NEW DELHI: The over a century-old Aligarh Muslim University’s rollercoaster ride in courts over its claim to being a ‘minority institution’ drove into a serious hurdle as Supreme Court on Wednesday asked it to justify the minority character of its administration when the varsity’s 180-member governing council had just 37 Muslim members.
A bench of CJI D Y Chandrachud and Justices Sanjiv Khanna, Surya Kant, J B Pardiwala, Dipankar Datta, Manoj Misra and Satish Sharma drew AMU counsel Rajeev Dhavan’s attention to the structure of AMU’s governing body, referred as the ‘Court of the University’ under the AMU Act, and asked whether non-Muslim nature of administration would undercut its claim for minority educational institution (MEI) status.
Under Article 30(1) of the Constitution, all religious and linguistic minority communities have the right to “found and govern educational institutions of their choice”. After Dhavan had elaborated on Muslims coming together to set-up Muhammadan Ango-Oriental (MAO) College which culminated in AMU in 1920, the question about satisfying the second test – administration – came up.
The CJI asked, “Expressly by statute, there is a requirement of 37 of 180 members being ordinarily Muslims. Will that impact the requirement that a minority institution must be administered by the minority community? If the test under Article 30 included administration, will it be sufficient that the administration is given to a composite multi-member body, in this case 37 of 180 are Muslims. Does it satisfy the administration test to qualify as a minority institution?”
Dhavan said as long as the institution was established by the minority community and its object was to serve the minority community, the administration need not be 100% overseeen by the minority community for retention of minority institution status.
The bench said, “What is worrying is the test is for determining religious character of the administration of the minority institution. Even when the controlling voice in administration is not that of the minority community, can it be treated as administered by the minority?
“It is an important issue to discuss. Can it be argued that though an institution established by a minority community, even if not administered by the community, it must be treated as a minority institution because the minority community has some presence in the administration? Will some presence make it qualify as administered by the minority community?”
Dhavan said, “All vice-chancellors of AMU since its inception have been Muslims. Hence, it is de facto govern by minority community. Other features of AMU are Islamic in nature. Merely because the state has a say in administration, it does not take away the minority character of the varsity, which was founded by Muslims for the educational welfare of Muslims.”
For the Old-Boys Association of AMU, advocate Kapil Sibal said, “It cannot be argued that a minority institution surrenders its minority status in exchange for state recognition of degrees awarded by it. If that were to be the case, Article 30 would become a dead letter.
“State ratification of the degrees given by a university is sine qua non for its existence, and if state recognition of degrees issued by a university established as an MEI comes at the cost of its minority status, there is effectively no right in the minority communities under Article 30 to establish universities of their choice.”
He further said, “Similarly, the intake of students who hail from communities other than the minority that has established the MEI, or the lack of compulsory religious directives, does not result in a loss of minority status under Article 30 as those are constitutional requirements under Articles 14, 15 and 28 of the Constitution.”
