3 dissent in SC ruling: 1 rejects AMU minority status, 2 other judges join him in questioning process

In the case of Anjuman-e-Rahmania v. District Inspector of Schools (1981), a two-judge bench dealing with the minority status of VMHS Rahmania Inter College, doubted the correctness of the Supreme Court’s decision in S. Azeez Basha — where the court had held that Aligarh Muslim university is not a minority educational institution under Article 30 (1).

In Anjuman-e-Rahmania, the court held that the case “…may be placed before Hon. The Chief Justice for being heard by a bench of at least 7 judges so that S. Azeez Basha’s case may also be considered”.

While the majority in the AMU case held that this was permissible, Justices Kant and Datta in their dissenting opinions and Justice S C Sharma in his separate judgment held that this reference was bad in law.

Justice Kant stated that a two-judge bench does not have the power to refer a case to a 7-judge bench, and can merely suggest that the matter be placed before a larger bench. The power to constitute a bench of a specific size lies with the Chief Justice of India as the Master of the Roster.

On the question of AMU’s minority status, Justice Kant agreed that the case should be referred to a separate bench. However, he disagreed with the criteria laid down by the majority for determining this status.

While the majority held that a minority educational institution does not need to show that the minority community was in charge of administration, Justice Kant held that proving that the minority community is handling the administration is necessary for an educational institution to claim minority status under Article 30 of the Constitution.

Justice Datta spoke about the consequences of allowing such a practice, and the dangerous precedent it would set. Using the example of the seminal 13-judge verdict laying down the basic structure test in Kesavananda Bharati v State of Kerala (1973), Justice Datta said, “A two-judge bench tomorrow may say ‘I doubt the basic structure. I refer it to a 15-judge bench’ and this is what exactly would happen if we accept the majority opinion.”

Justice Datta also held that the second order – Aligarh Muslim University vs Naresh Agarwal – referring the case to a 7-judge bench in 2019 “did not notice” two Constitution Bench cases in P A Inamdar v. State of Maharashtra (2005) and Islamic Academy of Education v. State of Karnataka (2003). The 2019 order referred the case to a 7-judge bench to lay down the criteria for an institution to be recognised as a minority educational institution. Justice Datta however, pointed out that the 5-judge bench in Islamic Academy and the 7-judge bench in P A Inamdar which dealt with this question “did not consider it necessary to lay down what the indicia (of a minority institution) is”. By now laying down criteria, he said “we are discrediting the judges who have adorned the bench of this court right from 1950”.

He held it was his “firm opinion” that the references do not require an answer and declared that AMU is not a minority educational institution.

Justice S C Sharma, who made it clear that his judgment was his “personal opinion” and is “neither assenting or dissenting”, agreed with the other judges in the minority that the case should not have been directly referred to a 7-judge bench in 1981.

He also rejected the argument that minority status was necessary for AMU to serve as a “safe haven” for minority students stating that it is “wholly incorrect” and that institutions of national importance like AMU “always serve the interests of the minorities and are diverse centres of learning”. The aim of Article 30 is to ensure no institution is “disadvantaged or unduly favoured over another within the legal framework”, he held.

Justice Sharma also laid down some “broad parameters” for determining if an institution was established by the minority community. He held that the minority community must have brought the “entirety of the institution into existence” and played a “predominant (role)… almost complete to the point of exclusion of all other forces”. He also held that the institution must be established with the “purpose” of serving the interests of the minority community, and that the “final authority” in all administrative matters must be the minority community as well.