Should AMU and JMI be treated as Minority Educational Institutes?

Background

Since 1958, when it delivered its verdict in the Kerala Education Bill case, the Supreme Court has consistently held that minority institutions are primarily for minorities and there shall be “only sprinkling of outsiders” in such institutions. The observation was reiterated by a 11 judge bench of the apex court in the T.M.A. Pai Foundation v. State of Karnataka case: The court lifted the upper limit of 50 per cent minority reservation, which it had fixed in St. Stephens College v University of Delhi.

Since minority institutions can be established by religious as well as linguistic minorities, there is no communal angle to such reservation. Moreover, religion-based reservation is prohibited only in state institutions under Article 15(1) and is permissible under Article 30(1). Article 30 gives minorities the right to “establish and administer educational institutions of their choice” and the Supreme Court has held in the infamous S. Azeez Basha and the Union of India case that the expression “educational institutions” includes university. This repudiates the argument that minorities cannot establish universities. Similarly “governmental aid”, under Article 30(2), does not change the character of a minority institution. Thus the chorus of criticism against AMU’s 2005 reservation policy is flawed.

Government's stand on AMU and JMI

The government has said that Aligarh Muslim University and Jamia Millia Islamia are not minority educational institutions. AMU was set up by an act of Parliament, not by Muslims. AMU has no reservation for Muslims, but has preferences and reservations for local candidates, irrespective of faith. JMI gives reservation/preference to Muslims after the National Commission for Minority Educational Institutions (NCMEI) granted it minority status in 2011.
Jamia became a deemed university in 1962 and a central university in 1988, both by Acts of Parliament. NCMEI held that “Jamia was founded by the Muslims for the benefit of Muslims and it never lost its identity as a Muslim minority educational institution”, and was, therefore, “covered under Article 30(1)… read with Section 2(g) of the National Commission for Minority Educational Institutions Act”.

Rights of Minority Educational Institutes

After obtaining minority status certificate, the institutions have the following rights in terms of Article 30 (1) of the Constitution and Section 2(g) of the NCMEI Act.

• To choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution.
• To appoint teaching and non-teaching staff.
• To admit the students of its community. Non-minority students cannot be forced upon it. Neither the policy of reservation on admission can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriate by the State in a minority education institution. But if the institution is receiving any financial aid from the State then Sub-Article (2) of Article 29 of Constitution obligates the management to admit non-minority students to a reasonable extent.
• To receive a reasonable fee structure of it’s own.
• To take disciplinary action against any member of it’s erring staff.

Those supporting minority status for AMU want a larger, seven-judge bench to hear the case. They also argue that an Act of Parliament must prevail over judicial pronouncements — and therefore, the 1981 AMU Amendment Act must hold
 

By: Jasmeet Singh