The Supreme Court on Friday, by a 4-3 majority, overruled its 1967 judgment in the Azeez Basha case that became the basis for denying the minority status of the Aligarh Muslim University (AMU). It directed that AMU’s status would be determined afresh following the principles evolved in the present verdict.
Chief Justice of India (CJI) Dhananjaya Y Chandrachud, along with justices Sanjiv Khanna, JB Pardiwala, and Manoj Misra, comprised the majority.
“The decision in Azeez Basha is overruled. The question of deciding the minority status of AMU must be done on the basis of the tests laid down in the present case. Papers to be placed before the CJI for constituting a bench to decide the issue and correctness of 2006 judgement of the Allahabad high court,” held the majority.
It laid down legal principles relating to the determination of the minority status of an institution but refrained from rendering a factual decision on the issue.
Reading for the majority, the CJI held that a minority institution must be both established and administered by a minority. He added minority institutions prior to the Constitution would also get equal protection under Article 30 (1).
Justice Chandrachud also noted that the minority status of an institution cannot be decided just because it has been established by parliamentary legislation. Various other factors surrounding such establishment and other aspects ought to be taken into account, the majority said.
‘”It is also not necessary to prove that the administration of a minority institution lies with such a minority group. The test is whether the institution exudes minority character and operates in the interest of a minority.”
Justices Surya Kant, Dipankar Datta, and Satish Chandra Sharma dissented, holding that the reference to a seven-judge bench by a two-judge bench in 1981 was bad in law since a two-judge bench cannot refer a matter to a Constitution bench without sending it to a three-judge bench first.
If declared a minority institution, AMU need not reserve seats for Scheduled Castes, Scheduled Tribes, other backward classes (OBC), and economically weaker sections (EWS).
Senior counsel Rajeev Dhavan, Kapil Sibal, Salman Khurshid, and MR Shamshad made submissions on behalf of AMU and other petitioners that have pressed for a reconsideration of the Azeez Basha judgment.
The 1967 judgment declared that AMU was not a minority institution and could not enjoy protection for minorities to administer educational institutions under Article 30(1) of the Constitution. This judgment held that AMU was neither established nor administered by a Muslim minority community. In 1981, Parliament passed amendments to the AMU Act to change the definition of “university” to state that the institution was established by Muslims, in an endeavour to grant minority status to AMU.
The Allahabad high court junked these amendments in 2006, prompting AMU and the then United Progressive Alliance (UPA) government to challenge it before the Supreme Court. But in 2016, in a reversal of the previous stand, the National Democratic Alliance (NDA) government sought to withdraw the appeal, maintaining that AMU is not a minority institution and that the Basha judgment was correct. The Union government also said that it does not support the 1981 amendments to the AMU Act.
During their arguments, the petitioners emphasised that AMU (then known as Muhammadan Anglo-Oriental College) was established by Muslims in 1920 with a minority character and to cater to the educational upliftment of the community. A mere fact that it was not administered exclusively or with Muslims in the majority in its administration cannot dilute the minority character of AMU, the lawyers argued, seeking a reversal of the 1967 Basha judgment.
They argued that the 1981 amendments depict the intention of the Parliament to confer minority status on AMU and that the present government, under a different political dispensation, cannot be allowed to resile from its earlier stand. The petitioners urged the larger bench to test the minority character of AMU on the contours of Article 30 keeping in mind the right that the Constitution sought to give to minorities with respect to the establishment and administration of educational institutions of their choice.
The Union government, represented by attorney general R Venkataramani and solicitor general Tushar Mehta, contended that AMU was neither established nor administered as a minority institution.
It has maintained that AMU is an institution of “national character” that ought to maintain its secular origins and serve the larger interest of the nation first.
“Owing to the obviously secular ethos and nature of the nation and the Constitution, considering the fact that AMU is an institution of educational ‘national character’, it cannot be considered to be a minority institution irrespective of the question whether it was established and administered by the minority at the time of inception or not,” said Mehta’s written submissions, adding no other institution declared to be of national importance by Parliament is a minority institution.
The Constitution recognises “institution of national importance (INI)” under Entry 63 of the Union List. The Union government grants the status of INI to premier higher educational institutions in India through an act of Parliament. It argued that all institutions of national importance must show diversity and the national structure and therefore, AMU cannot press for a minority status to defeat the representation that the marginalised sections of society are entitled to.
Through the written submissions of Mehta, the government 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 the public interest” and contrary to the public policy of reservation for marginalised sections.
The government stressed that the change of government was inconsequential to the reversal of the stance. It maintained that the Union government should have never filed a separate appeal in the top court against the 2006 judgment of the Allahabad high court, which held that AMU is not and has never been a minority institution.
The previous government’s stand was further in the teeth of a five-judge bench ruling in the Azeez Basha case in 1967, said the government.
Senior lawyers Rakesh Dwivedi, Neeraj K Kaul, Guru Krishna Kumar, and advocate Anirudh Sharma also appeared on behalf of some of the parties opposing the plea for the grant of minority status to AMU.
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