1

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2861 OF 2006

ALONG WITH

CIVIL APPEAL NOS. 2286, 2316, 2320, 2321, 2319, 2317 & 2318 OF 2006

IN THE MATTER OF:

Aligarh Muslim University Old Boys Alumni Association … APPELLANT

VERSUS

Naresh Agarwal …RESPONDENTS

VOLUME I-C
WRITTEN SUBMISSIONS ON BEHALF OF SR. ADV. KAPIL SIBAL

FOR THE APPELLANT

Table of Contents

Part A: Historical Context and Genesis of the Institution ......................................................... 4

Part B: Errors in Azeez Basha................................................................................................... 9
Part C: Indicia ....................................................................................................................... 25

1. This reference arises out of an Order dated 12 February 2019 in Civil Appeal

No.2286 of 2006 by which a three-judge bench comprising of Chief Justice

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Ranjan Gogoi (as he then was), Justice L. Nageswara Rao and Justice Sanjiv

Khanna referred the question of the correctness of the view expressed in S. Azeez

Basha and Anr. v. Union of India reported in 1968 AIR 662 (hereinafter

referred to as “Azeez Basha”) for consideration by a bench comprising seven

judges along with the following constitutional question that had been framed for

consideration by eleven judges in TMA Pai v. State of Karnataka, (2002) 8 SCC

481, but was left to be answered by the regular bench: (CCC Vol. 3A @pg 3)

order of reference (CCC Vol. 3A @pg 216)

“3(a) What are the indicia for treating an educational institution as a minority

educational institution? Would an institution be regarded as a minority

educational institution because it was established by a person (s) belonging

to a religious or linguistic minority or its being administered by a person (s)

belonging to a religious or linguistic minority?”

2. The present reference arose in the context of appeals filed against a judgement

and order dated 05.01.2006 passed by the Hon’ble Allahabad High Court in

Special Appeal No. 1321 of 2005 wherein it was held that the Aligarh Muslim

University (AMU) is not and never has been a minority educational institution

and thus, Article 30 of the Constitution of India does not apply to them

(hereinafter referred to as the “Impugned Judgement”). (CCC Vol. 3A @pg 29

at 59)
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3. The Impugned Judgement also held that AMU cannot provide reservation to

students belonging to Muslim community and consequently quashed Resolution

dated 15.01.2005 passed by the Academic Council and Resolution dated

19.02.2005 passed by the Executive Council approving G.O.I Order dated

25.02.2005 which provided for 50% reservation for Muslims.

4. The Impugned Judgement relied upon the judgement of this Hon’ble Court in

Azeez Basha and held that the statutory amendments to AMU Act passed in 1981

is a usurpation of judicial power and declared amended Sections 2(l), 5(2)(c) and

the amended Preamble as unconstitutional (CCC Vol 4A @pg 48). Several SLPs

including by the present Petitioner came to be filed before this Hon’ble Court

against the said judgment.

5. During the course of hearing of the said matters, this Hon’ble Court noted that

the issue arising in Azeez Basha had been referred to a bench of seven (7) judges

in Anjuman-e-Rahmania v. Distt Inspector of Schools, but was not decided

when that matter was heard along with the batch in TMA Pai (supra). It was for

this reason that question 3(a) above along with the question of correctness of the

decision in Azeez Basha was placed before this bench of seven (7) learned judges

by the reference order dated 12 February 2019.

6. In these written submissions, the Appellants strenuously contend that the said

holding in Azeez Basha re the indicia of a minority educational institution

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(hereinafter referred to as “MEI”) and its application to the Aligarh Muslim

University is incorrect and ought to be overruled. Therefore, these submissions

are structured into three parts. Part A discusses the historical context of the

genesis of the institution. Part B evaluates each finding in Azeez Basha and

provides reasons for why they cannot be sustained. Part C of these submissions

then answers the constitutional question for reference, i.e. what are the indicia for

treating an educational institution as a minority educational institution?

Part A: Historical Context and Genesis of the Institution

7. The Aligarh Muslim University (AMU) was established as far back as 1870 when

Late Sir Syed Ahmad Khan studied the prevailing conditions and found the

Muslim community to be neglected and backward due to their neglect of modern

education. He conceived the idea of the University and further organised a

committee to devise means for the educational regeneration of the Indian

Muslims. It was then decided to establish a Muhammedan college for the

educational advancement of Muslims in India.

8. On 12.05.1872 a society called “The Muhammedan Anglo-Oriental (M.A.O)

College Foundation Committee” started collecting subscriptions to realise the

goal that Sir Syed Ahmad Khan had conceived.

9. Not only did the college impart liberal education to Muslims in literature and

science but also instructions were to be given in Muslim religion and traditions.
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In consequence of the efforts of the committee, a school was opened in May 1873.

In 1876, the school became a high school and in 1877, Lord Lytton, the then

Viceroy of India, laid the foundation stone for the establishment of a college.

10. By the turn of the 19th century, the idea of establishing a Muslim University

gathered strength and funds were collected towards this goal. By 1911, a Muslim

University Association was established for the purpose of establishing AMU as

a Muslim University. Thereafter, long negotiations began between the

Association and the Government of India.

11. A large sum of money was collected by the Association for the University as the

Government of India had made it a condition that Rs 30 lakhs must be collected

for the University before it could be established. This detailed history is

recounted in the list of dates appended to the present submissions as Annexure

A.

12. As a culmination of this process, the Aligarh Muslim University Act, 1920 was

enacted. The Act itself sets out the genesis of the foundation of this University

by the Muslim Community.

13. The scheme of the Act is as follows:

The long title states that this is: “An act to establish and incorporate a

teaching and residential Muslim University at Aligarh”.

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The Preamble of the Act states: Whereas it is expedient to establish and

incorporate a teaching & residential Muslim University at Aligarh (emphasis

added).

Section 4 states that all rights, powers and privileges of the Societies of MAO

College should transferred and vested in the University.

Section 5 of the Act elaborates the Powers of the University which are, in

effect, the powers to enable the administration of the Institution.

5(2) – to promote Oriental and Islamic Studies and give instruction in

Muslim Theology and Religion and to impart moral & physical

training.

5(12) – to do all such other acts and things whether incidental to the

powers aforesaid or not as may be requisite in order to further the

objects of the university as a teaching and examining body to cultivate

and promote art, science and other branches of learning including

professional studies, technology, Islamic learning and Muslim

Theology and to promote the interest of its students (emphasis added).

Section 7: A sum of rupees 30 lakhs which were collected by the Muslims

Community were used to create a reserve fund for the recurring expenditure

of the University. (emphasis added)

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Section 8: Special provision for the observance of the Purdah by exempting

women from attending lectures and tutorial classes.

Section 9: Compulsory instructions in Muslim religion for the Muslim

students.

Section 12: Establishment and maintenance of Intermediate Colleges and

Schools for the purpose of preparing students for admission to the University

with provision for instructions in Muslim Religion & Theology in such

colleges and schools (emphasis added).

Section 17: Chancellor shall be elected by the Court and will be the head of

the University.

Section 18: Pro-chancellor shall be elected by the Court.

Section 19: The Vice-Chancellor shall be elected by the Court from

amongst its members.

Section 20: The Pro-Vice Chancellor shall be appointed by the Court.

Section 23: Powers and Composition of the University Court

i. No person other than a Muslim shall be a member of the Court.

ii. The Court shall be the supreme governing body of the university

and shall exercise all the powers of the university not otherwise

provided for by this Act, Statute, Ordinances and the Regulations. It

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shall have power to review acts of the Academic Council &

Executive Council.

Section 27 (j): The instruction of the Muslim students in Muslim religion

and Theology Statutes may be provided for the instructions of the students in

Muslim Religion and Muslim Theology.

Section 28(c) No Statute dealing with the instruction of Muslim

students in Muslim Religion Theology shall require the approval of Visiting

Board and Governor General in Council.

Statute 8: Composition of the Court – List of 124 foundation members

given as annexure appended to the Act, contained the names only of

eminent members of the Muslim Community.

Statute 20: All faculty appointments by the Executive Council would be

under the general control of the Court.

Statute 21 : Registered Graduates have to be either of AMU or if of other

universities must have been students of MAO college for at least two years.

14. It is abundantly clear from the above provisions that the character of the

University was in its name itself: The preamble and the long title of the 1920 Act

specify its purpose as a “Muslim University” at Aligarh. The money for the

conversion of MAO College into a University was raised primarily by the Muslim
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community. Compulsory instruction in Muslim religion for Muslim students was

provided, and the University Court was conceived as a “supreme governing

body” that would be composed only of Muslims. The Court elected the

Chancellor, and elected the Vice-Chancellor from amongst its members.

15. Section 28(c) was a crucial provision which provided that no statute dealing with

the instruction of Muslim students in Muslim religion shall require the approval

of the Visiting Board and Governor General in Council. This provision is another

clear indication of the Minority Character of Aligarh Muslim University.

Part B: Errors in Azeez Basha

16. It is respectfully submitted that the findings in Azeez Basha cannot be sustained

for the following reasons:

16.1. The history and genesis of the Aligarh Muslim University shows that the

University owes its inception and existence to the Muslim community. It is

hence “established” by a minority community. The test of “establishment”

cannot possibly be a formalistic test of whether or not a University is given

state recognition or incorporated through an enactment of the Central or State

Legislature, particular in light of the fact that now under the UGC

(Establishment of and Maintenance of Standards in Private Universities)

Regulations, 2003, all private universities must be established under a

separate State Act.

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16.2. It cannot be argued that an MEI surrenders its minority status in exchange for

state recognition of the degrees awarded by it. If that were to be the case,

Article 30 would become a dead letter. State recognition of the degrees

awarded by a University is sine qua non for its existence, and if State

recognition of degrees issued by a University established as an MEI comes at

the price of its minority status, there is effectively no right in the minority

communities under Article 30 to establish Universities of their choice.

16.3. It has been held by an 11 Judge Bench of this Hon’ble Court in T.M.A. Pai v.

State of Karnataka (2002) 8 SCC 481 @ para 136, that the right to

administer a University does not include within it the right to mal-administer.

As such, argument in Azeez Basha that the existence of supervisory control

or regulation by the State over an MEI is indicative of a community having

relinquished its right to administer the University runs contrary to TMA Pai.

16.4. Similarly, the intake of students who belong to communities other than the

minority that has established the MEI, or the absence of compulsory religious

instruction, does not result in a loss of minority status under Article 30 as

those are constitutional requirements under Articles 14, 15 and 28 of the

Constitution.

The main reasons given in Azeez Basha for denial of minority status to Aligarh

Muslim University are enumerated and analysed in detail below:

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I. Finding in Azeez Basha: Because Aligarh Muslim University came into

existence through an Act of the Central Legislature, it was ‘established’ by the

legislature and cannot be said to have been ‘established’ by the minority

community.

17. Despite acknowledging that the historical genesis of AMU lay in initiatives taken

by the Muslim community, this Court in Azeez Basha held that prior to the

Constitution coming into force, the Muslim minority could have established a

University without state recognition, but chose instead to incorporate a

University by legislation in order to have their degrees recognised by the

Government. As such, the moment it was incorporated by an Act of the

Legislature, it surrendered its minority status and could no longer be categorised

as an MEI. This argument, if accepted, would reduce Article 30 to a dead letter

for the following reasons:

17.1. First, prior to the Constitution coming into force, while private individuals

were empowered to establish a University, the degrees of such University

were not bound to be recognised by the Government. Essentially, a private

individual could establish a University, but the degrees they awarded would

be meaningless and technically add no qualifications to a student because the

degree is not recognised by the Government. Under such circumstances, a

minority community seeking to establish a University has no choice but to

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seek the help of the Government in formally establishing the University.

Therefore, to aver that an MEI in the nature of a University that is initiated

and promoted by a minority community would lose its minority status in law

because it was required of them to obtain Governmental recognition through

a legislation to have their degrees recognised is to render Article 30 a dead

letter, for no educational institution could be even marginally viable without

recognition. It is apposite to note that Azeez Basha recognises that an absence

of state recognition would not have attracted many students (thus

acknowledging the lack of viability of the institution itself).

17.2. Post the Constitution of India coming into force, the establishment of

Universities is now governed by UGC Act, 1956 and the UGC (Establishment

of and Maintenance of Standards in Private Universities) Regulations, 2003

(quoted below) issued thereunder, by which all private universities have to

now be established under a separate State Act. Regulation 3 of this reads as

follows:

“UGC (Establishment of and Maintenance of Standards in

Private Universities) Regulations, 2003

3. Establishment and recognition of Private Universities

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3.1. Each private university shall be established by a separate

State Act and shall conform to the relevant provisions of the

UGC Act, 1956, as amended from time to time.”

17.3. It is clear from the reading of this regulation that all private Universities “shall

be established” by a separate State Act. This is a mandatory requirement.

Such a mandatory and technical requirement of the law cannot erode the

fundamental rights of minorities under Article 30.

17.4. At this juncture, it is pertinent to note the meaning of the word “Establish” as

under Article 30 of the Constitution. “Establish” in the sense of Article 30 is

a reference to the genesis, i.e., the historical initiative, impetus, promotion,

and purpose behind the institution, and not a reference to the legal routes the

University must follow to receive State recognition. If the genesis of the

University can show that the initiative, impetus and promotion is owed to a

particular minority community, then such University must be said to be

“established” by such community under Article 30. In this sense, the word

‘establish’ is akin to the word ‘found’ - an equivalency which was accepted

by a Constitution Bench of this Hon’ble Court sitting as a bench of 6 judges

in State of Kerala v. Very Rev Mother Provincial, 1971 (1) SCR 734 @ para

8 [CCC Vol5A @p.166]. Fulfilling a mandatory requirement of the law to

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bring the educational endeavour to fruition, does not make the University any

less established by the minority community.

17.5. Further, Section 10 of the National Commission for Minority Educational

Institutions Act, 2004 (quoted below), insofar as it makes a reference to

Universities established ‘by’ a law, would be rendered otiose if the

interpretation in Azeez Basha is upheld. Section 10 of the Act reads as

follows:

“National Commission for Minority Educational Institutions

Act, 2004

Section 10 - (1) Subject to the provisions contained in any other

law for the time being in force, any person, who desires to

establish a Minority Educational Institution may apply to the

competent authority for the grant of no objection certificate for

the said purpose.

(4) The applicant shall, on the grant of a no objection certificate

or where the Competent authority has deemed to have granted

the no objection certificate, be entitled to commence and proceed

with the establishment of a Minority Educational Institution in

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accordance with the rules and regulations, as the case may be,

laid down by or under any law for the time being in force.

17.6. Section 10 makes the following apparent: (i) that the establishment of an MEI

may originate from a person or a community; (ii) such person must obtain an

NOC from the competent authority and (iii) in order to proceed with

establishment, the applicable rules and regulations as laid down by or under

law must be followed. This necessarily could only mean that the origin of a

University as an MEI commences as the desire of a person from a minority

community to establish one for the purpose of the minority community,

following which all the regulations as laid down by the law must be followed

for such desire to come to fruition. Section 10 therefore recognises the

presence of other laws that may lay down requirements that a prospective

University must follow. The words “by or under any law” signify the interplay

between the general UGC regulations applicable to all Universities and

Section 10 of the NCMEI Act, 2004. Therefore, the finding in Azeez Basha is

ex facie erroneous.

17.7. Several Universities have been granted minority status by the National

Commission for Minority Educational Institutions that have been enacted by

Acts of State Legislature. All of these would lose their minority status if the

reasoning in Azeez Basha is accepted.

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II. Finding in Azeez Basha: MAO Societies surrendered their minority status in

return for recognition of their degrees granted by the 1920 Act

18. It is respectfully submitted that this finding is incorrect for the following reason.

Each University, for its degrees to be recognised, follows one of the following

routes:

A. An existing institution is recognised and incorporated as a University

by means of a statute

B. A new institution is incorporated and granted the status of a University

by a statute

C. An existing institution is granted ‘deemed to be University’ status under

Section 3 of the UGC Act.

19. If by obtaining recognition for its degrees from the State an institution loses

minority status, then institutions established and recognised under all 3 routes

would lose their minority status and the right under Article 30 would become a

dead letter.

20. In TMA Pai (supra) @ para 138 [CCC Vol5A @p.650], it was held that minority

and non-minority institutions have to both comply with the laws of the land, and

that minority institutions must be allowed to do what non-minority institutions

are permitted to do. Thus, any interpretation of the law that prevents a minority

institution from being able to structure an educational institution in a corporeal

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form that allows for its degrees to be recognised by the state would be against the

ratio in TMA Pai (supra). This Hon’ble Court in In re the Kerala Education Bill

(supra) [CCC Vol5A @p.60], has also held that Article 30 applies to educational

institutions that were founded prior to Independence.

21. In so far as the rights of the minority community as enjoyed by the MAO

Societies are concerned, Section 4 of the AMU Act, 1920 states that “all

property, movable and immovable, and all rights, powers and privileges of the

said Societies and all property, movable and immovable, and all rights, powers

and privileges of the Muslim University Foundation Committee shall be

transferred to and vest in the University.” Thus, the substance of the rights

enjoyed by the MAO Societies and the substance of its character as an MEI were

not extinguished by the passing of a legislation. Rather, all rights, powers,

privileges and liabilities were inherited by the new legal entity incorporated

through the AMU Act, 1920, which was a continuation of the MEI founded by

the MAO Societies.

III. Finding in Azeez Basha: Supervisory control of the University is with the State

and the Visitor, who has overriding powers of supervision, is the President of

India
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22. This Hon’ble Court in T.M.A. Pai (supra) @ para 136 cited with approval the

judgment rendered in In Re Kerala Education Bill (supra) where it was held

[CCC Vol5A @p.649]:

“136. Decisions of this Court have held that the right to administer

does not include the right to maladminister. It has also been held that

the right to administer is not absolute, but must be subject to reasonable

regulations for the benefit of the institutions as the vehicle of education,

consistent with national interest. General laws of the land applicable

to all persons have been held to be applicable to the minority

institutions also - for example, laws relating to taxation, sanitation,

social welfare, economic regulation, public d order and morality.

137. It follows from the aforesaid decisions that even though the words

of Article 30(1) are unqualified, this Court has held that at least certain

other laws of the land pertaining to health, morality and standards of

education apply. The right under Article 30(1) has, therefore, not been

held to be absolute or above other provisions of the law, and we

reiterate the same. By the same analogy, there is no reason why

regulations or conditions concerning, generally, the welfare of students

and teachers should not be made applicable in order to provide a

proper academic atmosphere, as such provisions do not in any way

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interfere with the right of administration or management under Article

30(1).”

23. As such, this Hon'ble Court in Azeez Basha has misconstrued the supervisory

role of the Lord Rector and Visiting Board in the amendment of Statutes and

Ordinances. In this context it is important to understand the following:

23.1. The original Statutes which were appended with the Act in 1920 and were

passed by the Governor-General in Council were a result of long negotiations

between the Government of India (as it then was) and the Muslim community.

Such negotiations resulted in preserving the unique character of the MAO

College in the soon to be incorporated University, i.e. its minority Muslim

character. The Lord Rector was given supervisory powers to ensure that no

authority of the University does anything which was contrary to the Act and

Statutes or which in any way changes the original character of the institution

which was converted into a University through an Act.

23.2. Further, the Statutes and Ordinances set out the structure for governance in

the University: for instance the Statutes gave a very crucial role to the Court

in the administration of the University i.e. Constitution of Executive Council

where majority of the members (that is 22 out of 30) were elected by the Court

itself, appointments, election of the Vice-Chancellor and Treasurer and

appointment of the Registrar etc. Any change in Statutes without the approval
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of Lord Rector would have given sweeping powers to the University bodies

which may in future have led to vital changes impinging on the character of

the University. Even the bodies of the University cannot be given the power

to bring radical changes that eviscerate its foundational character as a Muslim

university.

23.3. As any arbitrary changes in the composition of such bodies and mode of

appointment of higher university officials through perverse amendments in

Statutes and Ordinances might impinge upon the original character of the

institution, the AMU Act rightly decided to safeguard against such

eventualities by providing for a Lord Rector and the Visiting Board.

24. Thus, the Appellant respectfully submits that any act by any official of the

University or by any authority of the University which is contrary to Act,

Statutes, and Ordinances is clearly covered by the expression “mal-

administration” and such a right is not part and parcel of Article 30(1). The

decisions of this Hon’ble Court on this issue are clear that right to administer

does not include right to mal-administer.

25. In St. Stephens v. University of Delhi, (1992) 1 SCC 558 @ para 88 [CCC

Vol5A@p.435], a Constitution Bench of this Hon’ble Court held that educational

institutions can and must be regulated in a manner that is “conducive to making

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the institution an effective vehicle of education for the minority community or

other persons who resort to it.”

26. Therefore, it is clear that a provision which ensured efficient administration and

was intended to curb mal-administration has been erroneously interpreted in

Azeez Basha to deny Aligarh Muslim University its minority character.

27. Such provisions for a Visitor are seen in various State enactments regulating

private universities. Further, the Governor is the Visitor / Chancellor of a number

of private universities, both minority and non-minority. This does not make them

state run institutions. By way of illustration, a list of Universities from the Raj

Bhavan Website(s) of certain States are set out in Appendix B to demonstrate

that the same include private universities, both minority and non-minority.

IV. Finding in Azeez Basha: Students of AMU aren’t all Muslims and the

compulsory imparting of religious instruction was taken away after the

Constitution came into force.

28. This Court has categorically held in T.M.A. Pai (supra) @ para 149 [CCC

Vol5A@p.653], and In Re Kerala Education Bill (supra) [CCC Vol5A@p.61]

that the admission of students who belong to other communities does not result

in the MEI shedding its minority character and ceasing to be a minority

institution. In fact, it was also held in In Re Kerala Education Bill (supra) and

affirmed by T.M.A Pai (supra) that the object of Article 29 and 30 being the
 22
conservation of a distinct language, script and culture of a minority, the objective

may be better served by propagating the same amongst members of other

communities.

29. In re Kerala Education Bill (supra) [CCC Vol5A@ p. 62] has clarified that the

choice to impart a broader liberal education does not take away from the minority

character of the institutions:

“As such minorities will ordinarily desire that their children should be

brought up properly and efficiently and be eligible for higher university

education and go out in the world fully equipped ,with such intellectual

attainments as will make them fit for entering the public services, educational

institutions of their choice will necessarily include institutions imparting

general secular education also. In other words, the Article leaves it to their

choice to establish such educational institutions as will serve both purposes,

namely, the purpose of conserving their religion, language or culture, and

also the purpose of giving a thorough, good general education to their

children.”

30. Thus, in order for AMU to qualify as a minority educational institution, it is not

necessary that all students must belong only to that minority community.

Provisions regarding non-discrimination on the basis of caste, creed, race or class

 23
are seen in the governing statutes of a large number of Universities recognised as

minority educational institutions by NCMEI.

31. Finally, doing away with compulsory imparting of religious instruction (Section

9 of the AMU Act, which was repealed) does not divest an MEI of its minority

character. Compulsory religious education, being inconsistent with Article 28 of

the Constitution, had to be done away with. However, Section 5(2)(a) and (c) of

the AMU Act, 1920, as amended, retains provisions for religious instruction and

to promoting “especially” the educational and cultural advancement of Muslims

of India under the powers of the University:

“Section 5(2) (a) to promote Oriental and Islamic studies and give

instruction in Muslim theology and religion and to impart moral and

physical training;

(c) to promote especially the educational and cultural advancement of

the Muslims of India;”

Section 29 provides for the power to issue Ordinances for, inter alia, “(j) the

giving of religious instruction.”

32. Further, it is important to note that in the judgement in Ahmedabad St. Xavier’s

College Society v. State of Gujarat, (1974) 1 SCC 717 [CCC Vol5A @ p.204],

it was held that a minority institution based on religion and language had the right
 24
to establish and administer educational institutions for imparting general secular

education and still not lose its minority character. At para 30, Justice A. N. Ray

held: “The right to administer is to be tempered with regulatory measures to

facilitate smooth administration. The best administration will reveal no trace or

colour of minority. A minority institution should shine in exemplary eclectism in

the administration of the institution. The best compliment that can be paid to a

minority institution is that it does not rest on or proclaim its minority character.”

Therefore, neither the absence of religious instruction, nor the presence of general

secular education can alter the minority status of AMU.

V. The donors of AMU were predominantly Muslims, but were not all Muslims

33. The genesis of the institution has to be the betterment of the minority community

in question, and the initiative has to be on behalf of the said community. Stray

donations from individuals who are not members of the minority community

cannot alter the character of an institution. Those who donated were donating

towards the purpose for which the MEI was founded, i.e., the educational

advancement of Muslims of India, and could be considered as benefactors of the

community. The support of a small number of non-Muslim individual donors

cannot be read to eviscerate the very purpose of the initiative which was rooted

in the educational advancement of the minority community. The purpose

remained focused on the religious identity of the target community.

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Part C: Indicia

34. On the question framed in the reference, that is, the indicia for recognition of an

educational institution as having been “established” as an MEI, it is submitted

that there is one determinative factor that must be considered: the genesis of the

institution. The question of genesis must be considered in terms of:

(1) the purpose for which the institution was founded which must be for the

educational advancement of the concerned minority community;

(2) the identity of the individuals or groups that founded the institution for the

said purpose must be substantially of the concerned minority;

(3) the identity of the individuals or groups that substantially provided funds

for the founding of the institution must be that of the concerned minority;

35. This position finds support in Azeez Basha as well which says that the history of

the institution must be assessed. Further, the six judges bench in State of Kerala

v. V. R. Mother Provincial (1970) 2 SCC 417 @ para 8 [CCC Vol 4A @ p.

166] says one philanthropist can ‘found’ an institution by taking the initiative.

Thus, the idea for the educational institution must be conceived by a member of

the concerned minority.

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36. In addition, TMA Pai states that minority educational institutions must be

guaranteed maximum autonomy in relation to: (a) method of recruitment of

teachers; (b) charging of fees; (c) admission of students; (d) the power to choose

governing body; (e) the power to discipline employees. In fact, TMA Pai states

@ para 139 that: “Like any other private unaided institutions, similar unaided

educational institutions administered by linguistic or religious minorities are

assured maximum autonomy in relation thereto; e.g. method of recruitment of

teachers, charging of fees and admission of students. They will have to comply

with the conditions of recognition, which cannot be such as to whittle down the

right under Article 30.” However, these are the consequences of minority status,

not the tests for it.

37. TMA Pai clarifies that the state or other controlling authorities, however, can

always prescribe the minimum qualifications, salaries, experience and other

conditions bearing on the merit of an individual for being appointed as a teacher

of an educational institution. This cannot denude the institution of its minority

character.

38. What are not indicia of determining minority character: It is submitted the
following criteria cannot be considered while evaluating the status of an
educational institution:
(1) Governmental supervision similar to other institutions or universities
(2) ⁠governmental regulations to ensure adherence to standards and to prevent
maladministration.
 27
(3) ⁠identical structure with non-minority universities
(4) ⁠degree recognition or affiliation
(5) ⁠some non-minority members in the academic and executive bodies.
(6) ⁠governmental aid

Drafted by: Settled by: Kapil Sibal, Sr. Adv.

Mohammad Nizamuddin Pasha, Adv

Aftab Ali Khan, AoR

Aparajita Jamwal, Adv

Rishabh Parikh, Adv

Rupali Samuel, Adv

Sumedha Sarkar, Adv

Filed by:

Aftab Ali Khan

CC1596
 28
Appendix B

GOVERNANCE

As per the website of Haryana Raj Bhavan

(https://haryanarajbhavan.gov.in/charges-held-by-the-governor) the Governor is
the Visitor of the following Private Universities:

Hon’ble Governor is visitor of the following private Universities in the State:

● The NorthCap University (NCU), Gurugram
● Apeejay Stya University, Gurugram
● Amity University, Manesar (Gurugram)
● Maharishi Markandeshwar University, Sadopur(Ambala)
● NIILM University, Kaithal
● Baba Mast Nath University, Rohtak
● M.V.N. University, Palwal
● Sushant University, Gurugram
● Shri Guru Gobind Singh Tricentenary University, Gurugram
● Jagannath University, Bahadurgarh
● G.D. Goenka University, Sohna Road, Gurugram
● K.R. Mangalam University,Sohna Road, Gurugram
● S.R.M. University, Sonepat
● Ashoka University, Sonepat
● Al-Falah University, Faridabad
● BML Munjal University, Gurugram
● Manav Rachna University, Faridabad
● PDM University, Jhajjar
● Starex University, Gurugram
● IILM University, Gurugram
● World University of Design, Sonipat
● Om Sterling Global University, Hisar
● Rishihood University, Sonepat
● Geeta University, Panipat
The list of Private Universities in Uttarakhand of which the Governor is the Visitor
/ Chancellor is available here:

https://governoruk.gov.in/private-universities
 29 1
ANNEXURE-A
LIST OF DATES

Sl. Date Event Document

No.

1. 1869 Sir Syed Ahmad Khan visited England where he Union of India Affidavit
made a visit to Oxford and Cambridge Universities
Vol 3C @pg85
in the hopes of establishing in India for Muslims.

2. 02.10.1870 Sir Syed established “The Committee for the Union of India Affidavit
Better Diffusion and Advancement of Learning
Vol 3C @pg86
among Mohammedans of India” at Benaras was
established with a view to ascertain why the
Mohammedans of India of the government system
of education and to suggest means for removal of
obstacles and also to find out why the studies of
western sciences gain favour with them.

3. 1871 A society called the Mohammedan Anglo- Extract of Mohd. Lutf Ali khan
Oriental (“MAO”, for short) College Fund
Written address to GGI
Committee was created for collecting funds.
(President College fund
(Extracted from the Written Address to His
Excellency the Hon'ble George Frederick Samuel Committee) Vol 3C @pg302
Robinson, Marquis of Ripon, Viceroy and
Governor General of India, by Mr. Mohd. Lutf Ali
Khan, President, College Fund Committee and
other Officials on 18.11.1884)

31.07.1871 A select committee was formed with

Sir Syed Ahmed Khan as the chair to consider and
 30 2
report upon the best means for education
Mohammedan’s Vol. 3C @Pg41

4. 15.04.1872 In furtherance of the issue mentioned the Vol. 3C @ Pg 9-53

committee invited essays on the issue stated above
Relevant @Pg 43
as an incentive, the top 3 essays were to be given
prizes of Rs 500 , 300 , 150 each. 25 essays were
received by the committee and read over to a select
committee for examination and preparation of a
report. the special committee submitted their
report suggesting two distinct modes for secular
and spiritual education of Mohammedans which is
one in which English is the principal medium of
instruction and Latin, Greek, Arabic, Persian and
Urdu would be taught as second language and the
other in which Urdu would be the medium of
study. English, Arabic and Persian would be
second language. Select committee in its report
contemplated rules to be framed for Mohammedan
education. The committee contemplated the
establishment of MAO college and Madarsatul
Uloom for Muslims of India at Aligarh

5. 14.06.1872 Sir Syed wrote a letter to C.A. Elliott, Secretary to Vol. 3C @ Pg 62-65
the Government, informing him about the
Relevant @Pg 64-65
committee and its report and requested for any
assistance from the government to accomplish the
task at hand.

10.07.1872 A Letter was written by Evelyn Barring Vol. 3C @Pg 56-57

Capt. Pvt. Secretary to the viceroy to Sir Syed
 31 3
Ahmed Khan stating that the viceroy would not be
giving any personal pecuniary assistance to the
religious teaching. However he would contribute
to the study of western arts and sciences if the
institution shows a reasonable prospect of
divisibility and general success.

In 1872 The MAO college fund committee was

Vol. 3C @pg 71-76
established to collect funds particularly for the
education of the Mohammedans as suggested by
the Committee.

6. 20.07.1872 Sir Syed wrote to Muhammadan Chiefs of Native Vol. 3C @ Pg 66-67

States of India requesting to help the committee in
furtherance of their objective

7. 08.11.1872 The Committee resolved to establish a Vol. 3C @ Pg 77-94

Madarsatul Uloom for Muslims of India at
Relevant @79
Aligarh.

8. 10.02.1873 A Scheme for MAO College was proposed by Vol. 3C @pg 79-94
Justice Mahmood (the son of Sir Syed and a Judge
of High Court of Allahabad),

9. 24.05.1875 The Madarsatul Uloom was inaugurated at

Aligarh.
 32 4
10. 08.01.1877 Lord Lytton, the then Viceroy of India, laid the Vol. 3C @ Pg 246-257
foundation stone for the establishment of MAO
College.

11. 24.08.1883 The Rules for the guidance and management of

Mohammedan Anglo Oriental College Fund
Committee were approved.

12. 18.11.1884 I Written Address to His Excellency the Hon’ble Vol 3C @Pg 307
George Frederick Samuel Robinson, Marquis of
Relevant @Pg 308
Ripon, Viceroy and Governor General of India, by
Mr. Mohd. Lutf Ali Khan, President, College Fund
Committee and other officials on 18.11.1884, it
was stated:

“It has been our aim to render the College, as

far as possible, similar in principle to the
system on which the public schools of England,
and the Colleges at the Universities of
Cambridge and Oxford are based”
“Someday when our endowments are richer
and our schemes are completed, we hope to be
in a position to ask the great Representative in
India of Her Majesty the Queen Empress to
confer upon us the legal status of an
Independent University.”

13. 1886 Sir Syed Ahmad Khan convened the Muslim

Educational Conference with the avowed aim of
promoting western education amongst Indian
Muslims.

14. 18.05.1889 The Rules and Regulations for the appointment of Vol. 3C @Pg110-228
the Trustees of the MAO College were framed.
Relevant @pg 112
 33 5
15. 27.03.1898 Sir Syed Ahmad Khan passed away. A memorial Vol. 3B @Pg88 (Affidavit UOI)
fund in his honour was created to raise a sum of
Rs. 1,00,000/- to enable the MAO College to be
converted into a Muslim University.

16. 1898 12th Mohammedan Educational Conference held at Vol. 3C @Pg354-360

Lahore.
Relevant @Pg355
At the Conference, the then Principal Theodore
Morrison stated:

“This residential university would be purely

Muslim character. The rules and regulations
will be the same which will be in conformity
with the religious principles of Islam.”

Justice S. Amir Ali emphasized that the proposed Vol. 3C @Pg358

University should be authorized by the
Government to grant degrees which should be
treated on par with the degrees of other
Universities so far as employment was considered.

17. 1903 Muslim Education Conference passed another

Resolution that Islamic University should be
established at Aligarh.

18. 1910 The efforts of the Muslim Community led to the Vol. 3B @pg 89 (extracted from
British Government of India agreeing in principle
Affidavit of Union of India)
to convert the MAO College into a Mohammedan
University.
 34 6
19. 1911 Muslim Education Conference directed Waqar al-
Mulk to issue an appeal for a fund of twenty lakhs
of rupees, which he did in January 1911.

20. 1911 Kameti Takmili Mohammadan University Vol. 3B @Pg89 UOI Affidavit
(Foundation Committee) was constituted for
Before High Court
converting MAO College into a Muslim
University.

The proposed Constitution of the University was

accordingly drafted by the Constitution Committee
and submitted to the Government in 1911. The
Foundation Committee was subsequently
dissolved by the 1920 Act.

21. 10.06.1911 The Government of India communicated to the Vol. 4C @Pg42

Secretary of State the desire of the Muslim
community and recommended that sanction might
be given to the establishment of a Teaching
University at Aligarh.

(Extracted from the Debates in the Central Council

on the Introduction of the Aligarh Muslim
University Bill 1920)

22. 18.07.1911 The Secretary of State approved in principle the Vol. 4C @Pg42
establishment of such a university at Aligarh
subject to provision of adequate funds and
adequate control. The Secretary of State also
approved proposed negotiations between the
Association. The Press communiqué announcing
this decision was issued on 02.08.1911.
 35 7

(Extracted from the Debates in the Central Council

on the Introduction of the Aligarh Muslim
University Bill 1920)

23. 09.08.1912 Sir Harcourt Butler to Raja Mahmoodabad, who Vol. 3C @ Pg 411-413
was the President of University Foundation
Committee, about the alterations which are to be
made in the draft Constitution of the proposed
university presented by the Muslim community to
the Government.

The Education Member specifically mentioned

that the hope of Sir Syed Ahmad Khan was to
convert MAO College into a teaching and
residential university. He also quoted from the
preamble of the draft constitution (1911) prepared
by the Muslim community that from the
beginning the object of the founder and the
Muslim community was to raise such a college
to the status of a University.

24. 1915 In 1915, a Muslim University Association was Vol. 3B @Pg89

also founded. This Association worked to give
practical shape to the conversion of MAO College
into a Mohammedan University. It was resolved
that the Association would be dissolved only after
management of the University was taken over by
the University Court.
 36 8
25. 1920 The Aligarh Muslim University Act was enacted in Vol. 3G @Pg2-29
1920.

The Muslim Community collected the sum of

Rs 30 lakhs for creation of a Muslim University.

26. 26.01.1950 The Constitution of India came into force.

27. 1951 In the year 1951, the Aligarh Muslim University Vol. 4A @Pg 90-98
(Amendment) Act 1951 was passed.

In terms of the mandate of Article 28(3) of the

Constitution, compulsory instruction in Muslim
Theology for the Muslim students was dispensed
with. By virtue of the amendment, membership in
the Court of AMU was also made open to non-
Muslims.

28. 1965 The Aligarh Muslim University (Amendment) Act, Vol. 4A @Pg 99-106
1965 was passed, inter alia, introducing radical
changes in the set-up of AMU. The Court of AMU
as well as the Executive Council were packed with
the nominees of the Visitor and the Court was
reduced from the supreme governing body to
merely an advisory body.

29. 20.10.1967 This Hon’ble court delivered its judgment in the Vol. 3A @Pg 3-28
case of S. Azeez Basha v. Union of India
reported at [1968] 1 SCR 833