FACTS
Muhammadan Anglo-Oriental (MAO) College was established in 1875 in Aligarh as a teaching institution. This college later came to be known as Aligarh Muslim University through the AMU Act 1920. This Act was amended by the University in 1951 and 1965. These amendments were related to the religious instructions and the administration of the Muslim students and the University, respectively. Under this, the test of religious belief for admission to the college was invalidated and the powers of the Court (all Muslim-body) as the supreme governing body was transferred to the Executive Council.
In the case, S Azeez Basha v. Union of India, constitutional validity of the Amendment Acts was questioned with respect to the Constitution and it was held that AMU wasn’t a minority institution because it was established by a legislative act and not by the Muslim community itself. Herein, the petitioners made their argument based on Article 30 of the Constitution which guarantees the right to establish and administer educational institutions of choice, to the minorities. Section 1(A) of the Act states that the State shall not discriminate against any educational institution, while aiding them, on the grounds that it is under the management of a minority. Petitioners stated that the amendments made are violative of Article 30, as it infringes the right of Muslim community to administer the institution. To this, the Union of India, opposed by stating that Muslim minority didn’t have the right to administer AMU as they hadn’t established the institution. A Constitutional Bench dismissed the writ petitions in Azeez Basha case, as, AMU was established by Government of India and not by the Muslim minority. Also, the College was converted to the University by virtue of the 1920 Act itself and the administration did not vest in the Muslim minority completely. Hence, it was concluded that the phrase “establish and administer/maintain”, as focused in Article 30(1) and 26, need to be read conjunctively.
In yet another case, named Anjuman-e- Rahmaniya v. District Inspector of School, a question was raised whether V.H.M.S Rehmania Inter College is a minority educational institution. So, in 1981, a two-judge Bench questioned the correctness of Azeez Basha case and referred the case to a 7 Judges Bench under the Chief Justice. Herein, the major concerns were the essential conditions of a minority educational institution and whether the institution needs to be established only by the minority, without any assistance from other communities.
About a month after this, the AMU Act was amended again in 1981 with the assent of the President. It stated that the university was established by Muslims of India aiming to restore its minority status. The word “establish” and ” were omitted from the Preamble and the term ‘University’ was amended. Separately, in 2005, AMU proposed a policy for reserving 50 percent of the seats into its PG medical course for Muslims. The Court stated that AMU wasn’t a minority educational institution, and the Amendment overruled the judgement of the Azeez Basha case. So, this policy was declared unconstitutional by the Allahabad High Court in the decision in Dr Naresh Agarwal v. UOI (2005).
In the case, TMA Pai Foundation v. State of Karnataka, question was what are the indicia for treating an educational institution as a minority one; the Bench disposed of the case without giving any answers.
In 2019, a three-judge bench made a Reference Order to a Bench of 7 Judges with a view to determine the correctness of Azeez Basha case and find the answer to the question raised in the TMA Pai Foundation case. They needed to reconsider the interpretation of Article 30 and the minority status of AMU. Also, the validity of the decision of the Court in Prof. Yashpal v. State of Chattisgarh and the 2010 amendment to the National Commission for Minority Educational Institutions Act, 2004 was needed to be considered.
ISSUES RAISED
The meaning of the term ‘establish’ and the indicia for recognising an educational institution as a minority one, were the major issues. The Bench needed to decide whether an educational institution should be both established and administered by a minority to secure the guarantee under Article 30 and what are the criteria for the same. Also, whether a minority educational institution registered as a society under Societies Registration Act 1860 loses its status of a minority educational institution.
The UOI, advanced a preliminary objection to the reference wherein the matter in the case of Anjuman-e-Rahmaniya was referred to a Bench of 7 Judges by a Bench of 2, which is illegal as according to the judgement in the Board of Dawoodi Bohra Community v. State of Maharashtra, it was stated that only a Bench of 5 Judges could have referred the matter to a Bench of 7 Judges. Also, the decisions of a larger Bench is binding on the Benches of same or lesser size. For this, the latter can invite the attention of the Chief Justice to the matter in case of doubt on the decision of the former. Later, it was observed that this was done with a request by the 2 Judge Bench to place the reference before the CJI. Hence, this was valid.
Lastly, Articles 25 to 28 under the ‘Right to Freedom of Religion’ were thoroughly inspected with respect to the case.
CONTENTION
Dr Rajeev Dhawan, counsel on behalf of petitioners stated that the Azeez Basha was not a good law as it had failed to recognise that the words ‘establish and administer’ were the consequential rights of the minority and not the preconditions to define minority. It wrongly assumed that universities lose their minority status when recognised by a statute and held that the origins and administration of AMU were rooted in legislation and not with the Muslim community. Also, the term ‘establish’ was interpreted in a restrictive way by this law. He further stated that the formation of AMU was a movement by Mohammeden College and was aimed at continuation of minority rights of Muslim students. Entry 63 of the Union List of the 7th Schedule of the Constitution states that the Union can make laws regarding AMU and BHU, but it doesn’t determine who establishes or administers the universities.
The AMU Act and its evolution was broken down into 4 phases by the petitioners, namely-early Muslim administration, 1951 Amendment that removed compulsory religious education, 1965 Amendment that diluted minority status and the attempts to restore this status in 1972 and 1981 which stated that AMU was established by the Muslims of India.
Mr Kapil Sibal, a counsel, argued that a minority institution can maintain their minority status even if their administration includes non-minorities. AMU was established with the objective of providing quality education to Muslims and so the denial of reservation to it, would result in increasing socio-economic disparities within minorities.
The other side, i.e., the respondents stated that Azeez Basha is a good law and AMU isn’t a minority institution. Mr Tushar Mehta submitted that under the AMU Act, AMU voluntarily surrendered its minority institution status to the imperial government, which means that the leaders of the institution chose cooperation with the British Government over retaining its Muslim character. He further stated that the indicia to decide minority status should include that the university was necessarily established and administered by the minority community for the minority itself. Also, the consequence of recognising AMU as a minority educational institution is that the seats can not be reserved for other categories of Scheduled Castes/ Scheduled Tribes, etc.
RATIONALE
This case was analysed on the basis of the preliminary objection by UOI, as mentioned above; scope of Article 30, its purpose and the special protection guaranteed by Article 30(1); the indicia for a minority educational institution and; the applicability of Article 30 to a ‘University’, established before the commencement of the Constitution.
It was stated that the rights of minorities should be in the background of other cultural and religious legal rights. The Court stressed the importance of ensuring that members of minority groups should enjoy complete equality without being discriminated against, with other nationals of the state and that the minority groups should have appropriate means for preserving their racial peculiarities, traditions and national characteristics. Article 30 guarantees ‘special protection’ to minorities which gives them the special right to guarantee limited State regulation in the administration of the institution. The State must grant the minority institution sufficient autonomy to enable it to protect the essentials of its minority character.
Also, Article 30(1) applies to the educational institutions established before the commencement of the Constitution and there is no difference between universities and colleges established before the commencement of the Constitution and, the minority character of the institution is not ipso facto surrendered upon the incorporation of the University.
So, the court adopted a purposive interpretation of Article 30 focusing on autonomy and minority specific character of the institution, wherein, the court validated the 1981 Amendment to AMU Act and its reservation policy favouring Muslim candidates.
DEFECTS OF LAW
The case highlighted the ambiguity in the phrase “establish and administer” under Article 30(1) of the constitution. The conjunctive interpretation of the phrase through the cases were also criticised as over-restrictive. This created confusion regarding minority rights and led to decades of conflicting judicial interpretations. Also, the reliance on legislative amendments to define minority status, undermines judicial independence.
Apart from this, the term ‘minority’ wasn’t precisely defined, and, the tension between Article 15 and Article 30, is still unsolved and can lead to future litigations.
INFERENCE
Article 30(1) can be classified as both an anti-discrimination provision and a special rights provision. The rights guaranteed by this Article apply to the universities established before the commencement of the constitution. Also, the religious or linguistic minorities must prove that they established the educational institution for the community to be a minority educational institution for the purposes of Article 30(1).
It was stated that incorporation of the University would not ipso facto lead to surrendering of the minority character of the institution. The circumstances surrounding the conversion of a teaching college to a teaching university must be viewed to identify if the minority character of the institution was surrendered upon the conversion.
Besides, the factor to be used to determine if a minority established the educational institution or not are that the idea of establishing the institution must be stemmed from a minority group or individual; the institution must be established for the benefit of the minority community; and that the steps for the implementation of the idea must be taken by the minority itself.
Hence, the reference was disposed of by overruling the judgement of the Basha case that an educational institution isn’t established by a minority if it derives its legal character through a statute and, so, in November 2024, the Supreme Court under the CJI D Y Chandrachud, delivered its judgement that AMU is a minority institution under Article 30.
Lastly, it can be suggested that there is a need for the codification of the minority rights; judicial consistency about the cases related to minority status; and, balancing of autonomy and accountability, in order to establish clearer laws to uphold minority rights while preserving constitutional equality and justice.
Name: Bhumika Jain
College: Bharti Vidyapeeth New Law College, Pune