Minority can claim right of administration to an institute only if that “minority” has established that institute - The "establish" means “to bring into existence”

Aligarh Muslim University was held not to a minority institute.

The petitioners in this case stated the Aligarh Muslim University was set up by the Muslims, only Muslim Minority can control and administer it. The Supreme Court rejected the arguments, tracing the History and applying the Constitutional Provisions.

Simply put in 1877 Muhammadan Anglo-Oriental College was established in Aligarh. The college was a teaching institution affiliated to the Calcutta University at first and subsequently to the Allahabad University. The imperial legislature passed the Aligarh Muslim University Act 1920 "AMU Act". The enactment, as the preamble indicates, "established and incorporated" Aligarh Muslim University.

The petitioners made a three-fold argument: (a) AMU was established by Muslims, who are a religious minority for the purposes of Article 30(1); (b) Article 30(1) guarantees Muslims the right to administer the University es-tablished by them; and (c) the 1951 and 1965 Amendments are violative of Article 30(1) to the extent that it infringed the right of the Muslim community to administer the institution

The Supreme Court observed that 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. The term "establish" in Article 30 means "to bring into existence or to create" and cannot be conflated with generic phrases such as "genesis of the institution" or the "founding moment of the institution".Supreme Court held that 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.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.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 other personnel.Supreme Court relied on its earlier judgement in S. Azeez Basha v. Union of India, (SC) : Law Finder Doc Id # 109451 to negate the claim of the petitioners that the University was established and controlled by the Muslim Minority

The Court held that when the AMU was established, by virtue of Section 6 of the 1920 Act, its degrees were recognised by Government and in that manner, an institution was brought into existence which could not be brought into existence by any private individual or body.

The Court noted that the Central Legislature established the AMU through the 1920 Act as the minority could not establish a university whose degrees were to be recognised by Government. The Court noted that the 1920 Act was passed as a result of the efforts of the Muslim Minority but it would not mean that the AMU, as a University granting government recognised degrees in 1920, was established by the Muslim Minority.

The Court held that the University was brought into existence by the 1920 Act for it could not have been brought into existence otherwise. Thus, the Court held that since AMU was not established by the minority, and therefore, the amendments of 1951 and 1965 cannot be struck down as being un-constitutional under Article 30(1)

The Court finally held that administration was also not vested in the Muslim Minority rather it was vested in the statutory bodies created by the 1920 Act. It noted that only the `Court' was minority only body in 1920, amended in 1951, but the electors for some of the members included non-minorities. On the totality of the factors, the Court held that AMU was neither established nor administered by the minority.

Aligarh Muslim University v. Naresh Agarwal (SC)(Constitution Bench) : Law Finder Doc Id # 2662503