The Supreme Court on Friday overruled its 1967 verdict in S. Azeez Basha vs. Union of India, which held that the Aligarh Muslim University could not claim minority status since it was established by a statute.
The seven-judge Constitution Bench, by a 4:3 majority, ruled that an institution would not lose its minority status merely because it was created by a statute.
The Constitution Bench of Chief Justice of India DY Chandrachud, Justice Sanjiv Khanna, Justice Surya Kant, Justice JB Pardiwala, Justice Dipankar Datta, Justice Manoj Misra and Justice SC Sharma passed the order on a reference arising out of the 2006 verdict of the Allahabad High Court which held that AMU was not a minority institution.
The Apex Court heard the matter for eight days before reserving it on February 1.
On his last working day, CJI Chandrachud pronounced the verdict on behalf of himself, Justice Khanna, Justice Pardiwala and Justice Misra. Justice Kant, Justice Datta and Justice Sharma gave dissenting opinions.
The Bench observed that the Court must examine who established the University and who was the brain behind it. If the inquiry pointed towards a minority community, then the institution could claim minority status as per Article 30, it said.
The Apex Court then referred the matter to a regular Bench for the determination of the facts, as well as to decide on whether AMU was a minority institution, based on the views expressed today by the majority.
In Azeez Basha, the top court of the country had ruled that AMU could not claim minority status as it was established by a statute.
The Constitution Bench deliberated on several issues regarding the indicia for treating an educational institution as a minority educational institution, such as the correctness of the 1967 judgment of the Supreme Court in S Azeez Basha vs Union of India (five-judge Bench), which rejected the minority status of AMU; and the nature & correctness of the 1981 amendment to the AMU Act, which accorded minority status to the University after the decision in Basha.
The Apex Court also deliberated on whether reliance placed on the Basha decision by Allahabad High Court in AMU vs Malay Shukla in 2006 was correct in concluding that AMU being a non-minority institution could not reserve 50 percent seats for Muslim candidates in Medical PG Courses; whether an institution could be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority, or being administered by a person(s) belonging to a religious or linguistic minority?
It also considered whether a University, established and governed by a statute (AMU Act 1920), could claim minority status.
The majority held that Article 30 would stand diluted if it were to apply prospectively only to the institutions established after the commencement of the Constitution.
The verdict authored by CJI Chandrachud held that words ‘incorporation’ and ‘establishment’ could not be used interchangeably. It said merely because the AMU was incorporated by an imperial legislation would not mean that it was not ‘established’ by a minority.
The Constitution Bench held that it could not be argued that the University was established by the Parliament merely because the statute said it was passed to establish the University. Such a formalistic reading would defeat the objectives of Article 30. Formalism must give way to actuality. To determine who established the institution, the Court must trace the genesis of the institution and identify who was the “brain” behind it. The proof of ideation must point towards a member of the minority community. It has to be seen who got funds for the land and if the minority community helped, it noted.
The Apex Court said it was not necessary that the institution was established only for the benefit of the minority community.
It was also not necessary to prove that the administration must vest with the minority. Minority institutions may wish to emphasise secular education and for that, minority members were not needed in administration.
The question of deciding the minority status of AMU must be done on the basis of the tests laid down in the present case, said the Constitution bench, directing that papers should be placed before the CJI for constituting a Bench to decide the issue and correctness of the 2006 Allahabad HC judgement.
Justice Kant took objection to the reference order passed in Anjuman in 1981 directly referring the matter to a seven-judge bench. However, he said the 2019 reference made by a Bench led by the then CJI was maintainable.
He said a minority could establish an institute under Article 30 but needed to be recognised by a statute and also recognised by UGC. To this extent, Azeez Basha needed to be modified. There was no conflict between Azeez Basha and the 11-judge bench decision in TMA Pai, he added.
Justice Kant said educational institutions under Article 30(1) also included universities. In order to get Article 30 protection, minority institutions must satisfy the conjunctive tests of “established” and “administered” by a minority, he added.
Justice Kant further said that the legislative intent behind a statute incorporating a university or institution would be necessary to decide its minority status. Whether AMU was a minority institution, was a mixed question of law and fact, which has to be decided by a regular Bench, he added.
Justice Datta made a categorical declaration that AMU was not a minority institution. He further held that the references, both in 1981 and 2019, were unnecessary.
Justice Sharma ruled that a minority community should be controlling the administration of the institution without any help from outside forces. The minority institution must also give the option of secular education.
He said words such as ‘established’ and ‘administered’ have to be used conjunctively. It could not be conflated with situations such as genesis or founding moments. To claim establishment, they have to bring it to existence, they should play a full role to the exclusion of others. The authority to hire and fire staff should be with the minority and functional and authoritative control should be with the minority, he added.
Justice Sharma said the crux of Article 30 was to prevent any preferential treatment for minorities and thus give equal treatment to all. To assume that minorities in the country required a safe haven to pursue education was incorrect. Minorities were very much a part of the mainstream now partaking in equal opportunities, he added.