Is right to establish minority institution contingent on State recognition, Supreme Court asks government

The Constitution Bench was hearing a reference related to the minority status of Aligarh Muslim University

The Aligarh Muslim University campus. | Photo Credit: Sandeep Saxena

Chief Justice of India D.Y. Chandrachud, heading a seven-judge Bench, on Tuesday asked whether a minority community’s right to establish an educational institution or university be dependent on State recognition.

The Constitution Bench was hearing a reference related to the minority status of Aligarh Muslim University (AMU).

The Chief Justice said minorities have a right under Article 30 of the Constitution to establish and administer educational institutions.

The Bench asked whether even the right to establish such an institution or university would be contingent on the State recognising it through an enabling statute.

“Then you are making a constitutional right subservient to a statute,” Chief Justice Chandrachud addressed Attorney General R. Venkataramani, for the Union.

The court was responding to an argument by Mr. Venkataramani that there should be some authority of law to establish a university.

It cannot be ‘I desire, therefore, I set up’,” the top law officer said.

“When you seek recognition for your university, it must be according to the provisions of a regulatory statute — the award of degrees; the course of study; their length and duration; aid from the State; the qualification and experience of the faculty — all this would be according to a regulatory statute which would ensure that your institution is one of excellence. Even minority institutions should not fall below a national standard… But can the right to establish a minority institution be contingent on recognition by an enabling statute? That would be an overdrawn argument,” the Chief Justice asked.

The court further asked whether State recognition of a university or setting up of one under a law would necessarily deny an institution minority status despite the fact that it was founded by members of a religious or linguistic minority.

Azeez Basha case

A five-judge Bench, in S. Azeez Basha versus Union of India case in 1967, had held that AMU was a Central university and cannot be considered a minority institution.

The university, established in 1875, had got its minority status back when the Parliament enacted the AMU (Amendment) Act in 1981. In January 2006, the Allahabad High Court, however, struck down the provision of the 1981 law by which the university was accorded the minority status. The issue was referred to a seven-judge Bench in 2019.