# Anjum Kadari & Anr v. Union of India & Ors

- **Citation:** 2024 INSC 831
- **Court:** Supreme Court of India
- **Decided:** 2024-11-05
- **Bench:** Dr Dhananjaya Y Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anjum-kadari-anr-v-union-of-india-ors-37812
- **Pages:** 63

## Headnote

Issue arose as to correctness of the order passed by the High
Court holding the Uttar Pradesh Board of Madarsa Education
Act, 2004 to be unconstitutional on the ground that it violates the
principle of secularism and Articles 14 and 21A of the Constitution.
Headnotes†
Uttar Pradesh Board of Madarsa Education Act, 2004 -
Constitutional validity - Madarsa Act established the Uttar
Pradesh Board of Madarsa Education, to regulate, among
other things, the standards of education, qualifications for
teachers, and conduct of examinations in Madarsas in the
State of Uttar Pradesh - High Court struck down the entirety
of the Act - Correctness:
Held: Madarsa Act regulates the standard of education in Madarsas
recognized by the Board for imparting Madarsa education -
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 - Art.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 - 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 - Thus, 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 seeking to regulate higher-education degrees, such
* Author
366
[2024] 11 S.C.R.
Digital Supreme Court Reports
as Fazil and Kamil unconstitutional as they are in conflict with the
UGC Act, enacted under Entry 66 of List I - Judgment of the High
Court set aside. [Para 104]
Uttar Pradesh Board of Madarsa Education Act, 2004 -
Legislative competence - Madarsa Act, if within the legislative
competence of the State under Entry 25, List III - Provisions
of Madrasa Act, if in conflict with the UGC Act enacted under
entry 66, List I - Entire Madrasa Act, if need to be struck
down as some of its provisions contravened the provisions
of the UGC Act:
Held: Provisions of the Madarsa Act seek to "regulate" Madarsas
which are educational institutions run by religious minority - While
the Madarsas do impart religious instruction, their primary aim is
education - 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 - No jurisprudential basis to read Entry 25, List III to
be limited to only education that is devoid of any religious teaching
or instruction - Thus, cannot be said 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 -
Madarsa Act has been enacted pursuant to Entry 25 of List III -
UGC Act enacted by Parliament pursuant to Entry 66, occupies the
field with regard to the coordination and determination of standards
in Universities - Thus, State legislation which seeks to regulate
higher education, in conflict with the UGC Act, would be beyond the
legislative competence of the State legislature - 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 s.22 of the UGC Act -
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 - Furthermore, entire statute does
not need to be struck down each time that certain provisions of the
statute are held to not meet constitutional muster - Statute is void to
the extent that it contravenes the Constitution - On an examination
of the Madarsa Act, it is clear that p

## Text

_Characters 0–38,864 of 151,822. This is a partial read: ask again with offset=38864 for what follows._

[2024] 11 S.C.R. 365 : 2024 INSC 831
Anjum Kadari & Anr.
v.
Union of India & Ors.
(Special Leave Petition (C) No. 8541 of 2024)
05 November 2024
[Dr Dhananjaya Y Chandrachud,* CJI,
J.B. Pardiwala and Manoj Misra, JJ.]
Issue for Consideration
Issue arose as to correctness of the order passed by the High
Court holding the Uttar Pradesh Board of Madarsa Education
Act, 2004 to be unconstitutional on the ground that it violates the
principle of secularism and Articles 14 and 21A of the Constitution.
Headnotes†
Uttar Pradesh Board of Madarsa Education Act, 2004 -
Constitutional validity - Madarsa Act established the Uttar
Pradesh Board of Madarsa Education, to regulate, among
other things, the standards of education, qualifications for
teachers, and conduct of examinations in Madarsas in the
State of Uttar Pradesh - High Court struck down the entirety
of the Act - Correctness:
Held: Madarsa Act regulates the standard of education in Madarsas
recognized by the Board for imparting Madarsa education -
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 - Art.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 - 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 - Thus, 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 seeking to regulate higher-education degrees, such
* Author
366
[2024] 11 S.C.R.
Digital Supreme Court Reports
as Fazil and Kamil unconstitutional as they are in conflict with the
UGC Act, enacted under Entry 66 of List I - Judgment of the High
Court set aside. [Para 104]
Uttar Pradesh Board of Madarsa Education Act, 2004 -
Legislative competence - Madarsa Act, if within the legislative
competence of the State under Entry 25, List III - Provisions
of Madrasa Act, if in conflict with the UGC Act enacted under
entry 66, List I - Entire Madrasa Act, if need to be struck
down as some of its provisions contravened the provisions
of the UGC Act:
Held: Provisions of the Madarsa Act seek to "regulate" Madarsas
which are educational institutions run by religious minority - While
the Madarsas do impart religious instruction, their primary aim is
education - 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 - No jurisprudential basis to read Entry 25, List III to
be limited to only education that is devoid of any religious teaching
or instruction - Thus, cannot be said 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 -
Madarsa Act has been enacted pursuant to Entry 25 of List III -
UGC Act enacted by Parliament pursuant to Entry 66, occupies the
field with regard to the coordination and determination of standards
in Universities - Thus, State legislation which seeks to regulate
higher education, in conflict with the UGC Act, would be beyond the
legislative competence of the State legislature - 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 s.22 of the UGC Act -
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 - Furthermore, entire statute does
not need to be struck down each time that certain provisions of the
statute are held to not meet constitutional muster - Statute is void to
the extent that it contravenes the Constitution - 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 - Infirmity lies
in the said provisions which can be severed from the rest of the
Madarsa Act - Severance of these functions from the Board does
[2024] 11 S.C.R.
367
Anjum Kadari & Anr. v. Union of India & Ors.
not impact its entire character, the Act can continue to be enforced
in a real and substantial manner - Thus, only the provisions which
pertain to Fazil and Kamil are unconstitutional, and Madarsa Act
otherwise remains valid. [Paras 85, 90, 93, 99, 101, 103]
Uttar Pradesh Board of Madarsa Education Act, 2004 -
Regulatory legislation:
Held: Enactment of the Act of 2004 is to regulate the standard
of education in Madarsas recognized by the Board for imparting
Madarsa education - 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 - Statute envisages
granting recognition to Madarsas which fulfil the prescribed
standards for staff, instructions, equipment and buildings - Grant
of recognition imposes a responsibility on the Madarsas to attain
certain standards of education laid down by the Board - Failure
of the Madarsas to maintain the standards of education will result
in the withdrawal of their recognition - 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" - 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 - Madarsa Act secures the
interests of the minority community in Uttar Pradesh because it
regulates the standard of education imparted by the recognised
Madarsas; and it conducts examinations and confers certificates to
students, allowing them the opportunity to pursue higher education -
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 a living - Thus, the Madarsa Act
furthers substantive equality for the minority community - State
legislature has established a Board to recognise and regulate
Madarsa education is not violative of Art.14. [Paras 58, 65, 72, 73]
Constitution of India - Art.21-A and 30 - Interplay of Art.21-A
and Art.30 - Explanation:
Held: Art.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
368
[2024] 11 S.C.R.
Digital Supreme Court Reports
imposes a constitutional obligation on the State to impart elementary
and basic education - Art.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 - State
generally strikes a balance by enacting regulations accompanying
the recognition of minority educational institutions - High Court
erred in holding that education provided under the 2004 Act is
violative of Art.21A because RTE Act which facilitates the fulfilment
of the fundamental right u/Art.21 contains a specific provision by
which it does not apply to minority educational institutions; the
right of a religious minority to establish and administer Madarsas
to impart both religious and secular education is protected by
Art.30; and Board and State Government have sufficient regulatory
powers to prescribe and regulate standards of education for the
Madarsas - Uttar Pradesh Board of Madarsa Education Act, 2004 -
Right of Children to Free and Compulsory Education Act, 2009.
[Paras 74-79]
Education/Educational Institutions - Madarasas - History of
Madarsas - Teaching in Madarsas - Elucidated. [Paras 2-23]
Constitution of India - Arts.25-30, 14-16 - Secularism in the
constitutional context - Secularism and regulation of minority
educational institutions - Stated. [Paras 37-45]
Constitution of India - Art.30(1) - Secularism - Concept of
positive secularism:
Held: In the spirit of positive secularism, Art.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 -
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 - Concept of positive secularism finds
consonance in principle of substantive equality. [Para 70]
Constitution of India - Basis structure doctrine - Testing the
validity of a statute for violation of the basic structure:
Held: Statute can be struck down only for the violation of Part III
or any other provision of the Constitution or for being without
[2024] 11 S.C.R.
369
Anjum Kadari & Anr. v. Union of India & Ors.
legislative competence - Constitutional validity of a statute
cannot be challenged for the violation of the basic structure of the
Constitution since the 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 - 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 - Thus, 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 - High Court erred in holding that a statute is bound
to be struck down if it is violative of the basic structure. [Para 55]
Constitution of India - Minority educational institutions -
Regulation of, by the State:
Held: State has an interest in ensuring that minority educational
institutions provide standards of education similar to other
educational institutions - State can enact regulatory measures
to promote efficiency and excellence of educational standards -
Regulations about standards of education do not directly bear upon
the management of minority institutions - State can regulate aspects
of standards of education such as course of study, qualification
and appointment of teachers, health and hygiene of students,
and facilities for libraries - Affiliation or recognition of minority
educational institutions by the Government secures the academic
interests of students studying in such institutions to pursue higher
education. [Paras 58, 62]
Constitution of India - Legislative competence of the state
legislature - Interpretation of the entries in the Seventh
Schedule - Relevant principles - Elucidated. [Para 84]
Case Law Cited
Anshuman Singh Rathore v. Union of India and Others, Writ
(C) No. 6049 of 2023; S.R. Bommai v. Union of India [1994] 2
SCR 644; Dr. M. Ismail Faruqui v. Union of India [1994] Supp. 5
SCR 1 : (1994) 6 SCC 360; Seshammal v. State of Tamil Nadu
[1972] 3 SCR 815 : (1972) 2 SCC 11; Ratilal Panachand Gandhi
v. State of Bombay [1954] 1 SCR 1055 : (1954) 1 SCC 487;
D.A.V. College v. State of Punjab [1971] Supp. 1 SCR 677 :
(1971) 2 SCC 269; Aruna Roy v. Union of India [2002] Supp. 2
370
[2024] 11 S.C.R.
Digital Supreme Court Reports
SCR 266 : (2002) 7 SCC 368; Ahmedabad St Xavier's College
Society v. State of Gujarat [1975] 1 SCR 173 : (1974) 1 SCC
717; T.M.A. Pai Foundation v. State of Karnataka [2002] Supp. 3
SCR 587 : (2002) 8 SCC 481; Indira Nehru Gandhi v. Raj Narain
[1978] 2 SCR 405 : 1975 Supp SCC 1; State of Kerala v. Peoples
Union for Civil Liberties [2009] 11 SCR 142 : (2009) 8 SCC 46;
State of A.P. v. McDowell & Co. [1996] 3 SCR 721 : (1996) 3
SCC 709; State of Karnataka v. Union of India [1978] 2 SCR 1 :
(1977) 4 SCC 608; Kuldip Nayar v. Union of India [2006] Supp.
5 SCR 1 : (2006) 7 SCC 1; Madras Bar Association v. Union of
India [2014] 10 SCR 1 : (2014) 10 SCC 1; Ashok Kumar Thakur
v. Union of India [2007] 7 SCR 63 : (2008) 6 SCC 1; Supreme
Court Advocates-on-Record Association v. Union of India (2016)
5 SCC 1; State of Kerala v. Very Rev. Mother Provincial [1971]
1 SCR 734 : (1970) 2 SCC 417; In re Kerala Education Bill 1957
[1959] 1 SCR 995 : 1958 SCC OnLine SC 8; Saints High School
v. Government of AP [1980] 2 SCR 924 : (1980) 2 SCC 478;
Dayanand Anglo Vedic (DAV) College Trust and Management
Society v. State of Maharashtra [2013] 4 SCR 821 : (2013) 4
SCC 14; Sidhajbhai Sabhai v. State of Bombay [1963] 3 SCR
837 : 1962 SCC OnLine SC 150; Milli Talimi Mission v. State of
Bihar [1985] 1 SCR 410 : (1984) 4 SCC 500; Frank Anthony Public
School Employees' Association v. Union of India [1987] 1 SCR
238 : (1986) 4 SCC 707; Bihar State Madarasa Education Board v.
Madarasa Hanfia Arabic College [1989] Supp. 2 SCR 399 : (1990)
1 SCC 428; Supriyo v. Union of India [2023] 16 SCR 1209 : 2023
SCC OnLine SC 1348; St Stephens College v. University of Delhi
[1991] Supp. 3 SCR 121 : (1992) 1 SCC 558; Joseph Shine v.
Union of India [2018] 11 SCR 765 : (2019) 3 SCC 39; Ravinder
Kumar Dhariwal v. Union of India [2021] 13 SCR 823 : (2023)
2 SCC 209; Neil Aurelio Nunes v. Union of India [2022] 1 SCR
970 : (2022) 4 SCC 1; Bharatiya Seva Samaj Trust v. Yogeshbhai
Ambalal Patel [2012] 7 SCR 1054 : (2012) 9 SCC 310; State of
Tamil Nadu v. K Shyam Sunder [2011] 11 SCR 1094 : (2011)
8 SCC 737; Society for Unaided Private Schools of Rajasthan
v. Union of India [2012] 2 SCR 715 : (2012) 6 SCC 1; Pramati
Educational and Cultural Trust v. Union of India [2014] 11 SCR
712 : (2014) 8 SCC 1; Maharashtra State Board of Secondary and
Higher Secondary Education v. K S Gandhi [1991] 1 SCR 772 :
(1991) 2 SCC 716; Mineral Area Development Authority & Anr.
v Steel Authority of India & Anr. [2024] 8 SCR 540 : 2024 INSC
[2024] 11 S.C.R.
371
Anjum Kadari & Anr. v. Union of India & Ors.
607; Forum for People's Collective Efforts v. State of W.B. [2021]
5 SCR 613 : (2021) 8 SCC 599; Prof. Yashpal & Anr. v. State
of Chhattisgarh [2005] 2 SCR 23 : (2005) 5 SCC 420; R.M.D.
Chamarbaugwalla v. Union of India [1957] 1 SCR 930 : 1957
SCC OnLine SC 11 - referred to.
Books and Periodicals Cited
Yoginder Sikand, Bastions of the Believers: Madrasas and
Islamic Education in India (Penguin Books, 2005); Arshad Alam,
'Understanding Madrasas' (2003) 38(22) Economic and Political
Weekly 2123; Padmaja Nair, The State and madrasas in India
(Working Paper 15, University of Birmingham 2009) 11; 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).
List of Websites
https://archive.pib.gov.in/archive/releases98/lyr2003/rdec2003/
12122003/r1212200330.html); Department of School Education and
Literacy, https://dsel.education.gov.in/spemm; Central Sponsored
Scheme for Providing Quality Education in Madrasa, https://www.
education.gov.in/sites/upload_files/mhrd/files/upload_document/
SPQEM-scheme.pdf.
List of Acts
Uttar Pradesh Board of Madarsa Education Act, 2004; Right
of Children to Free and Compulsory Education Act, 2009;
University Grants Commission Act 1956; Constitution of India;
Constitution (Forty-second Amendment) Act, 1976; Uttar Pradesh
Non-governmental Arabic and Persian Madarsa Recognition,
Administration and Services (Second Amendment) Regulations,
2018; Madrasa Education Rules 1969; Non-Government Arabic
and Persian Madrasa Recognition Rules 1987; Uttar Pradesh
Non-Governmental Arabic and Persian Madarsa Recognition,
Administration and Services Regulations, 2016; Bihar State
Madarasa Education Board Act 1982; Government of India Act 1935.
List of Keywords
Constitutionality of Uttar Pradesh Board of Madarsa Education
Act, 2004; Principle of secularism; Regulate standards of
education, qualifications for teachers, and conduct of examinations
372
[2024] 11 S.C.R.
Digital Supreme Court Reports
in Madarsas; Standard of education in Madarsas; Imparting
Madarsa education; Positive obligation of State; Level of
competency; Religious and linguistic minorities to establish and
administer educational institutions; Religious minority institutions;
Secular education; Minority character; Legislative competence;
Higher-education degrees; Fazil and Kamil degrees; Religious
teachings or instruction; Coordination and determination of
standards in Universities; Regulatory legislation; Interplay of
Art. 21-A and Art. 30 of Constitution; Impart elementary and
basic education; Madarasas; History of Madarsas; Teaching in
Madarsas; Secularism in constitutional context; Secularism and
regulation of minority educational institutions; Secularism; Positive
secularism; Basis structure doctrine; Constitutional validity of
statute; Democracy; Federalism; Element of uncertainty; Regulatory
measures to promote efficiency and excellence of educational
standards; Legislative competence of state legislature; Interpretation
of entries in Seventh Schedule.
Case Arising From
CIVIL APPELLATE/ ORIGINAL JURISDICTION: Special Leave
Petition (C) No. 8541 of 2024
From the Judgment and Order dated 22.03.2024 of the High Court
of Judicature at Allahabad, Lucknow Bench in WC No. 6049 of 2023
With
Special Leave Petition (C) Nos. 7857, 7821, 7878, 7890 and 13038
of 2024, Contempt Petition (C) No. 591 of 2024 In SLP (C) No. 7878
of 2024 and Transfer Petition (C) No. 2697 of 2024
Appearances for Parties
Tushar Mehta, SG, KM Nataraj, A.S.G., Sharan Dev Singh
Thakur, Sr. A.A.G., Ms. Swarupama Chaturvedi, M.R. Shamshad,
P. Chidambaram, Dr. Abhishek Manu Singhvi, Mukul Rohatgi,
P. S. Patwalia, Salman Khurshid, Dr. Menaka Guruswamy,
Ms. Madhavi Divan, Nachiketa Joshi, Guru Krishna Kumar,
M.R. Shamshad, Sr. Advs., Abhaid Parikh, Mohd Kumail Haider,
Arijit Sarkar, Syed Jafar Raza Zaidi, Ms. Zeb Hasan, Mohd. Waquas,
Shariq Ahmed, Talha Abdul Rahman, Tariq Ahmed, Vinay Vats,
Faizan Ahmad, M/s. Ahmadi Law Offices, Rohit Amit Sthalekar,
Sankalp Narain, M.A. Ausaf, Hritudhwaj Pratap Sahi, H.P. Sahi,
Srivats Narain, Ms. Ranjeeta Rohatgi, Yash Johri, Ms. Lubna Naaz,
[2024] 11 S.C.R.
373
Anjum Kadari & Anr. v. Union of India & Ors.
Pradeep Kumar Yadav, Gopal Singh, Vishal Thakre, Ms. Anjale Patel,
Ms. Chhaya, Utkarsh Pratap, Ms. Arunima Das, Gagan Kumar,
Sanjeev Malhotra, Mahesh Thakur, Santosh Kumar, Mrs. Santosh
Kumar, Praneet Pranav, Ms. Sindoora Vnl, Sai Shashank, Ms. Aarushi
Singh, Amit Sharma, Vikash Chandra Shukla, Rahul G. Tanwani,
Ms. Bhavya Tyagi, Ms. Aishaani Narain, Ms. Nidhi Khanna, Ms. Aditi
Tripathi, Ms. Ruchira Goel, Siddharth Thakur, Ms. Indira Bhakar,
Amrish Kumar, Kanu Agrawal, Sansriti Pathak, Aaditya Dixit, Amit
Sharma V, Ms. Rajeshwari Shankar, Gurmeet Singh Makker, Anas
Tanwir, Ebad Ur Rahman, Afzal Ahmad Siddiqui, Ms. Masoom Raj
Singh, Mohd. Asif Abbas, Tadimalla Bhaskar Gowtham, Subodh S.
Patil, Alabhya Dhamija, Pulkit Shrivastava, Shuvodeep Roy, Gautam
Singh, Bhakti Vardhan Singh, Ashwin K., Ranjeet Mishra, Krishna
Kant Dubey, Mohneesh Pratap Singh, Ms. Saumya Kapoor, Aayush
Shivam, Ms. Kavita Chaturvedi, Manoj Ranjan Sinha, Vishal Agrawal,
Advs. for the appearing parties.
Judgment / Order of the Supreme Court
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
* Ed. Note: Pagination as per the original Judgment.
374
[2024] 11 S.C.R.
Digital Supreme Court Reports
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
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
A.
Introduction
1.
The High Court of Judicature at Allahabad1 has held the Uttar Pradesh
Board of Madarsa Education Act, 20042 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
1
"High Court"
2
"Madarsa Act"
3
"Board"
4
Yoginder Sikand, Bastions of the Believers: Madrasas and Islamic Education in India (Penguin Books,
2005)
[2024] 11 S.C.R.
375
Anjum Kadari & Anr. v. Union of India & Ors.
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
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 19878 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 Madarsas and Maktabs
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
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,
376
[2024] 11 S.C.R.
Digital Supreme Court Reports
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
(non-state funded)
3,834
4,37,237
Temporarily
recognized
(non-state funded)
8,970
6,04,834
Total
13,364
12,34,388
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
Ministry of Human Resource 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.pdf
[2024] 11 S.C.R.
377
Anjum Kadari & Anr. v. Union of India & Ors.
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 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 postgraduate 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/
12
"SCERT"
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)
378
[2024] 11 S.C.R.
Digital Supreme Court Reports
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 Commission14 in March
2014 which lists the degrees governed by the University Grants
Commission Act 195615 includes both Fazil 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, ArabiPharasi 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
14
"UGC"
15
"UGC Act"
[2024] 11 S.C.R.
379
Anjum Kadari & Anr. v. Union of India & Ors.
Welfare, Uttar Pradesh and the Registrar/Inspector ArabiPharasi 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 the matters 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)
380
[2024] 11 S.C.R.
Digital Supreme Court Reports
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 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;
l.
the Account and Finance Officer in the Directorate of Minority
Welfare, Uttar Pradesh;
[2024] 11 S.C.R.
381
Anjum Kadari & Anr. v. Union of India & Ors.
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 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:
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"
382
[2024] 11 S.C.R.
Digital Supreme Court Reports
"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;
(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;
[2024] 11 S.C.R.
383
Anjum Kadari & Anr. v.