‘Secularism Means - Live and Let Live & Religious Instruction Not an Anathema…’, SC Reserves Verdict on UP Madarsa Act

The apex court reserved its verdict on pleas challenging the Allahabad HC judgment, which declared the UP law on madrasas as unconstitutional.

New Delhi:The Supreme Court on Tuesday said India is a melting pot of cultures, civilizations, religions, and it needs to be preserved that way, and that striking down the Uttar Pradesh Board of Madarsa Education Act 2004, is like “throw the baby out with the bathwater”. The apex court stressed, “Secularism means- live and let live”, and religious instruction is not an anathema in our country.

A three-judge bench led by Chief Justice of India D Y Chandrachud and comprising justices J B Pardiwala and Manoj Misra, after hearing the matter for two days’, reserved its verdict on pleas challenging the Allahabad High Court judgment, which declared the 2004 Uttar Pradesh law on madrasas as unconstitutional on the ground of it being violative of the principle of secularism.

During the hearing, the CJI told senior advocate Guru Krishnakumar, representing a party opposing the Act, we have to see it through the broad sweep of the country and religious instruction is not unique to Muslims, and you have religious instructions among the Christians, among the Jews, among the Hindus, the Sikhs. “This country is a melting pot of cultures, civilizations, religions, let us preserve that way. In fact, the answer to ghettoization is mainstream. Allow people to come together, otherwise you know what we would be essentially doing, putting people in a silo. To be shunted and forgotten…”, said the CJI.

He added, “Remember, what you are arguing in the context of Islam will apply across all religions in India right from veda pathshalas to institutions training Buddhist monks, Jain schools….”.

Krishnakumar argued what the purport of this Act is, where a particular stream of education of a particular community is sought to be given recognition, without ensuring certain contents of secular education which helps in mainstreaming it.

“But that we can take care of by interpreting the Act particularly the provision of the statute which allows the state government to intervene and say that you have vital interest, please go ahead and intervene…”, said the bench

The CJI told Krishnakumar, “we share your concern as well. Need to ensure that these children are worthy citizens, how can you be a worthy citizen, if you cannot speak more than one language, or you do not know math. You do not know science; everybody is not going to be a religious teacher”.

The bench said that at the age of 15 or 16, some child will say I am not interested in religion, I want to be a shopkeeper, and I should be able to do my accounting.

“Basic minimum standards have to be maintained and the state does have a vital interest in ensuring standards in even in places of religious instructions, and we will interpret in that way. But, to throw out the Act is to throw the baby out with the bathwater…”, said the CJI.

Guru said the Act does not really aid in mainstreaming it and with the Act going away madrasa education does not go; it will have to follow certain standards. “If you seek affiliation with the CBSE or board of secondary education in UP. Then, the board of secondary education will say these are subjects that are all you can teach. Madrasa will become like any school….”, said the CJI.

The bench stressed that religious instruction is not an anathema in our country and added that the extent of state control will depend upon the nature of the institution: in an engineering college, it will say secular education be given, but for a religious institution its purpose is different.

The bench said in India can we say that the meaning of education cannot include religious instruction? It is essentially a religious country.

Senior advocate Madhavi Divan, opposing the Act, argued that madarsa education negated the promise of quality education guaranteed under Article 21A of the Constitution. She stressed that while one has the freedom to take religious instruction, it cannot be accepted as a substitute for mainstream education.

At a juncture in the hearing, the CJI said: “Secularism means- live and let live”.

SC grills NCPCR over its concern only on madrasas

The counsel, representing the Nation Commission for Protection of Child Rights, argued that madrasas cannot be seen as an alternative to mainstream education. She added that her client has no objection if madarsa education is a supplement to the school education, but it cannot be a substitute to the school education.

The bench queried the counsel, is NCPCR aware of the fact that there are religious instructions provided across India to young children by institutions of their community? Has NCPCR adopted the same stand that it is contrary to fundamental constitutional values?

The CJI asked the counsel, has NCPCR issued any instructions, cutting across communities, that you will not take children into your religious institutions unless they are taught secular subjects?

The CJI further queried, have you issued instructions that do not send children to monasteries etc? Why are you only interested in madrasas?

Justice Pardiwala asked, has NCPCR studied the entire syllabus? It seems you all are mesmerized by the word 'religious instructions'. He stressed that the entire basis of this is incorrect.

Uttar Pradesh government on the Act

During the pre-lunch hearing, Uttar Pradesh submitted before the apex court that the Allahabad High Court should not have struck down the UP Board of Madarsa Education 2004 in its entirety.

Additional solicitor general KM Nataraj, representing the state government, submitted that the high court should have only struck down the provisions which are violative of the fundamental rights. He added that the high court should not have nixed the entire regulatory framework. "Are you therefore standing by the validity of the Act? Because it's an Act of the state. Do we take it on record that you stand by the validity of the Act?" CJI queried Nataraj.

He contended that the state government, before the high court, had filed an affidavit defending the Act, therefore it will not deviate from that stand.

One cannot wish away 700 yrs of history like this

The apex court pointed out that striking down the entire Act would mean that the Madrasas would remain unregulated.

The bench said is it not in our national interest that the Madrasas are regulated? One cannot wish away 700 yrs of history like this. “Suppose we uphold the high court order, the parents of children will still send them to Madrasa, it will just be a silo without any legislative intervention," said the bench.

The apex court said the Act gave rule-making powers to the state to lay down standards.

Senior advocates Menaka Guruswamy, A M Singhvi, P Chidambaram, Salman Khurshid, made submissions in favour of the Act.

A batch of petitions were filed in the apex court against the Allahabad High Court's judgment of March 22, 2024 decision, which struck down the UP Madrasas Act, 2004 as unconstitutional and violative of the principle of secularism.