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Cannot cripple Parliament’s power, says SC in AMU case
The bench, led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, emphasised that it has to lay down the law for the future
New Delhi The Supreme Court will be averse to interpreting the law in a manner that may substantially cripple the power of the Parliament, a seven-judge bench observed on Wednesday, sounding a word of caution that the “eagerness” by the government and other parties to question the 1981 amendments in favour of the Aligarh Muslim University (AMU)’s minority status ought not to circumscribe the authority of the lawmaking body.
The bench, led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, emphasised that it has to lay down the law for the future and therefore, the efforts by the parties to impugn the 1981 amendments by Parliament should not lead to a general principle curtailing the Parliament’s authority.
“Let’s not go into a wider context and dilute the power of Parliament by laying such a broad proposition that it’s not open to Parliament, while legislating, to take a view of historical facts to the contrary... even if it is embodied in a judgment...The legislature is not bound to take notice of facts as they emerge, as you and we would think emerge. Powers are with the legislature and that’s what they do every time in the Income Tax law when they bring about retrospective changes,” said the bench, which also comprised justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma.
The court’s observations came after senior counsel Neeraj K Kaul, representing one of the parties that has opposed the minority status for AMU, questioned the 1981 amendment in the AMU Act. The impugned amendment changed the definition of “university” to state that the institution was established by Muslims, in an endeavour to grant minority status to AMU.
The 1981 amendments were passed apparently to get over the Supreme Court’s five-judge bench judgment in the Azeez Basha case in 1967, which declared that AMU was neither established nor administered by Muslims and could not enjoy protection for minorities to administer educational institutions under Article 30(1) of the Constitution. But the Allahabad high court junked these amendments in 2006.
This verdict led to AMU and the then United Progressive Alliance (UPA) government challenging 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 Centre’s appeal, maintaining that AMU is not a minority institution and that the Basha judgment was correct.
Objecting to the 1981 amendments, Kaul on Wednesday said that it was not permissible for the Parliament to alter historical facts.
“It is sought to be argued today that by the change in definition of ‘university’ and by removal of the word ‘establishment’, we will change the historical facts...But even by a legislative fiat or legal fiction, you cannot take away a historical legislative fact...you cannot alter history,” the senior counsel added.
The bench, however, responded with a caveat. “Mr Kaul, you are also appearing on the side of the government. In the eagerness to uphold the striking down of the 1981 amendment, let us not do something which substantially cripples the powers of the parliament,” it said.
The bench told Kaul that the parties, in their effort to sustain the decision of the Allahabad high court, should not be asking the court to substantially mute the powers of Parliament in future. “We have to be very careful because what we are laying down is the law for the future on the powers of the constitutional body
While Kaul said that there are several instances of the constitutional courts striking down parliamentary laws, the bench said that the Parliament may still be entitled to take a particular view of historical facts as opposed to a legal view.
Kaul added that the court must also take judicial note of the fact that AMU was established and has been recognised as an “institution of national importance” (INI) and therefore, it cannot press for minority status given the constitutional status of such institutions. He contended that AMU and BHU were given the INI tag under Entry 63 of the Union List after the Constitution came into force and thus, their character could not be changed by a subsequent legislation. Coming after Kaul, senior counsel Guru Krishnakumar also argued that an institution with INI tag cannot be a minority institution.
To this, the bench wondered if the grant of INI status should be construed as an absolute bar against institutions seeking minority status. “There could nothing be fundamentally inconsistent with a minority institution being of national importance. You can have a minority institution which is made by the Parliament by law...How can the grant of the status be of negative connotation,” it remarked.
On the seventh day of the hearing, the Centre and other parties opposing the pleas for the grant of minority status to AMU concluded their arguments. As senior counsel Rajeev Dhavan commenced his submissions in rejoinder, the bench asked him to address the issue whether the grant of INI status will mean doing away with the minority character of an institution. The court will continue hearing the case on Thursday.
The Centre has maintained in the case that AMU is an institution of “national character” that ought to maintain its secular origins and serve the larger interest of the nation first.
The Centre grants the status of INI to premier higher educational institutions in India through an act of Parliament. According to the ministry of education, an INI is an institute that “serves as a pivotal player in developing highly skilled personnel within the specified region of the country/state”. Such institutions get special funding from the Centre while the University Grants Commission Act gives them the “degree granting status”. IITs, IIMs, AIIMS and Delhi University, among others, figure in the list of 165 INIs recognised by the Centre.
