NEW DELHI: Three judges on the seven-judge bench penned powerful dissents to the CJI D Y Chandrachud-authored majority opinion on behalf of four judges and were unanimous that the 1967 Azeez Basha judgment had correctly decided that Aligarh Muslim University (AMU) was not a minority educational institution.
Justices Surya Kant, Dipankar Datta and Satish C Sharma faulted the decision of a two-judge bench in 1981 to directly refer the dispute over the minority character of AMU to a seven-judge bench and called this judicial indiscipline.
They said the 1967 judgment correctly stated that to earn minority tag, an educational institution must be both established and managed by the minority community, which was found to be lacking in AMU, which was incorporated as a university in 1920 by a law passed by the imperial parliament and subsequently amended in 1951 and 1965.
On the reference to a seven-judge bench, which the majority opinion termed valid, Justice Datta asked, "If tomorrow a two-judge bench doubts the 'basic structure doctrine' propounded by a 13-judge bench in Kesavananda Bharati case, can it directly refer the issue to a 15-judge bench?"
Justice Kant, in his 102-page opinion, analysed the two crucial parameters - establish and administer - relating to an educational institution getting 'minority tag' under Article 30(1). He said to prove that an educational institution was 'established' by the minority community, its mere establishment by the minority community would not be enough as it must be further proved that it was for the benefit of that community.
On the administration issue, Justice Kant said, "The core part of administration, both de jure and de facto, of the institution must remain in control of the minority community... it must be largely free from external control and must have broad autonomy to mould the institution's functioning and administration as per the idea of what would be best for the community."
Sounding a caution against a two-judge bench referring the issue directly to a seven-judge bench, Justice Kant said this "would dilute the authority and position of the Chief Justice of India".
Justice Datta was categorical in saying that "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".
He said that protection of Article 30(1) of the Constitution was not available to AMU and rejected the university's claim for minority tag, saying its arguments had no historic, legal, factual or logical basis.
Justice Datta said from the evidence and the documents put before the court, "it is clear that the Muslim community had no intention to administer AMU which was left to be worked out as per the AMU Act".
"AMU is a creature of a statute and is engaged in discharging public duties. By passage of time, AMU happens to be one of the foremost central universities in the country. It is, however, entirely dependent on finances allocated by the central govt. It is mandatorily required to function as per the AMU Act as well as provisions of other enactments. There can, thus, be no doubt that AMU is an Article 12 authority (a govt established entity)," he said.
As it is a government entity, admissions to AMU must be based on merit and provide for reservations to students belonging to Scheduled Castes, Scheduled Tribes, OBC and EWS categories, Justice Datta said.
In his "neutral" opinion, Justice Sharma laid down parameters for determining minority character of an educational institution and said protection to minority educational institutions under Article 30(1) was meant only to prevent discrimination and preferential treatment to non-minority institutions.
"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," he said.
Justices Surya Kant, Dipankar Datta and Satish C Sharma faulted the decision of a two-judge bench in 1981 to directly refer the dispute over the minority character of AMU to a seven-judge bench and called this judicial indiscipline.
They said the 1967 judgment correctly stated that to earn minority tag, an educational institution must be both established and managed by the minority community, which was found to be lacking in AMU, which was incorporated as a university in 1920 by a law passed by the imperial parliament and subsequently amended in 1951 and 1965.
On the reference to a seven-judge bench, which the majority opinion termed valid, Justice Datta asked, "If tomorrow a two-judge bench doubts the 'basic structure doctrine' propounded by a 13-judge bench in Kesavananda Bharati case, can it directly refer the issue to a 15-judge bench?"
Justice Kant, in his 102-page opinion, analysed the two crucial parameters - establish and administer - relating to an educational institution getting 'minority tag' under Article 30(1). He said to prove that an educational institution was 'established' by the minority community, its mere establishment by the minority community would not be enough as it must be further proved that it was for the benefit of that community.
On the administration issue, Justice Kant said, "The core part of administration, both de jure and de facto, of the institution must remain in control of the minority community... it must be largely free from external control and must have broad autonomy to mould the institution's functioning and administration as per the idea of what would be best for the community."
Sounding a caution against a two-judge bench referring the issue directly to a seven-judge bench, Justice Kant said this "would dilute the authority and position of the Chief Justice of India".
Justice Datta was categorical in saying that "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".
He said that protection of Article 30(1) of the Constitution was not available to AMU and rejected the university's claim for minority tag, saying its arguments had no historic, legal, factual or logical basis.
Justice Datta said from the evidence and the documents put before the court, "it is clear that the Muslim community had no intention to administer AMU which was left to be worked out as per the AMU Act".
"AMU is a creature of a statute and is engaged in discharging public duties. By passage of time, AMU happens to be one of the foremost central universities in the country. It is, however, entirely dependent on finances allocated by the central govt. It is mandatorily required to function as per the AMU Act as well as provisions of other enactments. There can, thus, be no doubt that AMU is an Article 12 authority (a govt established entity)," he said.
As it is a government entity, admissions to AMU must be based on merit and provide for reservations to students belonging to Scheduled Castes, Scheduled Tribes, OBC and EWS categories, Justice Datta said.
In his "neutral" opinion, Justice Sharma laid down parameters for determining minority character of an educational institution and said protection to minority educational institutions under Article 30(1) was meant only to prevent discrimination and preferential treatment to non-minority institutions.
"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," he said.
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