Minority Matters

On 1 February, a seven-judge bench of the Supreme Court reserved its judgement in the contentious Aligarh Muslim University case, after hearing arguments for eight full days. The hearings, which began on 10 January, were supposed to settle a 57-year-old question on the AMU’s minority status—the Bharatiya Janata Party-led union government has demanded its withdrawal. Over the course of the hearings, the government and half a dozen other respondents raised several provocative questions regarding pre-constitutional rights that, if allowed to be dug up from the past, may unsettle settled issues, including constitutional safeguards for minorities, Scheduled Castes and Scheduled Tribes in independent India.

The government’s arguments show that it intends to decide peoples’ rights on the basis of a version, and selective interpretation, of colonial history palatable to the ruling party. On the fourth day of the hearings, Tushar Mehta, the solicitor general, quoted from a letter, which he said was written by the AMU management in the 1920s: “We want that your British administration continues in this country forever. It’s a boon for our nation.” Mehta later accepted that the AMU’s founders’ political allegiance to the British government was irrelevant to his legal position on the matter. He, nevertheless, spent the entire day presenting selective historical facts about AMU’s establishment that would project its founders as British “loyalists.” From Mehta’s argument, it was hard to distinguish whether he meant to paint only the individual Muslim founders of the AMU, or the entire Muslim community, as loyal to the British. It allowed him to make suggestions that educated Muslims in the pre-Constitution era were beholden to the colonial government, while their Hindu counterparts were “nationalists.” 

Mehta argued that the AMU’s contemporaries in the pre-Constitution era functioned as trusts or societies, and awarded degrees that did not have recognition from the government. According to Mehta, this was because, at that time, the freedom struggle was at its peak, and nationalists preferred running their own educational institutions. He argued that if the AMU had remained a society, as it was in its previous avatar as the Muhammadan Anglo-Oriental College, and sought recognition after the advent of the Constitution, it would have qualified for minority status in independent India. The union government’s argument was that the AMU forfeited its constitutional safeguard, to run its affairs according to its choice, including admitting 50 percent Muslim students, almost a century ago when it decided to appeal for British patronage.

The chief justice of India, DY Chandrachud, reasoned with Mehta that the status of a minority institution was not contingent on opposition to the government of the day. He told Mehta that the use of a legislative route in a pre-Constitution era could not be grounds to disqualify minority status in free India. “This Court as a constitutional Court saying something to those who stood by the freedom struggle and chose not to crawl before the Britishers,” Mehta said. For him, aligning with the Imperial government or accepting a legislative route amounted to an insult to those who ran their institutions as trusts.