The Supreme Court on Tuesday said the positive concept of secularism required the state to treat minority institutions at par with secular ones and treat all equally irrespective of faith, belief.
A bench of Chief Justice of India DY Chandrachud and Justices J B Pardiwala and Manoj Misra made the remarks while upholding the constitutional validity of the 2004 Uttar Pradesh madrassa education law.
As a result, it set aside the March 22 Allahabad high court order that quashed the madrassa law on the ground that it was violative of the principle of secularism.
The bench said, "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. The concept of positive secularism finds consonance in the principle of substantive equality."
The bench said fundamental rights comprise both the negative and positive postulates and required the state to restrain its exercise of power and create conducive conditions for exercising these rights.
Referring to Article 30(1), the top court said it recognised and preserved different types of people, with diverse languages and different beliefs, while maintaining the basic principle of equality and secularism.
"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," said the judgment.
The top court noted in a challenge to a statute's validity for violation of the principle of secularism, it must be shown that the statute violated Constitutional provisions on secularism.
"Secularism is one of the facets of the right to equality. 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," it said.
CJI Chandrachud, who authored the verdict on behalf of the bench, said the equality code prohibited the state from mixing religion with any of its secular activity.
"However, the Constitution recognises 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," he wrote.
The right of minorities to administer educational institutions included the right to manage its affairs in accordance with the community's interest in general and the institution in particular, added the SC.
"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. The right to administer is, it is trite law, not the right to maladminister," said the bench.
The judgment, however, clarified that the state had an interest in ensuring education standards in minority institutions were similar to other educational institutions.
"The 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. 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," it noted.
The state may even impose a regulation as a condition for grant of aid or recognition, said the SC.
Upholding the validity of the 2004 madrassa law, the bench said its provisions were reasonable as they subserved the object of recognition, in other words, improved the academic excellence of students in the recognised madrassas, making them capable to sit for examinations conducted by the board.
"Regulations pertaining to standards of education or qualification of teachers do not directly interfere with the administration of the recognised madrassas. Such regulations are designed to prevent maladministration of an educational institution. The madrassa Act does not directly interfere with the day-to-day administration of the recognised madrassas," it said.
The top court's 70-page verdict said the high court had erred in holding that a statute was bound to be struck down if it violated 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 madrassa education is not violative of Article 14. The Madrassa Act furthers substantive equality," it said.
