At a time when the country is already highly polarised, the Supreme Court ought not to have given a questionable ruling, virtually bestowing minority status on the Aligarh Muslim University. Though the final word is still to be said by a larger bench, but last Friday in a split 4:3 verdict, the majority view penned by then outgoing Chief Justice of India, D Y Chandrachud, reversed the previous order which had nixed the status of AMU as a minority institution. Simply stated, an institution majorly funded by tax-payers cannot claim to be the exclusive preserve of a single religious community. Its doors ought to be open to all Indians, though with the suitable accommodation of widely recognised reserved categories of SCs, STs and OBCs. Of course, Muslims or any other religious minority is fully entitled to run community-specific institutions provided these are not bankrolled by public money. The AMU is. And, therefore, the 1967 judgement by a five-judge bench in S Azeez Basha v Union of India was upheld as correct by the dissenting order last Friday. The three dissenting judges in a cogently argued order raised a valid point whether a 2-member bench can question the validity of a 5-member bench and recommend that it be referred to a larger seven-member bench.
Ideally, such a recommendation ought to have been immediately binned by the apex court. The majority view penned by Chandrachud most generously conceded the view that a mere change in the status of Muhammadan Anglo-Oriental College in Aligarh founded by Sir Syed Ahmed Khan in 1977 into a university by an act of parliament by itself did not alter its minority character. This, to say the least, was a questionable assertion, especially when the same law also undertook to fund the newly-created institution. The 1967 SC verdict had also pointed out that AMU cannot be a minority institution not only because it is funded by taxpayers but also because it is a central university. In the legal battle over the status of the controversial university the next judicial milestone came in 1981 when a 2-member SC bench questioned the correctness of the 5-member order rejecting AMU’s minority status. The dissenting judement on Friday asked, “If a two-judge bench doubts the `basic structure’ doctrine propounded by the 13-member bench in the Kesvananda Bharti case, can it refer the issue to a 15-member bench?” In the 1967 order, the five-judge bench had relied on the validity of the fact that AMU was neither ‘established nor administered’ by Muslims. Whether that is a narrow reading of Article 30, which allows religious minorities to establish and run educational institutions, the five-member order cannot be faulted. Unfortunately, then ruling politicians with an eye on the Muslim vote-bank undid the SC verdict, amending the AMU Act to restore its minority status. That was in 1981. Again, pronouncing its verdict in 2006 on a challenge to the said amendment the Allahabad High Court struck it down as null and void. The matter came up in appeal in the apex court where the then central government defended the amendment until the advent of the Narendra Modi government in 2014. Five years later, a 3-member bench referred the matter to a 7-member bench which finally pronounced its verdict on the last working day of CJI Chandrachud. Yet, the last word on the minority status is still to be said, given that the majority view has indicated that AMU ought to get minority status. The 57-year-old litigation now awaits the constitution of another and larger bench to test the validity of the claim about AMU being a minority institution. The order written by the CJI reflects a conflict between what should be and what it really is. Hence, this remark: “ The court may on a holistic reading of the statutory provisions relating to the administrative set-up of the educational institutions ~deduce~ if the minority character or the purpose of establishment was relinquished upon incorporation.”
On the other hand, the minority judgement is not assailed by such self-doubts. It held that AMU is a central university, required to function as per the AMU Act as well as provisions of other relevant enactments. Further, being a government entity admissions to AMU should be merit-based, and reservations for SCs, STs, OBCs, and EWS categories must be provided. In a telling sentence the minority order read: “ To assume that the minorities of the country require some `safe haven’ for attaining education and knowledge is wholly incorrect. The minorities of the country have not just joined the mainstream but comprise an important facet of the mainstream itself.”
Meanwhile, a day after the SC’s ambivalent order in the AMU matter, UP Chief Minister Yogi Adityanath latched on the issue, hailing the minority view as the correct interpretation of the law. Speaking at a rally in support of the BJP candidate in one of the nine Assembly by-elections falling in the Aligarh district, he sought to whip up casteist passions, wondering why for so long were the SCs, STs, OBCs denied the benefit of reservation in the centrally-funded central university. Given how the rival alliances in Maharashtra are fighting for every vote, the AMU issue is bound to give further ammunition to the ruling Mahayuti for attacking the pseudo-secularists of the MVA who want the Muslim vote without being giving them tickets as per their population or to oppose the Waqf law changes contemplated by the Modi government. Exploiting fear and insecurity of Muslims without giving them due share in power only gives the secularists a free pass to power.
