IT HAS BEEN ONE YEAR since the Supreme Court pronounced its verdict on Aligarh Muslim University’s (‘AMU’) minority status. Yet the crucial six-decade old question -Whether AMU is a minority institution or not?’ remains unanswered till date.
The judgment doesn’t so much resolve the legal dispute as it does pirouette around its core, shadowboxing with half-arguments while leaving the heart of the matter suspended in mid-air for a 3-Judge Bench to factually determine the minority status of AMU by applying the parameters laid down in the 7-Judge Bench judgment.
However, till date, no such 3-Judge Bench has been constituted to put a quietus to the issue. This essay will focus on two fundamental aspects that have remained unanswered by the Court for decades, whilst also tracing the legislative history of the issue. First, that the AMU Act, 1920 was the legal recognition of the extension of an existing community-led institution (MAO College) and not its creation. Second, the erosion of AMU’s minority character could further marginalise an already under-represented community.
A chequered history of the AMU Act, 1920
AMU originated from the MAO College established in 1875 at Aligarh by the nineteenth century educationist and social reformer Sir Syed Ahmad Khan with the support of the Muslim elite (and some Hindu benefactors as well) and the British Government’s grant. After Sir Syed’s death in 1898, the campaign for the upgradation of the MAO College into a University gained momentum. Aligarh Movement included financial contributions from Muslim nobles, landed gentry (including some Hindus as well), princely rulers and the British Government; culminating into the enactment of AMU Act, 1920 and eventual incorporation of AMU.
Apart from the financial contributions, the campaign also included vehement efforts of the leaders of Aligarh Movement in petitioning the British authorities as well as rallying within the Imperial Legislature.
In 1951, after India became a republic, certain amendments were made to the 1920 Act to bring it in accordance with the Constitution. Primarily, it abolished the condition that only a Muslim could be a Member of the University Court (the general and supreme governing body of AMU) and made it open for all. Secondly, religious instruction was to be imparted only to those who wished to receive it, as provided under Article 28(3) of the Constitution.
In April 1965, disturbances occurred in the AMU campus after a student protest turned violent, following which the University was closed sine die. A few months later, the Government of India brought in another Amendment, which it referred to as “an emergency measure” until a long-term legislation was brought. Under the new Amendment, the powers of the Court were drastically curtailed and it became an advisory body, with its membership also reduced. The Executive Council was reconstituted and made more powerful. The Vice-Chancellor and Registrar were vested with wide powers.
The 1965 Amendment was challenged before the Supreme Court in the much debated S. Azeez Basha v. Union of India (1967) case, wherein a 5-Judge Constitution Bench upheld the Amendment and ruled that AMU was not a minority institution, as it was not established by the Muslims but by an Act of Imperial Legislature; thus marking the beginning of the minority character controversy.
In 1972, the AMU Act was further amended, ostensibly to address the concerns of the Muslim community, but far from assuaging such concerns, it seems to have only heightened them. A key feature of the Act was the further reduction in the powers of the Court which was now only a deliberative body and could not overrule the decisions of the Executive Council. The Chancellor and Vice-Chancellor were to be appointed by the Visitor (President of India) out of a panel of names submitted by the Executive Council, instead of being elected by the Court.
After much uproar, the Government brought in another amendment in 1981 to “restore” AMU’s minority character. This amendment changed the preamble of the 1920 Act and the definition of “University” to explicitly state that the University was established by Muslims thus, undoing the effect of Azeez Basha judgement. The Court’s status as the supreme governing body of the University was restored, along with some of its previous powers. The University was also empowered to promote the educational and cultural advancement of Indian Muslims.
The question of AMU’s minority status re-emerged in 2005 when the Allahabad High Court, while relying on Azeez Basha, ruled that the 1981 amendment had not restored AMU’s minority status and hence the University could not reserve 50 percent seats for Muslims. This was later affirmed by a Division Bench of the High Court. Subsequently, both AMU and the Central Government appealed to the Supreme Court, although the latter withdrew its appeal in 2019. In 2020, a 3-Judge Bench of the Supreme Court doubted the correctness of Azeez Basha, and the matter was referred to a larger Bench which ultimately delivered its judgement on November 8, 2024.
Establishment of AMU: The intersection of Muslim philanthropy and British policy
The Supreme Court has, in the present judgment, laid down three crucial factors for determining the minority character of an institution— first, the idea of establishment must have stemmed from the minority community, second, the institution must be established predominantly for the benefit of the minority community, and third, steps for the implementation of the idea must have been taken by the member(s) of the minority community. Perhaps, a historical enquiry into the establishment of AMU may answer whether or not it satisfies these criteria.
The campaign for the establishment of AMU started soon after Sir Syed’s death in January 1898, with the establishment of the Sir Syed Memorial Fund to raise Rs 10 lakh. By May 1899, Rs. 60,000 had been promised, the major contribution coming from the Nawab of Rampur.
The proposals for the establishment of a Muslim university were deliberated at various sessions of the Muhammad Educational Conference, a pan-India body of Muslims, held at Lahore (1898), Calcutta (1899), Madras (1901) and Delhi (1903). Early donors included Badruddin Tyabji and Sir Syed Ameer Ali. By the end of 1898, the Fund had received pledges for about Rs. 1.25 lakhs, as Nawab Mohsinul Mulk and other delegates visited major Indian cities, and Aligarh alumni also canvassed subscriptions. Aligarh District alone pledged a contribution of Rs. 25,000, with donations also coming from Punjab, the North West Frontier Province, Bengal and the Central Provinces.
The Supreme Court, while disagreeing with Azeez Basha’s interpretation that AMU was established by an Act of Imperial Legislature and not by Muslims, held that the words “establish” and “incorporate” (as mentioned in the Preamble of the 1920 Act) should be read conjointly. In fact, Viceroy of India Lord Curzon had approved of a Muslim university on the condition that it was merely a continuation of the Aligarh College.
In 1910, Sir Agha Khan and Syed Shaukat Ali travelled across India and were able to secure donations of Rs. 2.5 lacs in just 5 months and Rs. 4 lacs by August, 1911, while the amount pledged was nearly Rs. 25 lacs. Similarly, Maharaja Sir Mohammad Ali Mohammad Khan of Mahmudabad (later the first Vice-Chancellor of AMU) pledged Rs. 1 lac, while the Rajas of Jahangirabad and Pirpur also contributed significantly to rallying.
Mahmudabad along with Nawab Viqar-ul-Mulk, Sahibzada Aftab Ahmad Khan and Maulana Shibli Nomani, also travelled widely across India, seeking donations. Subsequently, in April, 1911, a committee was set up to draft a constitution for the proposed university, with Mahmudabad as its chairman and Syed Ali Bilgrami as draftsman. In May 1911, a deputation consisting of Mahmudabad, Viqar-ul-Mulk, Aftab Ahmad Khan and Sir Zia Uddin met Sir Harcourt Butler (then Education Member of the Viceroy's Executive Council) in Shimla, presenting the draft constitution.
Rallying in the Council: Passage of the AMU Act, 1920
In precincts of the Imperial Legislative Council, Muslims not only propelled the AMU Act but also played a key role in its drafting and subsequent deliberations. Pandit Madan Mohan Malviya, the pioneer of Banaras Hindu University (‘BHU’), while addressing the October 1, 1915 session of the Imperial Legislative Council, praised the Agha Khan for touring India (to raise funds for AMU) and the Raja of Mahmudabad for his correspondence with the British Government which bore fruit towards the establishment of a ‘denominational university’. For him, BHU and AMU would be sister institutions for promoting Hindu-Muslim unity and progression.
While introducing the AMU Bill in the Imperial Legislative Council on August 27, 1920, Sir Mian Muhammad Shafi (Education Member of Viceroy’s Executive Council) highlighted the role of the Raja of Mahmudabad and the Muslim University Association in the establishment of AMU and significantly remarked that on the 10th June, 1911, the Government of India communicated to the Secretary of State the desire of the Muslim community for the establishment of AMU and eventually sanctioned the proposed negotiations with the Association.
The bill was then referred to a select committee consisting of 5 Europeans, 5 Muslims and 1 Hindu member, respectively. It was finally passed on September 9, 1920, with Viceroy of India Lord Chelmsford congratulating the Muslim community.
What flows from the above discussion is that Muslims played a pivotal role not only in the establishment of AMU but were also central in the enactment of the AMU Act. Azeez Basha’s ratio, insofar as it states that AMU was established by an act of legislature and not by Muslims, is therefore tantamount to saying that the candle burns only due to its wick and the wax has no role to play! In fact, the Supreme Court, in the present judgement, has itself negated Azeez Basha’s view by ruling that fundamental rights would be made subservient if it was declared that AMU was established by Parliament merely because the long title and preamble mention the word “establish”.
Despite being the largest minority in India and making up over 14 percent of the country's total population, Muslims fall far behind other marginalised groups. According to the 2006 Sacchar Committee report, in 2001, Muslims' literacy rate was 59.1 percent, lower than the national average of 64.8 percent, with the biggest disparity being in metropolitan areas. Even so, it was still greater than SCs and STs in several states. Due to the pandemic-induced postponement of the 2021 census, the latest data is from 2011, when the Muslim literacy rate was only 68.3 percent. This suggests that between 2001 and 2011, the literacy rate rose by an average of only 1.46 percent a year.
More than a decade after the Sachar Committee brought attention to the problem, National Statistical Office research reveals that Muslims continue to face severe educational marginalisation, often on par with or worse than SCs and STs.
The situation is even more dire when it comes to higher education. According to a report created by analyzing data from the All India Survey of Higher Education (‘AISHE’) and the Unified District Information System for Education Plus (‘UDISE+’), enrollment in higher education among Muslim students in the 18–23 age range fell by more than 8.5 percent in 2020–21. The number of Muslim students enrolled in higher education decreased from 21 lakh in 2019–20 to 19.21 lakh in 2020–21. Alarmingly, only 2.76 percent of Muslims in India have completed education up to graduation or above.
Against this backdrop of systemic exclusion, institutions like AMU play a crucial role in bridging these educational gaps. For decades, and even today, Muslims from all across India—including Kerala, Jammu and Kashmir, Tamil Nadu, and Bihar—have turned to AMU to pursue higher education, which has served to fulfil the goal of AMU's founder, Sir Syed Ahmad Khan, to pull the community out of backwardness.
In this context, the principle of beneficiary legislation must be applied to ensure that AMU’s minority status is interpreted in a manner that upholds justice and equity. A well-established rule of statutory interpretation is that laws designed to protect vulnerable or marginalised groups must be construed in a way that advances their intended objectives rather than undermining them.
Based on this premise, the key legal test would be to determine whether AMU's administrative structure supports its minority status. This requires evaluating the institution's foundational purpose, control and administration, and its beneficiaries. Since Article 30(1) confers special rights on administration as a result of establishment, it is not essential to demonstrate that the minority governs the administration. Making administrative control an essential requirement for minority status would unjustly change a guaranteed right into a prerequisite that has to be fulfilled, which is contrary to the intent of the legislation.
To complete the test, we must also evaluate the profile of its beneficiaries. Although AMU welcomes students from all backgrounds, a sizable percentage (77.39 percent) of its beneficiaries, both students and faculty, are Muslim. Nonetheless, the Centre has argued that a constitutionally designated institution of national importance had to represent the national structure. However, such a claim ignores the fact that AMU’s status under the Seventh Schedule does not supersede its fundamental right to minority protection under Article 30(1).
The university was set up through Muslim contributions and has historically reflected to serve the educational needs of Muslims, any ambiguity in the law should be interpreted in a way that preserves and strengthens this objective.
The danger of setting a precedent
In 2016, the Union government withdrew its own Appeal before the Supreme Court. On the other hand, previous governments had defended AMU’s minority status, recognizing its constitutional and historical significance. However, for the first time, the Union government took a stance against a statute that it itself had enacted.
AMU has long been considered a benchmark of minority institutions in India. Revoking its minority status could set off a legal domino effect, as other institutions run by religious and linguistic minorities across the country may also face obstacles. This concern is not unjustified, as we have witnessed growing scrutiny of madrasas and other Islamic educational institutions in recent years, with state governments advocating for tighter oversight and even shutdowns in some cases.
The unanswered question of AMU’s minority status has somewhat resulted in a waste of judicial time and efforts, more so when the issue of pendency is one of the foremost problems of India’s legal system. When it comes to this case, the adage "justice delayed is justice denied" is true. The agony caused by this hiatus has been rightly pointed out by Justice Dipankar Datta in his dissenting opinion that it pricked his conscience to send the matter back once again to an another bench after both sides had exhaustively argued, only for it to be re-agitated, when such time could be well utilised in answering other pressing questions of law.