The petition has been moved by 13 persons through advocate-on-record Adeel Ahmed.
Advocate Adeel Ahmed in the petition has challenged the judgment dated February 4, 2022, passed by the High Court of Guwahati, which has upheld the validity of the Assam Madrassa Education (Provincialization) Act, 1995 (repealed by the Act of 2020) and all consequential government orders including the Notification dated February 12, 2021.
The High Court has observed, “the Madrassas being government schools wholly maintained by the State through provincialization are hit by Article 28(1) of the Constitution and cannot be permitted to impart religious instruction.”
The petitioners, who include Imad Uddin Barbhuiya, said that High Court has erroneously observed that the Petitioner Madrassas being government schools, and wholly maintained by the State through provincialization are hit by Article 28(1) of the Constitution of India and as such, cannot be permitted to impart religious instruction.
According to the petition, the Assam Madrassa Education (Provincialization) Act, 1995 (repealed by the Act of 2020) is only limited to the state undertaking to pay the salaries and provide consequential benefits to the teaching and non-teaching staff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 petition stated that the land and building belonging to the madrassas are taken care of by the Petitioners and the expenditures on electricity and furniture are borne by the Petitioner madrassas themselves.
“The repealing Act of 2020 takes away property coupled with statutory recognition of Madrassa education and the impugned order dated February 2, 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 petition read.
The petitioner submitted that such 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 operation of the impugned 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,” the petitioner said.
According to the petition, the respondents by way of the notification in question dated February 12, 2021 have abolished the right of the Petitioner Madrassas under Article 30(1) to ‘establish’ and ‘administer’ educational institutions of their choice inclusive of the right to decide their own curriculum which may also be based on their perception of ways to preserve their religion or culture.
As per the petition, on February 12, 2021, the Principal Secretary, of the Secondary Education Department in pursuance of the decision of the council of ministers issued several instructions through a notification converting madrassas into high schools and bringing it under the State Education Board, withdrawing subjects on theological aspects like the Quran, removing the name ‘Madrassa’, barring fresh admission with effect from April 1, 2021, for old courses, directing that teachers teaching theological subjects to be provided training for teaching general subjects of their aptitude, dissolving the State Madrassa Education Board after it declares the results for AY 2021-22, transference of all records, bank accounts of the SMEB to the Board of Secondary Educations.