Does a minority institution lose its minority character if it is incorporated by a statute?

"Aligarh Muslim University Through its Registrar Faizan Mustafa v Naresh Agarwal and ors I Civil Appeal 2286/2006"

??Point of Reference to the 7 Judge Constitutional Bench??

→In the Anjuman-e-Rahmania case, a two-judge bench questioned the correctness of the Azeez Basha judgment, which held that *Aligarh Muslim University (AMU) was not a minority institution. The two-judge bench then referred the matter to a larger seven-judge bench.

??The Majority view 4:3 held that the reference in Anjuman-e-Rahmaniya (supra) of the correctness of the decision in Azeez Basha was valid.

→The reference was within the parameters laid down in Central Board of Dawoodi Bohra Community;

→Article 30(1) can be classified as both an anti-discrimination provision and a special rights provision. A legislation or an executive action which discriminates against religious or linguistic minorities in establishing or administering educational institutions is ultra vires Article 30(1).

This is the anti-discrimination reading of the provision. Additionally, a linguistic or religious minority which has established an educational institution receives the guarantee of greater autonomy in administration. This is the ‘special rights’ reading of the provision;

→ Religious or linguistic minorities must prove that they established the educational institution for the community to be a minority educational institution for the purposes of Article 30(1);

→ The right guaranteed by Article 30(1) is applicable to universities established before the commencement of the Constitution;

→ The right under Article 30(1) is guaranteed to minorities as defined upon the commencement of the Constitution. A different right-bearing group cannot be identified for institutions established before the adoption of the Constitution;

→ The incorporation of the University would not ipso facto lead to surrendering of the minority character of the institution. The circumstances surrounding the conversion of a teaching college to a teaching university must be viewed to identify if the minority character of the institution was surrendered upon the conversion. The Court may on a holistic reading of the statutory provisions relating to the administrative set-up of the educational institution deduce if the minority character or the purpose of establishment was relinquished upon incorporation; and

→ The following are the factors which must be used to determine if a minority ‘established’ an educational institution:

i. The indicia of ideation, purpose and implementation must be satisfied. First, the idea for establishing an educational institution must have stemmed from a person or group belonging to the minority community; second, the educational institution must be established predominantly for the benefit of the minority community; and third, steps for the implementation of the idea must have been taken by the member(s) of the minority community; and

ii. The administrative-set up of the educational institution must elucidate and affirm

(I) the minority character of the educational institution; and

(II) that it was established to protect and promote the interests of the minority community.

The view taken in Azeez Basha that an educational institution is not established by a minority if it derives its legal character through a statute, is overruled.

The question of whether AMU is a minority educational institution must be decided based on the principles laid down in this judgment.

The papers of this batch of cases shall be placed before the regular bench for deciding whether AMU is a minority educational institution and for the adjudication of the appeal from the decision of the Allahabad High Court in Malay Shukla after receiving instructions from the Chief Justice of India on the administrative side.

The *reference was disposed of in the above terms.??