Constitutional Provisions for Minority Institutions and the Case of Aligarh Muslim
University: The Legal Search for a Solution since 1965
Author(s): Shamim Akhtar
Source: Social Scientist , May–June 2014, Vol. 42, No. 5/6 (May–June 2014), pp. 63-68
Published by: Social Scientist
Stable URL: https://www.jstor.org/stable/24372988
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Constitutional Provisions for Minority Institutions
and the Case of Aligarh Muslim University:
The Legal Search for a Solution since 1965
Shamim Akhtar
The concept of a minority educational institution was brought into legal
discourse for the first time by the Constitution of India (effective as of 26
January 1950) in its Part III ('Fundamental Rights'), under the rubric of
'Cultural and Educational Rights' in Article 30, which reads as follows:
Article 30. Right of minorities to establish and administer educational insti
tutions.
(1) All minorities, whether based on religion or language, shall have the right
to establish and administer educational institutions of their choice.
(2) The State shall not, in granting aid to educational institutions, discriminate
against any educational institution on the ground that it is under the manage
ment of a minority, whether based on religion or language.
An amendment was made in 1978 (effective, 20 June 1979) to insert the
following clause, after Clause 1 of the above article. This reads as follows:
(1A) In making any law providing for the compulsory acquisition of any
property of an educational institution established and administered by a
minority referred to in clause (1) the State shall ensure that the amount
fixed by or determined under such law for the acquisition of such prop
erty is such as would not restrict or abrogate the right under that clause.
What is notable in Article 30 is that no provision is made for Parliament
to frame any law by which the nature of a minority educational institution,
and the scope of its autonomy and entitlements can be defined. This meant
that practically every matter relating to the precise extent of differences
between a minority institution and an ordinary institution was left to be
decided by the courts. This is all the more the case where there could be
a contradiction between the rights of a minority institution and citizens'
fundamental rights under other articles of the Constitution. Such provi
sions are notably those of Article 28 ('Freedom as to attendance at religious
instruction or religious worship in certain educational institutions') and
clause 2 of Article 29 ('Protection of interests of minorities'). It is best to
reproduce the provisions below:
Article 28. Freedom as to attendance of religious instruction or religious wor
ship in certain educational institutions:
63
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Social Scientist
(1) No religious instruction shall be provided in any educational institution
0
(S wholly maintained out of State funds.
<U
c
(2) Nothing in Clause (1) shall apply to an educational institution which is
3
administered by the State but has been established under any endowment
1 or trust which requires that religious instruction shall be imparted in such
z institution.
NO (3) No person attending any educational instruction recognised by the State or
I
LO receiving aid out of State funds shall be required to take part in any religious
CO
instruction that may be imparted in such institution or to attend any religious
O
worship that may be conducted in such institution or any premises attached
thereto unless such person or, if such person is a minor, his guardian has given
(N
his consent thereto.
5 Article 29. Protection of Interests of Minorities ( 1 )...
(2) No citizen shall be denied admission into any educational institution main
tained by the State or receiving aid out of State funds on grounds only of reli
gion, race, caste, language or any of them.
There was a further amendment in the Constitution made in 2005
(effective, 20 January 2006), inserting Clause (5) under Article 15, making
provision for reservation in educational institutions for 'socially and educa
tionally backward classes or for the Scheduled Castes or Scheduled Tribes',
but specially excluding from the effect of such reservation 'the minority
educational institutions referred to in clause ( 1 ) of Article 30'.
It is obvious that these provisions in the Constitution leave a number
of matters unresolved. The word 'minority', in a religious context, is not
defined in the Constitution. Muslims are not a minority in Jammu and
Kashmir, nor are Christians in Mizoram. The Supreme Court in the Kerala
Education Bill case (1958) held that religious communities can be identified
only on the basis of their overall position in the population of the whole
country, and not in those of individual states.
Other matters are more complex. Article 30(1) prescribes that the
minorities have the right 'to establish and administer educational insti
tutions'. Now, obviously since a minority is not a recognisable legal
body, except perhaps in the case of Christian churches and in that of the
Gurudwara Prabandhak Committees of Punjab and Delhi among the Sikhs,
it is reasonable to assume that if any set of persons establish an institution
with, perhaps, a declared objective to further the education of a particular
community, the minority concerned has 'established' it. Similarly, if the
management board (under whatever name) has a dominant element within
it formed by members of that same community, it may be assumed that the
minority 'administers' the institution. This is a commonsense view, which
has generally been accepted by the courts.
When we now turn to Article 28, it is clear that it envisages three types
64 of educational institutions, in which citizens' rights are involved:
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Constitutional Provisions for Minority Institutions and the Case of AMU
00
(a) Institutions 'wholly maintained out of State funds';
fi)
(b) Institutions established under a private endowment, but now 3
'administered by the State'; and 3'
(c) Private institutions, 'recognised by the State or receiving aid out of >
TT
State funds'.
It is possible to argue that even universities like Banaras Hindu
University (BHU) and Aligarh Muslim University (AMU) were really
private universities, though administered by the State, when originally
established under British rule; yet from 1951 onwards, when both these
universities were converted into institutions wholly maintained out of State
funds through their respective amending Acts, these essentially belonged to
either category (a) above, or, by some AMU and Constitution stretching of
argument, to category (b). Subsequently, there were some private institu
tions given the status 'Deemed Universities' which could properly belong
to category (c).
The case of the AMU turned out to be quite out of the ordinary. It could be
argued that it was established by the Mohammadan Anglo Oriental (MAO)
College and by a fund-raising body (Muslim University Association), both
publicly aiming to promote Muslim education. Yet both entities were
dissolved after the Central Legislature created an administrative structure
through the Aligarh Muslim University Act, 1920. The Act, in fact, had in
its preamble declared that its purpose was to 'establish and incorporate'
the university. So, who established it, the minority or the State? And who
administered it, when though organised according to an act of legislature,
Muslims admittedly remained predominant in its administrative bodies?
These issues came up before the Supreme Court as a consequence of
the Ordinance of 1965 that, under the shadows of a violent incident at
AMU, dispensed with the old Court and the Executive Council. A writ
was directly admitted in the Supreme Court against the validity of both
the 1951 Act and the 1965 Ordinance. This came to be known as the S.
Aziz Basha case, in which judgement was delivered on 20 October 1967.
The Supreme Court recognised that the two founding bodies which were
dissolved in 1920 were those of the minority, but held that the legislative
act of establishing AMU was not just an act of establishment in mere formal
or nominal terms but a substantial one, since it involved the recognition of
the university's degrees. As to administration, the Supreme Court held that
the powers given by the Act to the Governor-General as Lord Rector and to
the official Visiting Board put the ultimate control over AMU's administra
tion in the State's hands. Thus, by virtue of the Act of 1920, the AMU was
neither established nor administered by the Muslim community, so as to
qualify for the position of a minority institution. It followed from this that
the conversion of the AMU from an aided to a wholly State-maintained 65
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Social Scientist
institution through the AMU (Amendment) Act, 1951, was entirely valid.
o
<N Since the judgement of 1967, two circumstances have changed. First,
<L>
C Parliament through the AMU (Amendment) Act, 1981, altered the words
3
of the preamble to remove the word 'establish' from it, and gave in Sub
section 2(1), the following definition of'University'.
2(1) 'University' means the educational institution of their choice established
I by the Muslims of India, which originated as Muhammadan Anglo-Oriental
LO
00
College Aligarh, and which was subsequently incorporated as the Aligarh Mus
o lim University.
fN
The amending Act, however, remained silent about whether once estab
lished by Muslims, the AMU was also administered by the Muslim minor
I ity. The second circumstance was created by a change in the view of the
Supreme Court about the universality of application of Article 29(2), which
was held to prevent even a minority institution (under Article 30(1)) from
exercising discrimination in admissions on grounds of religion. This was
what the plain language of the Constitution implied, and was the view held
of the matter by the Supreme Court when the Aziz Basha case was decided.
But the Court tended gradually to shift its position, and this crystallised in
the case of St. Stephen's College vs. University of Delhi (6 December 1991),
when a four-judge bench held (paragraph 107) that members of a minority
can 'prefer their community candidates (in admissions) to maintain the
minority character of the minority institution'; but 'in no case such intake
shall exceed fifty per cent of the annual admission', while 'the admission of
other community candidates' was to be 'done purely on the basis of merit.'
These two new circumstances and some explicit encouragement from
the Ministry of Human Resource Development induced the AMU to
reopen the entire question. It did so by assuming that it was now a minority
institution under Article 30 ( 1 ) and then proceeding to change its admission
policy to make a 50 per cent reservation for Muslims in admissions to cer
tain courses in the session 2005-06.
On the petition of candidates who suffered from the change, the issue
came before the High Court, Allahabad in AMU vs. Malay Shukla. The
AMU administration specifically claimed that it was a minority institution
on the basis of the AMU (Amendment) Act, 1981, citing the sub-section
quoted above. It did not question the validity of AMU (Amendment) Act,
1951 and subsequent legislation, and so admitted to the position of being
an institution wholly maintained out of State funds. Its major tactical object
was to take advantage of para 107 of the St. Stephen's College judgement,
although in actual fact its admission scheme only threw 25 per cent of the
sekts to open selection through merit, instead of the required 50 per cent.
The Division Bench of the High Court (5 January 2006) rejected the
position of the university, upholding in essence the judgement of a single
66 judge who too had rejected AMU's reading of the law. The Division Bench
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Constitutional Provisions for Minority Institutions and the Case of AMU
oo
ruled, through both the concurring judgements, that Parliament was not
tu
entitled by a declaration in an Act to nullify a finding of the Supreme Court 3
on a point of fact (paragraph 8 and 113(8)). The judgement explicitly 3'
struck down Sec. 2(1), as amended by the 1981 Act, by which it had rede >
TT
fined the university. Finally, as a result of these rulings, it held the AMU's
reservations for Muslims in admission to be illegal.
AMU has gone into appeal to the Supreme Court, which by its stay
orders has in effect prevented the university from enforcing any reservation
for Muslims in admissions. (This in practice is somewhat a non-issue, since
about 90 per cent of AMU students are Muslims.)
There is no doubt that in case AMU is declared a minority institution
by the Supreme Court, this will have greater implications than the status
awarded to St. Stephen's College. That College was already an indisputably
privately established and managed institution. Since a minority institution,
by definition, cannot be a State-administered institution, AMU must, in
order to be a minority institution, be transformed from its present status as
part of the State to an aided private institution. No writs would lie against
it and it will become subject to ordinary litigation as any other registered
body. Whether the State can remain AMU's full financial protector (which
is the position it enjoyed as an institution wholly maintained out of State
funds) when AMU becomes a minority institution and so a private entity,
is a doubtful proposition, through the aid it gets should remain unaffected
under Article 30(2).
II
Much, therefore, depends on what the Supreme Court will now decide.
If it accepts AMU's case that it is a minority institution, it is prepared to
legislate extensively on matters mentioned above unless it leaves ground
for much subsequent litigation. Or, if it rejects the AMU's claim to be
a minority institution, it would have to rule also on the validity of the
university's present admission system (e.g., lack of Scheduled Caste,
Scheduled Tribe and Other Backward Class reservation). Or, skirting the
issue of minority institution, it may set forth a new category of 'historical
character' for AMU, making use of Article 28(2), thereby holding AMU to
be an originally private endowment now wholly administered by the State
and so outside the purview of Article 30(1). In such a situation, its present
admission policy (without any explicit Muslim reservation) may still pass
muster, through an extended reading of Article 28(2). It maybe mentioned
that Article 28(2), then, would be equally applicable to BHU, since it is not
restricted to a minority but applies to all religious affiliations.
Beyond all this, there still seems a way out for the Supreme Court to
avoid the substantive question of AMU's constitutional position. It may
simply ignore the scope of Article 30(1) (minority institutions) and just
rule on the point of admission policy. Reservation for Muslims at AMU 67
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Social Scientist
can be excluded through a strict reading of Section 8 of the Act ('University
o
rs open to all classes, castes and creeds'), which, despite the dilution of its
o
c wording by the AMU (Amendment) Act of 1981, rules out any commu
D
nity-based reservation in admissions. The Supreme Court can simply hold
that, whether a minority institution or not, AMU must obey the provisions
of its own Act, which contains its essential by-laws. It is curious that this
NO short-cut was not adopted by the Allahabad High Court. Perhaps it decided
I
m that the central constitutional issue has to be resolved in the interests of all
O
concerned, and it is to be seen whether the Supreme Court is equally brave!
Z
fS
"■r
Shamim Akhtar is Lecturer, Centre of Continuing Adult Education and
5 Extension, Aligarh Muslim University, Aligarh.
68
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