Aligarh Muslim University v. Naresh Agarwal & Ors.

Aligarh Muslim University v. Naresh Agarwal & Ors.

attempted to iron out creases arising from the decision in T.M.A. Pai Foundation (supra). If indeed question 3(a) required an answer, I would be persuaded to think that either Islamic Academy of Education (supra) or P.A. Inamdar (supra) would have answered it. That the Constitution Benches did not attempt to answer question 3(a) should leave none in doubt that the said question did not merit an answer.

32. After the order dated 11th March 2003 of disposal in Shahal H. Musaliar (supra),the matter lay dormant for a period of time; it was resuscitated when AMU, through its Executive Council, passed a resolution dated 19th May 2005, reserving 50% seats in postgraduate programmes for Indian Muslims. This resolution was challenged before the High Court invoking its writ jurisdiction. Both the Single Judge and the Division Bench of the High Court held that the reservation, sought to be made, could not be enforced. The Division Bench, relying on Azeez Basha (supra), went even further than the Single Judge and set aside the 1981 amendment to the AMU Act. The Division Bench observed that the 1981 amendment sought to side step Azeez Basha (supra) without removing the basis on which Azeez Basha (supra) was rendered. The judgment of the Division Bench was carried in appeal before this Court by AMU and it is on such appeal that the re-referral order was passed by the bench of 3 (three) Judges, which I propose to note now.

33. On 12th February, 2019, the bench of 3 (three)Judges in Aligarh Muslim University (supra),after noticing the aforesaid developments, proceeded to hold that “the correctness of the question arising from the decision of this Court in S. Azeez Basha (supra) has remained undetermined”. The order that followed such observation reads as under: “9. That apart, the decision of this Court in Prof. Yashpal and another vs. State of Chhattisgarh and others 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.

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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.”

34. Why I perceive the re-referral order to suffer from the same invalidity and to be untenable is this. Apart from Anjuman-e-Rahmania (supra) being non-est for the reason adverted to above, neither the bench of 11 (eleven) Judges in T.M.A. Pai Foundation (supra) nor the Regular Bench of 2 (two) Judges considered it necessary to answer question 3(a). The order dated 11th March, 2003 observing that the question could be answered should a problem arise in future did put a quietus, for the time being, to question 3(a), as formulated, as well as provided finality qua what was said about Azeez Basha (supra) in Anjuman-e-Rahmania (supra). Once the issue attained finality, in my respectful opinion, the bench of 3 (three) Judges could not have reopened the same issue. It could be revisited in exceptional circumstances and that too, in a manner known to law. No intra-court appeal being available in the Supreme Court and in the absence of any allegation of fraud having vitiated the process of decision making, and there being no occasion for exercise of the inherent powers of the Court, it would have been most appropriate for the bench of 3 (three) Judges on 12th February, 2019 not to refer to Azeez Basha (supra) at all. What the bench of 3 (three) Judges did, so to say, was sort of making an order as if it were exercising appellate jurisdiction over the decision in T.M.A. Pai Foundation (supra), the order dated 11th March 2003, Islamic Academy of Education (supra) and P.A. Inamdar (supra) [last two without being noticed]. Significantly, the re-reference was made citing the necessity to consider the decision in Prof. Yashpal vs. State of Chhattisgarh32 and the amendment

32 (2005) 5 SCC 420

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of the National Commission for Minority Educational Institutions Act, 200433 which, as per the majority opinion, have no real bearing with regard to the issue under consideration. Indeed, even if the decision in Prof. Yashpal (supra) and the 2004 Act were to make any difference to the legal position, hitherto settled, reference to that limited extent only could be justified with a call to answer question 3(a), extracted supra, independently and without referring to Azeez Basha (supra).

35. An issue which has some bearing on the correctness or otherwise of the decision in Azeez Basha (supra) [assuming that the order in Anjuman-e-Rahmania (supra) was valid and did form the ground for framing question 3(a)], if consciously has not been decided in course of a previous round of litigation, would it give rise to an occasion for a subsequent bench to hold that the issue should be decided because it has not been decided? Exercise of jurisdiction by a bench of lesser strength would not permit such an approach. That the bench of 3 (three) Judges was presided over by none other than the then Chief Justice of India did not make things better and ameliorate the circumstances. With due respect and utmost humility at my command, although the Chief Justice of India is primus inter pares and on the administrative side has powers and authority which no puisne Judge has, the Chief Justice of India while discharging judicial functions on the bench with a puisne judge or judges may not enjoy any power greater than what the puisne judge or judges forming the quorum has/have in authoring judgments/ passing orders. Therefore, the re-referral order merely by reason of the presence of the Chief Justice on the bench did not get sanctified. It was not that the bench of 3 (three) Judges were not alive to the settled law and the principles of judicial propriety, discipline and comity; yet, any doubt touching upon the correctness or otherwise of the view expressed in Azeez Basha (supra), if at all, should not have been sought to be resolved by referring the matter directly to a bench of 7 (seven) Judges. Such an order of reference, apart from being in the teeth of Pradip Chandra Parija (supra), Hansoli Devi (supra) and Central Board of Dawoodi Bohra Community (supra), could not have been justified by reasoning that earlier, the issue had been referred to a bench of 7 (seven) Judges. It was incumbent on the bench while hearing Aligarh Muslim University (supra) to examine

33 NCMEI Act, hereafter

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whether the referral order made in Anjuman-e-Rahmania (supra) was legal and valid. Answering the said question could have obviated the need for a further referral. Nothing much turns on the fact that all of us are now sitting in a combination of 7 (seven) Judges. The Anjuman-e-Rahmania (supra) referral order being non-est, to my mind, any order premised thereon is also non-est. At best, the bench of 3 (three) Judges in Aligarh Muslim University (supra) could have required a bench of 5 (five) Judges to reconsider whether question 3(a), which fell for consideration in T.M.A. Pai Foundation (supra), does at all require an answer [not in the light of whatever Azeez Basha (supra) had held while interpreting Article 30(1)] and only upon formation of an opinion that it does, should the further referral been made to a bench of 7 (seven) Judges to maintain judicial propriety, discipline and comity. The course of action adopted in Aligarh Muslim University (supra), thus, does not commend to me to be in accordance with established principles of law and should have well been avoided, being unnecessary. However, I repeat, any issue arising out of the law laid down in Azeez Basha (supra) was not open to be referred once again even after noticing that the earlier endeavours to overturn Azeez Basha (supra) had proved abortive.

36. More often than not, this Court treats procedure as a hindrance towards attaining justice rather than treating it as a guardrail to ensure fairness and non-arbitrariness while conducting judicial proceedings. It must be remembered that at times, leaving aside the urge to render substantive justice without following the laid down procedure, it is perhaps advisable to follow the procedure as the means towards the end.

37. Thus, I have no hesitation in holding that the referral orders of this Court are ex-facie not in accordance with law and there-reference in itself is equally incompetent and unnecessary as well.

38. Notwithstanding what I have opined above in support of my viewpoint that the referral orders are invalid and the references incompetent, albeit for technical reasons, there is a weightier reason for declaring the referral orders fragile. That is on the merits and I would immediately proceed to say why.

39. Anjuman-e-Rahmania (supra) talked of two substantial questions that arose before it. The first was, whether Article 30(1) of the Constitution envisages an institution which is established by minorities

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alone without the participation for the factum of establishment from any other community. This question was formulated recording that there was no clear decision of this Court. Secondly, whether the status of an institution as a minority institution, which soon after its establishment is registered as a society under the Societies Act, would change in view of the broad principles laid down in S. Azeez Basha (supra). Aligarh Muslim University (supra) had the occasion to observe that question 3(a) which was formulated for an answer in T.M.A. Pai Foundation (supra) coincidentally reflected the questions referred by Anjuman-e-Rahmania (supra).

40. In TMA Pai Foundation (supra), question 3(a) was: “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?”

41. To recount, the reference order duly took note of question 3(a) and the fact that TMA Pai Foundation (supra) did not decide it. Now, two questions arise: (i) whether there is any decision prior to Anjuman-e-Rahmania (supra) which had directly decided the first point? And (ii) whether the point touching the Societies Act, i.e., a minority educational institution being registered under the Societies Act could have any bearing on the question decided by Azeez Basha (supra) by equating the former with a case where a university is established by an enactment?

42. Insofar as the first question is concerned, State of Kerala vs. Very Rev. Mother Provincial34, which is of course another decision of the Constitution Bench of 6 (six) Judges of this Court rendered more than half a century back, and has never been doubted by any subsequent bench, provides the answer. The essence of the law laid down therein is that the minority institution should have been established for the benefit of a minority community by a member of that community. Attention of the bench of 2 (two) Judges in Anjuman-e-Rahmania (supra) was not invited to this direct answer to the question it posed

34 (1970) 2 SCC 417

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43. Now turning to Aligarh Muslim University (supra), I have been unable to comprehend as to how question 3(a) could be said to coincidentally reflect the questions referred by Anjuman-e-Rahmania (supra). As evident from a bare reading of question 3(a), it had two parts: the first is, what is the indicia for treating an educational institution as a minority educational institution? Secondly, would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious/linguistic minority or its being administered by a person(s) belonging to a religious/linguistic minority?

44. In any event, qua question 3(a), why did the bench of 11 (eleven) Judges in TMA Pai Foundation (supra) not consider necessary to even attempt to answer it and relegate the same to the Regular Bench of 2 (two) Judges? Was it too trivial a question not meriting an answer or was there some other reason? Though the answer is not too obvious, the answer to the second part of question 3(a) seems to be firm and clear that the conjunction ‘and’ between ‘establish’ and ‘administer’ in Article 30(1) cannot be read as ‘or’ for the reasons that I seek to highlight a little later.

45. If one were to form the opinion that the question as to indicia for treating an educational institution as a minority educational institution was traceable to Anjuman-e-Rahmania (supra), that can only happen if the said order were misread or some additional words were read into it.

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46. It is one thing to identify indicia, i.e., indicia that are already existing. However, if indicia have to be formulated, i.e., created, by us in course of these proceedings, are we not discrediting the earlier Constitution Bench decisions on minority status vis-à-vis rights under Article 30(1) premised on an implicit indicia, though not expressly declared as such? It is considered most inappropriate that the first part of question 3(a) has engaged our attention in the present discussions and deliberations.

47. I am firm in my conviction that the reference and the re-reference, for all the reasons discussed above, do not require a decision.

Treating The Reference To Be Valid

48. Since the issue of correctness of the decision in Azeez Basha (supra) has been argued before us and carries immense significance for the future, I deem it proper to give due consideration to it treating the reference to be valid and legal. The minority character of AMU as well as the contours of rights under Article 30(1), assuming the same to be under a cloud of uncertainty, needs to be cleared. Hence, in my own way, I seek to bring clarity and finality to the issue through this opinion.

49. The majority opinion has sought to lay down the indicia and left it for an appropriate bench to be constituted by the Chief Justice of India for deciding whether AMU is a minority or not. Hon’ble Surya Kant and Hon’ble Satish Chandra Sharma, JJ. also seem to have proceeded to dispense with the factual inquiry of whether or not AMU is a minority educational institution and focussed on the indicia to determine the applicability of Article 30(1).

50. Respectfully, I cannot bring myself to traverse the same path. After almost 9 (nine) months the judgment came to be reserved, it pricks my conscience to send the matter back once again to an appropriate bench; more so, after both sides have exhaustively addressed us on the very issue as to whether AMU answers the characteristics of a minority institution. In present times, when there is a lot of emphasis on pendency of cases and expeditious disposal thereof, precious judicial time would be wasted if the same issue has to be agitated yet again when such time could be well utilised in answering other pressing questions of law. I feel the urge to decide here and now, based on whatever indicia we identify or formulate, as well as the circumstances - antecedent, attending and surrounding – of the

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relevant time, as to whether AMU is a minority educational institution or not. I feel equipped to do so on account of extensive evidence having already been led by both sides.

The Indicia

51. In the majority opinion, the indicia for treating an educational institution as a minority educational institution are these: I. Ideation of establishment: The brain behind the establishment of the institution, as gauged from, inter alia, correspondence and government resolutions, should be a member of the minority community. II. Purpose: The institution should have been established predominantly for the benefit of the minority community, as opposed to solely for their benefit. III. Implementation: The implementation of the idea to establish the institution, with respect to raising of funds, acquisition of land, etc. has to be examined. State aid in the same, would not adversely affect the minority status of the institution. IV. Administration: The right to administer flows as a consequence of the institution having been established by the minority. Thus, it is not required that the institution be administered by the minority, but what is essential is that the administrative structure reflects the minority character of the institution.

52. Hon’ble Surya Kant, J. has, however, identified the indicia as follows: I. Article 30(1) provides for a twin fold test – establishment and administration. II. Establishment is to be understood as coming into existence of the institution, which is to be holistically gauged from examination of factors, inter alia, who is responsible for the genesis of the idea, accumulation of funds, framing of charter documents of the educational institution, procuring of government approvals. In such acts, the minority community must play a decisive role. III. Incorporation of a university under a statute would not necessarily mean that the institution is a creature of statute, unless it is the Government which has played the decisive role in ideation, funding, implementation and operationalising the institution.

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IV. Establishment has to be for the benefit of the minority community. V. Administration, at its core, has to vest with the minority community. This would include within its fold long term administrative roles and day to day sundry decisions. The minority community should thus be vested with both, de jure and de facto control.

53. Hon’ble Satish Chandra Sharma, J. has in His Lordship’s draft opinion laid out a threefold indicia: I. The minority community must play a predominant role, almost to the point of exclusion of all other forces, in tangibly bringing about the entirety of the institution into existence. II. The purpose of the institution must be to predominantly serve the interests of the minority community, irrespective of the form of education provided. III. The actual functional, executive, and policy administration should rest with the minority community. The real decision making authority of the institution should be the minority community.

54. While the majority opinion seems to have identified establishment as the sole indicium, Hon’ble Surya Kant and Hon’ble Satish Chandra Sharma, JJ. have laid equal stress on administration apart from establishment as the indicia. Inasmuch as the broad criteria which can be used to assess the status of an educational institution is concerned, I express my agreement with the indicia laid out by Their Lordships.

55. Taking a cue from the above indicia, what comes to mind is that a seed, by itself, cannot germinate into a plant without being sown in the soil. It is the farmer’s endeavours of watering, nourishing and caring for the seed, not the sheer existence of the seed itself, which results in the emergence of the tree. Similarly, mere ideation by itself amounts to little if it is not backed by action or implementation. Ideation and conceiving of an idea are mere seeds, while the work of gathering resources, acquiring land, establishing an administrative structure, recruiting teachers, and admitting students are akin to the planting and nurturing required for those seeds to grow into a flourishing tree. Educational institutions, like all other institutions, are an outcome of the coalescence of resources, actions, and meticulous planning by the people “establishing” it.

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56. Indicia is a term often used in various disciplines including law to describe signs or symptoms that suggest the presence of something. When we say that ‘x’ is the indicia of ‘y’, it could be so that ‘x’ could be the definite indicium of ‘y’ (implying a comprehensive or exclusive indicator); at the same time, it may not necessarily imply that ‘x’ is the only indicator of ‘y’ (exhaustiveness) or that ‘x’ guarantees the presence of ‘y’ (certainty) or ‘x’ is unique to ‘y’ (specificity). However, to suggest that, ‘x’ is the definite indicum of ‘y’, it may not be appropriate in the present context where I can identify multiple indicia for concluding whether AMU answers the characteristics of a minority educational institution.

57. Certain broad indicia,which are universally applicable, may be applied prospectively to facilitate identification of minority institutions. However, any indicium or the indicia, as identified or formulated, for treating an institution as a minority institution may not be exhaustive so as to cater to all situations. Previous decisions of this Court, as earlier discussed, have also determined the minority character of educational institutions vis-à-vis Article 30, as per indicia tailored to the specific factual matrices. It could be well-nigh difficult, if not impossible, to fix indicia without regard to a whole lot of relevant facts and circumstances, which might have escaped notice or may not have been visualized. In my humble opinion, a flexible framework rather than a rigid one-size-fits-all model is always desirable and essential for accurately assessing minority institution status. Having regard to special features that each minority institution is most likely to have, a nuanced approach would be required to identify minority institutions by balancing the general guidelines with unique institutional circumstances. The indicia,which have been proposed,could partly inform classification of minority institutions but a tailored evaluation is all the more necessary to account for distinct characteristics which each such institution is associated with; more so, when AMU is unique in itself and its status is under consideration as a standalone institution.

58. Having clarified my stance on the general indicia which should prospectively govern the evaluation of minority educational institutions, I shall now endeavour to be punctilious in assessing the status of AMU bearing in mind its unique institutional characteristics.

59. However, my consideration of the indicia must be preceded by this philosophical musing. If, indeed, indicia for treating an educational

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institution as a minority educational institution have not been either identified or formulated by any previous decision of this Court and this is the first time an attempt to so identify/formulate is being made, can the tests laid down in Azeez Basha (supra) which are facts specific be held invalid? My answer would be in the negative.

60. Nonetheless, the search for the truth must continue appreciating all the relevant factors.

Establishment of amu

61. AMU traces its origins to its institutional predecessor, MAO College which was established on 08th January, 1877. The establishment of MAO College was spearheaded by late Sir Syed Ahmed Khan35, a national leader who envisioned the idea of a modern and Western educational institution for the Muslim community, distinct from the traditional madrasas, which otherwise prevailed. There is no contest to the fact that that MAO College was established specifically for the educational advancement of the Muslims; it is what comes thereafter which is the point of contention and calls for being noticed, to the extent relevant, and addressed.

62. Upon Sir Syed’s death in 1898, the Muslim community in his honour started collecting funds with the goal to raise a sum of Rs 1,00,000/- (Rupees one lakh only) so that MAO College could evolve into a university. It is the appellants’ submission that over a period of 22 (twenty-two) years, the Muslim community, through the Muslim University Association, collected a staggering sum of Rs 30,00,000/- (Rupees thirty lakh only) which finally led the British Government to agree with the demands for a university, leading to the establishment of AMU in 1920.

63. Travelling down memory lane, one is bound to trace the emergence of the movement for a Hindu university which, over a period of time, took shape with the establishment of the Banaras Hindu University36 through a similar statute, viz. the Banaras Hindu University Act, 191537. Despite all the efforts of Sir Syed, who did not consider Muslims to be in any way inferior, and the later endeavours to have

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a university established with full control being exercised by the Muslim community, refusal of the imperial government to succumb to the demand was a blow to the aspirations that many of the leaders of the Aligarh movement harboured. There emerged two disputing factions within the Aligarh movement – that of the Loyalists headed by Aftab Ahmad Khan and the other by Maulana Mohammad Ali, the latter being vexed with the increasing control of the imperial government over the proposed AMU. Once the BHU Act had been passed leading to establishment of the BHU, the Loyalists realised that they were caught between the devil and the deep sea, i.e., they either accede to the British envisioning of AMU, which was under overwhelming government control, or they stick to their demands and lose out on the proposed university altogether. Writ large was the fact that since BHU had not been granted the right of affiliation, it seemed to be inevitable that the proposed Muslim university will also be governed by similar such provisions governing BHU. In a decisive meeting of the Muslim University Association, the decision was put to a vote and the Loyalists emerged the winner, leading to the eventual walkout of the dissenting faction headed by Maulana Mohammad Ali, who would go on to establish Jamia Milia Islamia. A salient feature of Jamia was that it was independently funded and thrived without any aid from the imperial government. Registered in 1939 as Jamia Milia Islamia Society, the institution was deemed to be a University under section 3 of the University Grants Commission Act, 195638 in 1962.

64. Much would turn on this piece of historical evidence while appreciating whether AMU was an institution established by the Muslim community.

65. Further, in British India, the legislative framework governing educational institutions was such that schools and colleges, such as MAO College, could be established by private persons, but universities in particular were exclusively within the domain of the Governor General-in-Council39. Though there existed no legal bar to the establishment of universities by private individuals or societies, the British Government granted recognition only to degrees issued by universities which were creatures of statute. It is the appellants’

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submission that in such a context, the appellants had no recourse but to obtain the concurrence of the British Government, if Sir Syed’s dream was ever to be realised. It is pressed that the British Government enacted the AMU Act only upon furnishing of adequate funds by the Muslim community, and hence, though AMU was a statutory institution, it was argued to be established by the Muslims, for the Muslims.

66. Article 30(1) of the Constitution guarantees to minorities, religious and linguistic, the right to establish and ad minister educational institutions of their choice. The provision, at a glance, has the following three components: (i) Existence of a minority community – either religious or linguistic, (ii) the minority community has the right to establish an educational institution; and (iii) the minority community has the right to administer an educational institution.

67. It is no longer res integra that even institutions established prior to the Constitution would be eligible to seek the protection of Article 30(1), as was expressed by this Court in Re: The Kerala Education Bill, 1957 (supra) 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) AMU, though established during pre-Constitution days, it was contended that it is thus eligible to seek the protection of Article 30(1).

68. Having regard to such contention, it is necessary to examine the aspect of establishment. To understand how and why AMU came to

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be established, a perusal of the Statement of Objects and Reasons to the Act, and its Preamble, is necessitated: “An Act to establish and incorporate a teaching and residential Muslim University at Aligarh.” “WHEREAS it is expedient to establish and incorporate a teaching and residential Muslim University at Aligarh, and to dissolve the Societies registered under the Societies’ Registration Act, 1860, which are respectively known as the Muhammadan Anglo-Oriental College, Aligarh, and the Muslim University Association, and to transfer to and rest in the said University all properties and rights of the said Societies and of the Muslim University Foundation Committee.”

69. While on the subject, a study of contrasts would be of profit, if one were to examine the founding Acts of one contemporary university, i.e., the Annamalai University Act, 192840. It would also be of profit to examine the Visva Bharati Act, 195141, which came to be enacted immediately after India attained independence.

70. The 1928 Act records as follows: “AND WHEREAS the Hon’ble Diwan Bahadur Sir S.R.M. Annamalai Chettiyar has established and is maintaining colleges at and near Chidambaram in which higher instruction is imparted in English, Tamil and Sanskrit studies; AND WHEREAS the said Sir Annamalai Chettiyar has agreed with the Local Government to hand over the said institutions together with all the properties attached thereto and further to give a sum of twenty lakhs of rupees for the purposes of establishing and maintaining at Annamalainagar a Teaching and Residential University wherein he and his heirs shall be entitled to certain powers and privileges;” (emphasis supplied)

40 1928 Act, hereafter 41 1951 Act, hereafter

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71. The 1951 Act, similarly, pays homage and specifically recognises its founder, ‘Kabiguru’ to millions of his ardent followers in his state of birth and beyond, as follows: “2. Declaration of Visva-Bharati as an institution of national importance.—Whereas the late Rabindranath Tagore (Thakur) founded an institution known as Visva-Bharati at Santiniketan in the district of Birbhum in West Bengal the objects of which are such as to make the institution one of national importance, it is hereby declared that the institution known as ‘Visva-Bharati’ aforesaid is an institution of national importance and is as such hereby constituted as a University.” (emphasis supplied)

72. It is evident upon bare perusal of the above extracts that while establishing the respective universities, which are obviously statutory creations, the 1928 Act and the 1951 Act categorically recognise establishment of the respective predecessor institution by its founder. Annamalai University and Visva Bharati University are synonymous with Sir Annamalai Chettiar and Gurudeb Rabindra Nath Thakur, respectively; however, the AMU Act is woefully bereft of the same or similar recognition. The AMU Act is conspicuously silent on two major elements which the appellants argue was what brought AMU into existence – the contributions of Sir Syed and that of the donations collected en masse from the Muslim community in order to establish the erstwhile MAO College. If the institution was truly founded by the minority community, as contended by the appellants, there is no reason why the Preamble would not have been drafted in a similar manner so as to highlight the same. I am unable to subscribe to the majority opinion of recognition of the respective founders in the 1928 Act and the 1951 Act being of no relevance.

73. It would be further apposite to examine the enactments establishing two other minority universities. Firstly, the Sam Higginbottom University of Agriculture, Technology and Sciences, Uttar Pradesh Act, 2016, whose Preamble decisively recognises the establishment of the said university by the minority Christian community, as follows:

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“An Act to establish and incorporate a Teaching, Research and Extension University with a view to upgrade and reconstitute the existing Sam Higginbottom Institute of Agriculture, Technology and Sciences (Deemed-to-be- University), Allahabad, established and administered by the Ecumenical Minority Christian Society namely the Sam Higginbottom Educational and Charitable Society, Higginbottom House, 4- Agricultural Institute, Allahabad-211007, Registered under the Society Registration Act, 1860 in the State of Uttar Pradesh, and to provide for natters connected therewith or incidental thereto.”

74. Secondly, the preamble of Era University, Lucknow, Uttar Pradesh Act, 2016, unambiguously recognises the minority character of the institution by stating that: “Preamble An Act to establish and incorporate a teaching University sponsored by Era Educational Trust duly established and administered by the members of Muslim Minority community, ***

2. Definitions—In this Act, unless the context otherwise requires *** (t) ‘Trust’ means the Era Educational Trust, established and administered by the members of Muslim Minority community, in the year 1995 for imparting education, having its office at 88, Victoria Street (Tulsi Das Marg), Lucknow a ‘not for profit’ Trust registered in the office of Sub-Registrar-I Lucknow under the Indian Trust Act, 1882.” (emphasis supplied)

75. Thus, these enactments are in stark contrast to the AMU Act, insofar as they categorically recognise the factum of establishment and administration of the universities by the respective minority community.

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76. Proceeding further, section 7 of the AMU Act states that: “The University shall invest and keep invested in securities in which trust funds may be invested in accordance with the law for the time being in force relating to trusts in British India a sum of thirty lakhs of rupees as a permanent endowment to meet the recurring charges of the University other than charges in respect of Fellowships, Scholarships, Prizes and rewards…” (emphasis supplied) Therefore, the sum of Rs 30,00,000/- (Rupees Thirty lakh only) collected by donations across the country was not spent in the establishment of AMU; rather, it was to be used as a fund to meet recurring expenditure. The appellants have repeatedly underscored the contribution made by the Muslim community, motivated to do the same by a systematic and sustained effort on the part of Sir Syed, in the setting up of AMU. The impact of such a monetary contribution cannot be gainsaid, but can the same be equated to establishment of AMU? I think not. The efforts of the Muslim community in leading to the establishment of AMU were no doubt monumental in spearheading the movement, and perhaps without such efforts AMU would never have become a reality, but this cannot by any stretch of imagination mean that the community itself established AMU.

77. There is no contest that MAO College was a minority institution, but AMU would not be endowed with the same characteristic solely on account of tracing its lineage from MAO College. The same is evidenced by section 4 of the AMU Act, which is reproduced hereinbelow: “4. From the commencement of this Act- (i) The Societies known as the Muhammadan Anglo- Oriental College, Aligarh, and the Muslim University Association shall be dissolved, and all property, moveable and immoveable, and all rights powers and privileges of the said Societies and all property, moveable and immoveable, and all rights, powers and privileges of the Muslim University Foundation Committee shall be transferred to and vest in the University and shall be applied to the objects and purposes for which the University is incorporated;

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(ii) All debts, liabilities and obligations of the said Societies and Committees shall be transferred to the University and shall thereafter be discharged and satisfied by it; (iii) all references in any enactment to either of the said Societies and Committee shall be construed as references to the University; (iv) any will, deed or other document, whether made or executed before or after the commencement of this Act, which contains any bequest, gift or trust in favour either of the said Societies or of the said committee shall, on the commencement of this Act, be construed as if the University was therein named instead of such Society or Committee; (v) subject to any order which the Court may make, the buildings which belonged to the Muhammadan Anglo Oriental College, Aligarh, shall continue to be known and designated immediately before the commencement of this Act; (vi) Subject to the provision of this Act, every person employed immediately before the commencement of this Act in the Muhammadan Anglo-Oriental College, Aligarh, shall hold employment in the University by the same tenure and upon the same terms and conditions and with the same rights and privileges as to pension and gratuity as he would have held the same under the Muhammadan Anglo-Oriental College, Aligarh, if this Act had not been passed;” (emphasis supplied) Thus, the societies, from which the appellants contend AMU inherited its minority character, stood dissolved upon the AMU Act coming into force. AMU was, thus, an institution unto itself, distinct from MAO College. There was a clear and statutory break from the antecedent history, and the character of AMU as it were, has to be examined on its own merit.

78. The appellants have relied on a number of decisions to contend that a university could also be a minority institution, foremost of which

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was St. Stephen’s College vs. University of Delhi42. However, all the precedents relied on, have as their focus of discussion colleges and not universities. Though both are educational institutions which come under the ambit of Article 30(1), they are not synonymous with each other and are markedly different, particularly in one aspect, i.e., universities only can confer degrees while colleges cannot unless, as in present days, a college is also deemed to be a university and can award degrees. MAO College when it existed, established by Muslim individuals, could not confer degrees and it was only Allahabad University, of which MAO College was an affiliated college, that could award degrees.

79. As rightly contended by the learned Attorney General, the private individuals who had set up MAO College were not legislatively competent to establish a university in the first place. Being devoid of the authority to establish, the power to do which was the sole preserve of the British Government, the establishment of AMU could not possibly be owed to the Muslim community. An example of this is section 6 of the AMU Act, which stated that degrees conferred by AMU would be recognised by the Government. The provision states: “6. Recognition of degrees. – The degrees, diplomas and other academic distinctions granted or conferred to or on persons by the University shall be recognised by the Central and State Governments as are the corresponding degrees, diplomas and other academic distinctions granted by any other University incorporated under any enactment.” As has been discussed, the only universities whose degrees were recognised by the Government were those established by statute. Degrees issued by private universities were not recognised by the British Government. The degrees issued by AMU being officially recognised, it could not, as a logical corollary, be said that AMU was established by the Muslim community. The university being brought into existence solely by virtue of the statute, its establishment could not be owed to anything other than the statute.

80. Provisions of the AMU Act have been highlighted to show that bodies such as the Court were to be comprised entirely of Muslim members. However, such bodies could not be said to have established AMU.

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81. Black’s Law Dictionary43 defines ‘establish’ as: “establish, vb. (14c) 1. To settle, make, or fix firmly; to enact permanently <one object of the Constitution was to establish justice>. 2. To make or form; to bring about or into existence<Congress has the power to establish Article III courts>. 3. To prove; to convince <the House managers tried to establish the President’s guilt>.” (emphasis supplied)

82. The appellants advocated for the verb “to establish” to be interpreted widely so as to mean “to found”. While this Court has time and again interpreted words of statutes in a liberal manner so as to align them with legislative intent, the interpretation canvassed by the appellants, insofar as “to establish” is to be equated with “to found”, demands an implausibly expansive reading of Article 30(1). It is a primary rule of interpretation that statutes must be interpreted as they are, and auxiliary connotations must not be read into the provision, unless there is reason established for doing so. The two words are very distinct in their purport and understanding. The Constituent Assembly, in its legislative wisdom, chose specifically to use the words ‘to establish” in Article 30(1); interpreting it in a manner so wide as to change its meaning altogether would be doing the Constitution and its framers a disservice. A perusal of the decisions of this Court, which shall be discussed henceforth, categorically evinces that this contention is untenable in law.

83. In Very Rev. Mother Provincial (supra), this Court explained ‘establishment’ by categorically holding that it refers to the factum of bringing into existence of the university, and not the founding of the 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

43 9th Edition

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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)

84. Hon’ble V.N. Khare, J. (as His Lordship then was) in T.M.A. Pai Foundation (supra) observed as follows: “254. The expression ‘to establish’ means to set up on permanent basis. The expression ‘to administer’ means to manage or to attend to the running of the affairs…” (emphasis supplied)

85. This Court, in A.P. Christian Medical Educational Society vs. Govt. of A.P.44, emphasized the importance of piercing the veil to gauge whether an institution is truly a minority educational institution, by stating as follows: “8. It was seriously contended before us that any minority, even a single individual belonging to a minority, could found a minority institution and had the right so to do under the Constitution and neither the government nor the University could deny the society’s right to establish a minority institution, at the very threshold as it were, howsoever, they may impose regulatory measures in the interests of uniformity, efficiency and excellence of education. The fallacy of the argument insofar as the instant case is concerned lies in thinking that neither the government nor the University has the right to go behind the claim that the institution is a minority institution and to investigate and satisfy itself whether the claim is well-

44 (1986) 2 SCC 667

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founded or ill-founded. 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. They may be institutions intended to give the children of the minorities the best general and professional education, to make them complete men and women of the country and to enable them to go out into the world fully prepared and equipped. They may be institutions where special provision is made to the advantage and for the advancement of the minority children. They may be institutions where the parents of the children of the minority community may expect that education in accordance with the basic tenets of their religion would be imparted by or under the guidance of teachers, learned and steeped in the faith. They may be institutions where the parents expect their children to grow in a pervasive atmosphere which is in harmony with their religion or conducive to the pursuit of it. 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. We have already said that in the present case apart from the half a dozen words ‘as a Christian minorities’ institution’ occurring in one of the objects recited in the memorandum of association, there is nothing whatever, in the memorandum or the articles of association or in the actions of the society to indicate that the institution was intended to be a minority educational

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institution. As already found by us these half a dozen words were introduced merely to found a claim on Article 30(1). They were a smoke-screen.” (emphasis supplied)

86. It is thus evident that establishment is a question of fact and has to be proved as such. The factum of establishment cannot, thus, be solely determined by intention of the minority community alone; rather, it has to be factually established in words and deeds and functioning of the university.

87. Azeez Basha (supra) categorically dealt with the factum of AMU’s establishment to conclude that AMU was not established by the Muslim community, in the following manner: “It is true, as is clear from the 1920-Act, that the nucleus of the Aligarh University was the M.A.O. College, which was till then a teaching institution under the Allahabad’ University. The conversion of that college (if we may use that expression) into a university was however not by the Muslim minority; it took place by virtue of the 1920- Act which was passed by the Central legislature. There was no Aligarh University existing till the 1920- Act was passed. It was brought into being by the 1920-Act and must therefore be held to have been established by the Central Legislature which by passing the 1920-Act incorporated it. The fact that it was based on the M.A.O. College, would make no difference to the question as to who established the Aligarh University. The answer to our mind as to who established the Aligarh University is clear and that is that it was the Central Legislature by enacting the 1920-Act that established the said University.” (emphasis supplied)

88. This Court in Azeez Basha (supra) having held,upon an exhaustive analysis of the facts and circumstances presented before it, that AMU was brought into existence by the Central Legislature by virtue of the AMU Act, I see no infirmity warranting the view taken therein to be overruled. And, this being the settled position for more than half-a- century by now, it is not worthwhile to interfere with the same at this distance of time notwithstanding the attempts to have it removed.

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Administration of amu

89. The other element enumerated under Article 30(1) is ‘administer’. Administration, like establishment, is a question of fact. The minority community needs to prove, through material evidence, the fact of administration by the community.

90. Before delving into the factual scenario, it is necessary to grasp what are the elements of administration. To fully appreciate what administration entails, it would be opportune to go through treatises and the previous articulations of this Court on the topic.

91. The eleventh edition of Black’s Law Dictionary defines the term “administration” as: administration, n. (14c) 1. The management or performance of the executive duties of a government, institution, or business; collectively, all the actions that are involved in managing the work of an organization. 2. In public law, the practical management and direction of the executive department and its agencies….” (emphasis supplied)

92. This Court in Ahmedabad St. Xavier’s College Society vs. State of Gujarat45 has provided an unambiguous rubric to understand what the “right to administer” entails: “19. The entire controversy centres round the extent of the right of the religious and linguistic minorities to administer their educational institutions. The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their

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choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.” (emphasis supplied)

93. The articulation of ‘right to administer’ provided by this Court in the above mentioned decision is supplemented by the decision in TMA Pai Foundation (supra),where this Court outlined what rights constitute the right to administer and establish: “50. The right to establish and administer broadly comprises the following rights: (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; (d) to appoint staff (teaching and non-teaching); and (e) to take action if there is dereliction of duty on the part of any employees.”

94. What can be culled out from the above discussion is that administration means carrying out all the functions, which are essential for functioning of an institute. Even if some regulatory interference by the State does exist, it cannot be said that the community is not administering the institute merely because there is some superficial interference in the working of the institution by the State. Only when the State enjoys a deep and pervasive control over the functioning of an institution, it can be said that the State is administering the institution.

95. However, to substantiate the argument that a certain community has been administering an institute, it has to be illustrated that the overall governance of the institute is under the control of the community. Administration vis-à-vis a university consists of making decisions with regard to hiring of faculty, admitting and subjecting students to take lessons and examinations, fee structures, disciplinary proceedings for the teaching and non-teaching staff and other miscellaneous day-to-day operations which are needed to keep the university operating optimally.

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96. The test which needs to be satisfied in order to establish that a university is administered by a minority community is the test of ultimate control.

97. The administrative functions of AMU are broadly carried out by five bodies: a) Visitor (erstwhile Lord Rector); b) Visiting Board; c) Executive Council; d) Academic Council; and e) Court of AMU.

98. AMU Act, as it stood in 1920, prior to the amendments, did not provide for a mechanism for Muslims to administer the University. Section 13 of the AMU Act provided for the Governor General of British India to be the Lord Rector (now Visitor). The Lord Rector had been bestowed with the ultimate control and superintendence of the University. Section 14 provided for the Visiting Board, which was responsible for ensuring that the University is functioning in accordance with the act, ordinances, and rules. The composition of the Visiting Board did not reflect any special dispensation being made for Muslim control over the board.

99. There have been extensive submissions on the nature of the Court of AMU, and much reliance has been placed by the appellants on section 23(2) of the AMU Act. According to the appellants, the Court of AMU is the supreme governing body of the university. At first blush, this submission by the appellants seems reasonable; however, on closer examination of the statute, this submission cannot be accepted. Section 23(2) gives only residuary powers to the Court of AMU over matters not explicitly provided for in the AMU Act and rules of the University. If sections 13 and 23 are read jointly, the clear picture which emerges is that the Court of AMU is subservient to the Lord Rector; as the Lord Rector had been given the power to overrule the Court of AMU under section 13(5) of the Act.

100. Deep involvement of the State is demonstrated through the Governor- General/Governor in all major activities of the University, such as establishing colleges, promulgating ordinances, and superintendence over the Executive and the Academic Councils.

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101. The governing structure of AMU gives me compelling indications to hold that there is a deep and pervasive control of the State over the administration of the University. The governance structure, funding, admissions, and appointments in the University demonstrates an involvement of the State which goes way beyond mere regulatory oversight and into its absolute control over the administration of the University.

102. Hence, I find myself being drawn to the irresistible conclusion that AMU has not been administered by a minority community at any point in time. The Act places the ultimate control of the University with the Central Government and the Central Government and its predecessor have been administering AMU since 1920.

Conjunctive Interpretation of Establish and Administer

103. Now that the two aspects of establishment and administration have been examined individually, it is apposite to investigate whether the two rights, as guaranteed by the Constitution, have to be read as disjunctive or conjunctive rights. In view of the consensus on the point that ‘and’ between ‘establish’ and ‘administer’ has to be read and understood as ‘and’ and not ‘or’, the discussion is rendered practically academic. However, some discussion on the topic is considered worthwhile having regard to the re-referral order in Aligarh Muslim University (supra).

104. The Constitutional Debates on the drafting of Article 30 have been brought to the fore by the respondents, and while the provision underwent multiple revisions, what remained constant was the use of the word “and” in the phrase “establish and administer”. This is also evident from the Hindi version of Article 30(1) in Devnagari script, reading as follows:

A perusal of Article 30(1) in Hindi reveals that the conjunction used to connect establish (स्थाापनाा) and administer (प्रशाासन) is “और”, i.e.,“and” as opposed to the word “याा” which means “or”. It is well settled that the word “and” connotes a conjunctive nature whereas the word “or” connotes a disjunctive meaning. Though the terms can be, in

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exceptional circumstances, interchangeably interpreted with the aim of fulfilling the legislative intent, there is nothing in the provision, which impels us to read and understand the word other than what is conveyed by its ordinary meaning. Therefore, this Court in multiple decisions has interpreted the right to establish and administer as conjunctive rights rather than disjunctive.

105. The perusal of the Hindi version also buttresses the position that establishment has to only be read as so, rather than being expansively interpreted as founding. This is evident from the use of the word “स्थापना” by the Constitution framers, which means ‘to establish’ rather than the use of the word “उद्भावना” which means ‘to conceive’ or ‘to found’. As discussed above, words have to be interpreted literally, unless the context requires otherwise, which in this case, it does not.

106. This Court,in Dayanand Anglo Vedic (DAV) College Trust and Management Society vs. State of Maharashtra46, held that: “34. After giving our anxious consideration to the matter and in the light of the law settled by this Court, we have no hesitation in holding that in order to claim minority/linguistic status for an institution in any State, the authorities must be satisfied firstly that the institution has been established by the persons who are minority in such State; and, secondly, the right of administration of the said minority linguistic institution is also vested in those persons who are minority in such State. The right conferred by Article 30 of the Constitution cannot be interpreted as if irrespective of the persons who established the institution in the State for the benefit of persons who are minority, any person, be it non-minority in other place, can administer and run such institution.” (emphasis supplied)

107. A similar view was echoed by this Court in St. Stephen’s (supra), wherein it was held that:

46 (2013) 4 SCC 14

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“28. There is by now, fairly abundant case law on the questions as to ‘minority’; the minority’s right to ‘establish’, and their right to ‘administer’ educational institutions. These questions have arisen in regard to a variety of institutions all over the country. They have arisen in regard to Christians, Muslims and in regard to certain sects of Hindus and linguistic groups. The courts in certain cases have accepted without much scrutiny the version of the claimant that the institution in question was founded by a minority community while in some cases the courts have examined very minutely the proof of the establishment of the institution. It should be borne in mind that the words ‘establish’ and ‘administer’ used in Article 30(1) are to be read conjunctively. The right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the institution. The proof of establishment of the institution, is thus a condition precedent for claiming the right to administer the institution.” (emphasis supplied)

108. Finally, reference to Azeez Basha (supra) again, is considered relevant. The argument raised before the Court was a bit different in the sense that right to administer AMU was claimed by almost abandoning the claim that AMU was established by the minority community. It was held that: “It is to our mind quite clear that Article 30(1) postulates that the religious community will have the right to establish and administer educational institutions of their choice meaning thereby that where a religious minority establishes an educational institution, it will have the right to administer that. An argument has been raised to the effect that even though the religions (sic, religious) minority may not have established the educational institution, it will have the right to administer it, if by some process it has been administering the same before the Constitution came into force. We are not prepared to accept this argument. 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

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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. In this connection our attention was drawn to In re: The Kerala Education Bill,1957 [(159) SCR 995] 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. But that case in our opinion did not lay down that the words ‘establish and administer’ in Article 30(1) should be read disjunctively, so that though a minority might not have established an educational institution it had the right to administer it. 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 the 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. The two words in Article 30(1) must be read together and so read the Article gives this right to the minority to administer institutions established by it. If the educational institution has not been established by a minority it cannot claim the right to administer it under Article 30(1).” (emphasis supplied)

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109. The above passage has been quoted by the bench of 3 (three) Judges in Aligarh Muslim University (supra). Having read the said passage in between the lines, I have utterly failed to find any infirmity in the process of reasoning by the Constitution bench while dealing with the arguments that were raised before it.

110. In any event, leaving aside Azeez Basha (supra), it is amply clear that this Court has consistently read Article 30(1) to provide conjunctive, rather than separate and disjunctive, rights. The interpretation of Article 30 in the manner sought to be projected in the majority opinion, would mean that even an institution, though established by the minority, but has never been administered by it would reap the protection granted by Article 30(1). Such a result is exactly what was warned against by this Court in A.P. Christian Medical Educational Society (supra). The right to ‘administer’ accruing to the minority community only upon the factum of ‘establish’ having first been proven leaves but one with the unescapable conclusion, that the right to establish and the right to administer are twin rights, and cannot be read in isolation from one another. Any other interpretation would lead to consequences that were far from what the Constituent Assembly did intend.

111. The majority opinion, though extensive, seems to have created an existential impasse, akin to the Chakravyuh orchestrated by Dronacharya. While it is mentioned in paragraph 73 of the revised draft opinion that “Article 30(1) cannot extend to a situation where the minority community which establishes an educational institution has no intention to administer it”, it has been opined at paragraph 156 (could also be 155) that “In the preceding sections we have held that establishment by a minority is the only indicia for a minority educational institution”. To my mind, these two positions create an inherent contradiction which is as perplexing to solve as the Chakravyuh was for Abhimanyu, inasmuch as it lays out mutually exclusive positions of law which cannot possibly co-exist. In view thereof, a question comes to my mind that if a minority community establishes an educational institution and thereafter abandons its administration to rank outsiders, can such an institution be said to merit protection under Article 30(1), if establishment is the only indicium, as held in the majority opinion? From the paradoxical legal test laid out above, the answer remains elusive.

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Entry 63 of list I

112. There is yet another issue that demands attention: what is the impact of including AMU in List I, Entry 6347 of the Seventh Schedule of the Constitution, and what are the implications of its designation as ‘institution of national importance’?

113. Apart from AMU, BHU also finds pride of place in Entry 63. Respect and honour, in equal measure, as well as equal status as institutions of national importance were bestowed on these two universities (having religious imprint in their respective titular description), which were established by the end of the second decade of the century in which India attained independence from colonial rule, mandating that it is Parliament which can exercise its legislative authority over them without any constraints or qualifications.

114. When the Constitution was being drafted, AMU was not remotely relatable to being considered as a minority institution. The framers of the Constitution proceeded on that basis and included AMU in Entry 63 of List I not only as an institution in respect whereof laws could be framed by the Parliament but also, by necessary implication, designated AMU as an institution of national importance.

115. A brief reference to the Constituent Assembly Debates would be apt at this stage. While deliberating on Entry 63 (originally Entry 40, List I of the Seventh Schedule to the Draft Constitution of India), Mr. Naziruddin Ahmad remarked: “I have slightly altered my amendment to suit the change introduced by Dr. Ambedkar in his own amendment. I submit that Dr. Ambedkar’s amendment would unduly enlarge the jurisdiction of the Centre and many things which would be otherwise cognizable by the Provinces would now, by virtue of the words which I seek to delete, be included within the jurisdiction of the Centre. The Banares Hindu University and the Aligarh Muslim University have been regarded from their very inception as institutions of a national character and importance and therefore they

47 63. The institutions known at the commencement of this Constitution as the Banaras Hindu University, the Aligarh Muslim University and the Delhi University, and any other institution declared by Parliament by law to be an institution of national importance.

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have been rightly regarded so far as national institutions and they have been rightly placed under the jurisdiction of the Union.”48

116. The foresight of the Constituent Assembly is, thus, evident in that the Assembly aimed to preserve and reinforce the national and secular character of AMU. By incorporating AMU within Entry 63 of List I in the Seventh Schedule, the Assembly decisively entrenched its secular and national identity through constitutional enactment. Consequently, any remnants of affiliation to a specific community were deliberately eliminated.

117. “Aligarh Muslim University is not a theological convent. It is a university, and a university cannot function as a communal institution”, observed Mr. M.C. Chagla [one of the most (if not the most) reputed and respected Chief Justices of the High Court of Bombay] serving as the Minister of Education, Government of India at the time, while addressing Parliament during the debate on the AMU (Amendment) Bill, 1965—a bill that was ultimately enacted by Parliament49. Excerpts from Mr. Chagla’s speech in the Parliament50 read as under: “In my opinion, the Aligarh Muslim University is a national institution, an institution of national importance. There are four Central universities: there is the Banaras Hindu University; there is the Aligarh Muslim University; there is the Delhi University; and there is the Visvabharati University. All these institutions are institutions of national importance. If you look at the Seventh Schedule entry 63 therein is very significant; entry 63 of List I of the Seventh Schedule gives the power to the Parliament to legislate […] My submission to this House is that Aligarh University has neither been established nor is being administered by the Muslim Community. […] You had first the Muslim college which was founded by Sir Syed Ahmed. Sir Syed Ahmed has asked the British Government of those days

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to establish a university and the British Government established the University. Therefore, the establishment of the institution was by the legislature and not by the community […] Now I cannot understand how it can be said that the administration is in the hands of the minorities. The administration of the University depends upon the law. During the British times it depended upon this Act. After independence it depends upon the Act, as had been amended by the Parliament. Does Mr. Anthony suggest that it is open to the Aligarh University or the Muslim community to change the administration of the university even to the slightest degree and go contrary to what the Parliament has laid down? If the minority had the right to administer the Aligarh University, then it can have any administration it liked; it can change the administration and it can close down the University; it can change the constitution of the court or the Executive Council. Can it do so? Even the constitution of the court, of the executive council and of the academic council is regulated and not by the minority committee but by the Parliament. There is another aspect of the matter which Mr. Anthony has completely forgotten. He has attached great importance to the fact that under the Act of 1920, the British Government, as a concession, said that the court shall consist wholly of Muslims. Now everybody know that the University is administered by the executive council and not by the court. The court of course is the supreme authority and it is like a show-piece. It meets once a year; lots of people come there and make speeches and pass resolutions. But the day-to day administration, selection, appointments, and so on are carried on by the executive council and it is significant that even in the British days it was not provided that the executive council shall consist only of Muslims. That clearly shows that the British Government did not concede the argument. Although there is no Constitution then the arguments is now advanced by Mr. Anthony that the minority has a right to administer a particular institution. I say that this institution was not established by the minority; nor is it being administered by the minority

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community. That is the legal position as far as Article 30 is concerned.”51 (emphasis supplied)

118. Prof. Nurul Hasan, a reputed historian, followed in the footsteps of Mr. M.C. Chagla as the Minister of Education. This is what Prof. Hasan had to say in Parliament: “**Regards the third objection that as a minority institution it is only Muslims who should be on the Court and on the Executive Council and they should have an exclusive hand in the management of the University, hon Members are aware of the writ which had been filed in the Supreme Court. It has since been withdrawn. Mr. Chagla has expressed his opinion on the legal aspect of the matter. He thinks that this University was not established by the minorities, but by Parliament and, therefore, this objection is not right. As far as interpretation of the Constitution is concerned, I see no reason to differ from the interpretation given by him. I do feel, however, that the spirit underlying the Constitution should not be lost sight of. As far as the objection that there should be only Muslims, who should manage the affairs of the University, is concerned, I know that one of our learned colleagues, Shri P. N. Sapru, has been on the Executive Council of the University for quite a number of years.”

119. The inclusion of AMU in Entry 63 of List I conferred upon it a distinct status of being an “institution of national importance”. The Constitution itself did not categorize AMU as either a minority institution or otherwise. Following the adoption of the Constitution in 1950, amendments were promptly enacted to the AMU Act in 1951 and again in 1965. These amendments were designed to align with constitutional provisions and to reflect the status of AMU as an “institution of national importance”.

120. Entry 63 grants exclusive legislative authority over the specified universities therein to Parliament, and to any other institution declared by Parliament by law to be an institution of national importance.

51 Lok Sabha Debates, Twelfth Session, Third Series Vol. XLV- No. 13, 2nd September 1965

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The scheme of Entry 63, which constitutionally designates AMU, BHU and Delhi University as institutions of national importance, is sufficient to indicate that AMU is not a minority institution. Absence of specific names of universities other than the ones in Entry 63 or anywhere else in the Constitution cements AMU’s distinctive status as an institution of national importance, with its national and non- minority character at the forefront. There could be other institutions of national importance, even institutions which have minority character, but such institutions being designated by ordinary laws would never reach the elevated status of AMU.

121. As clearly distinguishable from other entries in the three lists forming part of Schedule VII, which only provide the vast field of subjects pertaining to which laws could be enacted by the Centre/the States, it is essential to interpret Entry 63 of List I not merely as a field over which Parliament has the authority to make a law but also as a Constitutional provision of recognition of certain institutions as ‘institutions of national importance’. The language of the Entry explicitly designates these institutions with a unique status, thereby affirming their designation as universities of national importance. Thus, it would be inappropriate to construe this Entry solely as a legislative subject without acknowledging its broader implications.

122. In light of the above, an institution having secular traits which was designated as one of national importance by the framers of the Constitution and enshrined in the Constitution adopted in 1950, cannot be retroactively reclassified as a minority Muslim institution in 2024 without violating the secular principles that underpin our Constitution. Such a reclassification would fundamentally conflict with the secular ethos embedded in our Constitutional framework, which upholds the equal status of all institutions irrespective of religious affiliation. The original intent was to recognize these institutions for their national significance, and altering this status now would undermine the foundational values of secularism and equality that guide our Constitutional order.

123. Moreover, universities of national importance, such as AMU, cannot be subordinated to the control of any minority community or particular group. Their national character necessitates that they remain under the jurisdiction of the Central Government to ensure that their operations and management align with their designated

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national significance. This is crucial as the Central Government provides full funding for these institutions, which is vital for their continued existence. The control of the Central Government and the Parliament’s jurisdiction to legislate on AMU could in a way be terminated if the minority community is conceded the right to close down AMU even. A ‘right to administer’ (although may not include the ‘right to maladminister’) could include the ‘right not to administer’ and, thus, bring about a closure of AMU. This would not be in the greater national interest.

124. AMU’s status having been firmly established upon the adoption of the Constitution through its inclusion in Entry 63 of List I, any alteration of AMU’s status—particularly as executed by the Amendment of 1981— is untenable. Any such modification must be effected through an appropriate Constitutional amendment under Entry 63 of List I, adhering to the procedure set forth in Article 368 of the Constitution and such changes cannot be made merely by amending the relevant statute, i.e., the AMU Act. Under these circumstances, the intention of the framers of the Constitution to affirm the national and secular character of AMU may not be altered, particularly not in the manner proposed by the appellants.

125. None of us on the bench was born within a decade of India attaining independence. What was the pre-independence scenario is, thus, not known to any one of us. Whatever we know is through our ancestors or books and treatises on the subject. We have not been trained to decide any issue based on our personal knowledge. However, judicial notice can of course be taken of facts specified in section 57 of the Evidence Act, 1872 (currently, section 52 of the Bharatiya Sakshya Adhiniyam, 2023) which would include matters of public history based on appropriate books or documents of reference but the court, if it is called upon by a person, may refuse to take judicial notice of any fact unless and until such person produces any such book or document as it may consider necessary to enable it do so. There is, however, no such tether insofar as debates of the Constituent Assembly or proceedings of Parliament are concerned. Judicial notice thereof can be taken without any reservation and what have been debated, as seen from documented records, are assumed to be correct. Does that mean that the courts are bound to accept the contents of the debates as portrayal of the correct position on facts? The answer may not be in the affirmative in all cases. But, although courts are

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not bound to accept the speeches of members of the Constituent Assembly or the members of the Parliament including ministers, made on the floor of the Parliament, as unvarnished and unimpeachable truth, the speeches are of sufficient persuasive value and if, the factual accuracy of the contents of such speeches are not shown to be questionable or incorrect, there is no reason as to why the court should feel shy to rely on them. Mr. M.C. Chagla, followed by Prof. Nurul Hasan, was emphatic on the floor of the Parliament that AMU was not a minority institution. I have not been impressed upon to hold, with reference to any credible material shown by the appellants, that what the ministers said was factually incorrect, they were nowhere near the truth or their speeches were ‘a long shot from reality’. Based on post-independence events like these speeches as well as other evidence that is available, which provide sufficient ground to hold that AMU is not a minority institution, the voyage to change history through a judicial pronouncement may not be continued further.

126. The discussion on this topic ought to end by quoting Sahibzada Aftab Ahmad Khan, former Vice Chancellor of AMU52: “It is only fair to observe that no other national institution in India has shown such a liberal and catholic spirit in actual practice as has been the consistent policy of this institution from its start up to the present time. We have always had a good number of Hindu students, and the first graduate, in the late M.A.O. College, was a Hindu who took his degree in 1880. Thus if there is any institution in India, which can truly be called national and all-India in character, it is this University which deserves the sympathy and support not only of the Muslim community but of the people of India as a whole.”

Applicability Of Prof Yashpal (Supra) And The Ncmei Act

127. In the revised draft opinion, it has been proposed to be held that the decision in Prof Yashpal (supra) will not have a bearing on the question referred herein, since the decision was rendered in the context of universities existing only on paper, and thus, mandated that institutions be established and incorporated so as

52 History of the Aligarh Muslim University, Khaliq Ahmad Nizami, p. 110, Idarah-i-Adbiyat-i-Delli, Delhi, 1995.

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to ensure their material existence. It has been opined by the HCJI that the decision does not efface the distinction between the words “established” and “incorporated”, with Article 30’s only indicia being that of establishment.

128. With respect to the NCMEI Act, upon consideration of the original and the post-amendment definition of a minority educational institution,it has been proposed to be held that a statutory amendment cannot determine the interpretation of Article 30(1). In other words, the issue referred need not be decided on the basis of the amended definition of minority educational institution.

129. The opinion on the applicability or relevance of the decision in Prof Yashpal (supra) is accepted. However, the opinion on how the NCMEI Act has to be read, in particular section 2(g), in the light of the opinion earlier expressed that establishment is the only indicia and not coupled with administration is difficult to accept for reasons elaborated before.

130. However, since Prof Yashpal (supra) and the NCMEI Act are not relevant for deciding the reference, it is an indicium that reference to the same by the bench of 3 (three) Judges in Aligarh Muslim University (supra) was redundant and constitutes another reason for the re-reference to be held invalid.

131. Hon’ble Surya Kant J. has extensively dealt with the interplay among the reference, NCMEI Act amendment, UGC Act, and the holding in Prof Yashpal (supra). Azeez Basha (supra) holds that a university established by the legislature cannot have the character of a minority institution, however, the NCMEI Act provides for establishment of minority universities; to compound matters, as per the UGC Act degrees can only be conferred by universities that are established “by or under” a statute. In Prof Yashpal (supra), this Court held that a statute would not give legal sanction to a university unless certain infrastructural facilities were already in place. To resolve this apparent contradiction, His Lordship has clarified and modified Azeez Basha (supra) to the extent that in the new legal regime a university established “by or under” a statute can have a minority character as long as it fulfils the requirements under the UGC Act. According to His Lordship, a university could either be (i) recognised by statute, (ii) brought into existence by statute, (iii) created by statute. It is only if the university falls into the third category that it is prevented

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from assuming the character of a minority educational institution due to it being a creature of statute. With this reasoning, His Lordship has harmonised the amended portions of the NCMEI Act, the UGC Act, and the holding of Prof. Yashpal (supra) while simultaneously modifying Azeez Basha (supra) to that extent. Resultantly, a minority community can establish a university under Article 30, if it complies with the rigours of the UGC Act.

132. When Azeez Basha (supra) was decided, the UGC Act and the NCMEI Act were not on the statute-book. Hence, the decision therein was based on the facts and circumstances before the Court. The test that was laid may not apply to present day facts and circumstances, which are governed by the UGC Act and the NCMEI Act.

Concluding Remarks

133. Judges of the Supreme Court of India are no doubt the final arbiters in resolving disputes and differences between the parties; however, the recent judicial trend of eschewing all that is old, for the sake of progress and constitutional dynamism, is disturbing. We, the Judges, at times tend to forget the confines of our own jurisdiction and that we too, like every other human, are fallible. We are meant to be guided in our approach by Constitutional morality and the words of the architects of the Constitution. Facilitating history to be re-written, more than a century later by a judicial opinion, is not what we, as Judges, are supposed to do. Additionally, in matters such as the one under consideration, there is no warrant for the thought process to gain ground that Judges of this Court who had authored opinions in the relevant past were wrong and that the present generation of Judges are correct. Judicial deference, in my view, ought to have leaned towards the interpretation of Article 30(1) that has stood the test of time for almost 75 (seventy-five) years since the Constitution has been in existence.

134. It is doubtful whether any of us, as Judges,would lay a claim to be omniscient. The limitations of a Judge’s expertise would negate any assertion of authority in extra-legal areas as well as to claim special knowledge of what the canvas was prior to 1920 when AMU came to be established. Conscious as I am of my limitations, it would be a misadventure on my part to agree with the majority opinion and command the appropriate bench to determine whether AMU was established by the minority community based on the indicium

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proposed therein, post-independence decisions of this Court and liberal ideas of present times, without there being credible material of proof that AMU, all along, was perceived as an educational institution established ‘by the Muslim community’, as distinguished from ‘for the Muslim community’, even during the pre-Constitution days. Whether or not an educational institution has been established by a particular community has to be judged bearing in mind all antecedent, attending and surrounding circumstances of the relevant time. No one can claim with certainty that the entirety of the dialogue/correspondence/ incidents/events, which did precede the establishment of AMU, have been placed before us and that too with cent percent accuracy. Such being the state of affairs, we ought not to substitute historical facts by our appreciation of half-baked evidence. Notwithstanding the knowledge, erudition and eminence that some of us have been gifted with, I am sceptical as to whether any of us can claim to be more learned than those who played significant roles in framing of the Constitution. It is not as if they were wholly unaware of the circumstances of the yesteryears. If ‘establish’ were to be read as ‘found’, there is no reason as to why the framers did not express themselves differently by using ‘to found’ instead of ‘to establish’ or, in the alternative, both - but one after the other.

135. Tinkering with understanding of a Constitutional provision, which has been consistent and has stood the test of time since its inception, in the name of interpretation and overruling of longstanding precedents is too frequent an occurrence which judicial activism has brought about, sometimes unnecessarily, in the past couple of decades. It is time that we refrain from such an approach, unless absolutely required, and allow the people’s will to prevail and the Constitution to reign supreme.

136. Turning to the point of indicia, the tests employed for identifying post-Constitution minority educational institutions cannot be the same as for identification of pre-Constitution institutions, more so when a college established by the minority is elevated to the status of a university upon establishment and incorporation through statute. There can be no dispute that an educational institution undoubtedly established prior to the Constitution coming into force by a minority community, either based on religion or language, and administered as well by such community would be entitled to the protection envisaged in Article 30(1). However, if there is a serious

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doubt as to who established the educational institution and how it was established, question of piercing of the minority veil does not arise in the absence of any concept of minority when the institution came to be established. One has to understand, in this regard, the purpose for which the minority community is sought to be extended protection post-Constitution era. The dominant purpose is to protect the minority from the domination of the majority. Until independence of India was achieved, irrespective of whether a ‘native’ so called was a Hindu or a Sikh or a Muslim or a Christian or a Jain or a Buddhist or a Zoroastrian, each individual irrespective of his faith was the subject of colonial rule with little freedom. The concept of minority being totally absent in those days, extending the protective umbrella of Article 30 to AMU by proposing to hold that establishment by a minority is the only indicia for a minority educational institution without any indicia as to administration of such institution would be inherently contradictory to the terms of such article and susceptible to invalidity. Formulating indicia now without there being a holistic consideration of all relevant factors ought not to be embarked upon by the Court as a task particularly when earlier benches, including benches larger than this one, have jettisoned the issue.

137. Though schools, colleges and universities are all known to be educational institutions, their purposes and direction are different. Depending upon the areas of focus and emphasis, they vary in importance too. Education remains largely incomplete without a basic bachelor’s degree, which a student obtains by qualifying in the relevant examination conducted by the university to which the college, where he studied, is affiliated. One other major distinguishing feature is the way each institution is created. In the days with which we are concerned, a school or college could be privately created but not a university. To ‘found’ an institution such as a school or a college or a university cannot be equated with its ‘establishment’. Conscious of such limitation, the argument of construing Article 30(1) in a manner such that the verb ‘to establish’ does not call for being read in a narrow and formalistic sense and in its expansive reading ought to take within its fold ‘to found’ would only beg the question that AMU was not established but, at best, found by the Muslim community.

138. The parties having agreed that the words ‘establish’ and ‘administer’ must be read conjunctively, there can be little doubt that administration has to necessarily follow establishment. It is axiomatic that to enjoy

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the protection that Article 30(1) guarantees, the right of the minority community to administer an educational institution can be claimed only if the educational institution is established by it. Also, Article 30(1) cannot extend to a situation where the minority community which establishes an educational institution shows no or little intention to administer it. This being the unequivocal position in law, it would be an indicium as to whether the educational institution, apart from being established by the minority, was or is being administered by the minority.

139. For the purposes of Article 30, the right to establish and the right to administer must go hand in hand. Once established, administration of the institution begins. In order to attract the protection guaranteed by Article 30, it would not be sufficient for the minority community to say that though it might have established the institution, whether to administer it or not is a choice given by the article itself so much so that the administration can be wholly left to even a non-minority community. Only those institutions which are established by the minority community and are being administered by such community may exercise their choice of whether to establish a school or a college or a university as well as the manner and mode of management of such institution. These are of course tests which need to be applied to specific institutions which have not been brought into existence through a statute. If any institution is a creature of a statute, various other circumstances need to be holistically considered. Whether or not AMU is a minority institution presents a unique case bearing no similarity with any other pre-independence university.

140. Having regard to the state of affairs existing in India during the last quarter of the nineteenth century and the first two decades of the twentieth century, there can be no disagreement that both the Hindus and the Muslims were aspiring to have universities to cater to the needs of their respective communities. The imperial government, however, was not prepared to give up an inch and hand over control of the proposed universities to either community. The Hindus relented and BHU came to be established in 1915. The Muslims too wished to have a university but the degree of control sought to be exercised by the imperial government brought about the rift, referred to earlier. What followed was sort of a compromise. The Muslim community relented in the same manner the Hindus had relented to get BHU established, leading to the process for establishment of AMU. The

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Loyalists mixed priority with pragmatism. Prioritisation meant focus on the most essential thing, i.e., establishment of AMU, and by being pragmatic, they recognised their limitations of being unable to administer a university. Once AMU came to be established through statute and became a body corporate, there was a total relinquishment of all claims. The land used for AMU was a public land; the funds for AMU were sourced to public money; the person at the helm of administration was the Rector, who was none other than the Governor General; and the sum of Rs. 30 lakh that belonged to the Muslim community and which they were prepared to spend for AMU was kept as the reserve fund, etc.

141. Assuming that the verb ‘to establish’ could be read as ‘to found’, although I found no warrant to so read, it is clear that the Muslim community had no intention to administer AMU which was left to be worked out as per the AMU Act.

142. There are a couple of other aspects, which must not escape notice.

143. First, AMU is a creature of a statute and is engaged in discharging public duties. By passage of time, AMU happens to be one of the foremost Central Universities in the country. It is, however, entirely dependent on finances allocated by the Central Government. It is mandatorily required to function as per the AMU Act as well as provisions of other enactments. There can, thus, be no doubt that AMU is an Article 12 authority. Being an Article 12 authority, it is bound by all the articles in Part III of the Constitution which impose duty upon it inter alia to ensure equality and fairness in all its actions including Article 29(2). In the present context, Article 30(1) cannot be divorced from Article 29(2). The scope of ‘choice’ of the minority as in Article 30(1), if at all it has established AMU, could diminish for an institution such as AMU, for, it is always subject to the Constitutional provisions and the enactment that has created it. Whatever the Constitution as well as the AMU Act now provides or could provide in future, would represent the will of the people of India, and not the will of the minority. It, therefore, admits of no doubt that in administrative, functional and financial matters, the control of AMU vests in assigned entities not designated by the minority community. This being the status of AMU, it would be an indicium of not being an educational institution over which and in respect whereof the minority has a choice to administer it in the manner the minority prefers.