(4) Whether reliance placed on Azeez Basha decision by Allahabad High Court in AMU v. Malay Shukla in 2006 was correct in concluding that AMU being a non-minority institution could not reserve 50% seats for Muslim candidates in Medical PG Courses.

Observation-

Majority view- An educational institution is a minority educational institution if it is established by a religious or linguistic minority.

The CJI stated that, "We have already held above that an educational institution is a minority educational institution if it is established by a religious or linguistic minority. We have clarified that it is not necessary to prove that administration vests with the minority to prove that it is a minority educational institution because the very purpose of Article 30(1) is to grant special rights on administration as a consequence of establishment. To do otherwise, would amount to converting the consequence to a pre-condition. The right to administer is guaranteed to minority educational institutions to enable them to possess sufficient autonomy to model the educational institution according to the educational values that the community wishes to emphasise. It is not necessary that the purpose can only be implemented if persons belonging to the community helm the administrative affairs. This is so particularly because a minority institution may wish to emphasise secular education. The founders or the minority community may choose to populate the managing board (or a comparable authority) responsible for the day-to-day administration of the institution with persons belonging to the same community. However, they are not compelled to do so. They may wish to appoint persons who do not belong to their community but who they deem fit for the proper administration of the institution." The test to be adopted by the Court is whether the administrative set up of the educational institution affirms the minority character of the institution. If the administrative structure of the educational institution does not reflect its minority character or when it does not elucidate that the educational institution was established to protect and promote the interests of the minority, it may be reasonably inferred that the purpose was not to establish an educational institution for the benefit of the minority community"

The decision in Azeez Basha is overruled and the question of deciding the minority status of AMU must be done on the basis of the tests laid down in the present case. The papers of the batch of cases are to be placed before a regular bench to decide the issue and correctness of the 2006 Allahabad HC.

Justice Surya Kant's view

Justice Kant however did not overruled Azeez Basha and said that it required only to be modified and clarified to the above extent. He stated that Azeez Basha however, seems to be erroneous to the extent which holds that since Section 6 of the Aligarh Muslim University Act, 1920 (AMU Act, 1920) provided that the degrees conferred by the university would be recognised by government, consequently, “an institution was brought into existence which could not be brought into existence by a private individual or body...”

Justice Dipankar Datta

Justice Datta made a categorical declaration that AMU is not a minority institution. He also held that the references, both in 1981 and 2019, were unnecessary.

Justice SC Sharma

The minority community should be controlling the administration of the institution without any help of outside forces. The minority institution must also give the option of secular education.