The Supreme Court has reserved the order on the minority status of Aligarh Muslim University (AMU) after 8 days of hearing the case.
The Court will decide if AMU enjoys minority status under Article 30 of the Constitution. In 2005, the Allahabad High Court had refused to consider AMU as a minority institution. AMU’s appeal against the HC ruling was being heard by the apex court.
The batch of petitions were being heard by the Constitution Bench comprising Chief Justice of India (CJI) DY Chandrachud, Justice Sanjiv Khanna, Justice Surya Kant, Justice JB Pardiwala, Justice Dipankar Datta, Justice Manoj Misra and Justice Satish Chandra Sharma.
The CJI said that the 1981 AMU Amendment Act was brought to recognise the historical fact that it was established by the Muslims of India.
The Central Government was represented by Solicitor General Tushar Mehta, who stated that it was a part of the election manifesto. The SG further said that the court should understand the danger of Parliament given permission to recognise hundreds of years ago history.
The CJI said such recognition lies in Parliament’s exclusive domain but the matter is subject to constitutional validity.
The crux of the matter is on concerns regarding the parameters for granting an educational institution minority status under Article 30 and whether a centrally-funded university established by a parliamentary statute could be designated a minority institution. In February 2019, the matter was referred to a seven-judge bench headed by then CJI Ranjan Gogoi.
In the 1968 case of S Azeez Basha vs Union of India, AMU was held to be a central university by the Supreme Court. In this case, the top court held that a minority status under Article 29 and 30 of the Indian Constitution cannot be conferred on a Central University. Nonetheless, the minority status of AMU was later reinstated by bringing in an amendment to the AMU Act.
This was further challenged before the Allahabad High Court which set aside the decision as being unconstitutional leading to the instant appeals by AMU before the Supreme Court. In 2016, the Central government withdrew its appeal in the matter.
On January 24, the Central Government apprised the Supreme Court that AMU had surrendered its denominational character at the time of its establishment by an Act of the British Parliament in 1920 and hence, it could not claim the minority status now.
Solicitor General Mehta argued AMU chose to surrender its minority status when it bowed to British legislation establishing the institution under the Aligarh Muslim University Act, 1920.
The SG pointed out that communications between the British officers and MAO College showed that from the very inception, the Imperial Government was clear that the demand for establishing a University by way of an enactment would only be accepted if the control substantially vested with secular or non-minority authorities.
On the fourth day of hearing, the Apex Court asked SG Mehta about the status of AMU under the 1920 legislation and on the eve of adoption of the Constitution.
The mere fact that AMU was given university status did not amount to a surrender of minority status or denominational status prior to Independence, noted the Constitution Bench, adding that it had to independently see whether by the 1920 Act, AMU’s denominational character was lost.
Earlier, the Apex Court had observed that the minority status of AMU cannot be decided on the basis of the political alignment of its AMU founders during the British Raj and noted that it will not have any bearing on the case. The Constitution Bench observed that the founders could have aligned with either Mahatma Gandhi or Khilafat, but the same will not have any bearing on the minority status of the institute.
The CJI said assuming there were two factions (of founders). While loyalists supported Mahatma Gandhi, those in Khilafat movement branched out to form Jamia Millia Islamia. Their loyalty did not mean the institute’s minority character changed or that the same had a bearing depending on whether they were aligned to or opposed to the then executive.
Responding to the arguments made by Advocate MR Shamshad (for petitioners), the CJI said that a minority institute can say that it has the choice to establish a school but it cannot say that it has to be recognised when it comes to conferring degrees without an enabling statute or legal regime.
A person need not have to give up the minority status if he/she sought aid and this was fairly well established, the Court noted.