At The Bottom Of This Legal Quagmire, Judiciary May Eventually Discover The 'Minority' Character Of AMU

The Indian Constitution provides a host of individual and group rights called Fundamental Rights, which, if violated, are justiciable before the courts.

One such group rights is laid down in Article 30, which empowers all religious and linguistic minorities to establish and administer educational institutions while prohibiting the government from discriminating against such institutions in the release of grants or aids.

This right has been a matter of great political contention and debate, given that it creates a separate class for certain institutions, shielding them from government control to a great extent.

Similar is the issue associated with Aligarh Muslim University (AMU), which has seen a long-drawn legal history, dotted with several U-turns taken by governments in the past, complicating its determination as a minority educational institution (MEI). 

How Did AMU Come To Be?

Syed Ahmed Khan established the Muhammadan Anglo-Oriental College (MAO College) at Aligarh in 1877. With this, he sought to educate Indian Muslims in an anglicised pedagogy while staying true to Islamic principles.

Later, in 1920, the imperial government passed the Aligarh Muslim University Act, 1920, which incorporated MAO College and another university into a single institution called AMU.

The Act clearly provided that the court of the university, which acted as its governing body, was to be composed of Muslims alone. 

Why Did AMU Fall Into Dispute?

In 1951 and 1965, the early Congress governments sought to have greater control over the functioning of the university, given its stature as one of three original institutions of national importance as per entry 63, Union List of the Seventh Schedule of the Constitution (the other ones being Banaras Hindu University and Delhi University).

Through these amendments, the government first diluted the precondition for members of the court of the university to be Muslims and later empowered the president to nominate members to the body. 

This led to the 1951 amendment being challenged before the court in Azeez Basha v Union of India on the grounds of violation of the rights of the minority community to establish and administer its own institutions under Article 30(1).

However, the court observed that AMU was neither established nor administered by the Muslim minority. Pointing out that the Act was enacted through central legislation, the court observed that there existed nothing to suggest that the administration of the university was vested in the Muslim minority community.

In essence, the court did not recognise the foundation of MAO College by a Muslim founder in 1877 as the point of genesis of the university. Instead, it attributed the 1920 Act passed by the imperial legislature as the point of incorporation of the institute. 

Chain Of Legal Claims And Counter-Claims That Ensued 

Following the verdict of the court in Azeez Basha, the Indira Gandhi government passed the 1981 amendment to the AMU Act in an attempt to reinstate the minority status of AMU. It redefined ‘the university’ as an educational institution “established by the Muslims of India,” which was initially MAO College and later became AMU.

Powers of the university under Section 5 were amended to include a new clause for promoting the educational and cultural advancement of the “Muslims of India.” This amendment was brought in as an obvious attempt at reversing the court’s decision in Azeez Basha and artificially vesting AMU with an MEI tag.

Strengthened by the 1981 amendment, AMU went ahead to reserve 50 per cent of its seats for Muslims in its postgraduate medical courses in 2005. This was done in line with the verdict of the court in St Stephen’s College v University of Delhi, wherein the court had held that religious reservations to the extent of 50 per cent of total seats is permissible in MEIs aided by the government. 

However, in AMU’s case, the religious reservations came to be challenged before the Allahabad High Court in Dr Naresh Agarwal v Union of India. The court struck down the reservation policy and held that AMU could not have an exclusive reservation because it was not a minority institution according to Azeez Basha. This effectively nullified the 1981 verdict. 

However, AMU pursued its appeal, which eventually led to the constitution of a seven-judge Constitution bench by the Supreme Court, which delivered its verdict on 8 November 2024. 

What Did The Court Observe (And Refrain From Observing)? 

On 8 November, the court, in Aligarh Muslim University Through its Registrar Faizan Mustafa v Naresh Agarwal, overruled Azeez Basha and held that an institution does not lose its minority status merely because it is created by a statute.

Chief Justice of India (CJI) Chandrachud, speaking for the majority, clarified that ‘incorporation’ and ‘establishment’ as used in Article 30(1) cannot be used interchangeably. Notably, ‘incorporation’ signifies legal existence, whereas ‘establishment’ signifies the founding of the institution.

The CJI pointed out that the preamble of the Aligarh Muslim University Act of 1920 explicitly states that it was passed to “establish and incorporate” AMU. Merely because AMU was incorporated by imperial legislation would not mean that it was not ‘established’ by a minority.

The court also observed that Article 30 cannot be given a “formalistic” interpretation; that is, Article 30 is not a mere formality and cannot be interpreted as a situation where the minority community that establishes an educational institution has no intention to administer it. 

However, what is striking is not the position of the court on the interpretation of the law in question. Rather, it is the fact that the court did not decide on the issue of whether AMU is an MEI or not. The court has left the question unanswered and has directed for the constitution of a regular bench that will determine the status of AMU as a factual interpretation, while sticking to the legal interpretation propounded in the present case. 

What Happens To Religious Reservations In AMU? 

Interestingly, the court did not not touch upon the status and correctness of AMU offering 50 per cent reservation of seats for Muslims in certain courses. This is mainly because this was not recognised as an issue by the court in the present case, which only relied upon the references made against Azeez Basha in 1981 and 2019 to reach its decision. 

This means that the validity of reservation for Muslims in AMU stays in a limbo. While the Supreme Court in St Stephens upheld the validity of religious reservations to the extent of 50 per cent in government-aided MEIs, the Allahabad High Court in Naresh Agarwal refused to consider AMU as an MEI, thus ruling out the possibility of introducing such reservations.

This means that until the regular bench of the Supreme Court determines whether AMU is an MEI, the question of religious reservations in the institute remains sub-judice. 

As far as the introduction of Scheduled Caste/Scheduled Tribe/Other Backward Class reservations in MEIs is concerned, the position of the court has been clear since 2014 via a set of related judgements.

Both the 93rd Constitutional Amendment, 2005, and the Right To Educations Act, 2009, enacted by the UPA government, which excluded government-aided MEIs from extending reservations to socially and educationally backward classes, have been upheld by the court in Ashoka Kumar Thakur v Union of India  (2008) and Pramati Trust & Ors v Union of India (2014). 

Thus, given that the AMU verdict does not touch upon reservations in MEIs in any form, the position of law remains undisturbed. 

Won The Battle, Lost The War? 

The manner of the court’s dealing with the AMU matter portrays a balance of convenience approach wherein difficult terrains have been left uncharted.

Caution has been taken to not undo the seminal, 11-bench judgement in TMA Pai v State of Karnataka, where the court had laid down criteria for the identification of MEIs and restricted the state’s indulgence in administration of such institutes. 

Now, given that the court has deemed Azeez Basha to be bad in law while leaving the determination of minority status of AMU to the regular bench, it is highly probable that the bench would go in with a certain degree of conviction and deem AMU to be an MEI without diverging from the findings of the present Constitution bench.

Effectively, Azeez Basha has been made the sacrificial lamb to account for the decades of legal tussle surrounding AMU, while the actual question of whether AMU is an MEI remains unanswered.