State cannot fund theological schools

The Assam Repealing Act, 2020, has been in the news after the Guwahati High Court upheld its constitutional validity, and the appellants have filed an appeal in the Supreme Court. This Act seeks to convert ‘provincialised’ madrassas into regular schools under the State Education Board. The opponents of the Act contend that this Act seeks to take away minority educational and cultural rights and is thus unconstitutional.

Theological lessons alone that were previously imparted in provincialised madrassas have been repealed by the Assam government. It must be made clear from the beginning that the ‘provincialised madrassas’ are the only ones affected by this legislation, whereas the community madrassas, qawmi madrassas, and maktabs are not under the ambit of this Act.

In Md Imad Uddin Barbhuiya v. State of Assam, the term ‘provincialisation’ was explained to mean bringing something within the fold of a province; bringing it under the ownership of the state government. The court clarified that the term provincialisation is akin to nationalisation with the difference that they operate at two different levels: Nationalisation is when the central government brings something, that was privately-owned, under its control and ownership, and ‘provincialisation’ would mean the same when a state acquires a private property.

It must be noted that the madrassas where theological learning alone was delivered are not private institutions; rather, they were provincialised in 1995 through the Assam madrassa Education (Provincialisation) Act, 1995, after which their staff started receiving salaries from state funds. Post this enactment, these madrassas lost their status as minority institutions.

In the case of Azeez Basha v. Union of India, dealing with the minority status of Aligarh Muslim University, the constitutional bench of the Supreme Court held that “an institution is deemed to be founded and formed under a certain Act after it is established under that Act or converted from a private institution to an institution under that Act, and the original institution loses its status as a result of such enactment.” Therefore, it can be concluded that once the madrassas have been provincialised under relevant acts, the Venture Madrassas, which were established by a minority group, would cease to be educational institutions established by the minority. Article 30 of the Indian Constitution confers the right on minorities to establish and administer the institutions of their choice. However, in the present case, the ‘provincialised’ madrassas are the creation of a statute, and the minority community cannot claim the right to administer the “state-owned” schools as its fundamental right under Article 30.

Article 28(1) of the Indian Constitution states that no religious instruction shall be provided in any educational institution wholly maintained out of State-funds. As a result, religious instruction is prohibited in government schools. The rationale behind this was to ensure that state-run educational institutions fulfilled their fundamental responsibility of imparting modern and scientific knowledge rather than purely religious, theological, denominational, and sectarian knowledge to future generations. The provision of theological education on State funds is a gross violation of the State’s commitment to provide modern and scientific education to all. It is worth noting that the State is not attempting to regulate privately owned centres of religious instruction.

The madrassas, which are wholly funded by the state, are therefore not permitted to impart theological knowledge under the Indian Constitution. It runs counter to the notion of “secularism” that should guide government efforts in the field of education. It is forbidden for these provincialised institutions to use public funds to support “essentially religious” activities. In essence, it indicates that they are not permitted to use any public resources to finance religious pursuits. It should also be emphasised that the government will continue to fund nonreligious social service organisations.

While it violates Article 27 of the Constitution, which states 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,” such expenditure made with public funds is unconstitutional.

In the current economic context, where many states are still struggling, using public money for anything other than public welfare will be seen as an unforgivable act. The Assam Repealing Act, 2020, was a much-needed piece of legislation. This Act will have a profound impact on the students of provincialised madrassas,as they will receive modern education.

(Bajpai is a student and Fuller is an assistant professor at Rajiv Gandhi National University of Law, Punjab.)