AMU Minority Status | Judgement Summary

Majority upholds reference by two-judge bench

In Anjuman-e-Rahmaniya v District Inspector of Schools (1981), a two-judge bench of the Supreme Court had directed Azeez Basha to be reconsidered by a seven-judge bench. It had also referred the question of determining the “ingredients” of a minority institution to the larger bench. 

The Union government had argued that the reference to the seven-judge bench was “wholly bad in law”. It argued that the two-judge bench should have referred the matter to a five-judge bench as Azeez Basha was decided by five-judges. They contended that only a bench of five-judges had the authority to refer the case to a seven-judge bench and that the two-judge bench in Anjuman-e-Rahmaniya deviated from the procedure. In support of this contention, the e Union relied on Central Board of Dawoodi Bohra Community v State of Maharashtra (2004), which held that the correctness of a view taken by a larger bench can only be doubted by a bench of equal strength.

CJI Chandrachud’s majority opinion held that the reference in Anjuman-e-Rahmaniya fell within the “permissible limits laid down” in Central Board of Dawoodi Bohra Community, as it only “doubted” the correctness and did not “disagree” with it. 

Justice Kant, in his dissent, observed that a reference by a two-judge bench “is not consistent with the established norms of judicial propriety.” He observed that the two-judge bench “not only referred the matter but also specified the numerical strength of the bench.” If this practice was made acceptable, a smaller bench could potentially doubt a decision delivered by an eleven-judge bench.

“This would also place the Chief Justice in an untenable position, who would be bound by a judicial order while acting in an administrative role, leading to procedural complications and embarrassment.”

He also observed that the terms “doubt” and “disagree” carry similar connotations as “a disagreement would originate only when such opinion is shrouded with doubts on law or on facts”. However, Justice Kant upheld a subsequent reference order issued in 2019 by former Chief Justice Ranjan Gogoi in a three-judge bench. He noted that a smaller bench could refer a case to a larger bench if it contains the Chief Justice. 

Justice Datta observed that although the seven-judge bench was constituted by CJI Gogoi’s 2019 reference order, it had “roots in an order…passed by a bench of 2 (two) Judges” in Anjuman-e-Rahmaniya. He stated that Anjuman-e-Rahmaniya was flawed and the case was “hardly related” to the minority character of AMU. Additionally, Azeez Basha was binding on the smaller bench and that the reference was a “breach of judicial propriety and discipline.”

“I am afraid, tomorrow, a bench of 2 (two) Judges…could well doubt the ‘basic structure’ doctrine and request the Chief Justice of India to constitute a bench of 15 (fifteen) Judges”

Justice Sharma agreed with Justice Kant’s view that even as the reference in Anjuman-e-Rahmaniya was not appropriate, the second reference approved by the CJI Gogoi-led bench was valid. 

Article 30 applicable to institutions established pre-Constitution

Senior Advocate Rakesh Dwivedi had argued that a ‘University’ could only be established by the colonial government before independence. Therefore, a claim under Article 30 cannot be made as AMU was established before the commencement of the Constitution. Moreover, the community also had to prove that they were a minority group at the time of establishing the institution. CJI Chandrachud observed that a distinction cannot be made between institutions established before and after the Constitution.

“The protection and guarantee, if made applicable to only institutions established after the commencement of the Constitution, would debase and defile the object and purpose of the provision (Article 30)”

He relied on Article 372 which stated that laws predating the Constitution will continue to remain in force as long as they are consistent with the fundamental rights found under Part III. This also meant that laws that came into force prior to the Constitution will receive additional protections offered by the fundamental rights. Consequently, he held that educational institutions established by religious and linguistic minorities before the commencement of the Constitution will receive additional special protection guaranteed by Article 30(1).

Justice Kant noted that fundamental rights cannot be exercised retrospectively, however, their enforcement was applicable to instances that occurred before the Constitution and continued after it. For instance, practices that prevailed before 1950 could be struck down if they did not align with the constitutional ethos. Agreeing with CJI Chandrachud, Justice Kant observed that it would be “absurd and legally unjust” to suggest that a claim under Article 30 cannot be made as it did not exist before the Constitution. Justice Datta also observed that an institution established by a religious or linguistic minority would be entitled to the “protection envisaged under Article 30(1).” Justice Sharma affirmed the same by relying on the seven-judge bench decision in In re the Kerala Education Bill which held that “There is no reason why the benefit of Article 30(1) should be limited only to educational institutions established after the commencement of the Constitution. The language employed in Article 30(1) is wide enough to cover both pre-Constitution and post-Constitution institutions”.

Article 30 applicable to establish a ‘University’

In colonial India, the “intervention” of the imperial government was necessary to incorporate a university. Similarly, before the enactment of the University Grants Commission Act, a state legislature had to intervene for the incorporation. CJI Chandrachud wrote that these interventions were necessary because the degree would be recognised by the Union or imperial government. The petitioners had argued that the intervention of a government while incorporating a university gave no power to a person to establish a university. The Union had also argued that AMU was not a minority institution because it was established by law-makers through legislation. 

Citing the Oxford Dictionary, CJI Chandrachud held that the words “incorporation” and “establishment” connote different meanings:

“Incorporation signifies the legal existence of the institution. In contrast, ‘establishment’ signifies the founding or bringing into existence of the institution” 

He observed that often there are instances where colleges are converted into teaching universities. He gave the example of Annamalai University, which was initially a college that was converted to a university through the Annamalai University Act, 1928. AMU had gone through a similar trajectory where Mohammedan Anglo-Oriental (MAO) College was converted to a university through the passing of the AMU Act in 1920. Therefore, in the instance of Annamalai University, the ‘establishment’ and ‘incorporation’ took place at different stages. Making this distinction, he held that ‘establish’ cannot be used in a legalistic sense, stating that ‘incorporation’ is not a determining factor to assess establishment. According to CJI Chandrachud, what mattered was the identity and motivation of the persons behind it (“the promoters and founder(s) are important”). 

Justice Datta observed that although MAO College was a minority institution, its character cannot be extended to AMU. Notably, he pointed out that unlike AMU, the Annamalai University Act had recognised the contributions of its founder and the preceding institution. The AMU Act was “woefully bereft of the same or similar recognition” within its Preamble. He referred to two universities—Era University and Sam Higginbottom University of Agriculture, Technology and Sciences—which expressed their minority character in the preamble of the incorporating statutes. 

CJI Chandrachud then held that granting a legal character to an educational institution does not deprive it of its rights under Article 30. There is no distinction between universities and other institutions such as schools and colleges. Further, Article 30(1) states that a minority has the right to establish and administer an “educational institution of their choice.”

Solicitor General Tushar Mehta had argued that MAO College surrendered its minority character when it was incorporated as AMU. CJI Chandrachud, expressly stating that the factual matrix of AMU was not considered, held that a minority institution “cannot be rejected if they were conferred a legal character by a statute enacted prior to 1950”. The enactment was a “ministerial and a legislative act” as it was necessary for degrees to be recognised by the imperial government.

“…we will not accept the argument that compliance with legal requirement would tantamount to the ‘establishment’ of an institution by the Legislature”

Justice Kant observed that Azeez Basha also recognised that ‘educational institutions’ under Article 30 has a wide import and would also include universities. However, he pointed out that a particular section of Azeez Basha, which held that AMU could not have been brought into existence by a private individual as the degree was recognised by the government, was incorrect. Private individuals, including members of the minority community, can establish universities with degrees recognised by the government. Justice Sharma observed that Azeez Basha does not preclude minorities from establishing a university. The notion that the judgement prohibited minorities was “unfounded”, he noted . Azeez Basha, he said, dealt with a unique situation where a community demanded minority status of an institution that was established “by the Legislative Council during the British period.” 

Majority lays down the indicia for a minority institution 

CJI Chandrachud’s majority opinion laid down the following factors as indicators to determine whether an institution is a minority institution: 

1. Establishment: Courts must trace the origin of the idea for the establishment. The courts must identify who was the brain behind the establishment of the institution. The ideation should point towards one person belonging to the minority community. 
2. Purpose of establishment: The establishment must predominantly be for the benefit of the religious or linguistic minority. It is not necessary that the educational institution was established only for that community. The indicia can be proved by references to communications necessitating the establishment of the institution for a specific community. 
3. Implementation: The courts can rely on information such as who contributed the funds in the establishment of the institution, who purchased the lands or whether the land was donated by a person of the minority community. Other aspects that can be considered include who obtained relevant permissions, and constructed the buildings and the infrastructure. If state funds or aid was provided to the institution, it would be necessary to check if the aid was provided after establishment. If yes, then the minority character would not be changed. 
4. Administration: Administration is a consequence and not a pre-condition to determine the minority character. The administrative set up may be according to the wishes of the person who established the institution. The test would be to determine whether the administrative structure affirms the minority character of the institution. In instances where the institution was established before the Constitution, the administrative character would be evaluated on the basis of the date the Constitution came into force. 

After narrowing down the “main indicia”, CJI Chandrachud wrote that “there can be no straitjacket formula which may be applied” and that the indicia should be considered along with any relevant facts. Further, the indicia must be proved through “cogent material” with reliance on primacy office documents, letters, resolutions or memorandums. 

Justice Kant, in his dissent, laid down indicia to determine both ‘establishment’ and ‘administration’ of the institution. His factors tracked the ones identified by CJI Chandrachud. However, he also touched upon factors for determining where an institution is not administered by a minority group. 

1. The administration is not answerable to the founders or an external person has a veto over the selection of the administrative set-up. Notably, the Union had argued that the veto power of AMU was with the Governor-General in British India and the President in independent India. 
2. There are outside authorities in the governing body with wider powers than other members. Further, they do not have a say in the appointment of the Vice Chancellor, Pro-Vice-Chancellor, Registrar etc.
3. The community has no role in determining the fee structure of the institution 
4. The community has neither the final say over administration nor the medium of instruction or the right to choose the governing body and teachers. 
5. The institution depends entirely on government aid

“If the long-term administrative factors and the day-to-day sundry decisions do not lie with the community, it would mean that the institution is being administered by an outside authority and not by the minority community.”

Justice Datta observed that the concept of minority was totally absent in colonial India and therefore the indicia for determining a minority institution established post-Constitution cannot be extended to pre-Constitution institutions. He also disagreed with CJI Chandrachud’s opinion stating that it would be “inherently contradictory” to grant minority status to AMU by proposing that “establishment” was the only criteria. While CJI Chandrachud did not make any assessment on the minority status of AMU, Justice Datta’s opinion seemed to suggest that the indicia proposed by the Chief falls directly in AMU’s favour. This was also buttressed by Justice Datta stating that it was only a “matter of time” till AMU was granted the minority status as per the principles laid down by the majority. He accepted the Union’s argument that AMU relinquished its minority status as it prioritised the establishment of a university at the expense of being unable to administer it. He held that the Muslim community had no intention to administer AMU as per the AMU Act. 

Justice Sharma also disagreed with the majority’s view to conflate “establishment” with the “genesis of the institution”. He observed that the “establishment” must be carried out in its entirety by the minority community. Even if the community conceptualised the idea, the institution cannot be considered to be a minority institution if there is primacy of government efforts and control. Further, the administration must be vested with the minority too. He agreed with Justice Kant’s indicia to determine the administrative set-up of the institution.

Recognition as an institution of ‘national importance’ has no bearing on minority character 

Entry 63 of the Union List states that Benares Hindu University, AMU and Delhi University are ‘institutes of national importance’. Parliament can also declare other institutions as institutes of national importance. Respondents had argued that AMU was not a minority institution as it was included within Entry 63 right from the start, when the Constitution was enacted. This argument was rejected by the majority opinion. CJI Chandrachud observed that nothing prevented a minority institution from being an institution of national importance.

“The qualities denoted by the terms ‘national’ and ‘minority’ are not at odds with each other nor are they mutually exclusive.”

Justice Kant’s opinion added that Parliament only has plenary power to recognise other institutes of national importance. It does not have the authority to take away the recognition granted to institutes such as AMU, BHU, and DU. Any alteration to its status would be through a constitutional amendment. 

Justice Datta held that the inclusion of AMU in Entry 63 was sufficient to indicate that it was not a minority institution. He agreed that institutions which have a minority character can be categorised as an institute of “national importance” but they will “never reach” the “elevated” and “unique status” of AMU because of its constitutional recognition.

Further, he observed that the national character of any institution requires it to be under the Union government’s control, and that the institution “cannot be subordinated to the control of any minority community” as the government’s funding is vital for the institution’s existence. He also warned that granting control of AMU to the minority community can terminate the Union’s control over the institution if it conceded the right to close down AMU. He added that the status of AMU can only be altered through a constitutional as opposed to statutory amendment.