Aligarh Muslim University Case | Historic Antecedents Of Institute Must Be Seen To Assess Minority Status, AMU Tells Supreme Court [Day 1]

The Supreme Court's Constitution Bench of 7 judges headed by the Chief Justice of India, DY Chandrachud on Tuesday (January 9) began the hearing of a batch of connected matters on the issue of minority status of the Aligarh Muslim University (AMU).

The Bench comprising the CJI and Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and SC Sharma is dealing with a challenge to a 2006 decision of the Allahabad High Court which held that though AMU was established by a minority community, it was never administered or claimed to be administered by the same and thus cannot be considered as a minority institution. Senior Advocate Dr Rajeev Dhavan opened the arguments on the AMU.

During the hearing, the bench asked if a University established by a statute (the AMU Act 1920) can be held to be a minority institution as per Article 30.

Justice Khanna posed a question to petitioners “Just one thing, since you are arguing with respect to AMU, what will be the position post the enactment and enforcement of the constitution? "

Explaining to the bench, Mr Dhavan said that a large number of deemed universities under the UGC are declared to be minority institutions despite the decision in Azeez Basha v. UOI. He stated “ Therefore we are required to see it from the constitutional lens and liberal education has to be combined with religious education.”

Key Issues Raised :

The present constitutional bench was referred to the matter by an earlier order of the CJI Ranjan Gogoi in 2019 when hearing the appeal against the 2006 judgement of the Allahabad High Court.

The minority status of AMU was originally dealt with in the case of S. Azeez Basha vs. Union Of India in 1967. The bench led by former Chief Justice KN Wanchoo concluded that Aligarh Muslim University was not founded or managed by the Muslim minority. TAdditionally, the bench determined that Aligarh Muslim University does not qualify as a minority institution.

Citing the case to be one of reconsideration before the court, senior advocate Dhavan stated that the main question of reference would be whether the “decision in Azeez basha is internally contradictory on the reasoning on facts and law, contrary to the decisions of this court render nugatory by subsequent statutory changes and contrary to the constitutional dispensation of article 30?”

Thus the main issues were divided further into 5 parts: (1) Whether Basha was correctly decided; (2) What is the effect of the National Commission of Minority Education Institutions Act read with the UGC Act; (3) Should Basha be reconsidered in light of the NCMIE Act and read with the UGC Act; (4) Was Basha correct in accepting the antecedents's historical data on AMU's Muslim character but denying its constitutional significance while deciding the issue of minority status and (5) Is Basha contrary to the constitutional dispensation?.

Another aspect highlighted by Dhavan was the essence and meaning of minority under Article 30. Submitting that Articles 25 and 30 of the constitution are “the crux of understanding of what has to be done in this multi-diverse country”, the counsel elaborates on two concepts of secularism:

“ The first comes from 25 (2)(a) and this is the negative view, saying a narrow view, the wider view is what we understand as part of the basic structure. Now coming to article 30, all minorities whether based on religion or language what is a minority is anterior to this, establish and administer are the rights that flow from the recognition of minority, it's important that your lordships may settle it, what is it that makes a minority, the 3 questions in my mind are the origin, the second is of nexus - whether they found the institution or not and thirdly is on the issue of numerical test”

Article 30 of the Constitution provides rights to minorities to establish and administer educational institutions. Article 30(1) Provides minorities either on the basis of religion or language the right to establish and administer educational institutions of their choice. Consequently, Article 30(2) in granting aid to educational institutions, prohibits the state from discriminating against any such minority institution based on religion or language.

'Contradictions' in Azeez Basha v. UOI :

Underpinning his concerns with the decision of the Supreme Court in Basha, Mr Dhavan submitted 4 facets - firstly, the judgement says that universities can be a minority; secondly, in the judgment, the antecedent history and role of Muhammandan Anglo-Oriental College (MAO) in building the institution and holds that “It is clearly Muslim”; thirdly, the Court in doing so completely ignores the purpose of the AMU Act 1920 ( the establishing Act of the University); fourthly, the judgement ignores the alternative meanings to 'Establish' and misplaces the importance of 'Recognition'.

As per the petitioners, while on one hand the Court in its decision in Basha correctly recognises the Muslim character of AMU but on the other hand denies its constitutional status which is contrary to the Supreme Court's stand in St Stephens College v. University of Delhi which held that the college being of Christian character and its policy of providing 10% reservation to Christian students as opposed to the University circulars was protected under its minority status under Article 30(1).

“They (judges in Azeez Basha case) recognise the antecedent history and just give it a go-bye. The point about the nexus and continuity, in St Stephens they go right through the origins and they say you look at the buildings and they are quiet clearly Christian in character.”

It was further emphasized that the term 'establish' under Article 30 would mean to include found, recognise, confirm or admit. When the bench asked what the difference between 'found' and 'bring into existence' is, the senior advocate explained that while 'bring into existence' means to incorporate, found on the other hand means to take into consideration the antecedent circumstances.

He added that the Supreme Court in State of Kerala v. Reverend Mother Provincial (1970) 2 SCC 417 at para 8 said that “ It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds.”

Mr Dhavan remarked, “We are not just in the process of legal interpretation of article 30 but in the process of looking at the entire process...if A. Basha is right, no university can be a minority . All deemed universities require statutory character. This implication is of a very important significance. ”

The CJI also verbally observed that “ CJI Hidayatullah's decision in Mother Provincial and Justice Jagannath Shetty in St Stephens they don't refer to / cite the judgement in Basha, they refer to all the other, because Basha is a little out of alignment in what is laid down in the other decisions.”

Significant Antecedant History - From MAO to AMU :

Drawing on the historical events that led to the culmination of the AMU Act, of 1920, Dhavan elaborated on the historical antecedents in three phases - (1) from 1870-1877, the genesis of the idea of setting up a university for the Muslim community came into the picture, the MAO college was established; (2) 1877-1910 the Muslim community rallied to convert the MAO and the government under pressure agreed to convert the college and (3) 1910-1920, where the founders of the Muslim university actively engaged and succeeded in their desire to convert and incorporate the MAO into the present AMU.

It was submitted that AMU was nothing but an alter ego of MAO and there existed a continuity in the said “establishment” which was done to further the purpose of educating the Muslim community.

CJI Chandrachud, summarily analysing the petitioner's submission, said “ 1. look at the antecedent history of the institution, 2, the purpose of the statute, and place the provisions of the statute in backdrop of the history and purpose, the mere fact that a statutory provision somehow restricts a minority institution could otherwise do in the absence of the statute could not be a ground to deny its status under minority character .... and recognition and affiliation, you have to apply else your degrees would never be …”

Court's Observation on 'Establish and Administer' under Article 30 :

During the hearings, the CJI made an observation on the requirement of minorities to 'establish and administer' under Article 30 of the Constitution.

He remarked, “ Article 30 uses the expression - establish and administer, there is no absolute standard of administration that you must administer 100% would be an illusive standard. To make Article 30 effective we don't have to postulate that the administration by the minority has to be an absolute administration, in that sense today in a regulated society, nothing is absolute... virtually every aspect of life is regulated in some way or the other.”

It was further added that just because a law regulates how an institution is managed and limits some control doesn't mean it loses its status as a minority institution.

In terms of administrations, the bench noted that there is no constitutional definition of the expression 'administer'. “The courts have held what administration means but the right to the administration itself is regulated by the statute”

While the state in the public interest can continue to make laws on various aspects of the educational institute such as standards of examination, the curriculum that in itself does not disable the minority character of the institute

“You don't have to be administrating only religious courses, you can be administering a purely secular educational institution, that's one, secondly, the law is not that you only admit students of your community, you can admit from any community, without forcing because it is the right of establishment in administration.”

Case Details : ALIGARH MUSLIM UNIVERSITY THROUGH ITS REGISTRAR FAIZAN MUSTAFA vs. NARESH AGARWAL C.A. No. 002286 / 2006 and connected matters