Aligarh Muslim University v. Naresh Agarwal & Ors.

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144. Secondly, regard must be had to how TMA Pai Foundation (supra) answered questions 5(a), 5(b) and 5(c). The declaration of law seems to be clear that the minority community administering an aided minority educational institution does not enjoy full liberty to act as per its choice in matters relating to admission of students. Admission has to be on the basis of merit and it will also be permissible for the Government to provide that consideration should be shown to the weaker sections of the society.

145. Reservation is an element of substantive justice, and to deny it to the SC/ST community, does not bode well for the compliance of Article

15. We should be careful not to abridge the rights enumerated in Article 15 in our quest to expand and solidify the rights provided in Article 30. The architects of the Constitution were acutely aware of the stratified nature of our society. To minimise this stratification, the framers made a concerted effort towards integrating various communal identities into a composite national identity of “Indians”. The immediacy of this exercise can be garnered from the preamble to the Constitution, where we find the idea of fraternity, a brotherhood of Indians.

146. The idea of substantive equality, which arose as a remedy to the historical injustices suffered by the members of the SC/ST community, was central to this new national identity. This national identity is manifested in institutions such as AMU, which has pioneered the idea that India and its institutions, belong, and are open to all Indians, irrespective of caste, creed, religion, or sex. To remove an institution like AMU from this national project would hurt India’s integrity and the idea of fraternity among its citizens.

147. The appellants have argued that the Constitution is a living document which needs to evolve with time and this Court has not only the power but also the duty to read and interpret the Constitution to reflect the aspirations of the people of this county. The doctrine of progressive realisation of rights has been this Court’s north star for over several decades. This Court has “found” rights which were not explicitly set forth in Part III of the Constitution. For better or for worse, the Constitution in the present form is substantially different than the Constitution which was adopted by the Constituent Assembly. Hence, there are no inherent or constitutional limitations before us to expand the scope of Part III of the Constitution in suitably appropriate cases.

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148. However, that is quite different than what the appellants are asking us to do in the present case. Acceptance of their arguments will result in this Court engaging in historical revisionism. Anyone claiming that historical facts can be changed by judicial fiat, is sorely mistaken. Courts are the custodian of the “truth” and cannot create an alternative version of the “truth”, which are not supported by historical facts. To do so would be thoroughly unjust, arbitrary, and unreasonable. Allowing Courts to create alternative facts in support of a pre-determined conclusion would obliterate the creditability of this Court among the citizenry. Facts cannot be created by the stroke of a pen, and to attempt to do that, 100 years later, would be a misguided endeavour.

Conclusion

149. In the light of the above discussion, the claim of the appellants cannot stand. 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. This submission of the appellants has no historic, legal, factual, or logical basis.

150. In terms of clause (5) of Article 145 of the Constitution, it is my firm opinion that not only do the references not require an answer, it is also declared that AMU is not a minority educational institution and that the appeals seeking minority status for it should fail.

Acknowledgement

151. Before parting, I express my sincere appreciation for the members of the bar who addressed this bench. Listening to their erudite arguments was indeed enriching. Further, I express gratefulness to my research assistants who worked tirelessly and burned the midnight oil, in tandem with me, to help me win the race against time. The scholarly contributions in books and treatises which were consulted and the artificial intelligence systems now available, which have opened up a whole new world, did provide me with valuable guidance and inputs. The assistance and cooperation received from this Court’s library also significantly enhanced this work and has made my opinion richer. I, however, regret my inability to acknowledge the contributors individually.

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Satish Chandra Sharma, J.

Table of contents A. Preface B. Undisputed Facts C. Submissions of the parties C.1. Appellants questioning the correctness of Azeez Basha

(1968) 1 SCR 833

C.2. Respondents defending the correctness of Azeez Basha [supra] C.3. Submissions in Rejoinder D. Scope of proceedings D.1. Petitions before the Court D.2. The Anjuman reference D.3. The present reference D.4. The parameters on which reference can be made to a larger bench D.5. A holistic approach E. Issues F. Whether establishment is necessary G. Meaning of “establishment” and the real positive indicia behind

G.1. The existing jurisprudence of this Court G.2. The founding moment or the genesis argument G.3. Relevance of “choice” and “intent” in the question of establishment G.4. The nature of administration at the time of establishment G.5. Locating the real positive indicia H. The Azeez Basha judgment H.1. The content of the judgment of Azeez Basha [supra] H.2. The rationale behind the findings I. Balancing conflicting narratives

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J. Pre-independence Universities and other institutions K. The question of administration and the 1920 Act L. ‘Incorporated’ or ‘established’ by or under a Statute M. Evolution of AMU and the advent of the Constitution M.1. The amendments made to the 1920 Act M.2. The Constitution and the question of surrender of rights N. The De-facto and safe haven argument O. The UGC Act and Yashpal P. NCMEI Act and the amendment Q. Conclusions

1. I have had the privilege and the honour of perusing the erudite and illuminating opinions authored by Hon’ble Chief Justice, Dr. D.Y. Chandrachud and Hon’ble J. Suryakant. Considering that the present matter involved fundamental questions concerning interpretation of the constitutional provisions and the judgments rendered by this Hon’ble Court, I find it necessary to render the present opinion.

A. Preface

2. The present larger bench of seven Hon’ble Judges, had assembled in order to adjudicate upon validity of some of the amendments made to the Aligarh Muslim University Act, 1920 [hereinafter referred to as the “AMU Act”], through the Aligarh Muslim University Amendment Act, 1981 [hereinafter referred to as “1981 amendment(s)”] and the notifications of the Admission Committee dated 10.01.2005, Academic Council dated 15.01.2005 and the Executive Council dated 19.05.2005, providing for reservation to the extent of 50 per cent of seats to be reserved for Muslims of India for admission to post graduate programmes. While adjudicating the validity of the same, various other connected questions of constitutional importance arise which would be discussed in detail hereinunder.

3. The primary question that captures the attention of this Court in the present proceedings is the form, content and application of Article

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291 and 302 of the Constitution of India, 1950 [hereinafter referred to as “the Constitution”]. The judgments of this Hon’ble Court have settled the law with regard to the effect of the application of Article 29 and 30, specifically the larger bench judgment in case T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, which is the locus classicus on the subject, rendered by a bench of eleven Hon’ble Judges. A co-ordinate bench of seven judges has thereafter distilled the position of law in P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537. The said judgments are a guiding light on the subject and assist the Court in course of the present judgment.

4. While the said judgments amongst others, have cleared the air on the broader interpretation of Article 29 and 30, the question which concerns the present bench is of an atypical nuance, which requires further elaboration and jurisprudential extraction. Considering the unique position that the Aligarh Muslim University [hereinafter referred to as “the AMU”] has in the history, the constitutional text and the facts surrounding the birthing of the University itself, this Court was required to interrogate certain aspects of Article 29 and specifically Article 30, which have not necessarily arisen before this Court in any previous case. The specific occasion on which issues of the like arose was in the case concerning the AMU itself in S. Azeez Basha v. Union of India, (1968) 1 SCR 833 (hereinafter referred to as “Azeez Basha”), the correctness of which is a subject matter of intense and rigorous debate before this Court in the present proceedings.

5. Article 29 and 30, forming a part of the fundamental rights chapter of the Constitution, represent an important constitutional guarantee

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available to the citizens of the country. It is a guarantee that embeds cultural diversity, secularism and fairness on the canvas of the Constitution. The judgment in TMA Pai [supra] describes India as ‘a land of diversity – of different castes peoples, communities, languages, religions and culture’. It was this inherent diversity that perhaps led the Constitution makers to make specific provisions to guard and celebrate the cultural, religious and linguistic diversity. The Constitution thus provided minorities, based on religion or language, the right to establish and administer, educational institutions of their choice. The right was geared towards educational institutions as it was felt that education forms the bedrock of the identity of the next generation of individuals which would help preserve, protect and further the cultural, religious and linguistic diversity.

6. This diversity is not a coincidence in India and is a product of inherent genetic built of Indian society. The citizens of this land mass, which we call India, or Bharat, are therefore inherently pluralistic and organically imbibe within them the ideals of religious, cultural and linguistic diversity. It is a function of this cultural synthesis that almost accidently and not necessarily by design, the fundamental rights are also provided for in the Constitution at two separate levels or units – the individual; and the group. The rights against arbitrariness, for equality, freedom of speech/ move freely/reside and settle/profession, freedom of life and liberty, freedom of religion, etc. are granted at an individualistic level.

7. At the same time, the freedom of trade, freedom of association, rights against untouchability, right to manage religious institutions and the right establish and administer educational institutions, are granted to group(s) or specific groups. The said individual rights and their interplay with groups rights colour the palette of Indian constitutional law and would assist the Court in chartering its future course.

8. The specific rights to the minorities under the Constitution, over and above the existing individual and group rights available to all citizens and/or groups which are agnostic to minority/non-minority classification, are to be theorised within the distinctive context of Indian nationhood. It is necessary to note that India is a “nation”, but not in the euro-centric sense, which merges linguistic identity with a colonial or medieval past. India is a continuum, it is a civilization that has perpetuated its course through the annals of history, carrying with it the lives and stories of every hue of human existence. India’s

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national identity merges many diverging groups, communities, sects, etc. which often intersect with each other in varying fashions. This diversity does not rob the country of a unified past, a shared history and composite present. It is, in fact, this kaleidoscope of intermingling and off-shooting cultures that builds the national identity or the national character. The uniqueness of India, its nationalism, its shared cultural history and the context in which the Constitution came in to being, gives life to the provisions of Constitution. It is with this broad understanding that this Court would seek to locate the answers to the questions presented before it.

B. Undisputed Facts

9. There has been a considerable degree of contest over the facts that may be germane in the present matter. The question of establishment of the AMU and the facts surrounding it, the resultant AMU Act, 1920 [as it then stood] and the history of the Mahommedan Anglo- Oriental College [hereinafter referred to as the “MAO College”] have been presented by the parties in their own manner and style. Without adverting to the contested facts or claims, the Court would be benefitted by culling out the uncontested facts which are relevant for the purposes of the present adjudication.

10. The history of modern higher education in India starts from the Charter Act of 1813 of the British Crown which allocated funds for education in British India, leading to the establishment of institutions like the Hindu College in Calcutta in 1817. In 1854, an education policy of the British for British India came in the form of the Wood’s Dispatch, officially known as the “Despatch on Indian Education”. It was a seminal educational policy document issued in 1854 by Sir Charles Wood, the President of the Board of Control for India and marked a significant step in the development of the modern education system in India. The Dispatch advocated for the establishment of universities in major cities and improvements in schools and specifically provided that the “examinations for degrees will not include any subjects connected with religious belief; and the affiliated institutions will be under the management of persons of every variety of religious persuasion.”

11. In 1857, Act II, XXII and XXVII were passed by the Imperial Legislative Council [a representative body empowered by the British Parliament to make laws for British India] to establish the first three

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Universities in India, namely Universities of Calcutta, Bombay and Madras. Thereafter, Act XLVII of 1860, was passed by the Imperial Legislative Council, which expanded the powers of the abovesaid three Universities to grant degrees. As a matter of policy and practice, the British Imperial power in India therefore, set-up Universities through a legislative enactment and resultantly “recognised” such Universities for the purposes the colonial power deemed fit. The legislations mentioned above, provided the British officials significant controlling and regulatory powers to administer the institutions. There has been considerable emphasis on this aspect of the matter and shall be discussed separately in a particular section of the judgment.

12. In 1870, a private committee was set up by the name of Committee for the Better Diffusion and Advancement of Learning among the Muhammadans of India, which submitted its report in 1872. The said Report provided a roadmap for the Muhammadan Oriental College as an institution to promote Western Arts and Sciences for the education of Muslims in India. In 1873, on the said lines, a Scheme was proposed for the MAO College.

13. On 24.05.1875, the opening ceremony of the MAO College was held in Aligarh. On 08.01.1877, the foundation of the MAO College was laid by Sir Syed. The Rules and Regulations for the Appointment of the Trustees of the MAO College were passed in 1889. The said Rules described the object of MAO College was “primarily the education of Mahomedans and, so far as may be consistent therewith, of Hindus and other persons.”

14. In 1902, the Report of the Indian Universities Commission was published. The said report, with regard to MAO College, it was specifically noted that “no obstacle should be placed in the way of denominational colleges, it is important to maintain the undenominational character of the Universities”. On 24.03.1904, the Indian Universities Act (VIII of 1904) was passed which unified the pre-existing legislation based University regime in British India, repealed the previous Acts, and brought within its purview the five Universities. It also reconstituted the then existing Governing Bodies of the universities and gave statutory recognition to the ‘Syndicates’ in the said Universities.

15. From the late 1800s to 1910, several individuals associated with the MAO College propounded various differing ideas for setting up of

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a “University”. In May 1911, representatives from the MAO College met Harcourt Butler, Member of the Governor-General’s Council for the setting up of a “University”. From 1911 till 1913-14, the prayer was for the setting up of a predominantly “denominational” University which would be recognised by the British Indian Government. The stances of parties took a sharp turn on the passing of the Benaras Hindu University Act, 1915 [hereinafter referred to as the “BHU Act”] by the Imperial Legislative Council on 01.10.1915 leading to the establishment of the Benares Hindu University [hereinafter referred to as the “BHU”].

16. At the said time, as per the British officials in-charge, the “Benares model” as it was then referred, had to be followed. It is sought to be presented that once the movement to establish the BHU gained prominence and acceptance, the tone and tenor of all sides changed.

17. Separately, there were also considerable disagreements within the various groups of the minority community advocating for a University over issues such as recognition by the British Indian Government and extent of control that the British Indian Government would exercise over any such proposed University. As the said matter also involves minute machinations of the working of the colonial government and the views and counter views of various personalities involved in the process, the parties before this Court have sought to highlight one aspect over the other. The various conflicting narratives of the process shall be discussed separately in a particular section of the judgment.

18. On 10.04.1916, the informally formed ‘Moslem University Committee’, which was requesting the British Government to form the University by bringing in an enactment, by a Resolution observed that “it has no other alternative at present, but to accept the principles of the Hindu University Act…”. Once the deck was cleared for the in- principle “acceptance” of having a University on the Benares model, the discussions started on the actual draft of the Aligarh Muslim University Bill.

19. Finally, on 27.08.1920, Sir Mian Muhammed Shafi, the education member in the Imperial Legislative Council, introduced the Bill for the establishment of a University and on the same day, sought to refer the Bill to a Select Committee. On 08.09.1920, the Select Committee submitted its Report. On 09.09.1920, Mr. Shafi moved the report of the Select Committee on the Bill to establish AMU in

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the Indian Legislative Council. Finally, on 14.09.1920, the Aligarh Muslim University Act, 1920 was passed.

20. Till the mid-1920’s almost a dozen Universities under legislative enactments had been established in British India.3 On 23.03.1925, an Inter-University Board was established to facilitate the exchange of professors between these Universities, to serve as an authorised channel of communication and facilitate the coordination of university work, to assist Indian Universities to get recognition for their degrees and diplomas in other countries, etc.

21. In 1935, the Government of India Act, 1935 was enacted by the British Parliament which specifically included provisions relating to the regulation of higher education. It divided legislative powers between the Federal Government and Provincial Governments. In matters related to higher education, both the central and provincial legislatures had the authority to make laws. However, there was a specific legislative entry with regard to “Benares Hindu University” and “Aligarh Muslim University” which vested the Federal Legislature with the exclusive legislative powers over the same under Entry 13, List I, in S. 100, of the Government of India Act, 1935.

22. In 1944, the Central Advisory Board of Education made attempts to formulate a national system of higher education and submitted the “Sargent Report” which recommended the formation of a “University Grants Committee” to coordinated Higher Education in India. In pursuance to the same, in 1945, the Department of Education, Health and Lands vide resolution dated June 4, 1945 established the University Grants Committee to advise the government on the grants to be given to the Central Universities [Delhi, Benares and Aligarh].

23. In 1947, the constitution of the Committee was amended and its scope enlarged by the Department of Education Resolution to empower the Committee to deal with all Universities in India. In 1948, the University Education Commission was set up under the Chairmanship of S. Radhakrishnan “to report on Indian university education and suggest improvements and extensions that might be

3. University of Calcutta; University of Bombay (now known as University of Mumbai); University of Madras; Panjab University (Established as University College, Lahore. Later, raised to a level of University.); University of Allahabad; University of Mysore; Banaras Hindu University; Patna University; Aligarh Muslim University; University of Lucknow; University of Dhaka; Delhi University; Nagpur University.

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desirable to suit the present and future needs and aspirations of the country”. The Commission submitted its Report, whereby it was recommended to reconstitute the University Grants Committee, to expand its membership, include experts on the panel, give powers of visitation, distribution of grant-in aid, etc.

24. In 1951, the AMU Act was amended in order to bring it in line with the Constitution [which came in to force in 1950]. This was simultaneous with similar amendments being carried out to the BHU Act. The AMU Act was further amended in 1965, 1972 and 1981. The content and the purport of the amendments to the AMU Act over the years shall be discussed in detail in a separate section of the judgment.

25. On 28.12.1952, the Government of India set up an ‘interim’ University Grants Commission (hereinafter referred to as “UGC”) by resolution to advise it on the allocation of grants-in-aid from public funds. On 03.03.1956, the University Grants Commission Act, 1956 [hereinafter referred to as the “UGC Act”] was enacted thereby giving statutory recognition to the UGC.

26. In 1968, the judgment in Azeez Basha [supra] was delivered which held that the AMU was neither established nor administered by the minority community. After the judgement in Azeez Basha [supra] was delivered, the AMU was treated to be a free and open institution as opposed to a minority educational institution. This position continued until 1981 when the Parliament passed The Aligarh Muslim University (Amendment) Act, 1981. This Act made several changes to the provisions of the 1920 Act chief among which was an amendment to Section 2(l) which now read as follows: (l) “University” means the educational institution of their choice established by the Muslims of India, which orginated as the Muhammadan Anglo-Oriental College, Aligarh and which was subsequently incorporated as the Aligarh Muslim University.”

27. An addition was also made of clause 5(2)(c) dealing with the powers of the University which gave the University power “to promote especially the educational and cultural advancement of the Muslims of India”. The word “established” was deleted from the long title of the Act and it now read “An Act to incorporate a teaching and residential Muslim University at Aligarh” as opposed to the unamended long title

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i.e., “An Act to establish and incorporate a teaching and residential Muslim University at Aligarh”. The Act also empowered the Court of the University to act as the Supreme Governing Body.

28. Consequent to this amendment, no issue arose till 2005, when the Admissions Committee of the University took a decision at its meeting of January 10, 2005 to reserve 50% of seats in the Post Graduate Medical Courses for Muslims. The same was also accepted by the Union of India on February 25, 2005. The Resolutions providing such reservations and the 1981 amendments were challenged before a Single Judge of the Hon’ble High Court of Judicature at Allahabad [hereinafter referred to as the “Allahabad High Court” or “High Court”] on the ground that the amendments amounted to an impermissible legislative overruling of Azeez Basha [supra].

29. The Single Judge had read down Section 2(l) to mean that the word “established” in that section would refer to the MAO college and not the University. The learned Single Judge further held that the amendment of 1981 did not turn the AMU into a minority institution because Azeez Basha [supra] still held the field. Thereafter, appeals were preferred before a division bench of the Hon’ble High Court.

30. The Ld. Division Bench rendered two separate judgements which concurred entirely on all points of law raised before it. Briefly stated, it was held that the core principle of the Azeez Basha [supra] was that the minority community had requested the British Government to establish the AMU because they wanted governmental recognition of its degrees. It was held that this recognition of historical fact could not be overcome by “an enforced declaration of substantial identity” as given in section 2(l) and as sought to be done by removing the word “establish” from the long title of the Act. Consequently, Section 5(2)(c) was also struck down for being discriminatory since it privileged the advancement of a particular section over others. It was further held that the Parliament had no competence to enact the 1981 Act because only a minority could create a minority institution, Parliament could not.

31. The decision of the High Court was challenged by the University in a Special Leave Petition before this Court. The Union of India had also challenged the decision of the High Court and had supported the University’s stand. On April 24, 2006, a Division Bench of this Court had directed status quo to be maintained in the proceedings after Counsel for the University undertook not to implement the

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50% reservation policy until final disposal of the case. The question regarding the status of the university was directed to be considered before a larger bench.

32. Thereafter, the Union had sought to withdraw the appeal filed against the judgement of the High Court on the ground that the historical finding of fact in Azeez Basha [supra] could not have been set at naught by an amending act of the Parliament. On February 2, 2019, a bench of three judges of this Court had directed that the question of correctness of the Azeez Basha [supra] decision should be referred to a bench of Seven Judges. The reference was made directly to seven judges because in the Bench’s view, the very same question had been referred before in the case of Anjuman-e-Rahmania and Others v. District Inspector of Schools and Others W.P. (C) 54- 57 of 1981. These writ petitions were heard and disposed of by the Bench in TMA Pai Foundation v. Union of India, (2002) 8 SCC 481 but this question was left unanswered. The issue with regard to the scope of the reference shall be discussed separately in detail.

C. Submissions of the parties C.1. Appellants questioning the correctness of Azeez Basha [supra]

33. It was submitted by Dr. Rajeev Dhawan, learned Senior Counsel, appearing for the Aligarh Muslim University, that the order dated 26.11.1981 passed by this Court in the case of Anjuman-e- Rahmaniya v. District Inspector of Schools, W.P.(C) No. No. 54- 57 of 1981 and the reference order dated 12.02.2019 in the present batch of petitions creates several points of reference for this bench to adjudicate upon, which include the correctness of judgment in Azeez Basha [supra], impact of Prof. Yashpal v. State of Chhattisgarh, (2005) 5 SCC 420, and those relating to National Commission for Minority Educational Institutions Act, 2004 (‘NCMEI Act’). However, no specific issues were spelt out in the order dated 12.02.2019.

34. In view of the above, Dr. Dhawan submitted that the issues are required to be framed and then decided by this Bench. According to him, following issues arise in the present matter: a. Was Azeez Basha [supra] correctly decided, and whether it suffers from internal contradiction and reasoning on facts and on law?

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b. Does Azeez Basha [supra] need to be reconsidered in light of earlier and subsequent decisions of this Court on Article 30(1)? c. What is the effect of Azeez Basha [supra] on the future decisions of the Hon’ble Allahabad High Court which applies Azeez Basha [supra] in toto and strikes down the statutory amendments to the Aligarh Muslim University Act 1920 (hereinafter referred to as 1920 Act) through the 1981 Amendment Act as a usurpation of judicial power? d. What is the effect of NCMEI Act read with the University Grants Commission Act, 1956 (‘UGC Act’)? Should Azeez Basha [supra] be reconsidered in the light of the NCMEI Act (as amended in 2010) and read with UGC Act as considered in Yashpal supra? e. Was Azeez Basha [supra] correct in accepting the antecedent historical data on AMU’s Muslim character, but denying its constitutional significance while deciding the issue of its minority status, which is at the variance with St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558 [5-Judge Bench]; Rev. Father W Proost v. State of Bihar, (1969) 2 SCR 73 [5-Judge Bench]; and Right Rev. Bishop SK Patro v. State of Bihar, (1969) 1 SCC 863 [5-Judge Bench]? f. Is Azeez Basha [supra] contrary to the constitutional dispensation on rights of minorities under Articles 29 and 30, discerned before the Constituent Assembly Debates and approved in TMA Pai?

35. Further, Dr. Dhawan raised a preliminary objection regarding change of stand of the Union of India insofar as the validity of the 1981 Amending Act is concerned. Having once filed an appeal against the impugned judgment of the Allahabad High Court, the decision to withdraw the same by Union of India and adopting a stand, which is contrary to the pleadings before the Hon’ble High Court is arbitrary, unreasonable and lacks bonafides. Dr. Dhawan submitted that the stance taken by Union of India presently is also contrary to its stance in the case of Azeez Basha [supra], which should not be permitted at this stage.

36. Dr. Dhawan interpreted Articles 26, 29 and 30 of the Constitution to argue that there are three questions, answers to which determine the

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character of a particular institution i.e., whether a particular institution is a minority institution or not: - a. What is the origin of the institute? b. Whether the minority community founded the institution or not? c. Whether the community in question is minority, either linguistic or religious, in the State or not?

37. Dr. Dhawan assailed the correctness of Azeez Basha [supra], by making the following submissions. Firstly, it has been held that as per the University Grants Commission Act, 1956, a university can be established only by a statute (enacted either by the Parliament or a State Legislature) and a university can also be of a minority character. Also, that the university loses its minority character as soon as it is established by a statute. Therefore, there is inherent contradiction in the said judgment. Secondly, while Azeez Basha [supra] recognizes the history, background and antecedent role that the MAO College played in building this institution, the bench, however, ignores it at the end in view of the existence of 1920 Act. The said history and background ought to be appreciated as has been done in case of St. Stephen’s [supra]. Thirdly, in this respect, Azeez Basha [supra] completely ignores the purpose of the 1920 Act. The said judgment fails to correctly appreciate the salient features of the 1920 Act which demonstrate the minority character of Aligarh Muslim University. Furthermore, Azeez Basha [supra] adopts a very narrow construction of the word “establish” used in Article 30 of the Constitution and further, fails to give reasons to disregard other meanings of the said term. Lastly, Azeez Basha [supra] wrongly concludes that the educational institutions of the minorities converted into, and incorporated as, a university by a statute loses or seizes to retain its minority character. If a minority can establish a university under Article 30(1), and if universities are required to be incorporated under a statute for degrees to be recognised, then it must follow that the minority community is entitled to seek incorporation of its institution as a university.

38. Dr. Dhawan, relying upon the provisions of the 1920 Act, asserted that that it clearly demonstrates the Muslim character of the Aligarh Muslim University. It is further urged that the AMU is the alter ego of MAO College has been recognized by various provisions of the 1920 Act. Dr. Dhawan emphasized that the then Imperial Legislature

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had incorporated various provisions in the 1920 Act which are clearly intended for the benefit of the Muslim community. It is pointed out that the administration of AMU has been vested with the Muslim minority and that Muslim community had de jure and de facto control over the management of AMU.

39. Dr. Dhawan asserted that the law laid down in Azeez Basha [supra] ignored the earlier binding decisions of larger benches of this Hon’ble Court and therefore is, per incuram. These include the law laid down by a 7-judge bench in the case of In Re Kerala Education Bill, 1957, (1959) SCR 995 and also by a 6-judge bench in the case of Sidhajbhai Sabhai v. State of Bombay, (1963) 3 SCR 837.

40. Furthermore, in view of the subsequent decisions of this Hon’ble Court also, the law laid down in Azeez Basha [supra] does not hold the field anymore. Additionally, it is urged that so far as UGC Act and NCMEI Act (as amended in the year 2010) are concerned, Sections 2(f), 22 and 23 of the former Act read with Sections 2(g) and 10 of the latter Act indicate that a university can only be established by a statute and apart from them, only those institutions can confer degrees which have been declared as ‘deemed to be University’ under Section 3 of the UGC Act or which have been specifically empowered as such by an Act of Parliament. A university established by a statute cannot be kept out of the scope of Article 30 of the Constitution. If it is so kept out, then it would mean all tertiary education, except private institutions, will not get the protection of Article 30. As per Dr. Dhawan’s reading of Azeez Basha [supra], every minority institution, once given a statutory recognition, will fall outside the ambit of Article 30.

41. Dr. Dhawan referred to the amendments made to the 1920 Act in the year 1981, which, as noted hereinabove, have already been struck down by the Allahabad High Court by the impugned judgment. It is submitted that the validity of the said amendment provisions need not be examined by this Bench and can be later dealt with by the regular bench. As per Dr. Dhawan, presently, the only issue which may be decided is whether Azeez Basha [supra] was correctly decided or not.

42. Dr. Dhawan, referring to the said provisions and the statutes annexed to the 1920 Act, submitted that de jure the control of management of the Aligarh Muslim University was and is with the Muslim Community.

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Further, adverting to certain other facts such as that all Chancellors till date have been Muslims and 34 out of 37 Vice-Chancellors have been Muslims, it has been pleaded that de facto too, the administration of the Aligarh Muslim University has been in the hands of the Muslim community.

43. Mr. Kapil Sibal, learned senior counsel, appearing for the Old Boys’ Association, submitted that the judgment in Azeez Basha [supra] failed to consider the history and genesis of the Aligarh Muslim University in the right perspective. While determining the factum of the establishment of the University, historical initiative, impetus, promotion, and purpose behind the institution has to be given due importance, which was not done in Azeez Basha [supra].

44. It is asserted that Azeez Basha [supra] wrongly concludes that the University was established by the 1920 Act and therefore, it cannot be considered a minority institution. The 1920 Act is not the establishing factum of the University but only a recognition of such establishment, which has been done by the Muslim community at the relevant time. In order to highlight the history and purpose behind the institute, Mr. Sibal relied upon letters exchanged between Sir Syed Ahmed Khan and the relevant authorities of the Government and the debates which took place when the Aligarh Muslim University Bill was being discussed in the Imperial Legislature in the year 1920. In short, the genesis, according to him, includes the following: a. Inspiration or purpose to set up the institution is by the minority. b. The steps taken for persuasion are by the minority. c. The essential paraphernalia or initial funding should be by the minority. d. Persuading the authorities, by the minority, to accept that fact.

45. Mr. Sibal vehemently argued that the mere presence of “outsiders” in the administration of a minority institution would not deprive the institution from its minority status. He accepted that certain regulations can be imposed by the State on such institution to maintain the stands of excellence, however, those regulations would not affect the minority status of the institution. In contrast, the right of a linguistic or a religious minority under Article 30 to establish and administer an institution “of their choice”, which cannot be subject to any regulation, is absolute.

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46. Additionally, it is submitted that the only benefit to a particular institute of having a minority character is that the institute has the right to reserve a certain number of seats for students of the said minority community. The said right should not be taken away in the case of Aligarh Muslim University, where de facto, majority of students are already of Muslim community.

47. Apart from adopting submission of Dr. Dhawan and Mr. Sibal, Mr. Salman Khurshid, learned senior counsel, appearing for applicants in I.A Nos. 5 & 6 of 2016 in Civil Appeal No. 2286 of 2006 i.e., AMU Lawyers Forum and AMU Old Boys’ Association, Delhi Unit, submitted that a moral reading of the Constitution needs to be adopted in the present case. If that is so done, it will follow that the rights under Part III of the Constitution of India are natural to or inherent in a human being. Mr. Khurshid argued that the natural rights are inalienable because they are inseparable from the human personality and have been just preserved by the Constitution. In this context, the rights under Article 30 that the minorities have, as individuals, existed even prior to 1950. As such, these rights cannot be taken away by way of an artificially restricted interpretation of a word like ‘establish’.

48. Mr. Shadan Farasat, learned counsel, appearing for the appellant in CA 2316 of 2006 - Haji Muqeet Ali Qureshi vs Malay Shukla, submitted that there is a difference between establishment of an educational institution and the device to bring it into legal existence, which the judgment in Azeez Basha [supra] fails to take note of. The 1920 Act is a device to bring into legal existence the Aligarh Muslim University, which was established by the Muslim Community. Furthermore, the interpretation of Article 30 cannot depend on the existence of a particular legal regime at any given point, which is the UGC Act in the present case. Mr. Farasat relied upon the data to show that de facto, the administration of the AMU has been with persons, majority of whom belong to Muslim community and further that, whether there is reservation of 50% for Muslim Community or not will not make any real difference since the majority of students also has been of Muslim Community.

49. Mr. M R Shamshad, learned counsel appearing for the applicants in I.A. No. 563 of 2024 in Civil Appeal No. 2316 of 2006 i.e., Anjuman-e- Rahmania, submitted that the applicant was the petitioner in WP Nos. 54-57 of 1981 titled as Anjuman-e-Rahmania v. Distt. Inspector of

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School in which the order dated 26.11.1981 was passed by Fazal Ali J. questioning the correctness of the judgment in Azeez Basha [supra]. In addition to what has already been argued, he submitted that minorities in the country have group rights in the form of rights under Articles 29 and 30 of the Constitution, which must be protected as is done in the case of other group rights available to Scheduled Castes, Scheduled Tribes, OBCs, etc.

C.2. Respondents defending the correctness of Azeez Basha [supra]

50. Controverting the same, on behalf of the parties defending the judgment of the High Court and the correctness of the judgment in Azeez Basha [supra], Mr. R. Venkataramani, the learned Attorney General, submitted that the power to establish a university is traceable to Article 30 of the Constitution and because the Aligarh Muslim University was a pre-constitutional university, the Muslim community did not legally have the power to establish it. Only the British Government could have established the University through an act of the Legislature. He has also sought to distinguish the existence of the University from its predecessor, the Mohammedan Anglo Oriental College, as the enabling power to create such a college came from the Societies Registration Act. Ld. Attorney General argues that the words “educational institutions of their choice” used in Article 30 do not by themselves confer a power of establishment independent of legal competence to do so. The Ld. Attorney General argued that Azeez Basha [supra] was correct insofar as it stated that the AMU was not “established” by the Muslim community but by an Act of Legislature.

51. Mr. Tushar Mehta, Solicitor General of India, raised a preliminary objection challenging the very reference itself, holding that a bench of two judges could not have directly referred the matter to seven judges in Anjuman [supra]. The Solicitor General disputed the interpretation of Azeez Basha [supra] put forward by the Appellants whereby it is argued that Azeez Basha [supra] holds that universities established by legislation can never be minority institutions. He accepted that institutions incorporated by statute can also be minority institutions but submitted that in such a case, the Legislature would include provisions in the Act clarifying the minority character of the institution and AMU Act makes no such provision. He gave the example of

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the pre-constitution Annamalai University Act, to indicate how the British parliament recognised “founders” of universities, which were eventually taken over by the then Government.

52. The Solicitor General made extensive reference to the provisions of the 1920 Act to argue that the intent was in fact the opposite, that is to have government control over the institution by controlling, inter alia, the appointment of important office holders, the composition of administrative bodies, the rule making power of the university etc.

53. The Solicitor General argued that the AMU, despite its name is not really a Muslim University but rather a secular educational institution. Reference was made to the secular nature of the education provided therein, to the history of AMU as a national institution and the correspondences between British officials prior to the passage of the Act to show that their intent was to have significant control over the administration of the educational institution sought to be established. Reference was further made to the Parliamentary debates on the amending acts of 1965 and 1981.

54. It was asserted, through various examples, that in a pre-constitutional context, the British Government had the power to require a community to establish a university on the Government’s own terms. It was sought to be argued that the AMU was a secular institution and not a denominational university as the proponents of AMU may have wished for. It was argued that since there was no Article 30 at the said time, there was no right to establish a university free of government control while still seeking governmental recognition of degrees.

55. The Solicitor General took the Court through the history of establishment of Universities in the country. It was argued that the history of universities under British rule to show that government control was a built-in feature so far as educational institutions were concerned. Reference was made to the history of the split between the AMU and the Jamia Milia Islamia to argue that the AMU chose to remain under government patronage while the Jamia was established as a “nationalist” college.

56. It was asserted that it was open to the AMU to remain a college and be free of government control or to establish a university without recognition of its degrees by the government but it chose not to exercise these options. The substance of the submission was that the right of administration was ‘surrendered’ when the proponents

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of the AMU accepted establishment by statute of the kind made by the 1920 Act.

57. The Solicitor General made an attempt to distinguish the concept of being established by an Act from the concept of being established under an Act. The decision in Dalco Engineering Pvt. Ltd. v. Satish Prabhakar Padhye, (2010) 4 SCC 378, was cited to urge that the AMU owes the whole of its existence to a statute and thus it cannot be said that the statute was a mere recognition of an existing arrangement. It was argued that through the 1920 Act, the establishment of the AMU was the fresh establishment of an entirely new body.

58. It was argued that the rights of establishment and administration are distinct and separate. Reference in this regard was made to Re: Kerala Education Bill, 1957, [supra]. The thrust of the argument was that the institution must be shown to have been established by the minority community. Only when this preliminary fact is proved, would “administration” come into the picture. According to him, the words “establish and administer” must be read conjunctively i.e. there can be no right of administration separate from establishment. The stand that these words are conjunctive is common to all the Respondents. He referred to the Constituent Assembly Debates and to amendments carried out in the NCMEI Act by which the words “establish or administer” were substituted with “establish and administer” in line with the constitutional scheme and Azeez Basha [supra].

59. It is further argued that an overly-expansive reading of Article 30 would result in educational institutions using the ‘cloak’ of minority to escape government regulations and therefore, there must be a real positive index which connects the minority community to the institution. Extensive reference is made to A.P. Christians Medical Educational Society v. Government of Andhra Pradesh, (1986) 2 SCC 667 and St. Stephens College [supra] to show what might be indicia of minority character of an institute.

60. The Solicitor General supported the interpretation of “establish” put forth in Azeez Basha [supra], to assert that it was in line with the constitutional intent of Article 30. Since the provision is intended to give a right to specifically to minorities, it was argued that was necessary to show that the institution must have been “actually, tangibly and manifestly brought into being” by a minority.

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61. It was asserted that “establishment” is a question of fact and as Azeez Basha [supra] decided this question of fact conclusively, it is not open for the Legislature to reverse a factual finding by bringing a legislation stating otherwise in the form of the 1981 amendment. The Solicitor General, in response to the submissions made on the stand of the Union of India, stated that the Union of India has been consistent in its stand. It was stated that as per the Union of India, the AMU was not a minority institution even during the hearing of the case of Azeez Basha [supra]. It was further stated that a party can always withdraw the appeal at its discretion and the Union of India can always choose the assist the Court on a question of law.

63. It was further submitted that in order to qualify as a minority educational institution, an institution must be established for the betterment of the minority community and the inclusion of any outsiders must be merely incidental. It was argued that the administrative control must lie with the minority and that on a cumulative understanding it should be clearly visible that the institution in question is actually a minority institution and to a masked phantom as warned of in A.P. Christians Medical Educational Society v. Government of Andhra Pradesh, (1986) 2 SCC 667. He finally submits that the AMU is an institution of national character and hence, it cannot be a minority institution.

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64. Mr. Vikramjit Bannerjee, learned Additional Solicitor General of India, briefly traced the history and purpose of incorporating Articles 25-30 from the Constituent Assembly Debates. It was argued that the purpose of these provisions was to instil a sense of confidence in the minorities with a final view to erasing the difference between majority and minority altogether. In that view, allowing an institute of national importance to be classified as a minority institution would go against the principles behind Article 30. To support his stand, he relied on Bal Patil v. Union of India, (2005) 6 SCC 690. It was argued that the words “institution of national importance” in Entry 63 of List I must be read keeping in mind the principle of noscitur a sociis which would indicate that the AMU is intended to be a secular institution open to all.

65. Mr. Rakesh Dwivedi, learned Senior Counsel, submitted that in the pre-constitution era, the sole prerogative of establishing universities lay with the Governor-General-in-Council. He refers to the establishment of a number of Universities during the time of British time to show that all such Universities were established by an Act of the Legislature. It was argued that the intent of a minority in establishing a university was material factor because the ultimate fact of establishment could be only through the Government. It was argued that the Muslim community in the pre-constitution era did not identify as minorities at all. Therefore, it was stated that if the community itself did not accept a minority character, it was not open to confer such a character on them through operation of Article 30 insofar as the AMU is concerned. It was argued that the numerical inferiority is only one aspect of minority status. Other aspects would include whether or not the community was dominant either socially or politically and whether or not it considered itself a minority. He relied on certain reports of the United Nations to reinforce the idea that minority must be defined with respect to socio-political dominance.

66. Mr. Dwivedi referred to history of negotiations between the proponents of a Muslim University and the British Government to argue that all major demands of the community were rejected and administrative control of the university by the government was a condition precedent for approval. He also referred to the Constituent Assembly Debates to argue that the understanding of the constitution makers was that the AMU was an institution of a national character. It is argued that there is a difference between a university established under an Act

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by private persons and a university established by an Act. He argued that the AMU is established by the Act and not under the Act by the Muslim community.

67. Mr Neeraj Kishan Kaul, Ld. Senior Counsel, took the stand that the correctness of Azeez Basha [supra] had been referred only to the limited extent of determining whether its holding of the words “establish” and “administer” being conjunctive in Article 30 was correct or not. He argued that the original reference order in Anjuman [supra] only referred the question of whether an institution could be called a minority institution even if certain non-minority individuals had been involved in its establishment. He also relied on the reference order dated 12.02.2019 to argue that the status of AMU had not been referred as a question at all.

68. In support of the conjunctive nature of the words establish and administer, Mr. Kaul relied on Hyderabad Asbestos Cement Products v. Union of India, (2000) 1 SCC 426 and St. Stephens [supra] and also on the 2010 amendments to the NCMEI Act referred to above. It was argued that applying a disjunctive test would lead to adverse consequences since it would enable institutions to claim minority status even if they were never administered by minorities. It is submitted that no adverse effect would be caused to the right of minorities to establish universities as a result of Azeez Basha [supra]. It was argued that any university which wanted a minority status was free to do so and in the absence of action by the concerned authorities could take advantage of the deeming provision under the NCMEI Act.

69. Mr. Kaul argued that the creation of the AMU was the creation of a new and distinct entity, not merely the incorporation of an existing institution as a university. The old MAO college had been completely dissolved and its assets and liabilities transferred to the University. It was further stated that the Act used the words “an act to establish” and it did not anywhere state that it was recognising an existing institution.

70. Mr. Kaul defended the correctness of Azeez Basha [supra] by submitting that it had correctly appreciated the antecedent history of the MAO College and the AMU. He next referred to TMA Pai [supra] and the five parameters of administrative control outlined therein i.e. admissions, fees, governing body composition, appointment of

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staff and disciplinary control over staff. On each of those criteria, it was argued that the real control was with the government due to the predominant role of the Visiting Board and the Lord Rector. Mr. Kaul argued that the 1981 Act had been correctly struck down by the Allahabad High Court since it did not take away the basis of Azeez Basha [supra] and moreover because legal fictions could not supplant historical facts.

71. Mr. Guru Krishna Kumar, Ld. Senior Counsel, made extensive reference to the history of the AMU to argue that it was never established as a minority institution but as an institution for general and secular education. It was argued that the British Government was consistently opposed to both, the possibility of a denominational character of the university and the proposed power of the university to affiliate colleges. It was argued that the word “Muslim” in the university’s name was accepted more out of deference to local sentiment than as an indication of minority character. He also drew the Court’s attention to the array of powers exercised both by the Governor-General-in-Council as Lord Rector and the Visiting Board over the University.

72. Mr. Guru Krishna Kumar argued that the fact that the Muslim community approached the then Government for establishing a university is insignificant, as it was not necessary. It was argued that the minority community had the right to establish a college as happened thereafter with the creation of the Jamia Milia Islamia without government interference.

73. It was argued that the muslim community approached the Government since they wanted governmental recognition of their degrees which was possible only if university was established by the Government. He gave examples of certain colleges to show how such colleges were given legal recognition as Universities through Acts of Legislature. By contrast the MAO college was instead dissolved by the 1920 Act and a new entity created in its place.

74. Further, it was argued that the inclusion of the AMU as a specific entry in List I of the Constitution is a clear indication of its All-India character. Even if the university once had the trappings of a minority institution, such inclusion crystallises the secular nature of the university and erases all vestiges of control by one specific community. Reference in this regard is made to M. Siddiq (Ram Janambhumi Temple Reference-5J) v. Mahant Suresh Das, (2020) 1 SCC 1.

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76. Mr. Vinay Navare, Ld. Senior Counsel, submitted that the judgement in Azeez Basha [supra] is not under challenge, only the principle laid down therein. The findings arrived at in the said judgment cannot be affected by the decision of the present Constitution Bench and only the correctness of the legal principle is in question as a reference does not decide the merits of a dispute inter se parties but only the interpretation of a law.

77. It was argued that declaring the AMU to be a minority institution would divest the Parliament of a large part of the power it could otherwise have exercised under Entry 63 of List I. Since the AMU is established by a special statute, it would be “State” within the meaning of Article 12 and hence, cannot be a minority institution. He relies on the judgement in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421.

78. It was argued that the 1981 amendment relying on the judgement in Hotel and Catering Industry Training Board v. Automobile Propriety Ltd, (1968) 1 WLR 1526. It was argued that the AMU was created by a statute and not under a statute. It was argued that to say that having been established by the Act, the AMU can be governed only in terms of the Act and hence the minority community can make no claim of having established the AMU since such claim is precluded by the very provisions of the Act. It was argued that since the institution was created by an Act, the words “of their choice” in Article 30 would not be applicable.

79. Mr. Shridhar Potaraju, Ld. Senior Counsel, referred to the requirement of publishing the university’s accounts in the official gazette and the submission of the accounts originally to the Lord Rector and after the 1981 amendment to the Parliament. On this basis he argues that the AMU is an open and public university. It was argued that

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the AMU itself never raised any questions about its character from 1950 until 2005, when for the first time it enacted reservations for Muslims. Until 2005, the AMU was governed by the non-discrimination requirement under Article 29(2) since AMU is under the financial and administrative control of the Government, it is ‘State’ within the meaning of Article 12 of the Constitution.

80. Ms. Archana Pathak Dave, Ld. Senior Counsel, submitted that the insertion of Section 2(l) by the 1981 amendment was an impermissible exercise of legislative overruling of a judgement. The question of establishment having been settled in Azeez Basha [supra] it cannot be reopened by an amendment act which seeks to take a contrary view on facts.

81. Mr. Yatindra Sharma, Ld. Senior Counsel, reiterated that the university was established and is being administered by the government and not the Muslim community. He goes on to state that Muslims are in fact not a minority in terms of Article 30 as the said Article applies to electoral minorities i.e. those whose numbers are so few that they cannot influence electoral outcomes. It was argued that even assuming that the changes made in the 1981 amendment take away the basis of Azeez Basha [supra], they are unconstitutional for violating Articles 14, 15 and 29(2) of the Constitution.

82. Mr. Anirudh Sharma, learned counsel, submitted that Article 29(2) would stand on higher footing as compared to Article 30(1) and therefore once any institution is covered by Article 29(2), the general right provided therein cannot be unsettled by the specific right under Article 30(1). He has also attempted to distinguish the case of the AMU from that of St. Stephens [supra] by arguing that there were clear indicia of minority character in St Stephens College which are not present in case of the AMU.

83. Mr. Vivek Sharma, learned counsel, briefly submitted and reiterated that the administration of the AMU never vested in the Muslim community and always lay with the government under the 1920 Act.

84. Mr. Nachiketa Joshi, learned counsel, submitted a note which reiterates that it was the choice of the proponents of the AMU to seek government recognition for the AMU’s degrees. To that end, they accepted the establishment by the government instead of establishing the university themselves. It was argued that therefore the benefit

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of Article 30 cannot be claimed since establishment by the minority was missing. Further, the 1981 amendment was correctly struck down by the Division Bench of the Allahabad High Court as it was an attempt at legislative overruling of a judgement.

85. Mr. Sanjay Kumar Dubey, learned counsel, made reference to the original 1920 legislative council debates to submit that Shri Mohammed Shafi who had tabled the AMU bill had himself stated that this was to be an All-India and national institution. In view of the intent of the original movers of the Bill, the AMU cannot be said to be a minority institution.

C.3. Submissions in Rejoinder

86. In rejoinder, Dr. Rajeev Dhawan, Ld. Senior Counsel, argued that both sides to the dispute agree that the words ‘establish’ and ‘administer’ in Article 30(1) must be read conjunctively, and not disjunctively. It was argued that it is also not in issue that the right to administer the educational institution flows from the proof of establishment, although they may exist in different points in time.

87. It was argued that the Respondents’ contention that AMU is a sui generis institution is not a valid ground to avoid the reconsideration of Azeez Basha [supra]. It was argued that every minority educational institution is a standalone institution to serve unique needs of their community, which includes catering to the educational needs of their community, conserving their unique script or culture, and achieving standards of excellence.

88. It is further urged that the minorities have been recognized in India even before the Constitution came into force and therefore, to say that Muslim community had no minority ‘group’ rights before 1950 is fallacious. It is argued that there exists a constitutional premium, as well as a statutory premium (for e.g., Central Educational Institutions (Reservation in Admission) Act, 2006) which is attached to minority exceptions and the minority dispensation. Therefore, it is not just Article 30 which recognizes the minority rights, but if the whole statutory dispensation analysed, it is clear that Parliament has excepted the minorities from Articles 15(5) and 15(6).

89. Additionally, certain other factors have been suggested by Dr. Dhawan, which may be determinative of minority character of a particular institute, which are as follows:

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a. Founders should belong to either religious or linguist community; b. Historical antecedents of the institution which show the active involvement, intention, and contributions of minority founders or the community; c. Founders’ intent to establish an institute should be bona fide, and not devious or dubious and for the benefit of the minority community; d. Constitutional documents (such as statute, rules, or regulations) read as a whole should show predominance of minority character; e. Administration of the institution if it is vested in the founders or persons in whom the founders have faith and confidence; f. Imparting of religious education, or providing for religious instruction and worship g. Symbols such as the name, architecture, motto, and such other cultural symbols of the minority.

90. It is further submitted that declaration as to a particular institute bearing national importance under Entry 63, List 1 and status as a minority institution operate in different spheres. It is open for the Parliament to declare an institution of national importance because of its academic excellence, strategic and security interests, geographic location, cultural or religious prominence, or even granting aid. Therefore, it is argued that the reasons for granting the tag of ‘national importance’ may be varied and unrestricted, which are different than the factors determinative of minority character of a particular institute. It was argued that the declaration under Entry 63, List 1 shall always be subject to the rights under Article 30.

91. Mr. Kapil Sibal, Ld. Senior Counsel, submitted in rejoinder that the minority has a right under Article 30 to administer the institution which it has established, which it may exercise or may not exercise. It is not the duty of the said community to administer once it has established. Therefore, in the present case, even if it is assumed that the administration of AMU is not with the Muslim community, it would not mean that the AMU will cease to be a minority institution since it has been established as such by Muslim community.

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92. It was argued that to that extent, the judgment is Azeez Basha [supra] has been decided wrongly. Further, it is urged that if right to administer is exercised and if the Government interferes in such right, the minority institute can challenge such interference on the ground of it being violative of Article 30. Moreover, the Muslim minority wanted to establish a university which could grant degrees of its own which would have to be recognised by the Government. It was argued that subscribing to a regulatory framework that would offer better opportunities to students who enrolled with the institution, is a choice that has no relation to the alleged surrender of minority status.

93. Mr. Shadan Farasat, learned counsel, compared the provisions of all the Acts establishing the Universities, existing at the relevant time to show that the denominational nature is evident from the level of autonomy granted vis-a-vis, the non-denominational universities of the relevant time and sought to argue that the provisions of the AMU Act clearly depict the minority character of the institution even at the time of inception.

D. Scope of proceedings D.1. Petitions before the Court

94. Before adverting to the legal issues and the contentions raised in the present proceedings, it would be appropriate to define the scope of the present proceedings. The present set of the petition can be divided in the following groups : i. Batch of eight (8) civil appeals challenging the judgment of Hon’ble Allahabad High Court dated 05.01.2006 [hereinafter referred to as the “Impugned Order”] - Civil Appeal Nos. 2286, 2316, 2317, 2318, 2319, 2320, 2321 and 2861 of 2006; ii. A transferred case involving a writ petition filed before the Hon’ble Allahabad High Court seeking implementation of reservations in terms of the Central Educational Institutions (Reservation in Admissions) Act, 2006 - Transferred Case (Civil) No. 46 of 2023. iii. A civil appeal challenging the judgment of the Hon’ble Allahabad High Court dated 16.10.2015 that dismissed the prayer for quo warranto regarding the appointment of the then Vice Chancellor of Appellant-University - SLP(C) No. 32490 of 2015;

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iv. A writ petition under Article 32 seeking a writ or direction to the Appellant - University to follow the regulations laid by University Grants Commission (‘UGC’) in 2010 on minimum qualifications for appointment of teachers and academic staff - WP(C) No. 272 of 2016

D.2. The Anjuman reference

95. The Aligarh Muslim University Act, 1920 was amended in the year 1965 following some disturbances at the campus. The said amendment was challenged by way of writ petitions filed under Article 32 and disposed off by this Court by way of the judgment in Azeez Basha [supra] [5 Hon’ble Judges]. The judgment dated 20.10.1967 held that the University was not established by the minority community and therefore, it cannot be said to be an institution falling under the expanse of Article 30 of the Constitution.

96. In 1981, Writ Petition No.54-51 of 1981 came up before a bench of two Hon’ble Judges of this Court, which was titled Anjuman-e- Rehmania & Ors v. Distt. Inspector of School & Ors. In the said petition, this Court was confronted with a question, which is recorded in its order dated 26.11.1981. The relevant portion is reproduced hereunder: - “The point that arises is as to whether Act. 30(1) of the Constitution envisages an institution which is established by minorities alone without the participation for the factum of establishment from any other community. On this point, there is no clear decision of this court. There are some observations in S. Azeez Basha & ors. Vs. Union of India 1968(1) SCR 333, but these observations can be explained away. Another point that arises is whether soon after the establishment of the institution if it is registered as a Society under the Society Registration Act, its status as a minority institution changes in view of the broad principles laid down in S. Azeez Basha’s case. Even as it is several jurists including Mr. Seervai have expressed about the correctness of the decision of this court in S. Azeez Basha’s case. Since the point has arisen in this case we think that this is a proper occasion when a larger bench can consider the entire aspect fully. We, therefore, direct that this case may be placed before Hon. The Chief

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Justice for being heard by a bench of at least 7 judges so that S. Azeez Basha’s case may also be considered and the points that arise in this case directly as to the essential conditions or ingredients of the minority institution may also be decided once for all. A large number of jurists including Mr. Seervai, learned counsel for the petitioners Mr. Garg and learned counsel for respondents and interveners Mr. Dikshit and Kaskar have stated that this case requires reconsideration. In view of the urgency it is necessary that the matter should be decided as early as possible we give liberty to the counsel for parties to mention the matter before Chief Justice.”

97. The question of law, as noticed above, was referred to bench of seven Hon’ble Judges by a bench of two judges. It may be noted that Hon’ble CJI at that time was not a part of this bench of two Hon’ble Judges. The said group of matters in Anjuman [supra] were placed before a bench of 11 Judges and was heard along with other writ petitions which culminated into the judgment of TMA Pai Foundation and Ors. v. State of Karnataka, (2002) 8 SCC 481.

98. The 11 Judges bench, inter alia, framed a question vide its order dated 26.11.1981, which reads as under: “3(a) What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority?”

99. Finally, the larger Bench in TMA Pai [supra] opined that “this question need not be answered by this Bench, it will be dealt by a regular Bench.” Thereafter, the group of matters in case of Anjuman [supra] came to be disposed of vide order dated 11.03.2003

D.3. The present reference

100. Separately, the present proceedings arise out of the decisions/ resolutions of the Admission Committee dated 10.01.2005, the Resolution Passed by the Academic Council dated 15.01.2005 and the Resolution passed by the Executive Council dated 19.05.2005

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which provided reservation to the extent of 50 per cent of seats to be reserved for Muslims of India for admission to post graduate programmes.

101. The Petitioners before the High Court of Judicature at Allahabad [hereinafter referred to as the “Allahabad High Court” or “High Court”] filed writ petitions against the said decisions, while also challenging the amendment made to the AMU Act in 1981. The said writ petition came to be decided by Ld. Single judge of the High Court of Judicature at Allahabad vide Judgment and Order dated 04.10.2005. The said judgment was impugned before the Division Bench of the Hon’ble High Court by way of Special Appeal 1321 of 2005 and connected matters, which was finally decided by the judgment dated 05.01.2006, vide which the High Court dismissed the appeals filed by the appellants therein. The appeals/special leave petitions from the said order are under challenge before this Court.

102. On 12.02.2019, a three Judge Bench has referred the present batch of appeals and petitions to a bench of seven Hon’ble Judges. Considering the intense divergence of opinion on the reference order and the resultant scope of the present proceedings, the said order deserves to be quoted in extenso as under : “3. The issue arising in S. Azeez Basha (supra) was referred to a Seven (07) Judges Bench by an order of this Court dated 26th November, 1981 passed in Writ Petition (Civil) Nos. 54-57 of 1981 [Anjuman-e-Rahmania & Ors. vs. Distt. Inspector of School & Ors.].

4. The aforesaid writ petitions i.e. Writ Petition (Civil) Nos. 54-57 of 1981 were heard along with other connected cases {lead being Writ Petition (Civil) No.317 of 1993 (T.M.A. Pai Foundation and others vs. State of Karnataka and others)] by a bench of Eleven (11) judges, the judgment in which cases is reported in (2002) 8 SCC 481.

5. The question 3(a) which was formulated for an answer in T.M.A. Pai Foundation (supra) which coincidentally reflects the questions referred by the order of this Court dated 26th November, 1981 passed in Writ Petition (Civil) Nos. 54-57 of 1981, is as follows: “3(a) What are the indicia for treating an educational institution as a minority educational institution? Would

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an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority?

6. However, the Bench did not answer the question stating that it will be dealt with by the Regular Bench.

7. The order of the Regular Bench passed on 11th March, 2003, which, for reasons that we need not dilate, did not answer the aforesaid question 3(a) formulated in T.M.A. Pai Foundation (supra).

8. The said facts would show that the correctness of the question arising from the decision of this Court in S. Azeez Basha (supra) has remained undetermined.

9. That apart, the decision of this Court in Prof. Yashpal and another vs. State of Chhattisgarh and others 2 and the amendment of the National Commission for Minority Educational Institutions Act, 2004 made in the year 2010 would also require an authoritative pronouncement on the aforesaid question formulated, as set out above, besides the correctness of the view expressed in the judgment of this Court in S. Azeez Basha (supra) which has been extracted above.

10. Ordinarily and in the normal course the judicial discipline would require the Bench to seek a reference of this matter by a Five Judges Bench. However, having regard to the background, as stated above, when the precise question was already referred to a Seven Judges Bench and was, however, not answered, we are of the view that the present question, set out above, should be referred to a Bench of Hon’ble Seven Judges.

11. Consequently and in the light of the above, place these matters before the Hon’ble the Chief Justice of India on the administrative side for appropriate orders.”

103. Considering the varying positions taken by various parties before this Hon’ble Court, we have divided the sides in two categories – the ones defending the judgment of the High Court and the ones aggrieved by the judgment of the Hon’ble Court.

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D.4. The parameters on which reference can be made to a larger bench

104. The parties defending the judgment of the High Court were at pains to assert that it would not be permissible for the other side to re- agitate the factual findings and facts based legal controversies already decided by a five-Judge bench in Azeez Basha [supra]. The parties defending the judgment of the High Court assert that the lis between the parties, as far as the minority status of the AMU is concerned, stands settled by the judgment of Azeez Basha [supra] and cannot be re-opened. As per the said set of submissions, this Court is merely supposed to decide the question of law - Question 3(a), which was formulated for an answer in T.M.A. Pai [supra] without deciding status of the AMU. At the same time, the said parties urged the Hon’ble Court to decide upon the validity of the amendments made to the AMU Act in 1981 which were under challenge before the High Court. The said parties further highlighted the manner in which the matter was referred by the bench of two judges in Anjuman [supra] directly to seven judges was incorrect as the said bench was bound by a judgment of five judges in Azeez Basha [supra].

105. On the other hand, the parties challenging the judgment of the High Court, pressed that correctness of the view expressed in the judgment of this Court in Azeez Basha [supra] has been specifically referred to a larger bench of seven judges and therefore, the said issue is moot before this bench. The said parties requested this Court to lay down the law Question 3(a), which was formulated for an answer in T.M.A. Pai [supra] and decide thereupon whether the approach adopted in the judgment of Azeez Basha [supra] was correct or not. At the same time, the said parties urged the Hon’ble Court not to decide upon the validity of the amendments made to the AMU Act in 1981 which were under challenge before the High Court and other decisions of the AMU authorities made in 2005 and leave the same to be decided by a regular bench.

106. At first, it is important to clarify the issue raised by the parties with regard to the reference order in Writ Petition (Civil) Nos. 54-57 of 1981 in Anjuman-e-Rahmania & Ors. v. Distt. Inspector of School & Ors. The said bench of two Hon’ble Judges [without comprising of the Hon’ble Chief Justice of India] referred the judgement of five Hon’ble Judges in Azeez Basha [supra], directly to a bench of

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seven Hon’ble Judges. The reason that the Court in Anjuman-e- Rahmania & Ors [supra] provides is that as per the judgement in Azeez Basha [supra], if after the establishment of an institution, the institution is registered as a society, its status as a minority institution changes. It has been pointed out that the AMU and the decision in Azeez Basha [supra], had nothing to do with a society or Societies Registration Act as the AMU is governed by way of a standalone legislation. The other reason the Court in Anjuman [supra] cites for making a reference is the criticism of the judgement by jurists like Mr. Seervai. It has been argued that while opinions of jurists hold persuasive value, the same cannot be a ground for making reference to a larger bench. The reference order in Anjuman [supra] does not point towards a future or previous judgement of equal or larger strength from Azeez Basha [supra], being contrary to the judgement in Azeez Basha [supra]. In effect, a Bench of two hon’ble Judges has directly referred to the correctness of a decision rendered by five Hon’ble Judges to seven Hon’ble Judges, without the presence of a Chief Justice despite being prima facie bound by the opinion of the larger Bench.

107. A similar situation arose in relation to the judgment of this Court in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 Supp (2) SCR 496. In the said case, which concerned the powers of excommunication of the head of Dawoodi Bohra community, a five-Judge Bench of this Court, ruled by a majority of 4:1, that the Bombay Prevention of Excommunication Act (Act 42 of 1949) was ultra vires the Constitution as it violated Article 26(b) of the Constitution and was not saved by Article 25(2).

108. Decades later, on 26-2-1986, a fresh petition was filed seeking reconsideration and overruling of the decision of this Court in Sardar Syedna [supra] and for issuing a writ of mandamus directing the State of Maharashtra to give effect to the provisions of the Bombay Prevention of Excommunication Act, 1949.

109. The said matter came up for hearing before a two-Judge Bench of this Court which on 25-8-1986 directed “rule nisi” to be issued. On 18-3-1994 a two-Judge Bench directed the matter to be listed directly before a seven-Judge Bench for hearing. On 20-7-1994 the matter did come up before a seven-Judge Bench which adjourned the hearing awaiting the decision in WP No. 317 of 1993 [T.M.A. Pai (supra)].

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110. On 26-7-2004 IA No. 4 was filed on behalf of Respondent 2 seeking a direction that the matter be listed before a Division Bench of two Judges. Implicitly, the application sought a direction for non-listing before a Bench of seven Judges and rather the matter being listed for hearing before a Bench of two or three Judges as is the normal practice of this Court. In the contents of the application reliance was placed on the Constitution Bench decisions of this Court in Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha, (2001) 4 SCC 448 followed in four subsequent Constitution Bench decisions namely Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1; Chandra Prakash v. State of U.P., (2002) 4 SCC 234; Vishweshwaraiah Iron & Steel Ltd. v. Abdul Gani, (2002) 10 SCC 437 and Arya Samaj Education Trust v. Director of Education, (2004) 8 SCC 30.

111. The matter was ultimately placed before a bench of five Hon’ble Judges in order to decide that whether the course adopted by the two judge bench, doubting the correctness of a decision rendered by five Hon’ble Judges, was correct. While examining the issue, this Court highlighted the approaches available to the Court in a decision reported in Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr, (2005) 2 SCC 673.

112. On the question of reference, the Court held that when a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. A Bench of lesser quorum has only two options : a. invite the attention of the Chief Justice and request for the matter being placed for hearing before an appropriate bench or; b. place the matter before a Bench of coequal strength which pronounced the decision laying down the law the correctness of which is doubted. The only exception to the above said rule is the discretion of the Chief Justice in whom vests the power of framing the roster.

113. In extremely rare cases, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum needs correction or reconsideration, then by way of an exception and for reasons given by it, it may proceed to hear the case and examine the correctness

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of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. After discussing the said legal position, this Court in Central Board of Dawoodi Bohra Community [supra], crystallised the law as under : “12. Having carefully considered the submissions made by the learned senior counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms :- (1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. (2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted. (3) The above rules are subject to two exceptions : (i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench

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itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh and Ors. and Hansoli Devi and Ors. (supra)” In understanding the correctness of the reference in Anjuman [supra], the said finding in Central Board of Dawoodi Bohra Community and Anr. [supra] is crucial.

114. Further, it has been held by this Court that reference to a larger bench cannot be merely made for the asking or even because another view appears to be a possible view. It in Govt. of A.P. v. B. Satyanarayana Rao, (2000) 4 SCC 262, it was held as under : “8. Learned counsel for the respondent attempted to convince us that the decision in the case of State of A.P. v. V. Sadanandam [1989 Supp (1) SCC 574 : 1989 SCC (L&S) 511 : (1989) 11 ATC 391] has to be ignored on the principle of per incuriam as certain relevant provisions of the Rules were not considered in the said case, and in any case this case requires to be referred to a larger Bench of three Judges. The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue. This is not the case here. In State of A.P. v. V. Sadanandam [1989 Supp (1) SCC 574 : 1989 SCC (L&S) 511 : (1989) 11 ATC 391] the controversy was exactly the same as it is here and this Court after considering para 5 of the Presidential Order of 1975 held that the Government has power to fill a vacancy in a zone by transfer. We, therefore, find that the rule of per incuriam cannot be invoked in the present case. Moreover, a case cannot be referred to a larger Bench on mere asking

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of a party. A decision by two Judges has a binding effect on another coordinate Bench of two Judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases to laying down a correct law. We, therefore, reject the arguments of learned counsel for the respondents.”

115. In Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly (2020) 2 SCC 595, it was held as under : “157. There is no doubt that the requirements under Article 145(3) of the Constitution have never been dealt with extensively and, more often than not, have received mere lip service, wherein this Court has found existence of case laws which have already dealt with the proposition involved, and have rejected such references. Normatively, this trend requires consideration in appropriate cases, to ensure that unmeritorious references do not unnecessarily consume precious judicial time in the Supreme Court.

158. In any case, we feel that there is a requirement to provide a preliminary analysis with respect to the interpretation of this provision. In this context, we need to keep in mind two important phrases occurring in Article 145(3) of the Constitution, which are, “substantial question of law” and “interpretation of the Constitution”. By reading the aforesaid provision, two conditions can be culled out before a reference is made: (i) The Court is satisfied that the case involves a substantial question of law as to the interpretation of this Constitution; (ii) The determination of which is necessary for the disposal of the case.

160. Any question of law of general importance arising incidentally, or any ancillary question of law having no significance to the final outcome, cannot be considered as a substantial question of law. The existence of substantial question of law does not weigh on the stakes involved in the case, rather, it

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depends on the impact the question of law will have on the final determination. If the questions having a determining effect on the final outcome have already been decided by a conclusive authority, then such questions cannot be called as “substantial questions of law”. In any case, no substantial question of law exists in the present matter, which needs reference to a larger Bench. The cardinal need is to achieve a judicial balance between the crucial obligation to render justice and the compelling necessity of avoiding prolongation of any lis.”

117. In view of the above, the approach adopted in the reference order in Anjuman [supra] was not wholly appropriate. However, considering the fact that the present reference was made by a separate three judge bench [which consisted of the then Hon’ble Chief Justice], it would be apposite to not be whittled down by the error that may have crept in Anjuman [supra] reference. As far the scope of the present proceedings is concerned, the Court must adopt a sustainable and consistent approach. In this regard, it is clear that this Court needs to provide a clear understanding of the overlapping and intersecting reference orders mentioned above.

118. The expanse and the width of the proceedings before a larger cannot be whittled down by statute like reading of the reference order(s). Order VI Rule 2 of the Supreme Court Rules, 2013 reads as under:

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“ORDER VI CONSTITUTION OF DIVISION COURTS AND POWERS OF A SINGLE JUDGE

2. Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the hearing of it.”

119. The terms “any cause” and “other proceedings” are of a very wide import and the power of the Chief Justice of India, with regard to references to larger benches has also been judicially re-iterated by numerous constitution benches. A bench of nine Hon’ble Judges in Kantaru Rajeevaru (Right to Religion, In re-9 J.) (2) v. Indian Young Lawyers Association, (2020) 9 SCC 121, has held as under : “27. No matter is beyond the jurisdiction of a superior court of record unless it is expressly shown to be so, under the provisions of the Constitution. In the absence of any express provision in the Constitution, this Court being a superior court of record has jurisdiction in every matter and if there is any doubt, the Court has power to determine its jurisdiction [Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 406] . It is useful to reproduce from Halsbury’s Laws of England, 4th Edn., Vol. 10, Para 713, relied upon in the aforementioned judgments, which states as follows: “713. … Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.” Undoubtedly there is no bar on the exercise of jurisdiction for referring questions of law in a pending review petition. Therefore, the reference cannot be said to be vitiated for lack of jurisdiction. This Court has acted well within its power in making the reference.”

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