Point of Law : Income from affiliation fees and the examination fees as the term 'fee' itself indicates something that is charged for rendering the service in respect of those two items which is a sort of quid pro quo and could hardly be said to be an income for the purposes of running the University.

JUDGMENT :

Sudhanshu Dhulia, J.

This writ petition throws a challenge to the legislative as well as executive decisions of the State of Assam, which have been taken in the recent past. By these recent legislative and executive decisions, religious instructions, which were so far being imparted in the “provincialised Madrasas” of the State, have come to an end. Petitioners’ case is that this action of the State Government amounts to an invasion of their fundamental rights given to them under Articles 25 and 26 as well as under Articles 29 and 30 of the Constitution of India. It has further been argued that this is also violative of Articles 14 and 21 of the Constitution of India.

2. Before we deal with this question, a brief history of secondary and higher secondary education in Assam would be in order.

3. Prior to the introduction of modern education in Assam, school level education was largely a community driven effort. “Maktabs” and “Madrasas” were opened in various places in Assam by members of Muslim community to give the kind of education to children, the community thought would be in their best interest.

4. Generally in the late 19th and first half of 20th Century, Government schools were opened which imparted, inter alia, modern education in languages, humanities and sciences. Yet these schools were few and far between. All parts of Assam could not be reached, due to logistical and financial constraints. Local communities thus came forward to establish private schools in Assam. These were called “Venture Schools”. There were venture Madrasas as well, where largely religious education was imparted. Later, these schools, both venture schools and venture Madrasas, or at least a large number of them, started getting financial support from the Government under a scheme known as “deficit financing”. Gradually, some of these schools under deficit finance scheme were “provincialised”. The Assam Secondary Education (Provincialisation) Act, 1977 provincialised many such schools which were under deficit scheme and the teaching and non-teaching staffs of these schools became Government servants. A similar move was made by the Government later in the year 1995 to provincialise such venture Madrasas, which were under the deficit finance scheme. A total number of 74 Madrasas, which were till now under the deficit scheme, were provincialised under the 1995 provincialised Act, which is known as the Assam Madrassa Education (Provincialisation) Act, 1995. This happened in the year 1995-96 and the teaching as well as non-teaching staff of these Madrasas which were now provincialised, became Government servants. After the 1995 Provincialisation Act, the State came up with another Provincialisation Act, i.e. Assam Venture Madrassa Educational Institutions (Provincialisation of Services) Act, 2011, which was amended in the years 2013 and 2014, under which some more Madrasas were provincialised and then came the Assam Madrassa Education (Provincialisation of Services of Employees and Re-organisation of Madrassa Educational Institutions) Act, 2018, which repealed the 2011 Madrassa Provincialisation Act. Under the 2018 Provincialisation Act again several Madrasas were provincialised. Nevertheless, religious instructions and religious education continued to be imparted in these provincialised Madrasas, although they were now wholly maintained out of State funds.

5. A decision was then taken by the Government of Assam on 13.11.2020 in its meeting of Council of Ministers to convert the “provincialised” Madrasas into regular High Schools and to withdraw the teachings of theological subjects in such Madrasas. There was a similar decision taken in the same meeting to convert the “provincialised” Sanskrit Tolls into Study Centres. In Sanskrit Tolls, inter alia, religious instructions were being given, though these too were fully maintained out of State