New Delhi : The Supreme Court Tuesday observed that merely the right to administer an educational institution is regulated by a statute and to certain extent is not untrammelled, does not detract from the minority character of the institution, while hearing a case concerning the minority status of the Aligarh Muslim University (AMU). The AMU counsel stressed that the right to administer a minority institute flowed from the right to establish one.
A seven-judge bench headed by the Chief Justice of India D Y Chandrachud said: “Article 30 (right of minorities to establish and administer educational institutions) uses the expression establish and administer, now there is no absolute standard of administration that you must administer 100 percent….so to make Article 30 effective, you don’t have to postulate that the administration by the minority has to be an absolute administration and that today in a regulated society, nothing is absolute".
The CJI added, " Virtually every aspect of life is regulated in some way or the other. So, merely because the right to administer an educational institution is regulated by a statute and to certain extent is not untrammelled, does not detract from the minority character of the institution”. Senior advocate Rajeev Dhavan, representing AMU, agreed with the bench’s observation saying that is the essential point.
The CJI said, “in administration, there is no constitutional definition of the expression administer. The courts have held what administration means but the right to administration itself is regulated by the statute...”.
Dhavan submitted that it cannot always be only Muslim, Muslim! “Because, after the Constitution, all the universities have a liberal element in them. Please give representation to students, teachers, all that is there in our university statutes”, said Dhavan.
The CJI added, “You don’t have to be administrating only religious courses, you can be administering a purely secular educational institution, that's one, secondly, the law is not that you only admit students of your community, you can admit from any community, without forcing because it is the right of establishment in administration…”.
CJI said, “therefore the minority institution doesn't lose its character according to your submission merely because various aspects of its existence are regulated by the statute including aspects of the administration of the institution. The state in public interest is entitled to regulate or the Parliament as the case maybe...”.
Dhavan argued that the validity of the Azeez Basha judgment has to be looked at in the context of subsequent judgments that may be contradictory. He submitted that AMU was a recognised institute of excellence and that the decision in Azeez Basha took a very narrow view of Article 30.
Dhavan argued, how can because of a regime change, the Union of India can change its stance. He said they contended before the Allahabad High Court that S. Azeez Basha and Anr v. Union of India was wrong.
Dhavan said that till 2005 and even in Azeez Basha, they (central government) had defended the statute, but now there is a change in regime and hence change in stand. He further contended what was the purpose of this (AMU) Act? It was to give Muslims access to education.
“We agree that minority educational institutions should not be ghettos, and we agree that they should be institutes of excellence.…..”, said Dhavan. The petitioners have also sought a review of Azeez Basha judgment, which said it is not a minority institution. He added that the right to administer a minority institute flowed from the right to establish one, and emphasized that throughout the world, there are minority state institutions.
The hearing in the matter will continue tomorrow.
A constitution bench is hearing plea by AMU and others, where it will decide on the question whether an educational institution created by a parliamentary statute enjoys minority status under Article 30. The bench also comprises justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma.
In 2005, AMU had reserved 50% seats in postgraduate medical courses for Muslim candidates by claiming it to be a minority institution, which was set aside by the Allahabad High Court. In 2006, Centre and AMU challenged the high court’s decision before the Supreme Court. In 2016, the Centre withdrew from the appeal contending that it does not acknowledge the minority status of the university.
The top court had on February 12, 2019 referred to a seven-judge bench the hugely contentious issue of the minority status of AMU. A similar reference was also made in 1981.
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 Centre had told the Supreme Court that Aligarh Muslim University cannot be a minority institution given its “national character”. Solicitor General Tushar Mehta is representing the Centre in the case before the apex court.
The Centre AMU said it is not and cannot be a university of any particular religion or religious denomination as any university which has been declared an institution of national importance cannot be a minority institution. Mehta, in his written submissions, said the university has always been an institution of national importance, even in the pre-independence era.
The Centre said AMU is not a university dominantly functioning as a Muslim university as it is not established and administered by the minority.
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