Universities are different from religious institutions Premium

Universities are different from religious institutions and the expectation of liberal institutions of secular education to indulge in ghettoisation is contrary to the vision of Article 30

The M.A.O. College, established by Sir Syed in 1877, as also its outgrowth, the Aligarh Muslim University has been the finest constructive manifestation of Muslim educational and cultural activity after 1857. The Supreme Court of India in S. Azeez Basha (1967), without even giving the university an opportunity of being heard, had declared it to be an institution that was neither established nor administered by Muslims. The seven-judge Bench judgment in the Aligarh Muslim University (AMU) case (2024) is in tune with the series of liberal and progressive decisions on minority rights by the top court in the last 75 years with the only aberration being Azeez Basha (1967), now comprehensively overruled. But to say that the judgment is a 4:3 one may not be correct as on certain points one finds unanimity on the Bench. Even though dissenting judges such as in the 1967 judgment attached much importance to the statutory provisions of the Aligarh Muslim University Act, they were of the view that merely looking at the incorporating statute is not the appropriate test to determine the minority character of a university.

The AMU judgment 2024 is unique where dissents were not really dissents in the broad interpretation of Article 30 of the Constitution — in terms of it extending protection to universities, pre-constitutional-era institutions, and non-waiver of fundamental rights. Interestingly, Justice Dipankar Datta himself admitted that he was in a minority within minority as despite his substantial agreement with ‘thoughts and conclusions’ with the two dissenting judges, his views too differed with theirs. Accordingly, on the issue of the validity of the 1981 reference to seven judges, the judgment is 4:3. But on the validity of the 2019 reference, the judgment is 6:1. Therefore, the former Chief Justice of India (CJI) D.Y. Chandrachud-led bench had a valid reference to answer. One may not have any quarrel with Justice Dutta’s appreciation of pre-Independence-era judges including CJI K.N. Wanchoo, who was an ICS officer, but the Constitution cannot remain a living and transformative document if earlier judgments of a positivist era are not overruled. The Supreme Court is not bound by its earlier judgments. Its jurisprudence improved when it overruled formalistic interpretations of ‘procedure established by law’ of A.K. Gopalan (1950) in Maneka Gandhi (1978). Similarly, K.S. Puttaswamy (2017) , saw the eight-judge Bench judgment in M.P. Sharma (1954) being overruled to declare the right to privacy as a fundamental right. There is a long list of such overruled decisions.

Even on the indicia to determine minority character, there was broad agreement among the seven judges, including Justice Datta, that broader criterion is to be preferred with a flexible framework and a holistic approach. There is unanimity in the judgments that minorities must prove ‘intent to administer’. Justice D.Y. Chandrachud observed that the ‘right to administer is the consequence of establishment. To do otherwise, would amount to converting a consequence to a pre-condition’. He was simply following the ratio of Basha (1967); that if a minority has established an institution, it would get the consequential right to administer.

Judicial discipline has been rightly given prominence by the dissenting judges. But then, in deciding the contours of administration, how can they go beyond the 11-judge Bench judgment in T.M.A. Pai Foundation (2002) that limited it to selection of students, fixation of fee, choosing of governing bodies and right to discipline employees? The nine-judge Bench in Xaviers (1974) explicitly observed that ‘under the guise of exclusive right of management, minorities cannot decline to follow the general pattern. In Kerala Education Bill (1958), the Court had held that the dominant word in Article 30 is ‘choice’. Xaviers (1974) reiterated this choice, both in establishment as well as administration.

Dissenting judges attached much importance to the incorporating Act. But then, Justice M.H. Beg in Xaviers (1974) was categorical that “If the object of an enactment is to compel a minority Institution, even indirectly, to give up the exercise of its fundamental rights, the provisions which have this effect will be void or inoperative against the minority Institution”. Similarly, the CJI was right that mere acknowledgment of the founder’s name in itself in the statute cannot be the determining factor. In fact, if the ‘overriding governmental control’ test of dissenting judges is applied on their own examples of institutions, it would become clear that in comparison to AMU, they have much tighter governmental control, including the power to dissolve such minority universities. India’s courts have been permitting governmental regulations to maintain efficiency and standards and not as a yardstick to determine minority character. Greater governmental control is basically allowed in the interests of non-minorities who receive education in such minority institutions and those who are affected by the administrative decisions of minority management.

Surprisingly, Justice Datta, who alone held both the references as non est or invalid, in an unprecedented manner, not only answered the reference but also decided the matter himself by applying the indicia given by the majority as well as minority judges leaving nothing for the three judges’ Bench. This was also after observing in paragraph 13 that “it is foregone conclusion that history would be rewritten and declaration of Aligarh Muslim University by this court as a minority educational institution is only a matter of time”. If he himself was correct in applying the indicia and reached a definite conclusion, why was he so sure that a three-judge Bench would reach a different finding? A reference Bench generally avoids pre-judging the outcome of a matter by the regular Bench.

The dissenting judges also emphasised the test of minority dominance to such an extent that a minority university cannot get minority character just because being a university, it accepted its governance structure being similar to that of other universities. The test that the claim of minority character must rest on exclusive or near exclusive communal character of the institution is not a good sign. Universities are different from religious institutions and the expectation of liberal institutions of secular education to indulge in ghettoisation is contrary to the vision of Article 30.