Minority status of AMU won't cease due to statute, date of establishment or non-minority admin: Supreme Court

A seven-judge Constitution Bench of Supreme Court on Friday held by a 4:3 majority that the minority status of an educational institute will not cease merely because the parliament enacts a law to regulate/ govern such institute or that the institute is being administered by non-minority members [Aligarh Muslim University Through its Registrar Faizan Mustafa v Naresh Agarwal and ors]

A Bench of Chief Justice of India (CJI) DY Chandrachud with Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma overruled the 1968 judgment in S Azeez Basha vs Union of India in which it was held that minority character of Aligarh Muslim University (AMU) had ceased because of parliamentary a law regulating the university.

"The view in Azeez Basha that minority character stops when statute comes into force is overruled. Whether AMU is minority or not will be decided as per this (today's) judgment," the Court held.

The Court said that in order to determine whether an institution is a minority institution, what needs to be looked at is who established the institution.

"The court has to consider the genesis of the institute and court must see who was the brain behind establishment of the institution. It has to be seen who got funds for the land and if minority community helped," the Court said.

This administration by non-minority members will not take away the minority character of an institution.

"We have held that to be a minority institution, it only had to be established by the minority and not necessarily be administered by the minority members. Minority institutions may wish to emphasise secular education and for that minority members are not needed in administration," the Bench ruled.

Thus, an institution will not cease to be a minority institute merely because government regulates it by bringing in a law.

The Court held that the government can regulate minority educational institutions as long as it does not infringe the minority character of such institute.

"An educational institution established by any citizen can be regulated under Article 19(6). This court has maintained that right under Article 30 is not absolute. Regulation of minority educational institution is permitted under Article 19(6) provided it does not infringe the minority character of the institute," the Court stated.

Pertinently, the Court further held that Article 30 of the Constitution which confers fundamental right on minorities to establish and administer educational institutions, applies even to institutions established by minorities before the Constitution came into force.

"Article 30 shall stand diluted if it applies to only institutes those which have been established after the Constitution came into force. Thus, educational institutions established by minority which were established before the constitution came into force, will also be governed by Article 30," the Court made it clear.

Justice Surya Kant, Justice Dipankar Datta and Justice Satish Chandra Sharma dissented from the majority.

Majority ruling in a nutshell

Minority status of an educational institution will not be affected by:

- Enactment of statute and government regulation;

- Date of establishment;

- Administration by non-minority members.

Dissenting judgment

Dissenting judges Surya Kant, Datta and Sharma took strong exception to the manner in which the matter was referred to a seven-judge Bench by a two-judge Bench in 1981 which led to the present case.

"In my opinion reference was not in terms with established norms of judicial propriety. This will place CJI in an untenable position where he will be bound by technical issues. We cannot bring ourselves to terms how a two judge bench could dictate the CJI on how a bench has to be composed," Justice Kant said.

A 2-judge bench has no authority to direct a review of a 5 judge bench judgment, the Court stated.

Justice Datta also took objection to the same.

"The order of reference in 2019 had it's root in 1981 Anjuman order. A two-judge bench referred it to seven judges (in 1981). Majority judgment allows it. But I have held a two- judge bench cannot do that. If we accept this, then tomorrow a two-judge can direct 'let 15 judges redecide basic structure doctrine. I have held the reference order to be totally non est," Justice Datta said.

Justice Sharma too held that two judges could not have referred the matter to seven judges directly.

On merits, Justice Kant held that an institution can claim minority status only if it is established and administered by minority.

"Educational institutions include universities as well. For minorities tag, it must satisfy both establish and administer aspect of article 30. Question whether AMU satisfies this will be decided by a regular bench," Justice Kant said.

Justice Datta unequivocally held held that AMU is not a minority institution and cannot come under Article 30.

Justice Sharma went one step further and held that;

"Crux of Article 30 is to prevent any preferential treatment for majorities and thus give equal treatment for all. To assume that minorities of the country require a safe haven to pursue education is incorrect and minorities are a part of the mainstream now partaking in equal opportunities,"

He held that an institution in order to claim minority status must not only be established by minority but also administered by such minority to the exclusion of others.

"I have held established and administer words have to be used conjunctively. It cannot be conflated with situation such as genesis or founding moments. To claim establishment, they have to bring it to existence, they should play full role to the exclusion of others, then it has to be seen of negotiations was needed by others and all of this must be held by minority members and administration issues such as teachers etc must be with minority and choice of education which may be secular must lie with minority and the goal should be betterment of minority and secular education also if given should be for the development of the minority community. The administration also must lie with Minority. The authority to hire and fire staff should be with minority and functional and authoritative control should be with minority," Justice Sharma ruled.

The verdict came in a batch of petitions concerning whether Aligarh Muslim University (AMU) is entitled to minority status under Article 30 of the Constitution of India.

The Supreme Court had in February reserved its judgment in the matter, after a eight-day hearing.

Background

The questions of law involved in the matter concern the parameters for granting an educational institution minority status under Article 30 of the Constitution, and whether a centrally-funded university established by parliamentary statute can be designated a minority institution.

The matter was referred to a seven-judge in February 2019 by a bench led by then CJI Ranjan Gogoi.

AMU was held to be a Central University by the Supreme Court in the 1968 case of S Azeez Basha vs Union of India. In the said case, the Court held that a minority status under Articles 29 and 30 of the Indian Constitution cannot be conferred on a Central University since it was set up through a parliamentary statute.

Subsequently, the issue which arose in S Azeez Basha was referred to a seven-judge Bench by an order of the Supreme Court dated November 26, 1981 in the case of Anjuman­e­Rahmania & Ors. vs. Distt. Inspector of School & Ors.

This was done by a two-judge Bench.

The above writ petition of Anjuman eventually came to be heard along with other connected cases by an eleven-judge Bench in the landmark case of TMA Pai Foundation and others vs. State of Karnataka [(2002) 8 SCC 48].

The question which was formulated for an answer in TMA Pai Foundation case was the same question which had been formulated in Anjuman. It read as follows:

“What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it   was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority?”

However, the Bench in TMA Pai did not answer the question stating that it will be dealt with by the Regular Bench. The Regular Bench also did not answer the question formulated in TMA Pai.

Meanwhile, the minority status of the institute was later reinstated by bringing in an amendment to the AMU Act of 1920. The amendment was brought about in the year 1981.

This was challenged before the Allahabad High Court which in 2006 set aside the move as being unconstitutional, leading to the instant appeals by AMU before the Supreme Court.

When the appeals came up for hearing before the top court, a three-judge Bench instead of placing the matter before a five-judge Bench proceeded to refer it to a seven-judge Bench, considering the fact that question was already heard by a Bench of seven judges earlier.

Notably, in 2016, the Central government withdrew its appeal in the matter.

Attorney General R Venkataramani, and Solicitor General Tushar Mehta with advocate Kanu Agrawal represented the Central government.

Senior Advocate Rajeev Dhavan appeared for AMU.

Senior Counsel Kapil Sibal appeared for the AMU Old Boys' (Alumni) Association.

Senior Advocate Shadan Farasat and advocates Hrishika jain, Aman Naqvi Natasha Maheshwari and Gautam Bhatia appeared for a petitioner, one Haji Muqeet Ali Qureshi.

Senior Advocates Salman Khurshid, MR Shamshad and advocate Anas Tanwir also appeared for some of the petitioners.

Senior Advocate Rakesh Dwivedi appeared for a private respondent (one Vivek Kasana) opposing the minority status of AMU.

Senior Advocates Neeraj Kishan Kaul, Yatinder Singh, Guru Krishnakumar, Vinay Navare and Archana Pathak Dave appeared for other respondents.

Read our detailed coverage of the hearings:

Day 1

Day 2

Day 3

Day 4

Day 5

Day 6

Day 7

Day 8

[Read Judgment]