Aligarh Muslim University v. Naresh Agarwal & Ors.

established by a minority? Should it be determined based on the time of establishment, the time of the commencement of the Constitution, or the time when the right was claimed.

119Copy pinpoint119. Before the commencement of the Constitution, there was no concept of minority institutions, both linguistic and religious. The guarantee and the protection given by the Constitution are applicable on the date when the Constitution was adopted. It is on this date that it must be determined if the right under Article 30 accrues. However, when the question of whether the educational institution was established by a linguistic or a religious minority arises, we will have to relate back to the point in time when the institution was established. It would be immaterial that back then the educational institution was not granted the status and treated as a linguistic or a religious minority institution. Thus, the details of the persons who had established the institution, though earlier in point of time, is relevant and determines the character of the institution. Such interpretation would do justice to Article 30(1) and not deny and rob minority educational institutions of constitutional guarantees.

120Copy pinpoint120. The question of whether they qualify as a ‘minority’ has to be answered with reference to the date of enforcement of the Constitution. The Constitution upon its adoption guaranteed fundamental rights to specific groups such as ‘persons’, ‘citizens’, ‘religious and linguistic minorities’, ‘women’, ‘the Scheduled Castes’ and ‘Scheduled Tribes’. These groups consist of such members as conceived by the Constitution. For example, Part II of the Constitution and provisions of the Citizenship Act 1955 enacted in pursuance of the power provided under Article 11 stipulate conditions for acquiring citizenship. Only those persons who satisfy the conditions prescribed can enforce the rights guaranteed to citizens as a class. Similarly, the President in exercise of the power under Article 341 may notify castes, tribes or groups that would be Scheduled Castes for the purposes of the Constitution.

121Copy pinpoint121. The only criteria that is prescribed for right-bearers under Article 30 is that they should be linguistic or a religious minorities. The courts have, however, specified what constitutes a minority. Chief Justice Kirpal, writing for the majority of the eleven-Judge Bench in TMA Pai (supra) observed that the minority must be determined

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based on the test of numerical minority within the State.103 If a group or community is required to prove that it was a religious or linguistic minority at the time of establishment of the institution (where the institution was established before the commencement of the Constitution), it would lead to a situation where the fundamental right is conferred upon a group other than the one intended by the Constitution. The demography of the Dominion of India underwent a drastic change upon partition. The Constitution, through Article 30(1), confers a right on those communities that were disadvantaged upon the commencement of the Constitution and not the group that was disadvantaged in pre-independent India.

122Copy pinpoint122. We reject the argument that the test of whether an educational institution is a minority institution must be examined based on whether the community or the group which had established the institution was a minority at the time of its establishment in pre-independent India. The purpose of the provision as highlighted in the preceding sections is to ensure that the minorities are able to preserve and promote their linguistic and religious culture. For this purpose, the status of the group/community, that had established the institution, on the date of commencement of the Constitution should be considered. The test of establishment will apply to future situations on the day when new educational institutions are established. The protection under clause (1) of Article 30 cannot be denied to institutions established before the commencement of the Constitution for the reason that at the time of establishment in pre-independent India, the founders were not aware that they would receive protection of Article 30(1).

123Copy pinpoint123. Having addressed the preliminary arguments on the applicability of Article 30, we will now proceed to formulate the indicia for the establishment of an educational institution.

v. Indicia for the ‘establishment’ of a minority educational institution

124Copy pinpoint124. In this section of the judgment, we will answer two questions: (i) the indicia for ‘establishment’ of a minority educational institution; and (ii) the burden and degree of proof required to prove ‘establishment’ of a minority educational institution.

103 TMA Pai (supra) [81]

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125Copy pinpoint125. In SK Patro (supra), the question before the Constitution Bench was whether Church Missionary Society Higher Secondary School was a minority educational institution. It was contended that the school was established by the Church Missionary Society, London and not the local residents of Bhagalpur. The Bench relied on the following evidence to conclude that the School was established by the local Christians: a. The correspondence and resolutions indicated that a permanent home for the Boys School was set up on property acquired by local Christians and in buildings erected from funds collected by them104 b. The institution and the land on which it was built and the balance in the local fund were handed over to the Church Missionary Society;105 and c. Though substantial assistance was obtained from the Church Missionary Society London, it could not be said that the school was not established by local residents only because of that.106

126Copy pinpoint126. In Mother Provincial (supra), this Court observed that the intention to found an institution for the benefit of the minority community must be present. In St. Stephen’s (supra), a Constitution Bench determined whether St. Stephen’s College is a minority educational institution. St Stephen’s College is a constituent college of Delhi University. The Bench held that the college was established by the Indian Christian community based on the following material: a. The purpose of establishing the educational institution emerged from the Report of 1878 to the Cambridge Brotherhood. The purpose of founding the college was to ensure that graduates from St. Stephen’s Mission School could be given the benefit of Christian teachings in college;107 b. The buildings depicted the Christian orientation of the college108

104 SK Patro (supra) [15] 105 ibid [15] 106 ibid [16] 107 St Stephen’s (supra) [30] 108 Ibid [31-32] Foundation stone has the inscription :”to the glory of god, and the advancement of sound, learning and religious education”; a cross was placed in the new building.

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c. The motto of the college is “Ad Dei Gloriam”, that is the glory of god;109 d. There is a chapel in the college campus, where religious instruction is imparted;110 e. The Constitution of the college reflects its Christian character. It states that the object of the college is, inter alia, to offer instruction on doctrines of Christianity,111 the original members of the society were mostly Christians,112 and the composition of the society reflects its Christian character where a large number of Christian members of the Church of North India are a part of it;113 and f. The Governing Body has a distinct christian character. The Supreme Council comprises of members of the Church of North India. Their role is to look after the religious and moral instruction to students.114 The administration vests with the Governing Body which predominantly consists of Christians. Though three of the thirteen members of the Governing Body may be non-Christians, that does not dilute the Christian character of the institution.

127Copy pinpoint127. The decisions in Mother Provincial (supra), SK Patro (supra) and St. Stephen’s (supra) emphasise that the indicia for establishment must elucidate the minority character of the educational institution. What is the meaning of the phrase ‘minority character’? Are special rights guaranteed by Article 30(1) only if educational institutions are established ‘for’ the minorities, towards the purpose of protecting minority interests? If yes, when can the courts be certain that the above two conditions are satisfied? That is, what are the ‘core essentials’ of minority character? We will answer this by referring to judicial decisions on four questions. Clarity over the essentials of the minority character will help us ascertain the indicia for ‘establishment’ of a minority educational institution.

109 ibid [33] 110 ibid [34] 111 Memorandum of the Society and Rules, Clause 2 112 Memorandum of the Society and Rules, Clause 4 113 ibid [35] 114 ibid [36]

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128Copy pinpoint128. The first question that arose in earlier cases was whether a minority educational institution must be established towards the conservation of the distinct language, script or culture of linguistic and religious minorities protected by Article 29(1). In Rev. Father W. Proost v. The State of Bihar,115 a Constitution Bench answered the question in the negative. The Bench held that Article 30(1) covers a minority educational institution which is established to conserve culture and language. However, that need not be the only purpose for the establishment of the institution. This Court held that the scope of Article 30(1) cannot be restricted by Article 29(1).116 In St. Xavier (supra), the majority of the nine-Judge Bench approved this interpretation.117

129Copy pinpoint129. The second question that arose in earlier decisions was whether an educational institution would retain its minority character even if non-minorities are admitted in it. Would a Muslim minority education institution retain its minority character when it admits students from other faiths in the institution? In re the Kerala Education Bill 1957 (supra), a seven-Judge Bench held that a minority educational institution would not lose its minority character by merely admitting students belonging to non-minorities and that the provision contemplates an institution with a ‘sprinkling of outsiders’.118 This position was further fortified in TMA Pai (supra). In TMA Pai (supra), Article 29(2) and Article 30(1) were read harmoniously to hold that Article 29(2) would apply to a limited extent to minority educational institutions as well.119 Thus, an aided minority educational institution

115 [1969] 2 SCR 73 116 Rev. Father W Proost v. State of Bihar [5J] [1969] 2 SCR 73 117 See footnote 30 of this judgment. 118 “By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution. Indeed the object of conservation of the distinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular minority community.” 119 “149. […] As observed quite aptly in St. Stephen’s case [(1992) 1 SCC 558] (at SCC p. 608, para 85) “the fact that Article 29(2) applies to minorities as well as non-minorities does not mean that it was intended to nullify the special right guaranteed to minorities in Article 30(1)”. The word “only” used in Article 29(2) is of considerable significance and has been used for some avowed purpose. Denying admission to non-minorities for the purpose of accommodating minority students to a reasonable extent will not be only on grounds of religion etc., but is primarily meant to preserve the minority character of the institution and to effectuate the guarantee under Article 30(1). The best possible way is to hold that as long as the minority educational institution permits admission of citizens belonging to the non-minority class to a reasonable extent based upon merit, it will not be an infraction of Article 29(2), even though the institution admits students of the minority group of its own choice for whom the institution was meant. What would be a reasonable extent would depend upon variable factors, and it may not be advisable to fix any specific percentage. The situation would vary according to

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is mandated to admit students from other faiths and that in itself does not erode the minority character of the institution.

130Copy pinpoint130. The third question was whether a minority education institution would lose its minority character when secular education is taught. In In re Kerala Education Bill (supra) and St. Xavier’s (supra), this Court held that the word ‘choice’ in Article 30(1) expands the scope of the provision to include not only religious but also secular education.120

131Copy pinpoint131. The fourth question was whether it is essential that religious instruction must be provided in a minority educational institution. In TMA Pai (supra), this Court held that Article 28 equally applies to minority educational institutions.121 Thus, if the minority institution has received aid from the State wholly or in part, no student can be forced to participate in religious instruction. Similarly, a minority educational institution which is fully maintained out of State funds cannot provide religious instruction. Even here, a harmonious construction of Article 28 and Article 30(1) was adopted.

the type of institution and the nature of education that is being imparted in the institution. Usually, at the school level, although it may be possible to fill up all the seats with students of the minority group, at the higher level, either in colleges or in technical institutions, it may not be possible to fill up all the seats with the students of the minority group. However, even if it is possible to fill up all the seats with students of the minority group, the moment the institution is granted aid, the institution will have to admit students of the non-minority group to a reasonable extent, whereby the character of the institution is not annihilated, and at the same time, the rights of the citizen engrafted under Article 29(2) are not subverted. It is for this reason that a variable percentage of admission of minority students depending on the type of institution and education is desirable, and indeed, necessary, to promote the constitutional guarantees enshrined in both Article 29(2) and Article 30. [emphasis supplied] 120 In re Kerala Education Bill(supra) [23] “23. […] the right conferred on such minorities is to establish educational institutions of their choice. It does not say that minorities based on religion should establish educational institutions for teaching religion only, or that linguistic minorities should have the right to establish educational institutions for teaching their language only. What the article says and means is that the religious and the linguistic minorities should have the right to establish educational institutions of their choice. There is no limitation placed on the subjects to be taught in such educational institutions. As such minorities will ordinarily desire that their children should be brought up properly and efficiently and be eligible for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering the public services, educational institutions of their choice will necessarily include institutions imparting general secular education also.”; St. Xavier’s (supra) [Chief Justice Ray for himself and Justice Palekar, 8]; [Justice HR Khanna, 96]; [Justice Beg, 197]; [Justice Dwivedi, 236]; 121 See TMA Pai (supra) [88-90;144]; “144 […] As in the case of a majority-run institution, the moment a minority institution obtains a grant of aid, Article 28 of the Constitution comes into play. When an educational institution is maintained out of State funds, no religious instruction can be provided therein. Article 28(1) does not state that it applies only to educational institutions that are not established or maintained by religious or linguistic minorities. Furthermore, upon the receipt of aid, the provisions of Article 28(3) would apply to all educational institutions whether run by the minorities or the non- minorities. […] Just as Articles 28(1) and (3) become applicable the moment any educational institution takes aid, likewise, Article 29(2) would also be attracted and become applicable to an educational institution maintained by the State or receiving aid out of State funds.”

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132Copy pinpoint132. The discussion above elucidates that the ‘minority character’ of the institution is not a rigid concept. The provision does not contemplate institutions which are exclusively for the benefit of members from the minority community. A minority institution established by a religious or linguistic minority need not be solely for their students or only for the purpose of teaching the tenets of their religion or language. The issue of whether an institution is a minority institution should not be determined purely on the basis of the number of their students or the teaching staff. Such an interpretation is contrary to precedent.

133Copy pinpoint133. A holistic and realistic view should be taken keeping in mind the objective and purpose of the provision. Based on the above principles laid down by Benches of co-equal strength and larger Benches of this Court on the components of the ‘minority character’, the following inferences can be drawn: a. The existence of a religious place for prayer and worship is not a necessary indicator of the minority character because institutions wholly maintained out of State funds are constitutionally barred from providing religious instructions; and b. The existence of religious symbols in the precincts of the educational institution are not necessary to prove the minority character because educational institutions could be established for minorities to provide secular education without imparting any lessons on religion.

134Copy pinpoint134. As discussed above, ‘establishment’ or formation of an institution can be at any point of time and even before the commencement of the Constitution. If an institution was established before the commencement of the Constitution, the enquiry on the question of ‘establishment’ must relate back to the date when the institution was established or formed to ascertain whether it would qualify as a minority institution upon the commencement of the Constitution.

135Copy pinpoint135. To determine who established the institution, the Courts must consider the genesis of the educational institution. For this analysis, the Courts must trace the origin of the idea for the establishment of the institution. The Court must identify who was the brain behind the establishment of the educational institution. Letters, correspondence with other members of the community or with government/State officials and resolutions issued could be valid proof for establishing

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ideation or the impetus to found and establish. The proof of ideation must point towards one member of the minority or a group from the community.122

136Copy pinpoint136. The second indicia is the purpose for which the educational institution was established. Though it is not necessary that the educational institution must have been established only for the benefit of a religious or linguistic minority community, it must predominantly be for its benefit. It is not necessary that education must be provided in the language spoken by the minority or on the religion of the minority. For example, it is not necessary that an educational institution established for the Tamils in Uttar Pradesh must necessarily prescribe Tamil as the language of instruction. However, it must be proved that the institution was established for the benefit of the tamil-speaking community. This indicia could be proved by a reference to private communication or speeches about the necessity of establishing an educational institution for the community and a recognition of the educational difficulties faced by the community.

137Copy pinpoint137. The third test is tracing the steps taken towards the implementation of the idea. Information on who contributed the funds for its creation, who was responsible for obtaining the land, and whether the land was donated by a member of the minority community or purchased from funds raised by the minority community for this purpose or donated by a person from some other community specifically for the establishment of a minority educational institution are elements that must be considered. Similar questions must be asked of its other assets. Other important questions are: who took the steps necessary for establishing the institution (such as obtaining the relevant permissions, constructing the buildings, and arranging other infrastructure)? It is also important to note that the state may grant some land or other monetary aid during or after the establishment of the educational institution. If the land or monies were granted after the establishment, the grant would not have the effect of changing the minority character of the institution. Minority institutions are not barred from receiving aid save at the cost of their minority status.123 If the land or monies are granted at the time of establishment, the

122 Mother Provincial (supra) 123 TMA Pai (supra) [141]

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circumstances surrounding the establishment must be considered as a whole to determine who established the institution. The presence of a grant must not be automatically interpreted as leading to the erasure of a claim to minority status.

138Copy pinpoint138. The next question is whether the administrative structure of the educational institution is an indicia for the establishment of a minority educational institution. We have already held above that an educational institution is a minority educational institution if it is established by a religious or linguistic minority. We have clarified that it is not necessary to prove that administration vests with the minority to prove that it is a minority educational institution because the very purpose of Article 30(1) is to grant special rights on administration as a consequence of establishment. To do otherwise, would amount to converting the consequence to a pre-condition. The right to administer is guaranteed to minority educational institutions to enable them to possess sufficient autonomy to model the educational institution according to the educational values that the community wishes to emphasise. It is not necessary that the purpose can only be implemented if persons belonging to the community helm the administrative affairs. This is so particularly because a minority institution may wish to emphasise secular education. The founders or the minority community may choose to populate the managing board (or a comparable authority) responsible for the day-to-day administration of the institution with persons belonging to the same community. However, they are not compelled to do so. They may wish to appoint persons who do not belong to their community but who they deem fit for the proper administration of the institution. This may be the case for professional colleges which offer specialised courses such as law, medicine, or architecture, where the founders may not possess the knowledge, experience, or insight necessary to manage or administer the institution personally.

139Copy pinpoint139. The test to be adopted by the Court is whether the administrative set up of the educational institution affirms the minority character of the institution. If the administrative structure of the educational institution does not reflect its minority character or when it does not elucidate that the educational institution was established to protect and promote the interests of the minority, it may be reasonably inferred that the purpose was not to establish an educational institution for the benefit of the minority community.

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140Copy pinpoint140. We may specifically deal with a scenario of an educational institution established before the commencement of the Constitution. The test of administration should be evaluated in praesenti, that is, on the date of the commencement of the Constitution. An institution to be a minority institution must satisfy the criteria of being ‘administered’ as a minority institution on the date of commencement of the Constitution, and being a minority institution on the date of formation. Even if an educational institution was established by the minority for the purposes of the community, we must assess the impact of any subsequent events that altered the character of the institution before the commencement of the Constitution. We have in section E(iv)(c) held that the statutory incorporation of the institution does not ipso facto amount to a surrender of the minority character of the institution. We have held that the Court must pierce the veil to identify if the University was established by a minority for the purpose of promoting the interest of the community. The Court may on a holistic reading of the statutory provisions relating to the administrative set-up of the educational institution deduce if the minority character or the purpose of establishment was relinquished upon incorporation. The question is whether the regulatory measures wrest the administrative control from the founders of the institution. This is a question of fact which must be determined on the facts of each case. The Court must make that determination upon a comprehensive analysis of the administrative framework which includes host of factors such as the representation of the interests of the community in the administrative set-up.

141Copy pinpoint141. Taken together, these are the main indicia which assist the Court in determining who established an educational institution under Article

30. However, the complex nature of establishing an educational institution is not lost on us. Undoubtedly, there can be no straitjacket formula which may be applied. The above indicia of establishment must be considered as a whole, along with any relevant facts which are available to the Court. The matter must be considered in totality and competing factors must be weighed against each other depending on the facts and circumstances of each institution.

142Copy pinpoint142. The above indicia must be proved through the submission of cogent material. Reliance must be placed on primary sources such as office documents, letters and resolutions or memorandums issued to implement the resolutions. Secondary sources must only be

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used to corroborate the primary sources. The onus to prove that the educational institution was established by a minority is on the claimants.

143Copy pinpoint143. One of the questions referred to this Bench was whether Article 30(1) envisages an institution which is established by minorities alone without participation from any other community? This question was based on the facts as observed by this Court in Anjuman-e- Rahmaniya (supra) where some persons from communities other than the Muslim community had contributed to the establishment of the educational institution. That case has been finally adjudicated and the issues which arose in it do not survive. Nothing in Article 30 prevents some persons from other communities in contributing to the establishment of an institution by a minority. There may be persons hailing from different communities who are concerned about the need for minority educational institutions and lend their assistance in some form – be it by contributing monies or otherwise. Their participation and involvement would not preclude Article 30 from being applicable to such institutions provided that the minority community continues to shoulder the core of the responsibility of establishing an educational institution.

vi. Impact of Entry 63 of List I on the minority status of educational institutions

144Copy pinpoint144. Entry 63 of the Union List to the Seventh Schedule to the Constitution deals with the institutions known at the commencement of the Constitution as Benares Hindu University, Aligarh Muslim University and Delhi University. Notably, the entry also indicates that Parliament may enact laws which pertain to any other institutions which are declared by law to be institutions of national importance.124

145Copy pinpoint145. Entry 63 of List I had its genesis in Entry 13 of List I to the Seventh Schedule to the Government of India Act 1935. Entry 13 read as “Benares Hindu University and the Aligarh Muslim University”. Entry 17 of List II read as “Educations including Universities other than those specified in paragraph 13 of List I”. The Federal Legislature

124 Entry 63: “The institutions known at the commencement of this Constitution as the Benares Hindu University, the Aligarh Muslim University and the Delhi University, and any other institution declared by Parliament by law to be an institution of national importance.”

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had the power to enact laws with respect to BHU and AMU while the Provincial Legislatures had the power to enact laws to establish new Universities and amend the legislation through which Universities were established and/or incorporated, except for the laws relating to AMU and BHU.125

146Copy pinpoint146. The Constitution of India adopted a similar model of division of legislative power as regards the subject at hand. The State Legislature had the power to enact laws with respect to education, including Universities by virtue of Entry 11 of List II of the Seventh Schedule to the Constitution. This power was subject to Entries 63,64 and 65 of List I and Entry 25 of List III. By the Constitution (Thirty-second Amendment) Act 1973, Entry 63 was amended to include the University established in pursuance of Article 371-E.126,127 Subsequently, by the Constitution (Forty-second Amendment) Act 1976, Entry 11 of List II was deleted and a similar subject was placed in Entry 25 of List III.128 Both Entry 11 of List II (prior to its omission) and Entry 25 of List III (as it currently stands) were made subject to the provisions of Entries 63, 64 and 65 of List I. The effect of this was that Parliament retained the exclusive power to legislate upon AMU, BHU and Delhi University in Entry 63 of List I and the subjects which fall within the scope of Entries 64 and 65 notwithstanding the broader or more general entries in the Seventh Schedule which include Universities.

147Copy pinpoint147. In the Government of India Act 1935, the Federal Legislature only had the power to legislate upon AMU and BHU. However, the scope of Parliament’s legislative domain over education and Universities was enlarged in the Constitution of India. In addition to Entry 63, Parliament also has the power to legislate upon educational institutions which fall within the ambit of Entries 64 and 65. Entry 64 deals with institutions of scientific or technical education financed by the Government of

125 The Government of India Act 1935, Section 100 126 Article 371-A Establishment of Central University in Andhra Pradesh.- Parliament may by law provide for the establishment of a University in the State of Andhra Pradesh. 127 Entry 63 subsequent to the enactment of the Constitution (Thirty-second Amendment) Act 1973: “The institutions known at the commencement of this Constitution as the Benares Hindu University, the Aligarh Muslim University and the Delhi University; the University established in pursuance of Article 371-E any other institution declared by Parliament by law to be an institution of national importance.” 128 Entry 25: “Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.”

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India wholly or in part and declared by Parliament by law to be institutions of national importance. Entry 65 deals with Union agencies and institutions for (i) professional, vocational or technical training, including the training of police officers; (ii) the promotion of special studies or research; and (iii) scientific or technical assistance in the investigation or detection of crime. Thus, Entries 64 and 65 deal with institutions which provide education in specific fields. Another crucial point is that by virtue of Entries 63 and 64, Parliament has the power to legislate upon institutions which are declared by law to be institutions of national importance. While Entry 64 provides broad criteria for declaring an institution to be of national importance, Article 63 does not contain similar indicia.

148Copy pinpoint148. The question is whether the inclusion of a University as an institution of ‘national’ importance amounts to an abrogation of its minority character. The declaration of an institution as one of national importance does not amount to a change in the minority character of the institution. This is for multiple reasons. First, Entries in the Lists in the Seventh Schedule delineate the legislative competence of Parliament and of the legislatures of the States. As discussed in the preceding sections of this judgment, the State may regulate various aspects of education and educational institutions. The field of legislative competence over universities does not amount to a surrender of minority character. The distribution of legislative competence between Parliament and the State legislatures does not bear upon the minority character of the institution. Second, as a matter of principle, nothing prevents a minority educational 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. The former indicates that the institution has a pan-India or national character, as opposed to relatively more local or regional institutions. It is indicative of the importance of the institution on the national stage. The latter is evidence of the religious or linguistic background of the founders and the constitutional rights which vest in them. Each term indicates distinct attributes which are not antithetical to one another. A university may well be both national and ergo, of national importance, as well as minority in character. There is no reason why a minority educational institution cannot also be an institution of national importance. Third, Entries 63 and 64 provide Parliament with the power to declare an institution to be of

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national importance. An interpretation that an institution of national importance cannot be a minority institution would amount to rendering the fundamental right guaranteed by Article 30(1) subservient to the legislative power of Parliament. Parliament can in terms of Entries 63 and 64 declare any institution to be of national importance.129 If the submission of the respondents is accepted, such a declaration would automatically exclude the institution(s) from the scope of Article 30(1).

vii. The decision of this Court in Prof. Yashpal

149Copy pinpoint149. Question (d) formulated in these proceedings requires the Court to assess whether the decision in Prof. Yashpal (supra) has a bearing on the other questions and if so, in what manner. It is therefore necessary to advert to the facts and decision in that case. Various writ petitions challenged certain provisions of the Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam 2002.130 Section 5 of this statute empowered the state government to incorporate and establish a university by issuing a notification in the Gazette. Section 6 permitted such a university to affiliate any college or other institution or to set up more than one campus with the prior approval of the state government. The state government established more than a hundred universities under the Chhattisgarh Act.

150Copy pinpoint150. The petitioners in that case submitted that: a. The universities established under the Chhattisgarh Act had no buildings or campuses and were running from tenements consisting of a single room or a single floor in a building. Basic infrastructure (such as classrooms, libraries, and laboratories) was absent. Despite this, the universities were empowered to award degrees; b. The state government did not exercise any supervision over these universities and was establishing them in a mechanical manner, without assessing the infrastructure, teachers, or other resources of each of them;

129 See The Jawaharlal Institute of Postgraduate Medical Education and Research, Puducherry Act 2008; The Institutes of Technology Act 1961; The Indian Institutes of Management Act 2017; National Institutes of Technology, Science, Education and Research Act 2007; The Indian Institutes of Information Technology Act 2014; See https://www.education.gov.in/institutions-national-importance 130 “Chhattisgarh Act”

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c. The UGC was unable to exercise any control over these universities due to the scheme of the Chhattisgarh Act and was made a redundant body; d. These universities were offering courses and degrees which were not a part of the Schedule to the UGC Act. This was in violation of Section 22 of the UGC Act as well as the Schedule; e. These universities were offering professional courses without obtaining permission or approval from regulatory bodies such as the All India Council of Technical Education, Medical Council of India and Dental Council of India; and f. These universities conferred degrees without obtaining the requisite permission from statutory bodies. These degrees would not be recognised by professional organisations or other employers. The students who were awarded such degrees would therefore not only suffer financially but would also have lost the time spent completing these courses.

151Copy pinpoint151. In response, the State of Chhattisgarh submitted that it was competent to enact the statute under challenge in view of Entry 32 of List II of the Seventh Schedule to the Constitution.131 It argued that the universities were established on the basis of the representations made by the sponsoring body as set out in the project reports. However, it admitted that some of these universities did not meet the minimum standards expected of educational institutions, giving rise to serious concerns about the academic interest of the students. It stated that it therefore amended the Chhattisgarh Act in 2004. After the amendments, a large number of universities were de-notified because they failed to comply with the amended statute. Finally, it argued that the writ petitions ought to be dismissed because the concerns raised in them no longer subsisted after the amendments in 2004 and the consequent denotification of many universities.

152Copy pinpoint152. This Court analysed the relevant entries in the Lists of the Seventh Schedule to the Constitution as well as the UGC Act and held that Sections 5 and 6 of Chhattisgarh Act were ultra vires the Constitution and liable to be struck down for the following reasons:

131 “32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies.”

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a. The term “university” occurring in the three Lists of the Seventh Schedule must mean an institution with adequate facilities and resources for advanced learning and research. The standard of teaching and education must be such as would befit a university. The power conferred on state legislatures with respect to the incorporation of universities must be exercised only with respect to institutions which would in substance amount to universities. The Chhattisgarh Act did not provide for the establishment of universities in the true sense. Rather, it conferred the legal status of a university to mere institutions or project reports and permitted them to issue degrees. In doing so, it clothed an institute which is not a university and cannot amount to a university (because of a lack of infrastructure and resources) with the juristic personality of a university. This is not contemplated either by Entry 32 of List II or Entry 25 of List III. Sections 5 and 6 of the Chhattisgarh Act were a fraud on the Constitution; b. Although Entry 32 of List II and Entry 25 of List III empower the state legislatures to enact laws concerning the incorporation of universities, the whole gamut of the university including teaching, quality of education, curriculum and examinations, would not come within the purview of the state legislature because of Entry 66 of List I. Entry 66 of List I concerns the coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Parliament alone is competent to enact legislation which pertains to Entry 66 of List I. The UGC Act was enacted in pursuance of this entry; c. A statute enacted by the state legislature which stultifies or has the effect of nullifying a statute validly enacted by Parliament would be ultra vires. The Chhattisgarh Act made it impossible for the UGC to perform its duties and to ensure the coordination and determination of standards in terms of the UGC Act; and d. The expression “established or incorporated” in Sections 2(f), 22 and 23 of the UGC Act must be read as “established and incorporated” insofar as private universities are concerned. This is necessary in order to give effect to the purpose of the UGC Act.

153Copy pinpoint153. The decision of this Court in Prof. Yashpal (supra) will not have a bearing on this case for the following reasons: a. The interpretation of a statutory provision cannot influence the interpretation of a provision of the Constitution. The Constitution

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is the basic or fundamental law of the country. It controls all other laws; b. The decision in Prof.Yashpal (supra) was rendered in the context of institutions which were given the status of universities by the operation of law but which existed only on paper, without any facilities, and offered some courses which were not approved by the relevant authorities. The purpose of this Court reading “established or incorporated” as “established and incorporated” was to prevent such institutions from being given the status of universities in the absence of essential features of universities. It was to ensure that institutions which were accorded the status of universities existed in actuality; and c. The distinction between the meaning of the term ‘establish’ and that of the term ‘incorporate’ was not effaced by this interpretation. Article 30 uses the word ‘establish.’ The indicia for determining whether an institution is a minority educational institution for the purposes of Article 30 would depend only upon whether the minority community in question established the educational institution.

viii. The amendment of the NCMEI Act in 2010

154Copy pinpoint154. The NCMEI Act was enacted in 2004 to constitute a National Commission for minority educational institutions and to provide for matters connected or incidental to it. Section 3 mandates the constitution of the National Commission For Minority Educational Institutions.132 Section 11 details the functions of the Commission which include advising the Central or State governments on questions related to the education of minorities which may be referred to it; suo motu enquiries or enquiries based on petitions instituted by minority educational institutions; and intervening in proceedings before courts (with the leave of the court) which concern the deprivation or violation of the educational rights of minorities. Section 12 empowers the Commission to adjudicate disputes between a minority educational institution and university regarding affiliation and confers upon it the power of a civil court trying a suit in certain matters. Section 12B empowers the Commission to hear appeals against orders of authorities established by the Central or State governments, which reject applications for the grant of minority status filed by educational

132 “Commission”

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institutions. The Commission also has other powers.133 Section 10 prescribes the procedure to establish a minority educational institution. In terms of the provision, any person who desires to establish a minority educational institution has to apply to the competent authority for the grant of a no objection certificate for the purpose. The competent authority would upon the perusal of documents, affidavits or other evidence and after giving the applicant an opportunity to be heard either allow or reject the application.

155Copy pinpoint155. The NCMEI Act was amended in 2010.134

156Copy pinpoint156. Section 2(g) defined a ‘minority educational institution’ as reproduced below: “(g) “Minority educational institution” means a college or institution (other than a University) established or maintained by a person or group of persons from amongst the minorities;” In 2010, Section 2(g) was amended to read as follows: “(g) “Minority educational institution” means a college or an educational institution established and administered by a minority or minorities;”

157Copy pinpoint157. Two material changes were made to Section 2(g) in 2010. The first was the removal of the words “other than a University” from the definition. The NCMEI Act did not extend to universities prior to 2010. The amendment in that year widened the ambit of the Act and made its provisions applicable to minority universities as well. The second change was the replacement of the term “established or maintained” with “established and administered.” The amendment in 2010 to the definition of a minority educational institution in Section 2(g) cannot impact the interpretation of Article 30(1). In the preceding sections, we have held that establishment by a minority is the only indicia for a minority educational institution. Section 10 of the NCMEI Act recognises this by prescribing the procedure to ‘establish’ a minority educational institution. The amendment to the definition of a minority educational education in Section 2(f) only recognises the right guaranteed by Article 30(1). It recognises that a minority educational institution once established is also administered by them.

133 Sections 12D and 12E, NCMEI Act. 134 See the National Commission for Minority Educational Institutions (Amendment) Act 2010.

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ix. Registration under the Societies Registration Act

158Copy pinpoint158. The question is whether a minority educational institution which is registered as a society under the Societies Registration Act soon after its establishment loses its status as a minority educational institution by virtue of such registration.

159Copy pinpoint159. As discussed in Section B of this judgment, this question was referred to a larger Bench by this Court in Anjuman-e-Rahmaniya (supra). This question was referred because the institution in that case was founded in 1938 and was registered under the Societies Registration Act in 1940. The judgment in Anjuman-e-Rahmaniya (supra) has been rendered and the case has been disposed of. This judgment will therefore not have a bearing on that case. Moreover, the parties in the present proceedings have not addressed this Court as to question (c) nor does the question have a bearing on the other questions referred. In these circumstances, we are of the opinion that this question is not required to be answered.

F. Conclusion

160Copy pinpoint160. In view of the above discussion, the following are our conclusions: a. The reference in Anjuman-e-Rahmaniya (supra) of the correctness of the decision in Azeez Basha (supra) was valid. The reference was within the parameters laid down in Central Board of Dawoodi Bohra Community (supra); b. Article 30(1) can be classified as both an anti-discrimination provision and a special rights provision. A legislation or an executive action which discriminates against religious or linguistic minorities in establishing or administering educational institutions is ultra vires Article 30(1).This is the anti-discrimination reading of the provision. Additionally, a linguistic or religious minority which has established an educational institution receives the guarantee of greater autonomy in administration. This is the ‘special rights’ reading of the provision; c. Religious or linguistic minorities must prove that they established the educational institution for the community to be a minority educational institution for the purposes of Article 30(1); d. The right guaranteed by Article 30(1) is applicable to universities established before the commencement of the Constitution; e. The right under Article 30(1) is guaranteed to minorities as defined upon the commencement of the Constitution. A

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different right-bearing group cannot be identified for institutions established before the adoption of the Constitution; f. The incorporation of the University would not ipso facto 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 deduce if the minority character or the purpose of establishment was relinquished upon incorporation; and g. The following are the factors which must be used to determine if a minority ‘established’ an educational institution: i. The indicia of ideation, purpose and implementation must be satisfied. First, the idea for establishing an 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 the minority community; and third, steps for the implementation of the idea must have been taken by the member(s) of the minority community; and ii. The administrative-set up of the educational institution must elucidate and affirm (I) the minority character of the educational institution; and (II) that it was established to protect and promote the interests of the minority community.

161Copy pinpoint161. The view taken in Azeez Basha (supra) that an educational institution is not established by a minority if it derives its legal character through a statute, is overruled. The questions referred are answered in the above terms. The question of whether AMU is a minority educational institution must be decided based on the principles laid down in this judgment. The papers of this batch of cases shall be placed before the regular bench for deciding whether AMU is a minority educational institution and for the adjudication of the appeal from the decision of the Allahabad High Court in Malay Shukla (supra) after receiving instructions from the Chief Justice of India on the administrative side.

162Copy pinpoint162. The reference is disposed of in the above terms.

163Copy pinpoint163. Pending applications, if any, stand disposed of.

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Surya Kant, J. Table of Contents**

I. Background ........................................................................ 4 A. History of minority rights ............................................. 4 B. The Constitutional scheme ......................................... 14 C. Brief history of AMU .................................................... 19 D. Challenge to the constitutionality of the 1951 and 1965 Amendment Acts ......................................................... 29 E. History of discordance with Azeez Basha ................... 37 II. Contentions of the parties ................................................. 41 III. Issues for determination .................................................... 45 IV. Analysis .............................................................................. 47 F. Issue I: What are the requisite parameters of reference to a larger bench? ....................................................... 47 G. Issue II: Whether the Appellant has the locus standi to bring the present challenge? .................................. 55 H. Issue III: What are the tests to seek protection under Article 30? ................................................................... 62 I. Issue IV: What is the meaning of ‘establish’ in Art. 30? .......................................................................... 66 J. Issue V: What is the meaning of ‘administer’ in Article 30? ............................................................................... 84 K. Issue VI: Whether the Union of India is obligated to defend the AMU Amendment Act, 1981? .................... 90 V. Areas of divergence .............................................................. 91 VI. Conclusion ........................................................................... 100

1. A three-judge bench presided over by the then Chief Justice of India vide order dated 12.02.2019, passed in Aligarh Muslim University v. Naresh Agarwal,1 (2019 Reference Order) made this reference to a Bench of Seven Judges, with a view to:

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i. To determine the correctness of the question arising from the decision of this Court in S. Azeez Basha v. Union of India,2 which had ruled against the minority status sought to be accorded to the Aligarh Muslim University (AMU). ii. To determine question 3(a) formulated in TMA Pai Foundation v. State of Karnataka,3 which postulates that: “Q. 3. (a) What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority? This question need not be answered by this Bench, it will be dealt with by a regular Bench.”; and iii. Whether the decision of this Court in Prof. Yashpal v. State of Chhattisgarh,4 and the amendment in 2010 to the National Commission for Minority Educational Institutions Act, 2004 (NCMEI Act) have any bearing on the aforesaid questions formulated?

2. The fulcrum of this reference revolves around the interpretation of Article 30 of the Constitution of India, which deals with the right of minorities to set up educational institutions. We have had the benefit of perusing the erudite opinion authored by Hon’ble the Chief Justice Dr. D.Y. Chandrachud. While the said opinion comprehensively addresses each issue with depth and clarity, we have expressed a differing view on the interpretation of certain aspects, given the significant constitutional implications involved. Recognizing the weight of these issues, we have chosen to offer our own perspective, though we acknowledge the thoroughness and diligence with which Hon’ble the Chief Justice has approached this complex matter.

3. Before we lay down the indicia under Article 30 to determine whether an institution has a minority character and ought to be afforded protection, we deemed it appropriate to embark on a substantive

2 S. Azeez Basha v. Union of India [1968] 1 SCR 833 3 TMA Pai Foundation v. State of Karnataka (2002) 8 SCC 481, para 18. 4 Prof. Yashpal and Anr. v. State of Chhattisgarh and Ors. (2005) 5 SCC 420

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analysis of the issues involved, and will begin by undertaking a comprehensive examination of the multifaceted nature of minority rights, both in India and internationally.

I. Background

A. History of minority rights

4. The basis of defining the term ‘minorities’ and bestowing associated rights on them have varied significantly across different eras and regions. Indicators such as religion, nationality, ethnicity, and race frequently emerge as markers of minority status across the world. In contrast, the Indian perspective on minorities is broadly categorized as religious and linguistic minorities.

A.1. Global history of minority rights

5. The idea of minority rights can generally be traced back to the ‘Peace of Westphalia’, a set of treaties concluded in the mid-17th century, which sought to give rights to certain religious minorities in newly ceded territories post-war.5 Hence, globally, the concept of minority rights broadly emerged along the fault lines of religion.

6. However, the focus on religion changed subsequently with the rise of nationalism in Europe. Since national identities emerged as the primary means of distinguishing insiders from outsiders, the concept of minorities in different instruments—such as the 1815 Final Act of Congress of Vienna—was defined in terms of national groups.6

7. As national identities began to take shape, the notion of minority rights became increasingly intertwined with the quest for international legitimacy. By the time of the 1878 Congress of Berlin, the question of minorities had become a crucial factor in the emergence of new nation-states beyond Western Europe. These States, requiring international recognition, were accordingly required to demonstrate a willingness to comply with a ‘standard of

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civilization’, which included the protection of minority rights.7 This was not merely a moral obligation but a strategic tool for gaining acceptance within the global community. Nations such as Greece, for example, were compelled by powers like France, Great Britain, and Russia to uphold minority rights as a condition for their recognition and support.8

8. This momentum of bestowing rights to minorities continued to gain further traction across Europe. For instance, Hungary’s Parliament first proclaimed minority rights in July 1849,9 followed by their formal codification into Austrian law in 1867. Similarly, Belgium joined the movement in 1898. Although this era did not achieve universal respect for minority rights, it marked a pivotal shift, with these categories of rights increasingly taking centre stage in international negotiations and settlements, particularly in the aftermath of conflicts.

9. The mid-19 th century also witnessed the gradual upliftment of historically-oppressed groups, such as the African-Americans, who constituted the largest minority in the United States. The American Civil War of the 1860s culminated in the issuance of the Emancipation Proclamation by Abraham Lincoln in 1863. This landmark decree effectively abolished slavery and guaranteed freedom to all African- Americans. This progress was further bolstered by the 14th Amendment of 1868, which granted various civil rights to all citizens.10

10. This trajectory of liberation extended into the early 20th century, with the League of Nations making the establishment of a minority state system one of its key priorities. The new Nation-States that emerged in East-Central Europe post-1919 were so ethnographically diverse that recognising minority rights became essential. The victorious powers understood that ethnic dissatisfaction with the territorial status quo could potentially escalate into domestic and even international violence. Thus,the rights of minorities became a prerequisite for

7 G. Gong, “The Standard of Civilization in International Society” Oxford University Press, (1984). 8 Greece Liberated– London Protocol, (United Kingdom, France & Russia) (adopted on 03 February, 1830). 9 Mazohl, Brigitte, ‘‘Equality among the Nationalities’ and the Peoples (Volksstämme) of the Habsburg Empire”, Constitutionalism, Legitimacy, and Power: Nineteenth-Century Experiences Chapter 9, Oxford University Press (2014). 10 Holloway, Jonathan Scott, “Civilization, race, and the politics of uplift”, African American History: A Very Short Introduction, Chapter 4, (Oxford University Press) (2023).

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independence, as well as a condition for war reparations or admission into the League of Nations. A notable example is the Polish Minority Treaties of 1918, which granted special and presumably temporary rights in areas such as education, allowing minorities to read and learn their preferred languages.11

11. The growing significance of minority rights during this period is further exemplified by several cases before the Permanent Court of International Justice (PCIJ). In a 1923 case of the Rights of Minorities in Upper Silesia, the PCIJ affirmed that individuals should have the autonomy to decide their minority affiliation. 12 Similarly, in the 1930 Greco-Bulgarian communities case, the PCIJ emphasized the rights of minorities to uphold and preserve their traditions, clarifying that a ‘community’ under the subject-Convention referred to a group united by race, religion, language, and traditions, and that such a community could possess property distinct from any individual comprising it.13 Further, in Minority Schools in Albania, decided in 1935, the PCIJ explored the interrelation between minority status and cultural identity while addressing the religious and educational autonomy enjoyed by the Greek communities of Albania.14 The PCIJ concluded that the essence of minority treaties was to ensure de facto equality for minorities, thus enabling them to maintain their cultural distinctiveness through a specialized minority regime.

12. In this manner, the historical development of minority rights from the 16th to 20th centuries illustrates a progressively advancing standard of rights accorded to these groups. Initially, minority status was primarily defined by religious affiliation; however, over time, nationality and linguistic identity became key criteria. This evolution reflects a broader international understanding of minority groups. There have been instances where the dominant majority has also actively sought to empower these minorities, highlighting the complex interplay between oppression and advocacy throughout history.

11 Treaty of Peace with Poland [Polish Minorities Treaty], (adopted on 28 June 1919). 12 Rights of Minorities in Upper Silesia (Germ. v. Pol.), 1928 P.C.I.J. (ser. A) No. 15 (Apr. 26) (Permanent Court of International Justice). 13 Greco-Bulgarian “Communities”, Advisory Opinion, PCIJ Series B. No 17 (Permanent Court of International Justice, 1928). 14 Minority Schools in Albania, Advisory Opinion, PCIJ Series A/B no 64, ICGJ 314 (Permanent Court of International Justice, 1935).

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A.2. Minority rights in India

13. The trailing analysis put forth hereinabove sets the context to hereafter understand the Indian experience with minority rights. However, any discussion of minority rights in India must begin with appreciating its unique and vibrant nature,characterized by its rich mosaic of cultures, religions, and languages.

14. As a melting pot of cultures, India is home to a diverse array of different communities. One such example is the Parsis, who came to India from Persia—escaping persecution by the then Arab conquerors—and have since established themselves as one of the most prosperous communities in India.15 Another important minority is the Sikhs, who follow Sikhism, which “is believed to be a deep synthesis of divine virtues, ceaseless, remembrance, relentless service of mankind, equality of mind, and ephemeral nature of the world besides the defiance of tyranny and fighting for righteousness”. 16 These instances, among others, provide ample historical evidence supporting India’s tradition of tolerance, as embodied in the notion of ‘Vasudeva Kutumbakam’,17 where all communities have flourished and seamlessly integrated into Indian culture.

15. It was only with the advent of British rule in India that longstanding religious, caste, linguistic and regional ethnic tribal entities that had existed in India for centuries began to receive renewed scrutiny.18 The late 19th century, particularly after the Revolt of 1857, saw an increasing incorporation of Indians into the colonial government. This increasing inclusion of Indians in British institutions forced imperialists to address how Indians were to be represented, leading to the concept of group-based representation.19 They were initially defined by religious terms—evident in the first Indian Census of 1872, which classified Indians by religion—the representation later expanded to include caste and racial categories. Subsequent censuses further

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sought to amalgamate oppressed castes of India into a single all-India category of ‘Depressed Classes’.20

A.2.1. The concept of linguistic minorities

16. History indicates that during the British Rule, Hindi was sought to be projected as the language of the majority community.21 In this vein, the British decided to introduce the permissive use of the Devanagari script in the Courts of the North-Western Provinces and Oudh, with a view to undermine the influence of the Mughal elites.22 From the late 19th century onwards, there seemed to be murmurs against the perceived imposition of Hindi language, in regions where other languages were spoken. These concerns were endeavoured to be redressed by reorganising and carving out new States, predominantly on linguistic considerations, such as, for instance, the division of the States of Bihar and Odisha.23

17. The reorganization of the States based on linguistic differences gained momentum with the appointment of the Indian Statutory Commission, and subsequently,in April 1938, when a resolution was passed by the Madras Legislative Assembly, unsuccessfully recommending the establishment of four new Provinces from the former Madras Presidency. Ultimately, the States Reorganisation Act, 1956 enabled the division of States on a linguistic basis, aligning administrative boundaries with the linguistic identities of the population.

A.2.2. The concept of religious minorities

18. In addition to linguistic minorities, the question of rights and privileges for religious minorities also gained prominence. The genesis of this category of minority rights in India can be traced back to the 1909 Morley-Minto Constitutional Reforms, which introduced separate electorates and reserved quotas to protect the interests of one of

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the minority communities within the evolving political framework.24 Following this development, the British government extended similar provisions to other communities, as well as the Depressed Classes, thereby institutionalizing measures for their representation and protection.25

19. Subsequently, political organisations seeking to leverage the 1919 Montagu-Chelmsford reforms played a crucial role in consolidating minority identities.26 The principle that eventually emerged for Indian representation in colonial institutions was that minority groups should be represented in proportion to their population size.27 The primary demand of these groups was to secure safeguards against potential dominance by the Congress or the majority community in Indian politics.

20. The 1928 Simon Commission further solidified the foundation of minority rights by recommending the continuation of separate electorates.28 At the same time, the 1928 Nehru Report, which influenced the framing of a Constitution for India, laid great emphasis on the safeguards of minorities.29 However, in a significant departure from the 1916 Lucknow Pact,30 the Committee rejected the Muslim League’s demands for separate electorates, noting that communal protection was no longer necessary for Hindus and Muslims.31

21. Historical events reveal that after the failure of Round Table Conference of 1930 and 1932, the Colonial Government firstly proposed the Communal Award followed by the Government of India Act, 1935, which was the last major colonial constitutional exercise prior to Independence. This Act reserved seats in Provincial Legislatures for

24 Meetika Srivastava, “Evolution of the System of Public Administration in India from the Period 1858- 1950: A Detailed Study Highlighting the Major Landmarks in Administrative History Made During this Period” (2009), available at https://ssrn.com/abstract=1482528. 25 Dick Kooiman, “Communalism and Indian Princely States: A Comparison with British India” Economic and Political Weekly (1995) Vol. 30 No. 34 pp. 2123-2133. 26 Ibid. 27 Francesca R. Jensenius, “Mired in Reservations: The Path-Dependent History of Electoral Quotas in India” The Journal of Asian Studies (2015) Vol. 74 No. 1. 28 McMillan, Alistair, “Standing at the Margins: Representation and Electoral Reservations in India” Oxford University Press (2005). 29 Ibid. 30 Owen, Hugh “Negotiating the Lucknow Pact”, Journal of Asian Studies, (1972) Vol. 31 No. 3 pp. 561–87. 31 Proceedings of the Indian Round Table Conference (12th November, 1930–19th January, 1931).

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a total of thirteen communal and socio-economic categories.32 The 1940s then witnessed intense political debates centred on the ‘minority question,’with various parties negotiating the extent of concessions to be granted to minority communities.33

A.2.3. Deliberations by the Constituent Assembly of India

22. The developments of the last few decades of British rule in India vis-à-vis minority rights directly contributed to the discussions in the Constituent Assembly Debates and the formalisation of safeguards for minorities within the Indian Constitution.34 In fact, it strengthened the belief of the makers of the Indian Constitution that the Indian State must be formally committed to protecting the distinct cultural, linguistic and religious practices of various communities.35

23. Thus, to streamline the complex task of drafting the Indian Constitution, the Constituent Assembly decided to work through specialized committees. Among these, the Advisory Committee on Fundamental Rights, Minorities, etc., was formed under the leadership of Sardar Vallabhbhai Patel, having proportional representation from all major minority groups.36 Given the broad mandate of this Committee, it was further divided into five Sub-Committees, one of which was the Minorities Sub-Committee, chaired by Dr. H.C. Mookherjee, a prominent Christian leader.37

24. Soon after, the Advisory Committee prepared the ‘Report on Minority Rights’, which recommended that elections to all legislatures be conducted on the basis of joint electorates, with reservations for specified minorities.38 Additionally, the Report also proposed reservation in recruitment for minorities. The Report further incorporated suggestions for establishing Constitutional and Administrative mechanisms to address the challenges faced by minorities in India.

32 Rochana Bajpai, supra note 18. 33 Krishna, K.B., The Problem of Minorities in India or Communal Representation in India, G. Allen and Unwin, (1939). 34 Rochana Bajpai, “Constituent Assembly Debates and Minority Right” Economic and Political Weekly, (2000) Vol. 35 No. 21-22. 35 Ibid. 36 Navin Pal Singh, Dr. Balvinder Singh Slathia, “Intricacies of Educational and Cultural Rights of Minorities in India: Efficacy of Constitutional Safeguards” UGC Care Journal (2020) Vol. 43, no.4. 37 Ibid. 38 Rochana Bajpai, supra note 18.

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25. The discussions on the Draft Constitution, initiated by Dr. Ambedkar on 21.02.1948,intended to give special attention to minority rights.39 This then led to the insertion of ‘Special Provisions Relating to Minorities’ (Part XIV – Articles 292 to 301) into the Draft Constitution. This was in addition to the protections granted to all citizens under the Chapter of Fundamental Rights.40 The proposed Part XIV instead intended to provide political reservations for Muslims, Indian-Christians, Anglo-Indians, Scheduled Castes, and Scheduled Tribes. Additionally, it envisioned special protection for Anglo-Indians with respect to educational institutions and also addressed minority claims in the realm of public recruitment.41 Finally, it sought to include administrative checks to ensure the effective implementation and functioning of these constitutional safeguards.

26. However, these provisions sought to be incorporated under Part XIV were short-lived. The harsh realities of the communal violence following the partition of the Indian subcontinent into India and Pakistan greatly impacted one and all. The conflicts, violence, exploitation, general public disorder and lawlessness during the migration exercise resulted in the deaths of almost one million people, with an estimated displacement of approximately ten to twenty million people.42

27. Naturally, the aftermath of these events sent shock waves throughout the country. It profoundly affected the Constituent Assembly and the Drafting Committee, particularly in regard to the recognition of communal minority rights.43 Prior to the Partition, the Assembly had granted religious reservations in legislative bodies. However, these reservations were done away with post-Partition. 44 The prevailing sentiment was that such measures could foster separatist tendencies and were inconsistent with the principles of a Secular Democratic State. This view was also supported by various Muslim members of the

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Constituent Assembly. 45 For instance, Mohammad Ismail Khan stated:46 “[…] Because this reservation of seats would only keep alive Communalism and would be ineffectual as a safeguard for the Muslim minorities or for the matter of that for any other minorities. I congratulate the majority community, that they have not taken advantage of their superiority in numbers, by utilising this device for their own purposes. The Muslims have been thinking for some time that this reservation was wholly incompatible with responsible Government and I may say that when Provincial autonomy was introduced in the provinces for the first time the Muslims soon began to realize the separate representation was not going to be an effective safeguard for the protection of their interests […]” [Emphasis supplied]

28. Similarly, Tajamul Hussain also emphatically voiced:47 “Mr. President, Sir, reservation of seats in any shape or form and for any community or group of people is, in my opinion, absolutely wrong in principle. Therefore I am strongly of opinion that there should be no reservation of seats for anyone and I, as a Muslim, speak for the Muslims. There should be no reservation of seats for the Muslim community. (Hear, Hear). I would like to tell you that in no civilised country where there is parliamentary system on democratic lines, there is any reservation of seats. […]” [Emphasis supplied]

29. Eventually, the Constituent Assembly dropped the proposals to grant varied rights to linguistic and religious minorities, and retained only

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Articles 29 and 30 to assuage their concerns. These two Fundamental Rights under Part III nonetheless represent a watershed moment in the jurisprudence of minority rights worldwide.

B. The Constitutional scheme

30. The majority of minority rights within the Indian Constitution are encapsulated in Part III under the sub-section on ‘Cultural and Educational Rights’. This section includes: (i) the right of any section of citizens with a distinct language, script, or culture to conserve the same under Article 29; and (ii) the right of linguistic and religious minorities to establish and administer educational institutions of their choice under Article 30.

31. This focus on cultural and educational rights does not diminish the broader protections offered by the Constitution, which includes positive discrimination and affirmative action. Notable amongst these are Articles 15 and 16, which provide reservations to ensure equality of opportunity, and Articles 25 to 28, for the safeguard of religious freedoms. In addition, Articles 350A and 350B were incorporated shortly after independence in 1956 to further protect linguistic minorities. These provisions established administrative shields to support language rights and ensure their preservation within the broader framework of the Indian State.

32. Given this context, Article 29 protects linguistic minorities and their right to conserve their languages,and Article 30 bestows positive rights to religious and linguistic minorities,allowing them to establish and administer educational institutions. These provisions read as follows: “29. Protection of interests of minorities.— (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.”

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“30. Right of minorities to establish and administer educational institutions.— (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. (1A) In making any law providing for the compulsory acquisition of any property of any educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause. (2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.”

33. Other provisions in the Constitution of India,such as Article 19, for instance, also provide a similar freedom to establish educational institutions. However, the distinguishing and unique nature of Article 30 lies in its broader protection against State intervention. The interplay of these Articles has been thoroughly examined by an eleven-judge bench of this Court in TMA Pai (supra): “18. With regard to the establishment of educational institutions, three articles of the Constitution come into play. Article 19(1)(g) gives the right to all the citizens to practise any profession or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article 19(6). Article 26 gives the right to every religious denomination to establish and maintain an institution for religious purposes, which would include an educational institution. Article 19(1)(g) and Article 26, therefore, confer rights on all citizens and religious denominations to establish and maintain educational institutions. There was no serious dispute that the majority community as well as linguistic and religious minorities would have a right under Articles 19(1)(g) and 26 to establish educational institutions. In addition, Article 30(1),

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in no uncertain terms, gives the right to the religious and linguistic minorities to establish and administer educational institutions of their choice.”

34. The distinction between broader rights such as Article 19 and Article 30, is thus clearly visible. Though Article 19 grants all citizens the right to establish institutions, it does not indemnify these institutions from State intervention in their administration and allows reasonable restrictions in the interests of the public. In contrast, Article 30 provides a specific right for religious minorities to establish and administer educational institutions without significant State interference. Additionally, whereas Articles 25 to 28 grant general rights to religious denominations, Article 30 specifically protects the rights of religious minorities.

B.1. Relevant case laws on the interpretation of Article 30

35. While the judicial interpretation of the scope and nuances of Article 30 will be discussed later in relevant parts of the judgement, a brief note of the landmark edicts that have been enumerated on this provision can be laid out. Over the course of several decades, through multiple judicial pronouncements and interpretations, the Supreme Court has held that the right provided under Article 30 is not absolute. An eleven-judge bench in TMA Pai (supra) and a seven-judge bench in P.A. Inamdar v. State of Maharashtra,48 have held that while the minority community possesses the right to administer the educational institutions, the State may impose reasonable regulations for the benefit of these institutions. Similarly, five-judge benches in Islamic Academy of Education v. State of Karnataka49 and St. Stephen’s College v. University of Delhi50 have held that the State can prescribe general rules regarding merit in admissions. This view was seconded in Secy., Malankara Syrian Catholic College v. T. Jose,51 which held that general regulations regarding service conditions of employees could also be imposed.

48 P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537. 49 Islamic Academy of Education and Anr. v. State of Karnataka and Ors. (2003) 6 SCC 697. 50 St. Stephen’s College v. University of Delhi (1992) 1 SCC 558. 51 Secy., Malankara Syrian Catholic College v. T. Jose & Ors. (2007) 1 SCC 386.

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36. In that sense, several judicial pronouncements have sought to explain the scope of Article 30 and clarify the extent of the protection granted.

B.2. Statutory Scheme

37. Apart from constitutional guarantees and rights, the Indian Parliament has also adopted several legislations to protect the rights of minorities. The National Commission for Minorities was established as a statutory body under the aegis of the National Commission for Minorities Act, 1992. Section 9(1) of the Act mandates the Commission to perform various functions, including, but not limited to, monitoring the implementation of safeguards for minorities, as provided in the Constitution, and laws enacted by Parliament and State Legislatures. The Commission is also responsible for making recommendations to the Central and State Governments for the effective implementation of these safeguards to protect minority interests. Additionally, it is tasked with addressing specific complaints regarding the deprivation of minority rights and safeguards and addressing such matters with the appropriate authorities.

38. A significant development which flows from Article 30 is also the enactment of the NCMEI Act,which governs minority educational institutions. The NCMEI Act was enacted in 2005 to, inter alia, engender the rights of a minority educational institution to seek recognition as an affiliated college to a Scheduled University and to provide a forum for dispute resolution. In this manner, the NCMEI Act gave greater credence to Article 30 and aided its efficient implementation.

39. In 2006, the NCMEI Act was amended, and the scope of the Commission was expanded further. In addition to protecting the rights of minority educational institutions, the Commission was now endowed with the power to determine and declare whether an institution is a minority institution. Under Section 2(f), minorities have been defined in the NCMEI Act as: “a community notified as such by the Central Government.” Employing this definition, the Central Government has so far notified Muslims, Christians, Sikhs, Buddhists, Parsis and Jains as minority communities.52

52 Ministry of Human Resource Development, No. F.7-5/2005-MC(P) (Notified on 18 January, 2005)

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40. Having examined the development of minority rights, as well as the Constitutional and Statutory scheme, it is pertinent at this juncture, to briefly touch upon the history of AMU and analyze the events leading to the instant matter.

C. Brief history of AMU

41. The history of AMU begins after the founding of the Muhammaden Anglo-Oriental (MAO) College at Aligarh in 1875 by Sir Syed Ahmad Khan. It seems that by the year 1895, MAO College had begun to experience considerable decline. It faced governmental pressure to increase student fees and make examinations more difficult, leading to a decrease in student enrolment and endowments.53 The death of Sir Syed in 1898 further intensified the situation, creating a sense of distrust among the benefactors of the college and a power vacuum.54

42. History further suggests that in 1898, the Sir Syed Memorial Fund was created with the goal of raising funds to pay off the debts of the College and to create an endowment to establish a university. The then Lieutenant Governor of the North-Western Provinces is said to have promised aid and support in the management of the College, provided that there was a stable governing body for the same directly under government supervision. The record further indicates that, by 1903, the fund collection drive had raised enough money to meet the College’s needs and restore its stability.55

43. At the ‘All India Muhammadan Educational Conference’ in Calcutta, the idea of establishing a university in Aligarh sparked significant deliberations and gained momentum. Some proposed a pan-India, affiliating university,56 while others advocated for a

available at https://www.education.gov.in/sites/upload_files/mhrd/files/Notification18012005.pdf; Ministry of Minority Affairs, S.O. 267(E) (Notified on 27 January, 2014) available at https://ncm.nic.in/legislations/ Gazette_JainInclusion_27Jan2014.pdf. 53 Theodore Beck, “The Principal’s Annual Report for 1898—99” (‘Principal’s Report), (1898—99), Muhammadan Anglo-Oriental College Magazine (Aligarh) (MAOCM), and Aligarh Institute Gazette (Aligarh) (AIG), New Series VII, No. 11 (15 July 1899) (At this time the two journals were temporarily merged). 54 Shamim Akhtar, “Aligarh: From College to University” Proceedings of the Indian History Congress (2018-19) Vol. 79, pp. 623. 55 Muhammadan Anglo-Oriental College Magazine (Aligarh) MAOCM, VII, (January 1899), pp. 15-21. 56 Rafiuddin Ahmad, ‘The Proposed Muslim University in India’, The Nineteenth Century, XLIV (1898), 915-21.

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university completely in line with Muslim ideals, with mandatory religious instruction and administration in consonance with Islamic principles.57

44. However, nothing tangible happened on the ground level for multifarious reasons. In early 1910, efforts to establish a university at Aligarh resurfaced. Once the requisite funds had been collected, a committee was established to draft the constitution for the proposed university, designating the Viceroy as the chancellor and placing governance in the hands of a Muslim Court of Trustees. The matter of affiliation was cursorily mentioned only in the context of the powers of approval by various authorities. Finally, after long drawn-out negotiations between relevant stakeholders, in September 1920, the Aligarh Muslim University Act, 1920 (AMU Act, 1920) was passed by the Central Legislature of British India.

C.1. Features of the AMU Act, 1920

45. The AMU Act, 1920 which came into force with effect from 29.07.1920, comprising 40 sections and 23 statutes, was a comprehensive piece of legislation that meticulously regulated various aspects of AMU. The Statement of Objects and Reasons accompanying the Act clearly articulated its purpose: “to incorporate this University, to indicate its functions, to create its governing bodies and to define their functions.” In essence, the AMU Act, 1920 was focused on establishing the University and making it operational by setting up its Governing Bodies and outlining their respective functions.

46. Broadly, there were four important Governing Bodies, i.e., the Executive Council, the Academic Council, the Court, and other Officers such as the Lord Rector, Vice Chancellor, Pro-Vice Chancellor, etc

47. Without expressing any opinion on the interpretation of its provisions or the legislative policy of the AMU Act, 1920,we deem it fit to encapsulate some relevant provisions.

48. In this light, the role and authority of the Lord Rector was delineated in Section 13, which states as follows:

57 Theodore Beck, supra note 53; MAOCM and AIG, supra note 53.

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“13. (1) The Governor General shall be the Lord Rector of the University. (2) The Lord Rector shall have the right to cause an inspection to be made by such person or persons as he may direct, of the University, its buildings, laboratories, and equipment, and of any institution maintained by the University, and also of the examinations, teaching and other work conducted or done by the University, and to cause an inquiry to be made in like manner in respect of any matter connected with the University. The Lord Rector shall, in every case, give notice to the University of his intention to cause an inspection or inquiry to be made and the University shall be made entitled to be represented thereat. (3) The Lord Rector may address the Vice-Chancellor with reference to the result of such inspection and inquiry, and the Vice-Chancellor shall communicate to the Court the views of the Lord Rector with such advice as the Lord Rector may be pleased to offer upon the action to be taken thereon. (4) The Court shall communicate through the Vice- Chancellor to the Lord Rector such action, if any, as it is proposed to take or has been taken upon the result of such inspection or inquiry. (5) Where the Court does not, within reasonable time, take action to the satisfaction of the Lord Rector, the Lord Rector may, after considering any explanation furnished or representation made by the Court issue such directions as he may think fit, and the Court shall comply with such directions.”

49. Similarly, the authority and responsibility of the AMU Court was stated under Section 23: “23. (1) The Court shall consist of the Chancellor, the Pro-Chancellor and the Vice Chancellor for the, time being, and such other persons as may be specified in the Statutes: Provided that no person other than a Muslim shall be a member thereof.

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(2) The Court shall be the supreme governing body of the University and shall have the power to review the acts of the Executive and the Academic Councils (save where such Councils have acted in accordance with powers conferred on them under this Act, the Statutes or the Ordinances) and shall exercise all the powers of the University not otherwise provided for by this Act, the Statutes and the Ordinances and the Regulations. (3) Subject to the provisions of this Act, the Court shall exercise the following powers and perform the following duties, namely:— (a) of making Statutes and of amending or repealing the same; (b) of considering Ordinances; (c) of considering and passing resolutions on the annual report, the annual accounts and the financial estimates; (d) of electing such persons to serve on the authorities of the University and of appointing such officers as may be prescribed by this Act or the Statutes; and (e) of exercising such other powers and perform such other duties as may be conferred or imposed upon it by this Act or the Statutes.”

50. The Executive Council, under Section 24, was touted to be the executive body of the University. With its constitution, term of office of members and powers and duties prescribed by the AMU Statutes. Similarly, the Academic Council, being the academic body of AMU, would have the control and general regulation and be responsible for the maintenance of standards of instruction and for the education, examination, discipline and health of students, apart from the conferment of degrees.

51. The power to make the AMU Statutes was set out in the following manner under Section 27: “27. Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely: -

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(a) The conferment of honorary degrees and the appointment of Patrons, Vice-patrons and Rectors; (b) The institution of Fellowships, Scholarships, Exhibitions, Medals and Prizes; (c) The terms of office, and the method and conditions of appointment of the officers of the University; (d) The designations and powers of officers of the University; (e) The constitution, powers and duties of the authorities of the University; (f) The classification and mode of appointment of teachers of the University; (g) The institution and maintenance of Halls; (h) The constitution of Provident and Pension Funds for the benefit of the officers, teachers and servants of the University; (i) The maintenance of a register of registered graduates; (j) The instruction of Muslim students in the Muslim religion and theology; (k) The establishment of Intermediate colleges and schools; and (l) All matters which by this Act are to be or may be prescribed by Statutes.”

52. In similar parlance, the power to make Ordinances was incorporated within Section 29: “29. Subject to the provisions of this Act and the Statutes, the Ordinances may provide for all or any of the following matters namely: - (a) The courses of study to be laid down for all degrees, diplomas and certificates of the University; (b) The conditions of the award of fellowships, scholarships, studentships, exhibitions, medals and prizes;

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(c) The conditions under which students may be admitted to the degree or diploma courses and to the examinations of the University and shall be eligible for degrees and diplomas; (d) The admission of students to the University; (e) The terms of office and terms and management of appointment and duties of Examining Bodies, Examiners, and Moderators and the conduct of examinations; (f) The conditions of residence of students of the University, and the levying of fees for residence in Halls; (g) The conditions under which women may be exempted from attendance at lectures and tutorial classes; (h) The fees to be charged for courses of study in the University and for admission to the examinations, degrees, and diplomas of the University; (i) The maintenance of discipline among the students of the University; (j) The regulation and management of any Intermediate colleges and schools maintained under Section 12; and (k) All matters which by this Act or the Statutes are to be or may be provided for by the Ordinances.”

C.2. Features of the 1951 Amendment Act

53. With the dawn of independence, the AMU Act was amended in 1951 through Act No. LXII of 1951 (1951 Amendment Act). A significant change was the replacement of the Lord Rector, previously held by the Governor General, with the position of ‘Visitor’.At that time,the term ‘Governor General’ had pertinently been substituted by ‘President of India’ vide the Adaptation of Laws Order, 1950. Section 13 delineated the authority of the Visitor, and was thus amended as follows: “13. (1) The President of India shall be the Visitor of the University. (2) The Visitor shall have the right to cause an inspection to be made by such person or persons as he may direct,

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