Appeal in Supreme Court against Assam Repealing Act that converted State-funded madrassas to government schools

An appeal has been filed before the Supreme Court challenging a Gauhati High Court decision that upheld the Assam Repealing Act of 2020, which turned existing provincialised madrassas in the State of Assam to regular government schools..The appeal was filed by one Md. Imad Uddin Barbhuiya contending that the High Court erroneously observed that the madrassas being government schools, and wholly maintained by the State through provincialization are hit by Article 28(1) of the Constitution and cannot, therefore, be permitted to impart religious instruction."The repealing Act of 2020 takes away property coupled with statutory recognition of Madrassa education and the impugned order dated February 12, 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 plea before the top court said. .The Act had repealed two laws - the Assam Madrassa Education Provincialisation Act, 1995, and the Assam Madrassa Education (Provincialisation of Services of Employees and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 before the High Court 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 High Court had, however, held on February 4 that the claim by the petitioners that government-funded madrassas are minority institutions established and administered by the minority community is a claim which has no foundation."Though a religious minority has a right to establish and administer educational institution of its choice, yet once such educational institution starts getting maintained wholly out of the State funds then religious instructions cannot be imparted in such an institution." the High Court had observed.Since the entire teaching and non-teaching staff of these educational institutions are government servants, State madrassas cannot be said to be established or run by minority institutions, the Court had added..The appeal before the Supreme Court has stated that Assam Madrassa Education (Provincialization) Act, 1995 which was repealed by the 2020 Act, is only limited to the State undertaking to pay the salaries and provide consequential benefits to the teaching and non-teaching staff employed in madrassas as also the administration, management and control of these madrassas."The land and building belong to the madrassas are taken care by the Petitioners and the expenditures on electricity and furniture are borne by the Petitioner madrassas themselves," the plea said. The repealing Act will, however, take away the property of the madrassas and also impinge on their right to provide religious instructions, it was submitted. "Such an encroachment into the proprietary rights of the Petitioner Madrassas without payment of adequate compensation is a direct infraction of Article 30(1A) of the Constitution of India," the petition stated. It was further contended that the operation of the High Court 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.