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61Copy pinpoint61. 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

62Copy pinpoint62. 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

63Copy pinpoint63. 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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64Copy pinpoint64. 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.

65Copy pinpoint65. 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.

66Copy pinpoint66. 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).

67Copy pinpoint67. 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.”

68Copy pinpoint68. 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.

69Copy pinpoint69. 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.

70Copy pinpoint70. 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.

71Copy pinpoint71. 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

72Copy pinpoint72. 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.

73Copy pinpoint73. 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

74Copy pinpoint74. 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

75Copy pinpoint75. 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

76Copy pinpoint76. 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.

77Copy pinpoint77. 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

78Copy pinpoint78. 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.

79Copy pinpoint79. 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

80Copy pinpoint80. 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).

81Copy pinpoint81. 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.”

82Copy pinpoint82. At this time, Entry 25 of List III read as follows: “25. Vocational and technical training of labour.”

83Copy pinpoint83. 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.”

84Copy pinpoint84. 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.

85Copy pinpoint85. 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.

86Copy pinpoint86. 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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87Copy pinpoint87. 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.

88Copy pinpoint88. 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.

89Copy pinpoint89. 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.

90Copy pinpoint90. 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

91Copy pinpoint91. 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.”

92Copy pinpoint92. 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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93Copy pinpoint93. 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

94Copy pinpoint94. 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.”

95Copy pinpoint95. 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.”

96Copy pinpoint96. 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.

97Copy pinpoint97. 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.

98Copy pinpoint98. 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.

99Copy pinpoint99. 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

100Copy pinpoint100. 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.

101Copy pinpoint101. 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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102Copy pinpoint102. 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)

103Copy pinpoint103. 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

104Copy pinpoint104. 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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105Copy pinpoint105. 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.

106Copy pinpoint106. Pending applications, if any, stand disposed of.

Result of the case: Petitions disposed of.

† Headnotes prepared by: Nidhi Jain