ALIGARH MUSLIM UNIVERSITY versus NARESH AGARWAL & ORS.

Summary

A seven-Judge Bench, by a 4:3 majority, overruled the view in S. Azeez Basha v. Union of India that an educational institution is not established by a minority if it derives its legal character from a statute. The majority held that Article 30(1) protects universities and other institutions founded before the Constitution. Incorporation by statute does not by itself surrender minority character. Whether a minority established an institution turns on ideation, purpose and implementation, read with whether the administrative set-up affirms its minority character. Whether AMU is a minority institution was left to a regular Bench. Surya Kant, Dipankar Datta and Satish Chandra Sharma JJ. dissented in separate opinions.

Issues

1. Whether the 1981 reference in Anjuman-e-Rahmaniya by a two-Judge Bench, doubting a five-Judge decision and seeking a seven-Judge Bench, was valid.
2. What the purpose and scope of Article 30(1) are, and what the indicia are for treating an institution as a minority educational institution.
3. Whether Article 30(1) applies to universities founded before the Constitution, and whether incorporating such a university by statute surrenders its minority character.
4. Whether minority status for a pre-Constitution institution is judged at the date of its founding or at the commencement of the Constitution.
5. Whether inclusion of an institution in Entry 63 of List I as one of national importance, Prof. Yashpal v. State of Chhattisgarh, or the 2010 amendment to the NCMEI Act affects the inquiry.

Provisions considered

• Article 30(1), Constitution of IndiaThe majority read Article 30(1) as both an anti-discrimination guarantee and a special right of greater autonomy in administering institutions that minorities establish, subject to regulation that does not infringe minority character. It held that 'establish' must not be read in a narrow, legalistic sense. The persons who founded the institution matter, not the legal mode of its incorporation. (¶¶ 49, 50, 56, 57, 61, 62, 65, 71, 95, 160)
• Articles 13(1) and 372, Constitution of IndiaPre-Constitution laws continue only so far as they are consistent with Part III. The majority held that nothing prevents institutions that predate the Constitution from receiving the protection of fundamental rights. Pre-1950 minority institutions therefore receive the special protection of Article 30(1) from the commencement of the Constitution. (¶¶ 83, 84, 85, 86)
• Section 6 (recognition of degrees) and the long title and preamble ('establish and incorporate'), Aligarh Muslim University Act, 1920Azeez Basha had treated the statutory recognition of AMU's degrees under Section 6 as showing that the Central Legislature established AMU. The majority held that statutory incorporation, needed before 1950 for recognised degrees, does not show establishment by the legislature. The words 'establish and incorporate' in a long title are not decisive, and courts must look at the actual circumstances of founding. (¶¶ 98, 107, 109, 110, 111, 112, 116)
• Seventh Schedule, List I, Entry 63, Constitution of IndiaThe majority held that Entry 63 only allocates legislative competence. A declaration that an institution is of national importance does not change its minority character, because 'national' and 'minority' are not mutually exclusive. A contrary reading would make Article 30(1) subservient to Parliament's legislative power. (¶¶ 144, 145, 146, 147, 148)
• Sections 2(f), 3, 22 and 23, University Grants Commission Act, 1956Considered in rejecting the argument that no person could 'establish' a university before the UGC Act because universities had to be incorporated by legislation. The majority held that legislative incorporation was needed for recognised degrees, but establishment and incorporation are different things. Prof. Yashpal's reading of 'established or incorporated' in the UGC Act did not erase that distinction and has no bearing on Article 30. (¶¶ 89, 90, 93, 94, 96, 153)
• Section 2(g) (as amended in 2010) and Section 10, National Commission for Minority Educational Institutions Act, 2004The 2010 amendment removed the exclusion of universities and substituted 'established and administered' for 'established or maintained'. The majority held that a statutory definition cannot control the interpretation of Article 30(1). Section 10 prescribes the procedure for establishing minority institutions after 2006. (¶¶ 70, 154, 155, 156, 157)

Held

• The Anjuman-e-Rahmaniya reference was valid. Central Board of Dawoodi Bohra Community correctly states that a Bench of lesser strength cannot disagree with a larger Bench. It may, however, doubt that decision and ask the Chief Justice to place the matter before a larger Bench, which is what the two-Judge Bench did. The 2019 three-Judge order also validly sent the question to seven Judges. The dissenting Judges held that the 1981 reference was improper. (¶¶ 36, 37, 38, 39, 40, 160)
• Article 30(1) is both an anti-discrimination provision and a special rights provision. A law or executive action that discriminates against religious or linguistic minorities in establishing or administering educational institutions is ultra vires Article 30(1). An institution established by a minority is also guaranteed greater autonomy in administration. Regulation must relate to the purpose of recognition or aid and must not infringe the minority character. A minority institution may employ non-minority teachers and even a non-minority head. (¶¶ 56, 61, 62, 63, 64, 65, 160)
• Article 30(1) applies to educational institutions, including universities, founded before the Constitution. Teaching universities and colleges cannot be distinguished for this purpose. The argument that no person could 'establish' a university before the UGC Act is rejected, because 'establishment' (founding) and 'incorporation' (conferring legal existence) are different. (¶¶ 83, 86, 94, 95, 96, 160)
• Incorporating a university by statute does not by itself surrender its minority character. Recognition of degrees could not be granted on terms that require giving up a fundamental right. Azeez Basha overlooked In re Kerala Education Bill and Rev. Sidhajbhai Sabhai on this point. The court must look behind the statute, at the circumstances in which a teaching college became a university and at the statutory administrative set-up, to decide whether the minority character or purpose was given up. The view in Azeez Basha that an institution is not established by a minority if it derives its legal character from a statute is overruled. (¶¶ 98, 104, 105, 107, 110, 112, 140, 160, 161)
• Who established a pre-Constitution institution is decided by looking back to its founding. Whether the founders form a 'minority' is decided as at the commencement of the Constitution. A different right-bearing group cannot be identified for pre-Constitution institutions, and the tests of numerical strength or non-dominance at the time of founding are rejected. (¶¶ 119, 120, 121, 122, 134, 160)
• The indicia that a minority 'established' an institution are: (i) ideation, meaning the idea came from a member or group of the minority; (ii) purpose, meaning it was set up predominantly, though not solely, for the community's benefit; and (iii) implementation, meaning minority members took the steps to set it up, such as raising funds, obtaining land and permissions, and building. The administrative set-up must also affirm the minority character and the purpose of protecting and promoting the community's interests. State grants or contributions from others do not defeat the claim if the minority bore the core responsibility. The claimants must prove these indicia from primary sources. (¶¶ 135, 136, 137, 139, 141, 142, 143, 160)
• Neither a religious place of worship nor religious symbols on campus are essential to minority character. Minority institutions may give purely secular education and admit students from other communities. (¶¶ 128, 129, 130, 131, 132, 133)
• Being named in Entry 63 of List I, or declared an institution of national importance, does not take away an institution's minority character. Prof. Yashpal and the 2010 amendment to the NCMEI Act do not affect the interpretation of Article 30(1). The question of registration under the Societies Registration Act did not need to be answered. (¶¶ 148, 153, 157, 159)
• Three Judges dissented in separate opinions. Surya Kant J. held the Anjuman reference impermissible. He held that Article 30 requires both establishment and administration by the minority, assessed through de jure and de facto control, and he modified Azeez Basha only on its reasoning from Section 6. Dipankar Datta J. held both references incompetent, upheld Azeez Basha, and would have declared that AMU is not a minority institution. Satish Chandra Sharma J. held that 'establish' means to bring into existence through a predominant minority role, that administration must vest in the minority, and that Azeez Basha, read in its historical context, does not bar minority universities.

Result

Reference answered by majority. The view in Azeez Basha that an institution deriving its legal character from a statute is not established by a minority was overruled. Whether AMU is a minority educational institution, and the appeal against the Allahabad High Court's decision in Malay Shukla, are to be decided by a regular Bench applying these principles after directions from the Chief Justice on the administrative side.