AMU judgment sets right a historical error
The majority judgment of the court in the AMU case has provided unequivocal guidance for the regular bench of the court that will finish the unfinished task
The Aligarh Muslim University (AMU) is not a minority institution since it was “established” not by the Muslim community but by the British rulers of India under the Aligarh Muslim University Act of 1920, said the tenth Chief Justice of India (CJI) Kailas Nath Wanchoo in his Azeez Basha verdict of 20 October 1967. On 8 November 2024, a Constitution Bench of the court headed by the fiftieth CJI, Dhananjaya Chandrachud overruled the 57-year-old verdict, proclaiming that the institution cannot lose its minority character merely because it was incorporated into a university by a legislative enactment. The new refreshing verdict indeed indicates a striking progression of the course and dimensions of justice in the country.
CJI Wanchoo’s decision of 1967 had been severely criticised worldwide. An eminent constitutional law specialist of the time, Hormasji Maneckji Seervai had said “the decision is clearly wrong and productive of great public mischief, and should be overruled”. And he stands duly vindicated, though over half a century later.
Commenting on Wanchoo’s decision, I had written in several articles that it was blatantly untenable, legally and factually, and had audaciously denied undeniable facts of Indian history. To me the learned judge seemed like saying that India had won independence from the British colonial rule not as a result of the century-long struggle for freedom by the Indians but was graciously gifted to us by the Indian Independence Act of 1947 passed by the British Parliament on its own initiative. Or, even worse, that the Sufi saint Moiunuddin Chishti’s 800-year-old dargah in Ajmer had been “established” by our British rulers under the Dargah Khwaja Sahab Act of 1936. If these propositions look ridiculous, so does the idea that the MAO College established at Aligarh in the 1870s was not just “recognised” as a university by the AMU Act of 1920 but was in fact “established” by it.
The new judgment on the minority status of AMU has been pronounced by a seven-judge Bench of the apex court by a rather thin majority. So, Justice Wanchoo’s half-a-century-old thinking has not died out. Be that as it may, the majority decision will prevail. It is, of course, based on sound logic and rational thinking telling the judges, “find out the brain behind the establishment of an institution; if it points out to minority character, then it has to be recognised without any ifs and buts under Article 30 of the Constitution of India”.
The judgment has left this “finding out” exercise to be performed by a regular bench of the court, but who does not know the “brain” behind the historic educational movement launched in the mid-19th century that eventually culminated in the establishment of a college now known as the Aligarh Muslim University? It was Sir Syed Ahmed Khan, the great founder and initiator of the movement, who had begun working on it as early as 1838. After making stupendous efforts for nearly three decades, he had undertaken a hazardous voyage by sea route to the UK to study the university education system in Oxford and Cambridge. Well-equipped with necessary logistics, he had returned home planning to establish a similar institution here in an attempt to lift his community up from the den of their beastly educational backwardness. His mission was from the very beginning to establish a university, not a primary or secondary school. But being in a mature stage of life, he decided in his wisdom to lay the foundation without delay. Until taking his last breath in 1898, he kept struggling to get the status of his college enhanced enough to be qualified for official recognition as an institution of higher learning. His dream was fulfilled, 22 years after he left the world, in the form of the Aligarh Muslim University Act of 1920.
The majority judgment of the court in the AMU case has provided unequivocal guidance for the regular bench of the court that will finish the unfinished task. Several thought-provoking observations in this judgment will guide not only the judges who will take up the AMU case for finalisation but also for their brother judges who in future may have to settle a dispute relating to the minority character of any other institution. The judgment has assertively ruled that the words “incorporation” and “establishment” do not mean the same thing and are not interchangeable. Such a “formalistic” reading will defeat the objectives of Article 30 of the Constitution, the judgment has emphatically said, adding that “formalism must give way to actuality”.
The majority judgment has further clarified that it is not necessary for a minority institution to have been established only for the benefit of the founding minority, or for its administration to rest only with the members of the same community. The government can, it has said, regulate the affairs of a minority educational institution as long as it does not infringe on its minority character. Saying that “Article 30 of the Constitution will stand diluted if it is to apply prospectively only to the institutions which were established after the commencement of the Constitution” is indeed a stern warning enshrined in the majority judgment.
Writing for my book Minority Educational Institutions: Law and Reality (2007), an eminent lawyer of the time, the late PP Rao had said, “The law governing minority educational institutions continues to suffer from uncertainty in spite of the efforts made by successive benches of the Supreme Court to interpret the constitutional right of minorities to establish and administer institutions of their choice.” One can reasonably hope that the apex court’s majority judgment in the AMU case will remove this uncertainty and settle the law firmly for all times to come.
Tahir Mahmood is former chairman, National Minorities Commission, and former member, Law Commission of India. The views expressed are personal
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