Aligarh Muslim University v. Naresh Agarwal & Ors.

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They argued that the 1920 Act essentially transformed the status of ‘MAO College’ from being affiliated with Allahabad University to an independent entity named ‘Aligarh Muslim University’ primarily aimed at imparting Muslim religious education and featuring a Department of Islamic Studies.

194Copy pinpoint194. The Appellants delineated the historical trajectory of AMU into three distinct phases: A. The period spanning from 1870 to 1877 witnessed the inception of the idea among the Muslim community to establish a university for the upliftment and progress of Muslims, leading to the establishment of MAO College. B. From 1877 to 1910, the Muslim community fervently advocated for the conversion of MAO College into a university, eventually securing tentative agreement from the Government. C. The period from 1910 to 1920 saw concerted efforts by the founders of the Muslim University to engage with the Government, culminating in the successful conversion and incorporation of MAO College into Aligarh Muslim University.

195Copy pinpoint195. It was sought to be highlighted that Sir Syed Ahmad Khan envisioned establishing a university in India akin to Oxford and Cambridge to address the educational backwardness among Indian Muslims. In order to achieve this goal: i. On October 2, 1870, Sir Syed formed the Committee for the Better Diffusion and Advancement of Learned among Mohammadans of India. This committee aimed to understand why Muslims were not pursuing Western education, identifying reasons such as lack of religious education and non-involvement of Muslims in educational decisions. Consequently, the idea of an educational institution managed by and for Muslims with religious instruction gained traction. ii. In 1871, Sir Syed established the Mohammadan Anglo-Oriental College Fund Committee to raise funds for the educational institution. The committee’s objective was explicitly stated as collecting funds for establishing a college, particularly for the education of Muslims. iii. The committee resolved to establish Madrasatul Uloom (an Arabic term for educational institution) in Aligarh, which was

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inaugurated on May 24, 1875. This marked the initial step toward realizing the vision of a university for the Muslim community. iv. Subsequently, Madrasatul Uloom was established as the Mohammedan Anglo-Oriental College (MAO College) on January 8, 1877, as a registered society. During the laying of the foundation stone, the College Fund Committee addressed the Viceroy and Governor-General of India, expressing the hope that the college would eventually evolve into a university spreading the values of free inquiry, tolerance, and morality. v. The Rules and Regulations of MAO College emphasized its primary objective as the education of Muslims, while also accommodating Hindus and other communities. vi. Administration of MAO College was exclusively entrusted to the Muslim community, as evidenced by various resolutions and rules. The Select Committee for the Advancement of Muslim Education, the Fund Committee, and the Trusteeship regulations all mandated Muslim involvement in the institution’s governance.

196Copy pinpoint196. The Appellants sought to highlight that in the second phase, the MAO College expanded, and Sir Syed and the Muslim community continued to seek government support for its “conversion” into a university by placing reliance on the following : i. Sir Syed pursued government support primarily because the Muslim community viewed a degree as essential for success and government employment. This viewpoint was documented in Mr. Altaf Husain Hali’s biography of Sir Syed, “Hayat-i-Javed.” Justice S Amir Ali also stressed the necessity for the proposed university to be empowered to grant government-recognized degrees. ii. To further this goal, the College Fund Committee presented a written address to the Viceroy on 18.11.1884, expressing the hope that, with increased funds and completed schemes, they would seek recognition as an independent university. iii. After Sir Syed’s demise on 27.03.1898, a memorial fund was established on 08.04.1901 to gather funds for elevating MAO College to university status. This endeavor met with success, with Rs. 1,27,000/- collected by 11.11.1901. Additionally, Mr. Syed Jafar Husain initiated the ‘one rupee fund’ scheme,

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urging each Muslim to contribute at least one rupee towards the proposed university, resulting in substantial funds being raised. iv. Various representations were made to the government by the MAO College management and members of the Muslim community, including addresses to the Viceroy on 01.10.1906 and 22.04.1908, seeking assistance in establishing a Muslim university. The 22.04.1908 address emphasized the alignment of their goals with Sir Syed’s vision, with significant support from figures like Mr. Justice Mahmood and Mr. Theodore Morison. v. In 1910, the efforts of the Muslim community garnered in- principle acceptance from the Government of India for the conversion of MAO College into a Muslim University.

197Copy pinpoint197. The Appellants pointed out that in the final phase, the Muslim community continued to collect funds and negotiate with the government to establish the university, highlighting the following : i. In 1911, the internal Foundation Committee was formed to establish a University, with the Raja Saheb of Mahmoodabad as its President. ii. On 18.07.1911, the Secretary of State approved in principle the establishment of a university at Aligarh, subject to the provision of adequate funds and control, based on the recommendation of the Government of India dated 10.06.1911. iii. The then Government of India, in its letter dated 31.07.1911 to the Foundation Committee, specified that the university could be established only through a bill in the Imperial Legislative Council, expressing willingness to draft the proposed bill in consultation with community representatives. iv. A draft bill was prepared by the Constitution Committee in August 1911. v. Negotiations in November 1911 led to a dispatch from the Government of India to the Secretary of State, highlighting the significance of sanctioning a university at Aligarh for the Muslim community. vi. The negotiations continued, addressing issues such as university affiliation, nomenclature, and the Chancellor’s role. A letter dated 09.08.1912 from the Education Member of the

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Government acknowledged the community-led initiative and the draft constitution’s intent. vii. In 1915, the Muslim University Association, comprising entirely of Muslim members, was founded to facilitate the conversion of MAO College. The association’s efforts were detailed in the MAO College Annual Report 1912-14, highlighting significant funds raised. viii. The Muslim Community successfully raised Rs. 30 lakhs for the university, as required by the Government. ix. After prolonged negotiations, the Muslim University Bill was prepared in 1919 and referred to a Select Committee. The committee’s report, submitted on 02.09.1920, underscored the Muslim Community’s pivotal role in the university’s establishment and administration. x. The Aligarh Muslim University Bill, 1920 was debated in the Indian Legislative Council and passed. The President congratulated the Muslim community on its passage. xi. Consequently, the Aligarh Muslim University Act, 1920 was enacted, with the Statement of Objects and Reasons acknowledging the significant role of the Muslim community in its establishment.

198Copy pinpoint198. Apart from the above, the Appellants sought to highlight other aspects to highlight minority character of the institution such as : i. The historical background of the institution, as described above, showcases the evolution MAO College into a full-fledged university through the Aligarh Muslim University Act, 1920. This journey reflects the concerted efforts of the Muslim community, led by visionaries like Sir Syed Ahmad Khan, to address the educational needs and aspirations of Indian Muslims. ii. The architecture of AMU’s buildings, characterized by features such as deep green color, domes, and Qur’anic inscriptions, distinctly embodies its Islamic identity. Photographic evidence presented to the Division Bench of the High Court further underscores this Islamic architectural style. iii. The emblem of AMU incorporates a Qur’anic verse, serving as both its motto and a symbol of its Islamic heritage.

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iv. AMU boasts a University Mosque, a significant religious and cultural landmark within its premises. The Amending Act of 1972 permits the establishment of halls, hostels, specialized laboratories, and research units within a 25 km radius of the University Mosque, highlighting its central importance. v. The employment of Muezzins at AMU reflects its commitment to Islamic traditions and practices, contributing to the religious and spiritual ambiance on campus. vi. Initially, AMU offered separate Departments of Studies for Sunni Theology, Shia Theology, Islamic Studies, Arabic language and literature, Persian, and Urdu. Over time, these departments have expanded to include various disciplines, such as Islamic systems of medicine, Philosophy (with a focus on Islamic Philosophy), and a Center for Quranic Studies, reflecting the university’s continued emphasis on Islamic scholarship and education. vii. AMU has historically accommodated female students to observe purdah (veiling) as per Islamic tradition. Photographs documenting these accommodations provide tangible evidence of the university’s efforts to create an inclusive and supportive environment for its female students while respecting their religious beliefs and practices.

199Copy pinpoint199. On the contrary, the parties defending the judgment in Azeez Basha [supra] and the judgment of the High Court, have sought to highlight their own version of events prior to the establishment of the AMU in order make a case that while the minority community was involved in the process, the establishment of the University was at the primary will and decision of the British Indian Government. The following aspects were highlighted : i. In 1873, Sir Syed Ahmad Khan proposed substituting the term “college” with “university” in the name of MAO College. However, the government responded by stating that if a “Mohammedan University” were to be established, no financial aid would be provided. ii. It was brought to the fore that contributions from various sources, including government officials and dignitaries, as well as the donation of land by Lt. Governor Sir John Strachey, underscored the national character of MAO College.

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iii. The college, initially dependent on government funds, struggled with significant debt around the time of Sir Syed’s death in 1898. iv. Efforts to establish a university at Aligarh continued, with suggestions from individuals like Prof. Dr. Zia-ud-din, Justice S. Amir Ali, Theodore Morison, Theodore Beck, and Maulvi Rafi-u’d-din, aiming to model it after European universities and offering a blend of Western and Oriental learning. However, despite proposals for a predominantly minority university, the demands were not fully accepted. v. The Imperial Government insisted on substantial secular control over the university’s establishment, as indicated in correspondences between officials such as JP Hewitt, the Secretary of State, and Sir Harcourt Butler. Despite proposals for affiliating colleges outside Aligarh, such plans were rejected to prevent potential overgrowth and competition with future institutions. vi. During meetings and conferences, the government’s proposal for a university along the lines of the Benares Hindu University was met with disappointment and protest, highlighting the community’s desire for autonomy. Eventually, the Muslim University Association voted to accept the government’s proposal, aligning the university’s setup with that of the Benares Hindu University. vii. Discussions regarding government recognition of degrees and control over examinations emphasized the need for government oversight to maintain standards. Members of the Regulations Committee agreed to government veto power over the appointment of the University Vice Chancellor, citing the university’s envisioned All India character and the desire to avoid local prejudice. viii. On October 10, 1917, H. Sharp, the Secretary of the Department of Education in the Government of India, outlined several key principles to consider regarding the organization of the proposed university’s constitution. Firstly, he suggested following the precedent set by the University of Benares, except for non- essential changes or improvements. Secondly, he emphasized not allowing adherence to the constitution of the Mahomedan

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Anglo-Oriental College as a basis for deviating from the Benares model. Additionally, he highlighted various political considerations, including the desire to establish Islamic colleges affiliated with Aligarh, potential political movements centered around Aligarh, and the desire for a network of recognized Islamic schools. Other concerns included the desire for autonomy from local government control, political representation within the university’s governing bodies, the conferment of inexpensive degrees to increase Muslim graduates, and the potential elimination of European staff members. Sharp also addressed specific aspects of the draft bill, such as the powers of the Governor-General in Council, the role of the Visitor, and the composition and powers of the Court, Senate, and Syndicate. ix. On January 19, 1918, a letter from Sir E.D. Maclagan, Secretary to the Government of India, highlighted the need for any legislation to establish a Muslim University at Aligarh to conform with the provisions of the legislation passed for the Hindu University at Benares. The letter raised concerns about certain provisions in the draft bill, including compulsory theology instruction for Muslim students and the absence of provisions regarding a Visitor’s control over statutes and regulations. x. On December 19, 1918, a demi-official letter from Mr. Keane mentioned the expectation of a liberal annual grant from the Government of India to the proposed university, similar to the grant given to the Benares Hindu University. xi. On December 27, 1919, the Government of the United Provinces provided its views on the draft constitution for the proposed Muslim University at Aligarh. The Lieutenant-Governor expressed concerns about granting the Court the power to interpret statutes and suggested limiting the Court’s powers to preserve the influence of the Governor-General. xii. On March 12, 1920, Mr. H. Sharp’s letter to Kunwar Maharaj Singh noted that the draft bill would allow the Governor-General in Council to give instructions and compel the university to follow them regarding the standard of university examinations. xiii. On May 8, 1920, a telegram compared the Muslim University draft bill with the Benares Hindu University Act, noting differences in the publication of accounts, the approval process for

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alterations to statutes and ordinances, and the transfer of certain powers from the Visitor to the Governor-General in Council. The telegram emphasized the importance of retaining control over these all-India universities under the Government of India. xiv. On June 12-13, 1920, a meeting was held to discuss the establishment of Aligarh Muslim University. A large number of points were discussed at the meeting which ultimately ended with the observation that BHU and AMU should be on equal footing regarding their relations with the government. xv. In a subsequent speech on September 9, 1920, Mr. Shafi presented the report of the Select Committee on the AMU Bill in the Indian Legislative Council. Amendments proposed during the session, such as altering the tenure of key university officials and modifying the ordinance-making process, were met with objections. Concerns were raised about potential anomalies and the balance of power between university bodies and government authorities. Despite objections, the proposed amendments were put to a vote and rejected by the council.

200Copy pinpoint200. Significantly, another aspect that was highlighted by the parties defending the judgment in Azeez Basha [supra] and the judgment of the High Court, was about the two groups that emerged during the ‘negotiations’ with the British Indian Government on the minority side and the creation of the Jamia Milia Islamia. It was pointed out as under : i. Sir Syed’s original vision for AMU was deeply rooted in loyalty to the British. ii. The division within the Aligarh University movement stemmed from the government’s refusal to grant the college authority to affiliate with institutions outside Aligarh. Even prior to this, the Ali brothers endeavored to remove pro-government influences from the college administration. iii. The rift intensified over the denial of affiliating powers to MAO College, exacerbated by events like the annulment of the Bengal partition, perceived by Mahomed Ali as a betrayal of Muslims. iv. The factions emerged, with Maulana Aftab Ahmed Khan leading those willing to accept the government’s terms (the loyalists), including later Mohd. Shafi.

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v. Conversely, the opposition, led by Ali Brothers and Hasrat Mohani, advocated for Muslim control of the university and affiliation powers. vi. The Ali brothers and their followers sympathized with Turkey and opposed British actions during WWI. Mahomed Ali’s influence over Aligarh students created challenges for MAO college’s principal, Dr. Ziauddin. vii. After the BHU Act, pressure mounted to accept the government’s terms, leading to a split in the movement. Despite the University Foundation Committee’s decision to accept government proposals without conditions in April 1917, Mahomed Ali remained opposed to the same. viii. In 1920, negotiations between the Government and the Aligarh group led to the introduction of the University Bill. Simultaneously, Gandhiji’s involvement in the Khilafat movement aimed to mobilize Muslims amidst anti-government sentiments during the Non-cooperation movement started with the co-operation from the Ali Brothers. ix. The rapid introduction of the AMU bill was aimed to align Muslims with the government amid growing anti-government sentiment. Subsequently, the pro-Khilafat group urged the university to reject government aid, prompting Maulana Mahomed Ali to advocate for non-cooperation. On October 12, 1920, the Ali brothers and Gandhiji urged the college to cease accepting government aid. Aligarh students actively joined the non- cooperation movement, threatening to nationalize the college. x. Leaders supporting the non-cooperation movement assured Aligarh students of the college’s transformation into a National University, encouraging enrollment. The Deoband Theological School issued a fatwa advising students to leave MAO College and enroll in the proposed National University. xi. On October 27, the Aligarh Board of Trustees directed Maulana Mohammed Ali and his supporters to vacate college hostels, leading to the college’s closure. xii. Finally, on October 29, 1920, Maulana Mohammed Ali and his followers left the college to establish Jamia Milia Islamia, aimed

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at countering government influence at AMU. Consequently, the Ali Brothers established Jamia Milia Islamia as an independent institution not subject to government control, contrasting with AMU’s dependence on government support.

201Copy pinpoint201. On the basis of the above, it was argued that the judgment in Azeez Basha [supra] correctly recognises the historical context of AMU’s establishment and the influence of British recognition on its character. It was argued that the judgement in Azeez Basha [supra] does not simplicitor conclude that statutory establishment precludes minority status but examines the circumstances preceding AMU’s founding to determine its nature as a government-supported institution.

202Copy pinpoint202. Keeping the above factors in mind, the Court must survey the important events and incidents that led to the formation of the AMU. In the conflict of narrative surrounding the century old history, the Court cannot be swayed by one side of the story or the other. In a complex historical context such as this, the Court must weigh carefully the role played by the minority as against that played by the government in establishment of the institution in order to determine who is responsible for the positive fact of such establishment.

203Copy pinpoint203. From a minute study of the aspects highlighted above, it is clear that in some case, there may exist certain factors which point towards efforts made by the minority community to claim to have a denominational University. Further, clearly the real intention of the minority community may indeed have been to have a denominational University for its own use. However, as stated above, intention and efforts are not the complete answer to the question of establishment.

204Copy pinpoint204. If in a given case, there may be other factual factors pointing towards the contrary, highlighting that whatever the intention or the will of the minority community might have been at the said time, in exchange or during negotiations, if the resultant institution was effectively rendered an open governmental institution [with limited minority aspects], then Article 30 would be out of the picture. An institution with a limited minority aspects/elements cannot be a minority institution. The Court in such a situation, must balance the narratives on a weighing scale and test which forces were stronger during the process of establishment and the resultant institution.

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J. Pre-independence Universities and other institutions

205Copy pinpoint205. At this juncture, it would be appropriate to refer to the position of educational institutions, specifically Universities, prior to the advent of the Constitution and the UGC Act, 1956. During the said time, the British Indian Government, through legislations passed through provincial legislatures, passed various enactments establishing Universities in various zones/cities. The University of Calcutta, the University of Bombay, the University of Madras, the Panjab University and the University of Allahabad were established through legislations in the 19th century.

206Copy pinpoint206. At the same time, throughout this period, it is noteworthy that a significant number of colleges and similar educational institutions were established across the country, including those established by minority communities. The said institutions did not aspire to attain “university” status and were content with operating as affiliated colleges to the Universities established by legislation by legislative bodies.

207Copy pinpoint207. Parallelly, prior to the prohibition contained in the UGC Act, 1956, there existed a period wherein the legal landscape lacked statutory constraints preventing the establishment of universities without specific legislative enactments. During this time, it was within the prerogative of any collective body or individuals to establish educational institutions in the nature of universities without legislative intervention.

208Copy pinpoint208. In fact, in the absence of a provision like Section 23 of the UGC Act, 1956, it was open to such institutions to even adopt the titles such as “university” or in some cases “vidyapeeth” or “jamia” asserting their capability to grant degrees. This era witnessed the emergence of numerous universities, predating independence, whose degrees did not carry recognition from the British Government for eligibility in employment within Crown services. Despite this absence of official recognition, many of these institutions rose to prominence, eventually becoming leading national educational establishments.

209Copy pinpoint209. Therefore, the authorities behind the MAO College, had three options : i. First, request the British Indian Government to establish a university, with the classical British Indian Government’s control as in case of other Universities, through a legislation passed by the Imperial Legislative Council or Provincial Legislature.

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In the said eventuality, the advantage was that the institutions degrees could be recognised by the British Indian Government [and perhaps the world over] however, it would require foregoing of the character and the control over the institution. ii. Second, continue as the MAO College, affiliated to the Universities already in existence, and persist as a college only [without granting its own degrees] while preserving its control and character as a denominational institution subject to regulatory controls that came along with the affiliation with a legislation-based University; iii. Thirdly, the MAO College had the option to establish a university/ Vidyapeeth/jamia under its own name or any other name without the need for government enactment, albeit without recognition from the British Indian Government. The institution could have chosen to maintain its character and avoid British governmental control.

210Copy pinpoint210. The history of the events as mentioned above, is witness to the decisions taken and path chosen by the stakeholders and the same would have a bearing on the issue whether the AMU was established as a minority institution or not.

K. The question of administration and the 1920 Act

211Copy pinpoint211. As stated above, “administration” and its link with the question of establishment is to be ascertained by locating who exercised the “choice” with regard the crucial aspects of an institution and to what extent was the minority’s decision making expressed in the tangible outcomes at the time of establishment. As stated above, it is at this point that the “choice” of the minority marries itself with the “administration” by the minority community. As stated above, the choice can be said to have been exercised by the minority community, if the minority community is present in some higher echelons of the administrative setup. Such positioning of the minority community would, in fact, enable the community to exercise its “choice” as the said choice is a function of the decision making of the minority community. If the minority community is not the decision maker in offices of prominence in the institution, the offices which hold the keys to giving character to the institution, the claim of administration or establishment by the minority community would fall flat. It is in this

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light that the AMU act, 1920 [and as it stood post the Constitution coming into force], would have to be examined.

212Copy pinpoint212. The AMU act, 1920, as enacted, is an interesting piece of legislative drafting. The Act had 40 sections and created a unique machinery, to administer the AMU. As discussed above, the establishment of the university and the question thereof is also a function of nature of the university established through the Act and the real controlling authorities – both at executive level and staff level. The parties doubting the judgment in Azeez Basha [supra], sought to highlight some aspects of the 1920 Act in order to further their points.

213Copy pinpoint213. It was pointed out that the Statement of Objects and Reasons and preamble of the Act explicitly articulates its purpose to establish and incorporate a teaching and residential Muslim University while dissolving the Muhammadan Anglo-Oriental College, Aligarh, and the Muslim University Association, transferring all their properties and rights to the new university. It was pointed out that all assets, rights, powers, and privileges of MAO College and its affiliate bodies were fully transferred and vested in AMU. It was pointed out that any references to MAO College or its affiliate bodies in previous enactments or documents are construed as references to AMU. It was pointed out that all employees and staff of MAO College were automatically deemed as employees of AMU with the same tenure, terms, rights, and privileges. It was pointed out that donations received from the Muslim community, totaling thirty lakh rupees, were allocated as the Reserve Fund to be managed by AMU.

214Copy pinpoint214. It was pointed out that all students of MAO College became the responsibility of AMU upon commencement, including the provision of instruction as per the prospectus of Allahabad University. It was pointed out that the First Statutes mandated that the Register of registered graduates include those who had been educated for at least two years at MAO College. Additionally, the Central Legislature incorporated provisions in the AMU Act specifically benefiting the Muslim community, such as the promotion of Oriental and Islamic studies, instruction in Muslim theology and religion, and furtherance of arts, science, and other branches of learning.

215Copy pinpoint215. It was pointed out that the Act allowed for the establishment of intermediate colleges and schools within the vicinity of MAO College to provide instruction in Muslim religion and theology. It was pointed

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out that regarding administration, the Muslim community had both de jure and de facto control over the management of AMU. It was pointed out that the limitation of the membership to the ‘Court’ [which is the supreme governing body] to Muslims is a significant aspect in that regard.

216Copy pinpoint216. It was highlighted that the Chancellor, Pro-Chancellor, and Vice- Chancellor, being ex-officio members of the ‘Court’, had to be from the minority community. It was pointed out that the powers vested in the Court to appoint university officers and frame statutes for the Executive and Academic Councils, and the predominance of Muslims in elected university positions. It was pointed out that additionally, the Act did not require the submission and approval of certain statutes dealing with Muslim education. It was pointed out that the presence of non-Muslims in governing bodies does not diminish the minority character of the university, citing legal precedents. It was pointed out that powers vested in the Lord Rector and the Visiting Board under the Act do not affect the university’s minority character and are merely ‘regulatory’ or ‘supervisory’ in nature as would be in case of even present-day Universities and their ‘Chancellors’.

217Copy pinpoint217. The parties defending the judgment of the High Court pointed out that the 1920 Act provides for government control over the AMU by controlling, inter alia, the appointment of important office holders, the composition of administrative bodies, the rule making power of the university etc. It was pointed out that the Governor General-in- Counsel was appointing authority at the time of inception for the high positions of Chancellor, Pro-Chancellor, and Vice-Chancellor. It was pointed out that powers of the University had 12 sub-clauses, all of which were secular expect for one. It was pointed out that the admissions in the University at the time of inception were made on secular lines. It was pointed out that First Statutes of the University were framed not by the ‘Court’ but by the British Indian Legislature and the First Ordinances of the University at the time of inception were also not framed by the minority rather were framed by the non-minority authority of the Governor General-in-Council. It was pointed out that Lord Rector had wide ranging powers and it was the British Indian authorities that had effective, de-facto, policy level control over the AMU and not the minority community at the time of establishment.

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218Copy pinpoint218. It is critical to note that the 1920 Act and the nature thereof, also bestows the AMU with its character at the time of inception. The said character at the time of inception would be useful in ascertaining if the institution was predominantly established for the minority community with a ‘sprinkling of outsiders’ or not. It may be noted that merely having a faculty or a portion thereof dedicated to a religious discipline would not bestow a larger public entity like a University, with its character. The leading Universities of the world today have faculties for religious studies and enquiry5. The said faculties are genuine centres of intellectual and theological enquiry and would also interest persons from other religions in numerous cases. Therefore, having a specific portion carved out in a larger University set-up would not be the defining characteristic of the University. In fact, such a dedicated Faculty in a University would indicate the wide-ranging nature of studies the institution. Therefore, the regular bench must examine if the AMU Act, 1920 [and how it stood after the advent of the Constitution], is an enacting establishing an institution which was predominantly minority in character.

L. ‘Incorporated’ or ‘established’ by or under a Statute

219Copy pinpoint219. At this stage, this Court has to adjudicate another issue that touches upon the question of establishment. It has been argued that the 1920 Act was a mere legislative “veneer” or a token recognition to an already existing entity. On the other hand, it was countered by the argument that there is a difference between a body which is created under a statute as opposed to a body which the statute claims to itself ‘establish’. On the basis of the same, it is urged that since the AMU owed its very existence to a statute, it was established by the statute only.

220Copy pinpoint220. In this regard, the Court needs to clarify that a legislation [more so a legislation in the pre-independence era] can never be considered to be an inconsequential veneer or a mere recognition/token. A legislation is the will of the sovereign reflected and enacted through a dedicated body. A legislation is always of some consequence and cannot be presumed to be of tertiary importance.

5 Oxford Centre for Hindu Studies (OCHS), Oxford Centre for Islamic Studies, Delhi University’s Centre for Hindu Studies

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221Copy pinpoint221. Separately, the parties defending the judgment of the Azeez Basha [supra], place heavy reliance on the judgment in Dalco Engineering Pvt. Ltd. v. Satish Prabhakar Padhye, (2010) 4 SCC 378, and others6 to assert that the use of the term ‘established’ in the phrase ‘established by or under an Act’ in any statutory enactment creates a deeming fiction which would entail the coming into existence of the entity so established a result of the statutory enactment alone.

222Copy pinpoint222. While testing this argument, it is important to note that the judgment in Dalco [supra], was dealing with entities and enactments such as the State Bank of India Act, 1955 or the Life Insurance Corporation Act, 1956 or the State Financial Corporations Act, 1951. The same principle cannot ipso facto be lifted and applied in the context of Article 30, especially when it concerns the fundamental rights of citizens.

223Copy pinpoint223. Crucially, as pointed out during arguments, there are other statutes, enacted by the State Legislatures, which recognise the minority character of the institutions through various provisions. In the said statutes, the ‘establishment’ is done by and under the statute and at the same time, the establishment of the previous institution is recognised to be done by the minority community. For example, The Sam Higginbottom University of Agriculture, Technology and Sciences, Uttar Pradesh Act, 2016, in this preamble provides as under : “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,”

6 Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421; Executive Committee of Vaish Degree College v. Lakshmi Narain, (1976) 2 SCC 58; S.S. Dhanoa v. MCD, (1981) 3 SCC 431; CIT v. Canara Bank, (2018) 9 SCC 322

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224Copy pinpoint224. Similarly, The Era University, Lucknow, Uttar Pradesh Act, 2016, and its Preamble provides as follows: “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..”

225Copy pinpoint225. At the same, time, there were other enactments which claimed to have established and incorporated the Universities and still bestowed them with minority characteristics. For example, in the North East Adventist University Act, 2015, in the Preamble, provides as under: “An Act to establish and incorporate an University in the State, with emphasis on providing high quality education, training and research in the fields of Physical Sciences, Applied Sciences, Life Sciences, Health Sciences, Social Sciences, Bio-Technology, Information Technology, Engineering, Management, Commerce, Communication, Law, Humanities, Languages, Performing Arts and other allied areas, sponsored by the Medical Educational Trust Association Surat of Seventh-day Adventists, and to provide for matters connected therewith or incidental thereto.”

226Copy pinpoint226. Similarly, the preamble of The Teerthanker Mahaveer University Act, 2008 reads as under: “An Act to establish and incorporate a Jain Minority Teaching University sponsored by Teerthanker Mahaveer Institute of Management & Technology, Society, Moradabad Uttar Pradesh and to provide for matters connected therewith or incidental thereto.”

227Copy pinpoint227. Therefore, the use of the phrase ‘establish and incorporate’ by the Legislature may be relevant in the larger enquiry but cannot be said to be determinative of the factum of establishment or not by the minority community. The question of establishment is to be ascertained by a multitude of factors, and especially in case of Universities – the history of the establishment, the nature of the Act, the nature of the University, etc. and the phrase ‘establish and incorporate’ would be of limited importance only.

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228Copy pinpoint228. Separately, it is noteworthy that there exist alternative paradigms of universities established by legislative bodies7, which may claim to be minority institutions.

229Copy pinpoint229. The legislative frameworks of statute-based minority Universities were highlighted before this Court, wherein the predominant character of the University is minority-oriented with only peripheral non-minority elements. Therefore, if the intention was to establish or incorporate or recognise a minority University, the Legislatures have incorporated suitable provisions to colour the University with a minority identity.

230Copy pinpoint230. Furthermore, the abovementioned enactments and a perusal of the same underscores that a considerable degree of autonomy was retained by the sponsoring entity, with pivotal decision-making powers vested therein and further in some cases, specific provisions for providing religion-based reservations.

231Copy pinpoint231. The Court may notice another aspect that the 1920 Act in its Preamble provided that it was “An Act to establish and incorporate a teaching and residential Muslim University at Aligarh”. The said recognition is relevant but cannot be the sole basis of enquiry on either side. A Legislature speaks through the enactment and not merely the Preamble, therefore, the contents of the legislation would be primordial source of information for the enquiry. The amendment made to the 1920 Act in 1981, and the deletion of the words ‘establish and’ from the Preamble, cannot therefore alter the pre-existing, pre-occurred factual situation. The regular bench, would therefore, have to analyse the factual situation and arrive at a finding.

M. Evolution of AMU and the advent of the Constitution M.1 The amendments made to the 1920 Act

232Copy pinpoint232. The statute enacted in 1920 has gone through its own journey and evolution. As far as the evolution of the 1920 Act is concerned, both sides have illustrated the amendments made over the years.

7 The Integral University Act, 2004; The Teerthanker Mahaveer University, Uttar Pradesh Act, 2008; The North East Adventist University Act, 2015; Sam Higginbottom University of Agriculture, Technology and Sciences, Uttar Pradesh Act, 2016; The Era University, Lucknow, Uttar Pradesh Act, 2016; The Mohammad Ali Jauhar University Act, 2005; The Aliah University Act, 2007; The Sri Guru Granth Sahib World University Act, 2008; The Spicer Adventist University Act, 2014; The Khaja Bandanawaz University Act, 2018; The Khangchendzonga Buddhist University, Sikkim Act, 2020; The Enteral University (Establishment And Regulation) Act, 2008

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The 1951 Amendment Act introduced notable alterations, including the omission of Section 9 from the original 1920 Act, which had sanctioned compulsory instruction in Muslim religion for Muslim students. Further, an amendment to Section 8 allowed for religious instruction for consenting students, aligning with Article 28(3) of the Constitution, which prohibits such instruction in aided institutions. In Section 5(12), which was the residuary clause, the portion dealing with Islamic learning and Muslim theology, along with another portion, was deleted. Importantly, the lynchpin of the case of the parties challenging the judgment of the High Court and Azeez Basha [supra], the proviso to Section 23(1) of the 1920 Act [as it then was], which limited ‘Court’ membership to Muslims, was deleted by the 1951 Amendment Act. As per amendment to Section 15, Governor of the State of Uttar Pradesh became the Chief Rector of the University.

233Copy pinpoint233. The amendment in 1965, more than its content and changes, becomes relevant because of the unusual sparring between two giants of their respective fields – Retd. J. M.C. Chagla [the well-known Retd. Chief Justice of the Bombay High Court and the Education Minister in 1965] and Mr. Frank Anthony [a well-known educationist and Senior Counsel before this Court]. The Bill was introduced in Lok Sabha on 16.08.1965. On 27.08.1965, Mr. J. Chagla presented the reasons behind the amendments. The amendments were thereafter described and were sought to be justified in the context of the occurrences at the University. It was stated that the amendment, to at least some portions, was a temporary measure. Critically, Mr. J. Chagla discussed the ‘character of the University’ during the said debate. He asserted that the AMU was a ‘national institution’ of ‘national importance’ along the lines of the four Central Universities as per Entry 63 of List I of Seventh Schedule. While emphasizing the importance of intellectual enquiry qua Muslim culture in India at the institution, Mr. J. Chagla highlighted that it was in the context of national and secular India. He referred to the history of the AMU in 1920 and the amendments made in 1951.

234Copy pinpoint234. In response, on the same day, Mr. Anthony raised the issue how the Government had on affidavit claimed that the Article 30 would not apply to the AMU in the proceedings before the Supreme Court [purportedly in a petition challenging the Ordinance preceding the 1965 amendment]. Mr. Anthony, on 01.09.1965, made a detailed speech claiming that the right under Article 30 has two elements –

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establish and administer – which can be used disjunctively. In his opinion, establishment was not a necessary pre-condition. Mr. Anthony thereafter refers to his own understanding of history of the AMU and refers to the MAO College as the ‘nucleus’ and asserted that the 1920 Act vested administration with the minority community.

235Copy pinpoint235. Mr. J. Chagla responded to this on 02.09.1965 quippingly claiming that he was ‘no longer a practicing lawyer and perhaps my law has become rather rusty. But still I know a little bit of law, particularly constitutional law. I entirely disagree with him [Mr. Anthony]’. Mr. J. Chagla stated that the AMU was neither established nor administered by the Muslim community. He stated that the AMU was created by a statute, the 1951 amendments and the presence of the AMU in Entry 63, List I of Seventh Schedule makes the same crystal clear. He further gave numerous examples of how the administration of the institution was not technically with the minority community. He again claimed that the AMU was a national institution and the sovereign legislature had the right to amend the clause. He also remarked that through history, the British ensured that the institution which was financed by Indian money, was open to all communities.

236Copy pinpoint236. The sparring between the two continued on 03.09.1965 as well. Mr. Anthony clearly claimed that he equated establishment with foundation and with ‘who founded it. If the minority community founded it, then giving legislative recognition will merely be as I said and I repeat, giving legislative sanction’. Mr. J. Chagla stated that in law the Parliament cannot make a classification on the basis of religion and therefore, both the AMU and the BHU enactments were amended in 1951. Finally, on 06.09.1965, after short closing speech by Mr. J. Chagla, the amendment was passed. The 1965 Amending Act effected a notable amendment by demoting the Court from its status as the ‘supreme governing body’ of the University to a consultative body for the Visitor of the University, namely, the President of India.

237Copy pinpoint237. The 1972 amendment made additions to the definition clause. Critically, it added a clause to Section 5 which provides the University with the power to promote the study of religion, civilisation and culture of India. It amended Section 17 to provide that the Chancellor shall be appointed by the Visitor in such manner as may be prescribed by the Statutes and amended Section 19 made him the principal

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executive and academic officer of the University, and shall exercise general supervision and control over the affairs of the University and give effect to the decisions of all the authorities of the University. The powers of the ‘Court’ were revised but remained significantly curtailed.

238Copy pinpoint238. The amendment in 1981 rescinded Section 23 to its position prior to 1965, which had resulted in the ‘Court’ being demoted to a consultative body. It amended Section 17 to provide that the Chancellor to be elected by the ‘Court’. The 1981 amendment deleted the portion in Section 8 which restricted the University from adopting or imposing any test of religious belief or profession for admissions or appointments as teacher or other office. The 1981 amendment also made three specific changes which are a subject matter of the present petitions and deserve to be quoted in full :

Previous provision Amended provision (1) “University” means the Aligarh (1) “University” means the Muslim University educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh, and which was subsequently incorporated as the Aligarh Muslim University. An Act to establish and incorporate An Act to incorporate a teaching a teaching and residential Muslim and residential Muslim University University at Aligarh. at Aligarh. WHEREAS it is expedient to WHEREAS it is expedient establish and incorporate a teaching to incorporate a teaching and and residential Muslim University residential Muslim University at Aligarh, and to dissolve the at Aligarh, and to dissolve the Societies registered under the Societies registered under the Societies Registration Act, 1860 Societies Registration Act, 1860 (21 of 1860), which are respectively (21 of 1860), which are respectively known as the Muhammadan Anglo- known as the Muhammadan Anglo- Oriental College, Aligarh, and the Oriental College, Aligarh, and the Muslim University Association, and Muslim University Association, and to transfer to and vest in the said to transfer to and vest in the said University all properties and rights of University all properties and rights of the said Societies and of the Muslim the said Societies and of the Muslim University Foundation Committee; University Foundation Committee;

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5. Powers of the University— The 5. Powers of the University— The University shall have the following University shall have the following power, namely:- power, namely:- xxx xxx 2 (c) to promote especially the educational and cultural advancement of the Muslims of India;

239Copy pinpoint239. From a perusal of the same, it is clear that through a legislative device, the question as to who established the AMU, was sought to be laid out. As stated above, the legislative declaration as to the fact of establishment or incorporation, while relevant, cannot be sole basis of the enquiry required under Article 30. Further, the said amendments may have been without any controversy had the fact as to who established the AMU in 1920 was not already finally decided by this Court in Azeez Basha [supra]. The limitations of the Legislatures, in rendering questions of fact decided by the Court nugatory through a legislative device, would be decided by the regular bench.

M.2 The Constitution and the question of surrender of rights

240Copy pinpoint240. Once the amendments have been discussed, it is important to note the coming in to force of the Constitution and the effect it had on the rights claimed. The parties defending the judgment of the High Court asserted, on the basis of Durgah Committee [supra], and the reliance placed in Azeez Basha [supra], that the right to administer was relinquished in 1920 itself and it cannot be revived subsequent to the advent of the Constitution, as it was complete at a juncture when fundamental rights were not operative. Further it was argued that the fundamental rights surrendered prior to the Constitution, cannot be revived after the advent of the Constitution [See Sri Jagadguru Kari Basava Rajendraswami of Govimutt v. Commr. of Hindu Religious and Charitable Endowments, (1964) 8 SCR 252; Rabindranath Bose v. Union of India, (1970) 1 SCC 84; Guru Datta Sharma v. State of Bihar, (1962) 2 SCR 292].

241Copy pinpoint241. On the other hand, the parties challenging the judgment of the High Court, placed reliance on St Xavier’s [supra] and KS Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1, to assert that the fundamental rights cannot be surrendered. It was also argued

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that the events prior to 1920 and the establishment process which culminated in to the 1920 Act, could not have taken away the minority character in the name of legislative recognition as a University.

242Copy pinpoint242. It is necessary to clarify at this juncture that it cannot be said that the fundamental rights can be surrendered by one generation for it to be extinguished from utilization by another generation. Fundamental rights are the bedrock of the Constitution and the Republic and must be perennial and continuing in nature.

243Copy pinpoint243. Further, it is a well-established legal principle that fundamental rights do not possess retrospective effect, and actions that were concluded before the enactment of the Constitution cannot be revisited. In Keshavan Madhava Menon v. State of Bombay, (1951) SCR 228, it was noted as under: “As already explained, Article 13(1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution. It has no retrospective effect and if, therefore, an act was done before the commencement of the Constitution in contravention of any law which, after the Constitution, becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned, for, to say that it is, will be to give the law retrospective effect.… So far as the past acts are concerned the law exists, notwithstanding that it does not exist with respect to the future exercise of fundamental rights.” Similarly in Pannalal Binjraj v. Union of India, 1957 SCR 233 it was noted that : “It is settled that Article 13 of the Constitution has no retrospective effect and if, therefore, any action was taken before the commencement of the provisions of any law which was a valid law at the time when such action was taken, such action cannot be challenged and the law under which such action was taken cannot be questioned as unconstitutional and void on the score of its infringing the fundamental rights enshrined in Part III of the Constitution”

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244Copy pinpoint244. In the absence of any application of Article 30 in 1920, there was no inherent fundamental right to establish a minority institution and neither was there a requirement on the State to provide any recognition to any institution. The argument of the parties defending the judgment of the High Court claiming that the right was “surrendered” by the minority community in 1920 is misplaced. It erroneously assumes that there existed any right in the decade of 1910-1920 when the events concerning establishment of the AMU took place. There is no question of surrendering any right as no such right, even in context of MAO College, ever existed as the British Indian Government was a supreme Imperial power in the country and no person living in India had any constitution-based rights nor was there any such concept. The entirety of the landscape was a function of the largesse of the Executive or the Legislative powers of the British Indian Government and its bodies. Thus, the question of surrender is illusory and does not arise in the present case.

245Copy pinpoint245. Indeed, fundamental rights could not have been surrendered after 26.01.1950 however, if some events have already happened prior to the same, it is not possible to re-interpret such factual events in a different or a purportedly constitutionally compliant manner. The facts of history cannot be changed by the advent of the Constitution.

246Copy pinpoint246. It is important to clarify at this stage that the said proposition does not entail that pre-Constitution enactments, even enactments providing for taking over of institutions [religious or educational] by the then Legislatures, would be free from the vice of unconstitutionality. The said statutes would always be subject to the overarching constitutional rights and subject to the rigours of Article 13. The present case therefore, does not concern surrender of “rights” rather involves a holistic survey of events leading up to the 1920 Act.

N. The De-facto and safe haven argument

247Copy pinpoint247. It has also been argued by the parties challenging the judgment of the High Court that de-facto, the important authorities like the members of the ‘Court’ and the Vice-Chancellors of the University have been from the minority community. On the basis of the same, it is asserted that the while after 1951, there may not have been a specific requirement for the ‘Court’ to be consisting of the minority community, in reality, the members from the minority community have been appointed in most cases. The same has been read to

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be a pointer towards the minority character of the institution. On the other hand, the parties defending the judgment of the High Court highlighted that once there exists no such requirement in law, it would be erroneous to base a conclusion on the basis of practice.

248Copy pinpoint248. As a matter of law, a practice or a chance occurrence would not be a factor in deciding the nature of the institution and certainly not relevant to decide the question of establishment. If the institution is not held to have been established by a minority, if by some reason, persons of one community have manned the positions in the administration in an institution, the same would not ascribe character to the institution. For example, if a secular institution was established by a group of persons [which were not predominantly of the minority community], if for some reasons, the Principal/Director of the institution has been from one minority community, the said occurrence could not be said to be enough to declare the institution to be a minority institution. The de-facto position of the AMU, with regard to the electors in the ‘Court’, the ‘Court’ or the Vice-Chancellors, would therefore not be the deciding factor for the purpose of the Article 30 question.

249Copy pinpoint249. Apart from the above, it was also asserted that the AMU has, over the years, provided the minorities a haven to gain knowledge in the country, and declaration as a non-minority institution, would be highly detrimental to the same. The said argument, apart from being constricted in approach, is evidently contradictory.

250Copy pinpoint250. The AMU, from the time of its establishment, has never had any sort reservations on the basis of religion all the way up till 2005, which was the first time the said exercise was sought to be carried out. Further, the AMU, after the declaration in Azeez Basha [supra], at least till 1981 and arguably even thereafter, was always considered to be a non-minority institution. The contention that the AMU serves the interests of the minority community and denial of the protection under Article 30 would jeopardise the same, ignores the fact that the AMU, without being recognized as a minority institution or implementing religion-based reservations for an entire century, has served such a purpose. Therefore, asserting minority status and advocating for religious reservations based on the university’s historical contributions to the minority community, appears to be self-contradictory.

251Copy pinpoint251. At this juncture it is also important to deal with another submission to the effect that ‘neutral’ institutions or non-minority institutions would

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in the natural course of things be-‘majoritarian’. It was asserted that since such neutral institutions tend to be driven by the assumptions, leanings, and priorities of the majoritarian groups/cultures, Article 30 contemplates constitutionally protecting certain educational spaces from such ‘majoritarianism-by-default’, guarding their minority character and priorities.

252Copy pinpoint252. The said assertion completely misconstrues the purpose of Article 30 and the nature of non-minority or neutral institutions in the country. The purpose of Article 30 is not to create ‘minority only’ ghettos rather provide positive rights to the minorities to establish educational institutions of their choice and kind. Article 30, as a feature of the Constitution, provides important rights which function within the larger penumbra of fundamental rights. There is substantial interplay, intermixing and balancing of rights inter se within the fundamental rights.

253Copy pinpoint253. The Constitution, specifically under the fundamental rights chapter, provides for other rights such as Article 14 [right against arbitrariness], Article 15 [right to equality], Article 16 [right to equality in matters of public employment], Article 19 [fundamental freedoms], Article 21 [right to life and liberty and dignity], Article 21A [right to education], Article 25 [freedom of religion], Article 26 [freedom of religious institutions], etc, all of which contain shades of protection, equality and freedoms, available to minorities as well. Article 30, and the rights contained thereunder, are therefore, not absolute and certainly do not exist in a silo. The other fundamental rights under Chapter III of the Constitution colour the interpretation of Article 30 and vice versa. In this regard, certain paragraphs of the judgement in TMA Pai [supra] would be crucial and require reproduction as under : “148. Both Articles 29 and 30 form a part of the fundamental rights chapter in Part III of the Constitution. Article 30 is confined to minorities, be it religious or linguistic, and unlike Article 29(1), the right available under the said article cannot be availed by any section of citizens. The main distinction between Article 29(1) and Article 30(1) is that in the former, the right is confined to conservation of language, script or culture. As was observed in Father W. Proost case the right given by Article 29(1) is fortified by Article 30(1), insofar as minorities are concerned. In St. Xavier’s College

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case it was held that the right to establish an educational institution is not confined to conservation of language, script or culture. When constitutional provisions are interpreted, it has to be borne in mind that the interpretation should be such as to further the object of their incorporation. They cannot be read in isolation and have to be read harmoniously to provide meaning and purpose. They cannot be interpreted in a manner that renders another provision redundant. If necessary, a purposive and harmonious interpretation should be given. xxx

137. It follows from the aforesaid decisions that even though the words of Article 30(1) are unqualified, this Court has held that at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same. By the same analogy, there is no reason why regulations or conditions concerning, generally, the welfare of students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right of administration or management under Article 30(1).

138. As we look at it, Article 30(1) is a sort of guarantee or assurance to the linguistic and religious minority institutions of their right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-a-vis other educational institutions. Any law or rule or regulation that would put the educational institutions run by the minorities at a disadvantage when

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compared to the institutions run by the others will have to be struck down. At the same time there also cannot be any reverse discrimination. It was observed in St. Xavier’s College case at SCR p. 192 that: (SCC p. 743, para 9) “The whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality.” In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including rules and regulations, must apply equally to the majority institutions as well as to the minority institutions. The minority institutions must be allowed to do what the non- minority institutions are permitted to do.”

254Copy pinpoint254. Article 30, therefore, is a reinstatement of constitutional values of Chapter III, specifically in the context of educational institutions. It is clear that the crux of Article 30(1) lies in its mandate to ensure parity between non-minority [or ‘neutral’] institutions and minority institutions. Its fundamental aim is to prevent any form of discrimination or preferential treatment, thereby advocating for equal treatment under the law for one and all. This provision underscores that no specific category or type of institution should be disadvantaged or unduly favoured over another within the legal framework.

255Copy pinpoint255. In this light, and under the mandate of TMA Pai [supra], to assert that the neutral institutions are majoritarian by nature, would be ignore the mandate of other provisions of the Constitution which specifically provide for equal treatment for all, protect secularism and diversity and protect individuals and communities against arbitrariness.

O. The UGC Act and Yashpal

256Copy pinpoint256. In relation to the UGC Act, the parties challenging the judgment of the High Court relied upon Section 2(f), Section 3, Section 22, and Section 23, read with the judgment in Prof. Yashpal v. State

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of Chhattisgarh, (2005) 5 SCC 420, to assert that universities are necessarily created and chartered through legislative enactments. As per the said provisions, the institutions established in that manner only are legally authorized to utilize the term “University” in their names and confer degrees. Taking this further, it was argued that, if the judgement in Azeez Basha [supra], which holds that if any institution is established by virtue of the statute, cannot be a minority institution, because a University has to be established by and under a statute, no University can ever be conferred the status of a minority institution.

257Copy pinpoint257. As already concluded hereinabove, the judgment in Azeez Basha [supra] ought to be understood in its historical context and does not lay down a proposition that whenever a University is established by way of an enactment, it cannot be a minority institution. The assertion that the establishment and incorporation of a university through legislation inherently preclude it from being classified as a minority institution is unfounded. Such a contention arises from a misinterpretation of the decision in Azeez Basha [supra], which was specific to a particular statute and addressed a legislative framework predating the Constitution, enacted by a colonial authority.

258Copy pinpoint258. It was noticed in Yashpal [supra] that a university lacking infrastructure or educational facilities would still have the authority to grant degrees, potentially resulting in significant disorder in coordinating and upholding standards in higher education, which could detrimentally affect the entire nation. Therefore, it was in the larger public interest that this Court, held that the establishment of a university by the State, exercising its sovereign power, ought to occur through a legislative enactment. It held that insofar as private universities are concerned, “established or incorporated” should be read conjunctively and further that “a private university can only be established by a separate Act or by one compendious Act where the legislature specifically provides for establishment of the said university”.

259Copy pinpoint259. It can be seen through various enactments 8 that universities are established by the ‘sponsor’ who designs the administrative

8 See The Amity University Uttar Pradesh Act, 2005; The Galgotias University Uttar Pradesh Act, 2011; The Bennett University, Greater Noida, Uttar Pradesh Act, 2016; The Mohammad Ali Jauhar University Act, 2005; The Era University, Lucknow, Uttar Pradesh Act, 2016; Maulana Azad University, Jodhpur Act, 2013.

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framework, considering the minimum requirements outlined in the regulations. The “sponsor”, typically a society, also arranges the necessary properties, including land and buildings. Subsequently, the University may either be recognized as deemed to be a university under Section 3 of the UGC Act, or it may be formally established and incorporated on behalf of the sponsor through a statutory enactment.

260Copy pinpoint260. As stated above, there exists substantial legislative frameworks of minority Universities established by statute. The said statutes highlight the predominantly minority orientation of these institutions with peripheral non-minority elements. As stated above, the said legislative enactments and their examination reveals that a significant level of autonomy was retained by the sponsoring entity, with pivotal decision-making authority vested therein. In some instances, specific provisions were made for religion-based reservations as well through the legislation itself. Therefore, the appropriate Legislature, in its wisdom, can certainly establish, incorporate, or recognize a minority University, and include appropriate provisions to imbue the University with a minority identity. Therefore, the UGC Act or the judgment in Yashpal [supra], in no manner, come to the aid of the parties challenging the correctness of the judgment in Azeez Basha [supra].

P. NCMEI Act and the amendment

261Copy pinpoint261. According to the parties challenging the judgement of the High Court, the error that since a University requires a statute for establishment and statutory establishment renders such University to be non-minority, was furthered under the National Commission for Minority Educational Institutions Act, 2004 (hereinafter referred to as the “NCMEI Act”). The said enactment and its definition clause, excluded universities from being certified as ‘Minority Educational Institution’. From 2004-2010, the NCMEI Act defined the word “minority educational institution” as under- “(g) “Minority Educational Institution” means a college or institution (other than a University) established or maintained by a person of group of persons from amongst the minorities;”

262Copy pinpoint262. Subsequently in 2010, the said definition was amended on two counts : one, the phrase other than a University was deleted and two, the words established and administered was put in the clause

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taking cue from Article 30. The statement of the Hon’ble Minister while moving the said amendment is illustrative in this regard. The relevant portion is quoted as under : “24.02.2009 THE MINISTER OF STATE IN THE MINISTRY OF HUMAN RESOURCE DEVELOPMENT (SHRI M.A.A. FATMI):… In Section 2 of the Bill, two amendments are proposed in clause (g). First is to do away with the exclusion of Universities in the definition of “Minority Educational Institutions”. The second proposal is to substitute the words “or maintained by” with the words “and administered by”. The existing exclusion of a University from the definition of a minority educational institution runs counter to the law laid down by the Supreme Court of India vide Azeez Basha V. Union of India (A.I.R. 1968) substitution of words “or maintained by” with the words “and administered by” Several complaints were received to the effect that non-minorities were advertising the institutes as established by the minorities. Through this amendment this defect is sought to be removed by providing that the institutions should be both established and administered by a person or group of persons belonging to the same minorities. This will also conform to the language used in Article 30 of the Constitution.”

263Copy pinpoint263. Therefore, the amendment in the NCMEI Act provides that Universities can be considered under the provisions of the NCMEI Act and further, there exists a twin requirement of “establishment” and “administration” for claiming minority status in line with Azeez Basha [supra].

264Copy pinpoint264. According to the parties challenging the judgement of the High Court, since the provisions of the NCMEI Act as amended in 2010 clearly recognize that a University can be a minority institution in terms of Article 30 and post Yashpal [supra], since a university can only be established by a statute, the purported finding in Azeez Basha [supra] that a university established and incorporated by a statute cannot be held to be “established” by a minority community for the purposes of Article 30, is erroneous.

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265Copy pinpoint265. As stated above, the said assertion is also a product of the erroneous understanding of the judgment in Azeez Basha [supra]. It is reiterated that the judgement in Azeez Basha [supra] does not lay down a proposition that established and incorporated by a statute cannot be held to be “established” by a minority community for the purposes of Article 30. The judgement in Azeez Basha [supra] ought to be understood in its historical context and does not lay down a proposition that if a University is established by way of a legislative enactment, it cannot be a minority institution. In light of the above, the amendment in the NCMEI Act does not come to the aid of the parties questioning the correctness of the decision in Azeez Basha [supra].

Q. Conclusions

266Copy pinpoint266. In light of the above, the following conclusions can be recorded : i. The bench of two judges in Writ Petition No.54-51 of 1981 titled Anjuman-e-Rehmania & Ors v. Distt. Inspector of School & Ors. could not have referred the matter to a bench of seven Hon’ble Judges directly, without the Hon’ble Chief Justice of India, being a part of the bench. ii. The “establishment” of an institution by the minority is necessary for the said minority to claim right of administration under Article 30. The words “establish” and “administer” are used conjunctively in Article 30 of the Constitution. iii. The term “establish” in Article 30 means “to bring into existence or to create” and cannot be conflated with generic phrases such as “genesis of the institution” or the “founding moment of the institution”. iv. The real positive indicia for determining the question of establishment of an institution would have to be developed on a case to case basis with the following broad parameters in mind : i. Firstly, to claim “establishment”, the minority community must actually and tangibly bring the entirety of the institution into existence. The role played by the minority community must be predominant, in fact almost complete to the point of exclusion of all other forces. The indicia which may be illustrative and exhaustive in this regard may be the nature of the institution, the legal/statutory

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basis required for establishing the institution, whether the establishment required any “negotiation” with outside forces, the role in acquiring lands, obtaining funds, constructing buildings, and other related matters must have been held completely by the minority community. Similarly, while teachers, curriculum, medium of instruction, etc. can be on secular lines, however, the decision-making authority regarding hiring teachers, curriculum decisions, medium of instruction, admission criteria, and similar matters must be the minority community. The choice of having secular education in the institution must be made expressly by the minority community, demonstrating the link between institution and the persons claiming to establish it. ii. Secondly, the purpose of the institution must have been to predominantly serve the interests of the minority community or the sole betterment of the minority community, irrespective of the form of education provided and the mode of admission adopted. Therefore, as per the choice of the minority community, an institution may have secular education, but such secular education and the resultant institution, must be predominantly meant for the overall betterment of the minority community. iii. Thirdly, the institution must be predominantly administered as a minority institution with the actual functional, executive and policy administration vested with the minority. The minority community should determine the selection, removal criteria, and procedures for hiring teaching, administrative staff, and other personnel. The authority to hire and fire staff must be from the minority community. Further, even if teaching or administrative staff may include non-minority persons, the final authority exercising functional, directional, and policy control over these authorities must be from the minority community. This ensures that the thoughts, beliefs, and ideas of the minority community regarding administration are implemented in reality. This represents the real decision-making authority of the institution being of the minority community.

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In ascertaining the above, it would be open for the Court to look at the true purpose behind each of the above factors and to pierce the veil. iv. The notion that Azeez Basha [supra] categorically prohibits minorities from establishing universities due to statutory requirements is unfounded. The bench in Azeez Basha [supra] and present bench are faced with a unique situation and needs to adopt a suitably modulated approach. The judgment in Azeez Basha [supra] does not preclude minorities from establishing universities but rather highlights the importance of legislative intent and statutory provisions in determining an institution’s character. v. The minority community may conceptualize the idea of an institution and may advocate for the same, however, if during exchange or negotiation, the actual institution which was established had primacy of governmental efforts and control, then such institution cannot be held to be predominantly established by the efforts and actions of the minority community. vi. In the pre-independence and pre-UGC era, in the absence of a provision like Section 23 of the UGC Act, 1956, it was open for any institutions to adopt the titles such as “university” or in some cases “vidyapeeth” or “jamia” asserting their capability to grant degrees. The absence of a legislative embargo from private establishment of Universities prior to 1956 would be critical for the scope of enquiry. vii. The use of the phrase ‘establish and incorporate’ by the Legislature may be relevant in the larger enquiry but cannot be said to be conclusively determinative of the factum of establishment or not by the minority community. If the intention of the Legislature is to establish or incorporate or recognise a minority University, the Legislatures have incorporated suitable provisions to colour the University with a minority identity. viii. There were no rights, fundamental or otherwise, prior to the Constitution coming into force and therefore, there is

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no question of surrendering any right. The British Indian Government was a supreme Imperial power in the country, and the question of surrender is illusionary and does not arise in the present case. The coming into force of the Constitution and fundamental right after 1950, cannot alter the events that occurred during the decade of 1910-1920 which led to the establishment of the AMU. ix. There is no legal requirement for the AMU ‘Court’ to be manned by the people from the minority community ever since 1951 and therefore, merely because de facto the persons from the minority community may have manned the posts in the institution, would not be relevant to adjudicate the question. x. The assertion that ‘neutral’ institutions or non-minority institutions would in the natural course of things be ‘majoritarian’ or that Article 30 contemplates constitutionally protecting certain educational spaces from such ‘majoritarianism-by-default’ tendencies, is wholly erroneous. The purpose of Article 30 is not to create ‘minority only’ ghettos rather provide positive rights to the minorities to establish educational institutions of their choice and kind. xi. Article 30, as a feature of the Constitution, provides important rights which function within the larger penumbra of fundamental rights. There is substantial interplay, intermixing and balancing of rights inter se within the fundamental rights and Article 30 is not absolute and certainly do not exist in a silo. xii. The crux of Article 30(1) lies in its mandate to ensure parity between non-minority [or ‘neutral’] institutions and minority institutions. Its fundamental aim is to prevent any form of discrimination or preferential treatment to non-minority communities, thereby advocating for equal treatment under the law for one and all. This provision underscores that no specific category or type of institution should be disadvantaged or unduly favoured over another within the legal framework. xiii. To assume that the minorities of the country require some ‘safe haven’ for attaining education and knowledge is

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wholly incorrect. The minorities of the country have not just joined the mainstream but comprise an important facet of the mainstream itself. The institutions of national character of the country always serve the interests of the minorities and are diverse centers of learning. xiv. The UGC Act or the judgment in Yashpal [supra], in no manner, comes to the aid of the parties challenging the correctness of the judgment in Azeez Basha [supra]. xv. The amendment in the NCMEI Act does not come to the aid of the parties questioning the correctness of the decision in Azeez Basha [supra].

267Copy pinpoint267. The reference is answered in the above terms. The matters may be placed before an appropriate bench as per the prevailing rules.

Result of the case: Reference Answered.

† Headnotes prepared by: Bibhuti Bhushan Bose