Underlining that that the determination of the “minority character” of an institution is not a rigid concept, the Supreme Court, in a narrow 4-3 majority verdict, overruled its 1967 ruling which had held that Aligarh Muslim University (AMU) was not a minority institution. “The view taken in Azeez Basha. that an educational institution is not established by a minority if it derives its legal character through a statute, is overruled,” the majority verdict, authored by Chief Justice of India D Y Chandrachud stated. Along with the CJI, Justices Sanjiv Khanna, J B Pardiwala and Manoj Misra formed the majority while Justices Dipankar Dutta, Surya Kant and Satish Chandra Sharma wrote separate dissenting opinions. Friday was CJI’s last day in office. The SC laid down the law with a “holistic and realistic” two-fold test to determine if an educational institution has a “minority character”. However, it left the factual determination of AMU’s status to a regular bench. The broad test which opposes a “formalistic” reading of the law essentially clears the decks for AMU to secure its minority tag. The Court specifically negated the government’s argument that the 1920 legislation establishing AMU did not seek to establish a minority institution at all — rather it established “an institution of national non-minority character”. “We do not agree with this submission. It cannot be argued that a university was established by Parliament merely because the long title and preamble of the statute incorporating the university states that it is an Act to establish and incorporate. If such a formalistic interpretation is adopted, fundamental rights would be made subservient to legislative language,” the majority opinion said. Article 30(1) grants “all minorities, whether based on religion or language”, the right to “establish and administer” educational institutions of their choice. In the first limb of the test, the Court’s criteria is a determination of who established the institution, the purpose behind its establishment and whether the steps for the implementation of the idea must have been taken by the minority community. The majority ruling states that such determination must come from identifying the “brain behind the establishment of the educational institution” from letters, correspondence with other members of the community and not just from a formalistic reading of the legislation. In the second part of the test, the Court said that the administrative-set up of the educational institution “must elucidate and affirm the minority character of the educational institution” and “that it was established to protect and promote the interests of the minority community”. In the Azeez Basha case, the SC constitution bench, while interpreting Article 30(1), had held that to be a minority institution, it should have been both established and administered by the minority. Friday’s verdict, however, said the word “established” in Article 30(1) must be given a broad meaning and emphasised that establishment is more crucial than “administration.” The Court stated that since it has held that an education institution is a minority educational institution if it is established by religious or linguistic minority, “it is not necessary to prove that administration vests with a minority to prove that it is a minority education institution” because the very purpose of Article 30(1) is to grant special rights on administration as a “consequence” of establishment. “To do otherwise, would amount to converting the consequence to a precondition,” it added. In the Azeez Basha case, the SC Constitution bench had held that AMU is not a minority institution and to enjoy the status, it should have been both established and administered by the minority. Attorney General of India R Venkataramani had also argued that since AMU was established under a pre-Independence era statute, before the commencement of the Constitution, it cannot derive the benefit of Article 30(1). “In the absence of a legal competence to establish a given class of institutions (that is, universities), the question of availing of all attendant rights and claims in relation to Article 30 cannot arise,” the AG had said. The majority opinion overruled this argument, too, stating that “a different right bearing group cannot be identified for institutions established before the adoption of the Constitution.” “Article 30 will stand diluted and weakened if it is to only apply prospectively to institutions established after the commencement of the Constitution. The protection and guarantee, if made applicable to only institutions established after the commencement of the Constitution, would debase and defile the object and purpose of the provision. The adoption of the Constitution reflects a break from the system of sovereign and potentate government under the colonial regime and the dawn of governance based on the rule of law. It secures to the minority educational institutions, rights under the Constitution from the date of its commencement,” the majority opinion stated. Solicitor General Tushar Mehta had argued that the Muslim minority had “surrendered its rights” as a denominational institution before the Constitution was adopted by approaching the imperial legislature to recognise the degrees. He had cited examples of universities such as Shantiniketan and the predecessor of IIT Roorkee which did not seek recognition of the degrees granted by their institutions at that time. To this, the SC said that compliance with a “legal requirement” cannot be equated with religious minority having to “forgo the guarantees and protection under clause (1) of Article 30 of the Constitution.” The enactment was necessary to award degrees recognized by the British government, allowing graduates to gain degree recognition and secure employment. “The enactment of the statute is a ministerial and a legislative act, which confers juristic personality as well as legal rights in terms of the law in force,” the Court said. In 2005, the AMU had sought to reserve 50% seats in postgraduate medical courses for Muslim candidates since it was a minority institution. This was challenged on the grounds that it was at odds with the Azeez Basha ruling and the Allahabad HC granted a stay on implementing the quota. In 2006, the Congress-led union government and AMU had challenged the High Court decision before SC. However, in 2016, the NDA government withdrew the appeal stating that it does not acknowledge the minority status of the University.
