UP madrassa law upheld, top court cites positive secularism

NEW DELHI: Upholding the constitutional validity of the 2004 Uttar Pradesh madrassa education law, 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 JB Pardiwala and Manoj Misra set aside the Allahabad High Court order that quashed the law on the ground that it was violative of the principle of secularism.

"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, adding that 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.

Article 30(1) recognised and preserved different types of people, with diverse languages and different beliefs, while maintaining the basic principle of equality and secularism, it said.

"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 penned by CJI Chandrachud.

"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.