# Aligarh Muslim University v. Naresh Agarwal & Ors

- **Citation:** 2024 INSC 856
- **Court:** Supreme Court of India
- **Decided:** 2024-11-08
- **Case number:** Civil Appeal No. 2286 of 2006
- **Bench:** Dr Dhananjaya Y Chandrachud, Sanjiv Khanna, Surya Kant, J.B. Pardiwala, Dipankar Datta, Manoj Misra, Satish Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/aligarh-muslim-university-v-naresh-agarwal-ors-37739
- **Pages:** 392

## Headnote

The issues were: 1) ingredients, indicia or criteria for an
educational institution to be considered a minority educational
institution under Article 30 of the Constitution; 2) whether Aligarh
Muslim University (AMU) is a minority educational institution; 3)
whether the Constitution Bench decision in Azeez Basha was
incorrect, and 4) Whether two-Judge Bench of Supreme Court
in Anjuman-e-Rahmaniya erred in referring the correctness of
the decision rendered in Azeez Basha directly to a Bench of
seven Judges.
Headnotes†
A1. Educational Institution - No distinction between
educational institutions established before and after
commencement of the Constitution for purposes of
Art. 30(1) - Right guaranteed by Article 30(1) is applicable
to universities established before commencement of the
Constitution - Constitution of India - Art.30.
A2. Educational Institution - Minority institution - Indicia for
'establishment' of a minority educational institution -
Meaning of word 'establish' as used in Art.30(1) - Effect
of incorporation on minority character of an institution -
Distinction between 'incorporation' and 'establishment' -
Constitution of India - Art.30.
* Author
Ed. Note: There are four judgments in the matter. One judgment was pronounced by Hon'ble Dr Justice
Dhananjaya Y Chandrachud, Chief Justice of India, on behalf of himself, Hon'ble Mr Justice Sanjiv
Khanna, Hon'ble Mr Justice J B Pardiwala and Hon'ble Mr Justice Manoj Misra. Hon'ble Mr Justice
Surya Kant, Hon'ble Mr Justice Dipankar Datta and Hon'ble Mr Justice Satish Chandra Sharma
pronounced their separate judgments.
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A3. Educational Institution - Minority institution - Declaration
of an institution as one of national importance does not
amount to change in minority character of the institution.
A4. Educational Institution - Minority educational institution -
Whether Aligarh Muslim University (AMU) is a minority
educational institution.
A5. Constitution of India - Art.30 - Scope of - Purpose of
Art.30(1) - Special protection guaranteed by Art.30(1).
A6. Constitution of India - Art.30 - Article 30(1) can be
classified as both an anti-discrimination provision and
a special rights provision.
A7. Words and Phrases - 'establishment' and 'incorporation'
of educational institutions - The words 'incorporation'
and 'establishment' cannot be used interchangeably.
Held [per Dr D Y Chandrachud, CJI (for himself, Sanjiv Khanna,
J.B. Pardiwala and Manoj Misra, JJ.)]:
1.1. A distinction between educational institutions established
before and after the commencement of the Constitution cannot
be made for the purposes of Article 30(1) - Article 30 will
stand diluted and weakened if it is to only apply prospectively
to institutions established after the commencement of the
Constitution - The adoption of the Constitution reflects a
break from the system of sovereign and potentate government
under the colonial regime and the dawn of governance based
on the rule of law - It secures to the minority educational
institutions, rights under the Constitution from the date of its
commencement. [Para 83]
1.2. Upon the commencement of the Constitution, citizens received
the protective cover of Part III - Article 372 read with Article
13(1) stipulates that laws which pre-date the Constitution are
unconstitutional if they contravene the fundamental rights -
The provisions do not stipulate that laws which pre-date the
Constitution cannot receive the additional protection which
the fundamental rights offer - The right to administration in
Article 30(1) is one such protection. [Para 84]
2.1. 'Incorporation' signifies the legal existence of the institution. In
contrast, 'establishment' signifies the founding or bringing into
[2024] 11 S.C.R.
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Aligarh Muslim University v. Naresh Agarwal & Ors.
existence of the institution - The possibility of distinguishing
the establishment and incorporation of universities arose with
the advent of teaching Universi

## Text

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[2024] 11 S.C.R. 1647 : 2024 INSC 856
Aligarh Muslim University
v.
Naresh Agarwal & Ors.
(Civil Appeal No. 2286 of 2006)
08 November 2024
[Dr Dhananjaya Y Chandrachud,* CJI, Sanjiv Khanna,
Surya Kant,* J.B. Pardiwala, Dipankar Datta,*
Manoj Misra and Satish Chandra Sharma,* JJ.]
Issue for Consideration
The issues were: 1) ingredients, indicia or criteria for an
educational institution to be considered a minority educational
institution under Article 30 of the Constitution; 2) whether Aligarh
Muslim University (AMU) is a minority educational institution; 3)
whether the Constitution Bench decision in Azeez Basha was
incorrect, and 4) Whether two-Judge Bench of Supreme Court
in Anjuman-e-Rahmaniya erred in referring the correctness of
the decision rendered in Azeez Basha directly to a Bench of
seven Judges.
Headnotes†
A1. Educational Institution - No distinction between
educational institutions established before and after
commencement of the Constitution for purposes of
Art. 30(1) - Right guaranteed by Article 30(1) is applicable
to universities established before commencement of the
Constitution - Constitution of India - Art.30.
A2. Educational Institution - Minority institution - Indicia for
'establishment' of a minority educational institution -
Meaning of word 'establish' as used in Art.30(1) - Effect
of incorporation on minority character of an institution -
Distinction between 'incorporation' and 'establishment' -
Constitution of India - Art.30.
* Author
Ed. Note: There are four judgments in the matter. One judgment was pronounced by Hon'ble Dr Justice
Dhananjaya Y Chandrachud, Chief Justice of India, on behalf of himself, Hon'ble Mr Justice Sanjiv
Khanna, Hon'ble Mr Justice J B Pardiwala and Hon'ble Mr Justice Manoj Misra. Hon'ble Mr Justice
Surya Kant, Hon'ble Mr Justice Dipankar Datta and Hon'ble Mr Justice Satish Chandra Sharma
pronounced their separate judgments.
1648
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A3. Educational Institution - Minority institution - Declaration
of an institution as one of national importance does not
amount to change in minority character of the institution.
A4. Educational Institution - Minority educational institution -
Whether Aligarh Muslim University (AMU) is a minority
educational institution.
A5. Constitution of India - Art.30 - Scope of - Purpose of
Art.30(1) - Special protection guaranteed by Art.30(1).
A6. Constitution of India - Art.30 - Article 30(1) can be
classified as both an anti-discrimination provision and
a special rights provision.
A7. Words and Phrases - 'establishment' and 'incorporation'
of educational institutions - The words 'incorporation'
and 'establishment' cannot be used interchangeably.
Held [per Dr D Y Chandrachud, CJI (for himself, Sanjiv Khanna,
J.B. Pardiwala and Manoj Misra, JJ.)]:
1.1. A distinction between educational institutions established
before and after the commencement of the Constitution cannot
be made for the purposes of Article 30(1) - Article 30 will
stand diluted and weakened if it is to only apply prospectively
to institutions established after the commencement of the
Constitution - The adoption of the Constitution reflects a
break from the system of sovereign and potentate government
under the colonial regime and the dawn of governance based
on the rule of law - It secures to the minority educational
institutions, rights under the Constitution from the date of its
commencement. [Para 83]
1.2. Upon the commencement of the Constitution, citizens received
the protective cover of Part III - Article 372 read with Article
13(1) stipulates that laws which pre-date the Constitution are
unconstitutional if they contravene the fundamental rights -
The provisions do not stipulate that laws which pre-date the
Constitution cannot receive the additional protection which
the fundamental rights offer - The right to administration in
Article 30(1) is one such protection. [Para 84]
2.1. 'Incorporation' signifies the legal existence of the institution. In
contrast, 'establishment' signifies the founding or bringing into
[2024] 11 S.C.R.
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Aligarh Muslim University v. Naresh Agarwal & Ors.
existence of the institution - The possibility of distinguishing
the establishment and incorporation of universities arose with
the advent of teaching Universities - Two kinds of institutions
were incorporated as teaching universities - They consisted
of institutions which were established and incorporated at
the same time, and institutions in which the establishment of
the institution predated its incorporation - Universities in the
latter category, however, were teaching colleges converted
into teaching universities - The instance of conversion of
teaching collages to teaching universities elucidates the
distinction between the 'establishment' and 'incorporation'
of educational institutions. [Para 94]
2.2. The word 'establish' as used in Article 30(1) cannot and should
not be understood in a narrow and legalistic sense - The
words used in clause (1) of Article 30 have to be interpreted
in view of the object and purpose of the article, and the
guarantee and protection it confers - The guarantee and
protection are not dependent on the basis or the manner in
which the legal requirements were/are complied with, rather
it concerns the persons who have founded and created
the establishment - The incorporation by a statute or the
procedure and requirements in law are not determinative
factors - The persons behind it, that is, the promoters and
founder(s) are important - They should belong to a linguistic
or a religious minority - There will always be individuals
and groups instrumental in catalysing and setting up the
institution - Thus, giving a legal character to an educational
institution through state or sovereign action, it does not
ipso facto follow that the university so established deprives
the group of persons/individuals the guarantee under
clause (1) of Article 30 of the Constitution - Universities are as
much educational institutions as schools and colleges - The
interpretation in Azeez Basha confers a legalistic meaning
to the word 'established', sans the context of clause (1) of
Article 30 - No distinction exists between universities and
other educational institutions such as schools and colleges
for the purpose of Article 30(1). [Para 95]
2.3. It cannot be argued that a university was established by
Parliament merely because the long title and preamble
of the statute incorporating the university states that it is
an Act to establish and incorporate - If such a formalistic
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interpretation is adopted, fundamental rights would be
made subservient to legislative language - The courts must
identify the circumstances surrounding the incorporation of
the University (including through a reading of the statute) to
identify who established the university - Formalism must give
way to actuality and to what is real. [Para 112]
2.4. The argument that the test of whether an educational
institution is a minority institution must be examined based on
whether the community or the group which had established
the institution was a minority at the time of its establishment
in pre-independent India, is rejected - The purpose of the
provision is to ensure that the minorities are able to preserve
and promote their linguistic and religious culture - For
this purpose, the status of the group/community, that had
established the institution, on the date of commencement
of the Constitution should be considered - The test of
establishment will apply to future situations on the day when
new educational institutions are established - The protection
under clause (1) of Article 30 cannot be denied to institutions
established before the commencement of the Constitution for
the reason that at the time of establishment in pre-independent
India, the founders were not aware that they would receive
protection of Article 30(1). [Para 122]
2.5. 'establishment' or formation of an institution can be at any
point of time and even before the commencement of the
Constitution - If an institution was established before the
commencement of the Constitution, the enquiry on the
question of 'establishment' must relate back to the date
when the institution was established or formed to ascertain
whether it would qualify as a minority institution upon the
commencement of the Constitution. [Para 134]
3.1. To determine who established the institution, the Courts
must consider the genesis of the educational institution - For
this analysis, the Courts must trace the origin of the idea
for the establishment of the institution - The Court must
identify who was the brain behind the establishment of the
educational institution - Letters, correspondence with other
members of the community or with government/State officials
and resolutions issued could be valid proof for establishing
ideation or the impetus to found and establish - The proof
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Aligarh Muslim University v. Naresh Agarwal & Ors.
of ideation must point towards one member of the minority
or a group from the community. [Para 135]
3.2. The second indicia is the purpose for which the educational
institution was established - Though it is not necessary that
the educational institution must have been established only
for the benefit of a religious or linguistic minority community,
it must predominantly be for its benefit - It is not necessary
that education must be provided in the language spoken by
the minority or on the religion of the minority - For example,
it is not necessary that an educational institution established
for the Tamils in Uttar Pradesh must necessarily prescribe
Tamil as the language of instruction - However, it must be
proved that the institution was established for the benefit of
the tamil-speaking community - This indicia could be proved
by a reference to private communication or speeches about
the necessity of establishing an educational institution for the
community and a recognition of the educational difficulties
faced by the community. [Para 136]
3.3. The third test is tracing the steps taken towards the
implementation of the idea - Information on who contributed
the funds for its creation, who was responsible for obtaining
the land, and whether the land was donated by a member
of the minority community or purchased from funds raised
by the minority community for this purpose or donated
by a person from some other community specifically for
the establishment of a minority educational institution are
elements that must be considered - Similar questions must
be asked of its other assets - Other important questions are:
who took the steps necessary for establishing the institution
(such as obtaining the relevant permissions, constructing
the buildings, and arranging other infrastructure). It is also
important to note that the state may grant some land or
other monetary aid during or after the establishment of the
educational institution - If the land or monies were granted
after the establishment, the grant would not have the effect
of changing the minority character of the institution - Minority
institutions are not barred from receiving aid save at the cost
of their minority status - If the land or monies are granted at
the time of establishment, the circumstances surrounding the
establishment must be considered as a whole to determine
who established the institution - The presence of a grant must
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not be automatically interpreted as leading to the erasure of
a claim to minority status. [Para 137]
3.4. An educational institution is a minority educational institution if
it is established by a religious or linguistic minority - It is not
necessary to prove that administration vests with the minority
to prove that it is a minority educational institution because
the very purpose of Article 30(1) is to grant special rights
on administration as a consequence of establishment - To
do otherwise, would amount to converting the consequence
to a pre-condition - The right to administer is guaranteed to
minority educational institutions to enable them to possess
sufficient autonomy to model the educational institution
according to the educational values that the community
wishes to emphasise - It is not necessary that the purpose can
only be implemented if persons belonging to the community
helm the administrative affairs - This is so particularly
because a minority institution may wish to emphasise secular
education. [Para 138]
3.5. The test to be adopted by the Court is whether the
administrative set up of the educational institution affirms
the minority character of the institution - If the administrative
structure of the educational institution does not reflect its
minority character or when it does not elucidate that the
educational institution was established to protect and promote
the interests of the minority, it may be reasonably inferred that
the purpose was not to establish an educational institution for
the benefit of the minority community - [Para 139]
3.6. The test of administration should be evaluated in praesenti,
that is, on the date of the commencement of the Constitution -
An institution to be a minority institution must satisfy the
criteria of being 'administered' as a minority institution on
the date of commencement of the Constitution, and being
a minority institution on the date of formation - Even if an
educational institution was established by the minority for
the purposes of the community, one must assess the impact
of any subsequent events that altered the character of the
institution before the commencement of the Constitution -
The statutory incorporation of the institution does not ipso
facto amount to a surrender of the minority character of the
institution - The Court must pierce the veil to identify if the
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University was established by a minority for the purpose of
promoting the interest of the community - 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 - The question is whether
the regulatory measures wrest the administrative control from
the founders of the institution - This is a question of fact
which must be determined on the facts of each case - The
Court must make that determination upon a comprehensive
analysis of the administrative framework which includes host
of factors such as the representation of the interests of the
community in the administrative set-up. [Para 140]
3.7. Taken together, these are the main indicia which assist
the Court in determining who established an educational
institution under Article 30 - However, the complex nature
of establishing an educational institution is not lost on us -
Undoubtedly, there can be no straitjacket formula which may
be applied - The above indicia of establishment must be
considered as a whole, along with any relevant facts which
are available to the Court - The matter must be considered
in totality and competing factors must be weighed against
each other depending on the facts and circumstances of
each institution. [Para 141]
3.8. The above indicia must be proved through the submission
of cogent material - Reliance must be placed on primary
sources such as office documents, letters and resolutions
or memorandums issued to implement the resolutions -
Secondary sources must only be used to corroborate the
primary sources - The onus to prove that the educational
institution was established by a minority is on the claimants.
[Para 142]
4.
The declaration of an institution as one of national importance
does not amount to a change in the minority character
of the institution - This is for multiple reasons - First,
Entries in the Lists in the Seventh Schedule delineate the
legislative competence of Parliament and of the legislatures
of the States - The State may regulate various aspects
of education and educational institutions - The field of
legislative competence over universities does not amount
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to a surrender of minority character - The distribution of
legislative competence between Parliament and the State
legislatures does not bear upon the minority character of
the institution - Second, as a matter of principle, nothing
prevents a minority educational institution from being an
institution of national importance - The qualities denoted by
the terms 'national' and 'minority' are not at odds with each
other nor are they mutually exclusive - The former indicates
that the institution has a pan-India or national character, as
opposed to relatively more local or regional institutions - It is
indicative of the importance of the institution on the national
stage - The latter is evidence of the religious or linguistic
background of the founders and the constitutional rights which
vest in them - Each term indicates distinct attributes which
are not antithetical to one another - A university may well
be both national and ergo, of national importance, as well
as minority in character - There is no reason why a minority
educational institution cannot also be an institution of national
importance - Third, Entries 63 and 64 provide Parliament
with the power to declare an institution to be of national
importance - An interpretation that an institution of national
importance cannot be a minority institution would amount to
rendering the fundamental right guaranteed by Article 30(1)
subservient to the legislative power of Parliament - Parliament
can in terms of Entries 63 and 64 declare any institution to
be of national importance. [Para 148]
5.
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. [Para 160(b)]
6.
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). [Para 160(c)]
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7.
The right guaranteed by Article 30(1) is applicable to
universities established before the commencement of the
Constitution. [Para 160(d)]
8.
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.
[Para 160(e)]
9.
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. [Para 160(f)]
10. 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. [Para 160(g)]
11.
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
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placed before the regular bench for deciding whether AMU
is a minority educational institution. [Para 161]
Held [per Surya Kant, J.]:
1.
The minority institutions established in the pre-Constitution
era are also entitled to the protection conferred by Article
30. [Para 192(g)]
2.
Educational institutions, with reference to Article 30 include
universities as well. [Para 192(h)]
3.
In order to seek protection under Article 30 of our Constitution,
the minority institution must satisfy the conjunctive test, namely
that it was established by a minority community and has been/
is being administered by such a community. [Para 192(i)]
4.
The true import and meaning of the expressions 'establish'
and 'administer', which comprise the very core of Article 30,
are to be construed and understood strictly in accordance
with the indicia in paragraphs 141 and 181. [Para 192(j)]
5.
The question pertaining to whether AMU satisfies the
abovementioned test of 'establish' and 'administer' so as to
seek protection of Article 30 of the Constitution, and which
will concomitantly entail a mixed question of facts and law,
will be determined by a Regular Bench. [Para 192(k)]
Held [per Dipankar Datta, J.]:
1.
While the majority opinion seems to have identified
establishment as the sole indicium, Hon'ble Surya Kant and
Hon'ble Satish Chandra Sharma, JJ - have laid equal stress
on administration apart from establishment as the indicia -
Inasmuch as the broad criteria which can be used to assess
the status of an educational institution is concerned, I express
my agreement with the indicia laid out by Their Lordships.
[Para 54]
2.
Certain broad indicia, which are universally applicable, may
be applied prospectively to facilitate identification of minority
institutions - However, any indicium or the indicia, as identified
or formulated, for treating an institution as a minority institution
may not be exhaustive so as to cater to all situations - Previous
decisions of this Court have also determined the minority
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character of educational institutions vis-à-vis Article 30, as per
indicia tailored to the specific factual matrices - It could be
well-nigh difficult, if not impossible, to fix indicia without regard
to a whole lot of relevant facts and circumstances, which might
have escaped notice or may not have been visualized - A
flexible framework rather than a rigid one-size-fits-all model
is always desirable and essential for accurately assessing
minority institution status - Having regard to special features
that each minority institution is most likely to have, a nuanced
approach would be required to identify minority institutions
by balancing the general guidelines with unique institutional
circumstances - The indicia, which have been proposed, could
partly inform classification of minority institutions but a tailored
evaluation is all the more necessary to account for distinct
characteristics which each such institution is associated with;
more so, when AMU is unique in itself and its status is under
consideration as a standalone institution. [Para 57]
3.
It is no longer res integra that even institutions established
prior to the Constitution would be eligible to seek the protection
of Article 30(1), as was expressed by this Court in Re: The
Kerala Education Bill, 1957. [Para 67]
4.
The claim of the appellants cannot stand - AMU was neither
established by any religious community, nor is it administered
by a religious community which is regarded as a minority
community; hence, AMU does not qualify as a minority
institution - Protection under Article 30(1) of the Constitution
is, thus, not available - This submission of the appellants
has no historic, legal, factual, or logical basis. [Para 149]
5.
In terms of clause (5) of Article 145 of the Constitution, not only
do the references not require an answer, it is also declared
that AMU is not a minority educational institution and that the
appeals seeking minority status for it should fail. [Para 150]
Held [per Satish Chandra Sharma, J.]:
1.
The 'establishment' of an institution by the minority is
necessary for the said minority to claim right of administration
under Article 30 - The words 'establish' and 'administer' are
used conjunctively in Article 30 of the Constitution. [Para 266]
2.
The term 'establish' in Article 30 means 'to bring into existence
or to create' and cannot be conflated with generic phrases
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such as 'genesis of the institution' or the 'founding moment
of the institution'. [Para 266]
3.
The real positive indicia for determining the question of
establishment of an institution would have to be developed
on a case to case basis with the following broad parameters
in mind:
Firstly, to claim 'establishment', the minority community
must actually and tangibly bring the entirety of the institution
into existence - The role played by the minority community
must be predominant, in fact almost complete to the point
of exclusion of all other forces - The indicia which may
be illustrative and exhaustive in this regard may be the
nature of the institution, the legal/statutory basis required
for establishing the institution, whether the establishment
required any 'negotiation' with outside forces, the role in
acquiring lands, obtaining funds, constructing buildings,
and other related matters must have been held completely
by the minority community - Similarly, while teachers,
curriculum, medium of instruction, etc. can be on secular
lines, however, the decision-making authority regarding
hiring teachers, curriculum decisions, medium of instruction,
admission criteria, and similar matters must be the minority
community - The choice of having secular education in the
institution must be made expressly by the minority community,
demonstrating the link between institution and the persons
claiming to establish it.
Secondly, the purpose of the institution must have been to
predominantly serve the interests of the minority community
or the sole betterment of the minority community, irrespective
of the form of education provided and the mode of admission
adopted - Therefore, as per the choice of the minority
community, an institution may have secular education, but
such secular education and the resultant institution, must
be predominantly meant for the overall betterment of the
minority community.
Thirdly, the institution must be predominantly administered as
a minority institution with the actual functional, executive and
policy administration vested with the minority - The minority
community should determine the selection, removal criteria,
and procedures for hiring teaching, administrative staff, and
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other personnel - The authority to hire and fire staff must
be from the minority community - Further, even if teaching
or administrative staff may include non-minority persons, the
final authority exercising functional, directional, and policy
control over these authorities must be from the minority
community - This ensures that the thoughts, beliefs, and
ideas of the minority community regarding administration are
implemented in reality - This represents the real decisionmaking authority of the institution being of the minority
community - In ascertaining the above, it would be open
for the Court to look at the true purpose behind each of the
above factors and to pierce the veil. [Para 266]
4.
The minority community may conceptualize the idea of an
institution and may advocate for the same, however, if during
exchange or negotiation, the actual institution which was
established had primacy of governmental efforts and control,
then such institution cannot be held to be predominantly
established by the efforts and actions of the minority
community. [Para 266]
5.
In the pre-independence and pre-UGC era, in the absence of
a provision like Section 23 of the UGC Act, 1956, it was open
for any institutions to adopt the titles such as 'university' or in
some cases 'vidyapeeth' or 'jamia' asserting their capability to
grant degrees - The absence of a legislative embargo from
private establishment of Universities prior to 1956 would be
critical for the scope of enquiry. [Para 266]
6.
The use of the phrase 'establish and incorporate' by the
Legislature may be relevant in the larger enquiry but cannot
be said to be conclusively determinative of the factum of
establishment or not by the minority community - If the
intention of the Legislature is to establish or incorporate
or recognise a minority University, the Legislatures have
incorporated suitable provisions to colour the University with
a minority identity. [Para 266]
7.
There were no rights, fundamental or otherwise, prior to
the Constitution coming into force and therefore, there is
no question of surrendering any right - The British Indian
Government was a supreme Imperial power in the country, and
the question of surrender is illusionary and does not arise in
the present case - The coming into force of the Constitution
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and fundamental right after 1950, cannot alter the events that
occurred during the decade of 1910-1920 which led to the
establishment of the AMU. [Para 266]
8.
There is no legal requirement for the AMU 'Court' to be manned
by the people from the minority community ever since 1951
and therefore, merely because de facto the persons from
the minority community may have manned the posts in the
institution, would not be relevant to adjudicate the question.
[Para 266]
9.
The assertion that 'neutral' institutions or non-minority
institutions would in the natural course of things be 'majoritarian'
or that Article 30 contemplates constitutionally protecting
certain educational spaces from such 'majoritarianism-bydefault' tendencies, is wholly erroneous - The purpose of
Article 30 is not to create 'minority only' ghettos rather provide
positive rights to the minorities to establish educational
institutions of their choice and kind. [Para 266]
10. Article 30, as a feature of the Constitution, provides
important rights which function within the larger penumbra of
fundamental rights - There is substantial interplay, intermixing
and balancing of rights inter se within the fundamental rights
and Article 30 is not absolute and certainly do not exist in a
silo. [Para 266]
11.
The crux of Article 30(1) lies in its mandate to ensure parity
between non-minority [or 'neutral'] institutions and minority
institutions - Its fundamental aim is to prevent any form
of discrimination or preferential treatment to non-minority
communities, thereby advocating for equal treatment under
the law for one and all - This provision underscores that no
specific category or type of institution should be disadvantaged
or unduly favoured over another within the legal framework.
[Para 266]
12. To assume that the minorities of the country require some
'safe haven' for attaining education and knowledge is wholly
incorrect - The minorities of the country have not just joined
the mainstream but comprise an important facet of the
mainstream itself. The institutions of national character of
the country always serve the interests of the minorities and
are diverse centers of learning. [Para 266]
[2024] 11 S.C.R.
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Aligarh Muslim University v. Naresh Agarwal & Ors.
B.
Educational Institution - Minority educational institution -
Status of AMU vis-à-vis minority rights - Whether
the Constitution Bench decision in Azeez Basha was
incorrect.
Held [per Dr D Y Chandrachud, CJI (for himself, Sanjiv
Khanna, J.B. Pardiwala and Manoj Misra, JJ.)]: 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. [Para 161]
Held [per Surya Kant, J.]: The Constitution Bench in Azeez
Basha, when it holds that since Section 6 of the AMU Act, 1920
stipulates that degrees conferred by AMU would be recognised
by the Government, it could not have been 'brought into existence
by a private individual or body', is seemingly incorrect - There
is no conflict between the seven-judge bench opinion in Kerala
Education Bill and the five-judge Constitution Bench in Azeez Basha
on the other - The six-judge Constitution Bench in Sidhajbhai
Sabhai, laying down that the right under Article 30 is absolute and
unconditional, is not the correct principle of law; the judgement is
no more binding in nature and stands effectively overruled in TMA
Pai, to that extent - Consequently, Azeez Basha does not suffer
from any legal infirmity on the premise that it did not cite or follow
Sidhajbhai Sabhai. [Para 192(a), (b) and (f)]
Held [per Dipankar Datta, J.]: Not only is Azeez Basha a judicial
verdict more than half a century old on the status of AMU vis-àvis minority rights, but it has a strong foundational basis and is
anchored in robust legal reasoning - The view taken therein, in the
given facts and circumstances, is indeed a plausible view which
demands due deference rather than the view being overruled at
this distance of time. [Para 14]
Held [per Satish Chandra Sharma, J.]: The notion that Azeez
Basha categorically prohibits minorities from establishing universities
due to statutory requirements is unfounded - The bench in Azeez
Basha and present bench are faced with a unique situation and
needs to adopt a suitably modulated approach - The judgment
in Azeez Basha does not preclude minorities from establishing
universities but rather highlights the importance of legislative intent
and statutory provisions in determining an institution's character -
The UGC Act or the judgment in Yashpal, in no manner, comes to
the aid of the parties challenging the correctness of the judgment
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in Azeez Basha - The amendment in the NCMEI Act 2004 does
not come to the aid of the parties questioning the correctness of
the decision in Azeez Basha.
C.
Judicial discipline - Preliminary objection to reference -
Whether two-Judge Bench of Supreme Court in Anjumane-Rahmaniya could not have referred the correctness of
the decision rendered by the Constitution Bench in Azeez
Basha directly to a Bench of seven Judges.
Held [per Dr D Y Chandrachud, CJI (for himself, Sanjiv Khanna,
J.B. Pardiwala and Manoj Misra, JJ.)]:
1.
In Central Board of Dawoodi Bohra Community, a Constitution
Bench discussed the legal precepts which apply to orders of
reference and reiterated the position of law as below:-
a.
Decisions of this Court rendered by a Bench of larger
strength are binding on Benches of a less or equal
strength;
b.
If a Bench of lower strength is doubtful about the
correctness of a judgment delivered by a Bench of
larger strength, it cannot disagree or dissent from the
view taken by the larger Bench - In case of doubt, it
can invite the attention of the Chief Justice of India
to its opinion and request the Chief Justice to list
the matter before a Bench, the strength of which is
greater than that which delivered the judgment which
has been doubted;
c.
The correctness of the view taken by any Bench can
only be doubted by a Bench of equal strength - The
matter will then be placed for hearing before a Bench
of greater strength;
d.
There are two exceptions to the rules: i. The discretion
of the Chief Justice is not bound by the rules - As the
master of the roster, the Chief Justice may list any case
before any Bench of any strength; ii. Despite the rules,
if a particular case has come up for hearing before a
Bench of larger strength and that Bench is of the opinion
that the judgment of the Bench of lower strength requires
reconsideration or correction, or is otherwise doubtful
of its correctness, it may dispense with the need for a
[2024] 11 S.C.R.
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Aligarh Muslim University v. Naresh Agarwal & Ors.
reference in the terms described above or an order of
the Chief Justice and hear the matter for reasons given
by it. [Para 37]
2.
The position of law laid down in Central Board of Dawoodi
Bohra Community is correct - Decisions of a larger Bench
are binding precedent, and judicial discipline and propriety
dictate that Benches of lower strength must adhere to
such decisions - This will also avoid inconsistencies in the
development of law - Questions concerning the correctness
of judgments must ordinarily be referred only by a Bench
which is equal in strength to the Bench whose judgment is
doubted - We also agree with the two exceptions to this
rule, as detailed by this Court in Central Board of Dawoodi
Bohra Community - They must remain exceptions and not
transmogrify into the rule itself. [Para 38]
3.
The three issues which required an authoritative
pronouncement in Anjuman-e-Rahmaniya, were not directly a
point of contention in Azeez Basha - However, the decision
would have a bearing on them - Doubting the correctness of
the opinion in Azeez Basha, without disagreeing with it, the
two-Judge Bench requested that the matter may be placed
before the Chief Justice of India for being heard by a Bench
of seven Judges - This falls within the permissible limits
laid down in Central Board of Dawoodi Bohra Community -
Further, the Solicitor General has also stated that he is not
pressing the Union's preliminary objection - The order of
reference dated 12 February 2019 (wherein a three-Judge
Bench of this Court observed that the correctness of the
question arising from the decision in Azeez Basha was
unanswered, and then referred the matter to a seven-Judge
Bench), too, noted that although a three-Judge Bench
could not ordinarily refer a case directly to a seven-Judge
Bench, it was doing so in this case because the question
was already referred to a Bench of seven Judges but was
not answered. [Para 39]
4.
The reference in Anjuman-e-Rahmaniya 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. [Para 160(a)]
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Held [per Surya Kant, J.]:
1.1. The two-judge bench in Anjuman, after expressing doubt
about the correctness of Azeez Basha and its principles,
referred the matter for reconsideration to a larger bench -
Additionally, the bench in Anjuman specifically stated that
the larger bench reviewing Azeez Basha - A decision by
a five-judge bench-Should consist of seven judges - The
decision further directed that the matter be placed before
the Hon'ble Chief Justice for appropriate directions - Such
a reference is not consistent with the established norms of
judicial propriety.