The Aligarh Muslim University with its long-standing legacy of 104 years and perhaps equally long history of being caught in troubled waters, has had a breather recently with the Supreme Court judgment on the minority status of the institution. The 8^th November, 2024 judgement delivered by the 50th CJI Justice DY Chandrachud, on his last day before retiring from the office, overruled the 1968 Azeez Basha judgment that had decided against AMU being a minority institution. A 2-judge bench of the Supreme Court had referred this case for reconsideration to a seven-judge bench. It had also requested the larger bench to settle the essential criteria for recognizing minority institutions. The 4:3 judgment, contrary to popular belief, did not award minority character to the institution but simply restored it to being a minority institute as it was before the impugned judgment of 1968. The court has however laid down the indicia to determine the minority status of an institution. And has therefore, settled the controversy trickling down a chain of cases as mentioned in the judgment itself. The three dissenting judges unanimously held that a 2-judge bench expressing ‘doubt’ over the judgement of a 5-judge bench in Azeez Basha was a case of judicial impropriety. Hence, the reference by the 2-judge bench in Anjuman-E-Rahmania was deemed invalid by them.

A lesser discussed, debatable aspect of the judgement appears to be the learned CJI’s observation in para 72 of the judgment. Para 72 on page 60 reads “……. An educational institution established by a minority, whether linguistic or religious, can give up their right to claim the benefit under clause (1) of Article 30. The right can be given up consciously by waiver….”. The following article seeks to evaluate this observation in the light of the settled law that Fundamental Rights mentioned under Part-III of the Constitution cannot be waived.

Waiver of Fundamental Rights: A legal weakling

The counsels for the petitioner had submitted before the court that “Even if it were determined that external members had administrative roles, it would not jeopardize the university’s minority status. This is because the Muslim community retains the right to reclaim administrative control, as Fundamental Rights cannot be waived” (Para 1(g) at pg 42).It appears from the perusal of Para 72 of the judgement penned by the CJI himself, that this submission was rejected.

It is further submitted that this observation is against the rule established by a 9-Judge bench in Ahmedabad St. Xavier’s College Society and Anr. V.State of Gujarat and Anr. ((1974) 1 SCC 717). Dealing specifically with the waiver of the rights guaranteed under Article 30, YV Chandrachud had expressed doubt over whether the fundamental right under Article 30(1) ‘can be bartered away’ or ‘surrendered by any voluntary act’ or that ‘it can be waived’. The reason given was that a Fundamental right is vested in ‘plurality of persons as a unit’ or a ‘community of persons necessarily fluctuating’. The learned judge went on to declare that a living generation cannot surrender the right of the future members of that community. “The future members of the community do not derive the right under Article 30(1) by succession or inheritance.”

Justice Beg, in Para 200 of the same judgement elaborated on the premise: “But, can it be deemed to have opted to submit to any and every future amendment? Perhaps it will be carrying the doctrine of imputed knowledge and consent too far to say that a minority Institution opting for a statutory right must be deemed to have signed a blank cheque to assent to any and every conceivable amendment of any kind whatsoever in future as the price to be paid by it of its choice. No one could be deemed to assent to what is not before him at all.”

Similar was the stance of the court in Behram Khurshid Pesikaka v. State of Bombay ((1955) 1 SCR 613), wherein it held that because fundamental rights have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy.     

In fact, Justice DY Chandrachud, penning the majority opinion in KS Puttaswamy v. Union of India ((2017) 10 SCC 1) wrote: “though Part III embodies fundamental rights, this was construed to be a part of the wider notion of securing the vision of justice of the Founding Fathers and, as a matter of doctrine, the rights guaranteed were held not to be capable of being waived.” (para 126). The learned judge also referred to the judgement in Behram Khurshid Pesikaka v. State of Bombay. Additionally, a constitutional bench of the Apex Court in Chandana Das v. State of West Bengal (2020 13 SCC 411) had re-affirmed the opinion in St. Xavier’s, declaring it is settled law that the fundamental right under Article 30 cannot be waived.

At crossroads with a settled law     

From the perusal of the above cases, the law appears to be that Fundamental Right under Article 30 cannot be waived. Even if the current generation waives it, the future generation can reclaim it. Fundamental right, in the court’s opinion, is ‘for the living generation’. The judgement in St. Xavier, coupled with the ruling in Behram Khurshid Pesikaka and Chandana Das, read in conformity with Justice DY Chandrachud’s ruling in the privacy case renders para 72 of the Aligarh Muslim University judgement at crossroads with a settled position in law.

The observation of the Supreme Court in Para 72 of the AMU judgement may become a premise for denying the ‘minority’ character of an institution simply because the minorities accepted greater state control. Should the state’s interference, which is merely an act of handholding for the marginalized community be construed as a waiver, it would be a violation of a settled law. The court in Behram Khurshid Pesikaka, had cautioned of a similar situation when it pointed out that a citizen cannot get discrimination by telling the State “You can discriminate”.

As of now AMU remains a minority institute subject to the decision of the regular bench. The AMU minority judgment is not a curtain drop, rather it is a pause until change of stage. All eyes are set on the constitution of a regular bench and its observation thereafter.