The Supreme Court, on Tuesday, referred to seven-judge bench the issue of determining the correctness of minority status granted to Aligarh Muslim University. The three judge bench headed by CJI Ranjan Gogoi made this reference in an appeal against a 2006 Allahabad High Court judgment that had held that the University is not minority institution.
The Question (Re-) Referred To 7 Judge Bench
It would be more apt to say that the question has been 're-referred' to seven judge bench, because in 1981, doubting the correctness of Basha Judgment, a supreme court bench had referred this question to seven judge bench. But, as will be revealed in this article, this question got never answered. The said question reads as follows:
"What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority?"
This article attempts to give brief idea about the Basha Judgment of 1967, Allahabad High Court judgment impugned in the present appeals before SC, and some other intervening orders and judgment which has now prompted the court to re-refer the matter to seven judge bench?
1967: Basha Judgment
S. Azeez Basha vs. Union Of India
Five Judge Bench of the Supreme Court considered validity of certain amendments made to the Act in the years 1951 and 1965 to Aligarh Muslim University Act of 1920. The bench headed by the then CJI KN Wanchoo held that Aligarh Muslim University was neither established nor administered by Muslim minority, hence the challenge to the aforesaid 1951 and 1965 Acts as ultra vires to Article 30 is unfounded. It also held that Aligarh Muslim University is not a minority institution.
2006: Allahabad HC Judgment
AMU vs. Malay Shukla
The Allahabad High Court were considering the challenge against the Muslim quota, by way of a 50% reservation of post-graduate course seats meant for qualified MBBS doctors, introduced by the University. It was contended on behalf of the University that Aligarh Muslim University (Amendment Act 1981), changed the basis of Basha Judgment. The Single bench held that the University is not a minority institution.
Upholding the Single bench judgment, the division bench of Allahabad High Court held that, even though established by minority, but was never administered on claimed to be administered cannot be clothed as minority Institution. To hold thus, the bench comprising Justice Ajoy Nath Ray (the then CJ of the High Court) and Justice Ashok Bhushan (he was then Allahabad HC judge) extensively relied on Basha judgment and said:
"Whenever a member of the minority community establishes an institution the same shall be necessarily a minority institution irrespective of the fact as to whether it was contemplated to be a minority institution or an institution for the benefit of all sections of the society. This can be further illustrated by giving an illustration. A member of the minority community establishes an institution which is open to all sections of the society without reserving any right of administration in the persons founding the society. The institution is administered as a normal institution following the rules and regulations applicable to normal institution. The selection of teachers is made by selection board established under the Act. Can after lapse of several decades suddenly the institution claim to the benefit of minority character on the ground that it was established by minority member and claim right of administration of the institution as a minority. The answer will be obviously no because the character of the institution which came into existence was not a minority nor it was administered by minority."
Justice AN Ray held as follows, to which Justice Bhushan concurred.
The Aligarh Muslim University is declared to have always been and is a free institution and not a minority institution within the meaning of Article 30 of the Constitution and that the ruling in Basha is in no way touched. Sections 2 (l) and 5 (2) (c) introduced in the Aligarh Muslim University Act of 1920 by the said 1981 Amendment Act are invalid and those insertions are struck out. The removal of the words ''establish and' from the preamble of the 1920 Act by the 1981 Act is invalid and those words are restored to the preamble. The claim of 50% Mohammdan quota for the post graduate medical courses by the University is declared as unconstitutional and impermissible and they shall make no claim of minority quota in like or other manner in future. The Union's communication dated 25.2.2005 vetting the purported minority status of the Aligarh Muslim University by permitting their claim of Muslim reservation is quashed and set aside.
Justice Ashok Bhushan in his concurring judgment, said: "Declaring the Aligarh Muslim University as minority institution by parliament enactment is not in the competence of parliament in view of the judgment of the Apex Court and if the parliament declares by the legislative enactment that Aligarh Muslim University is minority institution the said declaration shall contravene Article 30 since Article 30 provides that only institutions administered and established by minority are entitled for protection under Article 30. The parliament thus could not have directly declared by parliamentary enactment that Aligarh Muslim University is a minority institution. The amendments which has been brought by 1981 Amendment Act has not been able to change the basis of Azeez Basha's case (supra) and thus tend to overrule a judicial decision which is not in competence of the parliament."
1981: The Unanswered Reference in Between
Between this 1967 Supreme Court judgment and 2006 Allahabad High court judgment, there lies a Supreme Court order in 1981 (in Anjuman-e-Rahmania Vs. District Inspector of School) referred the issue arising in Basha Judgment to a Seven Judges Bench. The question referred was as follows:
Though the said reference was heard by an 11 judge bench along with T.M.A. Pai Foundation vs. State of Karnataka, the Bench did not answer the question stating that it will be dealt with by the Regular Bench. Later, the regular bench also did not answer the said question in its order dated 11th March 2003. The said order reads: ""These matters are covered by the decision of a Constitution Bench of this Court in Writ Petition No.317/1993- T.M.A. Pai Foundation & ors. Etc. vs. State of Karnataka & Ors. Etc. and connected batch decided on 31st October, 2002. All statutory enactments, orders, scheme, regulations will have to be brought in conformity with the decision of the Constitution Bench of this court in T.M.A. Pai Foundation's case decided on 31.10.2002. As and when any problem arises the same can be dealt with by an appropriate Forum in an appropriate proceeding. The Writ Petitions are disposed of accordingly."
This intervening development was brought to the notice of Allahabad High Court bench. But the bench rejected the said argument observing thus: "It has thus been submitted that present dispute requires consideration in the light of the judgment in T.M.A. Pai's case (supra). It is submitted that this case has again reiterated that there can be regulatory control over the minority institution and regulatory control itself does not amount in any manner destructive of the minority character of an institution. It is submitted that control and supervision in 1920 Act is only regulatory in nature and in the light of T.M.A. Pai's case the minority character of Aligarh Muslim University has to be declared. The answer to the above submissions are twofold. Firstly the judgment in Azeez Basha's case has considered all the provisions of 1920 Act and the Statutes framed thereunder and considering the scheme of the Act the Azeez Basha's judgment held that minority community has not been administering the institution. As observed above, the basis of the judgment of Azeez Basha's case regarding administration by minority has not even touched by 1981 Amendment Act, it is no more open for us to consider the submission that minority is administering the Aligarh Muslim University and it be declared as a minority institution. Secondly even if we look the question of administration in the light of judgment in T.M.A. Pai's case (supra), the result will be the same."
2019: SC reference to 7 Judge Bench
Taking note of all these, now the three judge bench of the Supreme Court observed that the question which arose in 1981 order in Anjuman-e-Rahmania (doubting correctness of Basha Judgment) has remained undetermined. "That apart, the decision of this Court in Prof. Yashpal and another vs. State of Chhattisgarh and others and the amendment of the National Commission for Minority Educational Institutions Act, 2004 made in the year 2010 would also require an authoritative pronouncement on the aforesaid question formulated, as set out above, besides the correctness of the view expressed in the judgment of this Court in S. Azeez Basha (supra) which has been extracted above.", the bench said.
The court justifying its order referring to seven judge bench further added: "When the precise question was already referred to a Seven Judges Bench and was, however, not answered, we are of the view that the present question, set out above, should be referred to a Bench of Hon'ble Seven Judges."
Read SC Order