New Delhi:
The Supreme Court on Friday overruled a 1967 verdict holding that since the Aligarh Muslim University (AMU) is a central university, it cannot be considered a minority institution. The issue of whether the Aligarh Muslim University is a minority institution is now left to be decided by a regular bench based on this view of the majority.
A seven-judge bench, headed by Chief Justice DY Chandrachud, delivered four separate judgements on a vexed legal question of whether the Aligarh Muslim University enjoyed a minority status under Article 30 of the Constitution which empowers the religious and linguistic minorities to establish and administer educational institutions.
CJI Chandrachud, on his last working day, pronounced the judgment on behalf of the majority (comprising himself, Justices Sanjiv Khanna, JB Pardiwala and Manoj Misra). Justices Surya Kant, Dipankar Datta and SC Sharma dissented.
The bench, by a majority of 4:3, ruled that the Aligarh Muslim University is entitled to a minority status under Article 30 of the Constitution of India.
The four main aspects for consideration before the bench were –
• whether a university, established and governed by a statute (AMU Act 1920), can claim minority status
• 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
• the nature and correctness of the 1981 amendment to the AMU Act, which accorded minority status to the University after the decision in Basha
• 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 per cent seats for Muslim candidates in postgraduate medical courses.
IN A NUTSHELL
In Azeez Basha, the court had ruled that the Aligarh Muslim University cannot claim minority status as it was established by a statute.
Today, the majority led by CJI DY Chandrachud overruled Azeez Basha and held that an institution will not lose its minority status merely because it was created by a statute. The majority held that the court must examine who established the University and who was the “brain” behind it.
If that enquiry is pointing towards a minority community, then the institution can claim minority status as per Article 30. For this factual determination, the constitution bench relegated the matter to a regular bench, Live Law reported.
AMU CASE IN SUPREME COURT: THE MAJORITY VIEW
In its majority view, the court today said –
• Article 30 will stand diluted if it is to apply prospectively only to the institutions which were established after the commencement of the Constitution.
• The words ‘incorporation’ and ‘establishment’ cannot be used interchangeably.
• Merely because the AMU was incorporated by an imperial legislation would not mean that it was not ‘established’ by a minority.
• It cannot be argued that the University was established by the Parliament merely because the statute says it was passed to establish the University. Such a formalistic reading will 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 is not necessary that the institution was established only for the benefit of the minority community.
• It is 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 are not needed in administration.
• The decision in Azeez Basha is overruled, the question of deciding the minority status of AMU must be done on the basis of the tests laid down in the present case. The papers are to be placed before the CJI for constituting a bench to decide the issue and correctness of the 2006 Allahabad HC judgement.
AMU CASE IN SUPREME COURT: THE BACKGROUND
The seven-judge bench had reserved its verdict on the question on February 1 after hearing arguments for eight days. Grappling with the intractable issue of the AMU’s minority status, the top court said the 1981 amendment to the AMU Act, which effectively accorded it a minority status, only did a “half-hearted job” and did not restore the institution the position it had prior to 1951.
While the AMU Act, 1920, speaks about incorporating a teaching and residential Muslim university in Aligarh, the 1951 amendment does away with compulsory religious instructions for the Muslim students at the university.
The vexed question has repeatedly tested Parliament’s legislative acumen and judiciary’s prowess in interpreting complex laws involving the institution that was founded in 1875 as Muhammadan Anglo-Oriental College by prominent Muslim community members led by Sir Syed Ahmed Khan. Years later in 1920, it transformed into a university under the British Raj.
Earlier, the BJP-led National Democratic Alliance (NDA) refused to accept the 1981 amendment to the AMU Act and insisted that the court should go by the five-judge constitution bench verdict in the S Azeez Basha versus Union of India case in 1967. The constitution bench had then held that since the AMU was a central university, it cannot be considered a minority institution.
The top court had said it needs to see what the 1981 amendment did and whether it restored to the institution the status it enjoyed before 1951.
Those who put forward the view favouring a minority status for the institution, including veteran lawyer Kapil Sibal, contended that the mere fact that only 37 of the 180-member governing council is Muslim does not detract from its credentials as a Muslim minority institution.
Others like Solicitor General Tushar Mehta contended a university getting enormous funds from the Centre and having been declared an institution of national importance cannot claim to belong to a particular religious denomination.
They had also argued that once the Muhammadan Anglo-Oriental College transformed itself into a university after the 1951 amendment to the AMU Act and began receiving funds from the Central government, the institution surrendered its minority character.
A lawyer disfavouring minority status to the AMU had even claimed that it received over Rs 5,000 crore from the Central government between 2019 and 2023, nearly double the University of Delhi, a central university, got.
Some of them had even contended that prominent people from the Muslim community who had lobbied with the then British government for establishing the institution as a university wedded to the cause of promoting education among the Muslims did not consider themselves as a religious minority in undivided India and advocated a two-nation theory.
Sibal had mounted a spirited counterattack on them, asserting that Article 30 of the Constitution which deals with the right of religious and linguistic minorities to establish and administer educational institutions was applicable to the AMU.
Notably, the Allahabad High Court had struck down the provision of the 1981 law by which the university was accorded minority status. Appeals were filed in the apex court, including by the AMU, against the high court verdict.
The row over AMU’s minority status has been caught in a legal maze for the last several decades.
The top court had on February 12, 2019, referred to a seven-judge bench the contentious issue. A similar reference was also made in 1981.
The Congress-led UPA government at the Centre moved in an appeal against the 2006 verdict of the Allahabad High Court that quashed the 1981 amendment to the AMU Act. The university also filed a separate petition against it.
The NDA government spearheaded by the BJP told the Supreme Court in 2016 that it would withdraw the appeal filed by the erstwhile UPA dispensation.
It cited the apex court’s 1967 judgement in the Basha case to claim that AMU was not a minority institution since it was a central university funded by the government.
