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State obligated to recognise a minority institution: Top court
In its petition, the AMU has sought a review of a five-judge bench judgment in the Azeez Basha case in 1967, which declared that AMU was not a minority institution
New Delhi The constitutional right of minorities to establish and administer educational institutions of their choice cannot be made subservient to any legislative act, a seven-judge bench of the Supreme Court observed on Tuesday, adding that the State is obligated under the Constitution to recognise a minority institution.
On the fourth day of the hearing related to the minority status of the Aligarh Muslim University (AMU), the bench led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud emphasised that Article 30 puts the State under an obligation to recognise minority educational institutions and not discriminate them in matters of granting aid.
“Article 30 is not an enabling provision so far as the State is concerned. It is an obligation on the State. It cannot be that ‘I as a state have the liberty to grant or deny you the status’...in Article 30, there is no choice,” the bench, which also comprised justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma, remarked.
The court’s observations came in response to the submissions by attorney general (AG) R Venkataramani, who described Article 30 as an “enabling provision” and added that the phraseology used in Article 30 -- “educational institutions of their choice” -- cannot be construed by itself conferring an authority to establish any class of institutions regardless of any legal competence to do so.
According to Venkataramani, the essence of Article 30 is traceable to an enabling legal framework which may confer the authority to establish institutions. “In the absence of competence or authority granted or conferred under a law to establish a university, no person, whether belonging to a minority community or otherwise, can establish a university,” said the AG.
This prompted the bench to question the top law officer if his arguments made the right of the minorities to establish educational institutions of their choice under Article 30 subject to a statute that Parliament may or may not frame.
“Your argument, if stretched, will apply to every institution, that unless there is an enabling provision you cannot set up any educational institution in India. You cannot even set up a primary school... which means Article 30 right is contingent on an enabling provision of the legislation recognising that right in the statutory term. The problem with your argument is that once you say that the right under Article 30 is contingent upon an enabling legal framework that will apply to every right or matter of choice under the said constitutional provision,” it told the AG.
While it is undisputed that the right under Article 30 can be contingent on compliance with regulatory provisions in matters of degrees, qualification of teachers etc., the bench added, the very right to establish minority educational institution cannot be dependent on a statutory framework.
“Your argument seems to be over-broad. If we accept your argument, then you will be making a constitutional right subservient to a statute,” it told Venkataramani.
The top court is seized of a clutch of petitions, including the one by the AMU seeking minority status under the 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).
Apart from the AG, solicitor general (SG) Tushar Mehta also argued on behalf of the Union government on Wednesday, submitting that the AMU was never recognised as a minority institution and that the University did not have a denominational character of a minority institution.
Citing pre-independence government correspondence and historical events, the SG argued that AMU chose to surrender its rights to the British government that controlled all its affairs and also refused to give AMU a status of an independent university that could give its own degrees.
At one point, the bench told the SG that the key issue in the case would be to determine the character of AMU under the 1920 Act that established the institution and whether it acquired the minority status on January 26, 1950 (when the Constitution came into force).
As Mehta referred to certain historical facts citing nationalists and loyalists before Independence, the bench said that the fact that the loyalists were in alignment with the views of the imperial power will not make it any less an institution founded by minority. “Founded by the minority does not mean that you have to be in opposition to the government...a minority institution may or may not be politically inclined towards the government,” it said.
The bench will continue hearing the case on Thursday.
In its petition, the AMU has sought a review of a five-judge bench judgment in the Azeez Basha case in 1967, which declared that AMU was not a minority institution and cannot thus enjoy protection for minorities to administer educational institutions under Article 30(1) of the Constitution.
The central government sought to nullify 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.
The Centre earlier this month 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.
