Authored by Adil Ameen, a 4th-year law student at Chanakya National Law University, Patna and Sr. Associate Editor at The Society For Constitutional Law Discussion (TSCLD)
Introduction
A seven-judge constitution bench of the Supreme Court of India by its 4:3 judgment in Aligarh Muslim University Through its Registrar Faizan Mustafa v. Naresh Agarwal overruled its 1967 five-judge bench ruling of S. Azeez Basha v. UOI which had denied minority status to the Aligarh Muslim University(AMU). The Apex court in S. Azeez Basha v. UOI (1967) had denied the minority character to AMU based on the university’s incorporation as ‘legal character’ by a statute of the Parliament.
The most striking feature of this judgment is the test laid down for ascertaining the minority status of an educational institution which has been a long-standing question and discussed in multiple pronouncements by the Supreme Court. The court did not confirm the minority status of AMU but referred the question of minority status to a three-judge regular bench to decide the minority status as per the test laid down in the case AMU v. Naresh Agarwal (2024).
Under Article 30 of the Indian Constitution, minorities whether linguistic or religious, have a right to establish and administer educational institutions of their choice. In the context of this judgment, it raises several key questions,
What is the objective, rationale, and scope of Article 30?
What are the criteria for determining the minority character of educational institutions for Article 30?
How does the test laid down to determine minority character in the instant case differ from the earlier pronouncements?
Finally, what will be the implication of this pronouncement on the right guaranteed under Article 30?
Article 30: Objective, Rationale and Scope
The importance of the right granted under Article 30 has been highlighted by the Apex court in multiple judgments. In landmark cases, it has termed Article 30 as ‘an article of faith,’ ‘the conscience of the nation’, a ‘sacred obligation’, a ‘basic structure’, ‘an absolute right’, and finally in the instant case as both ‘anti-discrimination’ and ‘special rights.’
Article 30 of the Indian Constitution equips minorities based on both language and religion with the right to the establishment and administration of educational institutions of their choice. The Supreme Court of India has clarified the objectives behind the inclusion of Article 30 as a fundamental right through multiple judicial interpretations.
In the Re Kerala Education Bill (1957) Case, the court clarified that both religious and linguistic minorities are entitled to this right, and the purpose of establishment is not restricted to teaching religion or language only. The Court went on to explain that the choice available to minorities extends to conserving their religion, language, and culture, as well as providing good secular education.
Furthermore, in St. Xavier's Case (1974) the Apex court explained that the objective of Article 30 is to bring equality between the minority and the majority, and pointed out that in the absence of such protection, equality shall be denied.
It has been highlighted that the proper and efficient upbringing of children from the minority community including their “intellectual attainments” that make them fit for entering public services and educational institutions of their choice is the ordinary desire of this section. This necessarily requires institutions offering “general secular education”. In another instance, it was pointed out that it aims to give "a sense of security and a feeling of confidence" to the minorities.
In subsequent cases the Court found twin objectives behind Article 30 which are - firstly, the conservation of the religion and language of minorities and secondly, giving quality general education to the students of minority communities. The majority opinion of the seven-judge bench in the P.A. Inamdar (2005) case held that the right granted under Article 30 is a “special right.” Also, the scope of Article 30, in relation to the state, is held to be purely negative meaning thereby it ensures that the State does not discriminate against minorities who wish to establish and administer educational institutions.
Phrases like "right to establish and administer" and "educational institution of their choice" in Article 30(1) gave a wider amplitude which extends to the choice in admitting non-minority students, however, they cannot be enforced upon the minority education institutions. The restriction upon this choice of minority institution is that manner and number must not violate the minority character.
The right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not absolute as it does not include “the right to maladministration” rather it is subject to regulations made by the state. The regulations ensuring the interests of students have been repeatedly upheld by the courts. However, these regulations, shall not have the effect of infringing minorities' right to educate students of their community in their institutions. A reasonable regulation was found to “benefit the institution as the vehicle of education for the minority community concerned.” The Apex court through earlier cases opened the window for the regulations “in the interest of sanitation, morality, public order, the efficiency of the institution, discipline, health.” Also, minority institutions were made subject to the general law of the country and taxation. Subsequently, the guidelines for “maintaining the excellence of educational standards” were upheld by the Apex court.
In St. Xavier's (1974) the Honourable Court, while declaring Article 30 not absolute, allowed regulations for ensuring proper utilisation of funds and preventing anti-national activity. Restrictions were further extended to maintain the educational character and standard. It included laying down qualifications or conditions of service, imposition of conditions of compliance with the principles of natural justice before terminating the service of teachers, and appointment of the teachers from a panel prepared by the state or university. In addition to that, the qualifications for student entry, hygiene, and physical training were held to be permissible regulations. A major dilution of the minority right to administer happened through a Supreme Court ruling that restricted minority institutions from admitting their own choice from their community, up to 50% only. Later on, the intervention in the right to administer guaranteed by the Constitution was further extended to regulation aimed at ensuring the appointment of qualified teachers, prescribing syllabus and curriculum of study. These regulations even went on to prescribe pay scales and modes of payment.
Furthermore, the introduction of an external authority to implement service conditions was deemed valid, providing such authority blanket, un-channelised, and arbitrary powers. In addition, reasonable regulations may certainly be imposed by the state as a condition for aid or even for recognition.
Test For Minority Status of An Education Institution
It has been consistently emphasised by the Supreme Court that proving the establishment of an institution is a prerequisite for claiming the right to administer it, as the two terms, 'establish' and 'administer,' require conjunctive interpretation. The test to determine minority status depends on the meaning assigned by the court to the word ‘establish’. Hereunder, various meanings assigned by the Apex Court are discussed.
‘Establish’ in Earlier Pronouncements of Supreme Court
In the Azeez Basha case,(1967) the Court acknowledged various interpretations of the term ‘establishment,’ such as ‘to ratify,’ ‘to found,’ ‘to confirm,’ or ‘to settle,’ but ultimately restricted its meaning to ‘bring into existence.’ The Court held that to claim minority status, the institution must demonstrate its establishment by a minority community. The court appreciated the effort of the Muslim community in the foundation of Muhammadan Anglo-Oriental College (MAO College) but denied the minority status to AMU ‘the university’ because it was the result of an Act of Parliament, not the effort of the minority community. H.M Seervai in his book called this observation of the court a ‘productive of great public mischief.’
In the subsequent case of Mother Provincial (1970) which was later approved by an 11-Judge Bench in TMA Pai(2002) gave a wider interpretation to the meaning of the term ‘establish’ to mean ‘to found’. The test to ascertain minority character is laid down to look into the ‘intention’ of the minority community to “found an institution” of their choice and “for the benefit of a minority community by a member of that community.”
Test in AMU v. Naresh Agarwal
The test laid down by AMU v. Naresh Agarwal (2024) first requires that the idea of establishment originates from a person belonging to the minority community, second, that it predominantly benefits the minority community, and finally, that concrete steps toward the establishment were taken by the minority community. Meanwhile, on the administrative side, the institution must acknowledge and show the minority character and the purpose of the establishment to safeguard and enhance the interest of the minority community.
Further distinguishing ‘incorporation’ and ‘establishment’ the court noted the former implies legal existence in contrast to letters ‘finding or bringing into existence.’ The court went on to state that it “pierced the veil of the statute’ to ascertain if the institution wanted to retain minority character even after the incorporation. Instead of a narrow and legalistic interpretation of the word ‘establishment’ the court noted the ‘basis or the manner of complying with legal requirements of establishment’ is not a determinative factor, rather the person causing the establishment must belong to the minority.
Comparative Analysis
Rejecting the observation in the Azeez Basha (1967) case, that the term 'to establish' means 'to bring into existence,' the Supreme Court in AMU v. Naresh Agarwal (2024) reasserted the interpretation from very Rev. Mother Provincial (1970) and concluded that it instead means “to found” for which it requires tracing the ‘genesis’ of the institution and surrounding circumstances of the foundation of the university including the intention. The court’s observation regarding the test laid down in the Azeez Basha case, as ‘formalistic and inadequate’ to ascertain the establishment, concluded on laying down a comprehensive test that considered circumstances that led to the genesis of the institution. This test seeks to explain the purpose and intent of establishing the institution.
Therefore the test laid down by the Supreme Court in AMU v. Naresh Agarwal (2024) emphasises the circumstances and facts surrounding the foundation of the educational institution for testing the minority character instead of the strict and formalistic requirement of ‘bringing into existence’ in the legal sense. Such purposive interpretation will serve the purpose of protecting the minority educational institution in real spirit. The observation of the court that conferring legal character by state or sovereign action does not ipso facto end the protection of Article 30(1) and the minority character of the institution is not surrendered, will be decisive in reaching the minority status of the institution.
Impact Analysis
Protection from legislative intervention
The tests laid down in the instant case will be comprehensive in granting minority character to an educational institution and will ensure that minorities will be getting the protection of Article 30 if they have put the effort into the establishment of the institution and for the benefit of minorities notwithstanding any subsequent legislation changing its nature. It places a restraint on the power of the legislature to alter the nature of the institution through statutory enactments. Such protection serves the purpose of Art. 30 which aims to protect minority established institutions from the intervention of the state by providing subsequent right to administer.
Sense of confidence in the minority community
Such a comprehensive test considering actuality instead of formalism will instill a sense of confidence in the minority community that if they put their effort into the foundation of an institution it will not be subsequently acquired by the state, not even by enactment of legislation. Also, it will ensure that their right to administer the institution will not be hampered by the state.
Conclusion
From the scheme of the Constitution, it can be inferred that the real intent of the provision is to provide safeguards to minority education institutions imparting all kinds of education in an environment desired by the minorities. In light of the judicial pronouncements, it is clear that the right granted by Article 30 puts a negative obligation of non-interference on the state to protect the minority community which is considered vulnerable to state action. Simultaneously, it also provides special safeguards for the minority community. Moreover, this right is subject to reasonable regulation by the state which needs to not infringe the minority character of the institution.
The soul of this Supreme Court ruling is the remark that “Formalism must give way to actuality and to what is real.” For conferring minority character to an Institution a comprehensive view considering actuality instead of the formalism of founding an educational institution taken by the Apex court serves the purpose of Article 30 and makes it enjoyable in a true sense. Such a broad and purposive test for determining the minority character of an educational institution will ensure its retention, thereby fostering confidence among minority communities to establish institutions that uphold and reflect their unique identity.