AMU Minority Status | Judgement Pronouncement: Supreme Court overrules Azeez Basha

Is the reference to a seven-judge bench legally tenable? 

CJI Chandrachud first examined whether the two-judge bench in Anjuman-e-Rahmaniya v District Inspector of School (1981) had the authority to refer the minority status to a seven-judge bench, despite Azeez Basha being decided by a five-judge bench. The Union had argued that this referral was invalid, as the two-judge bench was bound by the prior ruling in Azeez Basha. CJI Chandrachud cited Central Board of Dawoodi Bohra Community v State of Maharashtra (2005), which allows smaller benches to “doubt” but not “disagree” with decisions of larger benches, thus permitting them to request the Chief Justice for referral to a larger bench. He concluded that Anjuman-e-Rahmaniya had not disagreed with Azeez Basha but only doubted it. Thus, the reference was valid. 

Justice Surya Kant disagreed, noting that there is minimal difference between “doubting” and “disagreeing” with a decision. He held that Anjuman-e-Rahmaniya lacked the authority to refer the matter directly, thereby undermining the Chief Justice’s role as “master of the roster.”  Justice Sharma agreed with the view on the illegality of the reference order. However, Justice Kant affirmed the 2019 referral by a three-judge bench led by former Chief Justice Ranjan Gogoi.

Justice Datta also expressed concerns about allowing smaller benches to escalate cases without sufficient authority, warning that such a precedent could lead, for example, to a two-judge bench questioning the Basic Structure Doctrine by referring it to a 15-judge bench. He even described the 2019 reference as illegal as it was based upon Anjuman-e-Rahmaniya. 

Indicators of a minority institution under Article 30 

Speaking for the majority, CJI Chandrachud referred to T.M.A Pai v State of Karnataka (2002), where the right of every citizen to establish and administer institutions was traced to Article 19(1)(g), which grants freedom to engage in any occupation, trade, or business. He observed that regulating a minority institution is similarly permissible under Article 19(6) but added that the “regulation must not infringe the minority character of the educational institution.” Any restriction infringing on this minority character, he noted, would violate Article 30. Following this observation, he outlined the “indicia for a minority institution.”

First, he explained that the terms “incorporation” and “establishment” cannot be used interchangeably. “Incorporation” signifies legal existence, whereas “establishment” signifies the founding of the institution. Notably, the preamble of the Aligarh Muslim University Act, 1920 states that it was passed to “establish and incorporate” AMU. “It cannot be argued that a university was established by Parliament merely because the long title and preamble of the statute incorporating the university states that it is an Act to establish and incorporate,” the Chief said.

He then laid down three tests to determine minority status. The first test is to trace the genesis of the institution. This involves identifying the “origin of the idea of the establishment” and other preliminary sources indicating a minority community member’s involvement in the institution’s ideation. 

The second test is to determine the purpose of establishing the institution. The Chief observed that it need not be primarily for the benefit of the religious or linguistic community, nor is it necessary for the education provided to be “in the language spoken by the minority or on the religion of the minority.” 

Lastly, the third test was to examine the steps taken to implement the establishment, such as who provided the funds, land, etc.

On the aspect of administration, he explained: “It is not necessary to prove that administration vests with the minority to prove that it is a minority educational institution.” Administration, he said, follows the establishment and is therefore a consequence, not a precondition. Therefore, the test is whether the administration affirms the minority character of the institution. 

Even for institutions established before the Constitution, the Court must determine if the institution was established to further the interests of the minority community. Justice Kant, however, observed that Article 30 consciously uses “and” instead of “or”; thus, “established and administered” must be read conjunctively. Any other interpretation, he countered, would “read down” the constitutional provision. After narrowing down the indicia, the Chief held that Azeez Basha erred in concluding that an educational institution is not established by a minority if it derives its legal character from a statute. 

Justice Kant agreed that Azeez Basha incorrectly determined that a university loses its minority status if its degree is recognised by the government. He stated that a university’s minority character should not be denied merely because it was created through legislative means. However, he suggested that the ratio can be modified instead of being overruled. In contrast, Justice Sharma observed that Azeez Basha does not prevent minorities from establishing a university but emphasises the importance of considering legislative intent and statutory provisions when determining an institution’s character.

Justice Datta held that the indicia should apply prospectively, not retrospectively. This would mean institutions established before this judgement should not be assessed based on the indicia provided in the CJI’s majority view. According to him, there was an “implied indicia” for determining minority institutions in the past, which the Court is now replacing with an express indicia. Notably, he  stated that AMU was not a minority institution, though CJI Chandrachud and Justice Kant’s opinions did not address this point, leaving it to be decided by a smaller bench. 

Article 30 to apply on both pre-and post-Constitution era institutions 

CJI Chandrachud observed that limiting Article 30’s application to institutions established only after the Constitution’s commencement would “dilute and weaken” its intent. He clarified that Article 30 applies to institutions established before the Constitution as well. During the arguments, respondents contended that the concept of “minority” did not exist in the colonial era, implying that AMU could not claim minority status. However, CJI Chandrachud held that pre-Constitution institutions are entitled to this right. Justice Kant concurred on this point. Justice Sharma, however, observed that there were no rights before the Constitution came into force.