Parliament did ‘half-hearted’ job in amending AMU Act: Supreme Court
The court reserved judgment on the case relating to the minority status of AMU, with arguments presented over the course of eight days.
The Parliament did a “half-hearted” job in amending the Aligarh Muslim University (AMU) Act in 1981, the Supreme Court remarked on Thursday, pointing out though the amendments sought to include the Muslim voice in the administration of the institution, it fell short of conferring the “complete minority character” on AMU.
As the seven-judge bench led by Chief Justice of India Dhananjaya Y Chandrachud reserved its judgment in the case relating to minority status of AMU, the court observed that the amendments made in 1981 changed the definition of the term “university” under the AMU Act to state that it was established by Muslims and made some other changes.
“So, it was really placating those sentiments. But when it actually came to the brass tacks, they did not go back to the position prior to 1951. And what they actually did was that it brought the Muslim voice into the AMU administration as we see it. But it still stopped short,” commented the bench, which also comprised justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma.
The court added that the 1981 amendments did not restore the position that existed prior to 1951. After the Constitution was enforced, the original AMU Act of 1920 was modified to remove provision for compulsory religious education; to provide for the University to be open to students of all caste, creed, sex, etc; remove the requirement of all the members of the Court (administrative body of the University) to be Muslims.
“In other words, 1981 amendment does a half-hearted job. We can understand if the 1981 amendments said, ‘Okay, we are going back to the position in 1920’, conferring a complete minority character. But they changed some definitions...Even the parliament, which had the power to do it, stopped short of taking us back to the 1920 Act. They made a few concessions, but they never took it back to 1920,” it observed.
Following wide-ranging arguments spanning eight day-long hearings, the Constitution bench on Thursday reserved its judgment in the matter. If declared a minority institution, AMU need not reserve seats for Scheduled Castes, Scheduled Tribes, Other Backward Classes (OBC) and Economically Weaker Sections (EWS).
On Thursday, senior counsel Rajeev Dhavan, Kapil Sibal, Salman Khurshid and advocate MR Shamshad made submissions on behalf of AMU and other petitioners that have pressed for a reconsideration of the Supreme Court’s five-judge bench judgment in the Azeez Basha case in 1967.
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. In 1981, Parliament passed amendments to the AMU Act to change the definition of “university” in its endeavour to grant minority status to AMU.
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. 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. The Centre also said that it does not support the 1981 amendments in the AMU Act.
During their arguments, the petitioners have 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 majority in its administration cannot dilute the minority character of AMU, the lawyers have argued, seeking reversal of the 1967 Basha judgment.
They have further argued that 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 have 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 establishment and administration of educational institutions of their choice.
On Thursday Sibal cited statistics from the 2006 Sachar Committee report to point out that Muslim students were a little over 1% in IIMs across India while the community had a meagre 4% and 1.3% representation in post-graduate and under-gradute courses in IITs. “This is the state of affairs in so far as Muslim community is concerned. What do we have? We have just one university to help the community, but they want to take that away too,” Sibal argued.
The central government, represented by attorney general R Venkataramani and solicitor general Tushar Mehta, contended that AMU was neither established nor administered as a minority institution.
In its written submissions, the Centre 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,” stated Mehta’s written submissions, adding no other institution declared to be of national importance by Parliament is a minority institution.
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.
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.