Is AMU a minority institution? Roots of 6-decade-old dispute & why it’s come up in SC again

A 7-judge bench led by CJI Chandrachud is revisiting 1967 ruling that AMU is not minority institution. Current case stems from appeal against Allahabad HC’s 2006 ruling.

Student Union Hall, Aligarh Muslim University | Commons

New Delhi: Is one of India’s oldest seats of learning, the Aligarh Muslim University (AMU), a minority institution? That’s the nearly six-decade-old question that the Supreme Court is preparing to answer as its seven-judge bench led by Chief Justice of India (CJI) D.Y. Chandrachud hears the university’s challenge to a 2006 Allahabad High Court ruling that denies it the minority status. 

While doing so, the Supreme Court will also revisit its 1967 ruling that rejects the British-era university’s argument that it’s protected under Article 30 of the Constitution and declares that it’s not a minority institution. 

Under Article 30 (1), minorities are given special rights to establish and administer educational institutions. Article 30 (2), meanwhile, restricts the government from discriminating against minority institutions regardless of religion or language.

In 2019, a three-judge bench of the Supreme Court referred the AMU’s appeal to a seven-judge bench judge. 

In his written contention against the AMU’s claim earlier this month, Solicitor General of India Tushar Mehta said that the core question is that of ‘indicia’ — or, distinctive signs or markings — of a minority institution in India. According to him, there are no such distinctive criteria for minority institutions.  

ThePrint has accessed this written submission, which was made before the Supreme Court.

In his submission, Mehta also argued that the Supreme Court had, contrary to the AMU’s claims, determined in its 1967 ruling in S. Azeez Basha and Another vs Union Of India — known simply as the Basha case — that the university is not a minority one. 

He also said that this particular case was a reference and not an appeal. For context, an appeal is made to the higher court on the points of facts and laws. Reference is made to the higher court on the points of the law.

Here’s everything you want to know about the case. 

AMU controversy & 1967 Basha ruling  

Aligarh Muslim University is one of Uttar Pradesh’s six central universities. The controversy over its status has its genesis in its establishment.  

Founded as Muhammadan Anglo-Oriental College in 1875 by Sir Syed Ahmad Khan to help the Muslims overcome backwardness, it gained recognition as a university through the Aligarh Muslim University Act, 1920. 

Between 1951 and 1965, a series of amendments were made to the act in a bid to not only align the university to constitutional provisions, but to also change its governance structure.

For instance, one of the most significant changes made to the act was to replace ‘Governor General’ with ‘The President of India’ as the ‘Visitor’  — the authority who’s generally mandated to oversee its functioning.

The amendments in 1965 also reduced the power of the university’s court — its supreme governing body — and gave greater power to the executive council, thus making the former a body whose members are nominated by the ‘Visitor’. 

These amendments, especially those from 1965, were challenged in the Supreme Court, with the petitioners contending that the changes violated their right to administer and establish educational institutions under Article 30.

The apex court rejected these arguments , in the Basha case, saying that the AMU wasn’t an institution that was either established or managed by the Muslims.

“It may be that the 1920 Act was passed as a result of the efforts of the Muslim minority. But that does not mean that the Aligarh University when it came into being under the 1920 Act was established by the Muslim minority,” the court had then said, even though it referred the question of what is a minority institution to a larger bench. 

That ruling led to protests, prompting the Indira Gandhi government to redefine the word  ‘University’ under the act — through an amendment in 1981, the term was retrospectively redefined to mean “the educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh, and which was subsequently incorporated as the Aligarh Muslim University”.

That amendment also introduced a section that specifically empowered the AMU to promote the educational and cultural advancement of the Muslims.

AMU’s reservation policy, challenge in HC

Meanwhile, the reference from the Basha case involving the question of what is a minority institution was eventually taken up by an 11-judge SC bench in T.M.A.Pai Foundation & Others vs State Of Karnataka & Others.

However, even though this bench decided the scope of the right of minorities to establish and administer educational institutions of their choice under Article 30(1), it failed to answer the key question of the criteria that make an institution a minority one. 

In 2005, the AMU implemented a reservation policy of 50 percent seats for Muslims in its postgraduate courses. This was challenged in the Allahabad High Court, with non-Muslim petitioners arguing that the AMU was not a minority institution according to the Basha decision and that it could not reserve seats. 

On the other hand, the Union government and the AMU defended the reservation policy by arguing that the Basha decision was overridden by the 1981 amendment, which had declared AMU as a minority institution. 

However, in January 2006, the HC rejected these arguments and overturned the reservation policy, also nullifying the 1981 amendment in the process. 

It’s this decision that is currently facing challenge in the Supreme Court. In April 2006, after both the university and the United Progressive Alliance government challenged the decision, the Supreme Court imposed a stay on the AMU’s reservation policy but left the question of the university’s status for a larger bench to decide. 

In 2016, even before the question could be decided, the Narendra Modi-led National Democratic Alliance, which was voted to power in 2014, told the court it was withdrawing its petition, leaving the AMU to fight the case alone.

Then on 12 February 2019, a three-judge bench led by the then CJI Ranjan Gogoi referred the case to a seven-judge bench. It reasoned that while ordinary judicial discipline required the case to be heard by a five-judge bench, the background of this case required a seven-judge bench.

Akshat Jain is a student of the National Law University, Delhi, and an intern with ThePrint.

(Edited by Uttara Ramaswamy)