Guwahati: The Supreme Court on Tuesday sent notice to concerned parties including the Assam Government on the appeal against the Gauhati High Court ruling that Madrassas, as government schools completely maintained by the Assam State, cannot be permitted to give religious instruction.
A bench of justices led by Ajay Rastogi and CT Ravikumar issued the ruling.
13 people have filed the petition with the help of on-the-record attorney Adeel Ahmed.
Senior Advocate Sanjay Hegde, advocates Adeel Ahmed and Abdur Razzaque Bhuyan argued in the matter.
The Assam Madrassa Education (Provincialization) Act, 1995 (which was repealed by the Act of 2020), as well as all related government orders, including the Notification of February 12, 2021, have been challenged by the petitioner. The judgement was issued by the High Court of Gauhati on February 4, 2022, and it upheld the legality of the act.
The high court noted that because Madrassas are government institutions that are entirely supported by the State due to provincialization, they are in violation of Article 28(1) of the Constitution and cannot therefore be used to teach religion.
Imad Uddin Barbhuiya is one of the petitioners. They claim that the High Court erroneously noted that the petitioner madrassas cannot be allowed to teach religion because they are government schools and are entirely supported by the State through provincialization, which is prohibited by Article 28(1) of the Indian Constitution.
The petition claims that the Assam Madrassa Education (Provincialization) Act, 1995 (which was repealed by the Act of 2020) is only limited to the State’s obligation to pay salaries and other benefits to the teaching and non-teaching staff employed in madrassas, as well as to oversee their administration, management and control.
According to the petition, the madrassas’ land and buildings are cared for by the petitioners, and they are also responsible for paying for their own furnishings and electrical costs.
“The repealing Act of 2020 takes away property coupled with statutory recognition of Madrassa education and the impugned order dated 12.02.2021 issued by the Governor disbands the ‘Assam State Madrasa Board’ created in 1954. It amounts to an arbitrary exercise of both legislative and executive powers and amounts to a denial of the Petitioner Madrassas’ ability to continue as madrassas providing religious instruction coupled with religious education,” the petition stated.
The petitioner claimed that such infringement on the petitioner madrassas’ intellectual rights without payment of adequate compensation is a clear violation of Article 30(1A) of the Indian Constitution.
“The operation of the impugned judgment would result in the discontinuation of the Petitioner Madrassas as Madrassas and would prevent them from admitting students for the old courses for this academic year,” the petitioner said.
The petition claims that the respondents have revoked the petitioner madrassas’ ability to “establish” and “administer” educational institutions of their choosing, including the right to choose their own curriculum that may also be based on their perception of ways to preserve their religion or culture, by means of the aforementioned Notification dated 12.02.2021.