AMU's minority status: Decoding Supreme Court verdict
Sajid Bukhari & Khalid Ali
On 08 November 2024, seven Judges bench of the Supreme Court pronounced its much-awaited judgement on the issue of the minority status of the Aligarh Muslim University. The issue for determination before the bench was to examine the correctness of the judgement of Aziz Basha v Union of India wherein the AMU was denied its minority status on the ground that AMU cannot claim to be established by Muslims since it was created by a statute.
In this landmark judgement, the ruling of Aziz Basha has been overruled. This decision has also answered most of the queries pertaining to minority institutions and has laid down detailed conditions for an educational institution to qualify for protection under Article 30.
Article 30(1) of the Constitution grants religious and lingual minorities the right to establish and administer educational institutions of their choice but does not specify any criteria for determining the minority status of an institution. The recent judgement has fulfilled the lacuna which was wanted for a long time. All the queries answered in this judgment are based on the case study of AMU but the Supreme Court while dealing with these queries gave general answers that could be applied in other similar cases as well.
When the NDA government headed by BJP came to power, it filed an affidavit in the Supreme Court stating that it does not recognise the minority status of AMU. Before 2016, the Union of India was contesting in favour of it. The case of Union, mainly argued by Mr Tushar Mehta, Solicitor General of India, was on the ground that Azeez Basha correctly decided against AMU. Union argued that in 1920 the leadership of Muslims to get the status of university, surrendered the Muslim character of the institution and the amendments in 1951 affirmed that AMU was established by statute, not by the minority community. Respondents further took a plea in the argument that AMU was established before the commencement of the constitution and is an institution of ‘national’ importance and thus cannot be a minority institution.
None of these submissions were accepted by the Supreme Court. On the question of surrendering minority character to get the university status, the Supreme Court accepted the argument of AMU that the minority status of the institution is not ipso facto surrendered upon the incorporation of the University. It is pertinent to mention that the case of AMU was mainly represented by Senior advocates Rajeev Dhavan, Kapil Sibal, Salman Khurshid and MR Shamshad followed by Adv. Shadan Farasat and Adv. MR Shamshad. Answering the issue, of whether an institution is considered a minority if established before the commencement of the constitution, the Supreme Court rejected any distinction between educational institutions established before and after the commencement for the purposes of Article 30(1). It observed that Article 30 will stand diluted and weakened if it is to only apply prospectively to institutions established after the commencement of the Constitution.
The submission of the respondents that a person did not have the power to ‘establish’ a university before the enactment of the UGC Act is also rejected. Supreme strictly held that for the determination of the minority tag of an institution, the circumstances during the time of its establishment would be considered not the circumstances at the time of the commencement of the constitution or after. Supreme Court while dealing with the question of whether the inclusion of a university as an institution of ‘national’ importance amounts to an abrogation of its minority character held that declaration of an institution as one of national importance does not amount to a change in the minority character of the institution.
The most significant part of this judgment is the departure from the formalistic approach of Azeez Basha that, ignoring all the tireless efforts of Sir Syed and the Muslim community in doing everything they could, had concluded that AMU was not “established” by the Muslim minority but rather by the Central Legislature through the AMU Act of 1920. This interpretation was based on a narrow reading of “establish” in Article 30(1) as “bringing into existence,”. Opinion in Azeez Basha also rejected the argument that the administration of AMU has been vested in the minority community citing various provisions of the AMU Act.
Discarding the narrow interpretation of the word ‘establish’, the Supreme Court has laid down that the words used in Clause (1) of Article 30 have to be interpreted in view of the object and purpose of the article, and the guarantee and protection it confers. The Judgement emphasizes that “establishment” should not be narrowly equated with statutory incorporation and distinguishes between incorporation – a legislative act granting legal status and establishment, which refers to founding or initiating an institution. It highlights that incorporation serves as a procedural mechanism, not as a determinant of an institution’s minority status.
The Court argues that Azeez Basha overlooked the context of Article 30(1), intended to protect institutions founded by minorities for their community’s advancement, regardless of later legal formalities. While laying down the indicia for deciding the minority status of an institute, the majority opinion has stressed that the real test to determine the minority status of an institution is whether the minority community established the institution or not, and held that administration of the institution is a corollary to the establishment i.e. under Article 30(1) once an institution has been established by the minority community, the community invariably gets the right to administer it. The majority opinion clarified that administration is a consequence and not a prerequisite for a minority institution.
After this historic decision, there is a need to correct the Allahabad High Court judgment on AMU that relying on Azeez Basha declared a few provisions of the AMU Act of 1981 unconstitutional disputing AMU Minority status again in 2006. It is pertinent to mention that the 1981 Act restored AMU's minority status by bringing some significant changes to the original Act. Now when Azeez Basha is gone so is the subsequent judgement of Allahabad High Court, thus AMU in today’s date retains its tag of minority institution.
Though the determination of the minority status of AMU has been left to be decided by the regular bench, the criteria or the indicia that have been laid down to determine the minority status of an institution is the most significant part of this judgement. The Supreme Court has provided that to determine whether an institution is a minority institution or not, the court needs to take into consideration who established the institution, and further clarified that the enquiry on the question of ‘establishment’ must relate to the date when the institution was established and not at the commencement of the constitution. Further, the Court must identify who was the brain behind the establishment of the educational institution. To find the answers to these questions court may consider letters, correspondence with other members of the community or with government/State officials and resolutions issued could also be valid proof for establishing ideation or the impetus to find and establish. The proof of ideation must point towards one member of the minority or a group from the community.
The other important indicia is to see the purpose behind the establishment of such an institution, the Supreme Court observed that the purpose behind the establishment of such an institution doesn't need to be the benefit only of the community that established it but it must predominantly be for its benefit. Finally, it is to be seen 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. If these conditions are fulfilled by an institution, such an institution deserves the legal status of being a minority institution.
As this judgment was 4:3, the majority opinion was authored by then Chief Justice of India, DY Chandurchud. Whereas the Justices Surya Kant, Dipankar Datta, and Satish Chandra Sharma have authored their separate opinions dissenting the majority, particularly around the procedural and substantive aspects of Anjuman-e-Rahmania and Azeez Basha. Justice Kant first addressed procedural legitimacy, deeming the reference in Anjuman-e-Rahmania flawed but upholding the validity of the 2019 reference in AMU v. Naresh Aggarwal & Ors. Justice Kant revisited and modified Azeez Basha, dissenting a few parts of it which concluded that even though the Muslim community contributed to the AMU Act of 1920, this does not automatically establish AMU as a minority institution. To claim Article 30 protections, he argues, the institution must satisfy a “conjunctive test” of being both established and administered by a minority community. Whereas Justice Dutta differs in his assessment, questioning the need for further bench scrutiny of AMU’s minority status as the issue has already been settled for a long time. Finding both references flawed, Justice Dutta concludes that AMU was neither established nor administered by a minority community and therefore does not qualify for Article 30 protections.
Justice Sharma opined that an institution must indeed be both established and administered by a minority community to qualify as a minority institution. Contrary to the restrictive interpretation in Azeez Basha, he maintains that Article 30 was intended not to create isolated minority spaces but to ensure integration and equity within mainstream educational settings. Thus, AMU’s inclusive status aligns with the broader purpose of Article 30, supporting minority rights without segregating educational institutions
If the history of AMU is scrutinised in the light of these indicia, AMU makes a strong case for the minority status. Sir Syed Ahmed Khan led door to door campaign, literally begging Muslims to help establish a university for the Muslim community. On the question of the purpose of the institution, Sir Syed’s vision was to enlighten the Muslim community by imparting religious and modern education at the same time. He wanted Muslims to excel in both fields. After the death of Sir Syed, the leaders of the Aligarh movement such as Aftab Ahmed Khan, Mohsin Ul Mulk, Theodre Beck along with others took forward his mission to establish a Muslim University, for this they set up Sir Syed Memorial Fund and initiated dialogue with the government.
On the demand of the government Muslims collectively collected the reserve fund of rupees Thirty Lakhs, today this value is more than Rs 500 crore. Subsequently in 1920 through an Act of Parliament, Aligarh Muslim University was established. AMU fulfils every indicia and condition laid down in this judgement to qualify for the Minority status. Tara Chand, a famous historian of modern India rightly remarked, “It will be the falsification of the history of India if it is asserted from any quarter that the Aligarh Muslim University was not established by the Muslims and primarily for the educational advancement of the Muslims of India."
The factual backgrounds and the indicia laid down weigh heavily in favour of AMU, though the final determination of the minority status of AMU remains to be adjudicated by the regular bench. However, considering the exhaustive arguments addressed on this very issue by both sides, it would have been better, had the Supreme Court decided the issue of the minority status of AMU in this judgement only.
Sajid Bukhari, a law graduate from Aligarh Muslim University, currently practising at Jammu and Kashmir and Ladakh High Court. Khalid Ali, a law graduate from Aligarh Muslim University, currently practising at the Supreme Court of India.
