AMU Minority Status | Day 2: Purpose of minority institutions is to impart quality education, argue petitioners

Dhavan: Azeez Bhasha contradicts itself 

Dhavan argued that the Azeez Basha judgement was “no longer good in law.” Azeez Basha held that religious minorities are permitted to establish a university under Article 30, and the degrees awarded by such universities are deemed valid if recognised under a statute. However, it also stated that the minute a minority institution came under the ambit of a statute, it would lose its minority status. If this 1967 judgement were to be followed, AMU’s minority status would have been lost with the Aligarh Muslim University Act, 1920 (AMU Act). Dhavan criticised the judgement for presenting a contradiction—where minorities are given the right to establish religious institutions but are immediately deprived of that minority character once a statute recognises their degrees.

Dhavan highlighted a second point of contradiction in Azeez Basha. In this judgement, he said, the Court recognised that the institution was established by members of the Muslim community, but held that AMU’s origins and administration was rooted in legislation made by parliament and not by a Muslim minority. In his written submissions, Dhavan highlighted that Azeez Basha acknowledged the establishment of the Muhammadan Anglo-Oriental College (MAO). Moreover, it recognised that the conversion of MAO into AMU was also initiated by the Muslim community using funds raised by the Muslim community. Dhavan contended that the consequence of Azeez Basha would restrict every minority institution from being recognised within Article 30.

With this, Dhavan pivoted towards the question of who “established” AMU, a key consideration in Article 30, as it relates to the right of a minority to “establish” and “administer” an educational institution. The meaning of these two words forms a major part of the seven-judge reference. Later in the hearing, Sibal elaborated on this point in further detail.  

Dhavan: Azeez Basha contrary to other decisions

Dhavan then argued that Azeez Basha was “superseded” by other decisions, namely, T.M.A. Pai Foundation v State of Karnataka (2002). In T.M.A. Pai, an 11-judge Bench held that the religious character of an institution cannot be stripped down by government interventions. However, it clarified that reasonable interventions can be put in place to regulate minority institutions. 

Dhavan then referred to a string of cases decided before T.M.A. Pai, namely, State of Kerala v Very Rev. Mother Provincial (1970), Ahmedabad St. Xavier’s College Society v State of Gujarat (1974), and St. Stephen’s College v University of Delhi (1992). He contended that all these cases were upheld in the T.M.A. Pai decision. 

In Mother Provincial, six judges gave an expansive definition of “establish” under Article 30. In Dhavan’s written submissions he explained that Azeez Basha narrowly interpreted this word. 

St. Stephen dealt with minority institutions established before the Constitution of India came into force. Here, a five-judge bench held that minority rights under Article 30 are not lost under statutory regulations. 

Dhavan also relied on In Re Kerala Education Bill, 1957 (1959), a decision preceding Azeez Basha, which held that minority institutions do not lose their status if they accept state aid and permit “outsiders” in its administration. This contention was upheld in T.M.A. Pai in 2002. Further, the submissions also stated that Azeez Basha did not consider Sidhajbhai Sabhai v State of Bombay (1963). 

Dhavan argued that Azeez Basha was bad in law in light of these decisions.  

Sibal: Article 30 facilitated quality education for minorities

Sibal described Article 30 as a provision of reservation for minorities not belonging to the SC/ST/OBC/EWS community. He emphasised that institutions established without the benefits of Article 30 could potentially lead to violations of Article 15, which guarantees the right against discrimination. Somberly Sibal asked, “What is the right that a minority has today?” 

He highlighted that the establishment of AMU was rooted in the objective of offering quality education specifically to Muslims. Referring to discussions around the Aligarh Muslim University Draft Bill, he argued that the university aimed to provide “liberal education” exclusively to Muslims. This point, he claimed, was not considered in the Azeez Basha case.

Sibal pointed out that the absence of recognition under Article 30 could have a detrimental impact on career prospects for the Muslim community. He asserted that degrees play a crucial role in enabling individuals to join the workforce. The denial of reservation to the minority community, as AMU is not considered a minority institution, results in fewer degrees and job opportunities for that community. According to Sibal, AMU only wishes to provide reservation, while other aspects continue to be regulated under central legislations to maintain a uniform standard of education.

Sibal: Minority institution can choose to administer itself as it deems fit 

Article 30 allows religious and linguistic minorities to “establish” and “administer” institutions of their choice. Sibal clarified that an institution under Article 30 could only be established by a minority. They have a wide choice in its administration, which means that they can choose to have it be administered by someone outside the minority community as well. Moreover, if the government intervenes in the administration, the institution has the choice to accept it. Sibal emphasised that this choice is vested only with the institution, and they retain the right to challenge government interventions under Article 30. 

Sibal stated that the petitioners in Azeez Basha incorrectly argued the question of “established” and “administered,” leading to the current reference. In Azeez Basha, the focus was more on who “administered” the university rather than who “established” it he said, adding that the term “established” by religious minorities plays a crucial role in determining the status of the institution.  

Presumably, Sibal was pointing out that administration by non-members of a community does not mean that minorities have relinquished their control. He remarked that denying this right to institutions makes Article 30 lose its purpose. “Might as well get rid of Article 30, why have it at all?” he dryly asked. 

Arguments are expected to continue tomorrow (11 January 2024) at 10:30 AM.