What Extent Of Minority Presence Required In Administration To Claim Protection Of Article 30? Supreme Court Discusses In AMU Case [Day 2]

The Supreme Court in continuance of its hearing of the Constitution Bench matter on the issue of the minority status of the Aligarh Muslim University (AMU), noted that the requirement to 'administer' under Article 30 of the Constitution may not be absolute for an education institution to qualify the minority character.

The Chief Justice of India, in dissecting the arguments of the petitioners, verbally remarked “Article 30 has been called in the sense an article of faith”, which he explained was intended to instil a sense of confidence in the religious and linguistic minorities of the country.

The 7-judge Bench comprising CJI DY Chandrachud 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 minority community and thus cannot be considered as a minority institution. The bench heard the submissions made by Senior Advocates Dr Rajeev Dhavan and Mr Kapil Sibal representing the petitioners.

At the outset, a key deliberation took place between the CJI and Dr Dhavan essentially on the difference between establishment and administration; and how the requirement of administration cannot be laid down in numerical formula. This was followed by Sibal's subsequent analysis on 'recognition' being disjunct 'establishment' and the very purpose of AMU's being.

Minority Character not Dependent upon Absolute Administration by Minority - The Court Ponders :

Reflecting upon the earlier arguments made by senior advocate Mr Dhavan, the CJI noted that while the term 'Establish' or 'Establishment' roots to the founding moment in time, 'Administration' on the other hand requires continuity.

“Establishment you said therefore goes to the founding moment, it takes you to a time in the past, administer is not really confined to a moment in the past. Administer is something which is a continuing exercise, so who is in the management of the institution, is the management in the hands of a minority?”

Adding to this, Dr. Dhavan explained that while an institution's character will be determined by the establishment, its 'excellence' relates to the regulations of the state which it must accept irrespective of its minority character.

“I said that these institutions must be institutions of excellence, they must accept regulations, all kinds of secular regulations you must accept that's what TMA Pai says .... and no minority can say we don't accept this”

The CJI said that just because a minority education institution's administration includes members of the non-minority community, that in itself would not take away the minority character of the institution. He expressed, “ The mere fact that some part of the administration is also looked after by non-minority candidates who have a representation voice by virtue of their service/ association with the institution in that sense will not dilute the minority character of the institution.”

The Court also verbally observed that it may not be possible to lay down a numerical test as it would be a dangerous thing to do. Instead the test should be qualitative one. Dwelling further into the aspect of internal management of a minor institution, the CJI asked the extent of presence required in the administration to suffice the 'minority character'.

“Could it be the position in constitutional law that even though the controlling voice is not of the minority yet it should be treated as a minority education institute under Article 30 because the minority has some element of presence in the managing body”

To which, Dr Dhavan replied by giving the example of how so far all the vice-chancellors elected ( barring 3) were Muslims and that the presence should be such that the institution doesn't lose control “entirely to the secular forces”.

In the later part of the hearing as well, the CJI noted that the expression “of their choice” under Article 30 as read with the right to 'establish and administer' would mean a minority community would have a choice to not only establish an institution but also to choose to have the institution administer by someone else too and that does not hinder the institution's minority status.

The Courtroom dialogue went as :

CJI (after reading Article 30 and stressing the word "choice"):.. so you can set up and administer educational institutions of their choice. Once the choice in setting up an education institution is recognised, the choice is yours as a minority. You have to establish it yourself if you want to get the benefit of Article 30. If someone else wants to administer your institution you can challenge that. But the extent that you want to cede the right of the administration to others is your choice again.That what you're argument is that you are not compelled at the cost of your minority status to require to administer it yourself 100%."

Sibal: Therefore I can establish an institution of my choice and administer to the extent that I want.”

Recognition And Establishment, Disjunct Concepts- Submits Sr. Adv Kapil Sibal

Appearing for AMU Old Boys' Association, Senior Advocate Sibal emphasized the need to see the AMU Act, 1920 as a pre-constitutional legislation while testing it under Article 30. Drawing on the main purpose of why the AMU came into existence, Mr Sibal stressed how in those days there existed a dearth of tertiary education institutions with only a handful of universities such as the University of Calcutta, the University of Lahore, University of Madras, and University of Allahabad. He also pointed that at the brim of the independence, only 14% of the population was educated.

In this context, he added, “The genesis of the AMU is based on this movement within the minority community that apart from these 5-6 universities there must a university for ourselves...and imagine Sir Syed, I'm talking of 1870.. The patience that the man had that we should not be looking at Muslim education alone we should be looking at secular scientific education, and the kind the subjects taught and the same movement was in the Hindu community.  At the same time, the Banaras Hindu University also came into being.”

Highlighting the faults in the decision of Azeez Basha v. UOI, Mr Sibal explained

“The mistake made by the petitioners in the Basha case, when they found that the judge was not agreeable to the fact that it was established by Muslim community, they started arguing that it doesn't matter, even if not established, it was administered which is contrary to 30. So my lords, the reference you will find is therefore established or administered, why because they argued that I am a minority even if they find that I have not established, but I administer. AMU was not there before the court. That is why that reference was made to that 'or'.”

Giving the example of a minority community trying to set up a design institute, he explained that if the decision in Basha is applied, then the moment the institute gets the status of a University, it will lose the minority status and in the large sense it would defeat the very purpose of the institution, which is to serve the minority community.

Contending that the notion of recognition of a University and establishment of the same cannot be given a conjoint meaning, Mr Sibal stated “ There is disjunct, complete disjunct in the concept of establishment and the concept of recognition, recognition is for the purposes of being a part of the workforce of the community; establishment is for the purpose of ensuring that people of your community can be part of the workforce, its a vehicle for empowerment not a vehicle for destroying the very concept of setting up a minority institution.”

In essence, the senior counsel argued that to understand the term 'establish', the court has to dwell into the purpose of establishment as that statute that sets up the institution is perhaps the “end product of the establishment process”.

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

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