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ALIGARH MUSLIM UNIVERSITY VS NARESH AGARWAL: SUPREME COURT FORMULATES INDICIA FOR DETERMINING MINORITY NATURE OF INSTITUTIONS

The Supreme Court in Aligarh Muslim University Vs. Naresh Agarwal ( Civil Appeal No. 2286 of 2006 ) overruled Azeez Basha Vs. Union of India  1968 SCR (1) 833 and formulated  indicia for determining minority nature of an institution.

FACTS OF THE CASE

Muhammadan Anglo Oriental College was established in 1877 which was affiliated to Calcutta University and later Allahabad University. The Imperial Legislature passed the Aligarh University Act, 1920 which established and incorporated Aligarh Muslim University (AMU). AMU Act was amended in 1951 and 1965. These amendments were challenged before the Supreme Court in S Azeez Basha which was upheld on the ground that religious minorities do not have the right to administer educational institutions which were not established by them, even if they were administering them for some reason before the commencement of the Constitution.

Subsequently, the AMU framed policy reserving 50% seats for Muslims. Reservation Policy was challenged before the Allhahabad High Court in Dr. Naresh Agarwal Vs Union of India  wherein the single judge declared the policy unconstitutional relying on Azeez Basha. The decision of sigle bench was upheld by division bench.

The Supreme Court while hearing appeal found difference of opinion in Azeez Basha and Anjuman-e- Rahmania  Vs. District Inspector of Schools  and referred the matter to a seven-judge Bench.

FINDINGS OF THE SUPREME COURT

The Supreme Court observed that the purpose of Article 30 (1) is to ensure that the State does not discriminate against religious and linguistic minorities which seek to establish and administer educational institutions. The Purpose of Article 30 (1) is also to guarantee a “special right” to religious and linguistic minorities that have established educational institutions. This special right is the guarantee of limited state regulation in the administration of the institution. The State must grant the minority institution sufficient autonomy to enable it, to protect the essentials of its minority character. The regulation of the State must be relevant to the purpose of granting recognition or aid as the case may be. The special or additional protection is guaranteed to ensure the protection of the cultural fabric or religious and linguistic minorities.

The Supreme Court observed  that it is settled law that right to  “establish and administer” has to be read conjunctively. The special right that the provision guarantees to religious and linguistic minorities relates to the administration of educational institutions “of their choice. The expression “of their choice” is of an expansive nature indicating that the choice extends to the full range of educational institutions.

The Supreme Court observed that a distinction between educational institutions established before and after the commencement of the Constitution cannot be made for the purposes of Article 30 (1). Article 30 will stand diluted and weakened if it is only to apply prospectively to institutions established after the commencement of the Constitution. The protection and guarantee, if made applicable to only institutions after the commencement of the Constitution would debase and defile the object and purpose of the Act. Article 372 read with Article 13 (1) stipulates the laws which pre-date the Constitution are unconstitutional if they contravene the Fundamental Rights. The Provisions do not stipulate that laws which pre-date the Constitution cannot receive the additional protection which the Fundamental Rights offer. Right to administration in Article 30 (1) is one such protection.

The Supreme Court observed that teaching universities and colleges serve the common function of educating students. No distinction between the two can be drawn for the purposes of Article 30 (1) which guarantees minorities the right of greater autonomy in the administration of educational institutions to create a model of education which best serves the interests of the community.  The word establishment and incorporation cannot be interchangeably used. They connote different meanings. The former refers to founding an institution, which in the case of teaching colleges that were converted to universities would refer to any person or community who undertook the efforts to establish the teaching college.

The Supreme Court observed that the incorporation of the University would not ipso factor lead to surrendering of the minority character of the institution. The circumstances surrounding the conversion of a teaching college to a teaching university must be viewed to identify if the minority character of the institution was surrendered upon the conversion. The Court may on a holistic reading of the Statutory provisions relating to the administrative set-up of the educational institution deduced if the minority character or the purpose of establishment was relinquished upon incorporation.

The Supreme Court rejected the argument that minority nature of an institution has to be tested a the time of establishment in pre-independent India. The status of the group/community had to be tested on the date of commencement of the constitution.

The Supreme Court overruled  Azeez Basha wherein it has been held that an educational institution is not established by minority if it derives its legal character though a statute. The Supreme Court delineated  following factors which have to be considered for determination of minority character of an institution –  

(i) The indicia of ideation, purpose and implementation must be satisfied. First, the idea for establishing and educational institution must have stemmed from a person or group belonging to the minority community; second the educational institution must be established predominantly for the benefit of minority community; and third steps for implementation of idea must have been taken by the member(s) of the minority community;

(ii) The administrative-set up of the educational institution must elucidate and affirm   the minority character of the educational institution and that it was established to protect and promote the interests of the minority community.

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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

Mukesh Kumar Suman

Mukesh Kumar Suman

Mukesh Kumar Suman is an advocate based at Delhi. He has rich experience in civil, criminal, commercial, arbitration and corporate insolvency matters. He regularly appears before District Courts, NCLT, NCLAT, High Court and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.

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