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

Judgment / Order of the Supreme Court Judgment Dr Dhananjaya Y Chandrachud, CJI. Table of Contents*

* Ed. Note: Pagination as per the original Judgment.

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A. Introduction

1Copy pinpoint1. 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

2Copy pinpoint2. 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)

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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

3Copy pinpoint3. 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.

4Copy pinpoint4. 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.

5Copy pinpoint5. 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

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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

6Copy pinpoint6. 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 3,834 4,37,237 recognized (non-state funded) Temporarily 8,970 6,04,834 recognized (non-state funded) Total 13,364 12,34,388

7Copy pinpoint7. 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

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recognised Madarsas to teach trades such as welding, mechanics, and stenography.

8Copy pinpoint8. 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).

9Copy pinpoint9. 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

10Copy pinpoint10. 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/

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)

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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.”

11Copy pinpoint11. 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

12Copy pinpoint12. 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

14 “UGC” 15 “UGC Act”

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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 the matters connected therewith or incidental thereto. …” (emphasis supplied)

13Copy pinpoint13. 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)

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14Copy pinpoint14. 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;

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m. the Inspector;16 and n. an officer not below the rank of Deputy Director nominated by the State Government, who is the Registrar.

15Copy pinpoint15. 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.

16Copy pinpoint16. 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.

17Copy pinpoint17. 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”

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“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;

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(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.”

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18Copy pinpoint18. 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.

19Copy pinpoint19. 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 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.

20Copy pinpoint20. 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

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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.

21Copy pinpoint21. 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 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

22Copy pinpoint22. 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

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.” 18 “2016 Regulations”

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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.

23Copy pinpoint23. 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

24Copy pinpoint24. 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 Session 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

19 Section 32 reads: “32. The State Government may, by notification, make rules for carrying out the purposes of this Act.”

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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 approved 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

25Copy pinpoint25. 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: -

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(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. (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

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find it appropriate that the matter may be placed before the Larger Bench for decision on the aforesaid issue. ...” (emphasis supplied)

26Copy pinpoint26. 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 apply to Madarsas.24 This petition was filed by an advocate practicing before the High Court.

27Copy pinpoint27. 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

28Copy pinpoint28. 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

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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 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.

29Copy pinpoint29. 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

30Copy pinpoint30. 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 district level to ensure that the students studying in such Madarsas are admitted to the schools run by the education department.26

31Copy pinpoint31. 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

26 G.O. No. 43/52-3-3034-2099/4/2024.

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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

32Copy pinpoint32. 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; b. 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

27 [1994] 2 SCR 644

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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.

33Copy pinpoint33. 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.

34Copy pinpoint34. 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;

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d. The striking down of the Act would only discontinue the functioning of the Board and the consequent state recognition of religious instruction. The education 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.

35Copy pinpoint35. 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 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

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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.

36Copy pinpoint36. 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

37Copy pinpoint37. 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

38Copy pinpoint38. 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

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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 the grounds of religion, race, caste, sex, descent, place of birth, residence, or any of them.

39Copy pinpoint39. 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

40Copy pinpoint40. Articles 25 to 30 contain the other facet of secularism, that is, the practice of religious tolerance by the State.33 Article 25 provides

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.”] 33 S R Bommai (supra) [183] Justice K Ramaswamy [“183. […] Constitution made demarcation between

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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

41Copy pinpoint41. 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

42Copy pinpoint42. 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

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 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)

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43Copy pinpoint43. 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 religion.39 Article 28 does not prohibit the State from granting recognition to educational institutions imparting religious instruction in addition to secular education.40

44Copy pinpoint44. 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

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) 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]

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45Copy pinpoint45. 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 sense of security and confidence.42 It secures equal treatment of majority and minority institutions and preserves secularism43 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

46Copy pinpoint46. 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

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] Supp. 1 SCR 1 : (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

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enumerated certain 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.

47Copy pinpoint47. 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

48Copy pinpoint48. 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 Court, Parliament enacted the Representation of the People (Amendment) Act 1974 and Election Laws (Amendment) Act 1975 and placed them under the Ninth

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 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] 2 SCR 644 : (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 [1978] 2 SCR 405 : 1975 Supp SCC 1

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Schedule of the Constitution. The issue before this Court was whether the amendments violated the basic structure of the Constitution.

49Copy pinpoint49. 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

50Copy pinpoint50. 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

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the validity of statutes because statutes cannot go beyond the range of constituent power.56

51Copy pinpoint51. 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

52Copy pinpoint52. 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

56 Indira Nehru Gandhi (supra) [622] 57 [1978] 2 SCR 1 : (1977) 4 SCC 608 [238] 58 State of Karnataka (supra) [197] 59 State of Karnataka (supra) [128] 60 State of Karnataka (supra) [123] 61 [2006] Supp. 5 SCR 1 : (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.”]

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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

53Copy pinpoint53. 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 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

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 66 Supreme Court Advocates-on-Record Association (supra) [381]

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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.”

54Copy pinpoint54. 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.

55Copy pinpoint55. 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.”]

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c. Regulation of minority educational institutions

56Copy pinpoint56. 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.

57Copy pinpoint57. 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 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,

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 [1959] 1 SCR 995 : 1958 SCC OnLine SC 8 [23] 72 In re Kerala Education Bill (supra) [24]

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and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars.”73

58Copy pinpoint58. 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

59Copy pinpoint59. 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 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

60Copy pinpoint60. 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

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] 78 Sidhajbhai Sabhai v. State of Bombay, 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]

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