New Delhi: The central government Tuesday told the Supreme Court that the Aligarh Muslim University (AMU) surrendered its minority character when it was conferred with University status under the 1920 AMU Act.
A seven-judge headed by Chief Justice of India D Y Chandrachud and comprising justices Sanjiv Khanna, Surya Kant, J B Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma, is hearing pleas in connection with the hugely disputed minority status of AMU. The Centre had submitted before the apex court that survey of the provision of the Aligarh Muslim University at the time of the inception of the university in 1920 clearly points towards a predominantly national and non-minority character of the university, and, in fact, the minority element was only present as an exception or a carve out as opposed to the omnipresent non-minority character.
The bench, in the day long hearing, queried Solicitor General Tushar Mehta, representing the Centre, does the Aligarh Muslim University Act, 1920, have the consequence of abrogating its status as a denominational institution governed by a religious minority? Mehta said there were institutions during the British rule, which had reputation and granted degrees except they were not under the British crown (gives list of examples - Scottish College, Roorkee College etc), and added that several institutions choose not to align with the British. Mehta said a minority institution can be open to everyone and that it wouldn't rob it of its minority character if its other attributes are satisfied. He stressed that when an institution agrees to the terms and conditions of the government and chooses to be dissolved, its earlier status is relinquished.
The CJI asked Mehta, “what are the indicia to indicate that when AMU was conferred with the university status that it surrenders its minority status. That mere fact that it is given a university (status) does not amount to the surrender of minority status. We have to independently see whether by the Aligarh Muslim University Act, 1920….. a denominational character of AMU was lost”.
Mehta cited correspondence between the British government and AMU regarding its minority status, the debates in the imperial Parliament where a bill was introduced and it was on surrendering denominational character. Citing the apex court judgment in Azeez Basha case, Mehta said it says that you have surrendered and the Act came into effect, now you cannot claim minority status, and “I will show that finding, Basha was very cursorily read (by the petitioners' counsel)”.
Senior advocate Rajeev Dhavan, representing the AMU, vehemently submitted that they surrendered only in respect of property and nothing else. “Word surrender is only used in respect of property (not minority status), nothing else”, said Dhavan. Senior advocate Rakesh Dwivedi, citing the book The Loyal Musalman authored by Sir Syed Ahmad Khan, said he started this from primary school to AMU and the whole purpose of AMU was to create a body of educated Muslims, who are loyal subjects.
The CJI said a minority institution may set up a purely secular form of educational institution, a minority can set up an architecture college, it can set up a medical college. Mehta said he has no quarrel with this observation.
“Sir Syed's idea was to set up an entirely secular institute…”, CJI said. Mehta said we are testing something that happened in 1920, based on Article 30 of the Constitution, which was not there at that point in time. Article 30 of the Constitution provides that all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
“The facts that transpired in 1920 and before that would have bearing whether they are entitled to protection under Article 30…..in 1920, they did not have the benefit of minority status because there was no Constitution….”, said the CJI.
Mehta said, “the bench is absolutely right and the court will decide whether AMU had a minority status as of 1920 based on two things: what transpired when the Act was passed…”. At this juncture, the CJI said, “not that whether it had minority status in 1920, whether it acquired a minority status as on January 26, 1950.... an establishment can happen post-Constitution and establishment can happen pre-Constitution. We have to look at facts, antecedent to the establishment and surrounding the establishment to decide the character of the institution”.
Mehta mentioned about the Khilafat movement and the Ali brothers who decided to create Jamia Millia Islamia after breaking away from AMU.
The CJI said there may be a problem in this line of argument, “you had the loyalist faction, which was of the view to align with the British government, and then the other faction encouraged by Gandhiji as well, namely those who were supporting the Khilafat movement and non-cooperation. According to you they broke away and formed Jamia”.
“Assuming that the loyalist was more in line with the British government does not deprive it of its minority character. The fact they were in alignment with the view of then imperial power does not make it any less institution founded by a minority. Founded by a minority does not mean that you have to be in opposition to the government. Today, you have minority institutions who are on the side of the government on important issues, that does not change its minority character…a minority institution may be politically aligned or may not be aligned with the government”, said the CJI.
Mehta said he was not on that and asked the court to allow him to clarify it and added that they were politically aligned with the British, and they were not a minority, which is not his case.
Citing Azeez Basha judgment, Mehta said it recorded that they had surrendered their minority status and it is on record and pressed that AMU surrendered its minority status. “I am just trying to show historically you surrendered what other did not, others (institutions) had the option of surrendering their rights, as a denominational institution….Visva Bharati university stuck to its ground…and after India was freed and all these institutions which continued their denominational character or their independent character they were recognized as either universities or deemed to be universities…” , said Mehta, adding that therefore Azeez Basha says surrender.
The apex court said, “Because today there is a recognition that without aid no institution, minority or non-minority, can exist. Merely by seeking aid or being granted aid you don’t lose your right to claim your minority status. That is now very well settled”.
In 1967, a five-judge constitution bench in the S Azeez Basha versus Union of India case in 1967 held that since the Aligarh Muslim University was a central university, it cannot be considered a minority institution. The university got back its minority status when Parliament passed the AMU (Amendment) Act in 1981.
The bench also questioned Attorney General R Venkataramani about the enabling provision in Article 30. The bench said, "An enabling provision is like Article 15 where you have a choice to make a provision. (Article) 30 is not enabling as far as the state is concerned; it is an obligation on the state. It cannot be that I as a state can decide to grant or deny you the status."
The AG said that the choice part is given to each citizen, but a higher status is given to the minority and therefore, “I say it enables them to reach a level beyond the other common considerations." The apex court will continue to hear the arguments on Wednesday.
