AMU Minority Status Case | Article 30 Not A Mere Enabling Provision, It's An Obligation On State, Says Supreme Court [Hearing Day 4]

The 7 Judges Constitution Bench led by the Chief Justice of India, DY Chandrachud continued its hearing on the issue of granting minority status to Aligarh Muslim University under Article 30.

On the 4th day of arguments, the CJI verbally observed that it is now a well-settled proposition that merely seeking financial aid from the state will not deprive a denominational institution of its minority status. 

“ That is well settled, you don't have to give up your minority status when you seek aid. Because today there's a recognition that no institution minority/non-minority without aid can exist. Merely by seeking aid, you don't lose your minority status. Thats now very well settled”

The 7-judge Bench comprising CJI DY Chandrachud, Justice Sanjiv Khanna, Justice Surya Kant, Justice JB Pardiwala, Justice Dipankar Datta, Justice Manoj Misra and Justice 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 discussion between the bench and the bar also diverted to analysing the conceptual interpretation behind Article 30 of the Constitution and its interplay with statutory provisions.

Whether Article 30 Is An 'Enabling Provision'?

During the submissions from the Union's side, Attorney General for India (AG) R Venkataramani mentioned in his written submissions that Article 30 was an enabling provision.

The bench however asked how Article 30 which grants rights to minorities to establish and administer educational institutions, is considered 'enabling'.

The CJI explained, “ You see enabling provision is like Article 15 where you have a choice to make a provision. 30 is not enabling so far as the state is concerned. It is an obligation on the state. It cannot be that I as a state can decide to grant or deny you the status.”

To which, the AG clarified, “The choice part is given to each citizen, but a higher status is given to the minority, therefore I say it enables them to reach a level beyond the other common considerations.”

This was followed by another question from Justice Khanna, that if tomorrow another Law akin to the UGC Act is enacted, requiring schools to be only established if registration is done under the Act, would that dilute the right under Article 30 and the choice it grants

The AG answered, "The Constitution provides for an overarching framework, so the statutes come in and say these are what you will do, that is the setup and a class of the institution. Article 30 comes in at a point in time when the competence part of it is answered. Within the broader constitutional framework, my choice is unfettered”

To Say That Right To Establish Minority Institutions Is Conditional Upon Statutory Recognition Is An Overboard Argument - Expresses CJI

The Chief Justice, pointing to the submissions of the AG on how only an enabling provision or statutory framework could help realise the rights under Article 30, remarked

“Your argument if stretched will apply to every institution, that unless there is an enabling provision you cannot set up any educational institution in India, can't even set up a primary school... The article 30 right is contingent on an enabling provision of the legislation recognising that right in the statutory term... the problem about your argument is that once you say that the right under Article 30 is contingent upon an enabling legal framework, that will apply to every right or matter of choice”

The AG countered this by submitting that it was important for any class of educational institution to have legal competence even though an educational institution is of a minority character under Article 30. He exemplified this by saying that several states have come up with university legislation like in Karnataka where private universities can also be set up under the state legislation. He stressed that the competence quotient of the institution needed to be fulfilled, “either the legislature intervenes, or the law intervenes and gives competence”.

The issue was further dissected by the CJI in noting that while there is no doubt that rights granted under Article 30 are contingent upon compliance with regulatory frameworks dealing with resources, recognition of degrees etc and that all educational institutions including those of the minorities are required to maintain the national standard of quality, it would be 'overboard' to say that the right to establish a minority institution is solely contingent upon recognition by an enabling legislation.

“ There cannot be a doubt that Article 30 is contingent on compliance with regulatory provisions; 2nd even minority institutions do not fall below the national standard. But can the right to establish a minority institution itself be contingent on the recognition by enabling statute? That argument seems to be overbroad.”

In interpreting so, the CJI opined, “ You will be making a constitutional right subservient to the statute.”

On the Issue of Recognition - MR Shamshad submits

Before hearing the AG, the bench heard the arguments of Advocate MR Shamshad in favour of AMU's minority status.

CJI asked the lawyer, "Can a minority institution say that when I establish a university, you must necessarily recognize my right to confer degrees to that university without the provisions of the enabling statute?".

Shamshad replied that the regulatory provisions have to be complied with even by a minority institution. 

During the second half of the day, the bench heard the arguments of Solicitor General of India Tushar Mehta (separate story can be read here).

 The bench is hearing a reference arising out of 2006 verdict of the Allahabad High Court which held that AMU was not a minority institution. In 2019, a 3-judge bench of the Supreme Court referred the issue to a 7-judge bench. One of the issues which arise in the case is 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 (5-judge bench) which rejected minority status of AMU and the 1981 amendment to the AMU Act, which accorded minority status to the University, also arise in the reference.

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

Reports of previous hearings :

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

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

Article 30 Not Intended To Ghettoise Minorities, Minority Institution Can Include Others In Administration: Supreme Court In AMU Case Hearing [Day 3]

AMU Continued As Institution Of National Importance, Why Minority Status Important? Supreme Court Asks [Day 3]