New Delhi The Union government’s decision in 2016 to withdraw its support for minority status to the Aligarh Muslim University (AMU) was based on “constitutional considerations alone” because the erstwhile United Progressive Alliance (UPA) government’s stand to legally fight for it was “against public interest” and contrary to the public policy of reservation for marginalised sections, the Centre has submitted before a seven-judge Constitution bench.
Stressing that the change of government at the Centre was inconsequential to the reversal of the stance, the NDA government 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 in the teeth of a five-judge bench ruling in the Azeez Basha case in 1967, the Centre added. The Supreme Court ruled against minority status of AMU in the Basha case, noting that the university was neither established nor administered by a Muslim minority, and held that it cannot enjoy protection for minorities to administer educational institutions under Article 30(1) of the Constitution.
“The stand taken to file an SLP (special leave petition against the 2006 high court ruling) was also against the public policy of reservation meant for SCs/STs/OBCs/EWSs as applicable to central universities, and therefore, was against public interest. It is, therefore, submitted that the prayer for withdrawal of appeal has been made after due consideration of the legal position,” the Centre submitted before the bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, through solicitor general (SG) Tushar Mehta..
AMU is an institution of “national character” that ought to maintain its secular origins and serve the larger interest of the nation first, the government told the bench, which also comprised justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma.
The bench on Tuesday commenced hearing a clutch of petitions relating to AMU’s minority status, with the university complaining that the Centre changed its stance because of a regime change, and that there is no change in policy or new materials brought on record to justify its changed position on restoring the university’s minority status.
The central government had sought to overturn the top court’s 1967 Basha order 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 UPA government to challenge it before the Supreme Court.
Then, in 2016, the NDA government informed the Supreme Court that it wishes to withdraw the appeal filed by the Centre. In 2019, the issue was referred to a larger bench to define the parameters for the granting of minority status to educational institutions.
If declared a minority institution, AMU need not reserve seats for Scheduled Castes, Scheduled Tribes, other backward classes (OBC) and economically weaker sections (EWS).
Firmly sticking to its demand to withdraw the appeal, in his written submission outlining the stand of the Centre, the SG claimed that AMU has attempted to give a political hue to the matter by arguing that the decision taken in 2016 after change of the government at the Centre was based on political consideration.
“It is unfortunate that a factual issue which has already been authoritatively decided by a Constitution bench of this Hon’ble Court is being politicised and controverted on misconceived grounds. It is reiterated that the decision of the government to withdraw the SLP is based upon the factual and constitutional considerations alone,” said the submissions, adding the Centre’s stand even in the Basha case was that AMU is not a minority institution.
The Centre maintained that AMU, like the Banaras Hindu University, is an institution of national character, adding no such university can be a minority institution.
“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.
“AMU is not and cannot be a university of any particular religion or religious denomination as any university, which is declared by the Constitution of India to be of national importance, should, by definition, cannot be a minority institution,” he added.
Mehta’s submissions pointed out that the grant of minority status would make it open for AMU to provide for reservation, even among teachers, up to 50% or more to Muslims while it will continue not to provide for reservation for SCs/STs/OBCs/EWS.
On the legal point, Mehta’s submissions stated that an institution must be both “established” and “administered” by a minority group to come under the ambit of Article 30, and since the Basha judgment clearly rendered a finding following a factual determination that AMU was predominantly a non-minority institution, it was not open for Parliament to change those findings of fact by way of amendments in 1981.
The seven-judge bench is expected to lay down parameters for granting minority status to an educational institution under Article 30 of the Constitution and also decide whether an educational institution created under a parliamentary statute can be given such status — effectively re-looking at the Basha verdict.
On Tuesday, AMU, through senior advocate Rajeev Dhavan, argued that private and minority institutions are the heart and soul of India’s education system and that the Basha judgment requires a reconsideration for ignoring several key aspects of the law as well as purpose of having such institutions.
At one point during the hearing on Tuesday, the bench remarked that administration of a minority institution under Article 30 cannot mean an “absolute” or “100% administration” and therefore, merely because right to administer is regulated by a statute to a certain extent, it does not detract from the minority character of an institution.
The court will continue hearing the case on Wednesday.
Aisha Patel is a dedicated Indian correspondent with a deep understanding of the nation’s diverse affairs. With a background in Indian culture, politics, and current events, she provides in-depth analysis and timely reporting on domestic issues within India.
