Exploring AMU Minority Judgment: A Legal Analysis Of Issues And Implications

Historical and Legal Background of the AMU Minority Question

Aligarh Muslim University's roots trace back to the establishment of the Muhammadan Anglo-Oriental College in 1877, later transformed into AMU by the Aligarh Muslim University Act of 1920. The legislative history of AMU can be categorised in two parts; 1: stripping AMU of its minority character by way of 1951 & 1965 amendments; 2: restoring minority character of AMU through 1972 and 1981 amendments. The legal journey, however, began when amendments to the AMU Act in 1951 and 1965 restructured the university's administration, changing its governance, representation, and religious instruction provisions. These amendments were challenged under Article 32 of the Constitution in Azeez Basha v. Union of India, where the Supreme Court upheld the amendments. The Court held that the establishment of AMU was through the 1920 Act, not by a minority community, thus denying it the protections granted to minority institutions under Article 30(1). The very premise that once you register under a central legislation, you lose your character was laid down in this case.

This precedent was questioned in later cases, notably in Anjuman-e-Rahmaniya, and doubts over Azeez Basha's correctness were expressed by eminent jurists, including H.M. Seervai. The 1981 amendment to the AMU Act under the Indira Gandhi government sought to reverse Azeez Basha by redefining AMU's establishment as by the Muslim community. TMA Pai case in 11-judges' bench formulated question based on reference in Anjuman-i-Rehmania; indicia for minority institution in 2002, however, left it unanswered. Later in 2006, AMU introduced religion-based reservation of 50% in PG Medical course which was also accepted by Union of India, against which a writ was filed under Article 226. However, in 2006, the Allahabad High Court found this reservation policy unconstitutional, invoking Azeez Basha. The High Court also stated that Parliament cannot designate a minority institution under the Seventh Schedule's List I, Entry 63, concerning institutions of national importance. It needs a constitutional amendment. High Court stated that provisions of AMU Act relied in Azeez Basha stand unamended hence 1981 amendment cannot overhaul Azeez Basha which stands correct. The Division Bench of Allahabad HC also upheld this judgment with some modifications also doubting amended provisions of 1981. This led to an appeal to Supreme Court. In 2019, Bench headed by Ranjan Gogoi while hearing an appeal against decision of Division Bench of Allahabad Hogh Court, owing to the referral in Anjuman-i-Rehmania, and TMA Pai leaving the question unanswered, eventually referred the case to a seven-judge bench. However, Union of India under the Modi-led government withdrew the appeal leaving other appellants to press the matter. The question for this case before seven judges' bench also involved the question relying on Central Board of Dawoodi Bohra Community v. State of Maharashtra that a 2 judges' bench in Anjuman-i-Rehmaniya could not have doubted correctness of a decision of a bench of higher strength and could not have referred the matter to a larger bench of 7 judges was also adjudicated in this case. Majority in this judgment held that CJI as a master of roster can adjudicate a matter referred to it by another bench if he deems it fit and necessary, moreover, larger bench can adjudicate the matter before it if it deems a reference of lower bench requires reconsideration as according to the exception laid down in Dawoodi Bohra (supra) case. However, dissenting opinion of judges did not concur with this opinion and held that a 2 judges' bench could not have referred the matter to a larger bench as it would open a pandora box.

Legal Issues and Questions of Law Involved

The AMU judgment grapples with foundational questions surrounding Article 30(1), specifically:

- What are the essential indicia or criteria for an institution to qualify as a minority institution under Article 30(1)?

- Does the term "establish" under Article 30 require complete exclusion of non-minority community involvement in an institution's formation?

- Does subsequent registration under a statute affect the institution's minority character?

These questions focus on whether "establishment" and "administration" by the minority community must be exclusive and how subsequent legislative or regulatory frameworks impact an institution's minority identity.

The Court's Analysis of Article 30: Scope and Indicia for Minority Institutions

The judgment delves into a nuanced interpretation of Article 30(1), drawing from constitutional rights around culture, religion, and education. It affirms Article 30's special protections, allowing minority groups autonomy in education, although subject to regulation for public order, morality, and health. However, the limited regulations must not infringe the minority character of the minority institutions and its internal management and control must not be interfered with. However, non-minority can hold positions.

The Court highlighted the conjunction of "establish" and "administer" as essential for defining a minority institution. For AMU, which was statutorily incorporated, the Court distinguished "incorporation" (legal recognition for awarding degrees) from "establishment" (the founding act or initiation by persons or groups), clarifying that incorporation does not inherently remove an institution's minority character. The judgment suggests that the intention, genesis, and purpose behind AMU's establishment by the Muslim community could align it with Article 30 protections. NCMEI (National Commission of Minority Educational Institutions) Act and its 2010 amendment only apply to minority status of institutions established after enactment and can being a statutory provision can not overhaul the interpretation of constitutional provision.

Applicability of Article 30 to Pre-Constitution Universities

The judgment argued that the protections of Article 30 apply equally to pre-Constitution educational institutions. Article 372 of the Constitution sustains laws from the pre-Constitution period, making Article 30 applicable to institutions established prior to 1950. The Court rejected the notion that a temporal distinction could erode Article 30's protective scope, noting that founding intent is the most relevant factor. This interpretation counters previous judgments, which had assumed Article 30 protections only post-dated the Constitution. There is distinction between incorporation and establishment, and incorporation is only for recognition for awarding degrees; establishment under Article 30(1) does not refers to incorporation by a statute or procedure, but persons behind it, promoters, founders and mind behind it is important. Hon'ble Supreme Court elucidated that all these should belong to minority which have been “instrumental in catalysing” and setting up the institution. A person can establish a university before UGC Act and take the protection of Article 30. Holding that incorporation into an Act is surrendering the minority character is to hold that recognition of degrees would result into denial of Article 30. It was also cleared that relevant point of time for qualification as a minority is at the time of commencement of the Constitution. Also held that protection under Article 30 can not be denied for the reason that founders at that time were unaware of such protection.

Indicia for "Establishment" of Minority Institutions

Hon'ble Supreme Court held that religious or linguistic minority must only prove that they 'established' the institution. In an effort to articulate clear criteria for identifying minority institutions, the judgment offered multiple indicia for "establishment," as follows:

- Foundational Intention and Ideation: The institution's founding idea and intent must originate within the minority community, with evidence of their role in ideation, funding, and infrastructure.

- Purpose and Benefit: The institution should predominantly serve the minority community, even if it benefits others. Conserving distinct language, culture, religion, script of religious or linguistic minorities can be the purpose but need not be the only purpose of establishment. A minority institution is not solely for the exclusive benefit of the minority.

- Implementation Steps: Contributions in terms of land, funds, permissions, and infrastructure by the minority community further indicate its minority character.

- Administrative Structure: The institution's governance and operational design must affirm its minority character, though not exclusively operated by minorities.

This indicia approach creates a holistic framework for understanding the complex issue of institutional identity under Article 30. It was further laid down that admitting non-minorities and imparting secular education will not amount to losing minority character of an institution as the word “of their choice” squarely covers it and religious instruction is not compulsory. Art. 29(2) and Article 30(1) to be read harmoniously and Article 28 also applies to minority institution.

It was further deduced that existence of religious place for prayer and worship is not an indicator of minority character. Also, existence of religious symbols in precincts are not necessary to prove the minority character.

Inferences on question to satisfy indicia laid down in this judgment.

Hon'ble Supreme Court elucidate, however, a non-exhaustive inferences to satisfy indicia laid down herein this judgment in order to prove for a minority institution that it was established by an individual or group of a minority community. These include:

• On the question of who established the institution:

• Enquiry on question of establishment must relate back to date when institution was established or founded or formed;
• Court must consider genesis of institution in determination on the question of establishment;
• Ascertainment as to who was the brain behind it;
• Evidences to proof ideation behind establishment may include letters; correspondence with members of community, state officials; resolutions issued.
• These proofs must point towards one member or a group from the minority community

• On the question of purpose behind establishment :

• Purpose should not be necessary for benefit of particular minority community by predominantly for benefit of it.
• Not necessarily education be provided in language or on the religion of minority.
• Must be proved established for the benefit of that particular minority community.

• On the question of tracing steps for implementation of idea:

• Information on who contributed funds for creation.
• Who was responsible for obtaining land.
• Whether land was donated by a member of community or purchased from funds raised by community.
• Or donated by a member of other communities specifically for establishing a minority institution.
• Other assets of the institution and questions thereon.
• Who took the steps necessary for establishing institutions (e.g. obtaining permissions, construction, arranging infrastructure, etc.)
• Clarified as to grant after establishment will have no bearing on minority character
• Clarified that state may grant land or aid for establishment.
• Surrounding circumstances regarding donations and grants must be considered as a whole.

• On the administrative structure:

• Not necessary to prove that administration vests with minority.
• Right to administer is an enabling right to minority to administer with sufficient autonomy.
• It may impart secular education.
• Founders may man administration with only minority but they are not compelled to do so.
• People from non-minority maybe be appointed by minority in administration and teaching and may be the case for professional colleges which founders don't possess special knowledge or insight like law, medical, engineering, etc.
• However, administrative setup must affirm minority character.
• Administrative setup must elucidate that institution was established to protect and promote the interests of minority.
• The relevant point to evaluate minority and its setup will be at the commencement of constitution and not the date of formation.
• Any event after the establishment of a minority institution but before the commencement of constitution may alter its character.
• Court may pierce the veil on holistic reading of statute on administrative setup to ascertain the answer to the question.
• Regulatory measures forcibly taking administrative control from founders is a question of fact and be dealt as such but must not in such way that rob off the minority character.

However, other relevant factors and facts and circumstances may also be considered which differ on case-to-case basis. Indicia enunciated must be proved through cogent materials like primary sources supplemented and corroborated by secondary sources. The onus to prove its minority character will be upon the claimants. It was also elucidated that Nothing in Article 30 prevents some persons from other communities in contributing to the establishment of a minority institution by a minority providing minority community takes the integral part of the aspiration and efforts of the establishment.

Interaction with List I, Entry 63 of the Seventh Schedule

The Court examined whether AMU's designation as an institution of national importance impacts its minority character. It found that national importance does not negate an institution's minority status, noting that Parliament's power to regulate education does not override Article 30's protections. Consequently, an institution can retain both its national importance and minority character, affirming the co-existence of legislative regulation and constitutional minority rights. The legislative competence over minority institutions is not their surrender.

Overruling Azeez Basha and the Remaining Questions

The Court ultimately overruled Azeez Basha, concluding that statutory incorporation does not negate an institution's establishment by a minority and it cannot be held that if an institution derives its legal character through statute, then it is not established by minority but statute or legislature. However, despite the extensive discourse, the issue of AMU's minority status remains unresolved and was referred for further consideration by a regular bench.

Opinion and Analysis

While the recent judgment offers significant insights into Article 30's protective scope, it falls short of a final resolution on AMU's minority status. The expectation under Chief Justice D.Y. Chandrachud's leadership was for a decisive ruling, given the decades of litigation and public anticipation. However, by opting to refer the matter rather than settling it, the judgment has postponed a conclusive resolution on AMU's minority character. The referral underscores the inherent complexity of reconciling constitutional rights with legislative prerogatives, yet it also indicates the Court's reluctance to prematurely settle an issue so entwined with India's secular and multicultural fabric.

The AMU case reflects a constitutional conundrum, balancing minority rights against regulatory frameworks and legislative enactments. The judgment's nuanced approach to Article 30, its indicia framework, and the revisiting of Azeez Basha mark significant advances in constitutional interpretation. Yet, the deferment suggests that the Court remains cautious, emphasizing the need for a thorough analysis of AMU's unique history and legal status based on the premise that who has established it. The final word on AMU's minority identity, however, will await the verdict of the regular bench, keeping this long-standing constitutional debate alive for yet another judicial chapter. The question started sooner after the independence of India and after having witnessed decades of litigation, this question needed to be settled by CJI Chandrachud in the present case. However, he only delved into the question of law overruling Azeez Basha and laying out indicia for an institution to take benefit under Article 30(1). The question whether AMU is a minority institution or not was left as a question of fact to be proven in a regular bench by proving its establishment by minority to take benefit under Article 30(1). Nevertheless, the bearings of the dissent of the judges cannot be ruled out in the prospective discernment of minority character of AMU in a regular bench. However, Allahabad HC in 2006 striking off amendments of 1981 declaring AMU as not a minority institution was based on Azeez Basha. Since, Azeez Basha has been overruled, the Allahabad judgment of 2006 also cannot hold ground to that extent. The meticulous and humongous task now of collating evidences, on the lines of indicia laid down in this judgment, lies ahead for AMU for a better adjudication before regular bench proving that it has been established by religious minority; i.e. Muslims of India. It is pertinent that in order to preclude any shortcomings given this meticulous task, a student representation in the form of students' union is more than necessary at this crucial juncture, which would decide the fate of this alma mater, than it was in any other point in the history of AMU. At one hand, AMU is pressing its autonomy in administration taking benefit of minority institution, on the other, AMU administration is denying representation in the form of students' union and unfulfilled seats in other bodies like Academic Council, Executive Council and AMU Court, which form the administrative setup of AMU after the 1981 Act. If Aligarh Muslim University (AMU) aspires for the government to implement all provisions of the AMU Act in both letter and spirit, it is imperative that the AMU administration also adheres to and executes all provisions of the Act with the same rigor and integrity. AMU administration will jeopardize its own case if it remains devouring constitution of integral bodies under the Act as the judgment categorically states that administrative setup must indicate, affirm and elucidate that institution was established to protect and promote the interest of minority.

The author is LLM candidate at Faculty of Law, AMU (Batch of 2024) and General Hall Administrator of Dr. B. R. Ambedkar Hall, AMU. Views are personal.