‘Minority character of an institution not a rigid concept’: SC overrules 1967 verdict that removed AMU’s minority tag

It further held that the court cannot rely on the language of the Act to determine who established the university — such as the AMU Act which states that the university was incorporated and established under the Act itself. This would make Article 30(1) — a fundamental right — subservient to a statutory enactment, the majority held.

Article 30(1) says that “all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.” 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.

Without minority status, AMU will have to begin implementing reservation policies for both teachers and students in a similar manner as other public universities. If this status is granted, the university can provide up to 50% reservation for Muslim students. (Express Photo by Abhinav Saha)

The majority verdict stated: “The word established as used in article 30(1) cannot and should not be understood in a narrow and legalistic sense. The words used in clause 1 of article 30 have to be interpreted in view of the object and purpose of the article and the guarantee and protection it confers.”

The apex court added: “It cannot be argued that the 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 will be made subservient to legislative language. The courts must identify the circumstances surrounding the incorporation of the university including through a reading of the statute to identify who established the university. Formalism must give way to actuality and to what is real. The right under article 30(1) is guaranteed to minorities as defined upon the commencement of the Constitution.”

The bench further stated that “a different right bearing group cannot be identified for institutions established before the adoption of the constitution”. “To determine who established the institution, the courts must consider the genesis of the educational institution. For this analysis, the courts must trace the origin of the idea for the establishment of the institution. The court must identify who was the brain behind the establishment of the educational institution. Letters, correspondence with other members of the community, all the government or state officials, and resolutions issued could be valid proof for establishing ideation or the impetus to found and establish,” the verdict read.

The judgement said that “the proof of ideation must point towards one member of the minority or the group from the community.”

It further added that “the second indicia is the purpose for which the educational institution was established”. “It is not necessary that the educational institution must have been established only for the benefit of a religious or linguistic minority community. It must predominantly be for its benefit. It is not necessary that education must be provided in the language spoken by the minority or in the religion of the minority.”

The Bench said that “the indicia could be proved by a reference to private communications or speeches about the necessity of establishing an educational institution for the community and the recognition of the educational difficulties faced by that community”.

It added that “the third test is tracing the steps taken towards the implementation of the idea”. “Information on who contributed the funds for its creation, who was responsible for obtaining the land? And whether the land was donated by a member of the minority community or purchased from funds raised by the minority community for this purpose or donated by a person from some other community, specifically for the establishment of a minority educational institution are elements that must be considered. Similar questions might be asked of its assets,” the judgment read.

The court further informed that “the next question is whether the administrative structure of the educational institution is an indicia for the establishment of a minority educational institution”.

The Bench also pointed out that it has “already held… that an education institution is a minority educational institution if it is established by religious or linguistic minority” and “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.

The court said that “the right to administer is guaranteed to minority educational institutions to enable them to possess sufficient autonomy to model the educational institution according to the educational values that the community wishes to emphasise. It is not necessary that the purpose can only be implemented if persons belonging to the community helm the administrative affairs. This is so particularly because a minority institution may wish to emphasise secular education.”

The majority said that “the test to be adopted by the court is whether the administrative setup of the educational institution affirms the minority character of the institution. If the administrative structure of the educational institution does not reflect its minority character or when it does not elucidate that the educational institution was established to protect and promote the interest of the minority, it may however be reasonably inferred that the purpose was not to establish an educational institution for the benefit of the minority community.”

The bench said that “an institution to be a minority institution must satisfy the criteria of being administered as a minority institution on the date of the commencement of the constitution and being a minority institution on the date of formation. Even if an educational institution was established by the minority for the purpose of the community, we must assess the impact of any subsequent events that alter the character of the institution before the commencement of the constitution.”

It said that “the court may on a holistic reading of the statutory provisions relating to the administrative set up of the educational institution deduce that the minority character or the purpose of establishment was relinquished upon incorporation” and added that “the question is whether the regulatory measures wrests the administrative control from the founders of the institution” which “is a question of fact which must be determined on the facts of each case.”

“The court must undertake that determination upon a comprehensive analysis of the administrative framework which includes a host of factors such as the representation of the interests of the community in the administrative setup. The above indicia must be proved through the submission of oral material. Reliance must be placed on primary sources such as office documents, letters and resolutions or memorandums issued to implement the resolution. Secondary sources must be only used to corroborate the primary sources”, it said adding “the onus to prove that the educational institution was established by a minority is on the claimants.”

“The view taken in Azeez Basha that an educational institution is not established by minority if it derives its legal character through a statute is overruled. The question of whether AMU is a minority educational institution must be decided based on the principles laid down in this judgment,” the court ordered and directed that the matter be placed before the regular bench for deciding whether AMU is a minority educational institution.