The context
Sir Syed Ahmed Khan-an educationist from the 19th century who also was also the founder of the Aligarh movement-founded the Mohammeden Anglo Oriental College (MAO College) in 1877. There is a great deal of literature on how Syed Ahmed Khan was working for development of both Hindus and Muslims while serving as a judge, and how he found the Scientific Society with Hindu personalities to translate scientific works into Urdu and Hindi.[3] The same literature also marks a shift in how he later specifically focussed particularly on upliftment of Muslims through education. In this pursuit, he established a school in 1875 which later became the MAO College.
The MAO College eventually transformed into AMU in 1920 through an Act of the Central Legislature, expanding its academic reach and gaining university status. The birth of independent India in 1947 brought forth a new era, marked by the adoption of the Constitution in 1950. This landmark document enshrined fundamental rights, including provisions for minority institutions, notably Article 30(1), which guaranteed religious and linguistic minorities the right to establish and administer educational institutions of their choice. The enactment of the Constitution necessitated aligning existing laws with its principles. Consequently, the AMU Act underwent amendments in 1951 and 1965. These amendments aimed to reconcile the university’s governance structure with the newly established constitutional provisions, particularly those related to secularism, equality, and the right to education for all citizens.
Changes to AMU Act after Independence
The 1951 Amendment Act was crucial in reshaping AMU’s governance to adhere to the principles of the Constitution, particularly those related to government aid and non-discrimination. The amendment addressed several key aspects, including the composition of the university’s governing body, “the Court,” and provisions for religious instruction. Prior to the amendment, the AMU Act mandated that all members of the Court be Muslims. This provision was deemed incompatible with the secular and egalitarian ethos of the Indian Constitution, which prohibits discrimination based on religion. The 1951 amendment removed this requirement, allowing for a more diverse and inclusive composition of the Court, thereby adhering to Article 14, which guarantees equality before the law.
Another significant aspect addressed by the 1951 amendment pertained to religious instruction. The original AMU Act mandated religious instruction for Muslim students, a provision that raised concerns about potential discrimination against students of other faiths. To rectify this and ensure compliance with Article 28(1), which prohibits religious instruction in educational institutions wholly maintained out of State funds, the amendment removed the mandatory religious instruction provision. This change was crucial in aligning AMU with the principles of the. By removing the requirement for an all-Muslim Court and the mandatory religious instruction provision, the 1951 amendment sought to remove any impediments to AMU receiving government aid while upholding the principles of secularism and equality enshrined in the Constitution.
However, the 1965 Amendment Act, introduced amidst a period of campus unrest, significantly altered the power dynamics within the university, further intensifying debates about its minority character and the autonomy of minority institutions in general. This amendment effectively curtailed the authority of the Court, reducing it to an advisory body. The Executive Council, on the other hand, saw its powers considerably augmented. Additionally, the amendment introduced significant changes to the composition of the Court, shifting from an elected body to a primarily nominated one. These changes, perceived by many as a move towards greater government control over the university, sparked concerns about the erosion of minority institutions’ autonomy and sparked renewed legal challenges. The Supreme Court delivered its judgement on the validity of the amendments in Azeez Basha vs. Union of India.
Azeez Basha v. Union of India (1967) and subsequent developments.
In the 1967 case of Azeez Basha v. Union of India, the Supreme Court examined the question of whether Aligarh Muslim University (AMU) was a minority educational institution under Article 30(1) of the Indian Constitution. The Court ultimately ruled that AMU was not a minority institution, a decision that has been contested ever since.
The petitioners in Azeez Basha had challenged amendments made to the AMU Act in 1951 and 1965, arguing that they violated the Muslim community’s right to administer an educational institution they had established. These amendments, as previously mentioned, changed the university’s governance structure and composition, including measures that reduced the power of the university’s Court, removed a requirement for Court members to be Muslim, and empowered the Executive Council.
The Court upheld the amendments, determining that the AMU was neither established nor administered by the Muslim minority at the time the Constitution came into force. The Court reasoned that because the central legislature enacted the AMU Act in 1920, the university was established by the government, not a religious minority. The Court determined that the words “establish and administer” in Article 30(1) must be read conjunctively, meaning the minority community must have both established and administered the institution to qualify for protection under this article.
Timeline: key developments after Azeez Basha
November 26, 1981: The two-judge bench in Anjuman-e-Rahmaniya vs. District Inspector of Schools expressed doubts about the Azeez Basha judgment and referred the matter to a larger bench for reconsideration.[4] The case involved a different educational institution and was considering whether registration as a society under the Societies Registration Act changed an institution’s status as a minority institution. The judges questioned whether an institution established with any non-minority participation could be considered a minority institution and directed that a larger bench consider the matter. However, this reference was never conclusively addressed.
December 31, 1981: The AMU Act was amended with the intention of overturning the Azeez Basha judgment. This amendment redefined “University” in the AMU Act to mean “the educational institution of their choice established by the Muslims of India, which originated as the Mohammedan Anglo-Oriental College, Aligarh, and which was subsequently incorporated as the Aligarh Muslim University”. The amendment also emphasized the university’s role in promoting the educational and cultural advancement of Muslims. However, the legal validity of this amendment, and whether it could supersede the Supreme Court’s Azeez Basha judgment, became a point of contention in future litigation.
2002: The Supreme Court, in TMA Pai Foundation v. State of Karnataka stated that the determination of whether a community is a minority is to be made at the state level.[5] The Court in TMA Pai framed a question similar to the one in Anjuman-e-Rahmaniya, but ultimately determined that the question of indicia for treating an educational institution as a minority institution should be decided by a regular bench, not the eleven-judge bench hearing the case. However, this question remained unanswered.
2005: AMU, asserting its claim as a minority institution based on the 1981 amendment, reserved 50% of seats in postgraduate medical courses for Muslim candidates. This decision led to the case of Dr. Naresh Agarwal v. Union of India.[6] The petitioners in this case, citing Azeez Basha, contested the reservation policy and argued that AMU was not a minority institution. The Union and the University countered that the 1981 amendment had nullified Azeez Basha.
2005: The Allahabad High Court, relying on the reasoning in Azeez Basha, struck down AMU’s reservation policy. The High Court determined that the 1981 amendment did not change the basis of the Azeez Basha decision, and so AMU remained a non-minority institution. The High Court reasoned that the Muslim community had willingly surrendered their right to administer AMU to the government. It also found the 1981 amendment impermissible because the amendment sought to overrule the Azeez Basha judgment without removing its legal basis.
2006: The Union government and AMU appealed the Allahabad High Court’s decision to the Supreme Court.
February 12, 2019: A three-judge bench of the Supreme Court, recognising that the correctness of Azeez Basha remained unresolved, referred the question of AMU’s minority status to a seven-judge bench. The bench determined that previous references, including the one in Anjuman-e-Rahmaniya, had not provided a definitive answer to this question. This referral also directed the seven-judge bench to consider the impact of the 2010 amendment to the National Commission for Minority Educational Institutions Act (NCMEI Act) on AMU’s minority status. The 2010 amendment to the NCMEI Act expanded the definition of a minority institution to include universities, a change the three-judge bench felt necessitated further examination.
Arguments
The petitioners primarily argued that the Aligarh Muslim University (AMU) should be recognized as a minority institution based on its historical connection with the Muslim community, and therefore entitled to protection under Article 30(1) of the Indian Constitution. They challenged the long-standing precedent set by Azeez Basha, which had denied AMU minority status. The petitioners contended that the Azeez Basha judgment misinterpreted the scope of Article 30(1) and created a restrictive precedent that limited the ability of minority communities to establish and administer universities. They emphasized that a university could be considered “established” by a minority community even if it was formally incorporated through a legislative act, particularly when the community played a significant role in the institution’s conception, development, and ongoing character. The petitioners highlighted AMU’s historical origins, its contributions to Muslim education and culture, and the university’s strong ongoing connection with the Muslim community as evidence of its minority character.
The respondents argued that AMU’s establishment through the Aligarh Muslim University Act of 1920, enacted by the British Indian government, negated the claim that it was established by the Muslim minority community. They emphasized that the Act granted the government extensive control over the university, including the power to appoint key officials, regulate its functioning, and oversee its finances. This control, they contended, contradicted the autonomy and independence typically associated with a minority institution. The respondents also argued that the Muslim community, in its pursuit of a university, had willingly accepted a certain level of government control in exchange for recognition and support. This acceptance, they argued, amounted to a surrender of the right to establish an independent minority institution. This surrender predated the Indian Constitution, they noted, and therefore could not be reevaluated based on the fundamental rights enshrined in the Constitution. The respondents further argued that AMU’s designation as an “institution of national importance” under Entry 63 of List I of the Seventh Schedule of the Constitution, combined with its integration into the regulatory framework established by the University Grants Commission (UGC) Act of 1956, demonstrated its national character and its alignment with the broader Indian higher education system.
Majority Judgement
Decoupling minority status from statutory incorporation, date of establishment, and administrative composition
The majority judgment authored by Chief Justice D.Y. Chandrachud and joined by Justices Sanjiv Khanna, J.B. Pardiwala, and Manoj Misra sought to clarify the criteria for determining the minority status of educational institutions in India. This 4:3 decision rejected a narrow interpretation of Article 30(1) of the Indian Constitution, which guarantees religious and linguistic minorities the right to establish and administer educational institutions of their choice. The majority opinion articulated a set of principles aimed at ensuring the protection of minority rights in the realm of education.
Firstly, the judgment refuted the long-held notion that statutory incorporation automatically precludes minority status. The court distinguished between “incorporation” and “establishment,” asserting that these concepts are distinct and should not be conflated. Therefore, the mere fact that the Aligarh Muslim University (AMU) was created through an Act of Parliament (the AMU Act of 1920) does not inherently negate its potential minority status. The majority opinion emphasized that the critical inquiry should focus on who established the institution and the driving force behind its creation, the purpose of the creation and the way it was created. It is here the majority judgement makes the distinction. [Paragraph 94]
The majority stated that the indicia for treating an educational institution as a minority education institution constitutes the genesis of the idea or ‘brain’ behind the establishment as gauged from the correspondence, government resolutions. This inquiry should lead back to a person from the minority community. Additionally, the purpose of the institution can be for the benefit of the minority community rather than being ‘solely for the benefit of the minority community.’ [Paragraph 72]
The implementation of the idea, according to the majority opinion of the Supreme Court, needs to be examined but state aid in the implementation would not adversely affect the minority status of the institution. The administrative structure also should reflect the minority character of the institution. [Paragraphs 133-138]
Secondly, the majority judgment debunked the idea that an institution’s date of establishment is determinative of its minority status. The court clarified that Article 30 does not restrict the right to establish and administer educational institutions to minorities only after the Constitution came into effect. This clarification ensures that the protection afforded to minority educational institutions under Article 30 extends to institutions established before the Constitution’s adoption, acknowledging the historical context of minority education in India.[Paragraph 119]
Thirdly, and perhaps most significantly, the court held that administration by non-minority members does not, in itself, negate an institution’s minority status. Recognizing the evolving nature of educational institutions and their commitment to secular values, the majority acknowledged that a minority institution might not require minority members in its administration to maintain its essential character. The court highlighted that a minority institution might prioritize secular education, making the presence of minority members in administration unnecessary. This principle allows minority institutions to embrace inclusivity and diversity in their administrative structures without jeopardizing their minority status and the associated constitutional protections. The court also recognized that compelling a minority institution to surrender its minority character in exchange for recognition or affiliation would violate Article 30(1).[Paragraph 160]
Minority opinion
Justice Surya Kant’s dissenting opinion disagrees with the majority on two crucial points: how the case came before the court and what criteria should be used to determine the minority status of an institution.
First, Justice Surya Kant strongly criticizes the procedural route the case took. The issue of AMU’s minority status started with a two-judge bench that doubted the correctness of a previous five-judge bench ruling (the Azeez Basha case). This two-judge bench then referred the case directly to a seven-judge bench, bypassing the proper channels. Justice Surya Kant argues this is a fundamental error. He cited established legal principles and the Supreme Court’s own precedent in Central Board of Dawoodi Bohra Community v State of Maharashtra to emphasise that a smaller bench cannot overrule or refer the decisions of a larger bench without going through the Chief Justice of India.[7] This, he argued, undermines judicial order and predictability. [Paragraph 91]
Second, on the substantive issue of how to determine minority status, Justice Surya Kant disagreed with the majority’s view that an institution incorporated by a statute can still be considered a minority institution. He emphasizes that both the “establishment” and “administration” of an institution must reflect its minority character for it to receive protection under Article 30(1). This is a conjunctive reading of those two terms – both conditions must be met. [Paragraph 131]
.Justice Surya Kant, in his dissent, listed factors indicating a loss of minority administrative control over an institution: management unaccountable to the founders, external vetoes in staffing decisions, lack of guaranteed minority representation on governing bodies, and a shift from the institution’s original minority-focused goals. These suggest diminished influence of the minority community in administering the institution.[Paragraph 181]
Justice Dipankar Datta expressed caution against recent judicial trends that diverge from historical precedent and original constitutional interpretations. [Paragraph 133] He emphasised that judges are not infallible and should be guided by the framers’ intentions rather than rewriting history. He argued that the right to establish and administer minority institutions (under Article 30) is contingent upon the community’s intent and control. Regarding Aligarh Muslim University (AMU), he noted its founding circumstances, highlighting that it was publicly funded and controlled by the colonial government, with minimal Muslim community oversight—pointing to a limited claim to minority status in its administration. He was the lone judge withing the minority to go ahead and declare that AMU is not a minority educational institution.
Justice Satish Chandra Sharma opined that for a minority community to claim administrative rights under Article 30, they must have “established” the institution, meaning they must have independently and predominantly created it without substantial outside control. The institution’s purpose should primarily serve the minority’s interests, and they should hold decisive administrative power. The term “establish” refers strictly to the act of creation, and cases should evaluate whether the minority community directly contributed to its foundation and operation, according to him. [Paragraph 266]
Understanding the reasoning
El Clásico between purposive and literal interpretation
The majority took the route of purposive interpretation of the Constitutional provision by examining the purpose of Article 30(1) and how the article underscores the imperative to enable minorities to maintain their distinctive characteristics and fulfil their specific needs. Out of the majority judgement’s discussion, a principle emerges— that the special right under Article 30(1) of the Constitution is that the state must grant the minority institution sufficient autonomy to enable it to protect the essentials of its minority character. [Paragraph 65] Using this, the Court also went on to devise the tests which look at the origins and purpose of the institution in question, to answer whether it is a minority institution or not. The majority judgement also stated that it is inconsequential whether the word ‘establish’ in Article 30(1) actually means ‘to bring into existence’ or ‘to found’ the real determination becomes possible only when the veil of the statute is lifted. [Paragraph 110]
Justice Dipankar Dutta’s minority opinion stresses on the literal phrase in Article 30(1) and states that the framers of the Constitution were aware of the circumstances of the times and yet, they used the word ‘establish’ instead of ‘found’ —a broader word. [Paragraph 134] Later he stated that even if the verb ‘establish’ could be read as ‘to found’ which he found no warrant to so read, the Muslim community’s leaving the administration of AMU to be worked out according to the AMU Act shows the clear lack of intention on part of the community to administer it. [Paragraph 133]
These are classic conflicts in terms of interpretation. While the purposive interpretation looks at the origins of the law and the purpose it sought to achieve, the literal interpretation gives importance to the intent and wisdom of those who framed the law since they understood the circumstances better and yet used the wording. While literal interpretation is used to let the law be a stable instrument for order, purposive interpretation enables law to be instrument in social change.
Justice Satish Chandra Sharma’s minority ppinion and loose threads
An interesting line of reasoning emerges from the minority opinion of Justice Satish Chandra Sharma. First, he states that there was no right under Article 30 in 1920 for it to have been surrendered to the government by the minority community via the enactment of AMU Act. Essentially, he stated that the Constitution bestows the right on minorities and before 1950, the right did not exist. This reasoning recognises constitution as a document that effectuates change-something similar to what Justice Vivian Bose had said in Virendra Singh vs State of UP in 1955 that “The Constitution by reason of the authority derived from and conferred by the people of India destroyed all vestiges of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State in the present case was seeking to uphold.” The chance at progressive interpretation however gets lost when the opinion says that since there was no right to establish institutions for minorities, there is no question of relinquishing the right. Additionally, he went on to say that limited minority aspects/elements cannot make an institution a ‘minority institution.’ [Paragraph 204]
Justice Satish Chandra Sharma stated in his minority opinion that the court cannot be swayed by one side of the story or the other. He referred to the competing narratives by both appellants—saying that the university was established by Muslim people for the benefit of Muslim community with the help of state sanction, and by respondents—saying that the establishment of the university was largely a government affair with minority elements. He states as follows in Paragraph 204:
“If in a given case, there may be other factual factors pointing towards the contrary, highlighting that whatever the intention or the will of the minority community might have been at the said time, in exchange or during negotiations, if the resultant institution was effectively rendered an open governmental institution [with limited minority aspects], then Article 30 would be out of the picture.”
We do not get to see in his opinion how or why this conclusion can be drawn from the elaborate discussion he did on the facts leading up to the establishment of the university or why a significant effort by the minority community can be trumped by the mere fact that university gets incorporated by a legislative act.
The majority judgement tackles this line of reasoning by saying that In Article 30(1) by saying that, there is no distinction between universities and colleges regarding minority rights. Both serve the common purpose of educating students, and minorities are entitled to autonomy in administering these institutions to benefit their communities. The term “establish” refers to the act of founding an institution and is distinct from “incorporation.” A person or community could establish a teaching college that later became a university, and the right to establish is not limited by legal incorporation under the Act.
The bench however left the determination of the minority status of AMU itself and directed that a smaller bench would apply the criteria as laid out by the seven-judge bench.
(The author is part of the research team of the organisation)
[1] 2024 INSC 856
[2] 1968 AIR 662
[3] Kidwai, S., 2020. Sir Syed Ahmad Khan: Reason, Religion and Nation. Routledge India.
[4] W.P. (C) 54-57 of 1981
[5] Writ Petition (civil) 317 of 1993
[6] 2005(4)ESC2489
[7] (2005) 2 SCC 673
Related:
SC refuses to interfere with selection, appointment of new AMU VC
The never-ending attack on AMU, India’s top-ranked university
Why does the Modi Sarkar want to stymie AMU’s Off Campus Centres?