AMU of national importance... brand key, not minority status: Supreme Court
The Aligarh Muslim University (AMU) has remained an institution of national importance even without a minority tag, the Supreme Court observed on Thursday, adding the brand name is what really matters for the people.
The Aligarh Muslim University (AMU) has remained an institution of national importance even without a minority tag, the Supreme Court observed on Thursday, adding the brand name is what really matters for the people.
On the third consecutive day of the hearing related to AMU’s minority status, the bench, led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, asked one of the petitioners arguing in favour of the university’s minority status to justify why the tag was important when the institution has done well otherwise too.
“Over the last 100 years, without the minority institution status, it (AMU) has continued to be an institution of national importance...Will it really matter for the people whether it remains a minority institution or not? It’s only the brand name – AMU,” the bench, which also comprised justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma, remarked.
The bench was responding to the submissions made by advocate Shadan Farasat on behalf of one of the petitioners in the batch of cases, led by AMU, seeking minority status under the Indian Constitution. If declared a minority institution, AMU need not reserve seats for Scheduled Castes, Scheduled Tribes, other backward classes (OBC) and economically weaker sections (EWS).
Farasat, appearing for petitioner Hazi Muqeet Ali Qureshi, emphasised in the course of his arguments that if AMU ceases to be a minority institution, it will hamper the higher education for Muslim women in India.
“It’s a fact in the community that it sends their children, especially women, to AMU because of its minority status. The court has to take into account some social realities. Minority status of AMU and education for Muslim women have gone hand in hand,” according to Farasat, who said that the 1967 judgment of the Supreme Court in the Azeez Basha case was wrong.
The 1967 judgment by a five-judge bench ruled against the minority status of AMU, holding that the university was neither established nor administered by a Muslim minority, and therefore, it cannot enjoy protection for minorities to administer educational institutions under Article 30(1) of the Constitution.
Responding, the court asked Farasat how the seven-judge bench’s decision to ultimately overturn Basha or declaring AMU a minority institution impacts the university’s status. “How does it matter if we are not with you on Basha? Without the minority tag, the institution has continued to remain an institution of national importance,” it said.
Farasat replied that since the matter remained pending before the top court at different stages since 1967, there has always been a stay on AMU’s status except to the aspect of reservation. “Owing to the status quo orders of the apex court, AMU has continued as a minority institution for all practical purposes,” said Farasat, adding AMU will lose its minority status for the first time if the seven-judge bench were to affirm the 1967 Basha judgment.
To this, the bench told Farasat that his submissions may have a counterpoint. “It is not purely a legal argument,” it said.
The central government sought to overturn the top court’s 1967 Basha verdict by passing amendments to the AMU Act in 1981. The Allahabad high court, however, junked these amendments in 2006, leading to AMU and the then United Progressive Alliance (UPA) government to challenge it before the Supreme Court. In 2016, in a reversal of the previous stand, the National Democratic Alliance (NDA) government, however, sought to withdraw the Centre’s appeal, maintaining that AMU is not a minority institution and that the Basha judgment was correct.
At one point, the bench on Thursday said that the correctness of the Supreme Court’s view in 1967 in denying AMU a minority status is going to be the “core issue” for determination.
“If Basha was wrongly decided, it will mean denial of minority status was wrong. So, if we conclude Basha was wrongly decided, the very basis of the high court judgment (in 2006) goes because the high court said Parliament could not have overruled Basha through the 1981 amendments. So, that’s the core issue,” observed the bench.
It further said that the bench may not go strictly by the facts of the present case to lay down broad principles on when an institution can be declared a “minority institution” under the Indian Constitution.
“Perhaps, it will be inappropriate for us to look at the facts in deciding the character of a minority institution. Like in the present case, who gave how much land etc. may not matter...It’s a Constitutional court sitting in a combination of seven judges. There is always a temptation to resolve a dispute for all times to come but we should be careful about doing that in a combination of seven in this matter,” observed the bench.
Called upon to interpret the terms “establish and administer” under Article 30 that defines a minority institution, the court further said at one stage of the hearing that the Constitutional provision does not mandate that administration has to be by minority itself.
“What Article 30 contemplates and recognises is the right, mainly the right of choice, the discretion given to minorities to administer in a manner which they deem appropriate...The essential element of Article 30 is the conferment of choice on the minority it cannot be read in the reverse to impose an embargo on,” it added.
The court will resume its hearing in the matter on January 23.
Through the written submissions of solicitor general (SG) Tushar Mehta, the Centre on Tuesday told the court that its decision in 2016 to withdraw its support for minority status to AMU was based on “constitutional considerations alone” because the erstwhile UPA government’s stand to legally fight for it was “against public interest” and contrary to the public policy of reservation for marginalised sections.
