Anjum Kadari & Anr. vs Union of India & Ors.

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 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 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 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]