AMU Minority Status | Day 3: AMU responsible for the educated Muslim middle class, argue petitioners

AMU Minority Status

Judges: D.Y. Chandrachud CJI, Sanjiv Khanna J, Surya Kant J, J.B. Pardiwala J, Dipankar Datta J, Manoj Misra J, S.C. Sharma J

Petitioners continued their arguments in the Aligarh Muslim University (AMU) minority status case today. They argued that AMU cannot be stripped down of its minority status merely because it is an institution of excellence. 

Senior Advocates Kapil Sibal and Salman Khurshid, and Advocate Shadan Farasat concluded their arguments today on the genesis of AMU.  

Sibal: Establishing minority institutions is an “absolute right”

Sibal argued that a minority groups’ absolute right to establish and administer minority institutions is regulated under Article 19(6). This provision deals with restrictions on trade and business under Article 19(1)(g). In T.M.A. Pai Foundation v Union of India (2002) the Supreme Court had held that regulations which facilitate the minority institution to maintain a certain standard of education are permitted under Article 19(6). 

He then repeated his point from Day 2, where he contended that the absolute right is of “choice” under Article 30. This permits the institution to choose between being administered by an “outsider” or someone from its community. Involving outsiders does not make the minority institution lose its minority character, he said. He relied on St. Stephens College v University of Delhi (1991), where the Supreme Court stated that “This right is exercised by a body of persons in whom the founders have faith and confidence.” Sibal informed the Court that he was in the governing body of St. Stephens College himself and that the institution consisted of many non-minorities. 

Sibal then relied on a speech made by former Education Minister M.C Chagla delivered on 3 September 1965 which pointed towards the genesis of AMU. It clarified that AMU was established and administered by minorities. Solicitor General Tushar interjected claiming that Sibal was selectively reading parliamentary debates. Mehta pointed towards Chagla’s speech from the previous day, where he said that “Aligarh University has neither been established nor is being administered by the Muslim Community.” 

Chief Justice D.Y. Chandrachud appeared briefly convinced, agreeing that it “appears that the position of then education minister was that this was not an Article 30 institution.” Sibal fought on, reminding the Bench that the speech from 3 September 1965 was in sharp contrast to Mehta’s claims. The squabble on fact and legitimacy of Chagla’s comments came to an end with Sibal saying that opinions made by ministers can be wrong and that sanctity only remains with the law and the Constitution. 

Petitioners: AMU was made for the Muslims by the Muslims

Sibal expanded on some of Senior Advocate Rajeev Dhavans’ arguments from Day 2. Reading excerpts from Azeez Basha, he argued that the involvement of the Muslim community in the making of Muhammadan Anglo-Oriental College (MAO) was recorded strongly by the Court. As the Court limited its scope to the conversion of MAO into AMU through central legislation, Sibal contended that Azeez Basha misunderstood the context of “establishing” the University.  He argued that “establish” under Article 30 means established through members of the community, whereas under the AMU Act 1920, it means “established” a University from a college founded by the members of the community.  

Sibal then pointed out provisions of the 1920 Act to support that the MAO college facilitated the formation of AMU. He stated that all land, infrastructure, movable and immovable property, assets, and teaching staff that belonged to MAO were transferred to AMU. Sibal concluded his arguments by stating that rejecting the minority status of AMU would destroy the dreams of minority children from joining the workforce in India. 

Senior Advocate Salman Khurshid, appearing for the AMU Lawyers Association and AMU Old Boys Alumni Association – Delhi Unit, requested the Bench to adopt a “political, moral reading” of Article 30. This would give effect to a more expansive interpretation of the word “established” under the provision. Khurshid referred to Ronald Dworkin’s definition of a “political moral reading” which would involve interpreting clauses of the Constitution to “invoke moral principles about political decency and justice.” A copy of the essay is available in Khurshid’s written submissions

Khurshid contended that AMU has always been an important part of the Muslim community in India. He relied on a speech made by Dr. Zakir Husain, former Vice-Chancellor of AMU, where he stated, “The way Aligarh participates in the various walks of national life will determine the place of Muslims in India’s national life. The way India conducts itself towards Aligarh will determine largely, yes, that will determine largely the form which our national life will acquire in the future.” This drove home the point that the institution was established for the upliftment of the Muslim community. 

Farasat argued that AMU was responsible for the educated Muslim middle class of the country. He contended that the majority of Muslim families trust AMU for their children’s education. Further, the education of women belonging to the Muslim community was also facilitated by AMU. Farasat pointed out that Article 30 recognises two rights which every minority craves. First, the ability to retain the minority identity and second to fully participate in the national mainstream. He highlighted that Azeez Basha only proceeds on any one of these aspects i.e. either retain your minority status or integrate into the national mainstream and lose it. 

Picking up Sibal’s argument, Farasat pointed out that the 1920 AMU Act only “incorporated” AMU. This is fundamentally different from “established” under Article 30. He concluded his arguments by stating that AMU has managed to maintain its high standards of education even after being a minority institution.   

Sibal: Consider Azeez Basha to be frozen in time 

The present case was referred to a Constitution Bench when former Chief Justice Ranjan Gogoi was hearing a challenge against an Allahabad High Court judgement which relied on Azeez Basha to strike down a 1981 Amendment. The Amendment defined AMU as an educational institution “established by the Muslims of India.” Today, Mehta and Senior Advocate Neeraj Kishan Kaul, argued that the Court must not assess the correctness of Azeez Basha in isolation, and instead must also factor in the validity of the 1981 Amendment and the correctness of the Allahabad High Court decision. They argued that if the Court were to strike down Azeez Basha it would impact both the Amendment and the High Court Order—which derived its legitimacy from the Judgement. 

Sibal argued that the seven-judge bench must only restrict itself to the correctness of Azeez Basha. If Azeez Basha was declared bad in law, then the question of the 1981 amendment and the Allahabad High Court judgement would naturally also stand under scrutiny. If Azeez Basha was upheld, the Supreme Court would still have to consider the Allahabad High Court judgement based on the seven-judge decision. 

CJI Chandrachud pointed out that Sibal was referring to several precedents that took place after Azeez Basha, especially St. Stephens College. The Chief stated that it would be incorrect to freeze it in time as it is always better to consider the entire statutory scheme. Sibal repeated that the concerns about the consequences of the 1981 scheme would be put to rest only based on the current seven-judge bench decision.

Advocate M.C. Shamshad began arguing just five minutes before the closing hours of the Court. The Bench directed him to continue his arguments on 23 January 2024.