Whether Aligarh Muslim University (AMU) is a minority institution, the issue was argued before a Constitution Bench of the supreme court of india between January 10 and February 1. The arguments before the apex on February 1, 2024 and the Supreme Court had two issues in question.
- What are the parameters for granting an educational institution Minority Status under Article 30 of the Constitution?
- Can an educational institution created by a parliamentary statute enjoy Minority Status under Article 30 of the Constitution?
As the argument closed before the Constitution Bench the judgment would decide if AMU can claim minority status under Article 30 of the constitution. The seven-judge constitution bench will also settle if the decision in S Azeez Basha v Union of India (1967), where the court held that AMU was not a minority institution, should be overruled.
Being recognised constitutionally as an “Institution of National Importance” under Entry 63 of List I, AMU is the only one of the two educational institutions (the other being Benaras Hindu University) which has been bestowed this title.
What Art 30 says on minorities institution
Article 30(1) of the Constitution of India states “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”
The Article also mentions that in ..
“making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to….,the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed ….”. It also states that the…
“State shall not, in granting aid to educational institutions discriminate against any educational institution on the ground that it is under the management of a minority, whether based on any religion or language”.
Azeez Basha Vs Union of India case, 1967
The basis of argument before the constitution bench has been the S Azeez Basha v Union of India, case of 1967, wherein the Supreme Court held that AMU was “established” through the enactment of a law, the Aligarh Muslim University Act, 1920. This meant, according to the court, that AMU does not qualify for minority status as it was not established by the Muslim community.
In 1965, AMU Act 1920, (https://api.amu.ac.in/storage/file/pdf/legal/AMU%20Act%201920.pdf)
was amended to dilute the powers of governance that had been entrusted to the University Court. The University Court was made an advisory body and the composition of the Court was also altered so as to increase the number of persons nominated by the President of India. The amendment was challenged before a Constitution Bench of the Supreme Court of India in Azez Basha v Union of India.
The petitioners argued that the amendment violated the rights guaranteed to them by Article 30. They no longer could exercise the freedom to administer the university as per their choice as minorities. The Supreme Court upheld the amendment, on the grounds that the AMU was brought into existence by the Central Legislature and the Government of India. Art. 30(1), the Court held, only protects educational institutions brought into existence and administered by a minority.
Understanding the current argument before the Supreme court
According to the Petitioners there is a contradiction in the Azeez Basha decision, in which the apex court had held that in order for degrees from the university to be valid, the university would have to be recognised by a statute (such as the AMU Act). However, the court also held that recognition by a statute would strip AMU of its minority status.
The petitioner argued that this would force every minority institution to seek recognition under a statute, and give up its minority status, thus making Article 30 ineffective, and subordinating a fundamental right to a statute.
The respondent however, maintained that AMU surrendered its minority status to the British government, and chose to be a “loyalist” institution, as opposed to “nationalist” institutions (like Jamia Millia Islamia University), which resisted and denounced the British government. This surrender of rights, he said, was recognised in Azeez Basha.
