An impartial analysis of the recent SC judgment on AMU leads one to surmise that the powers that be are intent on letting this issue simmering, so as to assault the Muslim community psychologically continuously. The seven-judge bench led by former CJI Chandrachud indeed lost a golden chance to deliver the verdict, though he himself seemed inclined to do so.
It would not be wrong to say that over the years since 1947, Indian Muslims have been thrown different gauntlets primarily based on issues on which the community had completely opposite views, as opposed to the governments of the day or the ruling majority.
These issues were raised primarily to turn them into sentimental issues instead of a practical one and the response of the Muslim community to these was shown as proof of either them being disloyal to the Indian constitution or otherwise described as appeasement of the Muslims by the opposition parties, in both the scenarios Indian Muslims were the victim.
One such issue has been the Aligarh Muslim University’s (AMU) case, and deciding whether it is a minority educational institute or not. And this exercise has been repeated time and again since the 1960s.
On 8th November 2024, a seven-judge bench of the Supreme Court, in a 4:3 majority, overruled the earlier verdict in Azeez Basha v Union of India (1967) case. In Azeez Basha’s case, a five-judge bench had held that AMU did not qualify to be a minority institution as it was neither established nor administered by the Muslim community.
It had held that an institution must meet both requirements – “established” and “administered” – to qualify as a “minority institution” under Article 30(1) of the Constitution. Article 30 provides religious and linguistic minorities with the right to “establish and administer” educational institutions of their choice, which Azeez Basha interpreted conjunctively.
In the recent majority opinion, former-Chief Justice DY Chandrachud, writing for himself and Justices Sanjiv Khanna, JBPardiwala, and Manoj Misra, overruled Azeez Basha ruling, holding that it was incorrect when it held that an institution cannot have a minority character when it is derived from a legal statute. They also laid down express parameters to test whether an institution, including a university, could be recognised as a minority institution. The dissenting opinions by Justices Surya Kant, Dipankar Datta, and SC Sharma endorsed the interpretation in Azeez Basha’s case.
However, seemingly the most perplexing development in this verdict was that the bench headed by former CJI Chandrachud did not reach a conclusion on the minority status of AMU itself, and directed that a regular, smaller bench will apply the criteria laid out by the seven-judge bench to determine its status.
If a verdict had been given by this seven-judge bench, it would have settled the issue once and for all and moreover would have provided a rare opportunity to the former CJI to reclaim his stature and integrity, which has received a beating due to his various recent decisions.
The decision to refer it to another bench, makes it obvious that the judiciary on diktats of the government wants the issue to simmer-on and will let it come to a boil, as and when needed politically.
Let us go over different questions which have propped-up after this verdict. First, is the reference to a seven-judge bench legally tenable?
CJI Chandrachud first examined whether the two-judge bench in Anjuman-e-Rahmaniya v District Inspector of School (1981) case, had the authority to refer the minority status to a seven-judge bench, despite Azeez Basha being decided by a five-judge bench.
The Union had argued that this referral was invalid, as the two-judge bench was bound by the prior ruling in Azeez Basha. CJI Chandrachud cited Central Board of Dawoodi Bohra Community v State of Maharashtra (2005) case, which allows smaller benches to “doubt” but not “disagree” with decisions of larger benches, thus permitting them to request the Chief Justice for referral to a larger bench. He concluded that Anjuman-e-Rahmaniya had not “disagreed” with Azeez Basha but only “doubted” it. Thus, the reference was valid.
However, to a common man this issue would seem rather too complicated, as it was focussed solely on legal parameters and propriety. And was this the demand of the current case?
Secondly, examining what is a minority institution under Article 30?, CJI Chandrachud speaking for the majority, referred to TMA Pai v State of Karnataka (2002) case, where the right of every citizen to establish and administer institutions was traced to Article 19(1)(g), which grants freedom to engage in any occupation, trade, or business.
He observed that regulating a minority institution is similarly permissible under Article 19(6) but added that the “regulation must not infringe the minority character of the educational institution.” Any restriction infringing on this minority character, he noted, would violate Article 30. Following this observation, he outlined the “indicia for a minority institution.” “Indica” in legalese means signs, indications, or distinguishing marks.
First, he explained that the terms “incorporation” and “establishment” cannot be used interchangeably. “Incorporation” signifies legal existence, whereas “establishment” signifies the founding of the institution.
Notably, the Preamble of the Aligarh Muslim University Act, 1920 states that it was passed to “establish and incorporate” AMU. “It cannot be argued that a university was established by Parliament merely because the long title and preamble of the statute incorporating the university states that it is an Act to establish and incorporate,” the CJI said. This point again focussed on legalese. He then laid down three tests to determine minority status of an educational institute.
The first test is to trace the genesis of the institution. This involves identifying the “origin of the idea of the establishment” and other preliminary sources indicating a minority community member’s involvement in the institution’s ideation. As per this test no one could deny the fact Sir Syed Ahmed Khan, a Muslim, ideated the establishment of a Muslim university.
The second test is to determine the purpose of establishing the institution. The former CJI observed that it need not be primarily for the benefit of the religious or linguistic community, nor is it necessary for the education provided to be “in the language spoken by the minority or on the religion of the minority.” Well, nowhere in his documents Sir Syed or any of his contemporaries had said that the said university would impart education to only Muslims and nowhere Urdu, a language associated with Indian Muslims, would be the medium of instruction at the university.
Lastly, the third test was to examine the steps taken to implement the establishment, such as who provided the funds, land, etc. In this regard also the contribution of the Muslim community cannot be ignored. Though later this fund was transferred to a Reserve Fund, once the AMU Act was passed.
On the aspect of administration, he explained: “It is not necessary to prove that administration vests with the minority to prove that it is a minority educational institution.”
Administration, he said, follows the establishment and is therefore a consequence, not a precondition. Therefore, the test is whether the administration affirms the minority character of the institution. A question arises in one’s mind that whether the same test is being applied to other universities like the BHU, Viswa Bharti or the Annamalai, as in the judgment they were mentioned several times, by all justices.
Further, former CJI Chandrachud observed that limiting Article 30’s application to institutions established only after the Constitution’s commencement would “dilute and weaken” its intent. He clarified that Article 30 applies to institutions established before the Constitution as well.
During the arguments, respondents contended that the concept of “minority” did not exist in the colonial era, implying that AMU could not claim minority status. However, CJI Chandrachud held that pre-Constitution institutions are entitled to this right. Justice Kant concurred on this point. Justice Sharma, however, observed that there were no rights before the Constitution came into force.
Overall, one is forced to surmise that former CJI Chandrachud, may be due to some other considerations, though by his comments in the judgment he seemed inclined to accept the “minority” character of the AMU, lost a golden chance to deliver a judgment in this case.
Further, when talking about “sentimentality” he himself had said that he sought guidance and wrote the decision in the Babri Masjid case, based on “sentimentality”, so why the same “sentimentality” was not shown with regard to the intention of Sir Syed and others to establish AMU as a “minority institution”?
Going further, one is forced to point out that when one tries to examine facts related to other religious minority educational institutions, then one comes across startling facts, like: from 1916 to 2024, BHU has had 28 VCs, Viswa Bharti University also 28 VCs and Annamalai University 24 VCs and none featured a Muslim VC, whereas in AMU’s case it was governed thrice (HL Sharma from August to December 1974; JN Prasad in May-June 1980, and Ashok Bal in July-August 1990) by non-Muslim acting VCs, which sufficiently demonstrates the “secular” credentials while defending the “minority” character of the AMU, as it had such senior non-Muslim academics who could reach the top level in a “minority” institute.
Further, if a smaller bench does accept the “minority” character of the AMU in future then what is the guarantee that the same logic which was applied to Aziz Basha’s earlier case, would not be repeated to further complicate the issue?
[Asad Mirza is a New Delhi-based senior commentator on current national, international and strategic affairs, environmental issues, an interfaith practitioner, and a media consultant.]