Holding

The Madarsa Act is constitutionally valid as a regulatory scheme within State competence and consistent with secularism, but its provisions relating to higher‑education degrees (Fazil and Kamil) are unconstitutional for conflicting with the UGC Act and may be severed, leaving the rest of the Act operative.

Summary

The Uttar Pradesh Board of Madarsa Education Act, 2004, which created a board to regulate standards, teacher qualifications and examinations in madrasas, was struck down by the Allahabad High Court on the ground that it violated secularism and Articles 14 and 21A of the Constitution. The petitioners challenged the High Court’s order before the Supreme Court, raising questions of legislative competence, the basic‑structure doctrine, and conflict with the University Grants Commission Act. The Court held that the Act is a valid regulatory law within the State’s power under Entry 25 of List III and does not breach the principle of secularism or Articles 14 and 21A. However, the provisions that allow the Board to prescribe and confer higher‑education degrees (Fazil and Kamil) encroach on the field of higher education governed by the UGC Act (Entry 66 of List I) and are therefore unconstitutional. The Court applied the doctrine of severability, striking down only the offending degree‑related provisions while leaving the remainder of the Act intact. Consequently, the High Court’s judgment was set aside and the petitions were disposed.

Issues considered

Whether the Uttar Pradesh Board of Madarsa Education Act, 2004 violates the constitutional principle of secularism and Articles 14 and 21A.
Whether the Act falls within the legislative competence of the State legislature under Entry 25 of List III of the Seventh Schedule.
Whether the provisions of the Act that regulate higher‑education degrees (Fazil and Kamil) conflict with the University Grants Commission Act, 1956, and are ultra vires.
Whether the entire Act must be struck down or can be severed to save the valid portions.
Whether the basic‑structure doctrine can be invoked to invalidate the Act.
How Articles 21A and 30 interact with the regulation of minority educational institutions.

Legislation cited

Constitution (Forty‑second Amendment) Act, 1976
Constitution of Indias. Art.13(2), s. Art.14, s. Art.21A, s. Art.246, s. Art.25-30, s. Art.254, s. Art.28, s. Art.30
Right of Children to Free and Compulsory Education Act, 2009
University Grants Commission Act, 1956s. 22
Uttar Pradesh Board of Madarsa Education Act, 2004s. 10, s. 2, s. 3, s. 9

Subjects

constitutional validitysecularismminority educational institutionslegislative competenceUGC Acthigher education degreesseverabilityArticle 30Article 21Abasic structure doctrine

Judgment

[2024] 11 S.C.R. 365 : 2024 INSC 831

Anjum Kadari & Anr.
v.
Union of India & Ors.
(Special Leave Petition (C) No. 8541 of 2024)
05 November 2024
[Dr Dhananjaya Y Chandrachud,* CJI,
J.B. Pardiwala and Manoj Misra, JJ.]

Issue for Consideration
Issue arose as to correctness of the order passed by the High
Court holding the Uttar Pradesh Board of Madarsa Education
Act, 2004 to be unconstitutional on the ground that it violates the
principle of secularism and Articles 14 and 21A of the Constitution.

Headnotes†
Uttar Pradesh Board of Madarsa Education Act, 2004 –
Constitutional validity – Madarsa Act established the Uttar
Pradesh Board of Madarsa Education, to regulate, among
other things, the standards of education, qualifications for
teachers, and conduct of examinations in Madarsas in the
State of Uttar Pradesh – High Court struck down the entirety
of the Act – Correctness:
Held: Madarsa Act regulates the standard of education in Madarsas
recognized by the Board for imparting Madarsa education –
Madarsa Act is consistent with the positive obligation of the
State to ensure that students studying in recognised Madarsas
attain a level of competency which will allow them to effectively
participate in society and earn a living – Art.21-A and the RTE
Act have to be read consistently with the right of religious and
linguistic minorities to establish and administer educational
institutions of their choice – Board with the approval of the State
government can enact regulations to ensure that religious minority
institutions impart secular education of a requisite standard
without destroying their minority character – Thus, Madarsa Act
is within the legislative competence of the State legislature and
traceable to Entry 25 of List III – However, the provisions of the
Madarsa Act seeking to regulate higher-education degrees, such

* Author
366 [2024] 11 S.C.R.

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as Fazil and Kamil unconstitutional as they are in conflict with the
UGC Act, enacted under Entry 66 of List I – Judgment of the High
Court set aside. [Para 104]
Uttar Pradesh Board of Madarsa Education Act, 2004 –
Legislative competence – Madarsa Act, if within the legislative
competence of the State under Entry 25, List III – Provisions
of Madrasa Act, if in conflict with the UGC Act enacted under
entry 66, List I – Entire Madrasa Act, if need to be struck
down as some of its provisions contravened the provisions
of the UGC Act:
Held: Provisions of the Madarsa Act seek to “regulate” Madarsas
which are educational institutions run by religious minority – While
the Madarsas do impart religious instruction, their primary aim is
education – Mere fact that the education which is sought to be
regulated includes some religious teachings or instruction, does not
automatically push the legislation outside the legislative competence
of the state – No jurisprudential basis to read Entry 25, List III to
be limited to only education that is devoid of any religious teaching
or instruction – Thus, cannot be said that the Madarsa Act (in its
entirety) which seeks to regulate the functioning of Madarsas in
Uttar Pradesh is outside the competence of the state legislature –
Madarsa Act has been enacted pursuant to Entry 25 of List III –
UGC Act enacted by Parliament pursuant to Entry 66, occupies the
field with regard to the coordination and determination of standards
in Universities – Thus, State legislation which seeks to regulate
higher education, in conflict with the UGC Act, would be beyond the
legislative competence of the State legislature – Madarsa Act to the
extent to which it seeks to regulate higher education, including the
‘degrees’ of Fazil and Kamil, is beyond the legislative competence
of the State Legislature since it conflicts with s.22 of the UGC Act –
UGC Act governs the standards for higher education and a state
legislation cannot seek to regulate higher education, in contravention
of the provisions of the UGC Act – Furthermore, entire statute does
not need to be struck down each time that certain provisions of the
statute are held to not meet constitutional muster – Statute is void to
the extent that it contravenes the Constitution – On an examination
of the Madarsa Act, it is clear that prescribing the instructional
material, conducting exams and conferring degrees for Fazil and
Kamil were only a part of the functions of the Board – Infirmity lies
in the said provisions which can be severed from the rest of the
Madarsa Act – Severance of these functions from the Board does
[2024] 11 S.C.R. 367

Anjum Kadari & Anr. v. Union of India & Ors.

not impact its entire character, the Act can continue to be enforced
in a real and substantial manner – Thus, only the provisions which
pertain to Fazil and Kamil are unconstitutional, and Madarsa Act
otherwise remains valid. [Paras 85, 90, 93, 99, 101, 103]
Uttar Pradesh Board of Madarsa Education Act, 2004 –
Regulatory legislation:
Held: Enactment of the Act of 2004 is to regulate the standard
of education in Madarsas recognized by the Board for imparting
Madarsa education – Madarsa Act grants recognition to Madarsas
to enable students to sit for an examination and obtain a degree,
diploma, or certificate conferred by the Board – Statute envisages
granting recognition to Madarsas which fulfil the prescribed
standards for staff, instructions, equipment and buildings – Grant
of recognition imposes a responsibility on the Madarsas to attain
certain standards of education laid down by the Board – Failure
of the Madarsas to maintain the standards of education will result
in the withdrawal of their recognition – Regulations pertaining to
standards of education or qualification of teachers do not directly
interfere with the administration of the recognized Madarsas –
Such regulations are “designed to prevent maladministration
of an educational institution” – Provisions of the Madarsa Act
are “conducive to making the institution an effective vehicle of
education for minority community” without depriving the educational
institutions of their minority character – Madarsa Act secures the
interests of the minority community in Uttar Pradesh because it
regulates the standard of education imparted by the recognised
Madarsas; and it conducts examinations and confers certificates to
students, allowing them the opportunity to pursue higher education –
Madarsa Act is consistent with the positive obligation of the State
to ensure that students studying in the recognised Madarsas attain
a minimum level of competency which will allow them to effectively
participate in society and earn a living – Thus, the Madarsa Act
furthers substantive equality for the minority community – State
legislature has established a Board to recognise and regulate
Madarsa education is not violative of Art.14. [Paras 58, 65, 72, 73]
Constitution of India – Art.21-A and 30 – Interplay of Art.21-A
and Art.30 – Explanation:
Held: Art.21-A provides that the State shall provide free and
compulsory education to all children of the age of six to fourteen
years in such manner as the State may, by law, determine – It
368 [2024] 11 S.C.R.

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imposes a constitutional obligation on the State to impart elementary
and basic education – Art.30(1) guarantees the right to establish
and administer educational institutions of their choice to religious
and linguistic minorities – However, the State has an interest in
ensuring that the minority educational institutions impart secular
education along with religious education or instruction – State
generally strikes a balance by enacting regulations accompanying
the recognition of minority educational institutions – High Court
erred in holding that education provided under the 2004 Act is
violative of Art.21A because RTE Act which facilitates the fulfilment
of the fundamental right u/Art.21 contains a specific provision by
which it does not apply to minority educational institutions; the
right of a religious minority to establish and administer Madarsas
to impart both religious and secular education is protected by
Art.30; and Board and State Government have sufficient regulatory
powers to prescribe and regulate standards of education for the
Madarsas – Uttar Pradesh Board of Madarsa Education Act, 2004 –
Right of Children to Free and Compulsory Education Act, 2009.
[Paras 74-79]
Education/Educational Institutions – Madarasas – History of
Madarsas – Teaching in Madarsas – Elucidated. [Paras 2-23]
Constitution of India – Arts.25-30, 14-16 – Secularism in the
constitutional context – Secularism and regulation of minority
educational institutions – Stated. [Paras 37-45]
Constitution of India – Art.30(1) – Secularism – Concept of
positive secularism:
Held: In the spirit of positive secularism, Art.30 confers special
rights on religious and linguistic minorities because of their numerical
handicap and to instil in them a sense of security and confidence –
Positive concept of secularism requires the State to take active
steps to treat minority institutions on par with secular institutions
while allowing them to retain their minority character – Positive
secularism allows the State to treat some persons differently to
treat all persons equally – Concept of positive secularism finds
consonance in principle of substantive equality. [Para 70]
Constitution of India – Basis structure doctrine – Testing the
validity of a statute for violation of the basic structure:
Held: Statute can be struck down only for the violation of Part III
or any other provision of the Constitution or for being without
[2024] 11 S.C.R. 369

Anjum Kadari & Anr. v. Union of India & Ors.

legislative competence – Constitutional validity of a statute
cannot be challenged for the violation of the basic structure of the
Constitution since the concepts such as democracy, federalism,
and secularism are undefined concepts – Allowing courts to strike
down legislation for violation of such concepts will introduce an
element of uncertainty – Challenge to the constitutional validity of
a statute for violation of the basic structure is a technical aspect
because the infraction has to be traced to the express provisions
of the Constitution – Thus, in a challenge to the validity of a statute
for violation of the principle of secularism, it must be shown that
the statute violates provisions of the Constitution pertaining to
secularism – High Court erred in holding that a statute is bound
to be struck down if it is violative of the basic structure. [Para 55]
Constitution of India – Minority educational institutions –
Regulation of, by the State:
Held: State has an interest in ensuring that minority educational
institutions provide standards of education similar to other
educational institutions – State can enact regulatory measures
to promote efficiency and excellence of educational standards –
Regulations about standards of education do not directly bear upon
the management of minority institutions – State can regulate aspects
of standards of education such as course of study, qualification
and appointment of teachers, health and hygiene of students,
and facilities for libraries – Affiliation or recognition of minority
educational institutions by the Government secures the academic
interests of students studying in such institutions to pursue higher
education. [Paras 58, 62]
Constitution of India – Legislative competence of the state
legislature – Interpretation of the entries in the Seventh
Schedule – Relevant principles – Elucidated. [Para 84]

Case Law Cited
Anshuman Singh Rathore v. Union of India and Others, Writ
(C) No. 6049 of 2023; S.R. Bommai v. Union of India [1994] 2
SCR 644; Dr. M. Ismail Faruqui v. Union of India [1994] Supp. 5
SCR 1 : (1994) 6 SCC 360; Seshammal v. State of Tamil Nadu
[1972] 3 SCR 815 : (1972) 2 SCC 11; Ratilal Panachand Gandhi
v. State of Bombay [1954] 1 SCR 1055 : (1954) 1 SCC 487;
D.A.V. College v. State of Punjab [1971] Supp. 1 SCR 677 :
(1971) 2 SCC 269; Aruna Roy v. Union of India [2002] Supp. 2
370 [2024] 11 S.C.R.

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SCR 266 : (2002) 7 SCC 368; Ahmedabad St Xavier’s College
Society v. State of Gujarat [1975] 1 SCR 173 : (1974) 1 SCC
717; T.M.A. Pai Foundation v. State of Karnataka [2002] Supp. 3
SCR 587 : (2002) 8 SCC 481; Indira Nehru Gandhi v. Raj Narain
[1978] 2 SCR 405 : 1975 Supp SCC 1; State of Kerala v. Peoples
Union for Civil Liberties [2009] 11 SCR 142 : (2009) 8 SCC 46;
State of A.P. v. McDowell & Co. [1996] 3 SCR 721 : (1996) 3
SCC 709; State of Karnataka v. Union of India [1978] 2 SCR 1 :
(1977) 4 SCC 608; Kuldip Nayar v. Union of India [2006] Supp.
5 SCR 1 : (2006) 7 SCC 1; Madras Bar Association v. Union of
India [2014] 10 SCR 1 : (2014) 10 SCC 1; Ashok Kumar Thakur
v. Union of India [2007] 7 SCR 63 : (2008) 6 SCC 1; Supreme
Court Advocates-on-Record Association v. Union of India (2016)
5 SCC 1; State of Kerala v. Very Rev. Mother Provincial [1971]
1 SCR 734 : (1970) 2 SCC 417; In re Kerala Education Bill 1957
[1959] 1 SCR 995 : 1958 SCC OnLine SC 8; Saints High School
v. Government of AP [1980] 2 SCR 924 : (1980) 2 SCC 478;
Dayanand Anglo Vedic (DAV) College Trust and Management
Society v. State of Maharashtra [2013] 4 SCR 821 : (2013) 4
SCC 14; Sidhajbhai Sabhai v. State of Bombay [1963] 3 SCR
837 : 1962 SCC OnLine SC 150; Milli Talimi Mission v. State of
Bihar [1985] 1 SCR 410 : (1984) 4 SCC 500; Frank Anthony Public
School Employees’ Association v. Union of India [1987] 1 SCR
238 : (1986) 4 SCC 707; Bihar State Madarasa Education Board v.
Madarasa Hanfia Arabic College [1989] Supp. 2 SCR 399 : (1990)
1 SCC 428; Supriyo v. Union of India [2023] 16 SCR 1209 : 2023
SCC OnLine SC 1348; St Stephens College v. University of Delhi
[1991] Supp. 3 SCR 121 : (1992) 1 SCC 558; Joseph Shine v.
Union of India [2018] 11 SCR 765 : (2019) 3 SCC 39; Ravinder
Kumar Dhariwal v. Union of India [2021] 13 SCR 823 : (2023)
2 SCC 209; Neil Aurelio Nunes v. Union of India [2022] 1 SCR
970 : (2022) 4 SCC 1; Bharatiya Seva Samaj Trust v. Yogeshbhai
Ambalal Patel [2012] 7 SCR 1054 : (2012) 9 SCC 310; State of
Tamil Nadu v. K Shyam Sunder [2011] 11 SCR 1094 : (2011)
8 SCC 737; Society for Unaided Private Schools of Rajasthan
v. Union of India [2012] 2 SCR 715 : (2012) 6 SCC 1; Pramati
Educational and Cultural Trust v. Union of India [2014] 11 SCR
712 : (2014) 8 SCC 1; Maharashtra State Board of Secondary and
Higher Secondary Education v. K S Gandhi [1991] 1 SCR 772 :
(1991) 2 SCC 716; Mineral Area Development Authority & Anr.
v Steel Authority of India & Anr. [2024] 8 SCR 540 : 2024 INSC
[2024] 11 S.C.R. 371

Anjum Kadari & Anr. v. Union of India & Ors.

607; Forum for People’s Collective Efforts v. State of W.B. [2021]
5 SCR 613 : (2021) 8 SCC 599; Prof. Yashpal & Anr. v. State
of Chhattisgarh [2005] 2 SCR 23 : (2005) 5 SCC 420; R.M.D.
Chamarbaugwalla v. Union of India [1957] 1 SCR 930 : 1957
SCC OnLine SC 11 – referred to.

Books and Periodicals Cited
Yoginder Sikand, Bastions of the Believers: Madrasas and
Islamic Education in India (Penguin Books, 2005); Arshad Alam,
‘Understanding Madrasas’ (2003) 38(22) Economic and Political
Weekly 2123; Padmaja Nair, The State and madrasas in India
(Working Paper 15, University of Birmingham 2009) 11; Social,
Economic and Educational Status of the Muslim Community of
India: A Report (Prime Minister’s High Level Committee, Cabinet
Secretariat, Government of India) Appendix Table 4.4 (293).

List of Websites
https://archive.pib.gov.in/archive/releases98/lyr2003/rdec2003/
12122003/r1212200330.html); Department of School Education and
Literacy, https://dsel.education.gov.in/spemm; Central Sponsored
Scheme for Providing Quality Education in Madrasa, https://www.
education.gov.in/sites/upload_files/mhrd/files/upload_document/
SPQEM-scheme.pdf.

List of Acts
Uttar Pradesh Board of Madarsa Education Act, 2004; Right
of Children to Free and Compulsory Education Act, 2009;
University Grants Commission Act 1956; Constitution of India;
Constitution (Forty-second Amendment) Act, 1976; Uttar Pradesh
Non-governmental Arabic and Persian Madarsa Recognition,
Administration and Services (Second Amendment) Regulations,
2018; Madrasa Education Rules 1969; Non-Government Arabic
and Persian Madrasa Recognition Rules 1987; Uttar Pradesh
Non-Governmental Arabic and Persian Madarsa Recognition,
Administration and Services Regulations, 2016; Bihar State
Madarasa Education Board Act 1982; Government of India Act 1935.

List of Keywords
Constitutionality of Uttar Pradesh Board of Madarsa Education
Act, 2004; Principle of secularism; Regulate standards of
education, qualifications for teachers, and conduct of examinations
372 [2024] 11 S.C.R.

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in Madarsas; Standard of education in Madarsas; Imparting
Madarsa education; Positive obligation of State; Level of
competency; Religious and linguistic minorities to establish and
administer educational institutions; Religious minority institutions;
Secular education; Minority character; Legislative competence;
Higher-education degrees; Fazil and Kamil degrees; Religious
teachings or instruction; Coordination and determination of
standards in Universities; Regulatory legislation; Interplay of
Art. 21-A and Art. 30 of Constitution; Impart elementary and
basic education; Madarasas; History of Madarsas; Teaching in
Madarsas; Secularism in constitutional context; Secularism and
regulation of minority educational institutions; Secularism; Positive
secularism; Basis structure doctrine; Constitutional validity of
statute; Democracy; Federalism; Element of uncertainty; Regulatory
measures to promote efficiency and excellence of educational
standards; Legislative competence of state legislature; Interpretation
of entries in Seventh Schedule.

Case Arising From
CIVIL APPELLATE/ ORIGINAL JURISDICTION: Special Leave
Petition (C) No. 8541 of 2024
From the Judgment and Order dated 22.03.2024 of the High Court
of Judicature at Allahabad, Lucknow Bench in WC No. 6049 of 2023
With
Special Leave Petition (C) Nos. 7857, 7821, 7878, 7890 and 13038
of 2024, Contempt Petition (C) No. 591 of 2024 In SLP (C) No. 7878
of 2024 and Transfer Petition (C) No. 2697 of 2024
Appearances for Parties
Tushar Mehta, SG, KM Nataraj, A.S.G., Sharan Dev Singh
Thakur, Sr. A.A.G., Ms. Swarupama Chaturvedi, M.R. Shamshad,
P. Chidambaram, Dr. Abhishek Manu Singhvi, Mukul Rohatgi,
P. S. Patwalia, Salman Khurshid, Dr. Menaka Guruswamy,
Ms. Madhavi Divan, Nachiketa Joshi, Guru Krishna Kumar,
M.R. Shamshad, Sr. Advs., Abhaid Parikh, Mohd Kumail Haider,
Arijit Sarkar, Syed Jafar Raza Zaidi, Ms. Zeb Hasan, Mohd. Waquas,
Shariq Ahmed, Talha Abdul Rahman, Tariq Ahmed, Vinay Vats,
Faizan Ahmad, M/s. Ahmadi Law Offices, Rohit Amit Sthalekar,
Sankalp Narain, M.A. Ausaf, Hritudhwaj Pratap Sahi, H.P. Sahi,
Srivats Narain, Ms. Ranjeeta Rohatgi, Yash Johri, Ms. Lubna Naaz,
[2024] 11 S.C.R. 373

Anjum Kadari & Anr. v. Union of India & Ors.

Pradeep Kumar Yadav, Gopal Singh, Vishal Thakre, Ms. Anjale Patel,
Ms. Chhaya, Utkarsh Pratap, Ms. Arunima Das, Gagan Kumar,
Sanjeev Malhotra, Mahesh Thakur, Santosh Kumar, Mrs. Santosh
Kumar, Praneet Pranav, Ms. Sindoora Vnl, Sai Shashank, Ms. Aarushi
Singh, Amit Sharma, Vikash Chandra Shukla, Rahul G. Tanwani,
Ms. Bhavya Tyagi, Ms. Aishaani Narain, Ms. Nidhi Khanna, Ms. Aditi
Tripathi, Ms. Ruchira Goel, Siddharth Thakur, Ms. Indira Bhakar,
Amrish Kumar, Kanu Agrawal, Sansriti Pathak, Aaditya Dixit, Amit
Sharma V, Ms. Rajeshwari Shankar, Gurmeet Singh Makker, Anas
Tanwir, Ebad Ur Rahman, Afzal Ahmad Siddiqui, Ms. Masoom Raj
Singh, Mohd. Asif Abbas, Tadimalla Bhaskar Gowtham, Subodh S.
Patil, Alabhya Dhamija, Pulkit Shrivastava, Shuvodeep Roy, Gautam
Singh, Bhakti Vardhan Singh, Ashwin K., Ranjeet Mishra, Krishna
Kant Dubey, Mohneesh Pratap Singh, Ms. Saumya Kapoor, Aayush
Shivam, Ms. Kavita Chaturvedi, Manoj Ranjan Sinha, Vishal Agrawal,
Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
Dr Dhananjaya Y Chandrachud, CJI.
Table of Contents*

A. Introduction .................................................................. 4
B. Background .................................................................. 4
a. History of Madarsas ............................................. 4
b. Teaching in Madarsas .......................................... 6
c. Madarsa Act ........................................................... 9
d. Steps taken by the State Government and the
Board pursuant to the Madarsa Act ................... 18
e. Proceedings before the High Court and
Impugned Judgment ............................................ 20
f. Steps taken by the State Government and the
proceedings before this Court ............................ 23
C. Submissions ................................................................ 24
D. Secularism and regulation of minority educational
institutions ................................................................... 29

* Ed. Note: Pagination as per the original Judgment.
374 [2024] 11 S.C.R.

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a. Secularism in the constitutional context ........... 29
b. Testing the validity of a statute for violation of
the basic structure of the Constitution .............. 34
c. Regulation of minority educational institutions .... 41
d. The Madarsa Act is a regulatory legislation ...... 45
e. Interplay of Article 21-A and Article 30 .............. 51
E. Legislative Competence ............................................. 54
a. The Madarsa Act is within the legislative
competence of the State under Entry 25,
List III ..................................................................... 54
b. Certain provisions of the Madarsa Act
conflict with the UGC Act enacted under
Entry 66, List I ....................................................... 59
c. The entire Madarsa Act need not be struck
down on the above ground ................................. 65
F. Conclusion ................................................................... 69

A. Introduction
1. The High Court of Judicature at Allahabad1 has held the Uttar Pradesh
Board of Madarsa Education Act, 20042 to be unconstitutional on
the ground that it violates the principle of secularism and Articles 14
and 21A of the Constitution. The Madarsa Act established the Uttar
Pradesh Board of Madarsa Education,3 to regulate, among other
things, the standards of education, qualifications for teachers, and
conduct of examinations in Madarsas in the State of Uttar Pradesh.
The entirety of the Act has been struck down by the High Court.
B. Background
a. History of Madarsas
2. The term ‘madarsa’ refers to any school or college where any sort of
education is imparted.4 The history of the establishment of Madarsas

1 “High Court”
2 “Madarsa Act”
3 “Board”
4 Yoginder Sikand, Bastions of the Believers: Madrasas and Islamic Education in India (Penguin Books,
2005)
[2024] 11 S.C.R. 375

Anjum Kadari & Anr. v. Union of India & Ors.

in the Indian subcontinent may be traced to the rule of the Tughlaqs.5
The pre-colonial Madarsas were of two types: (i) the Maktabs which
were attached to mosques and imparted elementary education; and
(ii) the Madarsas which were centres of higher learning and contributed
to the administrative, religious, and cultural needs of the prevalent
society.6 During colonial rule, the relative importance of Madarsas
diminished with the introduction of English as the language of the
colonial administration.7
3. The colonial government formulated the Education Code of 1908 to
recognize Madarsas in Uttar Pradesh for conducting Arabi-Pharsi
examinations. The Arabic institutions preparing candidates for Maulvi,
Alim, and Fazil examinations and the Persian institutions preparing
candidates for Munshi and Kamil examinations were required to make
an application to the Registrar of Arabic and Persian Examinations.
4. After Independence, the Department of Education of the UP
government issued the Madrasa Education Rules 1969 to bring
Madarsas under the domain of the Education Department.
Subsequently, the State government framed the UP Non-Government
Arabic and Persian Madrasa Recognition Rules 19878 to govern the
procedure for recognition and the terms and conditions of service of
teachers in the Madarsas. According to the 1987 Rules, recognition to
Madarsas was granted by the Recognition Committee and confirmed
by the Registrar of Arabic and Persian Exams. The 1987 Rules also
prescribed requirements for the quality of buildings and eligibility
qualifications for teaching staff as a precondition to the grant of
recognition. In 1996, the management of Madarsas was transferred
to the Minority Welfare and Waqf Department of the UP government.
5. The Central government has also framed schemes to modernize
education imparted in Madarsas. In 1993-1994, the Central
Government implemented the Area Intensive and Madrasa
Modernization Programme9 to encourage Madarsas and Maktabs

5 ibid
6 Arshad Alam, ‘Understanding Madrasas’ (2003) 38(22) Economic and Political Weekly 2123
7 Padmaja Nair, The State and madrasas in India (Working Paper 15, University of Birmingham 2009) 11
8 “1987 Rules”
9 “Madrasa Modernization Programme” (Under the Madrasa Modernization Programme, the government
covered the salary of two madrasa teachers who taught modern subjects. It also provided one-time
grants for purchase of science and math kits and book-banks for the madrasa libraries. See PIB,
376 [2024] 11 S.C.R.

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to teach modern subjects such as Science, Mathematics, English,
Hindi, and Social Studies alongside the traditional curriculum. The
Madrasa Modernization Programme subsequently became a part of
the Sarva Shiksha Abhiyan. During the 11th Five Year Plan (2007 to
2011), the Ministry of Human Resource Development implemented the
Scheme for Providing Quality Education in Madrasas to encourage
and incentivize Madarsas and Maktabs to impart education in modern
subjects by providing them financial assistance.10 Only Madarsas
which have been in existence for at least three years and registered
under central or state legislation, Madarsa boards, or waqf boards
are eligible to apply for assistance under this scheme.11
b. Teaching in Madarsas
6. According to the data placed on record in the affidavit filed by the
State of Uttar Pradesh, there are presently around thirteen thousand
Madarsas catering to more than twelve lakh students in the state.
The following table is instructive:

Type of Madarsas Number of Madarsas Number of students
State funded 560 1,92,317
Permanently 3,834 4,37,237
recognized
(non-state funded)
Temporarily 8,970 6,04,834
recognized
(non-state funded)
Total 13,364 12,34,388

7. The state government has an annual budget of Rupees one thousand
and ninety-six crores for the salaries of teaching and non-teaching
staff working in the state-aided Madarsas. The state government
also provides books and midday meals to students of state-funded
Madarsas. Moreover, it also operates Industrial Training Institutes in

Ministry of Human Resource Development, Centre Releases Rs. 5.9 crore for madrasa modernization
(12 December 2003) https://archive.pib.gov.in/archive/releases98/lyr2003/rdec2003/12122003/
r1212200330.html)
10 Department of School Education and Literacy, https://dsel.education.gov.in/spemm
11 Central Sponsored Scheme for Providing Quality Education in Madrasa, https://www.education.gov.in/
sites/upload_files/mhrd/files/upload_document/SPQEM-scheme.pdf
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recognised Madarsas to teach trades such as welding, mechanics,
and stenography.
8. Academic education in Madarsas is broadly divided into four
levels: (i) Tathania (equivalent of elementary classes I to V);
(ii) Fauquania (equivalent to upper elementary classes VI to VIII);
(iii) Maulvi or munshi (equivalent to a certificate of secondary school
or Xth standard); and (iv) Alim (certificate of senior secondary level
examination or XIIth standard).
9. The syllabus until the Alim classes is in accordance with the syllabus
of the Uttar Pradesh State Council of Educational Research and
Training.12 For the Munshi/Maulvi and Alim levels, the Madarsas
teach subjects such as theology (Sunni and Shia), Arabic literature,
Persian literature, Urdu literature, General English, General Hindi,
and optional subjects such as Mathematics, Home Sciences, Logic
and Philosophy, Social Sciences, Science, Tibb (medical science),
and Typing. The Munshi/Maulvi and Alim certificates are treated
equivalent to High School and Intermediate levels respectively by
the Uttar Pradesh government and the Government of India. The
Sachar Committee Report suggests that most students study in
Madarsas only till primary and middle classes.13
10. A few Madarsas also award certificates of Kamil (undergraduate
degree) and Fazil (post-graduate degree). The State of Uttar Pradesh
has stated in its affidavit that Kamil and Fazil degrees awarded by
Madarsas are not recognised as alternatives to graduate and post-
graduate degrees respectively. The government further states:
“At the undergraduate and post graduate level, the U.P
Madrasa Board grants the Qamil and Fazil degrees
respectively, specialized courses for the education of
Arabic-Persian and Deenyat subjects, which are the
minimum educational qualifications required for imparting
education of Arabic-Persian and Deenyat subjects in
Madrasas. These courses have not been given equivalence
by the Government of Uttar Pradesh/Government of India/

12 “SCERT”
13 Social, Economic and Educational Status of the Muslim Community of India: A Report (Prime Minister’s
High Level Committee, Cabinet Secretariat, Government of India) Appendix Table 4.4 (293)
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any university established by law, nor has the education
of these courses been recognized as an alternative to
the graduation/post-graduation degree of a university
established by law for employment at the level of Uttar
Pradesh Government or Government of India.”
11. Consequently, students educated in Madarsas are only eligible for
occupations that have High School or Intermediate as qualification
requirements. While Kamil and Fazil are not considered to be
alternatives to the regular undergraduate and post-graduate degrees,
a notification issued by the University Grants Commission14 in March
2014 which lists the degrees governed by the University Grants
Commission Act 195615 includes both Fazil and Kamil under the title
of ‘Specification of Degrees with Urdu/Persian/Arabic nomenclature’.
The effect of the notification shall be considered in the course of
the judgment.
c. Madarsa Act
12. The State legislature of Uttar Pradesh enacted the Madarsa Act
which was deemed to come into force on 3 September 2004. The
long title of the Madarsa Act states that it is “an Act to provide for
the establishment of a Board of Madarsa Education in the State
and for the matters connected therewith and incidental thereto”.
The Statement of Objects and Reasons indicates the reason for
the enactment:
“In para 55 of the Education Code the Registrar, Arabi-
Pharasi Examinations, Uttar Pradesh, Allahabad had
been authorised to recognise the Arabi-Pharasi Madarsas
in the State and for conducting the examinations of
such Madarsas. These Madarsas were managed by
the Education Department. But with the creation of the
Minority Welfare and Wakfs Department in 1995 all the
works relating to such Madarsas were transferred from
Education Department to the Minority Welfare Departments
by virtue of which all the works relating to Madarsas are
being performed under the control of the Director, Minority

14 “UGC”
15 “UGC Act”
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Welfare, Uttar Pradesh and the Registrar/Inspector Arabi-
Pharasi Madarsas, Uttar Pradesh. The Arabi-Pharasi
Madarsas were being administered under the Arabi-Pharasi
Madarsas Rules, 1987 but since the said rules have not
been made under an Act, many complication [sic] arose in
running the Madarsas under the said rules. Therefore, with
a view to removing the difficulties arisen in running
the Madarsas, improving the merit therein and making
available the best facility of study to the students
studying in Madarsas it was decided to make a law to
provide for the establishment of a Board of Madarsa
Education in the state and for the matters connected
therewith or incidental thereto.
…”
(emphasis supplied)
13. Section 2 provides definitions. The expressions “institution”, “Madarsa
Education” and “recognition” have been defined as follows:
“2. Definitions. — In this Act unless the context otherwise
requires: —
…
(j) “institution” means the Government Oriental College,
Rampur and includes a Madarsa or an Oriental College
established and administered by Muslim Minorites and
recognized by the Board for imparting Madarsa-Education;
(h) “Madarsa-Education” means education in Arabic, Urdu,
Parsian, Islamic studies, Tibb Logic, Philosophy and
includes such other branches of learning as may be
specified by the Board from time to time;
…
(j) “recognition” means, recognition for the purpose
of preparing candidates for admission to the Board’s
Examination;
…”
(emphasis supplied)
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14. Section 3 provides the constitution of the Board. Sub-section (1) of
Section 3 provides that the Board shall be established at Lucknow
on the date declared by the State government by a notification.
Sub-section (2) states that the Board shall be a body corporate, while
Sub-section (3) details the composition of the Board. The majority of
the members of the Board are either part of the State Government
(or the legislature) or nominated by the State Government. The Board
consists of the following members:
a. a renowned Muslim educationist in the field of Madarsa
Education, nominated by the State Government, who is the
Chairperson;
b. the Director, Minority Welfare, Uttar Pradesh, who is the Vice
Chairperson;
c. principal, Government Oriental College, Rampur;
d. one Sunni-Muslim Legislator to be elected by both houses of
the State Legislature;
e. one Shia-Muslim Legislator to be elected by both houses of
the State Legislature;
f. one representative of the National Council for Educational
Research and Training (NCERT);
g. two heads of institutions established and administered by Sunni
Muslims, nominated by the State Government;
h. one head of institution established and administered by Shia
Muslims, nominated by the State Government;
i. two teachers of institutions established and administered by
Sunni Muslims nominated by the State Government;
j. one teacher of an institution established and administered by
Shia Muslims, nominated by the State Government;
k. one Science or Tibb teacher of an institution nominated by
the State Government;
l. the Account and Finance Officer in the Directorate of Minority
Welfare, Uttar Pradesh;
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m. the Inspector;16 and
n. an officer not below the rank of Deputy Director nominated by
the State Government, who is the Registrar.
15. Sub-section (4) of Section 3 deals with the issuance of a notification
by the State Government that the Board has been duly constituted,
after the election and nomination of the members. Sub-section (5)
pertains to the procedure to nominate or elect members who
are Sunni-Muslim or Shia-Muslim legislators in certain special
circumstances. Sub-section (6) stipulates that from the date of the
establishment of the Board, the erstwhile Arbi and Farsi Education
Board shall stand dissolved.
16. Section 4 pertains to the power of the State Government to remove
members, other than ex-officio members, from the Board. This
removal may be ordered, if in the opinion of the State Government,
the member has “so flagrantly abused his position … as to render
his continuance on the Board detrimental to the public interest”.
Section 5 specifies the term of office of the members and Section 6
mandates that the State Government take steps to reconstitute
the Board before the expiry of the terms of office of the members.
Section 7 governs the procedural specificities of the meetings of
the Board, while Section 8 clarifies that no acts of the Board or its
committees may be invalidated on the ground of a vacancy or defect
in its constitution.
17. Section 9 which enunciates the functions of the Board, is relevant
to the constitutional challenge before us. The functions of the Board
are wide-ranging and relate to inter alia prescribing the course
material, granting degrees or diplomas, conducting examinations,
recognizing institutions to conduct exams, conducting research
and training, and other incidental functions. These functions are
exercised at various levels of education detailed above – Tahtania,
Fauquania, Munshi, Maulvi, Alim, Kamil, Fazil, and other courses.
The provision reads thus:

16 “Inspector” has been defined in S.2(e) of the Act as: “(e) ‘‘Inspector’’ means the inspector, Arabic
Madarsas, Uttar Pradesh and includes an officer authorised by the State Government to perform all or
any of the functions of the inspector under this Act”
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“9. Functions of the Board. — Subject to the other
provisions of this Act the Board shall have the following
functions, namely: —
(a) to prescribe course of instructions, textbooks, other
books and instructional material, if any, for Tahtania,
Fauquania, Munshi, Maulavi, Alim, Kamil, Fazil and
other courses;
(b) prescribe the course books, other books and
instruction material of courses of Arbi, Urdu and
Pharsi for classes up to High School and Intermediate
standard in accordance with the course determined
there for by the Board of High School and Intermediate
Education;
(c) to prepare manuscript of the course books, other
books and instruction material referred to in clause
(b) by excluding the matters therein wholly or partially
or otherwise and to publish them;
(d) prescribe standard for the appointment of Urdu
translators in the various offices of the State and
ensure through the appointing authority necessary
action with respect to filling up of the vacant posts;
(e) to grant Degrees, Diplomas, Certificates or other
academic distinctions to persons, who—
(i) have pursued a course of study in an institution
admitted to the privileges or recognition by the
Board;
(ii) have studied privately under conditions laid
down in the regulations and have passed an
examination of the Board under like conditions;
(f) to conduct examinations of the Munshi, Maulavi, Alim
and of Kamil and Fazil courses;
(g) to recognize institutions for the purposes of its
examination;
(h) to admit candidates to its examination;
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Anjum Kadari & Anr. v. Union of India & Ors.

(i) to demand and receive such fee as may be prescribed
in the regulations;
(j) to publish or withhold publication of the result of its
examinations wholly or in part;
(k) to co-operate with other authorities in such a manner
and for such purposes as the Board may determine;
(l) to call for reports from the Director on the condition
of recognised institutions or of institutions applying
for recognition;
(m) to submit to the State Government its views on any
matter with which it is concerned;
(n) to see the schedules of new demands proposed
to be included in the budget relating to institutions
recognised by it and to submit if it thinks fit its views
thereon for the consideration of the State Government;
(o) to do all such other acts and things as may be
requisite in order to further the objects of the Board
as a body constituted for regulating and supervising
Madarsa-Education up to Fazil;
(p) to provide for research or training in any branch of
Madarsa-Education viz, Darul Uloom Nav Uloom,
Lucknow, Madarsa Babul lim, Mubarakpur, Azamgarh,
Darul Uloom Devband, Saharanpur, Oriental College
Rampur and any other institution which the State
Government may notify time to time.
(q) to constitute a committee at district level consisting
of not less than three members for education up to
Tahtania or Faukania standard, to delegate such
committee the power of giving recognition to the
educational institutions under its control.
(r) to take all such steps as may be necessary or
convenient for or as may be incidental to the exercise
of any power, or the performance or discharge of
any function or duty, conferred or imposed on it by
this Act.”
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18. Section 10 pertains to the ‘Powers of the Board’. Sub-section (1)
defines these powers in general terms and stipulates that the Board
shall have all such powers as may be necessary for the performance
of its functions and the discharge of its duties under the Madarsa Act
or the allied rules and regulations. Sub-section (2) details specific
powers of the Board, without prejudice to the generality of the powers
of the Board detailed in sub-section (1). These powers inter alia
include the power to cancel or withhold the result of an examination,
prescribe fees for the examinations conducted, refuse recognition
of an institution, call for reports from and inspect institutions to
ensure compliance with the prescribed rules and regulations and
fix the maximum number of students to be admitted to a course.
Sub-section (3) clarifies that the decision of the Board with regard
to the matters dealt with in this provision shall be final. Section 11
allows the Board, to recognize an institution “in any new subject or
group of subjects for a higher class”, with the prior approval of the
State government. Section 12 deals with the proper utilization of
donations by the institutions.
19. Section 13 details the ‘Power of the State Government’ to inter alia
issue directions and orders which are binding on the Board. Sub-
section (1) states that the State Government shall have the right to
address and to communicate its views to the Board on any matter with
which it is concerned. Sub-section (2) requires the Board to report
to the State Government if any action has been taken pursuant to
the communications or proposals made by the State Government.
Sub-section (3) stipulates that in circumstances where the Board
does not act within a reasonable time to the satisfaction of the State
Government, after considering the explanation or representation by
the Board, the State Government may issue necessary directions with
which the Board shall comply. Sub-section (4) states that in cases,
where the State Government is of the opinion that it is necessary
or expedient to take immediate action, it may, without making any
reference to the Board, pass an order or take other action consistent
with the Act, including modifying, rescinding or making any regulation.
Sub-section (5) stipulates that such actions by the State Government
shall not be called into question in any court.
20. Section 14 deals with officers and other employees of the Board
and provides that they are appointed by the Board, with the prior
approval of the State Government. Sections 15 and 16 pertain to
[2024] 11 S.C.R. 385

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the powers and duties of the Chairperson and Registrar of the
Board, respectively, while Section 17 deals with the appointment
and constitution of committees and sub-committees.
21. Section 20 stipulates the power of the Board to make regulations.17
Sub-section (1) provides this power in general terms and empowers
the Board to make regulations “for carrying out the purposes of the
Act”. Sub-section (2) details particular matters for which the Board
may make regulations, without prejudice to the generality of its
powers. This includes subjects such as inter alia the conferment
of degrees, diplomas and certificates, conditions for recognition of
institutions, the course of study, and the conduct of examinations.
Section 21 mandates that these regulations shall be made with the
prior approval of the State Government and published in the Gazette.
The State Government may approve the regulations with or without
modifications. Pursuant to these provisions, the Board has framed
the Uttar Pradesh Non-Governmental Arabic and Persian Madarsa
Recognition, Administration and Services Regulations, 2016, with
the approval of the State Government.18
22. Sections 22 to 26 deal with subjects such as the requirement of
a ‘scheme of administration’ for every institution; the procedure
for appointment and conditions of service of heads of institutions,
teachers, and other employees; casual vacancies; and the power of
the Board and Committees to make by-laws, respectively. Section 27
states that no suit, prosecution or legal proceedings shall lie against
the State Government, the Board or any of its committees/sub-
committees in respect of anything which is done in good faith or under

17 Section 20 reads: “20. (1) The Board may make regulations for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing powers, the Board may make
regulations providing for all or any of the following matters, namely:–
(a) constitution, power and duties of committees and sub-committees;
(b) the conferment of Degrees, Diplomas and Certificates;
(c) the conditions of recognition of institutions;
(d) the courses of study to be laid down for all Degrees, Diplomas and Certificates;
(e) the conditions under which candidates shall be admitted to the examinations and research programme
of the Board and shall be eligible for Degrees, Diplomas and Certificates;
(f) the fees for admission to the examination of the Board;
(g) the conduct of examination;
(h) the appointment of examiners, moderators, collators, scrutinisers, tabulators, Centre inspectors,
Superintendents of Centres and invigilators and their duties and powers in relation to the Board’s
examinations and the rates of their remuneration;
(i) the admission of institutions to the privilege of recognition and the withdrawal of recognition;
(j) all matters which are to be, or may, provided for by regulations.”
18 “2016 Regulations”
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the Madarsa Act and its allied rules, regulations, by-laws, orders or
directions. Section 28 bars the jurisdiction of Courts and states that
no order or decision of the Board or its committees/sub-committees
shall be called into question in any court.
23. Section 32 confers on the State Government the power to make
rules for carrying out the purposes of the Madarsa Act.19
d. Steps taken by the State Government and the Board pursuant
to the Madarsa Act
24. The provisions of the Madarsa Act grant the Board and the State
Government wide-ranging powers to frame regulations, directions and
rules and to regulate education in the Madarsas. After the enactment
of the Madarsa Act, both the Board and the State Government have
in fact taken various steps. Some of the steps detailed below indicate
that there is a marked shift by the State Government and the Board
towards including modern subjects in the curriculum and adopting
the established curriculum (such as the NCERT curriculum). These
steps are:
a. On 15 May 2018, the Board issued a circular with the stated
aim of “bringing educational upgradation in standardization and
uniformity” in the Madarsas. The circular states that it has been
decided that for education in the Madarsas in Mathematics,
Science, English, Hindi, Computer Science and Social Science,
the curriculum will be based on the available textbooks of
NCERT. Subsequently, by a letter dated 30 May 2018, the State
Government sent a copy of the Circular and directed all the
District Minority Welfare Officers to include the books prescribed
by the NCERT in the syllabus of Madarsa Education from the
Academic Session of 2018-19. The District Minority Welfare
Officers were directed to take steps to ensure that there are
sufficient NCERT Books and to apprise the Board if training is
required for the teachers in the Madarsas in the district;
b. Pursuant to Section 20, the Board has framed the 2016
Regulations with the approval of the State Government. Two
amendments were made to the 2016 Regulations in 2017 and

19 Section 32 reads: “32. The State Government may, by notification, make rules for carrying out the
purposes of this Act.”
[2024] 11 S.C.R. 387

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2018, respectively. The latter amended the provision which dealt
with the medium of instruction in the Madarsas. Originally, the
Regulations provided that while all subjects could be taught,
the medium of education should be Urdu, Arabic and Persian.
However, the provision was amended to stipulate that while the
medium of instruction in “Deenayat and other Arabic, Persian
subjects” shall remain in Urdu, Arabic and Persian, the medium
of instruction for “Maths, Science, Social Science, Computer
etc.” may be Urdu, Hindi or English, as the case may be;20 and
c. The functions of the Board under the Madarsa Act include
prescribing the course of instruction, textbooks and instructional
material for courses at various educational levels and classes.
For this purpose, the Board has held several meetings from time
to time. The Minutes of one such meeting dated 12 October 2021
have been placed on record before this Court, which contains
a discussion on the curriculum to be implemented in Madarsas.
It is noted in the Minutes of the Meeting that the Board has
approved the inclusion of Elementary Math and Elementary
Science, History and Civics as compulsory subjects from Class
1 to secondary level in accordance with the NCERT curriculum.

e. Proceedings before the High Court and Impugned Judgment
25. In 2019, a Writ Petition was instituted before the High Court by an
individual appointed as a part-time assistant teacher in one of the
Madarsas. 21 He sought regularization of his services and salary at par
with regular teachers, relying on several provisions of the Madarsa
Act and the allied Regulations. By an Order dated 23 October 2019, a
Single Judge of the High Court issued notice on the Writ Petition and
observed that certain questions related to the vires of the Madarsa
Act arose for consideration, which warranted consideration by a
larger bench. The Single Judge observed as follows:
“…
7. From perusal of the same, following questions arise
for consideration: -

20 Uttar Pradesh Non-governmental Arabic and Persian Madarsa Recognition, Administration and Services
(Second Amendment) Regulations, 2018
21 Writ A No. 29324 of 2019.
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(i) Since the Madarsa Board is constituted for education
in ‘Arabic, Urdu, Parsian, Islamic-studies, Tibb Logic,
Philosophy and includes such other branches of
learning as may be specified by the Board from time
to time’, how come persons of a particular religion
are provided to be member of the same? It does not
talks about exponence (sic) in the aforesaid fields,
for the purposes of which the Board is constituted,
but persons of specific religion. It was put to learned
Additional Chief Standing Counsel as to whether the
purpose of the Board is to impart religious education
only, to which he submits that a perusal of the Madarsa
Education Act, 2004 does not indicate so.
(ii) With a secular constitution in India can persons
of a particular religion be appointed/nominated in
a Board for education purposes or it should be
persons belonging to any religion, who are exponent
in the fields for the purposes of which the Board is
constituted or such persons should be appointed,
without any regard to religion, who are exponent
in the field for the purposes of which the Board is
constituted?
(iii) The Act further provides the Board to function under
the Minority Welfare Ministry of State of U.P., hence,
a question arises as to whether it is arbitrary for
providing the Madarsa education to be run under
the Minority Welfare Department while all the other
education institutions including those belonging
to other minorities communities like Jains, Sikhs,
Christians etc being run under the Education Ministry
and whether it arbitrarily denies the benefit of experts
of education and their policies to the children studying
in Madarsa?
8. All these questions impacts the vires of the Madarsa
Act, 2004 and are important questions to be decided
before looking into the application of the Madarsa Act,
2004 and the regulations framed thereunder. Thus, I
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find it appropriate that the matter may be placed before
the Larger Bench for decision on the aforesaid issue.
...”
(emphasis supplied)
26. Other similar Writ Petitions were also referred to a larger bench
and the Chief Justice of the High Court constituted a bench to hear
the reference. During the pendency of the reference, another Writ
Petition was filed challenging the vires of the Madarsa Act on the
ground that it violates the principle of secularism and Articles 14,
15 and 21-A of the Constitution.22 A challenge was also mounted on
the constitutionality of Section 1(5) of the Right of Children to Free
and Compulsory Education Act, 2009,23 which inter alia states that
the Act does not apply to Madarsas.24 This petition was filed by an
advocate practicing before the High Court.
27. All these petitions were tagged together and placed before the
Division Bench of the High Court. By an Order dated 14 July 2023,
the High Court appointed three amici curiae to assist the Court.
Several organizations, some of whom are before this Court in the
present proceedings, moved intervention applications before the High
Court. In the Impugned Judgement, the Division Bench recorded the
position of the State of Uttar Pradesh and the Madarsa Board, to
the effect that the Madarsas impart not only religious education but
also “religious instruction and teachings.” Accordingly, the reference
was re-framed by the High Court in the following terms:
“Whether the provisions of the Madarsa Act stand the test
of Secularism, which forms a part of the basic structure
of the Constitution of India.”25
28. By a judgment dated 22 March 2024, the High Court rejected the
preliminary objections raised by some of the parties with respect
to the locus standi of the petitioner and the purported absence of
adequate pleadings on the subject. On the merits, the High Court

22 Writ (C) No. 6049 of 2023 - Anshuman Singh Rathore versus Union of India and others.
23 “RTE Act”
24 Section 1(5) reads: “(5) Nothing contained in this Act shall apply to Madrasas, Vedic Pathsalas and
educational institutions primarily imparting religious instruction.”
25 Para 9, Impugned Judgment.
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held that the Madarsa Act violates the principle of secularism and
Articles 14, 21 and 21-A of the Constitution of India and is ultra
vires Section 22 of the UGC Act. According to the High Court, the
object and purpose of the Madarsa Act itself violated the principle
of secularism, and thus, it is not possible to segregate or save any
portion of the legislation.
29. The High Court held that the Madarsa Act in its entirety was
unconstitutional and directed that the State Government take steps to
accommodate all students studying in the Madarsas in regular schools
recognized under the Primary Education Board and the High School
and Intermediate Education Board of the State of Uttar Pradesh. The
State Government was directed to establish a sufficient number of
additional seats and new schools, if required for this purpose and
to ensure that no child between the ages of six and fourteen is left
without admission in a duly recognized institution.
f. Steps taken by the State Government and the proceedings
before this Court
30. In view of the Impugned Judgement, the Government of Uttar
Pradesh took steps to implement the directions. On 4 April 2024, a
Government Order was issued by the Chief Secretary, Government
of Uttar Pradesh, with the following directions:
a. Madarsas eligible to get recognition from the education boards,
at the state or central level, based on various parameters, can
run primary or secondary schools after getting recognized by
the concerned education boards; and
b. Madarsas which cannot get formal recognition because of “sub-
standard” facilities will be closed. Committees are to be set up
at the district level to ensure that the students studying in such
Madarsas are admitted to the schools run by the education
department.26
31. Special leave petitions were instituted by the appellant(s) before this
Court assailing the correctness of the Impugned Judgement. On 5
April 2024, this Court heard the counsel for the various parties and
issued notice on the lead petition. While staying the implementation

26 G.O. No. 43/52-3-3034-2099/4/2024.
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of the Impugned Judgement, this Court recorded the brief reasons
for issuing the interim direction. Accordingly, on 12 April 2024, in view
of the stay on the Impugned Judgement, the above Government
Order issuing directions for implementation were withdrawn by the
State Government.
C. Submissions
32. Dr Abhishek Manu Singhvi, Mr Salman Khurshid, and Dr Menaka
Guruswamy, senior counsel assailed the Impugned Judgment and
advanced the following submissions:
a. The State legislature is empowered under Article 246 read with
Entry 25 of List III of the Seventh Schedule to enact legislation
to regulate Madarsa education. The Madarsa Act principally
deals with the regulation of Madarsas concerning curriculum,
instruction, standard of education, conduct of examination, and
qualifications for teaching. The enactment of laws for regulating
secular activities of minority institutions or prescribing standards
of education is consistent with Articles 25 to 30;
b. In S R Bommai v. Union of India,27 it was held that secularism
is a positive concept of equal treatment of all religions.
Articles 25 to 30 secure the rights of religious and linguistic
minorities, including their right to establish and administer
educational institutions. By recognizing and regulating the
Madarsa education, the State legislature is taking positive action
to safeguard the educational rights of the minorities;
c. Article 28 prohibits religious instructions in educational
institutions wholly maintained out of state funds. Madarsas
impart education based on modern curriculum such as
Mathematics, Social Sciences, and Science. Additionally,
Madarsas impart education about religion and not “religious
instructions.” Article 28 does not bar the State from funding
schools providing religious education;
d. Article 21-A recognizes the fundamental right of children
between the ages of six to fourteen to free and compulsory
education. Section 1(5) of the RTE Act excludes Madarsas from

27 [1994] 2 SCR 644
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the purview of the legislation. The law enacted by the State
in pursuance of Article 21-A cannot violate the fundamental
rights of minorities to establish and administer educational
institutions; and
e. Striking down the Madarsa Act will create a legislative vacuum
and result in the deregulation of Madarsas. This will affect the
future of more than twelve lakh students studying across the
Madarsas in UP. Further, the direction of the High Court to
relocate students studying in Madarsas to regular schools will
effectively shut down all Madarsas in the state and result in
violation of Article 30.
33. Mr KM Natraj, Learned Additional Solicitor General, appeared for
the State of Uttar Pradesh. In its Counter Affidavit, the State of Uttar
Pradesh states that it had accepted the decision in the Impugned
Judgement and taken steps to implement it. However, it would comply
with the final decision of this Court and has accordingly, withdrawn
the government order which sought to implement the Impugned
Judgement. Mr Nataraj contended that while some provisions of the
Madarsa Act may be unconstitutional, the High Court erred in striking
down the entire Madarsa Act without severing the invalid provisions
from the rest of the Madarsa Act.
34. Mr Guru Krishna Kumar, learned Senior Counsel made the following
submissions:
a. The Act does not make any provisions to impart secular subjects
as part of the curriculum and is a measure undertaken by the
state to recognize and regulate “religious instruction” traceable
to a particular community;
b. Article 28 inter alia prohibits institutions which receive funds
from the state from imparting ‘religious instruction’. Thus, as
a corollary, the state cannot seek to regulate and thereby,
recognize religious instruction;
c. The preamble which specifies that India is a “secular” republic,
Article 21-A, Article 25, Article 28, Article 30 and Article 41 all
point to the “pervasive principle” of secularism underlying the
Constitution. This principle militates against the state regulating
religious instruction;
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d. The striking down of the Act would only discontinue the
functioning of the Board and the consequent state recognition
of religious instruction. The education provided in the Madarsas
and their existence would continue to be protected by Article 30;
e. The word “education” in Entry 25, List III of the Seventh Schedule
must be construed to mean “secular education” and cannot
include “religious instruction”. Thus, the state legislature only
has the competence to enact a law that regulates educational
institutions, but no power to recognize and regulate religious
instruction; and
f. Entry 25, List III is subject to Entry 66 List I, which pertains to
higher education and standards. The Parliament has enacted
the UGC Act under Entry 66, List I. Section 22 of the UGC Act
provides that no degrees can be conferred by any institution
other than the institutions defined under the UGC Act. Thus, the
provisions of the Madarsa Act which regulate higher education,
at the undergraduate, graduate and grant the Board power to
grant equivalent degrees are beyond the legislative competence
of the state legislature.
35. Ms Madhavi Divan, learned Senior Counsel, advanced the following
submissions:
a. The Madarsa Act deprives students enrolled in such institutions
of the benefits of mainstream, holistic, secular education, thereby
violating Articles 21 and 21A;
b. The Madarsa Act divests students of equal opportunity in
relation to future employment opportunities (Articles 14, 15, 16)
and the right to practice any profession, occupation, trade or
business of their choice (Article 19(1)(g). It creates two classes
of children — the first, who receive secular, mainstream
education, and the second, who receive religious instruction,
which prohibits them from even attempting to adopt professions
which are easily available for the former class. This deprivation
of choice also violates the constitutional value of dignity and
deprives students of the liberty of thought and expression
protected under Article 19;
c. The Madarsa Act violates the constitutional value of ‘fraternity’
as the dissemination of Madarsa education creates intellectual
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and outlook barriers, which prevent students from integrating
into a pluralistic society;
d. The definition of “Madarsa Education” in Section 2(h) indicates
that the focus on “other branches of learning” is only tertiary.
The focus of the statute and the competence of the Board is
restricted to religious instruction;
e. The Board is disproportionately populated by persons whose
competence is in the field of religious instruction. As decisions
of the Board are taken by a majority of members, present and
voting, the views of the “non-secular” members would prevail
and the curriculum is likely to be skewed in favour of religious
education. The functions of the Board delineated in Section 9 also
indicate disproportionate weightage to religious instruction; and
f. The qualifications for teachers in the Madarsas laid down in
the regulations are not adequate to ensure quality education.
The qualifications are rooted in the “same Madarsa echo
chamber”, and the minimum requirements for teaching in regular
educational institutions are not prescribed.
36. The National Commission for the Protection of Child Rights (NCPCR)
supported the arguments of the respondents and assailed the
constitutional validity of the Madarsa Act.
D. Secularism and regulation of minority educational
institutions
37. The preamble to the Constitution enshrines the declaration to
constitute India into a sovereign, socialist, secular, democratic,
republic. The 42nd Amendment to the Constitution incorporated the
expression ‘secular’ in the preamble. However, the constitutional
amendment merely made explicit what is implicit according to the
scheme of the Constitution.28
a. Secularism in the constitutional context
38. Articles 14, 15, and 16 mandate the State to treat all people equally
irrespective of their religion, faith, or belief.29 Article 14 provides that

28 S R Bommai, [304] Justice BP Jeevan Reddy (for himself and Justice Agrawal)
29 S R Bommai (supra) [304] (Justice BP Jeevan Reddy)
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the State shall not deny to any person equality before the law or
equal protection of laws within the territory of India. Article 15 provides
that the State shall not discriminate against any citizen on grounds
only of religion, race, caste, sex, place of birth or any of them.
Article 16 mandates that there shall be equality of opportunity for
all citizens in matters relating to public employment or appointment
to any office under the State. Article 16(2) further provides that no
citizen shall be discriminated against in respect of any employment
or office under the State on the grounds of religion, race, caste,
sex, descent, place of birth, residence, or any of them.
39. Secularism is one of the facets of the right to equality.30 The equality
code outlined in Articles 14, 15, and 16 is based on the principle that
all persons, irrespective of their religion, should have equal access
to participate in society. The State cannot give preference to persons
belonging to a particular religion in matters of public employment. As
a corollary, the equality code prohibits the State from mixing religion
with any secular activity of the State.31 However, the Constitution
recognizes that equal treatment of persons is illusionary unless the
State takes active steps in that regard. Therefore, the equality code
imposes certain positive obligations on the State to provide equal
treatment to all persons irrespective of their religion, faith, or beliefs.32
40. Articles 25 to 30 contain the other facet of secularism, that is, the
practice of religious tolerance by the State.33 Article 25 provides

30 Dr M Ismail Faruqui v. Union of India (1994) 6 SCC 360 [37]
31 S R Bommai (supra) [148] Justice Sawant [“148. One thing which prominently emerges from the above
discussion on secularism under our Constitution is that whatever the attitude of the State towards the
religions, religious sects and denominations, religion cannot be mixed with any secular activity of the
State. In fact, the encroachment of religion into secular activities is strictly prohibited.”]
32 S R Bommai (supra) [304] (Justice B P Jeevan Reddy) [“148. […] Articles 14, 15 and 16 enjoin upon the
State to treat all its people equally irrespective of their religion, caste, faith or belief. While the citizens of
this country are free to profess, practice and propagate such religion, faith or belief as they choose, so far
as the State is concerned, i.e., from the point of view of the State, the religion, faith or belief of a person
is immaterial. To it, all are equal and all are entitled to be treated equally. How is this equal treatment
possible, if the State were to prefer or promote a particular religion, race or caste, which necessarily
means a less favourable treatment of all other religions, races and castes. How are the constitutional
promises of social justice, liberty of belief, faith or worship and equality of status and of opportunity to be
attained unless the State eschews the religion, faith or belief of a person from its consideration altogether
while dealing with him, his rights, his duties and his entitlements? Secularism is thus more than a passive
attitude of religious tolerance. It is a positive concept of equal treatment of all religions. This attitude is
described by some as one of neutrality towards religion or as one of benevolent neutrality. This may be
a concept evolved by western liberal thought or it may be, as some say, an abiding faith with the Indian
people at all points of time.”]
33 S R Bommai (supra) [183] Justice K Ramaswamy [“183. […] Constitution made demarcation between
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that all persons are equally entitled to freedom of conscience and
the right to freely profess, practise, and propagate religion subject
to public order, morality, health, and other provisions of Part III.
The provision allows the State to make any law to regulate or
restrict any economic, financial, political or other secular activity
associated with religious practice. The Constitution distinguishes
between religious and secular activities, permitting the State to
regulate the latter.34
41. Article 26 guarantees every religious denomination the right to
establish and maintain institutions for religious and charitable
purposes. It further guarantees religious and charitable institutions
the right to manage their own affairs in matters of religion; own and
acquire movable and immovable property; and administer the property
in accordance with law. The right of management given to a religious
body is a fundamental right that cannot be abridged by any legislation.
On the other hand, the State can regulate the administration of
property owned or acquired by a religious denomination through
validly enacted laws.35
42. Article 27 provides 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. The rationale underlying Article 27 is that
public funds should not be utilized for the promotion or maintenance
of any particular religion or religious denomination.36

religious part personal to the individual and secular part thereof. The State does not extend patronage
to any particular religion, State is neither pro particular religion nor anti particular religion. It stands aloof,
in other words maintains neutrality in matters of religion and provides equal protection to all religions
subject to regulation and actively acts on secular part.”]
34 Seshammal v. State of Tamil Nadu (1972) 2 SCC 11 [19]; Bijoe Emmanuel v. State of Kerala (1986) 3
SCC 615 [19]
35 Ratilal Panachand Gandhi v. State of Bombay (1954) 1 SCC 487 [16] [“16. […] The language of the
two clauses (b) and (d) of Article 26 would at once bring out the difference between the two. In regard
to affairs in matters of religion, the right of management given to a religious body is a guaranteed
fundamental right which no legislation can take away. On the other hand, as regards administration
of property which a religious denomination is entitled to own and acquire, it has undoubtedly the right
to administer such property but only in accordance with law. This means that the State can regulate
the administration of trust properties by means of laws validly enacted; but here again it should be
remembered that under Article 26(d), it is the religious denomination itself which has been given the right
to administer its property in accordance with any law which the State may validly impose. A law, which
takes away the right of administration altogether from the religious denomination and vests it in any other
or secular authority, would amount to violation of the right which is guaranteed by Article 26(d) of the
Constitution.”]
36 S R Bommai [304] (Justice BP Jeevan Reddy)
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43. Article 28 prohibits the imparting of “religious instruction” in any
educational institutions wholly maintained out of State funds. The
provision further provides that no person attending any educational
institution recognised by the State or receiving aid from the State
funds should be compelled to take part in any religious instruction
without their consent. Religious instruction is the inculcation of
tenets, rituals, observances, ceremonies, and modes of worship
of a particular sect or denomination.37 Article 28 does not prohibit
educational institutions maintained out of State funds from imparting
religious education. Religious education is imparted to children “to
make them aware of thoughts and philosophies in religions without
indoctrinating them and without curbing their free-thinking, right to
make choices for conducting their own life and deciding upon their
course of action according to their individual inclinations.”38 Article 28
does not prohibit educational institutions from teaching about the
philosophy and culture of a particular religion or a saint associated
with that religion.39 Article 28 does not prohibit the State from granting
recognition to educational institutions imparting religious instruction
in addition to secular education.40
44. Articles 29 and 30 deal with the cultural and educational rights of
minorities. Article 29(1) provides that Indian citizens have a right
to conserve their distinct language, script, or culture. Article 29(2)
guarantees that no citizen shall be denied admission into any
educational institution maintained by the State or receiving aid out
of State funds on grounds only of religion, race, caste, language
or any of them. A citizen who has requisite academic qualifications
cannot be denied admission into any educational institution funded
by the State on grounds of religion.41

37 D A V College v. State of Punjab (1971) 2 SCC 269 [26]
38 Aruna Roy v. Union of India (2002) 7 SCC 368 [78] (Justice D M Dharmadhikari)
39 D A V College (supra) [26] [26. […] To provide for academic study of life and teaching or the philosophy
and culture of any great saint of India in relation to or the impact on the Indian and world civilizations
cannot be considered as making provision for religious instructions.”]
40 Ahmedabad St Xavier’s College Society v. State of Gujarat (1974) 1 SCC 717 [139] (Justice K K Mathew
and Justice Y V Chandrachud) [“139. We fail to see how affiliation of an educational institution imparting
religious instruction in addition to secular education to pupils as visualized in Article 28(3) would derogate
from the secular character of the state. Our Constitution has not erected a rigid wall of separation
between church and state. We have grave doubts whether the expression “secular state” as it denotes
a definite pattern of church and state relationship can with propriety be applied to India. It is only in a
qualified sense that India can be said to be a secular state. There are provisions in the Constitution which
make one hesitate to characterize our state as secular.”]
41 See In re Kerala Education Bill 1957, 1958 SCC OnLine SC 8 [22]
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45. Article 30 pertains to the right of minorities to establish and administer
educational institutions. It provides that all minorities, whether based
on religion or language, have the right to establish and administer
educational institutions of their choice. Article 30(2) enjoins the State
not to discriminate against any educational institution in granting
aid on the ground that it is under the management of a minority,
whether based on religion or language. Article 30 confers a special
right on religious and linguistic minorities to instill in them a sense
of security and confidence.42 It secures equal treatment of majority
and minority institutions and preserves secularism43 by allaying all
apprehensions of interference by the executive and legislature in
matters of religion.44 The constitutional scheme under Articles 25
to 30 distinguishes between the right of an individual to practice
religion and the secular part of religion, which is amenable to State
regulation.45
b. Testing the validity of a statute for violation of the basic structure
of the Constitution
46. The provisions discussed in the above segment indicate that
secularism is embodied in the constitutional scheme, particularly
Part III. In Kesavananda Bharati v. State of Kerala, this Court
held that Article 368 does not enable Parliament to alter the basic
structure or framework of the Constitution.46 It was held that the
power of Parliament to amend the Constitution cannot have the
effect of destroying or abrogating the basic structure or framework
of the Constitution.47 Further, the judges constituting the majority

42 T M A Pai Foundation v. State of Karnataka (2002) 8 SCC 481 [157]
43 Ahmedabad St Xavier’s College Society (supra) [9]; T M A Pai Foundation (supra) [138] [“138. As
we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority
institutions of their right to establish and administer educational institutions of their choice. Secularism
and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the
linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the
principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed
that will discriminate against such minorities with regard to the establishment and administration of
educational institutions vis-à-vis other educational institutions. Any law or rule or regulation that would
put the educational institutions run by the minorities at a disadvantage when compared to the institutions
run by the others will have to be struck down.”]
44 Ahmedabad St Xavier’s College Society (supra) [75] (Justice H R Khanna)
45 S R Bommai (supra) [183]
46 [1973] Supp. 1 SCR 1 : (1973) 4 SCC 225
47 Kesavananda Bharati (supra) [1426] (Justice H R Khanna) [“1426. […] The word “amendment”
postulates that the old Constitution survives without loss of its identity despite the change and continues
even though it has been subjected to alterations. As a result of the amendment, the old Constitution
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enumerated certain basic features of our Constitution, including the
secular character of the Constitution.48 In S R Bommai v. Union of
India,49 a nine-Judge Bench held that secularism is a basic feature
of the Constitution. The issue that arises for our consideration is
whether the basic structure doctrine can be applied to invalidate
ordinary legislation.
47. The Constitution imposes certain limitations on the legislative powers
of Parliament and the State legislatures. Article 13(2) provides that
the State shall not make any law that takes away or abridges the
rights conferred by Part III. Statutes enacted by the State legislatures
must be consistent with the fundamental rights enumerated under
Part III of the Constitution. Further, Article 246 defines the scope
and limitations of the legislative competence of Parliament and State
legislatures. A statute can be declared ultra vires on two grounds
alone: (i) it is beyond the ambit of the legislative competence of
the legislature; or (ii) it violates Part III or any other provision of
the Constitution.50
48. In Indira Nehru Gandhi v. Raj Narain, 51 the Allahabad High
Court disqualified the then Prime Minister for indulging in corrupt
practices according to the Representation of the People Act, 1951.
To nullify the decision of the High Court, Parliament enacted the
Representation of the People (Amendment) Act 1974 and Election
Laws (Amendment) Act 1975 and placed them under the Ninth

cannot be destroyed and done away with; it is regained though in the amended form. What then is meant
by the retention of the old Constitution? It means the retention of the basic structure or framework of
the old Constitution. A mere retention of some provisions of the old Constitution even though the basic
structure or framework of the Constitution has been destroyed would not amount to the retention of the
old Constitution. Although it is permissible under the power of amendment to effect changes, howsoever
important, and to adapt the system to the requirements of changing conditions, it is not permissible to
touch the foundation or to alter the basic institutional pattern. The words “amendment of the Constitution”
with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic
structure or framework of the Constitution.”]
48 Kesavananda Bharati (supra) [292] (Chief Justice Sikri); [487] (Justice Shelat and Grover); [1426]
(Justice H R Khanna).
49 [1994] 2 SCR 644 : (1994) 3 SCC 1; [29] (Justice AM Ahmadi); [151] (Justice P B Sawant (for himself and
Justice Kuldip Singh)); [182] (Justice K Ramaswamy); [304] (Justice B P Jeevan Reddy (for himself and
Justice S C Agrawal))
50 State of A P v. McDowell & Co. (1996) 3 SCC 709 [43] [“43. […] The power of Parliament or for that
matter, the State Legislatures is restricted in two ways. A law made by Parliament or the legislature can
be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence
and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other
constitutional provision.”]; State of Kerala v. Peoples Union for Civil Liberties (2009) 8 SCC 46 [45]
51 [1978] 2 SCR 405 : 1975 Supp SCC 1
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Schedule of the Constitution. The issue before this Court was whether
the amendments violated the basic structure of the Constitution.
49. Chief Justice A N Ray held that the constitutional validity of a statute
depends entirely on the existence of the legislative power and the
express provision in Article 13. Since the legislation is not subject
to any other constitutional limitation, applying the basic structure
doctrine to test the validity of a statute will amount to “rewriting the
Constitution.”52 The learned Judge further observed that application
of the undefinable theory of basic structure to test the validity of a
statute would denude legislatures of the power of legislation and
deprive them of laying down legislative policies.53 Justice K K Mathew
similarly observed that the concept of a basic structure is “too vague
and indefinite to provide a yardstick to determine the validity of an
ordinary law.”54 Justice Y V Chandrachud (as the learned Chief
Justice then was) observed that constitutional amendment and
ordinary laws operate in different fields and are subject to different
limitations.55
50. The majority in Indira Nehru Gandhi (supra) held that the
constitutional validity of a statute cannot be challenged for the
violation of the basic structure doctrine. However, Justice M H Beg
(as the learned Chief Justice then was) dissented with the majority
view by observing that the basic structure test can be used to test

52 Indira Nehru Gandhi (supra) [134] and [137]
53 Indira Nehru Gandhi (supra) [136] [“136. The theory of basic structures or basic features is an exercise in
imponderables. Basic structures or basic features are indefinable. The legislative entries are the fields of
legislation. The pith and substance doctrine has been applied in order to find out legislative competency,
and eliminate encroachment on legislative entries. If the theory of basic structures or basic features
will be applied to legislative measures it will denude Parliament and State Legislatures of the power
of legislation and deprive them of laying down legislative policies. This will be encroachment on the
separation of powers.”]
54 Indira Nehru Gandhi (supra) [357]
55 Indira Nehru Gandhi (supra) [691] and [692]. [“691 […] The constitutional amendments may, on the
ratio of the Fundamental Rights case, be tested on the anvil of basic structure. But apart from the
principle that a case is only an authority for what it decides, it does not logically follow from the majority
judgment in the Fundamental Rights case that ordinary legislation must also answer the same test as a
constitutional amendment. Ordinary laws have to answer two tests for their validity: (1) The law must be
within the legislative competence of the legislature as defined and specified in Chapter I, Part XI of the
Constitution, and (2) it must not offend against the provisions of Article 13(1) and (2) of the Constitution.
“Basic structure”, by the majority judgment, is not a part of the fundamental rights nor indeed a provision
of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution
and the amending power is subjected to it because it is a constituent power. “The power to amend the
fundamental instrument cannot carry with it the power to destroy its essential features — this, in brief,
is the arch of the theory of basic structure. It is wholly out of place in matters relating to the validity of
ordinary laws made under the Constitution.]
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the validity of statutes because statutes cannot go beyond the range
of constituent power.56
51. In State of Karnataka v. Union of India,57 Justice N L Untwalia
(writing for himself, Justice P N Shingal, and Justice Jaswant Singh)
reiterated that the validity of a statute cannot be tested for violation
of the basic structure of the Constitution. Justice Y V Chandrachud
(as the learned Chief Justice then was) also observed that a statute
cannot be invalidated on supposed grounds so long as it is within
the legislative competence of the legislature and consistent with
Part III of the Constitution.58 However, Chief Justice M H Beg
observed that testing a statute for violation of basic structure does
not “add to the contents of the Constitution.”59 He held that any
inference about a limitation based on the basic structure doctrine
upon legislative power must co-relate to the express provisions of
the Constitution.60
52. In Kuldip Nayar v. Union of India,61 a Constitution Bench held
that ordinary legislation cannot be challenged for the violation of
the basic structure of the Constitution. Statutes, including State
legislation, can only be challenged for violating the provisions of the
Constitution.62 However, in Madras Bar Association v. Union of
India,63 a Constitution Bench applied the basic structure doctrine to
test the validity of Parliamentary legislation seeking to transfer judicial

56 Indira Nehru Gandhi (supra) [622]
57 [1978] 2 SCR 1 : (1977) 4 SCC 608 [238]
58 State of Karnataka (supra) [197]
59 State of Karnataka (supra) [128]
60 State of Karnataka (supra) [123]
61 [2006] Supp. 5 SCR 1 : (2006) 7 SCC 1 [“107. The basic structure theory imposes limitation on the
power of Parliament to amend the Constitution. An amendment to the Constitution under Article 368
could be challenged on the ground of violation of the basic structure of the Constitution. An ordinary
legislation cannot be so challenged. The challenge to a law made, within its legislative competence, by
Parliament on the ground of violation of the basic structure of the Constitution is thus not available to the
petitioners.”]
62 Ashok Kumar Thakur v. Union of India (2008) 6 SCC 1 [116]
63 Madras Bar Association v. Union of India (2014) 10 SCC 1 [109] [“This Court has repeatedly held that
an amendment to the provisions of the Constitution would not be sustainable if it violated the “basic
structure” of the Constitution, even though the amendment had been carried out by following the
procedure contemplated under “Part XI” of the Constitution. This leads to the determination that the
“basic structure” is inviolable. In our view, the same would apply to all other legislations (other than
amendments to the Constitution) as well, even though the legislation had been enacted by following the
prescribed procedure, and was within the domain of the enacting legislature, any infringement to the
“basic structure” would be unacceptable.”]
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power from High Courts to tribunals. Justice J S Khehar (as the
learned Chief Justice then was), writing for the Constitution Bench,
held that the basic structure of the Constitution will stand violated if
Parliament does not ensure that the newly created tribunals do not
“conform with the salient characteristics and standards of the court
sought to be substituted.”64
53. In Supreme Court Advocates-on-Record Association v. Union
of India,65 this Court had to decide the constitutional validity of the
Constitution (Ninety-ninth Amendment) Act 2014 and the National
Judicial Appointments Commission Act 2014. Justice J S Khehar
(as the learned Chief Justice then was) built upon his reasoning in
Madras Bar Association (supra) by observing that a challenge to
ordinary legislation for violation of the basic structure would only
be a “technical flaw” and “cannot be treated to suffer from a legal
infirmity.”66 He observed that the determination of the basic structure
of the Constitution is made exclusively from the provisions of the
Constitution. The observations of the learned Judge are instructive
and extracted below:
“381. […] when a challenge is raised to a legislative
enactment based on the cumulative effect of a number of
articles of the Constitution, it is not always necessary to
refer to each of the articles concerned when a cumulative
effect of the said articles has already been determined as
constituting one of the “basic features” of the Constitution.
Reference to the “basic structure” while dealing with
an ordinary legislation would obviate the necessity of
recording the same conclusion which has already been
scripted while interpreting the article(s) under reference
harmoniously. We would therefore reiterate that the “basic
structure” of the Constitution is inviolable and as such
the Constitution cannot be amended so as to negate any
“basic features” thereof, and so also, if a challenge is

64 Madras Bar Association (supra) [136]. [“136. (iii) The “basic structure” of the Constitution will stand
violated if while enacting legislation pertaining to transfer of judicial power, Parliament does not ensure
that the newly created court/tribunal conforms with the salient characteristics and standards of the court
sought to be substituted.”]
65 (2016) 5 SCC 1
66 Supreme Court Advocates-on-Record Association (supra) [381]
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raised to an ordinary legislation based on one of the “basic
features” of the Constitution, it would be valid to do so. If
such a challenge is accepted on the ground of violation
of the “basic structure”, it would mean that the bunch of
articles of the Constitution (including the Preamble thereof,
wherever relevant), which constitute the particular “basic
feature”, had been violated. We must however credit the
contention of the learned Attorney General by accepting
that it would be technically sound to refer to the articles
which are violated, when an ordinary legislation is sought
to be struck down as being ultra vires the provisions of
the Constitution.”
54. However, Justice Lokur differed with Justice Khehar on the issue
of testing the validity of a statute for violation of the basic structure
doctrine. Justice Lokur followed the view of the majority in the State of
Karnataka (supra)67 that a statute cannot be challenged for violating
the basic structure doctrine.
55. From the above discussion, it can be concluded that a statute can
be struck down only for the violation of Part III or any other provision
of the Constitution or for being without legislative competence.
The constitutional validity of a statute cannot be challenged for the
violation of the basic structure of the Constitution. The reason is
that concepts such as democracy, federalism, and secularism are
undefined concepts. Allowing courts to strike down legislation for
violation of such concepts will introduce an element of uncertainty
in our constitutional adjudication. Recently, this Court has accepted
that a challenge to the constitutional validity of a statute for violation
of the basic structure is a technical aspect because the infraction has
to be traced to the express provisions of the Constitution. Hence, in
a challenge to the validity of a statute for violation of the principle
of secularism, it must be shown that the statute violates provisions
of the Constitution pertaining to secularism.

67 Supreme Court Advocates-on-Record Association (supra) [795] [“795. For the purposes of the present
discussion, I would prefer to follow the view expressed by a Bench of seven learned Judges in State
of Karnataka v. Union of India [State of Karnataka v. Union of India (1977) 4 SCC 608 (Seven-Judge
Bench)] that it is only an amendment of the Constitution that can be challenged on the ground that it
violates the basic structure of the Constitution—a statute cannot be challenged on the ground that it
violates the basic structure of the Constitution. [The only exception to this perhaps could be a statute
placed in the Ninth Schedule of the Constitution.] The principles for challenging the constitutionality of a
statute are quite different.”]
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c. Regulation of minority educational institutions
56. The right of minorities to administer educational institutions includes
the right to manage the affairs of the institution in accordance with the
ideas and interests of the community in general and the institution in
particular.68 The right to administer minority educational institutions
encompasses: (i) the right to constitute the managing or governing
body; (ii) the right to appoint teachers; (iii) the right to admit students
subject to reasonable regulations; and (iv) the right to use property
and assets for the benefit of the institution.69 However, the right
to administer minority educational institutions is not absolute. The
right to administer educational institutions implies an obligation and
duty of minority institutions to provide a standard of education to
the students.70 The right to administer is, it is trite law, not the right
to maladminister.
57. In re Kerala Education Bill 1957,71 this Court classified minority
educational institutions into three categories: (i) those which do not
seek either aid or recognition from the State; (ii) those which want
aid; and (iii) those which want only recognition but not aid. The first
category of institutions is protected by Article 30(1).72 As regards
the second and third categories, Chief Justice S R Das observed
that the “minority cannot surely ask for aid or recognition for an
educational institution run by them in unhealthy surroundings, without
any competent teachers, possessing any semblance of qualification,

68 State of Kerala v. Very Rev. Mother Provincial (1970) 2 SCC 417 [9].
69 Ahmedabad St Xavier’s College Society (supra) [19] (Chief Justice A N Ray) [“19. […] The right to
administer is said to consist of four principal matters. First is the right to choose its managing or
governing body. It is said that the founders of the minority institution have faith and confidence in
their own committee or body consisting of persons elected by them. Second is the right to choose its
teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and
aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In
other words, the minority institutions want to have the right to admit students of their choice subject to
reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets
for the benefit of its own institution.”]
70 Ahmedabad St Xavier’s College Society (supra) [30] [“30. […] The minority institutions have the right to
administer institutions. This right implies the obligation and duty of the minority institutions to render the
very best to the students. In the right of administration, checks and balances in the shape of regulatory
measures are required to ensure the appointment of good teachers and their conditions of service. The
right to administer is to be tempered with regulatory measures to facilitate smooth administration.”]
71 [1959] 1 SCR 995 : 1958 SCC OnLine SC 8 [23]
72 In re Kerala Education Bill (supra) [24]
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and which does not maintain even a fair standard of teaching or
which teaches matters subversive of the welfare of the scholars.”73
58. The State has an interest in ensuring that minority educational
institutions provide standards of education similar to other
educational institutions.74 The State can enact regulatory measures
to promote efficiency and excellence of educational standards.75
Regulations about standards of education do not directly bear upon
the management of minority institutions.76 The State can regulate
aspects of the standards of education such as the course of study,
the qualification and appointment of teachers, the health and hygiene
of students, and facilities for libraries.77
59. The State may impose regulation as a condition for grant of aid or
recognition. Such regulation must satisfy the following three tests:
(i) it must be reasonable and rational; (ii) it must be conducive
to making the institution an effective vehicle of education for the
minority community or other persons who resort to it; and (iii) it must
be directed towards maintaining the excellence of education and
efficiency of administration to prevent it from falling standards.78 To
determine the issue of the reasonableness of a regulation, the court
has to determine whether the regulation is calculated to subserve
or will in effect subserve the purpose of recognition or affiliation.79
60. In P A Inamdar v. State of Maharashtra, this Court held that the
considerations for granting recognition to a minority educational
institution are subject to two overriding conditions: (i) the recognition
is not denied solely on the ground of the educational institution being
one belonging to minority; and (ii) the regulation is neither aimed at
nor has the effect of depriving the institution of its minority status.80

73 In re Kerala Education Bill (supra) [31]
74 Very Rev Mother Provincial (supra) [10]
75 All Saints High School v. Government of AP (1980) 2 SCC 478 [63]; Dayanand Anglo Vedic (DAV)
College Trust and Management Society v. State of Maharashtra (2013) 4 SCC 14 [32]
76 Ahmedabad St Xavier’s College Society (supra) [90]
77 Very Rev Mother Provincial (supra) [10]; St Xavier’s College (supra) [18]
78 Sidhajbhai Sabhai v. State of Bombay, 1962 SCC OnLine SC 150 [15]; P A Inamdar v. State of
Maharashtra (2005) 6 SCC 537 [94], [122]
79 Ahmedabad St. Xavier’s College Society (supra) [176] (Justice KK Mathew and Justice Y V Chandrachud)
80 P A Inamdar (supra) [103]
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61. In Ahmedabad St Xavier’s College Society v. State of Gujarat,81
the issue before a Bench of nine Judges was whether religious and
linguistic minorities who have the right to establish and administer
educational institutions of their choice have a fundamental right to
affiliation or recognition. Chief Justice A N Ray held that minority
educational institutions have no fundamental right to recognition. The
learned Chief Justice observed that the primary purpose of recognition
is to ensure that students reading in minority educational institutions
have “qualifications in the shape of degrees necessary for a useful
career in life.”82 He further observed that a minority educational
institution seeking affiliation must follow the statutory educational
standards and efficiency, the prescribed courses of study, courses
of instruction, qualification of teachers, and educational qualifications
for entry of students.83 However, the learned Chief Justice held that a
law providing for recognition should not result in abridgement of the
right of linguistic and religious minorities to administer and establish
educational institutions of their choice under Article 30(1).84
62. Justice K K Mathew (writing for himself and Justice Y V Chandrachud),
in his concurring opinion stated that the principle of juridical equality
ensures the “co-existence of several types of schools and colleges
including affiliated colleges” with proportionate equal encouragement
and support from the State.85 The learned judge further held that
the State’s interest in the education of religious minorities would be
served if minority educational institutions impart secular education
accompanied by religious education. He also observed:
“145. The State's interest in secular education may be
defined broadly as an interest in ensuring that children within
its boundaries acquire a minimum level of competency in
skills, as well as a minimum amount of information and
knowledge in certain subjects. Without such skill and
knowledge, an individual will be at a severe disadvantage
both in participating in democratic self-Government and
in earning a living. No one can question the constitutional

81 [1975] 1 SCR 173 : (1974) 1 SCC 717
82 Ahmedabad St. Xavier’s College Society (supra) [14]
83 Ahmedabad St. Xavier’s College Society (supra) [16]
84 Ahmedabad St. Xavier’s College Society (supra) [14]
85 Ahmedabad St. Xavier’s College Society (supra) [144]
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right of parents to satisfy their State-imposed obligation
to educate their children by sending them to schools
or colleges established and administered by their own
religious minority so long as these schools and colleges
meet the standards established for secular education.”
The State has an interest in maintaining the standards of education
in minority educational institutions. Affiliation or recognition of minority
educational institutions by the Government secures the academic
interests of students studying in such institutions to pursue higher
education.86
d. The Madarsa Act is a regulatory legislation
63. The Statement of Objects and Reasons of the Madarsa Act indicates
that it is enacted to remove difficulties in running Madarsas and
improve the merit of students studying in Madarsas by making
available to them facilities of study of the requisite standard.
Section 3 provides for the constitution of the Board. The Board
comprises persons who are related to or know about education
in Madarsas. The Board has been statutorily empowered to:
(i) prescribe courses of instruction and text-books for courses;
(ii) grant degrees, diplomas, certificates and other academic
distinctions; (iii) conduct examinations; (iv) recognise institutions
for examination; (v) admit candidates for examinations; (vi) publish
the results of the examination; and (vii) to provide for research and
training in any branch of Madarsa education.

86 In re Kerala Education Bill 1957 (supra) [32] [“32. […] The minorities evidently desire that education
should be imparted to the children of their community in an atmosphere congenial to the growth of their
culture. Our Constitution makers recognised the validity of their claim and to allay their fears conferred
on them the fundamental rights referred to above. But the conservation of the distinct language, script or
culture is not the only object of choice of the minority communities. They also desire that scholars of their
educational institutions should go out in the world well and sufficiently equipped with the qualifications
necessary for a useful career in life. But according to the Education Code now in operation to which it is
permissible to refer for ascertaining the effect of the impugned provisions on existing state of affairs, the
scholars of unrecognised schools are not permitted to avail themselves of the opportunities for higher
education in the university and are not eligible for entering the public services. Without recognition,
therefore, the educational institutions established or to be established by the minority communities cannot
fulfil the real objects of their choice and the rights under Article 30(1) cannot be effectively exercised. The
right to establish educational institutions of their choice must, therefore, mean the right to establish real
institutions which will effectively serve the needs of their community and the scholars who resort to their
educational institutions. There is, no doubt, no such thing as fundamental right to recognition by the State
but to deny recognition to the educational institutions except upon terms tantamount to the surrender of
their constitutional right of administration of the educational institutions of their choice is in truth and in
effect to deprive them of their rights under Article 30(1).”]; Milli Talimi Mission v. State of Bihar (1984) 4
SCC 500 [4]
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64. Section 10 empowers the Board to: (i) cancel an examination or
withhold the result of an examination; (ii) prescribe fees for conducting
examinations; (iii) refuse recognition to institutions that do not fulfil
the standards of staff, instructions, equipment, or buildings laid
down by the Board; (iv) withdraw recognition to an institution not
able to adhere to the standards of staff, instructions, equipment,
or buildings laid down by the Board; and (v) inspect an institution
to ensure due observance of the prescribed courses of study and
facilities for instruction.
65. The legislative scheme of the Madarsa Act suggests that it has been
enacted to regulate the standard of education in Madarsas recognized
by the Board for imparting Madarsa education. The Madarsa Act
grants recognition to Madarsas to enable students to sit for an
examination and obtain a degree, diploma, or certificate conferred by
the Board. The statute envisages granting recognition to Madarsas
which fulfil the prescribed standards for staff, instructions, equipment
and buildings. The grant of recognition imposes a responsibility
on the Madarsas to attain certain standards of education laid
down by the Board. Access to quality teachers, course materials,
and equipment will allow Madarsa students to achieve stipulated
educational and professional standards.87 Failure of the Madarsas
to maintain the standards of education will result in the withdrawal
of their recognition.
66. In Bihar State Madarasa Education Board v. Madarasa Hanfia
Arabic College,88 the State legislature enacted the Bihar State
Madarasa Education Board Act 1982 to constitute an autonomous
State Madarasa Education Board to grant recognition, aid, and to
supervise and control the academic efficiency in the Madarsas aided
and recognized by it. Section 7(2)(n) of the legislation empowered
the Board to dissolve the managing committee of a Madarsa for
non-compliance with its directions. The issue before this Court was

87 Frank Anthony Public School Employees’ Association v. Union of India (1986) 4 SCC 707 [16] [“16.
The excellence of the instruction provided by an institution would depend directly on the excellence of
the teaching staff, and in turn, that would depend on the quality and the contentment of the teachers.
Conditions of service pertaining to minimum qualifications of teachers, their salaries, allowances and
other conditions of service which ensure security, contentment and decent living standards to teachers
and which will consequently enable them to render better service to the institution and the pupils cannot
surely be said to be violative of the fundamental right guaranteed by Article 30(1) of the Constitution.”]
88 [1989] Supp. 2 SCR 399 : (1990) 1 SCC 428
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whether the provision was violative of Article 30(1) of the Constitution.
This Court observed that the State has the power to regulate the
administration of minority educational institutions in the interests of
educational needs and discipline of the institution. However, it was
observed that the State has no power to frame rules to completely
take over the management of such institutions by superseding or
dissolving their management. Hence, Section 7(2)(n) was declared
invalid for violating Article 30(1).
67. The other issue before this Court was whether a statutory Board
established for recognition of minority educational institutions must
only comprise of persons belonging to the minority community. It was
held that there is no constitutional obligation that such a Board must
exclusively consist of members belonging to the minority community.
It was observed:
“7. […] Article 30(1) does not contemplate that an
autonomous Educational Board entrusted with the duty of
regulating the aided and recognised minorities institution,
should be constituted only by persons belonging to
minority community. Article 30(1) protects the minorities’
right to manage and administer institutions established by
them according to their choice, but while seeking aid and
recognition for their institutions there is no constitutional
obligation that the Board granting aid or recognition or
regulating efficiency in minority institution should consist
of members exclusively belonging to minority communities.
In the instant case the constitution of the Board under
Section 3 of the Act ensures that its members are only those
who are interested in teaching and research of Persian,
Arabic and Islamic studies. This provision fully safeguards
the interest of Madarasa of the Muslim community.”
68. The Madarsa Act allows the Board to prescribe curriculum and
textbooks, conduct examinations, qualifications of teachers,
and standards of equipment and buildings geared to ensure the
maintenance of standards of education in Madarsas. The provisions
of the Madarsa Act are reasonable because they subserve the
object of recognition, that is, improving the academic excellence of
students in the recognised Madarsas and making them capable to sit
for examinations conducted by the Board. The statute also enables
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the students studying in the recognised Madarsas to pursue fields
of higher education and seek employment.
69. Regulations pertaining to standards of education or qualification
of teachers do not directly interfere with the administration of the
recognized Madarsas. Such regulations are “designed to prevent
maladministration of an educational institution”. 89 The Madarsa
Act does not directly interfere with the day-to-day administration of
the recognized Madarsas.90 Further, the provisions of the Madarsa
Act are “conducive to making the institution an effective vehicle of
education for minority community” without depriving the educational
institutions of their minority character.
70. Fundamental rights consist of both negative and positive postulates.
They require the State to restrain its exercise of power and create
conducive conditions for the exercise of rights.91 The essence of
Article 30(1) is the recognition and preservation of different types of
people, with diverse languages and different beliefs, while maintaining
the basic principle of equality and secularism.92 In the spirit of
positive secularism, Article 30 confers special rights on religious and
linguistic minorities “because of their numerical handicap and to instil
in them a sense of security and confidence”.93 The positive concept
of secularism requires the State to take active steps to treat minority
institutions on par with secular institutions while allowing them to
retain their minority character. Positive secularism allows the State
to treat some persons differently to treat all persons equally.94 The

89 Ahmedabad St. Xavier’s College Society (supra) [92]
90 P A Inamdar (supra) [121] [“121. […] the urge or need for affiliation or recognition brings in the concept of
regulation by way of laying down conditions consistent with the requirement of ensuring merit, excellence
of education and preventing maladministration. For example, provisions can be made indicating the
quality of the teachers by prescribing the minimum qualifications that they must possess and the courses
of studies and curricula. The existence of infrastructure sufficient for its growth can be stipulated as a
prerequisite to the grant of recognition or affiliation. However, there cannot be interference in the day-
to-day administration. The essential ingredients of the management, including admission of students,
recruiting of staff and the quantum of fee to be charged, cannot be regulated.”]
91 Supriyo v. Union of India, 2023 SCC OnLine SC 1348 [158]
92 T M A Pai Foundation (supra) [160-161]
93 T M A Pai Foundation (supra) [157]
94 St Stephens College v. University of Delhi (1992) 1 SCC 558 [97] [“97. The Constitution establishes
secular democracy. The animating principle of any democracy is the equality of the people. But the idea
that all people are equal is profoundly speculative. It is well said that in order to treat some persons
equally, we must treat them differently. We have to recognise a fair degree of discrimination in favour
of minorities. But it is impossible to have an affirmative action for religious minorities in religious neutral
way. In order to get beyond religion, we cannot ignore religion. We must first take account of religion. It
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concept of positive secularism finds consonance in the principle of
substantive equality.
71. In Joseph Shine v. Union of India,95 one of us (Justice D Y
Chandrachud) held that the notion of formal equality is contrary
to the constitutional vision of a just social order. On the contrary,
substantive equality is aimed at producing equality of outcomes
through different modes of affirmative actions or state support.96
Substantive equality is directed at eliminating individual, institutional
and systemic discrimination against disadvantaged groups which
effectively undermines their full and equal social, economic, political,
and cultural participation in society.97 Enactment of special provisions
or giving preferential treatment by the State allows the disadvantaged
individual or community to overcome social and economic barriers
and participate in society on equal terms.98
72. The Madarsa Act secures the interests of the minority community
in Uttar Pradesh because: (i) it regulates the standard of education
imparted by the recognised Madarsas; and (ii) it conducts examinations
and confers certificates to students, allowing them the opportunity
to pursue higher education. The Madarsa Act is consistent with the
positive obligation of the State to ensure that students studying in
the recognised Madarsas attain a minimum level of competency
which will allow them to effectively participate in society and earn
a living.99 Therefore, the Madarsa Act furthers substantive equality
for the minority community.
73. The High Court erred in holding that a statute is bound to be
struck down if it is violative of the basic structure. Invalidation of a
statute on the grounds of violation of secularism has to be traced
to express provisions of the Constitution. Further, the fact that the
State legislature has established a Board to recognise and regulate

is exactly in the spirit of these considerations that this Court in its advisory opinion in Kerala Education
Bill case [1959 SCR 995 : AIR 1958 SC 956] recognised a fair degree of discrimination in favour of
religious minorities. In this respect the Court seems to have acted on the same principle which is applied
to socially and educationally backward classes, that is the principle of protective discrimination.”]
95 [2018] 11 SCR 765 : (2019) 3 SCC 39
96 Ravinder Kumar Dhariwal v. Union of India (2023) 2 SCC 209 [37]
97 Joseph Shine (supra) [171]
98 Neil Aurelio Nunes v. Union of India (2022) 4 SCC 1 [33]
99 Ahmedabad St. Xavier’s College Society (supra) [145] (Justice K K Mathew and Justice Y V Chandrachud)
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Madarsa education is not violative of Article 14. The Madarsa Act
furthers substantive equality.
e. Interplay of Article 21-A and Article 30
74. Article 21-A provides that the State shall provide free and compulsory
education to all children of the age of six to fourteen years in
such manner as the State may, by law, determine. It imposes a
constitutional obligation on the State to impart elementary and basic
education. Parliament enacted the RTE Act to provide full-time
elementary education of satisfactory and equitable quality to every
child in pursuance of Article 21-A. The RTE Act seeks to provide a
“quality education without any discrimination on economic, social,
and cultural grounds.”100 Section 3 makes the right of children to free
and compulsory education justiciable.101
75. In Society for Unaided Private Schools of Rajasthan v. Union of
India,102 a three-Judge Bench of this Court upheld the constitutional
validity of the RTE Act. It further held that the statute applies to an
aided school including a minority school receiving aid or grant to meet
whole or part of its expenses from the appropriate Government or
local authority. Subsequently, Parliament amended the RTE Act to
exempt its application to Madarsas, vedic pathsalas and educational
institutions primarily imparting religious instruction.103
76. In Pramati Educational and Cultural Trust v. Union of India,104
a Constitution Bench had to determine the constitutional validity
of Article 21-A. One of the issues before this Court was whether
Article 21-A conflicts with Article 30. This Court held that the law
enacted by Parliament under Article 21-A cannot abrogate the right of
minorities to establish and administer schools of their choice. It held
that application of the RTE Act to minority educational institutions,
whether aided or unaided, “may destroy the minority character of

100 State of Tamil Nadu v. K Shyam Sunder (2011) 8 SCC 737 [21]; Bharatiya Seva Samaj Trust v.
Yogeshbhai Ambalal Patel (2012) 9 SCC 310 [26]
101 Section 3, RTE Act
102 [2012] 2 SCR 715 : (2012) 6 SCC 1 [64]
103 Section 1(4) and (5), RTE Act. [It reads:
“[(4) Subject to the provisions of Articles 29 and 30 of the Constitution, the provisions of this Act shall
apply to conferment of rights on children to free and compulsory education.
(5) Nothing contained in this Act shall apply to Madrasas, Vedic Pathsalas and educational institutions
primarily imparting religious instruction.”]
104 [2014] 11 SCR 712 : (2014) 8 SCC 1
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the school.”105 Therefore, it held that the RTE Act is ultra vires the
Constitution to the extent it applied to minority educational institutions.
77. The purpose of education is to provide for the intellectual, moral,
and physical development of a child. A good education system is
correlated to the social, economic, and political needs of our country.106
78. Article 30(1) guarantees the right to establish and administer
educational institutions of their choice to religious and linguistic
minorities. However, the State has an interest in ensuring that the
minority educational institutions impart secular education along with
religious education or instruction.107 The constitutional scheme allows
the State to strike a balance between two objectives: (i) ensuring
the standard of excellence of minority educational institutions; and
(ii) preserving the right of the minority to establish and administer
its educational institution.108 The State generally strikes a balance
by enacting regulations accompanying the recognition of minority
educational institutions.
79. The High Court erred in holding that education provided under
the 2004 Act is violative of Article 21A because (i) The RTE Act
which facilitates the fulfilment of the fundamental right under Article
21 – A contains a specific provision by which it does not apply to

105 Pramati Educational and Cultural Trust (supra) [55] [“55. When we look at the 2009 Act, we find that
Section 12(1)(b) read with Section 2(n)(ii) provides that an aided school receiving aid and grants,
whole or part, of its expenses from the appropriate Government or the local authority has to provide
free and compulsory education to such proportion of children admitted therein as its annual recurring
aid or grants so received bears to its annual recurring expenses, subject to a minimum of twenty-five
per cent. Thus, a minority aided school is put under a legal obligation to provide free and compulsory
elementary education to children who need not be children of members of the minority community
which has established the school. We also find that under Section 12(1)(c) read with Section 2(n)(iv),
an unaided school has to admit into twenty-five per cent of the strength of Class I children belonging
to weaker sections and disadvantaged groups in the neighbourhood. Hence, unaided minority schools
will have a legal obligation to admit children belonging to weaker sections and disadvantaged groups
in the neighbourhood who need not be children of the members of the minority community which has
established the school. While discussing the validity of clause (5) of Article 15 of the Constitution, we
have held that members of communities other than the minority community which has established the
school cannot be forced upon a minority institution because that may destroy the minority character of
the school. In our view, if the 2009 Act is made applicable to minority schools, aided or unaided, the right
of the minorities under Article 30(1) of the Constitution will be abrogated. Therefore, the 2009 Act insofar
it is made applicable to minority schools referred in clause (1) of Article 30 of the Constitution is ultra vires
the Constitution. We are thus of the view that the majority judgment of this Court in Society for Unaided
Private Schools of Rajasthan v. Union of India [(2012) 6 SCC 1] insofar as it holds that the 2009 Act is
applicable to aided minority schools is not correct.”]
106 Maharashtra State Board of Secondary and Higher Secondary Education v. K S Gandhi (1991) 2 SCC
716 [13]
107 Ahmedabad St. Xavier’s College Society (supra) [138] (Justice K K Mathew and Justice Y V Chandrachud)
108 P A Inamdar (supra) [122]
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minority educational institutions; (ii) The right of a religious minority
to establish and administer Madarsas to impart both religious and
secular education is protected by Article 30; and (iii) the Board and
the state government have sufficient regulatory powers to prescribe
and regulate standards of education for the Madarsas.
E. Legislative Competence
a. The Madarsa Act is within the legislative competence of the
State under Entry 25, List III
80. The distribution of legislative powers is contained in Part XI of the
Constitution. Article 246(2) confers exclusive power on Parliament to
make laws “with respect to” any of the matters enumerated in List I
(the Union List) of the Seventh Schedule. Clause (1) is prefaced with
a non-obstante provision which gives it precedence over Clauses (2)
and (3). Article 246(2) enunciates the legislative principles with regard
to List III (the Concurrent List) and states that both Parliament and
State legislatures have concurrent powers of legislation “with respect
to” the matters enumerated in this list. This clause also begins with a
non-obstante provision giving it precedence over clause (3). Finally,
Article 264(3) states that the State Legislature has exclusive power
to make laws on the matters enumerated in List II (the State List).
81. When the Constitution was enacted, the subject of “education”
was part of List II (the State List) of the Seventh Schedule. This
followed the scheme of distribution of powers in the Government of
India Act 1935, whereby, the entry titled “Education” was placed in
the Provincial List. At the time of the enactment of the Constitution,
Entry 11 of List II read as follows:
“11. Education including universities, subject to the
provisions of entries 63, 64, 65 and 66 of List I and entry
25 of List III.”
82. At this time, Entry 25 of List III read as follows:
“25. Vocational and technical training of labour.”
83. With effect from 3 January 1977, by the Constitution (Forty-Second
Amendment Act),109 Entry 11 of List II was omitted, and Entry 25 of

109 Constitution (Forty-second Amendment) Act, 1976, s. 57 (w.e.f. 3-1-1977).
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List III was amended to account for it. In other words, the legislative
entry pertaining to “education” was moved from the State List to the
Concurrent List. Entry 25, List III now reads as follows:
“25. Education, including technical education, medical
education and universities, subject to the provisions of
entries 63, 64, 65 and 66 of List I; vocational and technical
training of labour.”
84. To address the contention raised by the respondents regarding the
legislative competence of the state legislature, the following settled
principles governing the interpretation of the entries in the Seventh
Schedule are relevant110:
a. The entries are legislative heads and not sources of legislative
powers. The legislative entries use general words to define
and delineate the legislative powers of Parliament and State
legislatures, and the words should receive their ordinary, natural,
and grammatical meaning;
b. The legislative entries should not be read in a narrow or pedantic
sense but must be given their “broadest meaning and the widest
amplitude”. The ambit of the entries extends to all ancillary and
subsidiary matters which can fairly and reasonably be said to
be comprehended in them;
c. There is a possibility of an overlap and conflict between two or
more entries. In such cases, the doctrine of pith and substance
comes into play to determine whether the legislature in question
has the competence to enact a law;
d. There may arise situations where a legislature may frame a
law that in substance and reality transgresses its legislative
competence. Such a piece of legislation is called “colourable
legislation”. The substance of the legislation is material. If the
subject matter is in substance beyond the legislative powers of
the legislature, the form in which the law is clothed would not
save it from being declared unconstitutional; and
e. In certain entries, such as Entry 25 in List III, the Constitution
uses specific expressions such as “subject to” in order to

110 Mineral Area Development Authority & Anr. vs Steel Authority of India & Anr, 2024 INSC 554 [40-42]
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resolve potential overlaps between entries in the three lists.
This is used in cases where the Constitution stipulates that
the exercise of power traceable to certain legislative entries
overrides the exercise of power traceable to another entry in
a different list.
85. The provisions of the Madarsa Act seek to “regulate” Madarsas. These
are educational institutions run by a religious minority. There is a
distinction between “religious instruction” and “religious education”.
While the Madarsas do impart religious instruction, their primary aim
is education. Legislative entries must be given their widest meaning,
and their ambit also extends to ancillary subjects which may be
comprehended within the entry. The mere fact that the education
which is sought to be regulated includes some religious teachings
or instruction, does not automatically push the legislation outside
the legislative competence of the state.
86. Article 28 is titled “Freedom as to attendance at religious instruction
or religious worship in certain educational institutions”. Article 28(1)
states that no religious instruction shall be provided in any educational
institution wholly maintained out of State funds. Article 28(3) provides
that no person who is attending any educational institution recognised
by the state or receiving aid out of state funds shall be compelled
to take part in religious instruction or attend religious worship
without their consent. The corollary to this provision is that religious
instruction may be imparted in an educational institution which is
recognized by the state, or which receives state aid but no student
can be compelled to participate in religious instruction in such an
institution. However, the dissemination of religious instruction does
not change its fundamental character as an institution that imparts
education. To read Entry 25, List III in the manner proposed by the
respondent, would render it inapplicable to all legislation which deal
with any institution “established and administered” by minorities,
which may provide some religious instruction. This runs contrary to
the constitutional scheme in Article 30, which recognizes the right of
minorities to establish and administer educational institutions. Merely
because an educational institution is run by a minority or even a
majority community and professes some of its teachings, does not
mean that the teachings in such institutions fall outside the ambit of
the term “education”.
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87. In fact, reference was made to an eleven-judge bench of this Court in
T.M.A. Pai Foundation v. State of Karnataka,111 on the “scope of the
right of minorities to establish and administer educational institutions
of their choice under Article 30(1) read with Article 29(2)” in view of
the inclusion of Entry 25 in List III of the seventh schedule.112 One
of the questions before this Court was whether the “minority status”
of an institution under Article 30(1) would be determined with the
unit being the state or the entire country, since both the state and
the union can legislate on the subject of “education”. Therefore, it is
beyond the pale of doubt that the regulation of minority institutions
was assumed to fall within the ambit of Entry 25, List III by an eleven-
judge bench of this Court.
88. Further, Entry 25, List III itself provides specific carve-outs. The entry
is subject to entries 63, 64, 65 and 66 of List I. None of these entries
in the Union List seek to regulate ‘religious education’. Further, Mr
Guru Krishna Kumar, Senior Counsel has not indicated any other
entry in List I with which there is a conflict so as to indicate that the
legislation is a “colourable legislation” within the competence of the
Parliament and not within the competence of the state legislature.
89. With respect to the concurrent exercise of power by the State
Legislature and the Parliament with respect to matters in List III (the
Concurrent List), the Constitution also provides for the doctrine of
repugnancy to resolve inconsistencies between laws made by the
Parliament and the state legislatures.113 In such cases, the law made
by the State legislature gives way to the law made by the Parliament,
subject to certain exceptions.114 In the present instance, the question
of repugnancy does not even arise as there is no central law which
purports to regulate the functioning of Madarsas. As noted above, the
RTE Act, which is the legislation framed by Parliament pursuant to
Entry 25, specifically states that it is inapplicable to Madarsas, and thus,
there is no issue of a conflict or repugnancy between the two Acts.
90. In view of the above, there is no jurisprudential basis to read Entry 25,
List III to be limited to only education that is devoid of any religious

111 [2002] Supp. 3 SCR 587 : (2002) 8 SCC 481
112 Ibid [3-4].
113 Article 254, Constitution of India.
114 Forum for People’s Collective Efforts v. State of W.B. (2021) 8 SCC 599 [116]
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teaching or instruction and to contend that the Madarsa Act (in its
entirety) which seeks to regulate the functioning of Madarsas in
Uttar Pradesh is outside the competence of the state legislature.
The challenge on the ground of legislative competence fails.
b. Certain provisions of the Madarsa Act conflict with the UGC
Act enacted under Entry 66, List I
91. As noted above, Entry 25 of List III has been made subject to certain
entries in List I. One of these entries is Entry 66 of List I, which
reads as follows:
“66. Co-ordination and determination of standards in
institutions for higher education or research and scientific
and technical institutions.”
92. In Mineral Area Development Authority & Anr. vs. Steel Authority
of India & Anr.,115 a Constitution Bench of this Court had occasion
to observe the purport of the legislative entries in List II using the
phrase “subject to” in the following terms:
“44. Where the entries have used the phrase “subject to”,
the legislative power of the State is made subordinate to
Parliament with respect to either the Union List or the
Concurrent List. The expression “subject to” conveys
the idea of a provision yielding place to another
provision or other provisions to which it is made
subject. Therefore, where the Constitution intends
to displace or override the legislative powers of the
States, it has used specific terminology – “subject
to”. However, the Constitution has also indicated the
extent to which a particular legislative entry under List II
is subordinated. For instance, the subjection is either with
respect to provisions of List I or List III, or it can also be
to the extent of “any limitations” imposed by Parliament by
law. Thus, it is imperative that the entries in List II must be
read and interpreted in their proper context to understand
the extent of their subordination to Union powers.”
(emphasis supplied)

115 [2024] 8 SCR 540 : 2024 INSC 607
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93. The UGC Act has been enacted by Parliament pursuant to Entry
66 and seeks to make provisions for the “co-ordination and
determination of standards in Universities and for that purpose, to
establish a University Grants Commission.”116 The Madarsa Act has
been enacted pursuant to Entry 25 of List III. This Court has held in
a consistent line of precedent that the UGC Act occupies the field
with regard to the coordination and determination of standards in
higher education. Therefore, state legislation which seeks to regulate
higher education, in conflict with the UGC Act, would be beyond the
legislative competence of the State legislature.117
94. In Prof. Yashpal & Anr vs. State of Chhattisgarh,118 a three-
Judge Bench of this Court adjudicated on the constitutionality of
the provisions of a state legislation in Chhattisgarh, which inter alia,
granted the state government the power to recognise and establish
universities, which offered degrees that were not recognised by the
UGC. The state relied on Entry 32 of List II which pertains to the
incorporation of universities and Entry 25 of List III, to justify the
legislative competence of the state legislature. This Court declared
that the provisions of the state legislation which conflict with the
provisions of the UGC Act are unconstitutional as the UGC Act
was validly enacted by Parliament under Entry 66 of List I. After
considering the consistent line of precedent on this question, this
Court observed thus:
“45. The State Legislature can make an enactment
providing for incorporation of universities under Entry 32
of List II and also generally for universities under Entry 25
of List III. The subject “university” as a legislative head
must be interpreted in the same manner as it is generally
or commonly understood, namely, with proper facilities for
teaching of higher level and continuing research activity.
An enactment which simply clothes a proposal submitted

116 Long Title, UGC Act.
117 Osmania University Teachers’ Association vs. State of Andhra Pradesh (1987) 4 SCC 671; Dr Preeti
Srivastava and another vs. State of M.P. (1999) 7 SCC 120; Prof. Yashpal & Anr vs. State of Chhattisgarh
(2005) 5 SCC 420; Annamalai University, Represented by Registrar vs. Secretary to Government,
Information and Tourism Department (2009) 4 SCC 590; Kalyani Mathivanan versus K.V. Jeyaraj (2015)
6 SCC 363.
118 [2005] 2 SCR 23 : (2005) 5 SCC 420
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by a sponsoring body or the sponsoring body itself with the
juristic personality of a university so as to take advantage
of Section 22 of the UGC Act and thereby acquires the
right of conferring or granting academic degrees but without
having any infrastructure or teaching facility for higher
studies or facility for research is not contemplated by
either of these entries. Sections 5 and 6 of the impugned
enactment are, therefore, wholly ultra vires, being a fraud
on the Constitution.
46. […] The impugned Act which enables a proposal
on paper only to be notified as a university and thereby
conferring the power upon such university under Section
22 of the UGC Act to confer degrees has the effect of
completely stultifying the functioning of the University
Grants Commission insofar as these universities are
concerned. Such incorporation of a university makes it
impossible for UGC to perform its duties and responsibilities
of ensuring coordination and determination of standards.
In the absence of any campus and other infrastructural
facilities, UGC cannot take any measures whatsoever to
ensure a proper syllabus, level of teaching, standard of
examination and evaluation of academic achievement of
the students or even to ensure that the students have
undergone the course of study for the prescribed period
before the degree is awarded to them.”
95. Section 22 of the UGC Act pertains to the right to confer degrees
and reads as follows:
“22. Right to confer degrees – (1) The right of conferring
or granting degrees shall be exercised only by a University
established or incorporated by or under a Central Act, a
Provincial Act or a State Act or an institution deemed to
be a University under section 3 or an institution specially
empowered by an Act of Parliament to confer or grant
degrees.
(2) Save as provided in sub-section (1), no person or
authority shall confer, or grant, or hold himself or itself out
as entitled to confer or grant, any degree.
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(3) For the purposes of this section, “degree’ means any
such degree as may, with the previous approval of the
Central Government, be specified in this behalf by the
Commission by notification in the official Gazette.”
96. Sub-section (1) expressly restricts the right to confer or grant
degrees to (i) universities established or incorporated by a Central
or State statute; or (ii) an institution deemed to be a university under
Section 3;119 or (iii) an institution specially empowered by an Act of
Parliament to confer degrees. Sub-section (2) provides the same in
the negative and stipulates that no person or authority, except those
stipulated in sub-section (1) is entitled to confer or grant a degree or
present himself as entitled to confer or grant a degree. Sub-section (3)
provides that, for the application of Section 22, “degree” includes
those degrees which are specified in this regard by the UGC by a
notification issued in the Official Gazette, after previous approval of
the Central Government.
97. During the course of the hearing, in response to queries posed by this
Court, the Standing Counsel for the UGC clarified on instructions that
the notification referred to in sub-section (3) of Section 22 has been
issued. The latest notification in this regard, which currently holds
the field, was issued by the UGC in March 2014.120 The notification
lists the nomenclature of all the degrees which fall within the ambit
of Section 22 of the UGC Act. Under the title of ‘Specification of
Degrees with Urdu/Persian/Arabic nomenclature’, the following
degrees are specified:

Specification of Degrees with Urdu/Persian/Arabic nomenclature
Sl. Specified Degrees Level Minimum Entry
No. duration (Years) Qualification
126. Fazil BACHELOR’S 3 years 10+2 (Alim/
Afzal-
Ul- Ulema
Preliminary)

119 Section 3 reads: “Application of Act to institutions for higher studies other than Universities –
The Central Government may, on the advice of the Commission, declare by notification in the Official
Gazette, that any institution for higher education, other than a University, shall be deemed to be a
University for the purposes of this Act, and on such a declaration being made, all the provisions of this
Act shall apply to such institution as if it were a University within the meaning of clause (f) of section 2”
120 NO. F. 5-1/2013 (CPP-II).
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127. Afzal-Ul-Ulma BACHELOR’S 3 years 10+2 (Alim/
Afzal-
Ul- Ulma
Preliminary)
128. Kamil MASTER’S 2 years Fazil/Afzal-
Ul-Ulma
(BA)
129. Mumtaz. (Mumtazul M.PHIL. 1 year Kamil (MA)
Tafseer. Mumtazul
Mohaddisin,
Mumtazul Fiqh,
Mumtazul Adah etc.)
The universities shall be free to write English equivalent of these degrees,
if they so desire in the mark sheet/degree certificates either in parentheses
or slash.

98. Section 9 of the Madarsa Act specifies the functions of the Board
under the Madarsa Act. Several of these functions pertain to the
regulation of the Fazil and Kamil degrees, which correspond to
a bachelor’s level and a post-graduate degree, respectively. In
particular, the following provisions deal with regulating these higher
education degrees:
a. Sub-clause (a) empowers the Board to prescribe courses of
instructions, textbooks and other material for inter alia the Kamil
and Fazil courses;
b. Sub-clause (e) empowers the Board to grant degrees, diplomas,
certificates and academic distinctions to those who have either
studied in institutions recognized by the board or studied privately
under the conditions mandated by regulations and passed an
examination conducted by the Board;
c. Sub-clause (f) empowers the Board to conduct the examinations
of inter alia the Kamil and Fazil courses. Sub-clauses (g), (h)
and (j) further empower the Board to recognize institutions
for the purpose of examinations, admit candidates for the
examinations, and publish or withhold the publication of the
examination results; and
d. Sub-clause (o) empowers the Board to carry out all acts which
are required to further the object of the Board, which is a body
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constituted to regulate and supervise “Madrasa-Education up
to Fazil”.
Pursuant to the above provisions, several provisions in the
Regulations framed by the Board also seek to regulate the Kamil
and Fazil courses and degrees.
99. The Madarsa Act to the extent to which it seeks to regulate higher
education, including the ‘degrees’ of Fazil and Kamil, is beyond the
legislative competence of the State Legislature since it conflicts with
Section 22 of the UGC Act. Entry 25 of List III, pursuant to which the
Madarsa Act has been enacted, has been expressly made subject
to Entry 66 of List I. The UGC Act governs the standards for higher
education and a state legislation cannot seek to regulate higher
education, in contravention of the provisions of the UGC Act.
c. The entire Madarsa Act need not be struck down on the above
ground
100. In the foregoing sections of this Judgment, we have upheld the
constitutionality of the Madarsa Act on various grounds, that were
urged before the High Court and subsequently, before this Court.
However, certain provisions of the Madarsa Act which pertain to the
regulation of higher education and the conferment of such degrees
have been held to be unconstitutional on the ground of lack of
legislative competence. Thus, the question that arises is whether the
entire legislation must be struck down on this ground. In our view, it
is in failing to adequately address this question of severability that
the High Court falls into error and ends up throwing the baby out
with the bathwater.
101. The entire statute does not need to be struck down each time that
certain provisions of the statute are held to not meet constitutional
muster. The statute is only void to the extent that it contravenes the
Constitution. This position may be derived from the text of Article 13(2)
itself, which states:
“(2) The State shall not make any law which takes away
or abridges the rights conferred by this Part and any law
made in contravention of this clause shall, to the extent
of the contravention, be void.”
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102. Although Article 13(2) upholds this proposition in the context of laws
which abridge the fundamental rights in Part III, the same doctrine
is equally applicable to provisions of a statute which are set aside
on the ground of lack of legislative competence. This position has
also been affirmed by a steady line of precedent of this Court. We
may helpfully refer to the observations in the locus classicus on
the subject. In R.M.D. Chamarbaugwalla v. Union of India,121 a
Constitution bench of this Court adjudicated on the constitutionality of
certain provisions of the Prize Competitions Act, 1956 and its allied
rules. This Court, speaking through Justice TL Venkatarama Ayyar,
had occasion to lay down the contours of the doctrine of severability
and held that when a statute is in part void, it will be enforced as
regards the rest, if that part is severable from what is invalid. It was
clarified that it is immaterial whether the invalidity of the statute
arises by reason of its subject matter being outside the competence
of the legislature or by reason of its provisions contravening other
constitutional provisions. To determine whether the specific provisions
or the portion of the statute which is invalid is severable from the
rest of the statute, this Court adopted certain rules of construction,
which are as follows:
“22. […]
1. In determining whether the valid parts of a statute
are separable from the invalid parts thereof, it is the
intention of the legislature that is the determining
factor. The test to be applied is whether the
legislature would have enacted the valid part
if it had known that the rest of the statute was
invalid. […]
2. If the valid and invalid provisions are so inextricably
mixed up that they cannot be separated from one
another, then the invalidity of a portion must result
in the invalidity of the Act in its entirety. On the other
hand, if they are so distinct and separate that
after striking out what is invalid, what remains
is in itself a complete code independent of the

121 [1957] 1 SCR 930 : 1957 SCC OnLine SC 11
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rest, then it will be upheld notwithstanding that
the rest has become unenforceable. […]
3. Even when the provisions which are valid are distinct
and separate from those which are invalid, if they all
form part of a single scheme which is intended to be
operative as a whole, then also the invalidity of a part
will result in the failure of the whole. [...]
4. Likewise, when the valid and invalid parts of a statute
are independent and do not form part of a scheme
but what is left after omitting the invalid portion is so
thin and truncated as to be in substance different from
what it was when it emerged out of the legislature,
then also it will be rejected in its entirety.
5. The separability of the valid and invalid provisions
of a statute does not depend on whether the law is
enacted in the same section or different sections; […]
it is not the form, but the substance of the matter
that is material, and that has to be ascertained on
an examination of the Act as a whole and of the
setting of the relevant provision therein.
6. If after the invalid portion is expunged from the statute
what remains cannot be enforced without making
alterations and modifications therein, then the whole
of it must be struck down as void, as otherwise it will
amount to judicial legislation. […]
7. In determining the legislative intent on the question of
separability, it will be legitimate to take into account
the history of the legislation, its object, the title and
the preamble to it. […]
(emphasis supplied)
103. Having already disagreed with the High Court on the question of
whether the entire Madarsa Act suffers from an infirmity on the
principle of secularism and other contentions, the only infirmity lies
in those provisions which pertain to higher education, namely Fazil
and Kamil. These provisions can be severed from the rest of the
Madarsa Act. As noted earlier, the purpose behind the Madarsa Act
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was to remove the difficulties in running the Madarsas, improve their
merit and provide adequate facilities to students studying in these
institutions. The purpose was not limited to only regulating Fazil and
Kamil, and the legislature would have still enacted the statute if it were
aware that the portions pertaining to higher education were invalid.
Further, if the provisions relating to higher education are separated
from the rest of the statute, the Act can continue to be enforced in
a real and substantial manner. On an examination of the Madarsa
Act, it is clear that prescribing the instructional material, conducting
exams and conferring degrees for Fazil and Kamil were only a part
of the functions of the Board. The severance of these functions
from the Board does not impact its entire character. Thus, only the
provisions which pertain to Fazil and Kamil are unconstitutional, and
the Madarsa Act otherwise remains valid.
F. Conclusion
104. In view of the above discussion, we conclude that:
a. The Madarsa Act regulates the standard of education in
Madarsas recognized by the Board for imparting Madarsa
education;
b. The Madarsa Act is consistent with the positive obligation of the
State to ensure that students studying in recognised Madarsas
attain a level of competency which will allow them to effectively
participate in society and earn a living;
c. Article 21-A and the RTE Act have to be read consistently
with the right of religious and linguistic minorities to establish
and administer educational institutions of their choice. The
Board with the approval of the State government can enact
regulations to ensure that religious minority institutions impart
secular education of a requisite standard without destroying
their minority character;
d. The Madarsa Act is within the legislative competence of the
State legislature and traceable to Entry 25 of List III. However,
the provisions of the Madarsa Act which seek to regulate higher-
education degrees, such as Fazil and Kamil are unconstitutional
as they are in conflict with the UGC Act, which has been enacted
under Entry 66 of List I.
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105. The judgment of the High Court of Judicature at Allahabad dated 22
March 2024 is accordingly set aside and the petitions shall stand
disposed of in the above terms.
106. Pending applications, if any, stand disposed of.

Result of the case: Petitions disposed of.

†
Headnotes prepared by: Nidhi Jain