra) [121] [“121. […] the urge or need for affiliation or recognition brings in the concept of
regulation by way of laying down conditions consistent with the requirement of ensuring merit, excellence of
education and preventing maladministration. For example, provisions can be made indicating the quality of
the teachers by prescribing the minimum qualifications that they must possess and the courses of studies
and curricula. The existence of infrastructure sufficient for its growth can be stipulated as a prerequisite to
the grant of recognition or affiliation. However, there cannot be interference in the day-to-day administration.
The essential ingredients of the management, including admission of students, recruiting of staff and the
quantum of fee to be charged, cannot be regulated.”]
91
Supriyo v. Union of India, 2023 SCC OnLine SC 1348 [158]
92
T M A Pai Foundation (supra) [160-161]
93
T M A Pai Foundation (supra) [157]
94
St Stephens College v. University of Delhi, (1992) 1 SCC 558 [97] [“97. The Constitution establishes
secular democracy. The animating principle of any democracy is the equality of the people. But the idea that
all people are equal is profoundly speculative. It is well said that in order to treat some persons equally, we
must treat them differently. We have to recognise a fair degree of discrimination in favour of minorities. But it
Page 49 of 70
PART D
71. In Joseph Shine v. Union of India,95 one of us (Justice D Y Chandrachud) held
that the notion of formal equality is contrary to the constitutional vision of a just
social order. On the contrary, substantive equality is aimed at producing equality
of outcomes through different modes of affirmative actions or state support. 96
Substantive equality is directed at eliminating individual, institutional and
systemic discrimination against disadvantaged groups which effectively
undermines their full and equal social, economic, political, and cultural
participation in society. 97 Enactment of special provisions or giving preferential
treatment by the State allows the disadvantaged individual or community to
overcome social and economic barriers and participate in society on equal
terms. 98
72. The Madarsa Act secures the interests of the minority community in Uttar
Pradesh because: (i) it regulates the standard of education imparted by the
recognised Madarsas; and (ii) it conducts examinations and confers certificates
to students, allowing them the opportunity to pursue higher education. The
Madarsa Act is consistent with the positive obligation of the State to ensure that
students studying in the recognised Madarsas attain a minimum level of
competency which will allow them to effectively participate in society and earn
is impossible to have an affirmative action for religious minorities in religious neutral way. In order to get
beyond religion, we cannot ignore religion. We must first take account of religion. It is exactly in the spirit of
these considerations that this Court in its advisory opinion in Kerala Education Bill case [1959 SCR 995 : AIR
1958 SC 956] recognised a fair degree of discrimination in favour of religious minorities. In this respect the
Court seems to have acted on the same principle which is applied to socially and educationally backward
classes, that is the principle of protective discrimination.”]
95
(2019) 3 SCC 39
96
Ravinder Kumar Dhariwal v. Union of India, (2023) 2 SCC 209 [37]
97
Joseph Shine (supra) [171]
98
Neil Aurelio Nunes v. Union of India, (2022) 4 SCC 1 [33]
Page 50 of 70
PART D
a living. 99 Therefore, the Madarsa Act furthers substantive equality for the
minority community.
73. The High Court erred in holding that a statute is bound to be struck down if it is
violative of the basic structure. Invalidation of a statute on the grounds of
violation of secularism has to be traced to express provisions of the
Constitution. Further, the fact that the State legislature has established a Board
to recognise and regulate Madarsa education is not violative of Article 14. The
Madarsa Act furthers substantive equality.
e. Interplay of Article 21-A and Article 30
74. Article 21-A provides that the State shall provide free and compulsory education
to all children of the age of six to fourteen years in such manner as the State
may, by law, determine. It imposes a constitutional obligation on the State to
impart elementary and basic education. Parliament enacted the RTE Act to
provide full-time elementary education of satisfactory and equitable quality to
every child in pursuance of Article 21-A. The RTE Act seeks to provide a “quality
education without any discrimination on economic, social, and cultural
grounds.” 100 Section 3 makes the right of children to free and compulsory
education justiciable. 101
99
Ahmedabad St Xavier’s College Society (supra) [145] (Justice K K Mathew and Justice Y V Chandrachud)
100
State of Tamil Nadu v. K Shyam Sunder, (2011) 8 SCC 737 [21]; Bharatiya Seva Samaj Trust v. Yogeshbhai
Ambalal Patel, (2012) 9 SCC 310 [26]
101
Section 3, RTE Act
Page 51 of 70
PART D
75. In Society for Unaided Private Schools of Rajasthan v. Union of India, 102 a
three-Judge Bench of this Court upheld the constitutional validity of the RTE
Act. It further held that the statute applies to an aided school including a minority
school receiving aid or grant to meet whole or part of its expenses from the
appropriate Government or local authority. Subsequently, Parliament amended
the RTE Act to exempt its application to Madarsas, vedic pathsalas and
educational institutions primarily imparting religious instruction. 103
76. In Pramati Educational and Cultural Trust v. Union of India,104 a Constitution
Bench had to determine the constitutional validity of Article 21-A. One of the
issues before this Court was whether Article 21-A conflicts with Article 30. This
Court held that the law enacted by Parliament under Article 21-A cannot
abrogate the right of minorities to establish and administer schools of their
choice. It held that application of the RTE Act to minority educational institutions,
whether aided or unaided, “may destroy the minority character of the school.”105
102
(2012) 6 SCC 1 [64]
103
Section 1(4) and (5), RTE Act. [It reads:
“[(4) Subject to the provisions of Articles 29 and 30 of the Constitution, the provisions of this Act shall apply
to conferment of rights on children to free and compulsory education.
(5) Nothing contained in this Act shall apply to Madrasas, Vedic Pathsalas and educational institutions
primarily imparting religious instruction.”]
104
(2014) 8 SCC 1
105
Pramati Educational and Cultural Trust (supra) [55] [“55. When we look at the 2009 Act, we find that
Section 12(1)(b) read with Section 2(n)(ii) provides that an aided school receiving aid and grants, whole or
part, of its expenses from the appropriate Government or the local authority has to provide free and
compulsory education to such proportion of children admitted therein as its annual recurring aid or grants so
received bears to its annual recurring expenses, subject to a minimum of twenty-five per cent. Thus, a
minority aided school is put under a legal obligation to provide free and compulsory elementary education to
children who need not be children of members of the minority community which has established the school.
We also find that under Section 12(1)(c) read with Section 2(n)(iv), an unaided school has to admit into
twenty-five per cent of the strength of Class I children belonging to weaker sections and disadvantaged
groups in the neighbourhood. Hence, unaided minority schools will have a legal obligation to admit children
belonging to weaker sections and disadvantaged groups in the neighbourhood who need not be children of
the members of the minority community which has established the school. While discussing the validity of
clause (5) of Article 15 of the Constitution, we have held that members of communities other than the minority
community which has established the school cannot be forced upon a minority institution because that may
destroy the minority character of the school. In our view, if the 2009 Act is made applicable to minority schools,
aided or unaided, the right of the minorities under Article 30(1) of the Constitution will be abrogated.
Therefore, the 2009 Act insofar it is made applicable to minority schools referred in clause (1) of Article 30 of
Page 52 of 70
PART D
Therefore, it held that the RTE Act is ultra vires the Constitution to the extent it
applied to minority educational institutions.
77. The purpose of education is to provide for the intellectual, moral, and physical
development of a child. A good education system is correlated to the social,
economic, and political needs of our country. 106
78. Article 30(1) guarantees the right to establish and administer educational
institutions of their choice to religious and linguistic minorities. However, the
State has an interest in ensuring that the minority educational institutions impart
secular education along with religious education or instruction. 107 The
constitutional scheme allows the State to strike a balance between two
objectives: (i) ensuring the standard of excellence of minority educational
institutions; and (ii) preserving the right of the minority to establish and
administer its educational institution. 108 The State generally strikes a balance
by enacting regulations accompanying the recognition of minority educational
institutions.
79. The High Court erred in holding that education provided under the 2004 Act is
violative of Article 21A because (i) The RTE Act which facilitates the fulfilment
of the fundamental right under Article 21 – A contains a specific provision by
which it does not apply to minority educational institutions; (ii) The right of a
the Constitution is ultra vires the Constitution. We are thus of the view that the majority judgment of this Court
in Society for Unaided Private Schools of Rajasthan v. Union of India [(2012) 6 SCC 1] insofar as it holds that
the 2009 Act is applicable to aided minority schools is not correct.”]
106
Maharashtra State Board of Secondary and Higher Secondary Education v. K S Gandhi, (1991) 2 SCC
716 [13]
107
Ahmedabad St Xavier’s College Society (supra) [138] (Justice K K Mathew and Justice Y V Chandrachud)
108
P A Inamdar (supra) [122]
Page 53 of 70
PART E
religious minority to establish and administer Madarsas to impart both religious
and secular education is protected by Article 30; and (iii) the Board and the state
government have sufficient regulatory powers to prescribe and regulate
standards of education for the Madarsas.
E. Legislative Competence
a. The Madarsa Act is within the legislative competence of the State
under Entry 25, List III
80. The distribution of legislative powers is contained in Part XI of the Constitution.
Article 246(2) confers exclusive power on Parliament to make laws “with respect
to” any of the matters enumerated in List I (the Union List) of the Seventh
Schedule. Clause (1) is prefaced with a non-obstante provision which gives it
precedence over Clauses (2) and (3). Article 246(2) enunciates the legislative
principles with regard to List III (the Concurrent List) and states that both
Parliament and State legislatures have concurrent powers of legislation “with
respect to” the matters enumerated in this list. This clause also begins with a
non-obstante provision giving it precedence over clause (3). Finally, Article
264(3) states that the State Legislature has exclusive power to make laws on
the matters enumerated in List II (the State List).
81. When the Constitution was enacted, the subject of “education” was part of List
II (the State List) of the Seventh Schedule. This followed the scheme of
distribution of powers in the Government of India Act 1935, whereby, the entry
titled “Education” was placed in the Provincial List. At the time of the enactment
of the Constitution, Entry 11 of List II read as follows:
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PART E
“11. Education including universities, subject to the
provisions of entries 63, 64, 65 and 66 of List I and
entry 25 of List III.”
82. At this time, Entry 25 of List III read as follows:
“25. Vocational and technical training of labour.”
83. With effect from 3 January 1977, by the Constitution (Forty-Second Amendment
Act) 109, Entry 11 of List II was omitted, and Entry 25 of List III was amended to
account for it. In other words, the legislative entry pertaining to “education” was
moved from the State List to the Concurrent List. Entry 25, List III now reads as
follows:
“25. Education, including technical education, medical
education and universities, subject to the provisions of
entries 63, 64, 65 and 66 of List I; vocational and
technical training of labour.”
84. To address the contention raised by the respondents regarding the legislative
competence of the state legislature, the following settled principles governing
the interpretation of the entries in the Seventh Schedule are relevant110:
a. The entries are legislative heads and not sources of legislative powers. The
legislative entries use general words to define and delineate the legislative
powers of Parliament and State legislatures, and the words should receive
their ordinary, natural, and grammatical meaning;
109
Constitution (Forty-second Amendment) Act, 1976, s. 57 (w.e.f. 3-1-1977).
110
Mineral Area Development Authority & Anr. vs Steel Authority of India & Anr, 2024 INSC 554 [40-42]Page 55 of 70
PART Eb. The legislative entries should not be read in a narrow or pedantic sense but
must be given their “broadest meaning and the widest amplitude”. The
ambit of the entries extends to all ancillary and subsidiary matters which
can fairly and reasonably be said to be comprehended in them;
c. There is a possibility of an overlap and conflict between two or more entries.
In such cases, the doctrine of pith and substance comes into play to
determine whether the legislature in question has the competence to enact
a law;
d. There may arise situations where a legislature may frame a law that in
substance and reality transgresses its legislative competence. Such a piece
of legislation is called “colourable legislation”. The substance of the
legislation is material. If the subject matter is in substance beyond the
legislative powers of the legislature, the form in which the law is clothed
would not save it from being declared unconstitutional; and
e. In certain entries, such as Entry 25 in List III, the Constitution uses specific
expressions such as “subject to” in order to resolve potential overlaps
between entries in the three lists. This is used in cases where the
Constitution stipulates that the exercise of power traceable to certain
legislative entries overrides the exercise of power traceable to another entry
in a different list.
85. The provisions of the Madarsa Act seek to “regulate” Madarsas. These are
educational institutions run by a religious minority. There is a distinction
between “religious instruction” and “religious education”. While the Madarsas
Page 56 of 70
PART E
do impart religious instruction, their primary aim is education. Legislative entries
must be given their widest meaning, and their ambit also extends to ancillary
subjects which may be comprehended within the entry. The mere fact that the
education which is sought to be regulated includes some religious teachings or
instruction, does not automatically push the legislation outside the legislative
competence of the state.
86. Article 28 is titled “Freedom as to attendance at religious instruction or religious
worship in certain educational institutions”. Article 28(1) states that no religious
instruction shall be provided in any educational institution wholly maintained out
of State funds. Article 28(3) provides that no person who is attending any
educational institution recognised by the state or receiving aid out of state funds
shall be compelled to take part in religious instruction or attend religious worship
without their consent. The corollary to this provision is that religious instruction
may be imparted in an educational institution which is recognized by the state,
or which receives state aid but no student can be compelled to participate in
religious instruction in such an institution. However, the dissemination of
religious instruction does not change its fundamental character as an institution
that imparts education. To read Entry 25, List III in the manner proposed by the
respondent, would render it inapplicable to all legislation which deal with any
institution “established and administered” by minorities, which may provide
some religious instruction. This runs contrary to the constitutional scheme in
Article 30, which recognizes the right of minorities to establish and administer
educational institutions. Merely because an educational institution is run by a
minority or even a majority community and professes some of its teachings,
Page 57 of 70
PART E
does not mean that the teachings in such institutions fall outside the ambit of
the term “education”.
87. In fact, reference was made to an eleven-judge bench of this Court in T.M.A.
Pai Foundation v. State of Karnataka, 111 on the “scope of the right of
minorities to establish and administer educational institutions of their choice
under Article 30(1) read with Article 29(2)” in view of the inclusion of Entry 25 in
List III of the seventh schedule. 112 One of the questions before this Court was
whether the “minority status” of an institution under Article 30(1) would be
determined with the unit being the state or the entire country, since both the
state and the union can legislate on the subject of “education”. Therefore, it is
beyond the pale of doubt that the regulation of minority institutions was
assumed to fall within the ambit of Entry 25, List III by an eleven-judge bench
of this Court.
88. Further, Entry 25, List III itself provides specific carve-outs. The entry is subject
to entries 63, 64, 65 and 66 of List I. None of these entries in the Union List
seek to regulate ‘religious education’. Further, Mr Guru Krishna Kumar, Senior
Counsel has not indicated any other entry in List I with which there is a conflict
so as to indicate that the legislation is a “colourable legislation” within the
competence of the Parliament and not within the competence of the state
legislature.
111
(2002) 8 SCC 481.
112
Ibid [3-4].
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PART E
89. With respect to the concurrent exercise of power by the State Legislature and
the Parliament with respect to matters in List III (the Concurrent List), the
Constitution also provides for the doctrine of repugnancy to resolve
inconsistencies between laws made by the Parliament and the state
legislatures. 113 In such cases, the law made by the State legislature gives way
to the law made by the Parliament, subject to certain exceptions. 114 In the
present instance, the question of repugnancy does not even arise as there is
no central law which purports to regulate the functioning of Madarsas. As noted
above, the RTE Act, which is the legislation framed by Parliament pursuant to
Entry 25, specifically states that it is inapplicable to Madarsas, and thus, there
is no issue of a conflict or repugnancy between the two Acts.
90. In view of the above, there is no jurisprudential basis to read Entry 25, List III to
be limited to only education that is devoid of any religious teaching or instruction
and to contend that the Madarsa Act (in its entirety) which seeks to regulate the
functioning of Madarsas in Uttar Pradesh is outside the competence of the state
legislature. The challenge on the ground of legislative competence fails.
b. Certain provisions of the Madarsa Act conflict with the UGC Act
enacted under Entry 66, List I
113
Article 254, Constitution of India.
114
Forum for People’s Collective Efforts v. State of W.B., (2021) 8 SCC 599 [116]
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PART E
91. As noted above, Entry 25 of List III has been made subject to certain entries in
List I. One of these entries is Entry 66 of List I, which reads as follows:
“66. Co-ordination and determination of standards in
institutions for higher education or research and
scientific and technical institutions.”
92. In Mineral Area Development Authority & Anr. vs. Steel Authority of India
& Anr. 115, a Constitution Bench of this Court had occasion to observe the
purport of the legislative entries in List II using the phrase “subject to” in the
following terms:
“44. Where the entries have used the phrase “subject
to”, the legislative power of the State is made
subordinate to Parliament with respect to either the
Union List or the Concurrent List. The expression
“subject to” conveys the idea of a provision
yielding place to another provision or other
provisions to which it is made subject. Therefore,
where the Constitution intends to displace or
override the legislative powers of the States, it has
used specific terminology – “subject to”. However,
the Constitution has also indicated the extent to which
a particular legislative entry under List II is
subordinated. For instance, the subjection is either with
respect to provisions of List I or List III, or it can also be
to the extent of “any limitations” imposed by Parliament
by law. Thus, it is imperative that the entries in List II
must be read and interpreted in their proper context to
understand the extent of their subordination to Union
powers.”(emphasis supplied)
115
2024 INSC 554.
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PART E
93. The UGC Act has been enacted by Parliament pursuant to Entry 66 and seeks
to make provisions for the “co-ordination and determination of standards in
Universities and for that purpose, to establish a University Grants
Commission.” 116 The Madarsa Act has been enacted pursuant to Entry 25 of
List III. This Court has held in a consistent line of precedent that the UGC Act
occupies the field with regard to the coordination and determination of
standards in higher education. Therefore, state legislation which seeks to
regulate higher education, in conflict with the UGC Act, would be beyond the
legislative competence of the State legislature. 117
94. In Prof. Yashpal & Anr vs. State of Chhattisgarh,118 a three-Judge Bench of
this Court adjudicated on the constitutionality of the provisions of a state
legislation in Chhattisgarh, which inter alia, granted the state government the
power to recognise and establish universities, which offered degrees that were
not recognised by the UGC. The state relied on Entry 32 of List II which pertains
to the incorporation of universities and Entry 25 of List III, to justify the legislative
competence of the state legislature. This Court declared that the provisions of
the state legislation which conflict with the provisions of the UGC Act are
unconstitutional as the UGC Act was validly enacted by Parliament under Entry
66 of List I. After considering the consistent line of precedent on this question,
this Court observed thus:
116
Long Title, UGC Act.
117
Osmania University Teachers’ Association vs. State of Andhra Pradesh, (1987) 4 SCC 671; Dr Preeti
Srivastava and another vs. State of M.P., (1999) 7 SCC 120; Prof. Yashpal & Anr vs. State of Chhattisgarh,
(2005) 5 SCC 420; Annamalai University, Represented by Registrar vs. Secretary to Government,
Information and Tourism Department, (2009) 4 SCC 590; Kalyani Mathivanan versus K.V. Jeyaraj, (2015) 6
SCC 363.
118
(2005) 5 SCC 420
Page 61 of 70
PART E“45. The State Legislature can make an enactment
providing for incorporation of universities under Entry
32 of List II and also generally for universities under
Entry 25 of List III. The subject “university” as a
legislative head must be interpreted in the same
manner as it is generally or commonly understood,
namely, with proper facilities for teaching of higher level
and continuing research activity. An enactment which
simply clothes a proposal submitted by a sponsoring
body or the sponsoring body itself with the juristic
personality of a university so as to take advantage of
Section 22 of the UGC Act and thereby acquires the
right of conferring or granting academic degrees but
without having any infrastructure or teaching facility for
higher studies or facility for research is not
contemplated by either of these entries. Sections 5 and
6 of the impugned enactment are, therefore,
wholly ultra vires, being a fraud on the Constitution.
46. […] The impugned Act which enables a proposal
on paper only to be notified as a university and thereby
conferring the power upon such university under
Section 22 of the UGC Act to confer degrees has the
effect of completely stultifying the functioning of the
University Grants Commission insofar as these
universities are concerned. Such incorporation of a
university makes it impossible for UGC to perform its
duties and responsibilities of ensuring coordination and
determination of standards. In the absence of any
campus and other infrastructural facilities, UGC cannot
take any measures whatsoever to ensure a proper
syllabus, level of teaching, standard of examination
and evaluation of academic achievement of the
students or even to ensure that the students have
undergone the course of study for the prescribed
period before the degree is awarded to them.”
95. Section 22 of the UGC Act pertains to the right to confer degrees and reads as
follows:
“22. Right to confer degrees – (1) 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 orPage 62 of 70
PART Ean institution specially empowered by an Act of
Parliament to confer or grant degrees.
(2) Save as provided in sub-section (1), no person or
authority shall confer, or grant, or hold himself or itself
out as entitled to confer or grant, any degree.(3) For the purposes 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 by notification in the official Gazette.”
96. Sub-section (1) expressly restricts the right to confer or grant degrees to (i)
universities established or incorporated by a Central or State statute; or (ii) an
institution deemed to be a university under Section 3; 119 or (iii) an institution
specially empowered by an Act of Parliament to confer degrees. Sub-section
(2) provides the same in the negative and stipulates that no person or authority,
except those stipulated in sub-section (1) is entitled to confer or grant a degree
or present himself as entitled to confer or grant a degree. Sub-section (3)
provides that, for the application of Section 22, “degree” includes those degrees
which are specified in this regard by the UGC by a notification issued in the
Official Gazette, after previous approval of the Central Government.
97. During the course of the hearing, in response to queries posed by this Court,
the Standing Counsel for the UGC clarified on instructions that the notification
referred to in sub-section (3) of Section 22 has been issued. The latest
notification in this regard, which currently holds the field, was issued by the UGC
119
Section 3 reads: “Application of Act to institutions for higher studies other than Universities – The
Central Government may, on the advice of the Commission, declare by notification in the Official Gazette,
that any institution for higher education, other than a University, shall be deemed to be a University for the
purposes of this Act, and on such a declaration being made, all the provisions of this Act shall apply to such
institution as if it were a University within the meaning of clause (f) of section 2”
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PART E
in March 2014. 120 The notification lists the nomenclature of all the degrees
which fall within the ambit of Section 22 of the UGC Act. Under the title of
‘Specification of Degrees with Urdu/Persian/Arabic nomenclature’, the following
degrees are specified:
98. Section 9 of the Madarsa Act specifies the functions of the Board under the
Madarsa Act. Several of these functions pertain to the regulation of the Fazil
and Kamil degrees, which correspond to a bachelor’s level and a post-graduate
degree, respectively. In particular, the following provisions deal with regulating
these higher education degrees:
a. Sub-clause (a) empowers the Board to prescribe courses of instructions,
textbooks and other material for inter alia the Kamil and Fazil courses;
b. Sub-clause (e) empowers the Board to grant degrees, diplomas, certificates
and academic distinctions to those who have either studied in institutions
120
NO. F. 5-1/2013 (CPP-II).
Page 64 of 70
PART Erecognized by the board or studied privately under the conditions mandated
by regulations and passed an examination conducted by the Board;
c. Sub-clause (f) empowers the Board to conduct the examinations of inter
alia the Kamil and Fazil courses. Sub-clauses (g), (h) and (j) further
empower the Board to recognize institutions for the purpose of
examinations, admit candidates for the examinations, and publish or
withhold the publication of the examination results; and
d. Sub-clause (o) empowers the Board to carry out all acts which are required
to further the object of the Board, which is a body constituted to regulate
and supervise “Madrasa-Education up to Fazil”.
Pursuant to the above provisions, several provisions in the Regulations framed
by the Board also seek to regulate the Kamil and Fazil courses and degrees.
99. The Madarsa Act to the extent to which it seeks to regulate higher education,
including the ‘degrees’ of Fazil and Kamil, is beyond the legislative competence
of the State Legislature since it conflicts with Section 22 of the UGC Act. Entry
25 of List III, pursuant to which the Madarsa Act has been enacted, has been
expressly made subject to Entry 66 of List I. The UGC Act governs the
standards for higher education and a state legislation cannot seek to regulate
higher education, in contravention of the provisions of the UGC Act.
c. The entire Madarsa Act need not be struck down on the above ground
100. In the foregoing sections of this Judgment, we have upheld the
constitutionality of the Madarsa Act on various grounds, that were urged before
the High Court and subsequently, before this Court. However, certain provisions
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PART E
of the Madarsa Act which pertain to the regulation of higher education and the
conferment of such degrees have been held to be unconstitutional on the
ground of lack of legislative competence. Thus, the question that arises is
whether the entire legislation must be struck down on this ground. In our view,
it is in failing to adequately address this question of severability that the High
Court falls into error and ends up throwing the baby out with the bathwater.
101. The entire statute does not need to be struck down each time that certain
provisions of the statute are held to not meet constitutional muster. The statute
is only void to the extent that it contravenes the Constitution. This position may
be derived from the text of Article 13(2) itself, which states:
“(2) The State shall not make any law which takes away
or abridges the rights conferred by this Part and any
law made in contravention of this clause shall, to the
extent of the contravention, be void.”
102. Although Article 13(2) upholds this proposition in the context of laws which
abridge the fundamental rights in Part III, the same doctrine is equally
applicable to provisions of a statute which are set aside on the ground of lack
of legislative competence. This position has also been affirmed by a steady line
of precedent of this Court. We may helpfully refer to the observations in the
locus classicus on the subject. In R.M.D. Chamarbaugwalla v. Union of
India121, a Constitution bench of this Court adjudicated on the constitutionality
of certain provisions of the Prize Competitions Act, 1956 and its allied rules.
This Court, speaking through Justice TL Venkatarama Ayyar, had occasion to
121
1957 SCC OnLine SC 11.
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PART E
lay down the contours of the doctrine of severability and held that when a statute
is in part void, it will be enforced as regards the rest, if that part is severable
from what is invalid. It was clarified that it is immaterial whether the invalidity of
the statute arises by reason of its subject matter being outside the competence
of the legislature or by reason of its provisions contravening other constitutional
provisions. To determine whether the specific provisions or the portion of the
statute which is invalid is severable from the rest of the statute, this Court
adopted certain rules of construction, which are as follows:
“22. […]
1. In determining whether the valid parts of a statute
are separable from the invalid parts thereof, it is the
intention of the legislature that is the determining
factor. The test to be applied is whether the
legislature would have enacted the valid part if it
had known that the rest of the statute was
invalid. […]
2. If the valid and invalid provisions are so
inextricably mixed up that they cannot be separated
from one another, then the invalidity of a portion
must result in the invalidity of the Act in its entirety.
On the other hand, if they are so distinct and
separate that after striking out what is invalid,
what remains is in itself a complete code
independent of the rest, then it will be upheld
notwithstanding that the rest has become
unenforceable. […]
3. Even when the provisions which are valid are
distinct and separate from those which are invalid, if
they all form part of a single scheme which is
intended to be operative as a whole, then also the
invalidity of a part will result in the failure of the
whole. […]
4. Likewise, when the valid and invalid parts of a
statute are independent and do not form part of a
scheme but what is left after omitting the invalid
portion is so thin and truncated as to be in substance
different from what it was when it emerged out of the
legislature, then also it will be rejected in its entirety.
5. The separability of the valid and invalid provisions
of a statute does not depend on whether the law is
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PART E
enacted in the same section or different sections;
[…] it is not the form, but the substance of the
matter that is material, and that has to be
ascertained on an examination of the Act as a
whole and of the setting of the relevant provision
therein.
6. If after the invalid portion is expunged from the
statute what remains cannot be enforced without
making alterations and modifications therein, then
the whole of it must be struck down as void, as
otherwise it will amount to judicial legislation. […]
7. In determining the legislative intent on the
question of separability, it will be legitimate to take
into account the history of the legislation, its object,
the title and the preamble to it. […]
(emphasis supplied)
103. Having already disagreed with the High Court on the question of whether
the entire Madarsa Act suffers from an infirmity on the principle of secularism
and other contentions, the only infirmity lies in those provisions which pertain to
higher education, namely Fazil and Kamil. These provisions can be severed
from the rest of the Madarsa Act. As noted earlier, the purpose behind the
Madarsa Act was to remove the difficulties in running the Madarsas, improve
their merit and provide adequate facilities to students studying in these
institutions. The purpose was not limited to only regulating Fazil and Kamil, and
the legislature would have still enacted the statute if it were aware that the
portions pertaining to higher education were invalid. Further, if the provisions
relating to higher education are separated from the rest of the statute, the Act
can continue to be enforced in a real and substantial manner. On an
examination of the Madarsa Act, it is clear that prescribing the instructional
material, conducting exams and conferring degrees for Fazil and Kamil were
only a part of the functions of the Board. The severance of these functions from
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PART F
the Board does not impact its entire character. Thus, only the provisions which
pertain to Fazil and Kamil are unconstitutional, and the Madarsa Act otherwise
remains valid.
F. Conclusion
104. In view of the above discussion, we conclude that:
a. The Madarsa Act regulates the standard of education in Madarsas
recognized by the Board for imparting Madarsa education;
b. The Madarsa Act is consistent with the positive obligation of the State to
ensure that students studying in recognised Madarsas attain a level of
competency which will allow them to effectively participate in society and
earn a living;
c. Article 21-A and the RTE Act have to be read consistently with the right of
religious and linguistic minorities to establish and administer educational
institutions of their choice. The Board with the approval of the State
government can enact regulations to ensure that religious minority
institutions impart secular education of a requisite standard without
destroying their minority character;
d. The Madarsa Act is within the legislative competence of the State
legislature and traceable to Entry 25 of List III. However, the provisions of
the Madarsa Act which seek to regulate higher-education degrees, such as
Fazil and Kamil are unconstitutional as they are in conflict with the UGC
Act, which has been enacted under Entry 66 of List I.
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PART F
105. The judgment of the High Court of Judicature at Allahabad dated 22 March
2024 is accordingly set aside and the petitions shall stand disposed of in the
above terms.
106. Pending applications, if any, stand disposed of.
…….……………………………………CJI
[Dr Dhananjaya Y Chandrachud]
….….………………………………………J
[J B Pardiwala]
….….………………………………………J
[Manoj Misra]
New Delhi;
November 05, 2024.
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