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Gauhati High Court issued notice in a plea challenging Assam Repealing Act, 2020, abrogating Assam Madrassa Education (Provincialisation) Act, 1995 and Assam Madrassa Education (Provincialisation of Services of Employees and Re-organisation of Madrassa Educational Institutions) Act, 2018.

A Division Bench of Chief Justice Sudhanshu Dhulia and Justice Manash Ranjan Pathak, while listing the matter on July 16, 2021, issued notice to the State Government.

Appearances were made by Senior Advocate Sanjay Hegde, Abdur Razaqu Bhuyan, Hafiz Rashid Choudhary and Advocate Adeel Ahmad.  

It is the contention of the petitioners that Repealing Act, SOPs for converting these institutions to schools, is directly violative of Article 29 and 30 of the Constitution.

The petitioners in the WP are president of Managing Committees of various Madrassas and land donor as well as Mutawalli of Waqf who donated lands for establishing these Madrassas, with a special character under Articles 29 and 30 of the Constitution.

In furtherance of the Repealing Act, Government inter-alia made the following modifications, as challenged by the petitioners;

1. February 12, 2021: Secondary Education Department issued a detail instruction intending to replace course curriculum prescribed by Madrassa Education Board, with syllabus prescribed by SCERT, SEBA and AHSEC.
2. April 7, 2021: Secretary, Board of Secondary Education passed a notification for changing names of 151 Madrassas
3. April 9, 2021: Director, Secondary Education issued a letter whereby Inspector of Schools were instructed to request the head of Institutions of High Schools (erstwhile Madrassa) to alter their Bank Account names and Sign Board etc.
4.  April 12, 2021: Secretary, State Madrassa Education Board, issued a letter whereby the Head of Institutions were apprised of the withdrawal of Assam Education Dept. Rules & Order and further withdrawal of the holiday list.
5. March 20, 2021: Director, Secondary Education issued an order whereby it was instructed to change all the nomenclature of the pre-senior Madrassa to upper Primary Schools and conversion of other categories of Madrassas to High/Secondary level Institutions, enclosing a list of pre senior, senior, title Madrassa and Arabic colleges.

“… The aforesaid impugned decision of the Government forwarded by the impugned Repealing Act is unreasonable, irrational and purpose which is sought to be achieved is not prudent and also not a policy decision of the Government which can be construed within the Constitutional ambit. That apart, the said action is arbitrary, high handed as well as colourable to marginalize a particular section of the citizen who are entitled to be provided under the Constitution enriched, pursuing and dreaming to flourish their career”, the plea states.

The Assam Government vide Act of 1995 and the Assam Venture Madrassa Educational Institutions (Provincialisation of Services) Act, 2011 had provincialized the services of Madrassa Employees, by keeping intact the course curriculum and syllabus of these Madrassa Institutions. However, with the passing of the Repealing Act of 2020, the said two enactments stand repealed and with the sanction of the abovementioned notifications, Government of Assam intends to take over the control of these Madrassas, altering their character, which is essentially in contravention of Articles 29 and 30 of the Constitution, as claimed by the petitioners.

It is further averred that the course curriculum and structure prescribed by the State Madrassa Education Board has been drafted by a Committee of experts in the subjects to make the students equipped to pursue higher studies (10+2), as well as take admissions in BA Arabic/MA Arabic in various State and National Universities. Withdrawing the same, without producing any evidence to the contrary, jeopardizes the career of students willing to pursue/pursuing studies in these categories of Institutions.

Reliance is also placed on budgetary allocation of various States including UP, West Bengal, promoting Madrassas and Maktabs.

“The UP Govt. earmarked 497 Crores in its 2020-21 Budget for educational facilities for modern subjects, besides religious education in recognized Madrassas and Maktabs. West Bengal Govt. earmarked 3600 Crores towards the development of Minority Affairs and Madrassa Education Department”, the plea adds.

Satisfying conditions of seeking an ad interim injunction, the petitioners submit that, “In the present case the petitioners have a prima facie case as their rights guaranteed under the Constitution has been infringed. These categories of Madrassas are situated in Waqf Land as in case of Petitioner No. 9 and 13 of this WP. By the provincialisation act of 1955 only the services of its employees were provincialized, but the land of the Madrassas were not taken over by the said Act… The salient feature of Article 29 and 30 is that the Government can provide aid but cannot in doing so, change the nomenclature...”

Prayer has been sought to quash the impugned notifications and the Repealing Act of 2020.