Aligarh Muslim University v. Naresh Agarwal & Ors.

Aligarh Muslim University v. Naresh Agarwal & Ors.

D.5. A holistic approach

120. It is undoubtedly true that the 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. Further it is correct that Court is supposed to decide the question of law - Question 3(a), which was formulated for an answer in T.M.A. Pai [supra].

121. The status of AMU is in question due to the amendments made to the AMU Act in 1981 and the decisions of the AMU authorities in 2005. The said changes, especially the legislative changes, have taken place after the judgment in Azeez Basha [supra], and therefore, it is imperative that this Court decides the questions arising therefrom. The validity of the amendments made to the AMU Act in 1981 and decisions of the AMU authorities made in 2005 may be left to be decided by a regular bench.

122. This Court shall therefore decide the Question 3(a), which was formulated for an answer in T.M.A. Pai [supra]. A decision on the said question would naturally have an impact on the correctness, or lack thereof, on the judgment of Azeez Basha [supra].

123. Once the correctness of the judgment in Azeez Basha [supra], is under scanner and the Question 3(a) has been decided, the regular bench may decide the status of the AMU especially with regard to the question whether it was “established” by the minority community or not, would have to be adjudicated. The decision on the said question, would lay down the parameters of scope and extent to which the Parliament could have amended the AMU Act. Once the fate of the 1981 amendments to the AMU Act is decided, the Court would adjudicate upon the validity of actions of the AMU authorities in 2005.

124. In light of the above, despite the strong contest with regard to the correctness of Anjuman [supra], this bench would be taking a holistic approach to the present reference in deciding the questions present before it.

E. Issues

125. In light of the above, the following issues would be decided by the present reference :

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i. Whether the bench of two judges in Writ Petition No.54-51 of 1981 titled Anjuman-e-Rehmania & Ors v. Distt. Inspector of School & Ors. could have referred to the matter to a bench of seven Hon’ble Judges directly, without the Hon’ble Chief Justice of India, being a part of the bench? [already decided above] ii. Whether the “establishment” of an institution by the minority is necessary for the said minority to claim right of administration? To put it different, is “establish” and “administer” used disjunctively or conjunctively in Article 30 of the Constitution? iii. What is the meaning of the term “establish” in Article 30 of the Constitution and what are the real positive indicia for determining the question of establishment of an institution? iv. What is the true meaning and purport of the judgment in Azeez Basha [supra]? v. What must be the approach of the court in balancing the conflicting narratives of history presented before it in such cases? vi. What was the legislative scenario governing the Universities in India prior to the University Grants Commission Act, 1956 and how does the same impact the judicial enquiry in the present matter? vii. Whether the Legislature using the terms “establish” and/ or “incorporate” in the Preamble of a legislation would be determinative of the question of establishment? viii. What is the impact of the Constitution coming into force and the subsequent legislative amendments made to the AMU Act on the present proceedings? ix. Whether the presence of members of the minority community in the governance of the institution, without any necessary legal requirement for the same, would impact the question of the institution falling under Article 30? x. Whether Article 30 exists to protect institutions from “majoritarianism by default” approach? xi. Whether the UGC Act, 1956 and the judgement in Yashpal [supra] impacts on the correctness of the judgment in Azeez Basha [supra]?

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xii. Whether the NCMEI Act, 2004 impacts on the correctness of the judgment in Azeez Basha [supra]?

126. The following issues and proceedings are however, left to be decided by a regular bench: i. Whether the AMU was “established” and “administered” by the minority community and therefore entitled to claim protection under Article 30? ii. Whether the 1981 amendment to the AMU Act, 1920, was an impermissible exercise of legislative power? iii. Whether the Central Educational Institutions (Reservation in Admissions) Act, 2006, would be applicable to the AMU? iv. The 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; v. The 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.

F. Whether establishment is necessary

127. The first question that needs to be answered is whether an institution needs to be “established” by the minority community in order to claim protection/rights under Article 30? In other words, is it possible for an institution to “acquire” the status of a minority institution without being established as one? While there has not been much contest on the aforesaid question, considering the fact that it has arisen before this Court on numerous occasions and further was one of the factors for the reference in Anjuman [supra], it would be appropriate that the same is settled for posterity.

128. The first judgment which may provide some assistance in this regard would be the landmark judgment in case of Re: Kerala Education Bill, 1957, 1959 SCR 995, rendered by a bench of seven judges wherein this Court deliberated on the prerequisites for invoking Article 30 for

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the first time. The Court considered the argument presented by the State’s counsel, which outlined three conditions necessary to avail the protections and privileges under Article 30(1): i. The presence of a minority community; ii. The initiation of the right to establish an educational institution by one or more members of that community ‘after the commencement of the Constitution’; iii. The establishment of the educational institution for the benefit of members of the minority community. During its examination of these arguments, the Court dismissed the notion that the institution must be established only after the commencement of the Constitution, affirming that institutions established prior to this could still claim such rights. Additionally, the Court clarified that admitting non-minorities into the institution would not alter its minority character.

129. Moreover, while discussing the matter, the Court observed that Article 30(1) confers two distinct rights upon minorities: the right to establish and to administer. This clarification by the Court does not negate the remaining arguments presented by the State, which assert that the establishment of an institution by the minority is essential to assert rights under Article 30. The relevant paragraph of the said judgment, which has been read by both sides in the present case, to further their respective arguments, deserves to be quoted in toto as under: “22. We now pass on to the main point canvassed before us, namely, what are the scope and ambit of the right conferred by Article 30(1). Before coming to grips with the main argument on this part of the case, we may deal with a minor point raised by learned counsel for the State of Kerala. He contends that there are three conditions which must be fulfilled before the protection and privileges of Article 30(1) may be claimed, namely, (1) there must be a minority community, (2) one or more of the members of that community should, after the commencement of the Constitution, seek to exercise the right to establish an educational institution of his or their choice, and (3) the educational institution must be established for the

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members of his or their own community. We have already determined, according to the test referred to above, that the Anglo-Indians, Christians and Muslims are minority communities in the State of Kerala. We do not think that the protection and privilege of Article 30(1) extend only to the educational institutions established after the date our Constitution came into operation or which may hereafter be established. On this hypothesis the educational institutions established by one or more members of any of these communities prior to the commencement of the Constitution would not be entitled to the benefits of Article 30(1). The fallacy of this argument becomes discernible as soon as we direct our attention to Article 19(1)(g) which, clearly enough, applies alike to a business, occupation or profession already started and carried on as to those that may be started and carried on after the commencement of the Constitution. There is no reason why the benefit of Article 30(1) should be limited only to educational institutions established after the commencement of the Constitution. The language employed in Article 30(1) is wide enough to cover both pre-Constitution and post-Constitution institutions. It must not be overlooked that Article 30(1) gives the minorities two rights, namely, (a) to establish, and (b) to administer, educational institutions of their choice. The second right clearly covers pre-Constitution schools just as Article 26 covers the right to maintain pre-Constitution religious institutions. As to the third condition mentioned above, the argument carried to its logical conclusion comes to this that if a single member of any other community is admitted into a school established for the members of a particular minority community, then the educational institution ceases to be an educational institution established by the particular minority community. The argument is sought to be reinforced by a reference to Article 29(2). It is said that an educational institution established by a minority community which does not seek any aid from the funds of the State need not admit a single scholar belonging to a community other than that for whose benefit it was established but that as soon as

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such an educational institution seeks and gets aid from the State coffers Article 29(2) will preclude it from denying admission to members of the other communities on grounds only of religion, race, caste, language or any of them and consequently it will cease to be an educational institution of the choice of the minority community which established it. This argument does not appear to us to be warranted by the language of the article itself. There is no such limitation in Article 30(1) and to accept this limitation will necessarily involve the addition of the words “for their own community” in the article which is ordinarily not permissible according to well established rules of interpretation. Nor is it reasonable to assume that the purpose of Article 29(2) was to deprive minority educational institutions of the aid they receive from the State. To say that an institution which receives aid on account of its being a minority educational institution must not refuse to admit any member of any other community only on the grounds therein mentioned and then to say that as soon as such institution admits such an outsider it will cease to be a minority institution is tantamount to saying that minority institutions will not, as minority institutions, be entitled to any aid. The real import of Article 29(2) and Article 30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. By admitting a non-member into it the minority institution does not shed its character and cease to be a minority institution. Indeed the object of conservation of the distinct language, script and culture of a minority may be better served by propagating the same amongst non-members of the particular minority community. In our opinion, it is not possible to read this condition into Article 30(1) of the Constitution.”

130. Thus, the judgement in Kerala Education Bill [supra] does not in any way, detract from the position that the factum of establishment by the minority community was a necessary pre-condition to claim rights/protection under Article 30. There was specific emphasis laid by both sides on the phrase ‘sprinkling of outsiders’ which shall be further discussed in a subsequent portion of the judgment.

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131. The subsequent judicial decisions and the evolving jurisprudence stemming from the rulings of this Court further solidify the legal position articulated above. Another significant judgment pertinent to the analysis of the rights conferred under Article 30, particularly addressing the issue at hand, is the verdict in State of Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417. Rendered by a bench of six Hon’ble Judges, this judgment emphasizes how the twin rights of “establishment” and “administration” are sequential in nature under Article 30(1). It elucidates that these rights are temporally distinct, with the act of establishment preceding the entitlement to administration. This interpretation is pivotal in comprehending Article 30(1) and underscores that the right to “administer” an institution arises subsequent to its “establishment” by the minority community. The pertinent excerpts from this judgment are cited below for reference: “8. Article 30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority’s choice. Establishment here means the bringing into being of an institution and it must be by a minority community. It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection.

9. The next part of the right relates to the administration of such institutions. Administration means “management of the affairs” of the institution. This management must be free of control so that the founders or their nominees can mould the institution as they think fit, and in accordance with their ideas of how the interests of the community in general and the institution in particular will be best served.

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No part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right.”

132. Therefore, the “administration” right is available to the minority community which establishes the institution [or ‘their nominees’] implying that “establishing” of institution by the minority is necessary. There has been considerable emphasis on part of the Appellants with regard to the use of the term “found” in the aforesaid paragraphs which shall be discussed in the subsequent part of the judgment.

133. Thereafter, the judgement in S.P. Mittal v. Union of India, (1983) 1 SCC 51 rendered by a bench of five Hon’ble Judges, albeit without much discussion on this specific issue, holds that the establishment of an institution by a linguistic or religious minority is necessary for claiming benefit under Article 30(1). The relevant paragraphs are quoted as under : “137. The impugned Act does not seek to curtail the rights of any section of citizens to conserve its own language, script or culture conferred by Article 29. In order to claim the benefit of Article 30(1) the community must show : (a) that it is a religious or linguistic minority, (b) that the institution was established by it. Without satisfying these two conditions it cannot claim the guaranteed rights to administer it.

138. In Re Kerala Education Bill, 1957 [AIR 1958 SC 956 : 1959 SCR 995 : 1959 SCJ 321] Article 30(1) of the Constitution which deals with the right of minorities to establish and administer educational institutions, came for consideration. The Kerala Education Bill, 1957, which had been passed by the Kerala Legislative Assembly was reserved by the Governor for consideration by the President. xxx

142. On an analysis of the two Articles, Article 29 and Article 30 and the three cases referred to above, it is evident that the impugned Act does not seek to curtail the right of any section of citizens to conserve its own language, script or culture conferred by Article 29. The benefit of

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Article 30(1) can be claimed by the community only on proving that it is a religious or linguistic minority and that the institution was established by it. In the view that we have taken that Auroville or the Society is not a religious denomination, Articles 29 and 30 would not be attracted and, therefore, the impugned Act cannot be held to be violative of Articles 29 and 30 of the Constitution.”

134. More recently, in the judgement in Dayanand Anglo Vedic (DAV) College Trust and Management Society v. State of Maharashtra, (2013) 4 SCC 14, a Society claimed to have minority status in the State of Maharashtra as it sought to encourage Hindi, which is a linguistic minority in the said State. While examining the question of law, the Court held that the establishment of an institution as a minority institution is necessary to claim rights under Article 30. The relevant portion of the said judgement is quoted as under: “29. Similarly, in S.P. Mittal v. Union of India [(1983) 1 SCC 51 : AIR 1983 SC 1], this Court held that in order to claim the benefit of Article 30, the community must firstly show and prove that it is a religious or linguistic minority; and secondly, that the institution has been established by such linguistic minority. xxx

34. After giving our anxious consideration to the matter and in the light of the law settled by this Court, we have no hesitation in holding that in order to claim minority/linguistic status for an institution in any State, the authorities must be satisfied firstly that the institution has been established by the persons who are minority in such State; and, secondly, the right of administration of the said minority linguistic institution is also vested in those persons who are minority in such State. The right conferred by Article 30 of the Constitution cannot be interpreted as if irrespective of the persons who established the institution in the State for the benefit of persons who are minority, any person, be it non-minority in other place, can administer and run such institution.”

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135. The aforementioned legal position illustrates that this Court has consistently embraced an approach which mandates the initial establishment of an institution as a minority institution by the minority community to assert minority status. This established legal principle has attained the status of stare decisis, which is a fundamental pillar of our legal framework.4 The doctrine of precedent serves to promote certainty, stability, and continuity within our legal system, particularly in matters concerning societal dynamics, religion, minority rights, and fundamental freedoms.

136. The undoubted reaffirmation of this position is palpable in subsequent judicial decisions, notably in the landmark case of TMA Pai [supra], wherein the Court refrained from providing a response to question 3(a) on the grounds that it did not warrant constitutional scrutiny by 11 Judges perhaps owing to the firmly established legal position. Apart from the fact that TMA Pai [supra] is binding upon us being a judgment delivered by a larger bench of this Court, neither of the parties have argued that a divergent view ought to be taken in the present case.

137. At this stage, another aspect of the matter may be noted. In the formalised education sector, the majority of educational institutions operating through private means are registered as societies under various Acts. This encompasses a significant number of secular/non- minority institutions established as such. Such institutions, whether aided or unaided, in contrast to minority institutions, whether aided or unaided, are subjected to a significantly higher degree of regulation by the State in various aspects, including curriculum, admissions, teacher appointments, and other factors. Consequently, it is evident that private entities administering minority institutions enjoy a notably higher degree of freedom from such regulation. Hence, there exists a pronounced inclination on the part of non-minority institutions to seek minority status.

138. In the backdrop of this clamour for minority status, if minority status is deemed attainable without necessitating the factum of establishment of an institution by the minority at its inception, it may result in a widespread proliferation of institutions claiming to

4 Sakshi v. Union of India (2004) 5 SCC 518; Milkfood Ltd. v. GMC Ice Cream Private Ltd. (2004) 7 SCC 288; Narinder Singh v. State of Punjab (2014) 6 SCC 466; Shah Faesal v. Union of India (2020) 4 SCC 1

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be minority institutions despite not being established as minority institutions. This could be easily achieved by merely amending the rules or Articles of Association of the society to create a semblance of minority control. If the prerequisite of initial establishment by a minority community is deemed dispensable for invoking protection under Article 30, it would result in a creation of minority institutions, in name only. On the said count as well, it is necessary to treat the criterion of establishment by the minority community, as essential to claim rights/protection under Article 30.

G. Meaning of “establishment” and the real positive indicia behind

G.1. The existing jurisprudence of this Court

139. The two sides have diverged significantly on the aspect of the meaning of the word “establish” occurring in Article 30. The parties challenging the judgment of the High Court and the correctness of the judgment in Azeez Basha [supra] have argued that the term “establish” cannot have a strict meaning to signify ‘to bring into existence’. They argue that the word has various other meanings such as ‘to ratify’, ‘to found’, ‘to confirm’, or ‘to settle’, as defined in numerous dictionaries or utilized in foreign legal contexts. They further argue that the narrow interpretation of ‘establish’ solely as ‘to bring into existence’ lacks justification as it neglects to analyze Article 30(1) within its context, i.e., the safeguarding of minority rights and nullifies the effect of words ‘of their choice’ in Article 30(1). It is further argued that the constrained interpretation of ‘establish’ is against the judgments in Very Rev. Mother Provincial [supra], which was endorsed by TMA Pai [supra] and argued for a broader interpretation to the term ‘establish’, implicitly overturning the narrow perspective of Azeez Basha [supra]. It was strenuously argued that the establishment of an educational institution can be ascertained from the ‘intention’ of the minority community “to found an institution” of their choice and “for the benefit of a minority community by a member of that community.”

140. The parties defending the judgment asserted that the meaning of the word “establish” under Article 30 has indeed been understood by this Court consistently to mean to bring into existence. They submit that judgment in Azeez Basha [supra] correctly understands the word “establish” in the common sense it connotes. They argue that any

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minority community seeking to claim rights under Article 30, needs to necessarily prove that an institution in question was actually, tangibly and manifestly brought into being by the minority. It was asserted that the right under Article 30 and the factum of “establishment” is not a function of the “intent” of the minority at the said time or the “choice” of the minority at the said time and is a pure question of fact. It was argued that question of “establishment” cannot be satisfied by some limited effort or actions on part of the minority rather it has to be established that the predominant character of the institution and the predominant efforts in establishing the institution was of the minority only. It was argued that to claim protection under Article 30(1) an institution/university should be predominantly established by the minority, for the minority and administered as a minority institution.

141. In understanding the meaning of the term “establish” occurring under Article 30, the judgment in the case of St. Stephens [supra] rendered by a bench of five Hon’ble Judges, is crucial. In the said case, the dispute arose due to the College, affiliated with the University of Delhi, had a practice of reserving a certain percentage of seats for Christian students in admissions. Furthermore, St Stephens had also formulated an admissions policy that was at variance with the admission policy of the University as a whole. The circulars issued by the University prescribing the admission schedule and procedure were not being followed in St Stephens on the ground that it was a minority educational institution which had the right to frame its own policy for admissions. Certain students challenged the admission policy of St. Stephens College for being divergent from the University policy. They also challenged the preference given by the college to Christian students. In response, the management of St Stephens retired that as a minority institution, it had the right to administer its own affairs, including the selection of students, to some extent. During the arguments, a question arose as to the status of the institution as a minority institution. The judgement points out towards what has been subsequently referred to as the ‘real positive indicia’ for any institution to claim to be an institution established by a minority. The relevant paragraphs of the said judgment are quoted as under: “28. There is by now, fairly abundant case law on the questions as to “minority”; the minority’s right to “establish”, and their right to “administer” educational institutions. These questions have arisen in regard to a variety of

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institutions all over the country. They have arisen in regard to Christians, Muslims and in regard to certain sects of Hindus and linguistic groups. The courts in certain cases have accepted without much scrutiny the version of the claimant that the institution in question was founded by a minority community while in some cases the courts have examined very minutely the proof of the establishment of the institution. It should be borne in mind that the words “establish” and “administer” used in Article 30(1) are to be read conjunctively. The right claimed by a minority community to administer the educational institution depends upon the proof of establishment of the institution. The proof of establishment of the institution, is thus a condition precedent for claiming the right to administer the institution. Prior to the commencement of the Constitution of India, there was no settled concept of Indian citizenship. This Court, however, did reiterate that the minority competent to claim the protection of Article 30(1) of the Constitution, and on that account the privilege of establishing and maintaining educational institutions of its choice, must be a minority of persons residing in India. They must have formed a well defined religious or linguistic minority. It does not envisage the rights of the foreign missionary or institution, however, laudable their objects might be. After the Constitution, the minority under Article 30 must necessarily mean those who form a distinct and identifiable group of citizens of India. Whether it is “old stuff” or “new product”, the object of the institute should be genuine, and not devious or dubious. There should be nexus between the means employed and the ends desired. As pointed out in A.P. Christians Educational Society case [(1986) 2 SCC 667 : (1986) 2 SCR 749] there must exist some positive index to enable the educational institution to be identified with religious or linguistic minorities. Article 30(1) is a protective measure only for the benefit of religious and linguistic minorities and it is essential, to make it absolutely clear that no ill-fit or camouflaged institution should get away with the constitutional protection. xxx

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Origin and Purpose of St. Stephen’s College

30. Surprisingly, the Delhi University in the pleading, has neither denied nor admitted the minority character of the College. But the counsel for the University have many things to contend which will be presently considered. Mr Gupta, counsel for the petitioner in T.C. No. 3 of 1980 has specifically urged that the College was established not by Indian residents, but by foreign Mission from Cambridge and therefore, it is not entitled to claim the benefit of Article 30(1). From the counter-affidavit filed by Dr J.H. Hala — the Principal of the College in W.P. Nos. 13213-14 of 1984 and from the publication of “The History of the College” the following facts and circumstances could be noted: The College was founded in 1881 as a Christian Missionary College by the Cambridge Mission in Delhi in collaboration with the Society for the Propagation of the Gospel [SPG] whose members were residents in India. The College was founded in order to impart Christian religious instruction and education based on Christian values to Christian students as well as others who may opt for the said education. The Cambridge Brotherhood with plans of establishing the Christian College in Delhi sent the Cambridge Mission whose members were: Rev. J.D. Murray, Rev. E. Bickarsteth, Rev. G.A. Lefroy, Rev. H.T. Blackett, Rev. H.C. Carlyon and Rev. S.S. Allnutt. Of the said members of the Cambridge Mission, Rev. Allnutt, Rev. Blackett and Rev. Lefroy teamed up with Rev. R.R. Winter of the SPG to establish the College. It will be seen that Cambridge Mission alone did not establish the College. The Cambridge Mission with the assistance of the members of the SPG who were residents in India established the College. The contention to the contrary urged by Mr Gupta, counsel for the petitioner in T.C. No. 3 of 1980 is, therefore, incorrect. The purpose of starting the College could be seen from the Report of 1878 to the Cambridge Brotherhood and it states “the students after leaving St. Stephen’s Mission School joined non-Christian Colleges and lost touch with Christian teachings … the case would be otherwise if we were

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able to send them from our school to a College, where the teachings would be given by Christian professors and be permeated with Christian ideas.” (F.F. Monk in A History of St. Stephen’s College, Delhi, Calcutta, 1935, p. 3). In October 1879 the Cambridge Committee expressed the desirability of imparting instruction also in secular subjects. “It was also felt that the influence of the missionaries would be greatly increased if they held classes in some secular subjects and did not conform their teachings to strict religious instruction”. (ibid p. 5) Building

31. Originally, the College building was housed in hired premises paid for by the SPG. A new building was eventually constructed by the Society for the Propagation of the Gospel wherein the foundation stone bore the following inscription: To the Glory of God And the Advancement of Sound Learning And Religious Education The new building of the College was eventually opened on December 8, 1881, by Rev. Allnutt. On the said building on the front of the porch, at the top of the parapet, a ‘cross’ in bas-relief was placed and immediately under the bracket the words “Ad Dei Gloriam” had been inscribed which have since been adopted as the College motto.

32. Today the new College building in the University campus has also a large ‘cross’ at the top of the main tower and in the front porch is inscribed the St. Stephen’s motto “Ad Dei Gloriam” to perpetuate and remind the students the motive and objective of the College, namely, “The Glory of God”.

33. There is also a chapel in the College campus where religious instruction in the Christian Gospel is imparted for religious assembly in the morning.

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34. It would thus appear that since its foundation in 1881, St. Stephen’s College has apparently maintained its Christian character and that would be evident from its very name, emblem, motto, the establishment of a chapel and its religious instruction in the Christian Gospel for religious assembly. These are beyond the pale of controversy. Constitution of the College

35. It is said that during the early part of the College history, it was managed by the Mission Council — a totally Christian body. Late in 1913 it was registered as a society and a constitution was formulated on November 6, 1913 which was adopted by the SPG Standing Committee and by the Cambridge Committee. The Constitution as it stands today again maintains the essential character of the College as a Christian College without compromising the right to administer it as an educational institution of its choice. The Constitution of the College consists of Memorandum of the Society and Rules. Clause 2 of Memorandum states that “the object is to prepare students of the College for University degrees and examinations and to offer instruction in doctrines of christianity which instruction must be in accordance with the teachings of the Church of North India”. Clause 4 sets out the original members of the Society who were mostly Christians. The composition of the Society also reflects its Christian character inasmuch as the Bishop of the Diocese of Delhi is the Chairman of the Society [Rule 1(a)]. Further, two persons appointed by the Bishop of the Diocese of Delhi, one of whom shall be a senior Presbyter of the Diocese, shall be members of the Society [Rule 1(b)]. One person to be appointed by the Church of North India Synodical Board of Higher Education shall also be a member of the Society [Rule 1(g)]. Similar is the position of a person to be appointed by the Diocesan Board of Education [Rule 1(h)]. Two persons to be appointed by the Executive Committee of the Diocese, one of whom shall be a Presbyter, shall also be members of the Society [Rule 1(i)]. The composition of the Society, therefore, indicates the presence of a large number of Christian members of the Church of North India on it.

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Management

36. The management of the College is being looked after by the Supreme Council and the Governing Body. The Supreme Council consists of some members of the Society, all of whom must be members of the Church of North India or some other church in communion therewith, or any other duly constituted Christian church. They are: (a) The Bishop of the Diocese of Delhi, who shall be the Chairman. (b) Two persons appointed by the Bishop of the Diocese [under Rule 1(b)]. (c) The person appointed by the Church of North India Synodical Board of Higher Education [under Rule 1(g)]. (d) The person appointed by the Diocese Board of Education [under Rule 1(h)]. (e) The Principal of the College (Member- Secretary).”

37. Rule 3 of the Society provides that the Supreme Council mostly looks after the religious and moral instruction to students and matters affecting the religious character of the College. The Principal of the College is the Member- Secretary of the Supreme Council. Rule 4 provides that the Principal shall be a member of the Church of North India or of a Church that is in communion with the Church of India. The Vice-Principal shall be appointed annually by the Principal. He shall also be a member of the Church of North India or of some other church in communion therewith.

38. True, Rule 5 provides that the Supreme Council of the College has no jurisdiction over the administration of the College and it shall be looked after by the Governing Body. But the Governing Body is not a secular body as argued by learned counsel for the University. Rule 6 provides that the Chairman of the Society (Bishop of Diocese of Delhi) shall be the Chairman of the

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Governing Body. The members of the Society as set out in categories, (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l) and (m) of clause (1) shall be the members of the Governing Body. The Chairman and the Vice-Chairman of the Governing Body shall be the members of the Church of North India. Out of categories (a) and (m) in clause (1), only category (k) may be a member of the teaching staff who may not be a Christian. Two members referred under category (l) to be appointed by the Delhi University may not be Christian and likewise, under the category (n) may not be Christian. But the remaining members shall be Christians. Out of thirteen categories, only three categories might be non-Christians and therefore, it makes little difference in the Christian character of the Governing Body of the College. A comparison of Statute 30(c) of the Delhi University at pages 127-28 of Calendar Volume I will show the difference between the Governing Body of other colleges under the Statute as contrasted with St. Stephen’s College. Principal

39. It is again significant to note the difference between the method of appointment of the Principal of St. Stephen’s College and all other colleges. The Principal of St. Stephen’s College is appointed by the Supreme Council and he must be a Christian belonging to Church of North India (Rule 4). He will exercise control, and maintain discipline and regulation of the College. He will be in complete charge of the admissions in the College assisted by admission committee. But the Principals of other affiliated colleges under Ordinance XVIII clause 7(2) [page 335 Calendar Volume I] are to be appointed by the Governing Body of the College.

40. The immovable property of the College shall be vested in the Indian Church trustees, who shall merely act as Trustees, and shall have no power of management whatsoever. All other property connected with the College shall be vested in the Society (Rule 21).”

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142. During the examination of the particular college under consideration, the Court observes that the institution was established by missionaries with the primary purpose of providing Christian religious education - as per paragraph 30. It also observes that the assets and property of the college are legally owned by the church - as described in paragraph 40. The Court also notes that at the time of its inception, the college was under the exclusive management of a body composed entirely of Christians - as outlined in paragraph 35. The Court notices that the rules of the institution’s society stipulate that all members must be appointed by Christian organizations - as mentioned in paragraph 35. The Court lays specific emphasis on the fact that the administration of the college is also entrusted to a body comprised entirely of Christians - as indicated in paragraph 36. The Court notes that the Principal of the college holds an ex-officio position and is required to be a Christian - according to paragraph 39. As far as historical factors are concerned, the Court notes that the construction of the college building was commissioned by a minority community and funded by them - as detailed in paragraphs 31-34. In governance, the Court notes that both the Supreme Council and the Governing Body of the college are predominantly constituted of Christians, with 10 out of 13 members belonging to this religious group - as per paragraphs 37-38.

143. As for St. Stephens [supra], both sides have placed considerable reliance on the aforesaid paragraphs to further their respective cases and see the facts surrounding the establishment of AMU from a particular perspective. In any event, from the said analyses in St. Stephens [supra], it is clear that the question of establishment is not dependent on a singular factor, rather is a culmination of various aspects surrounding the facts leading up to the establishment of the institution and the form of the institution itself. The factors that the Court found relevant in St. Stephens [supra] form jurisprudential basis of the factual enquiry that ought to be carried out by the Court in such matters. However, the said enquiry cannot be straight-jacketed in all cases and the Court ought to suitably modulate the approach suiting the needs of the institution in question and the nature of the institution. In simple words, a school or a college or a University may require a significant difference in approach while adjudicating the question of “establishment” by the minority community.

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144. The judgment in A.P. Christians Medical Educational Society v. Government of Andhra Pradesh, (1986) 2 SCC 667 is another specific case wherein the Court interrogated the essentials of an institution claiming to be a minority institution. The Court guarded against false schemes in order to claim protection under Article 30. The relevant paragraphs of the said judgement are quoted as under: “A brazen and bizarre exploitation of the naive and foolish, eager and ready-to-be-duped, aspirants for admission to professional collegiate courses, behind the smoke-screen of the right of the minorities to establish and administer educational institutions of their choice — is what this case is about. A society styling itself as the ‘Andhra Pradesh Christian Medical Educational Society’ was registered on August 31, 1984. The first of the objectives mentioned in the memorandum of association of the society was, “to establish, manage and maintain educational and other institutions and impart education and training at all stages, primary, secondary, collegiate, post- graduate and doctoral, as a Christian Minorities’ Educational Institution”. Another object was “to promote, establish, manage and maintain Medical colleges, Engineering colleges. Pharmacy colleges. Commerce, Literature, Arts and Sciences and Management colleges and colleges in other subjects and to promote allied activities for diffusion of useful knowledge and training.” Other objects were also mentioned in the memorandum of association. All that is necessary to mention here is that none of the objects, apart from the first extracted object, had anything to do with any minority. Even the first mentioned object did not specify or elucidate what was meant by the statement that education and training at all stages was proposed to be imparted in the institutions of that society “as Christian Minorities’ Educational Institution”. Apparently the words “as a Christian Minorities’ Educational Institutions” were added in order to enable the society

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to claim the rights guaranteed by Article 30(1) of the Constitution and for no other purpose. This will become clearer and clearer as we narrate further facts. xxx

7. Even while narrating the facts, we think, we have said enough to justify a refusal by us to exercise our discretionary jurisdiction under Article 136 of the Constitution. We do not have any doubt that the claim of the petitioner to start a minority educational institution was no more than the merest pretence. Except the words, “as the Christian Minorities’ Educational Institutions” occurring in one of the objects of the society, as mentioned in the memorandum of association, there is nothing whatever to justify the claim of the society that the institutions proposed to be started by it were ‘minority educational institutions’. Every letter written by the society whether to the Central Government, the State Government or the University contained false and misleading statements. As we had already mentioned the petitioner had the temerity to admit or pretend to admit students in the first year MBBS course without any permission being granted by the government for the starting of the medical college and without any affiliation being granted by the University. The society did this despite the strong protest voiced by the University and the several warnings issued by the University. The society acted in defiance of the University and the government, in disregard of the provisions of the Andhra Pradesh Education Act, the Osmania University Act and the regulations of the Osmania University and with total indifference to the interest and welfare of the students. The society has played havoc with the careers of several score students and jeopardised their future irretrievably. Obviously the so-called establishment of a medical college was in the nature of a financial adventure for the so-called society and its office bearers, but an educational misadventure for the students. Many, many conditions had to be fulfilled before affiliation could be granted by the University. Yet the society launched into the venture without fulfilling a single condition beyond appointing someone as Principal.

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No one could have imagined that a medical college could function without a teaching hospital, without the necessary scientific equipment, without the necessary staff, without the necessary buildings and without the necessary funds. Yet that is what the society did or pretended to do. We do not have any doubt that the society and the so-called institutions were started as business ventures with a view to make money from gullible individuals anxious to obtain admission to professional colleges. It was nothing but a daring imposture and sculduggery. By no stretch of imagination, can we confer on it the status and dignity of a minority institution.

8. It was seriously contended before us that any minority, even a single individual belonging to a minority, could found a minority institution and had the right so to do under the Constitution and neither the government nor the University could deny the society’s right to establish a minority institution, at the very threshold as it were, howsoever, they may impose regulatory measures in the interests of uniformity, efficiency and excellence of education. The fallacy of the argument insofar as the instant case is concerned lies in thinking that neither the government nor the University has the right to go behind the claim that the institution is a minority institution and to investigate and satisfy itself whether the claim is well- founded or ill-founded. The government, the University and ultimately the court have the undoubted right to pierce the ‘minority veil’ — with due apologies to the corporate lawyers — and discover whether there is lurking behind it no minority at all and in any case, no minority institution. The object of Article 30(1) is not to allow bogies to be raised by pretenders but to give the minorities ‘a sense of security and a feeling of confidence’ not merely by guaranteeing the right to profess, practise and propagate religion to religious minorities and the right to conserve their language, script and culture to linguistic minorities, but also to enable all minorities, religious or linguistic, to establish and administer educational institutions of their choice.

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These institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms. They may be institutions intended to give the children of the minorities the best general and professional education, to make them complete men and women of the country and to enable them to go out into the world fully prepared and equipped. They may be institutions where special provision is made to the advantage and for the advancement of the minority children. They may be institutions where the parents of the children of the minority community may expect that education in accordance with the basic tenets of their religion would be imparted by or under the guidance of teachers, learned and steeped in the faith. They may be institutions where the parents expect their children to grow in a pervasive atmosphere which is in harmony with their religion or conducive to the pursuit of it. What is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities. We have already said that in the present case apart from the half a dozen words ‘as a Christian minorities’ institution’ occurring in one of the objects recited in the memorandum of association, there is nothing whatever, in the memorandum or the articles of association or in the actions of the society to indicate that the institution was intended to be a minority educational institution. As already found by us these half a dozen words were introduced merely to found a claim on Article 30(1). They were a smoke- screen.”

145. The jurisprudence in St. Stephens [supra] and A.P. Christians Medical Educational Society [supra] requires a real positive indicia for an institution to claim to have been established by a minority community. Therefore, it is permissible to ‘pierce the veil’ in order ascertain the real character of the institution and claims of minority status cannot be bestowed on illusionary claims. This ruling serves as a cautionary reminder that granting the right to administer educational institutions without the prior establishment by minorities could result in unwanted constitutional outcomes. The concerns expressed by

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the Court could materialize, potentially resulting in a widespread “takeover” of institutions by groups claiming minority status through creative interpretations to seek protection under Article 29 and 30.

146. After delving in to the finer details of the vexed constitutional question and the meaning of the term “establish”, it would serve a salutary purpose if one analyses the approach adopted by this Court as and when any institution approached it. In the case of Rev. Father Proost v. State of Bihar, (1969) 2 SCR 73, with a bench consisting of five Judges, the Court acknowledges that the institution in question was established by the Catholic minority before extending the safeguards provided under Article 30. The relevant portion of the judgment is as under: “2. St. Xavier’s College was established by the Jesuits of Ranchi. It was affiliated to Patna University in 1944. The management of the College vests in a Governing Body consisting of 11 members. They are: “(i) The Superior Regular of Ranchi Jesuit Mission — President exofficio. (ii-v) Four Counsellors to the Superior Regular to be nominated by the Jesuit Mission authorities. (vi) The Principal of the College — Vice-President and Secretary ex-officio. (vii) One representative of the teaching staff of the College elected by the members of the staff. (viii) One representative of the Patna University. (ix-xi) Three persons to represent Hindu, Muslim and Aboriginal interests.” The terms of service of religious staff are determined by the Jesuit Mission Authorities, but those of the members of the lay staff including their appointment are determined by the Governing Body. All appointments to the teaching staff, both religious and lay are reported to the Syndicate of the Patna University. The object of founding the College inter alia is “to give Catholic youth a full course of moral and liberal education, by imparting a thorough religious

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instruction and by maintaining a Catholic atmosphere in the institution”. The college is, however, open to all non-catholic students. All non-catholic students receive a course of moral science.

2. The College was thus founded by a Christian minority and the petitioners claim they have a right to administer it a constitutional right guaranteed to minorities by Article 30. xxx

12. We are, therefore, quite clear that St. Xavier’s College was founded by a Catholic Minority Community based on religion and that this educational institution has the protection of Article 30(1) the Constitution. For the same reason it is exempted under Section 48-B of the Act. The petition will therefore be allowed with this declaration but in the circumstances of the case we make no order about costs.”

147. In Right Rev. Bishop S.K. Patro v. State of Bihar, (1969) 1 SCC 863 [bench of five Judges], a challenge was laid to an order of the Deputy Director of Education which imposed an obligation on the school to constitute a managing committee to control, administer and manage its affairs. During the discussion, the Court assessed various factors and evidence to ascertain the institution’s status as a minority establishment, highlighting the significance of the funding source during its inception. The relevant paragraphs are quoted as under : “8. It was the case of the State and the parties intervening in the writ petition before the High Court that the school was established by the Church Missionary Society, London, which they claimed was a Corporation with an alien domicile and “such a society was not a minority based on religion or language” within the meaning of Article 30 of the Constitution. On behalf of the appellants in the appeal and the petitioners in the two writ petitions filed in this Court, it is claimed that the School was started in 1854 by the local Christian residents of Bhagalpur. They concede that the Church Missionary Society of London did extend financial aid in the establishment of the School, but they contend that on that account, the School did not cease

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to be an educational institution established by a religious minority in India.

9. There is on the record important evidence about establishment in 1854 of the Lower Primary School at Bhagalpur. It is unfortunate that sufficient attention was not directed to that part of the evidence in the High Court. The “Record Book” of the Church Missionary Association at Bhagalpur which is Annexure ‘D’ to Writ Petition No. 430 of 1968 furnishes evidence of vital importance having a bearing on the establishment of the School. It contains copies of letters written from Bhagalpur and minutes of meetings held and the resolutions passed by the Local Council of Bhagalpur. On June 1, 1948, Rev. Vaux informed the Calcutta Corresponding Committee of the Church Missionary Society by a letter that if the Calcutta Society were to establish a School at Champanagar, “local assistance shall not be wanting to the extent of 1000 or 1200 rupees a year, besides providing a school house and residence for the master”, and that “At first, for breaking up the fallow ground and setting the school a going the presence of a Missionary of tact and experience may be necessary”. On June 26, 1848, Rev. Vaux by another letter informed the Calcutta Corresponding Committee that a special service was held in the Church on June 22, 1848 and thereafter on Friday, June 23, 1848, a meeting was held and contributions were invited from persons present including Indian residents, that monthly subscriptions of Rs 202 for the “salary of masters” and other expenses were promised, and that an amount of Rs 1647 was donated for building the school and residence for the master; that the general impression made was so favourable to the cause that he felt justified in assuring the Calcutta Committee that the local Committee were in a position to guarantee certain requisites for making a commencement such as payment of the salary of the School Master and Mistress and the building of a house for their accommodation which may afterwards be enlarged so as to form a suitable residence for a Mission.

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10. By letter, dated July 10, 1848, the Secretary, Calcutta Corresponding Committee, informed Rev. Vaux that they were looking out for a prominent person to commence missionary operations by opening a School “which is indeed a common way of beginning a Mission.” In a letter, dated December 22, 1848, written from Bhagalpur it was stated: “The Society will provide for the Missionary’s salary and trust that local funds will provide a residence for him of a suitable kind. All other Mission requirements, such as school teachers etc. should be left to be provided on the spot.”

11. Then there are minutes of the resolutions passed at a meeting held on October 24, 1849, by the Parent Committee and another resolution, dated October 25, 1851, of the Local Committee, to raise funds, and to determine upon disbursements with the advice of the Missionary to promote the objects of the Mission. In the minutes of the meeting, dated October 25, 1851, it is recorded that a statement of account of receipts and disbursements up to September 30, 1851, including expenses of a boys’ school and salary of masters, “hire of school rooms and furniture” and expenses of a girls’ school “including cost of working materials up to date” was submitted. xxx

15. It appears from this correspondence and the resolutions and the discussions at the meetings that a permanent home for the Boys’ School was set up in 1854 on property acquired by local Christians and in buildings erected from funds collected by them. The institution along with the land on which it was built and the balance of money from the local fund were handed over to the Church Missionary Society in 1856. It is also true that substantial assistance was obtained from the Church Missionary Society, London. But on that account, it cannot be said that the School was not established by the local Christians with their own efforts and was not an educational institution established by a minority.”

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148. Thus, this Court affirmed that the protection afforded by Article 30 extends to institutions established before the Constitution following the dictum in Kerala Education Bill [supra]. The Court scrutinized why the institution in question merits recognition as a minority institution, with particular emphasis on examining whether the minority was predominantly involved in its establishment.

149. In D.A.V. College v. State of Punjab, (1971) 2 SCC 269, the Court expressly notes that the institution in question was established by a community which was minority within the confines of the State of Punjab. Similarly, in Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717, J. H.R. Khanna’s opinion notes that the college in question was established, at the time of its inception, by the minority. Similarly, in Gandhi Faiz-e-am-College v. University of Agra, (1975) 2 SCC 283, the Court, while extending rights under Article 30, notes that the institution claiming protection was expressly established by the minority.

150. The said approach has been consistently adopted over the past five decades after the judgment in Azeez Basha [supra] [See Rt. Rev. Msgr. Mark Netto v. State of Kerala, (1979) 1 SCC 23; Lily Kurian v. Lewina, (1979) 2 SCC 124; Christian Medical College Hospital Employees’ Union v. Christian Medical College Vellore Association, (1987) 4 SCC 691; Al-Karim Educational Trust v. State of Bihar, (1996) 8 SCC 330; Yunus Ali Sha v. Mohamed Abdul Kalam, (1999) 3 SCC 676; Society of St. Joseph’s College v. Union of India, (2002) 1 SCC 273; Secy., Malankara Syrian Catholic College v. T. Jose, (2007) 1 SCC 386; Satimbla Sharma v. St Paul’s Senior Secondary School, (2011) 13 SCC 760].

151. In P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537, seven Hon’ble Judges, were called upon to interpret the judgment in TMA Pai [supra]. While the said inquiry primarily focused on the scope of regulations viz aided/unaided minority institutions, nevertheless, the bench reaffirmed the observations that the determination of whether an institution qualifies as a minority institution, and its character at the time of establishment, should be evaluated against the criterion that it must be envisaged primarily as a minority institution placing reliance on Kerala Education Bill [supra].

152. Through a survey of the case law cited above, it can be seen that the Court has adopted a varied approach is determining the criteria

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for discerning the true character of an institution at the time of its establishment. In order to arrive at a finding that an institution was established by the minority for the purposes of Article 30, it has been held that such institution must principally embody a minority character and be instituted to safeguard the minority language, culture, or religion. In some situations, there has also been a specific emphasis on the source of funding being from the minority community or the fact that the management of lands should eventually vest with the minority. Further, the presence of some non-minorities in administration has not been held detrimental if the actual authority rests with the minority community.

G.2 The founding moment or the genesis argument

153. The Appellants have argued that the word “establish” is to be interpreted broadly and would include the parallels drawn with generic phrases such as “genesis of the institution” or the “founding moment of the institution”. With regard to the claim that the word “establish” and “found” can be used interchangeably thereby according it with a wider and more generalised meaning, it can be noticed that the Court as a matter lexical variation may have used the terms interchangeably, however, the constitutional meaning of the term cannot be diluted on that count. This is because the word “establish” as used in the Constitution carries a specific meaning. The meaning of the terms occurring in the Constitution ought to have a specific meaning especially when the same occurs under Part III of the Constitution.

154. This Court has consistently held that when the words of a provision are clear and there exists no ambiguity, the same ought to be given their plain and simple meaning. The assertion on part of the Appellant that “establish” ought to be given a wider meaning owing to the context in which it occurs is also unmerited on the same count. It must be noted that the right under Article 30 is an important and exceptional right/protection extended by the Constitution to a specific class, for a specific purpose, in a particular circumstance. The extension of the same over and beyond what the Constitution contemplates would dilute the constitutional guarantee itself and would be counter-productive to the interests of the minorities themselves.

155. As held by this Court, the objective of Article 30 is not to afford a false sense of security and confidence to pretenders posing as minorities. It was for this reason that this Court in

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A.P. Christian Medical Educational Society [supra] cautioned against what it referred to as masked phantoms. It is imperative to interpret the Constitution in a manner that ensures the sacred protection under Article 30 is extended only to institutions genuinely representing the minority community, in substance and not merely in appearance.

156. From the above it is amply clear that the meaning of the word “establish” under Article 30 has indeed been understood by this Court consistently to mean ‘to bring into existence’. The meaning of “establish” in Black’s Law Dictionary 6th Edn. is as under: “xxx (3) To found, to create, to regulate; as: “Congress shall have power to establish post-roads and post- offices.” (4) To found, recognize, confirm, or admit; as: “Congress shall make no law respecting an establishment of religion.” (5) To create, to ratify, or confirm; as: “We, the people,” etc., “do ordain and establish this constitution.” To settle or fix firmly; place on a permanent footing; found; create; put beyond doubt or dispute; prove; convince. To bring into being; to build; to constitute; to create; to erect; to form, to found; to found and regulate, to institute, to locate; to make; to model; to organize; to originate; to prepare; to set up.”

157. Similarly, the Webster’s Third New International Dictionary defines “establish” as – “To bring into existence, create, make, start, originate, found or build as permanent or with permanence in view”. The P.Ramanatha Aiyer’s Law Lexicon defines it as – “To found, recognize, confirm or admit, to make or form”. The Black’s Law Dictionary, 9th edition defines it as – “to settle, make or fix firmly, to enact permanently, to make, form or bring into existence.” The Bouvier Law Dictionary defines it as – “Creation or authorization of an operation or institution. Establishment is the act of creating or recognizing in law or in fact any institution, office, place or person so that the person or thing established has an authority or certain privileges that are recognized by others”. The Oxford Dictionary of English defines it as – “To set up on a firm or permanent basis, initiate

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or bring about.” The Collins English Dictionary and Thesaurus defines it as – “To create or set up”. The common thread amongst all the said definition is that “establish” refers to the creation or bringing in to being of a body/institution. It refers to the action or process which involves creation of a new entity. In light of these considerations, a minority community seeking to assert rights under Article 30 must substantiate that the institution in question was indeed physically, demonstrably, and conclusively brought into existence by the minority.

158. The Appellants urged that the establishment is equivalent to a ‘founding moment’ in order to further their stance on the facts surrounding MAO College and AMU. This fundamentally ignores the understanding of “establishment” as establishment is not a moment rather establishment is a process. A process consists of various factors and forces at play, the culmination of which result in the creation of the institution. A moment connotes a singular act or just an idea which, in the opinion of this Court, would not suffice the enquiry under Article 30. A process is a complex sequences of events and actions/ inactions on part of various stakeholders which were relevant in the history of the institution at the point of establishment.

159. Further, in cases wherein there are multitude of forces and multiple stakeholders involved during establishment of an institution, the judicial inquiry would have to be suitably calibrated. The Court, in such situations, ought to take a holistic view of the matter and decide the question on totality of factors. The Court needs to weigh the factors and contributory forces in the balance in order to ascertain whether the minority community was the primary force behind the bringing in to being of the institution.

G.3 Relevance of “choice” and “intent” in the question of establishment

160. At this juncture, it is necessary to understand the meaning of the term “choice” occurring in Article 30 of the Constitution. The term choice, is representative of the decision of minority community as to the nature of the institution it seeks to establish. The choice therefore could be to establish a technical institution, an arts institution, an institution for religious teaching or even a minority institution with largely secular teaching. The “choice” is therefore operationalised by the decision of the minority as to the kind of institution that the minority seeks to establish.

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161. In Ahmedabad St. Xavier’s College Society and Ors. v. State of Gujarat and Ors., (1974) 1 SCC 717, this Court refers to this aspect of “choice” as under : “96. xxx Clause (1) of Article 30 also contains the words “of their choice”. These words which qualify “educational institutions” show the vast discretion and option which the minorities have in selecting the type of institutions which they want to establish. In case an educational institution is established by a minority to conserve its distinct language, script or culture, the right to establish and administer such institution would fall both under Article 29(1) as well as under Article 30(1). The minorities can, however, choose to establish an educational institution which is purely of a general secular character and is not designed to conserve their distinct language, script or culture. The right to establish and administer such an institution is guaranteed by Article 30(1) and the fact that such an institution does not conserve the distinct language, script or culture of a minority would not take it out of the ambit of Article 30(1).”

162. The “choice” therefore, is with regard to the type of the institution and cannot be conflated with the “administration” of an institution. The assertion that once the choice includes having secular education in the institution, it would be necessary that non-minority persons are appointed for the purposes of teaching and administration is only partially correct. Indeed, when a minority seeks to provide secular education it would have to appoint non-minority teachers and some administration from outside the community, however, the same cannot mean that even the major decision-making, managerial and superior administrative setup can be “outsourced” by the minority. The lower rungs of administration and the teaching staff may certainly be of a non-minority character however, the higher echelons of administration and policy decision making of the institution ought to be in the hands of the minority community to claim minority status. Further, the “intent” of the minority community unless expressed and actually exercised as the “choice”, cannot govern the question of establishment.

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163. The constitutionally sustainable approach qua the question of “establishment” therefore, cannot hinge only upon the “intent” or “choice” of the minority at the time. The intent and choice may be relevant only to a limited extent and cannot be the controlling factors in the judicial enquiry for determining the question of establishment. The question of establishment is to be adjudicated from a multitude of factors as noticed above and cannot be inferred from bald assertions regarding the “wishes” or “choices” or “efforts” of a minority community.

164. The question of establishment would constitute a factual inquiry to ascertain the predominant forces behind the bringing in to being of an institution. Admittedly, the admission or taking help of other members of other communities would not be fatal, but the prominence must be of the minority community in major aspects of the institution. The primary character of the institution and the predominant efforts in its establishment ought to originate from the minority community and must culminate [come in to being] through the said community. The “choice” and “wishes” during the process of establishment – if not accepted, would clearly indicate that the concerned minority community was not the predominant force behind the institution.

G.4 The nature of administration at the time of establishment

165. The Appellants urge that it is open for a minority community, while exercising its choice, to hire teacher and other administrative staff from non-minority community while establishing a minority institution. There cannot be any doubt with regard to the said proposition however, while the teaching and administrative staff may be drawn from any community, the Court needs to be ultimately ascertain whether such a choice of having a secular staff was exercised by the minority community or was enforced by other stakeholders who were involved in the process of establishment. If the position is the latter, the same would have a significant bearing on the adjudication of the question at hand.

166. At this juncture, it is necessary to understand the meaning of the term “administration” in Article 30. Further, it is important for the Court to delineate the distinction between administrative and academic setup in the concerned institution. The administrative and academic authorities within an educational institution are functionally distinct. The judgment of this Court in Ahmedabad St. Xavier’s College

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Society [supra], provides some assistance in this regard. The relevant portion of the said judgement is quoted as under : “19. The entire controversy centres round the extent of the right of the religious and linguistic minorities to administer their educational institutions. The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims and aspirations of the institution. Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.

40. ….. The right to administer is the right to conduct and manage the affairs of the institution. This right is exercised through a body of persons in whom the founders of the institution have faith and confidence and who have full autonomy in that sphere. The right to administer is subject to permissible regulatory measures. Permissible regulatory measures are those which do not restrict the right of administration but facilitate it and ensure better and more effective exercise of the right for the benefit of the institution and through the instrumentality of the management of the educational institutions and without displacing the management. If the administration has to be improved it should be done through the agency or instrumentality of the existing management and not by displacing it. Restrictions on the right of administration imposed in the interest of the general public alone and not in the interests of and for the benefit of minority educational institutions concerned will affect the autonomy in administration.

41. Autonomy in administration means right to administer effectively and to manage and conduct the affairs of the

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institutions. The distinction is between a restriction on the right of administration and a regulation prescribing the manner of administration. The right of administration is day to day administration. The choice in the personnel of management is a part of the administration.”

167. Similarly, TMA Pai [supra] considered the essential elements of the ‘right to administer’ [although under the heading “Private unaided non-minority educational institutions”] as follows: “50. The right to establish and administer broadly comprises the following rights: (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; (d) to appoint staff (teaching and non-teaching); and (e) to take action if there is dereliction of duty on the part of any employees.”

168. Therefore, “administration” and its link with the question of establishment is to be ascertained by locating who exercised the “choice” with regard the crucial aspects of an institution and to what extent was the minority’s decision making expressed in the tangible outcomes at the time of establishment. It is at this point that the “choice” of the minority marries itself with the “administration” by the minority community. As stated above, the choice can be said to have been exercised by the minority community, if the minority community is present in some higher echelons of the administrative setup. Such positioning of the minority community would, in fact, enable the community to exercise its “choice” as the said choice is a function of the decision making of the minority community. If the minority community is not the decision maker in offices of prominence in the institution, the offices which hold the keys to giving character to the institution, the claim of administration or establishment by the minority community would fall flat.

G.5 Locating the real positive indicia

169. In light of the above, in discerning real positive indicia for adjudging the question of establishment, there cannot be a rigid formula; rather,

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it would rely on various factors depending on the era, type, and nature of the institution under consideration. The following broad parameters can be culled out from the judgments and may be considered by the Court while adjudicating the question of establishment : i. Firstly, to claim “establishment”, the minority community must actually and tangibly bring the entirety of the institution into existence. The role played by the minority community must be predominant, in fact almost complete to the point of exclusion of all other forces. The indicia which may be illustrative and exhaustive in this regard may be nature of the institution, the legal/statutory basis required for establishing the institution, whether the establishment required any “negotiation” with outside forces, the role in acquiring lands, obtaining funds, constructing buildings, and other related matters must have been held completely minority community. Similarly, while teachers, curriculum, medium of instruction, etc. can be on secular lines, however, the decision-making authority regarding hiring teachers, curriculum decisions, medium of instruction, admission criteria, and similar matters must be the minority community. The choice of having secular education in the institution must be made expressly by the minority community, demonstrating the link between institution and the persons claiming to establish it. ii. Secondly, the purpose of the institution must have been to predominantly serve the interests of the minority community or the sole betterment of the minority community, irrespective of the form of education provided and the mode of admission adopted. Therefore, as per the choice of the minority community, an institution may have secular education, but such secular education and the resultant institution, must be predominantly meant for the overall betterment of the minority community. iii. Thirdly, the institution must be predominantly administered as a minority institution with the actual functional, executive and policy administration vested with the minority. The minority community should determine the selection, removal criteria, and procedures for hiring teaching, administrative staff, and other personnel. The authority to hire and fire staff must be from the minority community. Further, even if teaching or administrative staff may include non-minority persons, the final authority

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exercising functional, directional, and policy control over these authorities must be from the minority community. This ensures that the thoughts, beliefs, and ideas of the minority community regarding administration are implemented. This represents the real decision-making authority of the institution being the minority community.

170. In ascertaining the aforesaid, it would be open for the Court look at the true purpose behind each of the above factors. The apprehensions expressed in A.P. Christian Medical Educational Society [supra], enable the Court to pierce the veil to determine answers to the factors mentioned above.

171. It is reiterated that the factors mentioned above are not a straight- jacket formula rather illustrative for the Court to develop on a case-to- case basis. Additionally, factors such as incorporation under a statute as opposed to establishment under a statute would be relevant. The context may vary between pre-Constitution and post-Constitution institutions. The interpretative exercise must be agnostic to generic claims of a ‘narrow’ or ‘broad’ construction of constitutional terms. The interpretation must be such that it serves the interests of minorities by protecting genuine minority institutions.

H. The Azeez Basha judgment H.1 The content of the judgment of Azeez Basha [supra]

172. The judgment of the constitution bench of this Court in Azeez Basha [supra] is the cynosure of all eyes in the present case. The parties attacking the judgment of the High Court assert that the approach adopted by the Court in Azeez Basha [supra] to arrive at the finding that the AMU was “neither established nor administered by the Muslim minority” was fraught with errors. Apart from other aspects discussed hereinabove, the judgment was questioned on the ground that it made the rights under Article 30 illusionary as far as Universities are concerned. It was argued that the judgment in Azeez Basha [supra], despite accepting that a minority community has the right to establish a ‘university’ under Article 30(1), held that since a university is necessarily required to be established/ incorporated by or under a statute, Article 30(1) would not apply. It was also argued that if a minority can establish a university under Article 30(1), and if universities are required to be incorporated under

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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. It was argued that Azeez Basha [supra] holds that a university incorporated by a statute would lose its status as a minority institution and therefore, the reasoning is flawed.

173. The parties defending the judgment of the High Court, in this regard assert that the understanding of the Appellants of the judgment in Azeez Basha [supra] is incorrect as the judgment is not merely premised on the fact that the AMU was established by way of a statute rather the said judgment, in depth, studies the antecedent facts prior to the establishment of the university and the nature of the legislation establishing the university, to ascertain the character of the university at the time of its initial establishment, and thereafter arrives at a factual finding. It is argued that the findings of the judgment in Azeez Basha [supra] are findings of fact at the time of the establishment of the AMU in 1920 and do not lay down any straightjacket formulation of law.

174. Before adverting the countering versions, it is necessary to study the judgment in Azeez Basha [supra]. The judgement can be divided in ten parts. In the first part, the Court notes the broad parameters of challenge before it and the principal arguments by both sides. The Court notes that amendments made to the AMU Act, 1920 in the years 1951 and specifically 1965, were impugned before it. The Court noted assertion of the Petitioners therein, to the effect that, the AMU was established by the Muslim minority. It was claimed that therefore, the Muslim minority possess the right to administer it, and any provisions within the Acts of 1951 and 1965 that diminish or curtail this right are beyond the scope of Article 30(1) and hence, invalid. The argument of the Union of India at the said time was that the AMU was established by the 1920 Act and therefore, the Parliament possessed the authority to amend that statute as deemed necessary for the advancement of education. It was argued that the minority did not establish the AMU and thus cannot assert the right to administer it. Furthermore, it was contended that the provision in the 1920 Act, stipulating that the Court of the AMU was to be composed entirely of Muslims, did not confer any administration rights upon the Muslim community and the administration remained under the jurisdiction of the secular authorities established by the 1920 Act.

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175. The next part of the judgment notes in some detail the history prior to the AMU coming in to being. The said portion is relevant as it represents a specific, fact-based enquiry that the Court carried out. The Court noted that it was “necessary to refer to the history” prior to the establishment of the AMU in 1920 in order to “understand the contentions raised on either side”. The Court notes the establishment of the MAO College by efforts of Sir Syed Ahmad Khan. The Court notes that the at the end of the 19th century, the idea of establishing a Muslim University gathered strength and by 1911 some funds were collected and a Muslim University Association was established. The Court referred to the parleys that took place between the Association and the Government of India, the condition to collect funds by the Government, and the MAO College and its properties being vested in the proposed university. The Court notes a variety of factors which led to the establishment of the Aligarh University in 1920 by the 1920 Act.

176. In the next part, the Court refers to the provisions of the 1920 Act to ascertain the character of the AMU when it was established in 1920. The Court refers to a large number of sections, including Section 23, which provided for the ‘Court’ to be a minority body [along with the comment of the Select Committee on the same]. After a detailed analysis of the provisions, Azeez Basha [supra] concludes that the ‘final power in almost every matter of importance’ was not with the minority community.

177. Thereafter, the Court discusses the amendments made to the 1920 Act in 1951 and 1965. It specifically notes the amendments made to Section 9 and Section 23 which deal with Islamic education and the all-Muslim member ‘Court’, wherein the provisions were altered. It noted that the amendments were made in 1951 to specifically bring the 1920 Act in conformity with the provisions of the Constitution and for the benefit of the University so that it could continue to receive aid from the Government. For the 1965 amendments, it was noted that the ‘Court’ under Section 23, ceased to be the supreme governing body and the powers of the Executive Council were correspondingly increased. The constitution of the ‘Court’ was drastically changed making it largely a nominated body.

178. In the next portion, the Court discussed the legal challenge and the position of law under the Constitution. The Court squarely

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rejects the argument that even though the religious minority may not have established the educational institution, it will have the right to administer it, if by some process it had been administering the same before the Constitution came into force. It held that the ‘minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise’ and that ‘words “establish and administer” in the Article must be read conjunctively’. The Court then referred to certain observations Durgah Committee, Ajmer v. Syed Hussain Ali, (1962) 1 SCR 383, wherein it was held that even if it be assumed that a certain religious institution was established by a minority community it may lose the right to administer it in certain circumstances.

179. In the next part of the judgment, the Court contextualised the position of educational institutions and specifically Universities in the pre- Constitution and pre-UGC era. The Court notes that a University and a college are different institutions and what distinguishes a university from any other educational institution is that a university grants degrees of its own while other educational institutions cannot. Most critically, the Court noted that at the said time, there was no prohibition against establishment of universities privately however, the degrees of such a “University” would not be recognised by the then British Indian Government. The non-recognition was non-justiciable as establishment of a Government recognised was only through a legislation and there existed no Article 30 or fundamental rights before

1950. The Court emphasized the importance of the recognition from the then Government as it made the value of degree being awarded by such an institution higher. The Court noted that it was only in the year 1956, that the University Grants Commission Act, 1956, prohibited establishment of a University without a statute.

180. In essence, in this critical part of the judgement, the Court noted the two important considerations as under : i. There was no law prohibiting establishment of a private institution which grants degree without Government intervention or legislation prior to 1956; ii. The educational institution established with Government intervention and legislation had a significant advantage of British Government’s recognition to the degree granted by the institution.

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It was this simple understanding of facts as prevalent in pre-Constitution India, that formed the fulcrum of the judgment in Azeez Basha [supra].

181. On the basis of the said observations, the Court held that the minority community was not prevented in any manner in 1920 from establishing a university if it was not interested in having such University and its degrees recognised by the British Indian Government. The Court also noted that in such a situation, the minority community could not insist that degrees granted by such a university should be recognised by Government. Therefore, on the said basis the Court remarked that when the AMU was established, by virtue of Section 6 of the 1920 Act, its degrees were recognised by Government and in that manner, an institution was brought into existence which could not be brought into existence by any private individual or body.

182. In the next portion, the Court referred to the MAO College as the ‘nucleus’ of AMU – an expression which has caused considerable controversy in the present proceedings. The Court thereafter notes that the Central Legislature established the AMU through the 1920 Act as the minority could not establish a university whose degrees were bound to be recognised by Government and that one circumstance was critical. The Court notes that the 1920 Act was passed as a result of the efforts of the Muslim minority but it would not mean that the AMU, as a University granting government recognised degrees in 1920, was established by the Muslim minority.

183. In the next part, the Court renders its opinion on the meaning of the word ‘establish’ to mean “to bring into existence”. On the basis of the said meaning, the Court thereafter again ventured into the history surrounding the establishment of the AMU. The Court notes through a historical analysis that the minority community approached the Government to bring into existence a university whose degrees would be recognised by Government. It was thereafter that the British Government took the decision to establish the university, whose degrees it would recognise, in the only manner known to law for establishing such a university at the said time – by passing a legislation. The Court notes that the 1920 Act was then passed by the Central Legislature and the university of that type was established.

184. Thus, the Court held that the University was brought into existence by the 1920 Act for it could not have been brought into existence

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otherwise. Thus, the Court held that since AMU was not established by the minority, and therefore, the amendments of 1951 and 1965 cannot be struck down as being unconstitutional under Art. 30(1).

185. Finally, the Court in Azeez Basha [supra], analyses various provisions of the Act as it then existed and held that administration was also not vested in the Muslim minority rather it was vested in the statutory bodies created by the 1920 Act. It noted that only the ‘Court’ was minority only body in 1920 [amended in 1951], but the electors for some of the members included non-minorities. On the totality of the factors, the Court held that AMU was neither established nor administered by the minority. The remaining part of the judgment considers the attack on other fundamental rights like Article 26 and Article 19, which may not be germane to the present enquiry.

H.2 The rationale behind the findings

186. This Court has consistently held that the text, context and the totality of the factors, give actual meaning to a judgment. In P.S. Sathappan v. Andhra Bank Ltd. & Ors., (2004) 11 SCC 672, this Court has held as follows: “144. While analyzing different decisions rendered by this Court, an attempt has been made to read the judgments as should be read under the rule of precedents. A decision, it is trite, should not be read as a statute. 145. A decision is an authority for the questions of law determined by it. While applying the ratio, the court may not pick out a word or a sentence from the judgment divorced from the context in which the said question arose for consideration. A judgment as is well-known, must be read in its entirety and the observations made therein should receive consideration in the light of the questions raised before it.” In Goan Real Estate & Construction Ltd. & Anr. v. Union of India, (2010) 5 SCC 388, it has been held as under : “What is more important is to see the issues involved in a given case, and the context wherein the observations were made by the Court while deciding the case. Observation made in a judgment, it is trite, should not be read in isolation and out of context. It is the ratio of the judgment, and not

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every observation made in the context of the facts of a particular case under consideration of the court, which constitutes a binding precedent.”

187. The Court needs to conduct a careful exercise in ascertaining the true purport and meaning of a judgement. Both sides in the present case have to an extent tried to read the judgment in Azeez Basha [supra] as per their own respective conveniences. As is the case in any adversarial exercise, to an extent, the Court needs to reconcile the varying approaches. The judgment in Azeez Basha [supra] ought to be understood in the correct historical perspective in order to ascertain if it lays down the proposition - that whenever a University is established by way of an enactment, it cannot be a minority institution.

188. From a proper reading presented above, it is incorrect to suggest that the Court in Azeez Basha [supra] adopts an approach which this Court has not adopted in future cases. It is also crucial to note that apart from Azeez Basha [supra] this Court has, in no other case, ever dealt with a situation where a University, which was established by the Legislative Council during the British period, has claimed minority status. In that sense, the judgment in Azeez Basha [supra] and present bench are faced with a unique situation. It is for this reason, the Court in Azeez Basha [supra] had to adopt a suitably modulated approach.

189. The notion that Azeez Basha [supra] categorically prohibits minorities from establishing universities due to statutory requirements is unfounded. The judgment in Azeez Basha [supra] underscores the importance of legislative intent and the specific provisions within statutes in determining the character of an institution at the time of its establishment. The AMU’s founding legislation, according to Azeez Basha [supra], did not designate it as a minority institution, either in character or administration.

190. Furthermore, the judgment in Azeez Basha [supra] correctly emphasizes the absence of UGC regulations at the time of the AMU’s establishment and underscores the need to consider historical circumstances highlighting the supreme importance of Government recognition of degrees at the said time. In essence, the judgement in Azeez Basha [supra] provides crucial insights into the contextual factors influencing the establishment of educational institutions,

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emphasizing the need for interpretative clarity while considering pre- Constitution and pre-UGC institutions status as minority institutions, especially Universities. It would be unfair to judge the approach of a judgement rendered almost six decades back for the alleged lack of verbosity.

191. The judgment in Azeez Basha [supra] does not preclude minorities from establishing universities but rather highlights the importance of legislative intent and statutory provisions in determining an institution’s character. As a matter of law, it is within the purview of the Legislature to enact legislation for the establishment of a minority university, provided that such legislation fulfills the criteria of constituting a statute for a minority university. In such a scenario, the concerned legislation must incorporate provisions that clearly indicate the establishment of the institution by the minority community and confer administrative authority to the minority community.

I. Balancing conflicting narratives

192. There is an inherent problem in the study of history. Since the events in history that have already occurred can be highlighted or dimmed depending upon the proclivities of the writer, the ‘correct’ version of history often remains elusive. Many modern history writers adopt an approach which is known as Complex Adaptive System, where the world is seen as an unruly unorganised place in which the sequence of events is complex and unpredictable. The events are characterised by interactions between a host of factors including grand socio- economic forces, geography, actions of persons in power, actions of a random commoner, culture, ideology, technology, fluke etc. The theory provides that history does not follow a predetermined path and can go down multiple ones at the hands of any of the factors mentioned above. While some outcomes remain to be more likely than others, the theory remains that the world is made up of unintended consequences, random shocks and cascading effects of significant and insignificant events both.

193. Both sides in the present case have highlighted their own version of history of the establishment of the AMU and sought highlight specific events which, in their understanding, were crucial in the eventual establishment of the AMU. The Appellants contended that the AMU’s formation was fundamentally enabled by the proactive involvement, demand, and contributions of the Muslim community.