By Dr Swati Jindal Garg
FRANKLIN D Roosevelt has rightly said: “No democracy can long survive which does not accept as fundamental to its very existence the recognition of the rights of minorities.” The Supreme Court’s seven-judge Constitution bench, comprising then Chief Justice of India (CJI) DY Chandrachud and Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma, in a majority of 4:3, overruled the five-judge bench verdict in S Azeez Basha vs Union of India, 1967 SCC OnLine SC 321, under which it had been held that an institution incorporated by a statute cannot claim to be a minority institution; hence Aligarh Muslim University (AMU) as created by an act of Parliament is not a minority institution so as to be covered under Article 30 of the Constitution.
In a crux, the majority of the judges held 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. Having decided this critical question, the issue was whether AMU is a minority institution or not, which has now been left to be decided by a regular bench.
While the majority opinion in the case was authored by then CJI, and joined by Justices Sanjiv Khanna, JB Pardiwala and Manoj Misra, in contrast, Justices Surya Kant, Dipankar Datta, and Satish Chandra Sharma each wrote separate dissenting opinions, outlining their differing perspectives on the matter.
There were four major issues framed by the apex court in the case before it:
- Whether a University, established and governed by a statute (Aligarh Muslim University Act , 1920), can claim minority status.
- The correctness of the judgment in S Azeez Basha vs Union Of India which rejected the minority status of the University.
- The nature and correctness of the 1981 amendment to the AMU Act, which accorded minority status to the University after the decision in Azeez Basha.
- Whether reliance placed on the Azeez Basha decision by the Allahabad High Court in Aligarh Muslim University vs Malay Shukla, 2006 SCC OnLine All 2207 was correct in concluding that AMU being a non-minority institution could not reserve 50 percent seats for Muslim candidates in medical post-graduate courses.
Deciding upon these issues, the majority opinion held that an institution will not lose its minority status merely because it was established by a statute which was the AMU Act in this case. The apex court also emphasized that the critical inquiry in such cases should focus on identifying who has established the institution and who was the initial “brain” behind its creation. If this inquiry points to the minority community, the institution can claim minority status under Article 30 of the Constitution, irrespective of who runs the institution. For this factual determination, the Constitution bench directed the matter to be referred to a regular bench for further examination.
Article 30 of Constitution that talks about the rights of the minorities to establish and administer educational institutions states that:
- All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
- In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
- The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
Article 30 of the Constitution hence guarantees the right of minorities, whether based on religion or language, to establish and administer educational institutions of their choice. This includes the right to determine the type of institution, its affiliation, and the right to appoint staff. The State cannot discriminate against any educational institution on the grounds of its minority status while granting aid. Minority institutions should receive the same treatment and protection as institutions established by the majority. However, this right of the minorities is not unfettered as while they have the right to establish and administer educational institutions, they must still adhere to reasonable regulations that the State may impose in the interest of maintaining standards of education, ensuring welfare, or preventing maladministration.
The purpose of Article 30 is to protect the educational rights of religious and linguistic minorities, allowing them to preserve and promote their distinct culture, language, and religious identity through educational institutions of their choice. It recognizes the importance of minority communities in the nation’s diversity and provides them with the freedom to establish and manage educational institutions that cater to their specific needs and aspirations. Article 31(A) was added as part of the 42nd Constitutional amendment which states that in case of any property acquired by the government of an educational institution, it is the duty of the government to give appropriate compensation.
The majority in the latest case has held that Article 30 cannot be interpreted as applying only prospectively to institutions established after the commencement of the Constitution. The terms “incorporation” and “establishment”, the majority further held, must not be used interchangeably. Merely because the AMU was incorporated through imperial legislation does not negate the fact that it was “established” by a minority community. The argument that the University was established by Parliament, simply because the statute formally states it, would undermine the objectives of Article 30. It will be a strict reading of the letter and not the spirit of law!
The Court further emphasized that the mere formality of compliance must give way to reality and that the inquiry should focus on tracing the true genesis of the institution and identifying who was the “brain” behind its establishment. If the ideation and funding for the land can be traced to the minority community, the institution can claim minority status. Importantly, it is not required that the institution be established exclusively for the benefit of the minority community, nor is it necessary to prove that the administration must vest with the minority. Minority institutions may wish to emphasise secular education, and for that, minority members are not needed in administration.
It cannot be denied that almost always, the creative, dedicated minority has made the world better. Minorities possess equal rights, which law must protect, and to violate the same would be oppression. The Court, keeping in mind the rights of these minorities, further held that Article 30 of the Constitution, which grants minorities the fundamental right to establish and administer educational institutions, applies not only to institutions established after the Constitution came into force, but also to those established by minorities before its commencement. Thus, the Court held that the minority status of educational institutions is not affected by a statute, date of establishment, or non-minority administration.
India, a country of immense diversity and tolerance, has over the years proven to be a haven for people with minority status, keeping in mind that individual rights are not subject to a public vote and a majority has no right to vote away the rights of a minority. The latest judgment passed by the apex court of the country reflects the same thinking.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi