Aligarh Muslim University v. Naresh Agarwal & Ors.

Aligarh Muslim University v. Naresh Agarwal & Ors.

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. (2A) The Visitor shall in every case give notice to University of his intention to cause an inspection or inquiry to be made, and the University be entitled to appoint representative who shall have the right to be present and be heard at such inspection or inquiry.; and (3) The Visitor may address the Vice-Chancellor with reference to the result of such inspection and inquiry, and the Vice-Chancellor shall communicate to the Executive Council the views of the Visitor with such advice as the Visitor may be pleased to offer upon the action to be taken thereon. (4) The Executive Council shall communicate through the Vice-Chancellor to the Visitors 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 Executive Council does not, within reasonable time, take action to the satisfaction of the Visitor, the Visitor may, after considering any explanation furnished or representation made by the Executive Council issue such directions as he may think fit, and the Executive Council shall comply with such directions. (6) Without prejudice to the foregoing provisions section, the Visitor may, by order in writing, annul any proceeding of the University which is not in conformity with this Act, the Statutes or the Ordinances: Provided that before making any such order, shall call upon the University to show cause why such an order should not be made, and, if any cause is shown within a reasonable time, shall consider the same.”

54. The AMU Court under Section 23 embodied the following: “23. (1) The Court shall consist of the Chancellor, the Pro-Chancellor and the Vice Chancellor and the Pro-Vice

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Chancellor (if any) for the, time being, and such other persons as may be specified in the Statutes. (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.”

55. It would be relevant to also note the amendment made to Statute making power under Section 27: “27. Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely: (a) the constitution, powers and duties of the authorities of the University; (b) the election and continuance in office of the members of the said authorities, including the continuance in office the filling of vacancies of members, and all other matters relative to those authorities for which it may be necessary or desirable to provide;

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(c) the appointment, powers, and duties of the officers of the University; (d) the constitution of a pension or provident fund and the establishment of an insurance scheme for the benefit of the officers, teachers and other employees of the University; (e) the conferment of honorary degrees; (f) the institution of fellowships, scholarships, studentships exhibitions, medals and prizes; (g) the withdrawal of degrees, diplomas, certificates and other academic distinctions; (h) the establishment and abolition of Faculties, Departments, Halls, Colleges and other institutions; (i) the conditions under which Colleges and institutions. may be admitted to privileges of the University and for the withdrawal of such privileges; (j) the establishment of High Schools and other institutions in accordance with the provisions of section 12; and all other matters which by this Act are to be or may be provided by the Statutes.”

56. Similar amendment was carried out to the Ordinance making power under Section 29, which was to the following effect: “29. (1) 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 admission of students to the University and their enrolment as such; (b) the courses of study to be laid down for all degrees, diplomas and certificates of the University: (c) the award of degrees, diplomas, certificates and other academic distinctions, the qualifications for the same and the means to be taken relating to the granting and obtaining of the same; (d) the fees to be charged for courses of study in the University and for admission to the examinations, degrees, diplomas of the University; and

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(e) the conditions of the award of fellowships, scholarships, studentships, exhibitions, medals and prizes; (f) the conduct of examinations, including the terms of office and manner of appointment and the duties of examining bodies. examiners and moderators: (g) the maintenance of discipline among the students of the University: (h) the conditions of residence of the students of the University; (i) the special arrangements, if any, which may be made for the residence, discipline and teaching of women students and the prescribing for them of special courses of studies; (j) the giving of religious instruction; (k) the emoluments and the terms and conditions of service of teachers of the University; (l) the maintenance of High Schools and other institutions in accordance with the provisions of section 12; (m) the supervision and inspection of Colleges and other institutions admitted to the privileges of the University under section 12A; and (n) all other matters which by this Act or the Statutes, are to be or may be provided for by the Ordinances. (2) The Ordinances in force immediately before the commencement. of the Aligarh Muslim University (Amendment) Act, 1951, may be amended, repealed or added to at any time by the Executive Council provided that- (i) No ordinance shall be made affecting the conditions of residence or discipline of students except after consultation with the Academic Council; (ii) No ordinance shall be made- (a)affecting the admission or enrolment of students or prescribing examinations to be recognised as equivalent to the University examinations, or

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(b)affecting the conditions, mode of appointment or duties of examiners or the conduct or standard of examinations or any course of study, - unless a draft of such Ordinance has been proposed by the Academic Council. (3) The Executive Council shall not have the power to amend any draft proposed by the Academic Council under the provisions of sub section (2) but may reject the proposal or return the draft to the Academic Council for reconsideration, either in whole or in part together with any amendments which the Executive Council may suggest. (4) Where the Executive Council has rejected the draft of Ordinance proposed by the Academic Council, the Academic Council may appeal to the Central Government and the Central Government may, by order, direct that the proposed Ordinance shall be laid before the next meeting of the Court for its approval and that pending such approval it shall have effect from such date as may be specified in the order: Provided that if the Ordinance is not approved by the Court at such meeting, it shall cease to have effect. (5) All Ordinances made by the Executive Council shall be submitted as soon as may be, to the Visitor and the court, and shall be considered by the Court at its next meeting and the Court shall have power, by a resolution passed by a majority of not less than two-thirds of the members voting, to cancel any Ordinance made by the Executive Council, and such Ordinance shall, from the date of such resolution. cease to have effect, (6) The Visitor may, by order, direct that the operation of any Ordinance shall be suspended until he has had an opportunity of exercising his powers of disallowance, and any order of suspension under this sub-section shall cease to have effect on the expiration of one month from the date of such order or on the expiration of fifteen. days

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from the date of consideration of the Ordinance by the Court, whichever period expires later. (7) The Visitor may, at any time after an Ordinance has been considered by the Court, signify to the Executive Council his dis-allowance of such Ordinance, and from the date of receipt by the Executive Council of intimation of such disallowance, such Ordinance shall cease to have effect.”

C.3. Features of the 1965 Amendment Act

57. The Act was further amended by the Act No. 19 of 1965 (1965 Amendment Act). Most significantly, it revised the powers of the Court. Section 23 was accordingly amended as follows: “23. (1) The Court shall consist of the Chancellor, the Pro- Chancellor and such other persons as may be specified in the Statutes: (2) The functions of the Court shall be- (a) to advise the Visitor in respect of any matter which may be referred to the Court for advise; (b) to advise any other authority of the University in respect of any matter; (c) to perform other such duties and exercise such other powers as may be assigned to it by the Visitor or under this Act.”

58. Further, Section 28 was amended in terms of a shift in Statute making power: “286. (1) The first Statutes are those set out in the Schedule. (2) The Executive Council may make new or additional Statutes or may amend or repeal the Statutes; but every new Statute or addition to the Statutes or any amendment or repeal of a Statute shall require the previous approval of the Visitor who may sanction or disallow it or return it to the Executive Council for further consideration.”

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59. Having now outlined the legal history of the AMU Act, 1920 as amended till 1965 and the sequence of relevant events, we now turn to the verdict rendered by the five-judge Constitution Bench in Azeez Basha (supra), which constitutes the sine qua non of the present reference.

D. Challenge to the constitutionality of the 1951 and 1965 Amendment Acts

60. Shortly after the amendment in 1965, the constitutionality of the 1951 and 1965 Amendment Acts was challenged before this Court, which led to the decision in Azeez Basha (supra). The constitutionality of these statutory enactments was primarily examined on the anvil of Article 30 of the Constitution of India, to determine whether AMU could fulfil the litmus test of being a minority educational institution.

D.1. Contentions proffered by the parties therein

D.1.1. Contentions of the Petitioners

61. Briefly, the Petitioners in Azeez Basha (supra) contended that: a. AMU was established by the Muslim minority and therefore, the Muslims had the right to administer it. Insofar as the 1951 and 1965 Amendment Acts take away or abridge any part of that right, they are ultra vires Article 30(1). b. Article 26 would not apply to educational institutions for there is a specific provision in Article 30(1) with respect to educational institutions and therefore, institutions for charitable purposes in Article 26 (a) refer to institutions other than educational ones. c. Article 14 of the Constitution was violated because the terms of the Act establishing Benares Hindu University (BHU) were not the same as the terms of the AMU Act, 1920. Further, other universities, such as Delhi, Agra, Allahabad, Patna, and Benares, have a certain elective element, unlike AMU. d. Article 19 of the Constitution was violated because the 1965 Amendment Act deprived Muslims of their right to manage AMU and of the right to hold the property vested in AMU by the AMU Act, 1920.

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e. Vide the 1965 Amendment Act, the Muslim minority was deprived of their property, under Article 31(1), as the composition of the Court was changed from the terms of the 1920 Act. f. The 1951 and 1965 Amendment Acts violated Articles 25 and 29 of the Constitution.

D.1.2. Contentions of the Respondents

62. Conversely, the Respondents submitted that: a. AMU was established in 1920 by the AMU Act, 1920 and this establishment was not by the Muslim minority, but by the Government of India (GoI) by virtue of a Statute. Thus, the Muslim minority could not claim any Fundamental Right to administer AMU under Article 30(1). b. Since AMU was established by the GoI, the Parliament had the right to amend that Statute as it thought fit. There was no question of taking away the right to administer under the 1951 and 1965 Amendment Acts, as the Muslim minority never had the right of administration. c. Though the Court of AMU was to be composed entirely of Muslims, under the AMU Act, 1920, they were not given the right to administer the university. It was to be administered by the authorities established under the AMU Act, 1920.

D.2. Issues formulated

63. While this Court in Azeez Basha (supra) did not explicitly outline the issues, a plain reading of the decision reveals the following key issues that were broadly addressed: a. Whether a ‘university’ established prior to the Constitution coming into force could be construed to be an educational institution included within the ambit of Article 30? b. What is the meaning of the term ‘establish’ in Article 30 and whether AMU was established by the Muslim minority? c. Whether AMU was administered by Muslims? d. Whether the 1951 and 1965 Amendment Acts were violative of other Articles contained in Part III of the Constitution?

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D.3. Key holdings in Azeez Basha (supra)

64. In the decision of Azeez Basha (supra), the Constitution Bench adjudicated that AMU was not a minority institution for the purposes of Article 30(1) of the Indian Constitution. Since the conclusion of this case forms the bedrock of the present challenge, it is essential to discuss the key holdings of this judgment.

65. In this regard, the Court held that to be a minority institution under Article 30, such an institution must have been both established and administered by the minority community. In other words, it noted that the test provided under Article 30 is conjunctive, and an institution cannot enjoy autonomy to such an extent unless it satisfies both the prongs of establishment as well as administration by the minority community. This Court thus opined that: “19. […] The Article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. The article cannot be read, to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words “establish and administer” in the article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it […]”

66. Having held so, this Court then proceeded to analyze each issue separately.

D.3.1 Whether universities established pre-Constitution could be included within the ambit of Article 30?

67. This Court in Azeez Basha (supra) firstly observed that the term ‘educational institution’ in the Constitution had a wide expanse, and that universities, which would be institutions that could confer degrees, would be covered under the wide import of this term. It further observed that though some private universities in pre- Constitution India did not have government recognition, this would

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not disentitle them from being covered under the category of an ‘educational institution’.

68. Further, relying on the decision in In re the Kerala Education Bill,58 it held that if Article 30 were to be interpreted such that it covered only educational institutions established after the coming into force of the Constitution, it would rob Article 30 of its very meaning. In this vein, it held as follows: “19. … The words “establish and administer” in the article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it. In this connection our attention was drawn to In re; The Kerala Education Bill, 1957 where, it is argued, this Court had held that the minority can administer an educational institution even though it might not have established it. In that case an argument was raised that under Article 30(1) protection was given only to educational institutions established after the Constitution came into force. That argument was turned down by this Court for the obvious reason that if that interpretation was given to Article 30(1) it would be robbed of much of its content. … It is true that at p. 1062 the Court spoke of Article 30(1) giving two rights to a minority i.e. (i) to establish and (ii) to administer. But that was said only in the context of meeting [t]he argument that educational institutions established by minorities before the Constitution came into force did not have the protection of Article 30(1). We are of opinion that nothing in that case justifies the contention raised of behalf of the petitioners that the minorities would have the right to administer an educational institution even though the institution may not have been established by them. …” [Emphasis supplied]

D.3.2 What is the meaning of the term ‘establish’ and whether AMU was ‘established’ by the Muslim community?

58 In re the Kerala Education Bill, 1957,1958 SCR 995.

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69. The Court in Azeez Basha (supra) interpreted the term ‘establish’ in Article 30 to mean ‘to bring into existence.’ To determine whether AMU was established by the Muslim community, the Court examined the legal framework for the establishment of a university. It was found that prior to independence, a private individual could create a university independently, with State intervention only required for the purposes of recognition of the degree conferred. In this context, it observed that though Muslims had the option to establish a university without any state involvement, they opted for State intervention to secure degree recognition. Consequently, this Court concluded that AMU was established vide the AMU Act, 1920, which was enacted by the then Parliament. It therefore held that AMU was established by an act of the Central Legislature and not by the Muslim community: “22. There was nothing in 1920 to prevent the Muslim minority, if it so chose, to establish a university; but if it did so the degrees of such a university were not bound to be recognised by Government. It may be that in the absence of recognition of the degrees granted by a university, it may not have attracted many students, and that is why we find that before the Constitution came into force, most of the universities in India were established by legislation. […] It is clear therefore that even though the Muslim minority could have established at Aligarh in 1920 a university, it could not insist that degrees granted by such a university should be recognised by Government. Therefore, when the Aligarh University was established in 1920 and by Section 6 its degrees were recognised by Government, an institution was brought into existence which could not be brought into existence by any private individual or body for such individual or body could not insist upon the recognition of the degrees conferred by any university established by it. The enactment of Section 6 in the 1920. Act is a very important circumstance which shows that the Aligarh University when it came to be established in 1920 was not established by the Muslim minority, for the minority could not insist on the recognition by Government of the degrees conferred by any university established by it.”

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“26. […] But if the M.A.O. College was to be converted into a university of the kind whose degrees were bound to be recognised by Government, it would not be possible for those who were in-charge of the M.A.O. College to do so. That is why the three institutions to which we have already referred approached the Government to bring into existence a university whose degrees would be recognised by Government. The 1920 Act was then passed by the Central Legislature and the university of the type that was established thereunder, namely, one whose degrees would be recognised by Government, came to be established. It was clearly brought into existence by the 1920 Act for it could not have been brought into existence otherwise. It was thus the Central Legislature which brought into existence the Aligarh University and must be held to have established it. It would not be possible for the Muslim minority to establish a university of the kind whose degrees were bound to be recognised by Government and therefore it must be held that the Aligarh University was brought into existence by the Central Legislature and the Government of India. If that is so, the Muslim minority cannot claim to administer it, for it was not brought into existence by it. […]” [Emphasis supplied]

D.3.3 Whether AMU was ‘administered’ by the Muslim community?

70. This Court in Azeez Basha (supra) then examined the AMU Act, 1920 in greater detail and determined that the Act did not grant administrative control of the University to the Muslim community. It observed that members of the AMU Court were elected by individuals who made donations exceeding INR 500, a category which included non-Muslims as well. Furthermore, the Lord Rector, who was the Governor-General, held overriding powers concerning administrative matters. Additionally, various bodies, such as the Executive Council and the Academic Council, possessed significant authority over the University’s affairs. Based on this analysis, the Court concluded that AMU did not meet the administrative criteria required by Article 30 and, therefore could not be recognized as a minority institution:

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“28. It appears from para 8 of the Schedule that even though the members of the Court had to be Muslims, the electorates were not exclusively Muslims. For example, sixty members of the Court had to be elected by persons who had made or would make donations of five hundred rupees and upwards to or for the purposes of the University. Some of these persons were and could be non-Muslims. Forty persons were to be elected by the Registered Graduates of the University, and some of the Registered Graduates were and could be non-Muslims, for the University was open to all persons of either sex and of whatever race, creed or class. Further fifteen members of the Court were to be elected by the Academic Council, the membership of which was not confined only to Muslims.” “29. Besides there were other bodies like the Executive Council and the Academic Council which were concerned with the administration of the Aligarh University and there was no provision in the constitution of these bodies which confined their members only to Muslims. It will thus be seen that besides the fact that the members of the Court had to be all Muslims, there was nothing in the Act to suggest that the administration of the Aligarh University was in the Muslim minority as such. Besides the above, we have already referred to Section 13 which showed how the Lord Rector, namely, the Governor- General had overriding powers over all matters relating to the administration of the University. Then there was Section 14 which gave certain over-riding powers to the Visiting Board. The Lord Rector was then the Viceroy and the Visiting Board consisted of the Governor of the United Provinces, the members of his Executive Council, the Ministers, one member nominated by the Governor and one member nominated by the Minister in charge of Education. These people were not necessarily Muslims and they had overriding powers over the administration of the University. Then reference may be made to Section 28(2)(c) which laid down that no new statute or amendment or repeal of an

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existing statute, made by the University, would have any validity until it had been approved by the Governor-General- in-Council who had power to sanction, disallow or remit it for further consideration. Same powers existed in the Governor-General-in-Council with respect to ordinances. Lastly reference may be made to Section 40, which gave power to the Governor-General-in-Council to remove any difficulty which might arise in the establishment of the University. These provisions in our opinion clearly show that the administration was also not vested in the Muslim minority; on the other hand it was vested in the statutory bodies created by the 1920 Act, and only in one of them, namely, the Court, there was a bar to the appointment of any one else except a Muslim, though even there some of the electors for some of the members included non-Muslims. We are therefore of opinion that the Aligarh University was neither established nor administered by the Muslim minority and therefore there is no question of any amendment to the 1920 Act being unconstitutional under Article 30(1) for that Article does not apply at all to the Aligarh University.” [Emphasis supplied]

D.3.4 Whether any other Articles of Part III were violated?

71. This Court analysed the 1951 and 1965 Amendment Acts in consonance with other Articles enshrined in Part III of the Constitution, and arrived at the following conclusions: a. Article 26(a) also bestows the right to ‘establish and maintain’. However, since AMU was not established by the minority, the right to maintain does not arise. b. Article 26(c) and (d) provides the right to acquire and keep assets. However, the assets of AMU vest in the University and not in the Muslim minority, following the passing of the AMU Act, 1920. c. Articles 25 and 29 are not affected in any manner by either of the Amendment Acts.

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d. Article 14 of the Constitution is not violated as there exists a difference in the administrative structure of one university when compared with another. This cannot be construed to be discriminative and is a matter of legislative policy. e. The right to form associations as espoused under Article 19 is not affected by the Amendment Acts. f. Article 31(1) is also not violated, since the property vested in AMU is not the property of the Muslim minority. It was voluntarily vested in AMU by MAO College and the Muslim University Association. The money of the Muslim University Foundation Committee was also voluntarily surrendered to the Government to facilitate the establishment of AMU through the AMU Act,

1920. Thus, at the time of coming into force of the Constitution, no right of the Muslim minority existed in property vested with AMU, and it cannot be said that the Amendments deprived the Muslim minority of the same.

E. History of discordance with Azeez Basha

72. Having analysed Azeez Basha (supra), it is imperative to also take into account the decisions proffered by this Court in other relevant cases to holistically understand the background of the reference before this Court. Post the decision in Azeez Basha (supra) came the 1972 Amendment Act vide Act No. 34 of 1972 (1972 Amendment Act), introducing several significant changes.

73. Thereupon, the first discordant note was struck by a two-judge bench of this Court in Anjuman-e-Rahmaniya v. District Inspector of Schools.59 That was a case where this Court was considering the minority status of an institution established by a society registered under the Societies Registrations Act, 1860. The question raised therein pertained to whether such registration would be determinative against the minority status of this institution. In this regard, this Court broadly formulated the following two issues for adjudication: i. Whether Article 30(1) of the Constitution envisages an institution which is established by minorities alone without the participation for the factum of establishment from any other community?

59 Anjuman-e-Rahmaniya v. District Inspector of Schools, W.P.(C) No. 54-57 of 1981.

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ii. Whether soon after the establishment of the institution if it is registered as a society under the Societies Registration Act, 1860, its status as a minority institution changes in view of the broad principles laid down in Azeez Basha (supra)?

74. The Court then doubted the correctness of Azeez Basha (supra) and referred the case to the Chief Justice for placement before a seven-judge bench, as several jurists including Mr. Seervai had expressed their doubts on the correctness of the said decision. The bench considered it appropriate, in a way, to direct constituting of a larger bench to consider the entire aspect fully.

75. The issue pertaining to the correctness of such reference made by the two-judge bench, has been dealt with greater detail in paragraphs 83 to 99 of this judgement. Almost immediately thereafter, came the 1981 Amendment Act, through Act No. 62 of 1981 (1981 Amendment Act), which finalized the current framework of the AMU Act and reversed some of the changes introduced by the 1972 Amendment Act.

76. Almost two decades after the reference in Anjuman (supra), came the magnum opus decision of the eleven-judge bench of this Court in TMA Pai (supra).In this case, the Court was tasked with analysing the different facets of Article 30, including the extent of intervention permissible by the State and the meaning of the term ‘minority’. Notably, the Court framed a question similar to the reference in Anjuman (supra) but held that the question is to be decided by a regular bench: “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.” [Emphasis supplied]

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77. Soon thereafter, vide an order dated 11.03.2003, a two-judge bench finally disposed of the petitions that remained pending in Anjuman (supra), with the broad directions that: “These matters are covered by the decision of a Constitution Bench of this Court in Writ Petition No. 317/1993-T.M.A. Pai Foundation & Ors. Etc. Vs. State of Karnataka & Ors. Etc. and connected batch decided on 3·1 11 October, 2002. All statutory enactments, orders, schemes, regulations will have to be brought in conformity with the decision of the Constitution Bench of this court in T.M.A. Pai Foundation’s case decided on 31.10.2002. As and when any problem arises the same can be dealt with by an appropriate Forum in an appropriate proceeding. The Writ Petitions are disposed of according[ly].”

78. Hence, though Anjuman (supra) was disposed of, the correctness of Azeez Basha (supra) was left to be answered. Ultimately, the question of the minority status of AMU was raised again in the present batch of appeals in the 2019 Reference Order, which arose out of a challenge laid to different judgements rendered by the High Court of Judicature at Allahabad,holding that in view of Azeez Basha (supra) AMU is not a minority institution. A three-judge bench of this Court therefore examined the trajectory of judicial decisions and noted that the correctness of Azeez Basha (supra) remains undecided. This Court also noted that apart from Azeez Basha (supra), two other aspects required an authoritative pronouncement: (i) The decision in Prof. Yashpal (supra), wherein this Court had held that a private university can only be established by a separate Act or by a compendious Act where the legislature specifically provides for the establishment of the said university; and (ii) The 2010 Amendment of the NCMEI Act, prior to which, the definition of minority educational institutions excluded a university. However, the 2010 Amendment thereafter deleted this exclusion. Accordingly, for an authoritative pronouncement of these issues, the case was referred to the present seven-judge bench of this Court. The relevant part of the 2019 Reference Order is extracted below: “8. The said facts would show that the correctness of the question arising from the decision of this Court in S. Azeez Basha (supra) has remained undetermined.

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9. That apart, the decision of this Court in Prof. Yashpal and another vs. State of Chhattisgarh and others2 and the amendment of the National Commission for Minority Educational Institutions Act, 2004 made in the year 2010 would also require an authoritative pronouncement on the aforesaid question formulated, as set out above, besides the correctness of the view expressed in the judgment of this Court in S. Azeez Basha (supra) which has been extracted above.

10. Ordinarily and in the normal course the judicial discipline would require the Bench to seek a reference of this matter by a Five Judges Bench. However, having regard to the background, as stated above, when the precise question was already referred to a Seven Judges Bench and was, however, not answered, we are of the view that the present question, set out above, should be referred to a Bench of Hon’ble Seven Judges.

11. Consequently, and in the light of the above, place these matters before the Hon’ble the Chief Justice of India on the administrative side for appropriate orders.”

79. Having understood the background of the challenge and the reference before this seven-judge bench, we shall now turn to the submissions made by the parties in support of their stance on the matter.

II. Contentions of the parties

Appellant’s submissions:

80. Dr. Rajeev Dhavan, Mr. Kapil Sibal, Mr. Salman Khurshid, Mr. Nikhil Nayyar, and Mr. Shadan Farasat, Learned Senior Advocates, appeared for AMU. Their contentions are detailed hereinbelow: a. In the context of Article 30,the term ‘minority’ means a community that constitutes less than fifty percent of the population in the State where the educational institution is situated. This standard was laid down in TMA Pai (supra). Per this standard, Muslims are a minority in the State of Uttar Pradesh. Moreover, the status of Muslims as a minority was evident even before the Constitution came into force, as they were already being afforded reservation in legislative organs.

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b. To claim protection under Article 30, the minority community is only required to prove that it established the institution. The question of administration, on the other hand, is not relevant in determining the minority character of an institution. It is a right that flows once the institution is established as a minority institution, thus making it a consequence and not a pre-requisite. In other words, the test under Article 30 is not conjunctive, and the claimant is not required to necessarily prove that the institution was being administered by the minority community. c. The word ‘establish’ should be interpreted widely since it is the only protection available to minorities. ‘Establishment’, under Article 30, is the meeting of minds of the community for the purpose of taking forward the idea that ultimately results in the university being set up. Thus, the genesis of the institution must be considered while examining the word ‘established.’ In contrast, the word ‘established’ used in the AMU Act, 1920 refers to recognition for incorporation and is not the same as the term ‘establish’ used in Article 30. d. The term ‘administration’ does not mean cent percent control over the institution by the minority community. The State can prescribe reasonable regulations for the management of minority institutions. Administration merely requires overall control. The minority community, in this regard, has the choice to ask others to administer on their behalf. e. Under Article 30, the term ‘establish’ requires the genesis of the institution to be linked to the minority community. AMU meets this criterion since it originated as MAO College, which was established and administered by Muslims. The desire to convert MAO College to AMU came from the Muslim community, having gathered funds from the Muslim community. Further, AMU was established with the desire of the Muslim community to have their own university. Therefore, AMU can be said to have been established by the Muslim community. f. The establishment of AMU was an exercise completed by the Muslim community, and the AMU Act, 1920 merely conferred statutory recognition to such an establishment. It was not a creation of the Statute but was rather an acknowledgement

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by a Statute. Merely because a university was incorporated through State action cannot confer or take away from its nature, as every juristic entity is a creation of State action. g. The administration of AMU was also under the control of Muslims. All members of the AMU Court were required to be Muslims, and its powers were further strengthened by the 1981 Amendment Act. The administration, which entails overall control, remains with the Muslim community. Even if it were determined that external members had administrative roles, it would not jeopardize the university’s minority status. This is because the Muslim community retains the right to reclaim administrative control, as Fundamental Rights cannot be waived. h. Lastly, the Union of India (UOI) cannot be allowed to challenge its own statutory enactment, i.e., 1981 Amendment Act. Such a summersault in its stance cannot be permitted merely because of a change in the political regime. Furthermore, the UOI has not substantiated the reason for such a volte-face. Thus, its approach lacks bona fides,and the UOI, particularly the Attorney General for India, is obligated to defend such an act of Parliament. Hence, it cannot take a stand against the minority status of AMU.

Respondents’ submissions:

81. Mr. R. Venkataramani, Learned Attorney General for India, Mr. Tushar Mehta, Learned Solicitor General of India, Mr. K. M. Nataraj and Mr. Vikramjit Banerjee, Learned Additional Solicitor Generals of India, Mr. Rakesh Dwivedi, Mr. N. K. Kaul, Mr. G. K. Kumar, Mr. Vinay Navare, Mr. Sridhar Potaraju and Ms. Archana P. Dave Learned Senior Advocates, appeared on behalf of the Respondents. Their arguments are detailed hereinbelow: a. A bench of two judges could not have directly referred the matter to a bench composed of seven judges in Anjuman (supra) and as such, the reference itself ought to be construed as bad in law. Further, the reference only sought clarity on the definition of a minority institution under Article 30 of the Constitution and did not include examination of whether AMU is a minority educational institution.

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b. Challenging the locus standi of the Appellant, it was argued that Muslims do not constitute a minority community. For a community to be a minority, it should not just be numerically less than the majority but should also be politically non-dominant. Per this test, Muslims were a numerically larger group than the pre-independence dominant class, i.e., Christians. Hence, Muslims do not have the locus to invoke Article 30. In any case, the institutions that were formed prior to the coming of the Constitution cannot claim minority status because there was no such Fundamental Right when such institutions were created. c. To claim protection under Article 30, the minority community must prove that the institution was both established and is being administered by the community. Merely proving that the minority community established the institution is not enough to claim the status of a minority institution. d. The word ‘establish’ in Article 30 means bringing an institution into existence. For this, the Court must see if the institution in its legally operational form could have existed ‘but for’ the Statute. If the Statute accorded legal operationalization to the institution, the establishment would be attributed to the legislature and not the minority community. e. The de facto position of the minority’s role in administration is irrelevant to determining administration by a minority. The Court must see various relevant indicia of administrative control, including who controls the decisions regarding admission, levy of fees, governing council, the appointment of staff, disciplinary powers, and ordinances and statutes. f. The meaning of ‘establish’ in Article 30 is bringing an institution into existence. AMU was brought into existence by the then Central Legislature, through the AMU Act, 1920. The Constituent Assembly Debates also do not expressly identify AMU as a minority institution within the ambit of Article 30. This indicates that the drafters intended to establish the university’s national character. To this day, the UOI contributes over a thousand crores to AMU, which has resulted in a complete metamorphosis of the university. Finally, the Preamble to the AMU Act, 1920 reflects that AMU was brought into existence by the Act and not by the Muslim community.

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g. The AMU Court only has residuary powers, not administrative powers. There is no majority of Muslims in the AMU Court, as only 32 out of 180 or more members are Muslims. Except for the AMU Court, no other body or authority is required to be Muslim. Moreover, various administrative functions are vested with bodies such as the Executive and Academic Councils and the Visitor, which are characteristically governmental or external. Even if there are a few Muslim members present in any of the bodies, it was simply an initiative by the State to instil confidence in the community and to ensure their participatory role without giving them any significant control. Hence, AMU is not being administered by the Muslim community. h. The contention that the Attorney General for India must defend the 1981 Amendment Act is flawed, especially when the same does not exist in the eyes of law—the same having been struck down by the Allahabad High Court. Regardless, the present dispute is not limited to inter se the parties, but involves questions of constitutional interpretation and national importance. Hence, the primary duty of the UOI is to assist the Court and not to defend an amendment in the Act, which is per se unconstitutional.

III. Issues for determination

82. Thus, in our considered opinion, the instant reference,based on the question of the tests required to be fulfilled by an institution, for seeking protection under Article 30 of the Constitution of India, can be broken down into the following segmented questions of law and fact:

Prefatory issues I. What are the requisite parameters of reference to a larger bench? What matters were intended to be addressed by the larger bench, in Anjuman (supra);What are the facets required to be considered by a regular bench for making a reference is made to a larger bench; What are the powers entrusted to the Chief Justice of India in such circumstances?

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II. Whether Appellant has the locus standi to bring the present challenge? It is essential to examine whether the Appellant can invoke Article 30 in the first place. In this regard, various sub-issues that may arise are: (a) Can Article 30 be invoked by institutions set up before the Constitution?;(b) Is it necessary for the whole of the minority community to file the claim, or can an individual or group of individuals also bring a claim?; and (c) Would Muslims be considered a ‘minority’?

Questions on constitutional interpretation III. What are the tests to seek protection under Article 30 of the Constitution? It is necessary to examine the requirements that must be met for claiming protection under Article 30. The relevant question in this regard is whether the expressions ‘establishment’ and ‘administration’ should be read conjunctively or disjunctively? IV. What is the meaning of the term ‘establish’ in Article 30? Article 30 does not define the term ‘establish’. The pertinent questions are: (a) What is the scope and meaning of this term?; (b) Can a university be established without statutory intervention? If not, whether the recognition of a university by a Statute amounts to establishment by the Legislature? and (c) Is there any conflict in the opinions of this Court in Azeez Basha (supra) vis-à-vis Prof. Yashpal (supra) and the provisions of the NCMEI Act? V. What is the meaning of the term ‘administer’ in Article 30? Akin to the term ‘establish’, the term ‘administer’ is also not defined. It is necessary to understand its meaning, along with its scope. In other words, the question is whether the presence of members of the non-minority community within the management would necessarily mean that the minority community is not administering the institution? VI. Whether AMU satisfies the test of ‘establish’ and ‘administer’ and is thus entitled to the protection under Article 30?

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VII. Whether the Union of India is obligated to defend the AMU Amendment Act, 1981?

IV. Analysis

Prefatory Issues

F. Issue I: What are the requisite parameters of reference to a larger bench?

83. The issue concerning the power of a regular bench to refer a matter to a larger bench must be examined in light of the order passed in Anjuman (supra), which opined that Azeez Basha (supra) required reconsideration by a larger bench and proceeded to refer it to a seven- judge bench. To this end, the Respondents have vehemently contended that such reference was bad in law and should be declared so.

84. In this vein, we have identified two key aspects of this issue: (i) what were the issues identified in Anjuman (supra) which were intended for the larger bench to address; and (ii) whether the manner of making such a reference was legally sound.

F.1. Issues that were intended to be addressed by the larger bench

85. At the outset, it is crucial to determine whether the bench in Anjuman (supra) intended to restrict the reference in such a way that the seven-judge bench would only analyse the criteria necessary for an institution to qualify as a minority institution under Article 30 of the Constitution. For the sake of clarity and despite the risk of repetition, we find it essential to put forth the relevant extract from the observations made in Anjuman (supra): “After hearing counsel for the Parties, we are clearly of the opinion that this case involves two substantial questions regarding the interpretation of Article 30(1) of the Constitution of India. The present institution was founded in the year 1938 and registered under the Societies Registration Act in the year 1940. The documents relating to the time when the institution was founded clearly shows that while the institution was established mainly by the Muslim community but there were members 5

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from the non-Muslim community also who participated in the establishment process. The point that arises is as to whether Act. 30(1) of the Constitution envisages an institution which is established by minorities alone without the participation for the factum of establishment from any other community. On this point, there is no clear decision of this court. There are some observations in S. Azeez Basha & ors. Vs. Union of India 1968(1) SCR 333, but these observations can be explained away: Another point that arises is whether soon after the establishment of the institution if it is registered as a Society under the Society Registration Act, its status as a minority institution changes in view of the broad principles laid down in S. Azeez Basha’s case. Even as it is several jurists including Mr. Seervai have expressed about the correctness of the decision of this court in S. Azeez Basha’s case. Since the point has arisen in this case we think that this is a proper occasion when a larger bench can consider the entire aspect fully. We, therefore, direct that this case may be placed before Hon. The Chief Justice for being heard by a bench of at least 7 judges so that S. Azeez Basha’s case may also be considered and the points that arise in this case directly as to the essential conditions or ingredients of the minority institution may also be decided once for all. A large number of. jurists including Mr. Seervai, learned counsel for the petitioners Mr. Garg and learned counsel for respondents and interveners Mr. Dikshit and Kaskar have stated that this case requires reconsideration. In view of the urgency it is necessary that the matter should be decided as early as possible we give liberty to the counsel for parties to mention the matter before Chief Justice.” [Emphasis supplied]

86. A plain reading of these observations reveals that the two-judge bench in Anjuman (supra) doubted the correctness of the decision in Azeez Basha (supra) and the principles enunciated therein. The bench while questioning the holding in Azeez Basha (supra), also borrowed strength from the views expressed by some jurists.

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87. In Azeez Basha (supra), the issue pertained to the constitutional validity of the AMU 1951 and 1965 Amendment Acts. While questioning the correctness of the decision in Azeez Basha (supra), it is evident that the reference in Anjuman (supra) also insinuated that potential errors may have occurred in the analysis of the constitutionality of those enactments. The reference seeking to re-open the issues settled in Azeez Basha (supra), thus, necessarily means not only to re- examine the correctness of that decision but also an attempt to revisit the constitutionality of the AMU 1951 and 1965 Amendment Acts.

88. Importantly, the key term used in the reference order in Anjuman (supra) is ‘and’, which is clearly used to state that both ‘Azeez Basha’s case may also be considered’ and ‘the ingredients of a minority institution’ should be examined definitively. Such an analysis would also have to consider the question posed in TMA Pai (supra) under 3(a) regarding the criteria required for an institution to qualify as a ‘minority institution’ under Article 30 of the Constitution, and consequently, as to whether, AMU fulfils such criteria or not.

89. We therefore find it difficult to align ourselves with the opinion expressed by Hon’ble the Chief Justice, according to which the reference before us was limited to determining only the criteria an educational institution must meet under Article 30 of the Constitution. However, given the Hon’ble Chief Justice’s decision to further refer the matter pertaining to AMU to a regular bench, we have confined our views to discerning the relevant indicia under Article 30, so as to avoid binding or influencing the regular bench that will ultimately decide the factual issues.

F.2. Manner of making reference to a larger bench

90. The two-judge bench in Anjuman (supra), after expressing doubt about the correctness of Azeez Basha (supra) and its principles, referred the matter for reconsideration to a larger bench. Additionally, the bench in Anjuman (supra) specifically stated that the larger bench reviewing Azeez Basha (supra)—a decision by a five- judge bench—should consist of seven judges. The decision further directed that the matter be placed before the Hon’ble Chief Justice for appropriate directions.

91. Such a reference, to our mind, is not consistent with the established norms of judicial propriety. There are several reasons which

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substantiate this school of thought. For instance, Order VII Rule 2 of the Supreme Court Rules, 1966 as applicable during the time of the reference stated: “Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.” [Emphasis supplied]

92. In this regard, it is imperative to refer to the findings of the Constitution Bench in Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another,60 which while adjudicating the correctness of previous decisions on the Bombay Prevention of Excommunication Act (Act 42 of 1949), also laid down pertinent principles on the procedure for making references. The decision in Dawoodi Bohra (supra) essentially clarified the framework concerning how a reference should be made, particularly when a bench of lesser strength doubts the correctness of a decision by a larger or co-equal bench. It held that: “12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms :- (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. (2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to

60 (2005) 2 SCC 673.

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express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. (3) The above rules are subject to two exceptions: (i) The above said rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Ors. and Hansoli Devi and Ors. (supra)” [Emphasis supplied]

93. The principles enunciated in Dawoodi Bohra (supra) re-enforce the provisions of the Supreme Court Rules referred to earlier, and also reiterate the well-established principles based upon doctrines of predictability, consistency, finality and the principle of stare decisis. The two-judge bench in Anjuman (supra), ought to have understood and applied the law,consistent with these principles. The two-judge bench in Anjuman (supra) being of lesser strength than the five-judge bench in Azeez Basha (supra), lacked the authority to explicitly question the correctness of Azeez Basha (supra) and refer the matter to a seven-judge bench.

94. In Anjuman (supra), the bench not only referred the matter but also specified the numerical strength of the bench to which it should be referred, with a further direction that the matter be placed before the

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Chief Justice for the limited purpose of notifying the composition of the seven-judge bench. With utmost respect at our command, we do not appreciate as to how a two-judge bench could dictate its viewpoint to the Chief Justice of India. This, to our mind, effectively impaired the Chief Justice’s authority as the master of the roster. Allowing such a practice would enable benches of lesser strength, such as a two-judge bench, to undermine the decisions of larger benches, potentially even an eleven-judge bench. This would also place the Chief Justice in an untenable position, who would be bound by a judicial order while acting in an administrative role, leading to procedural complications and embarrassment.

95. We reiterate that such actions completely undermine the principle of stare decisis, a well-established doctrine that mandates the consistent application of legal principles once pronounced by authoritative courts. This principle is rooted in the idea that once a court has determined a rule applicable to a specific set of circumstances, it should be followed in all future cases involving substantially similar facts.61 Stare decisis et non quieta movere—which means to stand by things decided and not disturb settled matters. Accordingly, the importance of precedents and stare decisis as fundamental features of our legal system requires that law laid down by higher courts be followed by coordinate or co-equal benches, and most certainly by smaller benches and subordinate courts.

96. The very purpose of these principles is to ensure predictability and stability in judicial decisions, thereby upholding the Rule of Law. It is trite law that when legal precedents are consistently followed, the law remains stable and strengthened, rather than being disrupted at every opportunity.62 Consistency and finality in judicial orders foster greater confidence and trust in the judicial system, which is the need of the hour. The mere fact that another interpretation may be possible does not warrant unsettling well-established law that has long governed the field.63 Deviation from these long-settled principles, leads to a situation marred by uncertainty and instability, vitiating any sense of finality.

61 Krishen Kumar v. Union of India (1990) 4 SCC 234. 62 State of Uttar Pradesh v. Ajay Kumar Sharma (2016) 15 SCC 292 63 Shanker Raju v. Union of India (2011) 2 SCC 132

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97. In this light, we respectfully disagree with the opinion of Hon’ble the Chief Justice that the reference in Anjuman (supra) passes muster. Such a reading risks opening the floodgates to further complexity and disruption, where smaller benches could disregard established principles and overturn decisions of larger benches. This would erode the concept of well-settled principles and destabilize the legal framework, as each judgment would strive to chart new directions, undermining legal certainty and continuity. Ironically, the reference in Anjuman (supra) strikes through the very core of Dawoodi Bohra (supra) and the law laid therein.

98. We thus have no hesitation in holding that it is the Chief Justice of India alone, who is the custodian of the authority to determine the composition of benches, and, in public or national interest, place a matter before any bench he deems appropriate, even in the absence of any reference. That being so, the 2019 Reference Order issued by a three-judge bench, which included the then Chief Justice of India, cannot be faulted. Consequently, based on that order, we consider it appropriate to proceed with the determination of some of the issues concerning the constitutional challenge.

99. We also respectfully disagree with the opinion of Hon’ble the Chief Justice in paragraph 39 of his draft judgement, according to which, Anjuman (supra) has merely ‘doubted’ and not ‘disagreed’ with Azeez Basha (supra). It seems to us that the terms ‘doubt’ and ‘disagree’ broadly carry similar connotations. It is difficult to doubt a judicial opinion unless we disagree with the correctness of its contents and substance. Similarly, a disagreement would originate only when such opinion is shrouded with doubts on law or on facts.

G. Issue II: Whether the Appellant has the locus standi to bring the present challenge?

100. The Respondents have countered the Appellant’s locus standi to invoke Article 30. They have argued that there was no such Fundamental Right available at the time when AMU was established. It is their assertion that since Fundamental Rights are not retrospectively applicable, and considering AMU was established before the Constitution, it cannot claim protection under Article 30. In addition, the Respondents have challenged the Appellant’s locus on the ground that Muslims did not constitute a ‘minority’ in 1920.

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101. The Appellant has controverted the Respondents’ objections by arguing that even pre-Constitution institutions can invoke the right under Article 30 and that Muslims did indeed constitute a minority in the State of Uttar Pradesh at the relevant time because they were numerically lesser when compared to other communities. Accordingly, the Appellant contended that it has the locus standi to enforce the right granted by Article 30.

102. These contentions thus merit a determination as to whether a claim can be brought under Article 30 in the first place.

G.1. Locus of pre-Constitution institution

103. It is a settled principle of law that Fundamental Rights are not retrospectively applicable.64 The Constitution of India was framed in a social context that marked a significant departure from an exacting colonial regime to a system based on rights and self- governance. Hence, the legal milieu in these two regimes inevitably differed, with the Constitution imposing more stringent restrictions on governmental actions. Consequently, if the previous actions of the colonial government were to be tested on the touchstone of the Constitution, nearly all such acts would need to be overturned.

104. Such a wholesale invalidation of past actions would have far-reaching consequences. It could undermine the stability of the legal system, as people’s lives and rights—such as property rights, contractual relationships, etc.—have been shaped by those earlier actions. Hence, the social and economic disruption resulting from such a scenario would be severe. Furthermore, the retrospective application of Fundamental Rights could also lead to a legal quagmire, where Courts would be crippled with cases in which relevant documents and evidence might no longer be available. Moreover, such an unscrambling of the egg might nearly be impossible in some instances, such as cases of criminal convictions from decades ago.

105. The non-retrospective application of Fundamental Rights therefore is a pragmatic principle aimed at ensuring effective governance in society without being hindered by ghosts from the past.

64 Sushila Rao, “The Doctrine of Eclipse in Constitutional Law: A Critical Reappraisal of its Contemporary Scope and Relevance” National Law School of India Review, (2006) Vol. 18 No. 1 pp. 49.

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106. At this point, it is essential to distinguish between retrospective and retroactive laws. A retrospective law imposes new obligations or rights on transactions that have already been completed. In contrast, retroactive legislation applies to ongoing transactions, affecting obligations that arise after the law’s enactment, even if the transactions began beforehand.65 For example, if a law prohibits houses from having more than two floors and requires existing houses exceeding this limit to be demolished, it is retrospective. If the law only affects houses under construction when it comes into force, it is retroactive.

107. While the retrospectivity of Fundamental Rights is generally restricted, their application on transactions that arose before and continued post-1950 are not. The temporal boundary in the application of Fundamental Rights prevents pre-Constitution violations from being agitated, and it does not proscribe institutions created before the Constitution to plead their rights post its enactment. If we were to hold otherwise, it would lead to an untenable situation where a significant portion of the population or institutions with a long history would be excluded from the protection of Fundamental Rights simply because they existed before 1950.

108. Similarly,practices prevailing before 1950 but prohibited afterwards must be struck down if it does not align with the constitutional ethos. The significance of 26.01.1950 lies in its role as a golden date for eradicating unconstitutional practices and safeguarding the rights guaranteed under Part III of the Constitution. It would then accordingly follow that if an institution was established and administered by minorities as on 26.01.1950, such an institution would be entitled to seek protection under Article 30.

109. We cannot therefore accept the Respondent’s contention that the Appellant’s claim should be disallowed merely because Article 30 did not exist at the time AMU was established. Applying such an interpretation would be absurd and legally unjust. While certain institutions might have been set up during the pre-Constitutional era, the Court cannot turn a blind eye to their rights that are duly protected by the Constitution.

65 SEBI v. Rajkumar Nagpal (2023) 8 SCC 274, para 98-102.

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110. In this regard and especially in the context of Article 30, we find more than adequate support from a five-judge bench decision of this Court in Right Rev. Bishop S.K. Patro v. State of Bihar,66 which relied on the opinion proffered by the seven-judge bench in Kerala Education Bill (supra) and held: “7. […] The guarantee of protection under Article 30 is not restricted to educational institutions established after the Constitution: institutions which had been established before the Constitution and continued to be administered by minorities either based on religion or language qualify for the protection of the right of minorities declared by Article 30 of the Constitution. In Re the Kerala Education Bill, 1957 [(1959) SCR 995] Das, C.J., observed at p. 1051: “There is no reason why the benefit of Article 30(1) should be limited only to educational institutions established after the commencement of the Constitution. The language employed in Article 30(1) is wide enough to cover both pre-constitution and post-constitution institutions. It must not be overlooked that Article 30(1) gives the minorities two rights, namely, (a) to establish, and (b) to administer, educational institutions of their choice. The second right clearly covers pre-constitution schools just as Article 26 covers the right to maintain pre-constitution religious institutions.” [Emphasis supplied]

111. In conclusion, while Fundamental Rights cannot be applied retrospectively to disrupt pre-constitutional practices, the Appellant is not barred from asserting a claim under Article 30 as long as the necessary conditions of this provision are met. Individuals or institutions who qualify to be protected through a Fundamental Right as of 26.01.1950 are entitled to enforce these rights under Article 32. Therefore, the Appellant’s locus standi cannot be dismissed on this basis.

66 Right Rev. Bishop S.K. Patrov. State of Bihar (1969) 1 SCC 863

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112. In addressing the issue of locus, two more key questions arise: (i) whether a small group of individuals from a community can bring a claim under Article 30, as opposed to requiring the entire community to assert the claim collectively?; and (ii) whether the Muslim community in the present case were presumed to be a ‘minority’ at the time AMU was established? Each of these points are analysed separately below.

G.2. Locus of individuals from the minority community

113. The Respondents have countered the Appellant’s locus on the ground that they cannot plead the right under Article 30 since they are not the representative of the entire Muslim community. Hence, it is essential to analyse whether Article 30 can be invoked by a few individuals of the minority community.

114. Under the Indian Constitution, the framework of rights can be broadly divided into three classes based on who holds the right and who can exercise it: a. The first category, known as ‘individual rights’, encompasses rights available to all individuals and can be claimed by them. An example of such a right is the right to privacy, which pertains to all individuals and can be asserted by any individual. b. The second category, termed ‘group rights’ in India, consists of rights available to individuals,provided they belong to a specified group. An example of such a right could be the right of reservation provided to individuals belonging to certain classes. In this regard, this Court has held: “407. Unless the creamy layer is removed, OBCs cannot exercise their group rights. The Union of India and other respondents argued that creamy layer exclusion is wrong because the text of the Ninety-third Amendment bestows a benefit on “classes”, not individuals. While it is a group right, the group must contain only those individuals that belong to the group. I first take the entire lot of creamy and non-creamy layer OBCs. I then remove the creamy layer on an individual basis based on their income, property holdings, occupation, etc. What is left is a group that meets constitutional muster. It is a group right that

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must also belong to individuals, if the right is to have any meaning. If one OBC candidate is denied special provisions that he should have received by law, it is not the group’s responsibility to bring a claim. He would be the one to do so. He has a right of action to challenge the ruling that excluded him from the special provisions afforded to OBCs. In this sense, he has an individual right. Group and individual rights need not be mutually exclusive. In this case, it is not one or the other but both that apply to the impugned legislation.” 67 [Emphasis supplied]

As elucidated in the extract above, such group rights are possessed by an individual, and such individual can assert their claim to exercise these rights. The individual does not need to demonstrate that the group as a whole is affected and may exercise such rights in their singular capacity. c. The third category, which we would like to refer to as collective rights, includes rights that belong to groups as a whole and can only be exercised by those groups collectively. An example of such a right could be the right of a country to vote in the UN General Assembly.68 Such rights belong to the entire nation as a community and are not contingent on whether individual citizens of the nation are individually exercising this right. Another example of such a category is the right of a country to be free from intervention by other countries, which also belongs to and is to be exercised by the nation as a whole.69 Unlike the previous two categories, the bearer of these rights is a collective unit and not individual constituents. Accordingly, the right can be claimed by the community at large or by an individual representing the entire community.

115. Based on the foregoing discussion, we believe that the right ensconced under Article 30 belongs to the second category, namely,

67 Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1, para 407. 68 Charter of United Nations (signed on 26 June, 1945) Art. 27. 69 Lukas Meyer et. Al. (ed.), Rights, Culture, and the Law, Oxford University Press (2003) pp. 181.

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it is granted to a minority community at large but can be exercised by an individual or a group of individuals. This right does not fit into the first category because Article 30 specifically aims to uplift and protect certain minority communities, making membership in such a community a necessary pre-condition. At the same time, however, it is also distinct from the third category because the protection envisaged in Article 30 is toward individuals belonging to such a community and not the entire community as one single entity. Thus, while the right exists for the benefit of the whole community, it can be exercised qua its individual members rather than requiring collective action by the whole community.70

116. Having said that, it is important to emphasize that the technical issue of who can invoke Article 30 should not be used to oust the claim at the threshold. Procedure, ultimately, is the handmaiden of justice. This is especially true for contentions regarding locus and who can invoke a particular provision, especially when there is public interest at stake. Unless there is a risk of collusion between the parties or the Court believes that the interest of all the stakeholders might not be adequately represented and there might be some ‘invisible victims’, the Court typically refrains from scrutinizing who has invoked the constitutional provision and whether the claimant represents the entire community. Constitutional Courts are envisaged as liberal platforms where vital questions regarding the violation of Fundamental Rights can be analysed without being bogged down by procedural technicalities. In that sense, the substance of the claim usually takes precedence over its form, instead of the form foreclosing the substance at the very outset.

117. The locus standi of the Appellant is thus not undermined on this count as well.

G.3. What is a ‘minority’ community?

118. Since during the course of hearing, or otherwise, the Respondents have not provided any reliable figures or substantial evidence to counter the Appellant’s position, it appears that it is not necessary to determine this issue at this stage, when only legal issues are being resolved.

70 Right Rev. Bishop S.K. Patro,supra note 66.

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119. Having answered the prefatory issues of locus and maintainability, we now proceed to delve into the contours of Article 30 of the Constitution and make an endeavor to explain the true meaning of the expressions ‘establish’ and ‘administer’.

Questions regarding constitutional interpretation

H. Issue III: What are the tests to seek protection under Article 30?

120. When posed with the question of whether the prongs of ‘establishment’ and ‘administration’ ought to be construed conjunctively or disjunctively in determining whether it is a minority institution, the Appellant sought to contend that minority administration of their institution is merely discretionary and that they are not bound to satisfy the twin test. They instead urged that the prong of administration, would not be a prerequisite for determining the minority status of an educational institution.

121. The Respondents, on the other hand, assailed that for an institution to claim the protection proffered under Article 30, the minority community would have to demonstrate the two prongs of ‘establishment’ and ‘administration’ of the institution conjunctively.

122. Having considered the rival submissions tendered by the parties as well the language of the provision itself, it is evident that ‘establishment’ and ‘administration’ are qualitatively distinct: while the former deals with the history of the institution, the latter deals with the control over the institution, at present. Accordingly, ‘establishment’ is temporally fixated, while ‘administration’ requires analysis over a continuous span of time, both during and post-establishment.

123. Of these two aspects, the necessity of the prong of establishment is not in dispute. Both parties agree that an institution must be established by the minority community. This issue is also largely settled by various judicial precedents of this Court, which have held that establishment by minority is a necessary pre-requisite for claiming the right under Article 30.71 The question, however, has been raised

71 Kerala Education Bill, 1957, supra note 58; State of Kerala vs. Very Rev. Mother Provincial, (1970) 2 SCC 417, para 8; S.P. Mittal vs. Union of India, (1983) 1 SCC 51, para 137; Dayanand Anglo Vedic (DAV) College Trust and Management Society v. State of Maharashtra,(2013) 4 SCC 14.

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in regard to the administration prong. The Respondents have argued it to be a pre-requisite for invoking Article 30, while the Appellant has argued it to be the result of such an invocation.

124. We find that both the Appellant and Respondents are right, but only to the extent that administration is both a pre-requisite and the result. In this respect, it mirrors its counterpart,Article 29,under the section ‘Cultural and Educational Rights’. Article 29 makes the distinctiveness of culture a pre-requisite for invoking its provision, and once invoked, it bestows the right to conserve such distinctiveness. Similarly, Article 30 outlines administration by the minority community as a pre-requisite for invoking the provision, ultimately granting the right to continue such administration free from unreasonable government interference.

125. There are multifarious reasons behind upholding administration as a pre-requisite rather than merely a right or result. First, if Article 30 were contingent only on the establishment by the minority community, it would render the provision susceptible to significant misuse. In a bid to attain special protection under Article 30, majority communities could purchase or takeover institutions established by minorities and then administer such institutions with reduced State interference in perpetuity. This will potentially lead to all communities ultimately enjoying the special right guaranteed by Article 30, denuding the very purpose of this Article.

126. Second, it is clear that Article 30 carves out an exception to the general power of the Government to regulate and intervene in educational institutions. It has also been defined broadly, extending to all religious and linguistic minorities, potentially encompassing a significant portion of India’s population. If not interpreted narrowly,Article 30 would undermine governmental control over educational institutions and compromise the quality of higher education.

127. Therefore,if the institutions not administered by minorities were also brought under the purview of Article 30, it could face misuse by institutions camouflaging as minority institutions when, in reality, they are not. I find support to this view in A.P. Christian Medical Educational Society v. Govt. of A.P.,72 which held:

72 A.P. Christian Medical Educational Society v. Govt. of A.P & Anr. (1986) 2 SCC 667, para 8.

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“8. […] The government, the University and ultimately the court have the undoubted right to pierce the ‘minority veil’ — with due apologies to the corporate lawyers — and discover whether there is lurking behind it no minority at all and in any case, no minority institution. The object of Article 30(1) is not to allow bogies to be raised by pretenders but to give the minorities ‘a sense of security and a feeling of confidence’ not merely by guaranteeing the right to profess, practise and propagate religion to religious minorities and the right to conserve their language, script and culture to linguistic minorities, but also to enable all minorities, religious or linguistic, to establish and administer educational institutions of their choice. These institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms […] What is Important and what Is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities […].” [Emphasis supplied]

128. Several other existing case laws support the notion that administration too, ought to be regarded as a pre-requisite. For instance, In St. Stephen’s College (supra), a five-judge bench of this Court analysed the facets regarding both establishment and administration of St. Stephen’s College under the Delhi University Act,to conclude whether it could be characterised as a minority institution. In DAV College (supra) a two-judge bench reiterated the principle that administration has to be exercised by the minority community. This view was also reinforced by another two-judge bench in T. Varghese George v. Kora K. George.73 Similarly, in Manager, Rajershi Memorial Basic Training School v. State of Kerala,74 the Kerala High Court held that an institution merely being founded by a member of a minority community is insufficient, and it has to be administered by the minority community in question.

73 Dr. T. Varghese George v. Kora K. George and Ors.,(2012) 1 SCC 369. 74 Manager, Rajershi Memorial Basic Training School v. The State of Kerala and Anr.,1972 SCC OnLine Ker 111, para 4.

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129. All of these cases support the legal principle that for an institution to claim protection under Article 30, it should have a ‘real positive indicia’ and must not be a mere sham. It is, therefore, permissible to ‘pierce the veil’ in order to ascertain the real character of the institution,as the minority status cannot be bestowed on illusionary claims.

130. Lastly, it is an established principle of statutory interpretation that a provision has to be read as a whole, and the accompanying text may be employed in interpreting the meaning of another clause.75 This principle is particularly relevant in the present case, as Article 30(1A) specifically defines an institution “referred to in Clause 1” and mentions it to be an institution that is both established ‘and’ administered by a minority: “(1A) In making any law providing for the compulsory acquisition of any property of an 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.” [Emphasis supplied]

131. Since the term ‘and’ has been consciously employed instead of ‘or’, it is clear that the text of the provision itself envisages the conditions to be read conjunctively. To hold to the contrary would require reading down an original provision of the Constitution, which the Court must refrain from doing.

132. Considering that institutions claiming any benefit under Article 30 must satisfy this two-pronged test, it is trite to say that the terms ‘establishment’ and ‘administration’ under Article 30 are conjunctive.

I. Issue IV: What is the meaning of ‘establish’ in Art. 30?

133. The Appellant has argued that the term ‘establish’ in Article 30 means who ‘founded’ the institution. It is their assertion that if the genesis

75 Justice GP Singh, Principles of Statutory Interpretation, Lexis Nexis (2016), 14th edn.

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of the institution can be traced back to the minority community, the institution would satisfy the test of being a minority institution.

134. Per contra, the Respondents ascribe a different meaning to the term ‘establish’ and argue that the Court must evaluate as to who created the institution. If the institution owes its existence to the Statute, then it would mean that the institution was established by the Legislature and not by the minority community.

135. In due consideration of these opposing views, the central issue for our determination,therefore would be to ascertain the meaning of the term ‘establish’ in Article 30 and determine what the relevant indicia should be, in order to determine on facts as to whether or not an institution is established by the minority community.

136. Previously, a six-judge bench of this Court had conducted a similar exercise in State of Kerala v. Very Rev. Mother Provincial76 and defined the term establish as the ‘bringing into being of an institution’: “8. Article 30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority’s choice. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection” [Emphasis supplied]

76 Mother Provincial, supra note 71, para 8.

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137. Hence, as rightly held by this Court, the term ‘establish’ means bringing the institution into existence for the benefit of the minority community. However, we must ask ourselves as to when an institution can be said to have come into existence, and what it means to establish it for the benefit of the community. Each of these prongs have been analysed separately below.

I.1. Bringing into existence—meaning and factors

138. In this regard, the Appellant and Respondents both suggested that an institution comes into existence at a single point in time but disagreed on what that exact point should be. The Appellant suggested looking back into the genesis of the institution to determine when it was ‘founded’ or when the idea was conceived. In contrast, the Respondents argued against going back in time and instead urged that the institution should be considered established the moment it was operationalized. According to them, if the institution was operationalized by virtue of a statute, then it was established at that specific point by the Legislature.

139. To clarify these divergent views, it might be helpful to consider analogous situations. For instance, if the question is about when a photograph taken with an analogue camera comes into existence, one perspective would argue that it is created when the photograph is clicked, while the other would assert that it only exists when the photo is finally printed on paper. Similarly, in the context of a melody, one side might argue that it comes into existence when it is composed, whereas the other side could contend that it only comes into being when it is finally performed. Or in the context of art, one perspective could be that a painting comes into existence when the idea is conceived, and the other side could be that it is only when it is fully completed.

140. We believe that both sides are partly right and partly wrong. They are right in considering both the genesis of the institution and the point of sanction by the statute for operationalizing the institution as relevant factors to determine establishment. However, they are incorrect in asserting that coming into existence is an event frozen at a single point in time. Instead, we believe that coming into existence operates in a continuum, which requires the analysis of the entire gamut of relevant factors that brought the institution into being. The

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essence of existence—be it that of an educational institution or a photograph, melody, or an art as instantiated above—is a multi- faceted and an ontological question that cannot be answered by artificially fixating it at a specific time with a bright-line test. Since there are several factors that contribute towards the existence of the educational institution, at no point can we say that the institute came into existence as soon as one specific factor was fulfilled. Such an exercise would highlight one factor while discounting the importance of others, which would be arbitrary and irrational. Instead, the correct approach requires an appraisal of the entirety of facts—i.e., the origin, the point of finality, and the whole process in between—to reach an understanding about the establishment.

141. Hence, while the parties are right in pointing out the relevant factors of genesis and the statutory sanction, the analysis of who establishes the educational institution has to go beyond them to cover all aspects holistically. Since these factors would be a question of fact that would differ from case to case, giving a laundry list of all such aspects would be erroneous in law. However, to determine whether the minority community has established the institution or not, a few illustrative factors that the Courts have considered in the past include: a. The genesis of the institution and who conceptualized the idea; b. The gathering of resources and who provided the requisite finances for creating the institution;77 c. Who contributed towards the infrastructure of the institution to provide it with a physical existence;78 d. The framing of charter documents and who imparted the purpose to the institution;79 e. In case government approvals were required, who made the initial efforts in taking those permissions and fulfilling the necessary compliances; and f. Post the approval of the government, who undertook the initial steps in forming the administrative bodies,80 hiring teachers,

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admitting students, passing the first statutes and ordinances, ensuring regular compliances, etc., for operationalizing the institution.

I.1.1. Caveat to these factors

142. In regard to these factors and any additional ones that may be relevant based on the specifics of each case, there are two important qualifications to note. First, as was previously stated, none of these factors individually would be determinative of the minority status; the analysis must be holistic, and the factum of existence must be seen in a continuum instead of fixating on one factor and point of time. In several instances, Courts have clarified that the absence of certain factors, such as the institution not being constructed by the minority community81 or receiving external financial assistance,82 does not negate the minority character of the institution. These decisions reiterate that the presence or absence of a single factor should not alter the Court’s overall conclusion.

143. Second, the analysis concerning who fulfils each individual factor should not aim at creating absolutes, i.e., the Court must not mandate that the minority community must be single-handedly responsible for fulfilling the role prescribed by that factor. It could be the case that the community takes aid of external parties for setting up the institution, but still takes the lead role in such establishment. If we were to hold that such aid would take away the minority character of the institution, we would, in effect, be laying down a requirement that the community must work in silos and that no member belonging to any other community should provide any assistance in achieving its purpose. This would squarely contravene the very spirit of our Constitution, which permits—or rather encourages— other communities to work in tandem with minority communities for their upliftment. In a cohesive society like ours, cooperation for mutual development is a shared moral responsibility. Hence, the

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mere presence of external aid is a factor which would not obviate the minority character of the institution

144. That being said, the converse must also hold true. If the leading role in establishing an institution is played by an external party, mere contributions from a member of the minority community would not be sufficient to attribute the establishment itself to the minority. To hold otherwise would expose the protection given under Article 30 to potential misuse, allowing institutions established by the majority community to claim minority status based on some insignificant contribution from the minority community. The test should therefore rather focus on who takes a leading and decisive role in fulfilling the relevant criteria for establishing an institution.

145. To determine whether the minority community established the institution, the Court should thus examine whether it was indeed that community which brought the institution into existence. This involves assessing who played the leading role from the institution’s inception, through the process of making its creation a reality, and finally, in making it operational.

146. Having understood the meaning of ‘bringing into existence’, we shall now revisit the Respondent’s argument that if an institution is being created by Statute, then it cannot be said to have been brought into existence by the minority community since in that, case it is the Legislature which establishes the university. This particular element requires some detailed analysis, not only because it was vehemently argued by both sides but also because,as confirmed by this Court in Prof Yashpal (supra), a University can only be created by or under a Statute.

147. Having said that, if we were to hold that statutory intervention means that the Parliament ‘establishes’ the university and not the minority community (as was held in Azeez Basha (supra)), it would mean that the minority community would never be able to qualify the ‘establishment’ prong under Article 30. This would concomitantly lead to the conclusion that minorities can never establish a university under this provision. Such a conclusion would run contrary to the amendment to the NCMEI Act, which includes universities also under the ambit of minority educational institutions. Therefore, to render quietus to this issue, we shall discuss whether the Statute does, in fact, bring an institution into existence.

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I.1.2. Statutory intervention and establishment of an institution

148. In this regard, it is important to note that statutory intervention exists as a sliding scale, which can differ based on the kind of institution. Broadly, there are three such categories of institutions: first, those which are ‘registered in accordance’ with the statute; second, which are ‘recognized’ by the statute; and third, which are ‘created by’ the statute. Each of these are analysed separately below.

I.1.2.1. Registered in accordance with the statute

149. To establish an institution as a juristic entity, it is possible that the minority community uses a form of organization provided under a statutory framework. For instance, to establish an institution as a company, the community might utilize the provisions of the Companies Act, 2013; for a society,it would perhaps be the Cooperative Societies Act, 1912, and so on. In case such a statutory framework is used by the community, the question arises who truly brings the institution into existence—the community or the statute that is used to create the institution?

150. This question is no longer res integra and has been effectively answered in Dalco Engg. (P) Ltd. v. Satish Prabhakar Padhye,83 wherein this Court held: “20. A “company” is not “established” under the Companies Act. An incorporated company does not “owe” its existence to the Companies Act. An incorporated company is formed by the act of any seven or more persons (or two or more persons for a private company) associated for any lawful purpose subscribing their names to a memorandum of association and by complying with the requirements of the Companies Act in respect of registration. Therefore, a “company” is incorporated and registered under the Companies Act and not established under the Companies Act. Per contra, the Companies Act itself establishes the National Company Law Tribunal and the National Company Law Appellate Tribunal, and these two statutory authorities owe their existence to the Companies Act.” [Emphasis supplied]

83 Dalco Engg. (P) Ltd. v. Satish Prabhakar Padhye and Ors. (2010) 4 SCC 378, para 20.

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