AMU Minority Status | Day 5: AMU was predominantly a non-minority institution, argues UnionAMU Minority Status
Today, Solicitor General Tushar Mehta continued his arguments in the Aligarh Muslim University minority status case. He focused on the administration of AMU, which according to him, was in complete control of a non-minority administration appointed by the British Government.
Mehta: British government had the sole discretion on the administration of AMU
Mehta referred to the Aligarh Muslim University Act, 1920 which stated the Lord Rector under Section 13 administered AMU. A Lord Rector is the highest authority under the AMU Act. Section 13 allows him to give orders to the authorities of AMU, namely, the Court (supreme governing body), Executive Council, and the Academic Council. At that time, the supreme governing body consisted of only Muslims. Mehta argued that the administrative team running the day-to-day operations was answerable to Lord Rector.
Justice Sanjeev Khanna pointed out that the Lord Rector appeared to be someone who was the “symbolic incharge” and that the administrators were running the institution. Mehta replied that the daily administrators did not enjoy their own “discretion” to make decisions—all decisions were subject to the Lord Rector’s approval. The administrative team could only advise the Lord Rector on matters concerning day-to-day operations. He gave specific importance to Section 13(5) which allowed the Lord Rector to make decisions binding on the supreme governing body of the university.
Chief Justice D.Y. Chandrachud tested this argument. He found it necessary to identify the regulatory provisions in the 1920 Act which would be permissible under Article 30. Mehta claimed that the 1920 Act should not be tested under Article 30, on the grounds that there was no concept of a minority institution at the time that the legislation was enacted.
Justice Khanna added that the Lord Rector was meant to ensure that the British government did not lose its control over the institution.This would allow the imperial government to intervene if necessary. CJI Chandrachud pointed out that the institution was established when the British government had absolute power over the country. He asked whether AMU choosing to be recognised by the British government would completely destroy their claim to be a minority institution. “The British had sensitivities, they didn’t want institutions to be so much in power” he stated. Pointing out that several institutions have a supervisory head similar to the Lord Rector even today just to ensure that “nothing drastic is done,” he added that all regulatory statutes had an overarching statute so that the “hegemony” would not be destroyed. “Education is a very important source of cultural power and we have seen it pre and post independence” stated CJI Chandrachud.
Mehta stated that the 1920 Act was not a regulatory statute but a substantive one on how the University was to be administered. Additionally, there was never a mandate for the institution to be run by Muslims. It was predominantly non-minority. Most of the people in the administration “just happened” to be Muslims. This received another question from the Bench—, why was Muslim representation necessary in the University? Mehta replied that this was due to the courses offered in the University, which included Muslim Theology, Urdu language, etc. He repeated that law never required them to be Muslims.
Mehta: Article 28 is an “agnostic” provision
Article 28 stipulated that institutions which are fully funded by the Union cannot have mandatory religious education. However, partially funded religious institutions may keep religious education optional. Mehta described Article 28 as agnostic because it does not differentiate the minority institutions from the majority and applies the same rule to all religious institutions. The distinction it makes, comes from the degree of Union interference, not its minority status.
AMU is fully funded by the Union government. Mehta pointed out that the British government allocated 30 lakh rupees every year. Now, the Union government allocates ₹1,500 crore for AMU. Mehta argued that Article 30 does not override Article 28. This would mean that Article 30 cannot be exercised to permit compulsory religious education, if an institution is funded fully by the Union. Further, the AMU Act was amended in 1951, soon after the enactment of the Constitution and by extension, Article 28, to remove compulsory religious education.
1981 Amendment: Worth considering?
Right before the 1:00 PM lunch break, the Chief asked whether the seven-judge bench should also consider the validity of the 1981 amendment which changed the definition of “University” under the Act to say a university established by the “Muslims of India.” CJI Chandrachud observed that the amendment was a means to override Azeez Basha v Union of India (1967) and was struck down by the Allahabad High Court in 2005. Agreeing with this proposal, respondents reminded the Court that the petitioners wish to avoid this line of argument.
Petitioners have not relied on the validity of the 1981 amendment in the hearing so far, relying instead on just the correctness of Azeez Basha. Today, Senior Advocate Kapil Sibal, for the petitioners, argued that considering the amendments validity was unnecessary. If Azeez Basha was struck down then the 1981 amendment would become redundant. If it is upheld then the validity of the amendment would be considered by a smaller bench of the Supreme Court accordingly.
Mehta argued that the amendment should be considered to avoid duplicity of hearings, which he said the petitioners were trying to do. He claimed that if Azeez Basha is upheld, the petitioners will get a “second chance” to argue on the minority status by relying on the 1981 amendment. “If we [respondents] lose, we lose” the Solicitor General exclaimed. He preferred to consider the status of AMU as a whole which includes all the amendments of the Act after 1950.
Justice Khanna thought it would be appropriate to limit the scope of the hearing to Azeez Basha. He pointed out that Azeez Basha had decided that AMU was Established by a statute, was neither established by minorities nor administered by them. He observed that the 1981 Amendment only deals with the question of who established AMU. As two more would remain, he suggested that just reviewing Azeez Basha would get the job done.
CJI Chandrachud: Parliament is “Eternal, Indivisible, and Indestructible”
Mehta argued that the 1981 amendment was incorrect. CJI Chandrachud was taken aback. “How can you not accept it?” the Chief asked. “I can’t hear the Government of India say that an amendment which Parliament made is something I don’t stand by.” He reminded the Solicitor General that “irrespective of which government represents the cause of the Union of India” the Parliament remains “eternal.” Mehta responded that the amendment was challenged and struck down by the Allahabad High Court, giving him ground to also declare it incorrect. Being an officer of the Court and as the Solicitor General, he said it was his duty to answer a constitutional question correctly.
CJI Chandrachud responded that this line of argument was “radical.” If the new government disagrees with an older amendment, they have the route of making a new amendment to change it. Mehta contended that by this logic, every law officer would have to agree with laws made by the Parliament during the emergency. CJI Chandrachud responded that the 44th Amendment of the Constitution was made to rectify the evils of the emergency.
Mehta said that the Union government had chosen to side with the Allahabad High Courts decision for striking down the 1981 Amendment. This was included in the Union’s affidavit.
Previously, the Government formed by the Indian National Congress had appealed against the Allahabad High Court judgement. This appeal was withdrawn by the Bharatiya Janata Party government in 2016.
Mehta: Azeez Basha correctly traced how AMU was a Government Institution
Mehta stated that Justice M.C. Chagla, the Education Minister in 1965, expressly stated that AMU was “neither established nor administered by minorities.” Justice Chagla gave this speech before an amendment that removed the rule of having only Muslims in the supreme governing body. He appeared to convey to the Court that the Union government in 1965 led by the Indian National Congress also agreed that AMU was a government university.
For the next-half of the day, Mehta read out specific parts from Azeez Basha which relied on provisions of the 1920 Act to hold that AMU was not administered by Muslims. Azeez Basha had held that MAO “surrendered” its minority status to the British government.
CJI Chandrachud asked again—does recognition from the government mean that you are no longer in a position to be recognised as a minority institution? He stated that the word “surrendered” in the context of fundamental rights needs to be read in the strictest sense, especially when it comes to pre-constitutional statutes. He noted that registering with the crown could have appeared as the only option for AMU as the Muslim community was at its “lowest at the time.”
Justice Khanna added that when an institution establishes itself as a University, many opportunities for its expansion open up. A university is permitted to open schools, and provide degrees to colleges affiliated with it. AMU may not have envisioned an India that would be free from imperial rule, and could have thought that one way to serve the country was to join the Government, he suggested.
Mehta stood firm claiming that several counterparts of AMU at that time chose not to join the British government and were later recognised as prestigious institutions under the University Grants Commission. He repeatedly cited the example of Indian Institution of Technology, Roorkee to buttress his point.
Arguments are expected to continue on Tuesday (30 January 2024).