The Supreme Court (SC) on Friday in 4:3 majority judgment deferred the question of Aligarh Muslim University's (AMU) minority status to a new three bench and overruled the 1967 judgment that said the university cannot be considered a minority institution since it was created by a Central law. The majority judgment authored by CJI DY Chandrachud, also on behalf of Justices Sanjiv Khanna, JB Pardiwala and Manoj Misra, said, "The view taken in Azeez Basha (1967 verdict) that an educational institution is not established by minority if it derives its legal character through a statute, is overruled."
Before pronouncing the judgment by bench, CJI Chandrachud said there were four separate opinions, including three dissenting verdicts. The majority verdict headed by the CJI laid down tests for considering the issue of AMU's minority status. The outgoing CJI asked the case's judicial records to be placed before the regular bench, after receiving instructions from the new CJI on the administrative side, for deciding the issue on the minority status besides adjudicating appeals against a 2006 verdict of the Allahabad High Court.
In his dissent, Justice Surya Kant opioned the reference of the matter to a seven-judge bench by a division bench of the SC was incorrect. Justice Dipankar Datta too echoed a similar sentiment saying it might set a "dangerous precedent". "A two-judge bench tomorrow may say I doubt the basic structure (Kesavananda Bharati verdict). I refer it to a 15-judge bench. This is what would happen if we accept the majority opinion. Can it be done?" asked Justice Datta.
Justice Datta in the concluding part of his verdict wrote, "In terms of clause 5 of Article 145, it is my firm opinion that not only do the references do not require an answer, it is also declared that AMU is not a minority educational institution and that the appeals seeking minority status for it should fail." Pronouncing a separate opinion on the matter, Justice Satish Chandra Sharma agreed with the two other dissenting judges on the point of reference.
"The establishment of an institution by the minority is necessary for the said minority to claim right of administration under Article 30 (of the Constitution)," he opined. Article 30 of the Constitution deals with right of minorities to establish and administer educational institutions. "I would like to make it very clear that my judgement is neither an assenting nor a dissenting judgement. It is my personal opinion based upon the law, the judgements cited and the arguments and the facts on the subject," clarified Justice Sharma.
The issue of AMU's minority status has been caught in a legal maze for the last several decades. The SC had on February 12, 2019, referred to a seven-judge bench the contentious issue. A similar reference was made in 1981. The fabled institution, however, got back its minority status when the Parliament passed the AMU (Amendment) Act in 1981.
The Congress-led UPA government at the Centre had moved in appeal against the Allahabad High Court's 2006 verdict. The university filed a separate petition against it. The BJP-led NDA government informed the SC in 2016 that it would withdraw the appeal filed by the erstwhile UPA dispensation. It had cited the apex court's 1967 judgment in the Basha case to claim that AMU was not a minority institution since it was a central university funded by the government. In 1967, a five-judge Constitution Bench in the S Azeez Basha Vs. Union of India said AMU was a Central university and couldn't be considered a minority institution.
