In Imad Uddin Barbhuiyan and ors vs State of Assam and ors, the Gauhati High Court validated the Assam Repealing Act of 2020, which transferred existing provincialized madrassas in the state to mainstream and regular government schools. The petitioners’ assertion that provincialized (government-funded) madrassas are minority institutions formed and administered by the minority group is baseless, determined by a bench led by Chief Justice Sudhanshu Dhulia and Justice Soumitra Saikia.

Whilst a religious minority has the liberty to establish and operate educational institutions of their preference, religious teachings cannot be offered in such an institution if it is funded entirely by state monies, the Court said.

State madrassas cannot be regarded to be formed or administered by minority institutions because the whole teaching and non-teaching staff of these educational institutions are government employees, the Court added.

The High Court was evaluating petitions opposing the Repealing Act and the Act’s enabling executive orders.

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, were both abrogated by the Act.

The petitioners contended that the Act violated their fundamental rights under Articles 14, 21, 25, 26, 29, and 30 of the Constitution by transitioning minority institutions to government institutions.

The Court highlighted from the beginning that religious teaching and education were still provided in these provincialized madrasas, even though they were now entirely funded by the state.

The petitioners’ counsel argued that the State’s decision to remove theological subjects and convert madrasas to usual high schools under the State Education Board is a clear breach of the petitioners’ constitutionally ensured fundamental rights, as well as the madrasas formed by the minority.

Even though the government has assumed responsibility for paying their salaries and emoluments, the counsel claimed that this cannot be used to “bar” madrasas from exercising their rights under Article 30 to create and operate educational institutions of their choosing.

It was maintained that the fact that they are funded by the state, albeit in part, does not change their minority status. Furthermore, the concept that the standard of education in such madrassas is not good enough for kids to pass several tests is untrue, according to the submission, in the absence of any formal study.

The case was based on the Supreme Court’s decision in In Re Kerala Education Bill, 1957, which declared that the state could not impose any restriction on a school just because it had provided it grants, as this would violate minority’ rights under Article 30(1) of the Constitution.

S Azeez Basha Vs Union of India and a single-Judge order of the High Court were cited to argue that once educational institutions are provincialized, they lose their minority status and that the question of law in the instant case was not whether religious instruction could be given in a government school, but whether religious instruction could be given in a government school.

After considering the arguments, the High Court concluded that the right to religious freedom is not absolute.

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