New Delhi: Deferring the question of Aligarh Muslim University’s minority character to a regular three-judge bench, a Supreme Court Constitution Bench headed by Chief Justice D.Y. Chandrachud on Friday overruled the 1967 judgment which had held that an institution incorporated by a statute cannot claim to be a minority institution.
In a 4-3 majority ruling, the top court, however, laid down tests for deciding the minority character of an institution and held that a law or an executive order that discriminated against religious or linguistic minorities in establishing or administering educational institutions was ultra vires Article 30(1) of the Constitution.
Article 30 deals with the right of minorities to establish and administer educational institutions. Article 30(1) says that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
“The view taken in Azeez Basha (1967 verdict), that an educational institution is not established by a minority if it derives its legal character through a statute, is overruled,” the CJI, who wrote the 118-page verdict, also on behalf of Justices Sanjiv Khanna, J.B. Pardiwala and Manoj Misra, said.
A five-judge Constitution Bench in the S. Azeez Basha vs Union of India in 1967 had said that AMU was a Central university and could not be considered a minority institution.
“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,” the apex court ruled.
CJI Chandrachud held that religious or linguistic minorities must prove that they established the educational institution for the community to be a minority educational institution for the purposes of Article 30(1).
“The right guaranteed by Article 30(1) is applicable to universities established before the commencement of the Constitution,” Justice Chandrachud said.
While reading out the majority verdict, the CJI outlined the factors which must be used to determine if a minority has “established” an educational institution.
The question whether AMU was a minority institution must be decided based on the principles laid down in the judgment, it said. The top court directed that all judicial records of the case be placed before a regular bench, after receiving instructions from the CJI on the administrative side, for deciding the minority issue and adjudicating appeals against a 2006 verdict of the Allahabad high court which struck down a provision of the 1981 law according minority status to AMU.
The majority verdict also held that the 1981 reference by a two-judge bench, that questioned the correctness of the 1967 verdict and referred the matter to a seven-judge bench, was valid.
The three who wrote dissenting judgments are Justices Surya Kant, Dipankar Datta and Satish Chandra Sharma.
While Justice Kant said the 1981 reference for reconsideration of the 1967 decision was “bad in law and ought to be set aside”, Justice Datta, in his 88-page opinion, declared AMU not to be a minority educational institution.
In his separate 102-page verdict, Justice Kant said: “The reference by the two-judge bench in Anjuman (in 1981) is nothing but a challenge to the authority of the Chief Justice of India being the master of the roster and in derogation of the special powers enjoyed under Article 145 of the Constitution.”
“I am left to wonder how the bench of two judges in Anjuman-e-Rahmania could at all request that the case be placed before a bench of at least seven judges,” Justice Datta said. “I am afraid, tomorrow, a bench of two judges, referring to the opinions of jurists, could well doubt the ‘basic structure’ doctrine and request the Chief Justice of India to constitute a bench of 15 judges,” he added.
“First, AMU is a creature of a statute and is engaged in discharging public duties. By passage of time, AMU happens to be one of the foremost Central universities in the country. It is, however, entirely dependent on finances allocated by the Central government. It is mandatorily required to function as per the AMU Act as well as provisions of other enactments. There can, thus, be no doubt that AMU is an Article 12 authority. Being an Article 12 authority, it is bound by all the articles in Part III of the Constitution which impose a duty upon it inter alia to ensure equality and fairness in all its actions, including Article 29(2),” Justice Datta said.
In the present context, Justice Datta said, Article 30(1) cannot be divorced from Article 29(2). “The scope of ‘choice’ of the minority as in Article 30(1), if at all it has established AMU, could diminish for an institution such as AMU, for it is always subject to the constitutional provisions and the enactment that has created it. Whatever the Constitution as well as the AMU Act now provides or could provide in future, would represent the will of the people of India, and not the will of the minority. It, therefore, admits of no doubt that in administrative, functional and financial matters, the control of AMU vests in assigned entities not designated by the minority community,” Justice Datta said.
In a 193-page judgment, Justice Sharma said the two-judge bench could not have referred the matter to a bench of seven judges directly without the CJI being a part of the bench. “To assume that minorities of the country require some ‘safe
Haven’ for attaining education and knowledge is wholly incorrect,” Justice Sharma said.
Highlighting that the country’s minorities had not only joined the mainstream but also were an important facet of it, Justice Sharma said: “The institutions of national character of the country always serve the interests of the minorities and are diverse centres of learning.”
The apex court had on February 12, 2019 referred to a seven-judge bench the contentious issue and a similar reference was made in 1981 previously.
The top educational institution, however, got back its minority status when Parliament passed the AMU (Amendment) Act in 1981. The Congress-led UPA government at the Centre moved in appeal against the high court’s 2006 verdict, apart from the university filing a separate petition against it.
The BJP-led NDA government informed the Supreme Court in 2016 that it would withdraw the appeal filed by the erstwhile UPA government. It had cited the 1967 judgment in the Basha case to claim that AMU was not a minority institution since it was a Central university funded by the government.
