Aligarh Muslim University:

Aligarh Muslim University remained a hot topic for a very long time. There were very distinguishing views of law literates in this topic. However, the Hon’ble  Supreme Court has settled the dispute with a landmark Judgement. It is a judgement we should look forward to better describe Article 30:

“30. Right of minorities to establish and administer educational institutions.

(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.

(1A) 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

would not restrict or abrogate the rightguaranteed under that clause.

(2) 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,

Background and Brief Facts

In 1977, the Muhammadan Anglo-Oriental College was established in Aligarh. The college was a teaching institution affiliated to the Calcutta University at first and subsequently to the Allahabad University. The imperial legislature passed the Aligarh Muslim University Act 1920. The enactment, as the preamble indicates, “established and incorporated” Aligarh MuslimUniversity. The AMU Act was amended by the Aligarh Muslim University (Amendment) Act 1951 and Aligarh Muslim University (Amendment) Act 1965. The amendments related to the religious instructions of Muslim students and the administrative set-up of the university. Proceedings under Article 32 of theConstitution were instituted before this Court for challenging the constitutional validity of the 1951Amendment Act and the 1965 Amendment Act. A Constitution Bench in the decision in S Azeez Basha v.Union of India upheld the constitutional validity of the Amendments. The petitioners made a three-fold argument: (a) AMU was established by Muslims, who are a religious minority for the purposes of Article 30(1); (b) Article 30(1) guarantees Muslims the right to administer the University established by them; and (c) the 1951 and 1965 Amendments are violative of Article 30(1) to the extent that it infringed the right of the Muslim community to administer the institution. The amendments were also impugned on the ground that they violated Articles 14, 19, 25, 26, 29 and 31 of the Constitution.

The Union of India opposed the petitions, arguing that the Muslim minority did not have the right to administer AMU since they had not established the institution. It was submitted that AMU was established by Parliament. That being the case, it was contended that the amendments were not violative of Article 30(1).

A Constitution Bench dismissed the writ petitions in Azeez Basha (supra). The challenge on the ground of violation of Article 30(1) was rejected on the following grounds:

a. The phrase “establish and administer” in Article 30(1) must be read conjunctively. Religious minorities have the right to administer those educational institutions which they established. Religious minorities do not have the right to administer educational institutions which were not established by them, even if they were administering them for some reason before the commencement of the Constitution;

b. The word “establish” in Article 30(1) means “to bring into existence”;

c. AMU was not established by the Muslim minority for the following reasons:

i. AMU was brought into existence by the AMU Act, which was enacted by Parliament in 1920. Section 6 of the AMU Act provides that the degrees conferred to persons by the University would be recognised by the government. This provision indicates that AMU was established by the Government of India because the Muslim minority could not have insisted that the degrees conferred by a university established by it ought to be recognized by the Government. The AMU Act may have been passed as a result of the efforts of the Muslim community but that does not mean that AMU was established by them;

ii. The conversion of the College to the University was not by the Muslim minority but by virtue of the 1920 Act; and

iii. Section 4 of the AMU Act by which the MAO College and the Muslim University Association were dissolved, and the properties, rights and liabilities in the societies were vested in AMU shows that the previous bodies legally ceased to exist;

d. Since the Muslim community did not establish AMU, it cannot claim a right to administer it under Article 30(1). Thus, any amendment to the AMU Act would not be ultra vires Article 30 of the Constitution;

e. The argument that the administration of the University vested in the Muslim community though it was not established by them was rejected. The administration of AMU did not vest in the Muslim minority under the AMU Act for the following reasons:

i. Although all the members of the Court (which was the supreme governing body in terms of Section 23 of the AMU Act) were required to be Muslims, the electorate (which elected the members

of the Court) did not comprise exclusively of Muslims;

ii. Other authorities of AMU such as the Executive Council and the Academic Council were tasked with the administration of the University and were given significant powers. The members of these bodies were not required to be Muslims;

iii. The Governor General (who was the Lord Rector) was also entrusted with certain “overriding” powers concerning the administration of the University. The Governor General was not required to be a Muslim. In terms of Section 28(3), the Governor General had overriding powers to amend or repeal the Statutes. The Governor General possessed similar powers with respect to amending or repealing Ordinances. In terms of Section 40, the Governor General had the power to remove any difficulty in the establishment of the University; and

iv. The Visiting Board which consisted of the Governor of the United Provinces, the members of the Executive Council and Ministers were not necessarily required to be Muslims;

f. The term “establish and maintain” in Article 26 must be read conjunctively, like the phrase “establish and administer” in Article 30. Assuming that educational institutions fall within the ambit of Article 26, the Muslim community does not have the right to maintain AMU because it did not establish it; and

g. The impugned amendments do not violate Articles 14, 19, 25, 29 and 31.

In 1981, a two-Judge Bench of this Court in Anjuman-e-Rahmaniya v. District Inspector of Schools was faced with a question of whether V.M.H.S Rehmania Inter College is a minority educational institution. By an order dated 26 November 1981, the Bench questioned the correctness of Azeez Basha (supra) and referred the matter to a Bench of seven Judges, in the following terms:

“After hearing counsel for the Parties, we are clearly of the opinion that this case involves two substantial questions regarding the interpretation of Article 30(1) of the Constitution of India. The present institution was founded in the year 1938 and registered under the Societies Registration Act in the year 1940. The documents relating to the time when the institution was founded clearly shows that while the institution was established mainly by the Muslim community but there were members from the non-Muslim community also who participated in the establishment process. The point that arises is as to whether Art. 30(1) of the Constitution envisages an institution which is established by minorities alone without the participation for the factum of establishment from any other community. On this point, there is no clear decision of this court. There are some observations in S. Azeez Basha & ors. Vs. Union of India 1968(1) SCR 333, but these observations can be explained away. Another point that arises is whether soon after the establishment of the institution if it is registered as a Society under the Society Registration Act, its status as a minority institution changes in view of the broad principles laid down in S. Azeez Basha’s case. Even as it is several jurists including Mr. Seervai have expressed about the correctness of the decision of this court in S. Azeez Basha’s case. Since the point has arisen in this case we think that this is a proper occasion when a larger bench can consider the entire aspect fully. We, 8 W.P.(C) No. 54-57 of 1981 therefore, direct that this case may be placed before Hon. The Chief Justice for being heard by a bench of at least 7 judges so that S. Azeez Basha’s case may also be considered and the points that arise in this case directly as to the essential conditions or ingredients of the minority institution may also be decided once for all. A large number of jurists including Mr. Seervai, learned counsel for the petitioners Mr. Garg and learned counsel for respondents and interveners Mr. Dikshit and Kaskar have stated that this case requires reconsideration. In view of the urgency it is necessary that the matter should be decided as early as possible we give liberty to the counsel for parties to mention the matter before Chief Justice.”

The judgement in appeal by a Division Bench of the Allahabad High Court was reported as Aligarh Muslim University v. Malay Shukla. The Division Bench affirmed the judgment of the Single Judge, with some modifications. AN Ray, C.J. speaking for the Division Bench held that:

a. When the minority status is not assumed or admitted, the factor of administration and control by non-minority groups becomes important. The indicia for the determination of whether an educational institution is a minority educational institution is (i) who established it; (ii) who is responsible for administration; and (iii) the purpose of the establishment;

b. By amending Section 2(l), Parliament attempted to overrule the decision in Azeez Basha (supra). This amendment does not change the basis of that decision because the incorporation of the University was not the sole factor which influenced the decision;

c. Section 5(2)(c) is discriminatory. Further, it does not change the basis of the decision in Azeez Basha (supra);

d. The removal of the words “establish and” from the long title and preamble of the AMU Act is impermissible because Azeez Basha (supra) held that incorporation and establishment are intimately connected. Permitting the omission of the word “establish” may give rise to doubts as to whether incorporation alone is sufficient for the surrender of the minority character of the institution;

e. AMU is not merely a university but a field of legislative power in Entry 63 of List I of the Seventh Schedule to the Constitution. Section 2(l) modified the definition of a word in an entry in the Seventh Schedule. The definition of a word in the Constitution cannot be altered except through a constitutional amendment. The AMU (Amendment) Act 1981 therefore suffers from lack of legislative competence; and

f. Parliament lacks the authority to create a minority institution. Only a minority can do so and courts may declare whether a minority hassucceeded in establishing an institution under Article 30.

Conclusions

In view of the above discussion, the following are our conclusions:

a. The reference in Anjuman-e-Rahmaniya (supra) of the correctness of the decision in Azeez Basha (supra) was valid. The reference was within the parameters laid down in Central Board of Dawoodi Bohra Community ;

b. Article 30(1) can be classified as both an anti-discrimination provision and a special rights provision. A legislation or an executive action which discriminates against religious or linguistic minorities in establishing or administering educational institutions is ultra vires Article 30(1). This is the anti-discrimination reading of the provision. Additionally, a linguistic or religious minority which has established an educational institution receives the guarantee of greater autonomy in administration. This is the ‘special rights’ reading of the provision;

c. Religious or linguistic minorities must prove that they established the educational institution for the community to be a minority educational institution for the purposes of Article 30(1);

d. The right guaranteed by Article 30(1) is applicable to universities established before the commencement of the Constitution;

e. The right under Article 30(1) is guaranteed to minorities as defined upon the commencement of the Constitution. A different right-bearing group cannot be identified for institutions established before the adoption of the Constitution;

f. The incorporation of the University would not ipso facto lead to surrendering of the minority character of the institution. The circumstances surrounding the conversion of a teaching college to a teaching university must be viewed to identify if the minority character of the institution was surrendered upon the conversion. The Court may on a holistic reading of the statutory provisions relating to the administrative set-up of the educational institution deduce if the minority character or the purpose of establishment was relinquished upon incorporation; and

g. The following are the factors which must be used to determine if a minority ‘established’ an educational institution:

i. The indicia of ideation, purpose and implementation must be satisfied. First, the idea for establishing an educational institution must have stemmed from a person or group belonging to the minority community; second, the educational institution must be established predominantly for the benefit of the minority community; and third, steps for the implementation of the idea must have been taken by the member(s) of the minority community; and

ii. The administrative-set up of the educational institution must elucidate and affirm (I) the minority character of the educational institution; and (II) that it was established to protect and promote the interests of the minority community.

The view taken in Azeez Basha (supra) that an educational institution is not established by a minority if it derives its legal character through a statute, is overruled. The questions referred are answered in the above terms. The question of whether AMU is a minority educational institution must be decided based on the principles laid down in this judgment. The papers of this batch of cases shall be placed before the regular bench for deciding whether AMU is a minority educational institution and for the adjudication of the appeal from the decision of the Allahabad High Court in Malay Shukla (supra) after receiving instructions from the Chief Justice of India on the administrative side.

In the end the supreme court seven-judge Bench in 4:3 majority judgment says that’s recognition by law won’t annul minority status. Further, court returns case to a regular Bench to examine the question of the university’s minority status.

To read the judgment kindly click here 

AMU Judgment (Aligarh Muslim University Versus Naresh Agarwal & Ors) The Law Literates

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