Criteria To Determine Minority Status Of Educational Institution Under Article 30 : Supreme Court Explains In AMU Case

In the Aligarh Muslim University case, Chief Justice of India DY Chandrachud, in the majority judgment, outlined key criteria for determining an educational institution's entitlement to minority rights protection under Article 30(1) of the Indian Constitution.

The key points from the judgment are as follows :

'Establish' and 'administer' must be read conjunctively

Based on precedents, the judgment explained that the rights to establish and administer must be read conjunctively and not disjunctively.

The judgment also stated that Article 30(1) cannot extend to a situation where the minority community which establishes an educational institution has no intention to administer it. 

A religious or linguistic community may establish an educational institution and yet not administer it. This is evident from Article 28(2) of the Constitution which states that Article 28(1) will not apply to an educational institution which is administered by the State but was established under an endowment or a trust which require religious instruction to be imparted. It is quite possible that a member or a group belonging to the minority community wishes to establish an institution but intends to accept greater State regulation and lesser autonomy for the community. In that case, putting a 'minority' tag on such an educational institution merely because it has been established by a person or a group belonging to a religious or linguistic minority would not be permissible under Article 30(1). An educational institution established by a minority, whether linguistic or religious, can give up their right to claim the benefit under clause (1) of Article 30. The right can be given up consciously by waiver. This may occur where administration has been consciously and willingly entrusted to the State. Therefore, to determine whether an educational institution is a minority educational institution, a formalistic test such as to whether it was established by a person or group belonging to a religious or linguistic minority is not sufficient. The tests adopted must elucidate the purpose and intent of establishing an educational institution for the minority. Both the establishment and the administration by the minority must be fulfilled cumulatively for that.

Article 30(1) applies to educational institutions established before the commencement of the Constitution

A distinction between educational institutions established before and after the commencement of the Constitution cannot be made for the purposes of Article 30(1). Article 30 will stand diluted and weakened if it is to only apply prospectively to institutions established after the commencement of the Constitution. The protection and guarantee, if made applicable to only institutions established after the commencement of the Constitution, would debase and defile the object and purpose of the provision. 

Minority status is not surrendered merely because an institution was created by a statute 

The word 'establish' as used in Article 30(1) cannot and should not be understood in a narrow and legalistic sense. The words used in clause (1) of Article 30 have to be interpreted in view of the object and purpose of the article, and the guarantee and protection it confers. The guarantee and protection are not dependent on the basis or the manner in which the legal requirements were/are complied with, rather it concerns the persons who have founded and created the establishment. The incorporation by a statute or the procedure and requirements in law are not determinative factors. The persons behind it, that is, the promoters and founder(s) are important. They should belong to a linguistic or a religious minority. There will always be individuals and groups instrumental in catalysing and setting up the institution. Thus, giving a legal character to an educational institution through state or sovereign action, it does not ipso facto follow that the university so established deprives the group of persons/individuals the guarantee under clause (1) of Article 30 of the Constitution.

The minority character of the institution is not ipso facto surrendered upon the incorporation of the University

It cannot be argued that a university was established by Parliament merely because the long title and preamble of the statute incorporating the university states that it is an Act to establish and incorporate. If such a formalistic interpretation is adopted, fundamental rights would be made subservient to legislative language.

Community need not be 'Minority' before the commencement of the Constitution

The demography of the Dominion of India underwent a drastic change upon partition. The Constitution, through Article 30(1), confers a right on those communities that were disadvantaged upon the commencement of the Constitution and not the group that was disadvantaged in pre-independent India.

We reject the argument that the test of whether an educational institution is a minority institution must be examined based on whether the community or the group which had established the institution was a minority at the time of its establishment in pre-independent India.The protection under clause (1) of Article 30 cannot be denied to institutions established before the commencement of the Constitution for the reason that at the time of establishment in pre- independent India, the founders were not aware that they would receive protection of Article 30(1).

Indicia for the 'establishment' of a minority educational institution

Display of religious symbols or existence of place of worship not necessary

a. The existence of a religious place for prayer and worship is not a necessary indicator of the minority character because institutions wholly maintained out of State funds are constitutionally barred from providing religious instructions; and

b. The existence of religious symbols in the precincts of the educational institution are not necessary to prove the minority character because educational institutions could be established for minorities to provide secular education without imparting any lessons on religion.

How to determine who established the institution?

To determine who established the institution, the Courts must consider the genesis of the educational institution. For this analysis, the Courts must trace the origin of the idea for the establishment of the institution. The Court must identify who was the brain behind the establishment of the educational institution. Letters, correspondence with other members of the community or with government/State officials and resolutions issued could be valid proof for establishing ideation or the impetus to found and establish. The proof of ideation must point towards one member of the minority or a group from the community.122

The second indicia is the purpose for which the educational institution was established. Though it is not necessary that the educational institution must have been established only for the benefit of a religious or linguistic minority community, it must predominantly be for its benefit.

The third test is tracing the steps taken towards the implementation of the idea. Information on who contributed the funds for its creation, who was responsible for obtaining the land, and whether the land was donated by a member of the minority community or purchased from funds raised by the minority community for this purpose or donated by a person from some other community specifically for the establishment of a minority educational institution are elements that must be considered. Similar questions must be asked of its other assets. Other important questions are: who took the steps necessary for establishing the institution (such as obtaining the relevant permissions, constructing the buildings, and arranging other infrastructure)? It is also important to note that the state may grant some land or other monetary aid during or after the establishment of the educational institution. If the land or monies were granted after the establishment, the grant would not have the effect of changing the minority character of the institution. Minority institutions are not barred from receiving aid save at the cost of their minority status.123 If the land or monies are granted at the time of establishment, the circumstances surrounding the establishment must be considered as a whole to determine who established the institution. The presence of a grant must not be automatically interpreted as leading to the erasure of a claim to minority status.

Not necessary to prove that the administration vests with the minority

The next question is whether the administrative structure of the educational institution is an indicia for the establishment of a minority educational institution. We have already held above that an educational institution is a minority educational institution if it is established by a religious or linguistic minority. We have clarified that it is not necessary to prove that administration vests with the minority to prove that it is a minority educational institution because the very purpose of Article 30(1) is to grant special rights on administration as a consequence of establishment. To do otherwise, would amount to converting the consequence to a pre-condition. The right to administer is guaranteed to minority educational institutions to enable them to possess sufficient autonomy to model the educational institution according to the educational values that the community wishes to emphasise.

It is not necessary that the purpose can only be implemented if persons belonging to the community helm the administrative affairs. This is so particularly because a minority institution may wish to emphasise secular education. The founders or the minority community may choose to populate the managing board (or a comparable authority) responsible for the day-to-day administration of the institution with persons belonging to the same community. However, they are not compelled to do so. They may wish to appoint persons who do not belong to their community but who they deem fit for the proper administration of the institution. This may be the case for professional colleges which offer specialised courses such as law, medicine, or architecture, where the founders may not possess the knowledge, experience, or insight necessary to manage or administer the institution personally.

The test to be adopted by the Court is whether the administrative set up of the educational institution affirms the minority character of the institution. If the administrative structure of the educational institution does not reflect its minority character or when it does not elucidate that the educational institution was established to protect and promote the interests of the minority, it may be reasonably inferred that the purpose was not to establish an educational institution for the benefit of the minority community.

Other communities can contribute to establish the institution

Nothing in Article 30 prevents some persons from other communities in contributing to the establishment of an institution by a minority. There may be persons hailing from different communities who are concerned about the need for minority educational institutions and lend their assistance in some form – be it by contributing monies or otherwise. Their participation and involvement would not preclude Article 30 from being applicable to such institutions provided that the minority community continues to shoulder the core of the responsibility of establishing an educational institution.

Detailed report about the judgment can be read here.