Issues, and the Observations of the SC
Whether an ordinary law may be held to be unconstitutional if it is inconsistent with the doctrine of basic structure?
The SC observed and held 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, the SC 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.
Whether the State can regulate the affairs of minority educational institutions
In Re: Kerala Education Bill 1957, reported in 1958 SCC OnLine SC 8, the SC 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). 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, and which does not maintain even a fair standard of teaching or which teaches matters subversive of the welfare of the scholars.
The SC observed and held that the State has an interest in ensuring that minority educational institutions provide standards of education similar to other educational institutions. The 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. 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.
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.
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.
In PA Inamdar v. State of Maharashtra, the SC 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 grounds of the educational institution being one belonging to the minority; and
(ii) The regulation is neither aimed at nor has the effect of depriving the institution of its minority status.
Whether the Madarsa Act is a regulatory legislation?
In Bihar State Madarasa Education Board v. Madarasa Hanfia Arabic College, reported in (1990) 1 SCC 428 88, the SC observed that the State has the power to regulate the administration of minority educational institutions in the interests of educational needs and discipline of the institution. However, it was observed that the State has no power to frame rules to completely take over the management of such institutions by superseding or dissolving their management. It was further held that there is no constitutional obligation that the management board must exclusively consist of members belonging to the minority community.
The SC observed and held that 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”. The Madarsa Act does not directly interfere with the day-to-day administration of the recognized Madarsas. Further, the 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
The Madarsa Act secures the interests of the minority community in Uttar Pradesh because:
(i) It regulates the standard of education imparted by the recognised Madarsas; and
(ii) It conducts examinations and confers certificates to students, allowing them the opportunity to pursue higher education.
The 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. Therefore, the Madarsa Act furthers substantive equality for the minority community.
It further observed and held that the HC erred in holding that a statute is bound to be struck down if it is violative of the basic structure. Invalidation of a statute on the grounds of violation of secularism has to be traced to express provisions of the Constitution. Further, the fact that the State legislature has established a Board to recognise and regulate Madarsa education is not violative of Article 14. The Madarsa Act furthers substantive equality.
Whether Article 21-A conflicts with Article 30
In Pramati Educational and Cultural Trust v. Union of India, reported in (2014) 8 SCC 1, the SC held that the law enacted by Parliament under Article 21-A cannot abrogate the right of minorities to establish and administer schools of their choice. It held that application of the RTE Act to minority educational institutions, whether aided or unaided, “may destroy the minority character of the school.” Therefore, it held that the RTE Act is ultra vires the Constitution to the extent it applied to minority educational institutions.
Article 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. The constitutional scheme allows the State to strike a balance between two objectives:
(i) ensuring the standard of excellence of minority educational institutions; and
(ii) preserving the right of the minority to establish and administer its educational institution.
The State generally strikes a balance by enacting regulations accompanying the recognition of minority educational institutions.
The SC observed and held that the HC erred in holding that education provided under the Madarsa Act is violative of Article 21A because
(i) The RTE Act which facilitates the fulfilment of the fundamental right under Article 21A contains a specific provision by which it does not apply to minority educational institutions;
(ii) The right of a religious minority to establish and administer Madarsas to impart both religious and secular education is protected by Article 30; and
(iii) The Board and the state government have sufficient regulatory powers to prescribe and regulate standards of education for the Madarsas.
Whether the Madarsa Act is within the legislative competence of the State
The legislative entry pertaining to “education” is part of the Concurrent List mentioned in entry 25 which says, education, including technical education, medical education, and universities, subject to the provisions of entries 63, 64, 65, and 66 of List I; vocational and technical training of labour.
The provisions of the Madarsa Act seek to “regulate” Madarsas. These are educational institutions run by a religious minority. There is a distinction between “religious instruction” and “religious education”. While the Madarsas do impart religious instruction, their primary aim is education. Legislative entries must be given their widest meaning, and their ambit also extends to ancillary subjects which may be comprehended within the entry. The 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.
Article 28(3) provides that religious instruction may be imparted in an educational institution which is recognized by the state, or which receives state aid but no student can be compelled to participate in religious instruction in such an institution. However, the dissemination of religious instruction does not change its fundamental character as an institution that imparts education. Merely because an educational institution is run by a minority or even a majority community and professes some of its teachings, does not mean that the teachings in such institutions fall outside the ambit of the term “education”. Further, Entry 25, List III itself provides specific carve-outs. The entry is subject to entries 63, 64, 65, and 66 of List I. None of these entries in the Union List seek to regulate ‘religious education’. Further, no entry is indicated in List I with which there is a conflict so as to indicate that the legislation is a “colourable legislation” within the competence of the Parliament and not within the competence of the state legislature.
The SC observed and held that there is no jurisprudential basis to read Entry 25, List III to be limited to only education that is devoid of any religious teaching or instruction and to contend 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. The challenge on the ground of legislative competence fails.
Whether the provisions of the Madarsa Act conflict with the UGC Act
The UGC Act has been enacted by Parliament pursuant to Entry 66 and seeks to make provisions for the “co-ordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission.” The Madarsa Act has been enacted pursuant to Entry 25 of List III which has been made subject to, inter alia, Entry 66 of List I. The SC has held in a consistent line of precedent that the UGC Act occupies the field with regard to the coordination and determination of standards in higher education. Therefore, state legislation which seeks to regulate higher education, in conflict with the UGC Act, would be beyond the legislative competence of the State legislature.
Section 22(1) of the UGC Act expressly restricts the right to confer or grant degrees to;
(i) universities established or incorporated by a Central or State statute; or
(ii) an institution deemed to be a university under Section 3; or
(iii) an institution specially empowered by an Act of Parliament to confer degrees.
Section 9 of the Madarsa Act specifies the functions of the Board under the Madarsa Act. Several of these functions pertain to the regulation of the Fazil and Kamil degrees, which correspond to a bachelor’s level and a post-graduate degree, respectively.
The UGC had already notified in 2014 that the degrees of Fazil (UG) and Kamil (PG) shall fall within the ambit of Section 22 of the UGC Act.
The SC observed and held that the 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 Section 22 of the UGC Act. Entry 25 of List III, pursuant to which the Madarsa Act has been enacted, has been expressly made subject to Entry 66 of List I. The 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.
Whether the entire legislation must be struck down on the sole ground of lack of legislative competence
The only infirmity lies in the Madarsa Act which pertains to higher education, namely Fazil and Kamil. These provisions can be severed from the rest of the Madarsa Act. the purpose of the Madarsa Act was to remove the difficulties in running the Madarsas, improve their merit, and provide adequate facilities to students studying in these institutions. The purpose was not limited to only regulating Fazil and Kamil, and the legislature would have still enacted the statute if it were aware that the portions pertaining to higher education were invalid. Further, if the provisions relating to higher education are separated from the rest of the statute, the Act can continue to be enforced in a real and substantial manner. 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. The severance of these functions from the Board does not impact its entire character. Thus, only the provisions which pertain to Fazil and Kamil are unconstitutional, and the Madarsa Act otherwise remains valid.
The Bench, while dealing with the doctrine of severability observed that "it is in failing to adequately address this question of severability that the High Court falls into error and ends up throwing the baby out with the bathwater"
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