Introduction
The Allahabad HC has recently declared the Uttar Pradesh Board of Madrasa Education Act, 2004, (“Act”) “unconstitutional” primarily on grounds of being violative of secularism and the Right to Education. The Court asked the State government to accommodate Madrasa students in the formal schooling system. Through this article, an attempt is made to understand the objectives of the Act and the ramifications that striking it down will have. Subsequently, the position of the Court that the Act violates secularism and the Right to Education is scrutinized.
Background
The Act passed in 2004, established a Madrasa Board and empowered it to decide the syllabus, conduct the examinations, and provide affiliation and recognition, to the Madrasas. Thus, the Act did not create the Madrasas on a state fund, nor did it replace formal schooling with Madrasa education. It facilitated the running of the Madrasas and supervised their functioning, ensuring that the education imparted was well-standard and well-regulated. Striking down the Act thus will impact 16,500 recognized, 560 aided, and 8,500 unrecognized Madrasas in UP, where over 2 lakh students are getting education who will now be either forced to shift to formal schooling or to get education in Madrasas which is wholly unregulated.
With the background clear, let us now examine the position of the Court that the Act violates secularism as the State cannot impart religious education.
Establishing a Madrasa Board: An act against secularism?
Firstly, the precedents relied upon by the judgment, including Aruna Roy, deal with cases of state interference in minority establishments’ administration, and control over the choices they make. Judgments such as T.M.A Pai Foundation, In Re: Kerala Education Bill, etc. address ancillary questions such as that of religious education being imparted by either secular educational institutions or wholly state-funded education institutions. Hence, the Court’s reliance on these is misplaced while determining the constitutionality of the impugned Act, which established a Board to recognize and facilitate the functioning of Madrasas that are totally private or partially aided by the State and did not provide for complete funding of such Madrasas.
Secondly, secularism needs to be assured by the state not just in a legal sense by its insertion in the text of the law, but in a substantive sense as well. Hence, the notion of equal treatment of all religions by the State will only be enabled if minorities are positively protected. This fine balance or rather, interaction between secularism and religious freedom is crucial. In such a context, when it is apparent that Madrasas in Uttar Pradesh are religion-based minority institutions that are at a disadvantage in the educational space, striking down the board set up to administer these institutions is not equality. As the beginning of the Mandal report stated in slightly different wording, treating unequal equally is not equality, but sameness.
The fact that the Act prescribed for the Madrasas in Uttar Pradesh to operate under the aegis of the Minority Welfare Department and not the Department of Education also indicates that the nature of their institutional character and functioning focuses on religion and not ‘education’ as opposed to wholly State-funded entities.
A sizable portion of them is, in fact, private institutions and the Board established under the impugned Act serves to maintain a minimum standard of education in them by prescribing a basic syllabus. The state, by protecting and recognizing institutions imparting such education, is not anti-secular but furthers pluralism and tolerance of all forms of religious knowledge and practice.
It is a question of the State’s duty to ensure the exercise of freedom of religion – enabling the functioning of minority religious institutions via the law is not violative of constitutional secularism. This was not even delved into by the Court or the parties, since the issue itself was characterized as one involving the State imparting religious education – a distortion. The answer lies between the balance of secularism and freedom of religion via the protection of minority rights, where the state facilitates the exercise of the right to run minority educational institutions by recognizing them under an established Board, while at the same time not maintaining such institutions wholly out of state funds.
Does the Act violate the Right to Education?
Subsequent to the argument on secularism, the judgment scrutinizes the syllabus for metric and post-metric designed by the Madrasa Board. Noting that it does not mandatorily include modern subjects such as science, mathematics, and social sciences but theology and languages, the Court concludes that such an education cannot be called either universal, modern, or quality education. Hence, it violates the Right to Education under Article 21A of the Constitution.
The terms modern, quality, or universal education are not defined or required under Article 21A. It only makes a general provision 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.”
Hence, for a detailed definition of what education entails, reference could be made to International Human Rights Conventions because the SC has held that the Constitution can be interpreted in light of the UDHR, elsewhere, it stated that these conventions are part of common law, and it is legitimate for the Court to refer to them to construe the intent and scope of the Rights under the Constitution. Referring to such conventions is also directly warranted under Article 51(c) of the Constitution.
Article 26(3) UDHR, states that “Parents have a prior right to choose the kind of education that shall be given to their children.” With regards to the nature of education, it states that education should be directed to the development of the human personality, strengthen the respect for human rights, and promote understanding, tolerance, and friendship among all nations.
Article 13(3) ICESCR also states on similar lines that State parties must respect the liberty of parents to choose schools for their children, other than public schools, to ensure religious and moral education, provided that such schools shall conform to minimum educational standards as laid down by the state. Article 18(4) of the ICCPR is also in consonance with these, as it ensures the freedom of parents to ensure the religious and moral education of their children. Article 5 of the Jomtien Declaration of which India is a signatory categorically states that education should consider the culture, needs, and opportunities of the community, and supplementary alternative programs can help meet the basic learning needs of children with limited or no access to formal schooling.
General Comment 13 elaborates that the State parties should facilitate the exercise of parents’ rights of imparting religious and moral education, by taking positive measures to enable and assist individuals and communities to enjoy the right.
Hence, to conclude, the Indian state has an obligation to facilitate the exercise of freedom of parents to send their children to other than Govt. schools for providing religious and moral education, provided firstly, that such education is consistent with the goals of education elaborated in UDHR, i.e., it does not hamper the development of the human personality or promote intolerance and hatred, and secondly, that such education conforms to the minimum education standards set by the Indian state.
The Act fulfilled this obligation precisely. It facilitated the exercise of such freedom by parents while ensuring that the syllabus taught in such Madrasas does not promote intolerance or extremism and that examinations are conducted in a manner that conforms to minimum requirements. Hence, it is not the Act that violated the Right to Education, rather, it is the directive of the Court to shift all the children to formal schooling against the will of the parents, infringing on their right to impart religious education to their children, that violates this right.
Additionally, the judgment is based on a narrow notion of education and the purpose of education that is not backed either by the Constitution, the Human Rights Conventions, or the precedents of the SC. In all the above, education is understood broadly as one that can help people live better lives, create law-abiding citizens, and a tolerant population, and maintain democracy. However, this judgment states that teaching one religion and a few languages, without any study of modern subjects, cannot be called quality education (para 76), hence deviating from the established precedents to require that the purpose of education can only be to create professionals in applied sciences.
The Indian society is a deeply religious one and requires specialized and traditionally sanctioned training in theology and rituals, received from recognized religious educational institutions. To become an imam, for instance, a person needs to be well-versed in religion, and his knowledge of “modern subjects” would not be directly necessary for him to perform the role of an imam. Why then should the state mandate that every child be educated in applied sciences only, leaving aside theology and languages? The Court fails to answer this or to elaborate on why quality education should be so narrowly construed to include only applied sciences and no other fields of study.
Even if it is argued that the study of modern subjects is integral for quality education, striking down the Act and directing the state to shift the students to formal schooling is disproportionate and unnecessary. Firstly, although not prescribed by the Board, most of the Madrasas now include the study of mathematics and science mandatorily across all the academic years. Big Madrasas in UP like Jamiatul Falah are examples where from nursery years, such subjects are taught, and the Madrasa has a computer lab that could compete with that of Govt. Colleges. Derecognizing all the Madrasas would adversely impact even such Madrasas. Secondly, the syllabus prescribed by the Board as stands now, which the judgment found insufficient, is not a part of the Act but was decided by the Board. Hence, changing the syllabus or mandating the applied sciences did not require striking down the Act, but rather a directive to the Board to update the syllabus. To conclude, even if such subjects were an integral part of quality education, the Court erred in striking down the Act on this ground.
Conclusion
Strong demand for Islamic education in the Indian peninsula means that religious schools can make education more accessible in conservative Muslim families, particularly female students, as indicated by increased female literacy rates achieved by Aliya Madrasas in Bangladesh. Derecognition of Madrasas will adversely impact a section, which when viewed from an intersectional lens, is arguably the most vulnerable section of the society, i.e., the rural girls belonging to the Muslim community whose families refuse to send them to venues of formal schooling. Such girls in the absence of Madrasas will have no avenue left to education.
There must be a liberal construction of secularism to prevent its application from undermining other fundamental rights of minorities, and in general, the Right to Education. Traditional education, Madrasas, and the Act seen as a larger part of religious freedom including the right to choice of education, are crucial to the protection of minorities in the country.
Secularism being made part of the basic structure doctrine included the intent to further freedom of religion, so striking down the Act as violative of it actually erodes secularism’s requisite balance with the protection of minorities’ rights.
A secular state, by recognizing and ensuring the quality of these institutions in itself is neither engaging in anti-secular activity nor is it violating the Right to Education, rather it is giving effect to substantive secularism, and a pluralistic notion of education beyond formal schooling. Hence, the Supreme Court’s stay on this judgment is a welcome decision and it remains to be seen where this will lead.
