The Court will deliberate on the parameters for granting minority stautus to an educational institution under Article 30 of the Constitution. The case will determine whether Aligarh Muslim University (AMU) will be able to retain its status as a Minority Instution.
The Supreme Court on 12th Feburary, 2019 referred the issue of AMU's (Aligarh Muslim University) status as a Minority Instution to a 7 judge Constitution Bench. A 3 Judge bench comprising CJI Ranjan Gogoi, Justices Nageshwar Rao and Sanjeev Khanna referred the matter to a larger Bench.
The controversry arose when the Allahabad High Court in 2006 cancelled the Minority Status of Aligarh Muslim University by relying on the 1967 Constitution Bench judgment in Azzez Basha. Following which, the then UPA Government along with AMU challenged the Allahabad High Court judgment. But, in 2016 the NDA government sought to withdraw the appeal by saying that Azzez Basha, and later the Allahabad High Court, correctly interpreted the law. However, AMU protested against the withdarwal of the appeal, saying that the change in government's position was due to political consideration.
Article 30 gives Minorities, both linguistic and religious, the fundamental right to establish and administer educational institutions of their choice. However, in Azzez Basha, the Court denied minority status to AMU on the ground that it was not created by a minority individual or body, but rather by a Central Legislature in 1920. On that basis, it held AMU to be a Central University and not a Minority Institution. In Azzez Basha, the Court observed that the fundamental right to establish and administer educational institutions would apply only if the minorities have "established" it in a literal sense. It held that since AMU was legally established by the Central Legislature through AMU Act 1920, it cannot be said to be a Minority Institution.
To nullify the effect of Azzez Basha, the Parliament passed the Aligarh (Amendment) Act, 1981 restoring the Minority status of AMU. This Amendment was struck down by the Allahabad High Court and this led to a joint appeal by AMU and the UPA Government in 2006.
On 12.02.2019, Senior Counsel Rajeev Dhavan appearing for AMU had sought reference to a 7 judge Bench to decide on the correctness of the 5 Judge Bench in Azzez Basha. He argued that the erroneous effect of Azzez Basha is that no University can be granted a Minority status despite there being a fundamental right to establish Minority Institutions under Article 30. Attorney General K.K. Venugopal opposed the argument by stressing that Azzez Basha is good law and has been rightly applied by the Allahabad High Court in 2006. On hearing both sides, the Supreme Court referred the matter to a 7 Judge Constitution Bench.
2) What are the parameters for granting an educational institution Minority Status under Article 32 of the Constitution?
1) Can an educational institution created by a parliamentary statute enjoy Minority Status under Article 32 of the Constitution?