The High Court was hearing petitions challenging the Repealing Act and enabling executive orders issued pursuant to the Act.
The Act repealed two laws – the Assam Madrassa Education Provincialisation Act, 1995, and the Assam Madrassa Education (Provincialisation of Services of Employees and Reorganisation of Madrassa Educational Institutions) Act, 2018.
The petitioners had contended that the conversion of minority institutions to government ones by the Act amounted to an invasion of their fundamental rights under Articles 14, 21, 25, 26, 29 and 30 of the Constitution.
The Court noted at the outset that “religious instructions and religious education continued to be imparted in these provincialised madrasas, although they were now wholly maintained out of State funds.“
The counsel for the petitioners submitted that the State’s decision of withdrawing subjects on theological aspects and converting madrasas to ordinary high schools under the State Education Board is a direct violation of the constitutionally guaranteed fundamental rights of the individual petitioners as well as that of the madrasas established by the minority.
The counsel argued that even as the liability to pay their salaries and emoluments have been taken over by the government, the same cannot be a ground to “disentitle” madrasas from exercising their rights under Article 30 to establish and administer educational institutions of their choice.
The State’s funding of them, that too not even wholly, does not alter their minority status, it was argued. Further, in the absence of any formal study, the notion that the standard of education in such madrassas is not high enough for students to qualify several exams is false, it was submitted.
Reliance was placed on the judgment of In Re Kerala Education Bill, 1957, in which the Supreme Court had on a presidential reference held that the State could not impose any condition on a school simply because it has given it grants as that would violate rights given to the minorities under Article 30(1) of the Constitution.
The counsel for the State argued at the outset that petition can be dismissed on the grounds of locus or misjoinder of necessary parties, since the petitioners were not directly affected by the repeal nor have they impleaded beneficiary students and staff in the matter.
The counsel added that all the State government had done was, via essentially a policy decision, remove religious instructions from the schools that were already provincialised and thus essentially government-run.
Reliance was placed on S Azeez Basha Vs Union of India and a single-Judge order of the High Court to submit that educational institutions once provincialised lose their minority status, and thus the question of law in the instant case was not of minority rights but whether there can be religious instructions at a government school.