SC paves way for AMU to be declared minority institution

The Supreme Court on Friday paved the way for declaring the Aligarh Muslim University (AMU) a minority institution as it overruled its 1967 five-judge Bench verdict in the S Azeez Basha case that had taken away the AMU's minority tag.

By 4:3 majority, a seven-judge Bench led by CJI DY Chandrachud said the 1967 verdict was wrong in holding that an educational institution can claim 'minority’ status only if it is 'established' and 'administered' by a minority community.

The majority verdict was delivered by CJI DY Chandrachud (for himself, Justice Sanjiv Khanna, Justice JB Pardiwala and Justice Manoj Misra) while Justice Surya Kant, Justice Dipankar Datta and Justice SC Sharma delivered separate dissenting verdicts.

The verdict sets a judicial precedent for a similar legal battle over the status for the Jamia Millia Islamia University, which was declared a minority institution during the UPA government in 2011. In a minority institution, SCs, STs and OBCs do not get reservation in admission.

In the S Azeez Basha case, the top court had declared that the AMU was not a minority institution.

Overruling the Azeez Basha verdict, the majority verdict held that an institution will not lose its minority status merely because it was created by a statute and that the court must examine who was the "brain" behind establishing it.

“If that enquiry is pointing towards the minority community, then the institution can claim minority status as per Article 30,” the CJI said, pronouncing the majority verdict on his last working day.

Maintaining that the words 'incorporation' and 'establishment' can’t be used interchangeably, the majority ruled that merely because the AMU was incorporated by an imperial legislation would not mean that it was not 'established' by a minority.

“It can’t be argued that the university was established by Parliament merely because the statute says it was passed to establish the university. Such a formalistic reading will defeat the objectives of Article 30. Formalism must give way to actuality,” the CJI held.

An institution will not cease to be a minority institute merely because the government regulates it by bringing in a law, the CJI said, adding the government can regulate minority educational institutions as long as it does not infringe the minority character of such institutes.

"We have held that to be a minority institution, it only had to be established by the minority and not necessarily be administered by the minority members. Minority institutions may wish to emphasise secular education and for that minority members are not needed in administration," the CJI said.

The majority ruled that Article 30 of the Constitution -- which confers fundamental right on religious and linguistic minorities to establish and administer educational institutions -- applied even to institutions established by minorities before the Constitution came into force on January 26, 1950.

"Article 30 shall stand diluted if it applies only to institutes which have been established after the Constitution came into force,” the CJI said.

After laying down the broad guidelines for deciding minority status of an educational institution under Article 30 of the Constitution, the majority directed that the specific case on the minority status of the AMU be placed before the CJI for being placed before an appropriate Bench for adjudication.

The question with regard to the minority status of the AMU must be decided on the basis of the tests laid down in the present case, the majority said.

The minority (Justice Kant, Justice Datta and Justice Sharma) ruled that a two-judge Bench could not have directly referred the matter to a seven-judge Bench. While Justice Datta declared that the AMU was not a minority institution under Article 30, Justice Sharma said, “To assume that minorities of the country require a safe haven to pursue education is incorrect and minorities are a part of the mainstream now partaking in equal opportunities."

In 1857, Sir Syed Ahmad Khan established Mohammedan Anglo-Oriental College and in 1920, the AMU Act was enacted by the Central Legislative Assembly during the British Raj, dissolving Mohammedan Anglo-Oriental (MAO) College and incorporating it as a central university.

After Independence, Parliament passed the AMU (Amendment) Act, 1951, to do away with compulsory instruction in Muslim theology and membership of the AMU court was opened to non-Muslims.

In 1966, the AMU Act was further amended and the amendment was challenged before the top court by S Azeez Basha. In 1967, a five-judge Constitution Bench dismissed the challenge by holding that AMU was not a minority institution as it was established by an Act of Parliament and had not been set up by Muslims.

In 2004, the AMU reserved 50% seats in PG medical courses for Muslims which was declared unconstitutional by the Allahabad High court in 2006 on the basis of the top court’s ruling in the Azeez Basha case, leading to the present litigation.

In 2016, the NDA government decided to withdraw its appeal against the Allahabad HC verdict and the then Attorney General Mukul Rohatgi told the top court that the AMU was not a minority institution. On February 12, 2019, the SC had referred the issue to a seven-judge Constitution Bench.