Supreme Court: In the Aligarh Muslim University Minority Status case, the Seven-Judge Constitution Bench comprising of Dr. DY Chandrachud, CJ., Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma, JJ. in 4: 3 overruled the Five-Judge Bench verdict in S. Azeez Basha v. Union of India, 1967 SCC OnLine SC 321, which held that an institution incorporated by a statute cannot claim to be a minority institution. The Chief Justice authored the majority opinion in the case, joined by Justices Sanjiv Khanna, JB Pardiwala, and Manoj Misra. In contrast, Justices Surya Kant*, Dipankar Datta*, and Satish Chandra Sharma* each wrote separate dissenting opinions, outlining their differing perspectives on the matter.
This part covers the dissenting opinions of the three judges.
Dissenting Opinion by Justice Surya Kant
Justice Surya Kant held that there is no conflict between the seven-judge bench opinion in Kerala Education Bill, In re 1958 SCC OnLine SC 8 and the five-judge Constitution Bench in Azeez Basha (supra) on the other.
He further held that the six-judge Constitution Bench in Rev. Sidhajbhai Sabhai v. State of Bombay1 laying down that the right under Article 30 is absolute and unconditional, is not the correct principle of law; the judgement is no more binding in nature and stands effectively overruled in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, to that extent. Consequently, Azeez Basha (supra) does not suffer from any legal infirmity on the premise that it did not cite or follow Sidhajbhai Sabhai (supra).
Justice Surya Kant further concluded that there is no substantial difference between ‘doubting’ or ‘disagreeing’ with a judgement. That being so, the reference by a two-judge bench in Anjuman-e-Rehmania v. Distt. Inspector of School2 doubting the correctness of the five-judge bench in Azeez Basha (supra) and referring it to a seven-judge bench suffers from multiple illegalities, including judicial impropriety.
In view of the dictum of the Constitution Bench in Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673, Justice Surya Kant concluded that a two-judge bench has no authority whatsoever to doubt or disagree with a judgement of the larger bench, and directly refer the matter to a bench having a numerically greater strength than the matter so doubted. The reference by the two- judge bench in Anjuman (supra) is nothing but a challenge to the authority of the Chief Justice of India being the master of the roster and in derogation of the special powers enjoyed upon under Article 145 of the Constitution read with Order VII Rule 2 of the Supreme Court Rules, 1966 (as was applicable). Consequently, the said reference is not maintainable. However, the subsequent reference dated 12-02-2019, in which the then Chief Justice of India was the presiding judge, is maintainable.
He further held that the reference in Anjuman (supra) to a seven-judge bench for the reconsideration of the five-judge decision in Azeez Basha (supra) is bad in law and ought to be set aside.
Justice Surya Kant remarked that the minority institutions established in the pre-Constitution era are also entitled to the protection conferred by Article 30. He mentioned that the educational institutions, with reference to Article 30 include universities as well.
To seek protection under Article 30 of our Constitution, the Court held that the minority institution must satisfy the conjunctive test, namely that it was established by a minority community and has been/is being administered by such a community. Thus, he concluded that whether AMU is a minority institution is a mixed question of law and fact, which is to be decided by a regular bench.
Dissenting Opinion by Justice Dipankar Datta
Justice Dipankar Datta said that the tests employed for identifying post-Constitution minority educational institutions cannot be the same as for identification of pre-Constitution institutions, more so when a college established by the minority is elevated to the status of a university upon establishment and incorporation through statute.
He mentioned that there can be no dispute that an educational institution undoubtedly established prior to the Constitution coming into force by a minority community, either based on religion or language, and administered as well by such community would be entitled to the protection envisaged in Article 30(1). However, if there is a serious doubt as to who established the educational institution and how it was established, question of piercing of the minority veil does not arise in the absence of any concept of minority when the institution came to be established.
Justice Datta remarked that the dominant purpose for which the minority community is sought to be extended protection post-Constitution era, is to protect the minority from the domination of the majority.
Further, Justice Datta clarified that for the purposes of Article 30, the right to establish and the right to administer must go hand in hand. Once established, administration of the institution begins. To attract the protection guaranteed by Article 30, it would not be sufficient for the minority community to say that though it might have established the institution, whether to administer it or not is a choice given by the article itself so much so that the administration can be wholly left to even a non-minority community.
He concluded that only those institutions which are established by the minority community and are being administered by such community may exercise their choice of whether to establish a school or a college or a university as well as the manner and mode of management of such institution. These are of course tests which need to be applied to specific institutions which have not been brought into existence through a statute. If any institution is a creature of a statute, various other circumstances need to be holistically considered. Whether or not AMU is a minority institution presents a unique case bearing no similarity with any other pre-independence university.
Justice Datta said that AMU is a creation of statute and performs public duties as a Central University. Over time, it has become one of the leading institutions in the country, but it remains entirely dependent on funding allocated by the Central Government. AMU is required to operate in accordance with the AMU Act and other relevant laws. As such, it qualifies as an authority under Article 12 of the Constitution. Being an Article 12 authority, AMU is bound by the provisions of Part III of the Constitution, which mandate principles of equality and fairness, including the requirement under Article 29(2). In this context, the right of minorities under Article 30(1) to establish and administer educational institutions cannot be viewed in isolation from the constitutional mandates. Even if AMU was established by a minority, its “choice” as envisioned under Article 30(1) is necessarily constrained by constitutional provisions and the statute that created the institution.
He further added that whatever the Constitution as well as the AMU Act now provides or could provide in future, would represent the will of the people of India, and not the will of the minority. As, in administrative, functional and financial matters, the control of AMU vests in assigned entities not designated by the minority community, it would be an indicium of not being an educational institution over which and in respect whereof the minority has a choice to administer it in the manner the minority prefers.
Justic Datta held that AMU was neither established by any religious community, nor is it administered by a religious community which is regarded as a minority community; hence, AMU does not qualify as a minority institution. Protection under Article 30(1) of the Constitution is, thus, not available.
Dissenting Opinion by Justice Satish Chandra Sharma
Justice Sharma said that the bench of two judges in Anjuman (supra) could not have referred the matter to a bench of seven Judges directly, without the Chief Justice of India, being a part of the bench.
He mentioned that “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. He clarified that 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”.
He provided that the real positive indicators for determining the establishment of an institution should be developed on a case-by-case basis, considering the following broad parameters:
-
To claim “establishment”, the minority community must actually and tangibly bring the entirety of the institution into existence.
-
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.
-
The institution must be predominantly administered as a minority institution with the actual functional, executive and policy administration vested with the minority.
Justice Sharma clarified that 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.
He further held that the notion that Azeez Basha (supra) categorically prohibits minorities from establishing universities due to statutory requirements are unfounded. He mentioned that 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.
Justice Sharma stated that 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.
He further remarked that 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.
Justice Sharma further held that 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.
He clarified that the purpose of Article 30 is not to create ‘minority only’ community rather provide positive rights to the minorities to establish educational institutions of their choice and kind. The crux of Article 30(1) lies in its mandate to ensure parity between non-minority 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.
He also remarked that “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”.
[Aligarh Muslim University v. Naresh Agarwal, 2024 SCC OnLine SC 3213, decided on 08-11-2024]
*Judgment Authored by: Justice Surya Kant, Justice Dipankar Datta, Justice Satish Chandra Sharma
1. 1962 (3) SCR 837
2. W.P.(C) No. 54-57 of 1981
