AMU Minority Status: Why and What Did SC Refer To Seven Judge Bench?

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 JudgmentAMU vs. Malay ShuklaThe 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. ...

AMU Minority Status: Why and What Did SC Refer To Seven Judge Bench?

Ashok Kini

"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."

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