A seven-judge bench of Supreme Court on Friday overruled by a four-to-three majority a 1967 judgment by a five-judge bench in Azeez Basha case, which had declared that Aligarh Muslim University (AMU) was not a minority institution as it was established by govt in 1920 and not by the minority community.
Without determining whether AMU is a minority institution or not, Friday's majority opinion penned by CJI D Y Chandrachud, for himself, CJI-designate Sanjiv Khanna and Justices J B Pardiwala and Manoj Misra laid down elaborate indicia (parameters) for testing the minority character of an institution and tasked a regular bench with adjudicating the 57-year-old controversy based on the parameters.
The CJI said one of the key criteria for classifying an educational institution as a minority one was its establishment by a minority community for its members. Mere change of character of a college into a university through an Act of Parliament wouldn't negate its minority status, he said.
CJI: No minority tag if a community cedes institute’s administration after setting it upThis finding will favour the petitioners in placing their proposition that AMU is a minority educational institution.
Elaborating on the components of action to prove that an institution was established by the minority community to get the protection under Article 30(1) of the Constitution, the CJI said, "The indicia of ideation, purpose and implementation must be satisfied. First, the idea for establishing an educational institution must have stemmed from a person or group belonging to the minority community.
"Second, the educational institution must be established predominantly for the benefit of the minority community; and third, steps for implementation of the idea must have been taken by the member(s) of the minority community."
Article 30(1) states, "All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice." After stipulating criteria for proving establishment of an educational institution by a minority community, the CJI turned to the requirements under ‘establish'.
"The administrative set-up of the educational institution must elucidate and affirm (i) the minority character of the educational institution; and (ii) that it was established to protect and promote the interests of the minority community," he said. If a minority community relinquishes administration of an educational institution after establishing it, the same cannot get minority tag, the CJI said.
The majority opinion said Article 30(1) was a non-discriminatory provision guaranteeing special rights to minority communities to establish and administer educational institutions., with which no law could interfere.
"Additionally, a linguistic or religious minority which has established an educational institution receives the guarantee of greater autonomy in administration. This is the ‘special rights' reading of the provision," it added.
The majority opinion said ‘minority tag' and consequential constitutional rights were available even to institutions established before 1950, when the Constitution came into force.
Incorporation of Muhammadan Anglo-Oriental College, established in 1877, into Aligarh Muslim University in 1920 was argued by the govt as a major reason behind the institution losing its minority tag. The Act was amended in 1951 and 1965, both of which were upheld by the SC's five-judge bench in 1967.
Based on the 1967 judgment, Allahabad HC in 2005 had struck down reservation for Muslim students in AMU. This was challenged in the SC by AMU along with a bunch of other Muslim petitioners and Islamic organisations.
Countering the reasoning of Basha judgment, the majority opinion said, "Incorporation of the university would not ipso facto lead to surrendering of the minority character of the institution. The circumstances surrounding the conversion of a teaching college to a teaching university must be viewed to identify if the minority character of the institution was surrendered upon the conversion.
"The court may on a holistic reading of the statutory provisions relating to the administrative set-up of the educational institution deduce if the minority character or the purpose of establishment was relinquished upon incorporation."
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