Aligarh Muslim University: Minority status not lost merely because institution was created by statute: Supreme Court

New Delhi: The Supreme Court on Friday held that the minority status of an institution is not lost merely because it was created by a statute.

A Seven-Judge constitution bench headed by Chief Justice of India (CJI) D Y Chandrachud was hearing whether the Aligarh Muslim University (AMU) enjoys minority status under Article 30 of the Constitution, which empowers religious and linguistic minorities to establish and administer educational institutions.

The Supreme Court, by a 4:3 majority, overruled its 1967 decision, which held that Aligarh Muslim University cannot claim minority status as it was created by a statute.

The issue of AMU minority status is now left to be decided by a regular bench, which will determine whether it was 'established' by a minority.

The CJI wrote the majority judgment. Justices Surya Kant, Dipankar Datta, and SC Sharma dissented.

Justice Surya Kant said, "It is crucial to determine whether the reference was only to determine whether an institution is a minority or not. In my opinion, the reference was not in accordance with established norms of judicial propriety."

Justice Chandrachud said that the Anjuman A. Rehmania or TMA Pai cases did not deal with whether AMU is a minority institution or not. What are the criteria for an institution to be considered a minority under Article 30A?’ the CJI said.

He said that Solicitor General (SG) Tushar Mehta stated that the union was not pressing the preliminary objection that a reference cannot be made to seven judges.

"It cannot be disputed that Article 30 guarantees minorities to not be discriminated against. The question is, Does it have a special right along with a right to non-discrimination?" CJI said.

Justice Chandrachud said that an educational institution established by any citizen can be regulated under Article 19(6).

This court has maintained that the right under Article 30 is not absolute. Regulation of minority educational institutions is permitted under 19(6), provided it does not infringe on the minority character of the institute, the CJI said.

He further said that Article 30(1) cannot extend to a situation where a minority community establishes an institute but has no intention to administer it. The ones that want greater state control cannot have a minority tag merely because of establishment, and this can be done by way of waiver.

Justice Chandrachud said that Article 30 shall stand diluted if it applies to only institutes that have been established after the constitution came into force. Thus, educational institutions established by minorities that were established before the constitution came into force will also be governed by Article 30.

The CJI said that there were universities that were teaching colleges, and the process of converting teaching colleges to teaching universities is a process of forming an educational institution, and thus it cannot be seen this narrowly.

It cannot be stated that an institute is formed by law just because the preamble of the act says so. Fundamental rights will be made subservient to statutory language, and formalism must give way to actuality. The court has to consider the genesis of the institute, and the court must see who was the brain behind the establishment of the institution. It has to be seen who got funds for the land and if the minority community helped.

Justice Chandrachud observed that valid proof of ideation of the minority community to establish the institution can be done from letters of communication and other materials.

The CJI said that indicia can be proven by private communication and speeches relating to the struggles of the minority community. It is not necessary to prove that the administration rests with the minority to prove the institution to be a minority institution. It is not necessary that the purpose of a minority can be implemented only if the persons of the minority administer the institution, he said.

Justice Chandrachud said that the institution must satisfy the test of minority institutions on the date of the coming of the constitution.

The CJI said that the office documents, memorandums, secondary sources etc can be used to prove the minority status.

He said that the view in Azeez Basha that minority character stops when statute comes into force is Overruled. Whether AMU is a minority or not will be decided as per this judgement.

The papers are to be placed before the CJI for constituting a bench to decide the issue and correctness of the 2006 Allahabad High Court judgement.

Justice Surya Kant dissented and said we have differed on some significant aspects. We do not appreciate how a two-judge bench in the Anjuman order refers a matter to a seven-judge bench; a two judge bench cannot dictate the CJI for the reference.

Justice Kant further said, “We conclude in holding that it is the CJI alone which is the custodian of public authority to place matters before the benches. We have held that the pre-constitutional institutions are also entitled to protection under Article 30. appellants locus cannot be dismissed on this basis.”

He held that the rights of the minority community can also be exercised by a few individuals from the community . He also held that it is necessary for the institution to be brought into existence by the minority community and run for the benefit of the community.

While the mentioned reference was considered by an 11-judge bench along with T.M.A. Pai Foundation vs. State of Karnataka, the Bench opted not to address the question, stating that it would be handled by the Regular Bench. Subsequently, the regular bench also refrained from providing an answer to the said question.

The crux of Article 30 is to prevent any preferential treatment for minorities and thus give equal treatment for all. To assume that minorities of the country require a safe haven to pursue education is incorrect. Minorities are very much a part of the mainstream now partaking in equal opportunities, Justice Kant held.

The 7-judge bench was formed as a consequence of a reference order passed by a 3-judge bench headed by the then CJI Ranjan Gogoi in 2019.

The reference occurred while hearing an appeal against the 2006 Allahabad High Court's Judgement. In fact the matter was re-referred.

The Apex Court had made two attempts at deliberating upon the issue.

Between the 1967 Supreme Court ruling and the 2006 Allahabad High Court judgement, there is a Supreme Court directive from 1981 (in Anjuman-e-Rahmania Vs. District Inspector of School), where the matter addressed in the Basha Judgement was forwarded to a Seven-Judge Bench.

Basha Judgement referred to "What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or it was administered by a person(s) belonging to a religious or linguistic minority?"

Senior Advocates Dr Rajeev Dhavan and Kapil Sibal represented the AMU and the AMU Old Boys' Association.

Senior Advocates Salman Khurshid, Shadan Farasat appeared on behalf of intervenors.

The Union of India was represented by the Attorney General R Venkataramani as well as the Solicitor General Tushar Mehta.

Other senior advocates including Neeraj Kishan Kaul, Guru Krishna Kumar, Vinay Navare, Yatinder Singh, Vikramjit Banerjee (ASG) and KM Nataraj (ASG) also appeared on behalf of respondents and intervenors.