New Delhi: Can an educational institution lose its linguistic or religious minority status because it derives its legal character through a law?
No, held the Supreme Court Friday. A seven-judge bench of the top court led by Chief Justice D.Y. Chandrachud overruled its 1967 judgment that ruled otherwise in the case of Aligarh Muslim University (AMU).
The court directed that the AMU’s minority status be decided again based on the principles in this verdict and also laid down broad parameters based on which fresh assessment would be made to determine the character of AMU. For now, it is a minority institution.
By 4:3 majority, the bench said incorporation by way of a statute is a legal requirement.
A legislation grants power to the educational institution to confer degrees and does not tantamount to its establishment. Therefore, compliance with legal requirements does not dilute the minority character of an institution. Determination of a minority character is not a rigid concept, the top court said, advocating a “holistic and expansive” interpretation of the term minority.
In doing so, it laid down additional parameters to identify an institution as a minority, besides declaring there shall be no distinction between institutions/universities established prior or after the commencement of the Constitution when it comes to extending benefits under Article 30(1) of the Constitution.
Significantly, in delineating the purpose behind Article 30, the top court said it was not solely restricted to enabling religious minorities to impart religious instruction. The Article extends to secular education as well and, therefore, the State cannot discriminate in granting aid to such educational institutions on the ground that it is under the management of a religious or linguistic minority.
The SC judgment came on a reference made to a larger bench in 2019, which was with regard to the minority character of AMU. The moot question that was under consideration was whether the 1967 decision of the Supreme Court in the Azeez Basha case was the correct law.
CJI Chandrachud authored the majority opinion on behalf of justices Sanjiv Khanna, J.B. Pardiwala and Manoj Mishra. While Justices Surya Kant, Dipankar Datta and S.C. Sharma dissented. Justice Datta was the only judge who categorically declared AMU as not a minority institution. Justices Kant and Sharma focused more on procedural illegalities made in referring the matter to a larger bench.
The Azeez Basha judgment had pronounced AMU to be a non-minority institution, withdrawing all its rights under Article 30(1) of the Constitution, because it was established through a central imperial legislation. While interpreting Article 30(1) of the Constitution, the judgment essentially said that to enjoy minority status an education institution should be both established and administered by a minority or linguistic community.
Article 30 of the Constitution deals with the rights of minorities to establish and administer educational institutions. It guarantees minorities the right of greater autonomy in the administration of educational institutions and devise a model of education which best serves the interests of the community. Such institutions are exempted from reserving seats for SCs/STs or OBCs.
Article 30(1) says “all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice”. Article 30(2) states “the state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language”.
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Reference not made to ascertain minority status
Answering the reference, the top court clarified that the question of law placed before it did not require this 7-judges bench to determine whether AMU is a minority institution or not. Rather, it needed the larger bench to respond to a question that was framed way back in the T.M.A. Pai judgment and that was to identify the “indicia for an institution to be a minority education institution to which the rights in Article 30 would apply”.
The 2002 T.M.A. Pai judgment prescribed the extent to which the State can regulate minority education institutions.
In fact, the court Friday pointed out that the question around what factors should determine the minority status of an institution was first raised in 1981 by the Supreme Court in the Anjuman-e- Rahmania decision. There it questioned the correctness of the Azeez Basha judgment and had then referred the matter to a larger bench. Despite framing the question arising from the reference, the T.M.A. Pai judgment did not adjudicate upon it.
Meanwhile, the Congress government at the Centre in 1981 amended the AMU Act to restore the University’s minority status. Years later, in 2004, AMU reserved 50 percent of the seats for Muslim candidates. The proposal was accepted by the Union of India, following which proceedings were initiated before the Allahabad High Court, challenging the constitutional validity of the reservation policy.
In 2006, the HC quashed the 1981 amendment to the AMU Act, and while relying upon Azeez Basha judgment, held the central university was not entitled to protection under Article 30(1). The amendment, it said, did not take away the basis for the decision in Azeez Basha case and moreover the Muslim community willingly surrendered the right to administer the University to statutory bodies.
Both AMU and Centre (then headed by the Congress-led UPA) approached the top court against the 2006 HC. On their appeal, SC stayed the HC’s findings, thereby reviving AMU’s minority status. Significantly, the Centre withdrew its appeal when the BJP came to power and came out in support of the Azeez Basha judgment, while raising doubts over amendments to the AMU Act.
In 2019, a three-judges bench led by then Chief Justice Ranjan Gogoi noticed that the correctness of the law arising in Azeez Basha decision remained unanswered and it, therefore, went on to refer it to the larger bench.
While responding to the reference, SC Friday said a regular bench would determine AMU’s minority character based on the principles it has outlined in its judgment. The hearing would not start afresh with both sides placing their contentions all over again.
Petitioners vs respondents
According to the petitioners, Azeez Basha is no longer “good law” because it failed to recognise that the words ‘establish’ and ‘administer’ in Article 30(1) are not preconditions to define a minority but the consequential rights that flow from such a recognition. It’s restrictive interpretation of the word ‘establish’ in Article 30(1) is contrary to the expansive view adopted by subsequent judgments.
Moreover, the decision has been superseded by subsequent decisions like T.M.A. Pai (supra), which emphasised that the religious character of an institution cannot be stripped down by government interventions.
Further, according to them, the assumption that universities lose their minority status when recognised by a statute is in conflict with the right of minorities to establish educational institutions.
Also, it argued Indian secularism model allows state involvement in religious activities without compromising their character.
Respondents broadly favoured the Azeez Basha judgment, arguing AMU was established by Parliament. The British government mandated that AMU should not be a religious institution and this affirmed that AMU was established by statute, not by the minority community.
Concerns were raised about the potential misuse of minority status without a strict standard of actual establishment. They said the words “establish” and “administer” should be read conjunctively and further expressed apprehensions about an over-expansive interpretation of the constitutional provisions.
State cannot discriminate, can regulate
Article 30, court held, provides that the State shall not discriminate in granting aid to educational institutions or discriminate on the ground that it is under the management of a religious or linguistic minority.
Protection of rights under Article 30 was not intended to just enable religious or linguistic minorities to impart religious instruction, but the ambit of the said Article extends to secular education as well, the court said.
Minorities may wish to impart secular and religious instruction side by side. They may even do so in a manner that is conducive to the practice of their religion or harmonious with it, even if religious instruction does not form part of the curriculum, the judgment explained.
The purpose of Article 30(1) is to guarantee a ‘special right’ to religious and linguistic minorities that have established educational institutions. This special right is the guarantee of limited State regulation in the administration of the institution.
This regulation, SC said, must be relevant to the purpose of granting recognition or aid, as the case may be. Article 30 does not prescribe conditions which must be fulfilled for an educational institution to be considered a minority educational institution, it added.
Regulation can cover prerequisites such as registration with the competent authority etc. It is only upon compliance with these requirements that the institution assumes the legal form mandated by the regulatory provisions of the law.
Minority status not surrendered because of statute
The guarantee and protection under Article 30, SC held, are not dependent on the basis or the manner in which the legal requirements were/are complied with.
Instead, it concerns the persons who have founded and created the establishment. To give a legal character to an educational institution through state or sovereign action does not deprive the group of individuals of the protection guaranteed to them under Article 30(1), the court held.
Incorporation by a statute or the procedure and requirements in law are not the determinative factors. But the persons behind it, that is, the promoters and founders are important. They should belong to a linguistic and religious minority, the court said.
Display of religious symbols or existence of place of worship in the precincts of the institution are not necessary indicators of the minority character.
The court, SC said, must consider the genesis of the educational institution. For this, the courts must trace the origin of the idea for the establishment of the institution, 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,” the court said.
As for the purpose for its establishment, the court said 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.
SC said the court must trace 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,” the judgment said.
Other important questions to be looked into are who took the steps necessary for establishing the institution such as obtaining the relevant permissions, constructing the buildings, and arranging other infrastructure.
Grant of state aid in terms of money and land would not affect the minority character of the institution if it was done so after the establishment.
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.
Court said it is “not necessary to prove that the administration vests with the minority”. But the administrative structure must reflect the institution’s minority character.
Contribution by other communities does not disrupt minority status of the institution, it added.
No distinction between institutions set-up before or after Constitution
There was no need for the claimant to prove that they were a linguistic or religious minority when the institution was established and not when the Constitution commenced, the court declared, in response to an argument that Muslims were not minorities in the pre-independence era.
Also, Article 30 protection was equally available to Universities established by those who could not do so even before the Constitution was adopted. The court rejected the respondents’ stand that a university started by a person who did not have the power to “establish” it before the enactment of the UGC Act is not entitled to Article 30 protection.
“The minority character of institutions cannot be rejected if they were conferred a legal character by a statute enacted prior to 1950. The enactment was necessary to award degrees recognized by the British government, allowing graduates to gain degree recognition and secure employment. The enactment of the statute is a ministerial and a legislative act, which confers juristic personality as well as legal rights in terms of the law in force,” said the court.
The words establishment and incorporation cannot be interchangeably used as the two connote different meanings, it said.
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AMU birthed the idea of Pakistan. The political leadership provided by AMU resulted in the Partition and creation of Pakistan.
The Centre would do well to shut down the university as it’s continued existence poses a serious threat to the integrity and sovereignty of the Indian nation.