AMU Minority Status | Day 6: Minority rights did not exist before the Constitution, argue respondents

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

Solicitor General Tushar Mehta concluded his arguments today. Over the course of three days, Mehta argued on how Aligarh Muslim University (AMU) relinquished its minority status and how the British government had the sole authority on its administration. Today, Mehta argued that the Aligarh Muslim University Act, 1920 never expressly acknowledged that it was established by Muslims, making it clear that it does not have a minority status.   

Senior Advocate Rakesh Dwivedi and Neeraj Kishan Kaul argued that Azeez Basha v Union of India (1967) was a statute specific, standalone judgement whose correctness was never to be considered. In Azeez Basha, a Constitution Bench had held that AMU did not have a minority status as it was not established by the Muslim community. 

Mehta: British legislations recognised “founding events” of institutions

Mehta argued that legislators in the British era would expressly recognise the “founding events” which led to the formation of an institution. He stated that a colonial law—the Annamalai University Act, 1928—had explicitly stated in its preamble that it was “established and maintained” by Diwan Bahadur Sir S.R.M. Annamalai. Such express provision was not found in the Aligarh Muslim University Act, 1920. 

Mehta asserted that the petitioners were incorrect in arguing that the “genesis” of an institution is crucial to determine its minority status. He countered that without an explicit legislative statement, the “genesis” of the institution would be irrelevant. The burden of assessing who established an institution wouldn’t fall on the courts because legislative enactments would have already clarified it, he said. Chief Justice D.Y. Chandrachud asked whether there is a constitutional provision that prevents courts from looking into the historical circumstances of the creation of an institution if such express provision is not found in a statute. To this Mehta responded that history can have several “shades” and different versions, which is why a statute would be the “final authority.” 

Mehta then relied on four legislations—the Sam Higginbottom University of Agriculture, Technology and Sciences, Uttar Pradesh Act, 2016; the Era University, Lucknow, Uttar Pradesh Act, 2016; the Teerthanker Mahaveer University Act, 2008; and the North East Adventist University Act, 2015. In all these examples, their minority status and the historical circumstances in which the institution was established was recorded. He argued that the petitioners undertook a “wrong reading” of Azeez Basha to claim that an institution loses its minority status once it is incorporated by a legislative statute. “Azeez Basha is a sui generis, fact-specific judgement of the Aligarh Muslim University,” he stated. This means that Azeez Basha would not apply to other institutions. 

Mehta: Choose between Scheduled Castes and Tribes or Muslim Minorities 

Mehta argued that a university of national importance such as AMU must have students from diverse “spectrum” of backgrounds. The demand for providing 50 percent reservation to Muslims in AMU would only allow higher representation of one community, he said. Article 15 (5) grants reservations to the scheduled caste, scheduled tribes, and socially and economically backward classes so that they can be on par with the privileged groups. He contended that allowing reservation for Muslims would make deserving SC/ST/SEBC candidates lose their chance of studying in a prestigious institute like AMU. He contended that the seven-judge bench will have to choose between extending reservation to muslim minorities or the SC/ST/SEBC community.

Dwivedi: Constitution Bench must decide on the definition of “minority” 

Dwivedi provided three criteria for determining who a “minority” is: 

  1. A community must be numerically fewer than the majority.
  2. If the ruling group is numerically smaller, it does not qualify as a minority.
  3. The group itself should consider and identify as a minority

He claimed that neither in 75 years of the Constitution or at the Supreme Court has this question ever been decided. 

Dwivedi contended that even during colonial rule, the British who were numerically a minority Christian group, would not meet the criteria for a minority. Consequently, institutions associated with Christianity today should not enjoy minority status. He argued that Muslims were not recognised as a minority religion during British rule, as Hindus and Muslims were considered equals. Further, Sir Syed Ahmed Khan, the founder of Mohammedan Anglo-Oriental College, claimed in a letter that the Muslim community never considered itself as a minority religion and instead as rulers prior to the British government. 

CJI Chandrachud raised concerns about the implication that any institution designated as a minority before the Constitution’s enactment would lose minority status. Dwivedi agreed with the Chiefs understanding of his argument. He explained that extending the right to establish minority institutions under Article 30 to a 1920 enactment would create a “fiction.” 

Dwivedi added that fundamental rights cannot be applied retrospectively. CJI Chandrachud appeared sceptical and pointed out that one’s right to property under Article 19(1)(f) can be exercised even over property they owned prior to the Constitution. Dwivedi responded that the right to property existed before the Constitution was framed, whereas the concept of “minority” was only introduced on 26 January 1950. He further contended that Article 30 was only introduced as a safeguard to prevent the dominance of the majority—the Hindus. 

CJI Chandrachud asked what led the Muslim community to “suddenly acquire” the minority group status on 26 January 1950. Dwivedi attributed it to the partition and the formation of Pakistan which created the “fear” of Hindu dominance on Indian Muslims. CJI Chandrachud responded that the Constitution granted equal citizenship to everyone—how could the Muslim community claim a “minority” status? Dwivedi answered that they subscribed to a different religion, culture, language, or script. CJI Chandrachud highlighted that these “sociological features” existed even prior to the Constitution. 

Dwivedi: “Public Mischief” if Azeez Basha is overruled 

Agreeing with Mehta, Dwivedi argued that Azeez Basha was a “standalone” and “statute specific” judgement which only dealt with AMU. The judgement does not have any consequence or a “trickle down effect” on any other statute or judgement. He relied on the doctrine of stare decisis which means that a case has to be decided on the basis of an established precedent which in this case, is Azeez Basha. 

He then contended that the Union government contributes over a thousand crores to AMU, which has resulted in a complete “metamorphosis” of the university. The university has expanded from the previous 74 acres to 1150 acres of land with multi storied buildings all because of the Union government’s aid. He argued that it would be a “public mischief” to overrule Azeez Basha which would take away the Union’s control over the university. 

Dwivedi relied on Waman Rao v Union of India (1981) which stated that a precedent can only be overruled by a Court “only when the court is fully convinced that public interest of a substantial character would be jeopardised.” According to Dwivedi, there was no such jeopardy here because of the specific nature of the judgement. 

Kaul: Correctness of Azeez Basha was never to be considered

Kaul contended that the petitioners were focusing on questions that were never included in the original reference order of 2019 which referred the AMU Minority case to a seven-judge bench. He stated that the seven-judges only had to decide on the meaning of “established and administered” under Article 30. Specifically, they were tasked with deciding whether the word “and” in “established and administered” should be considered disjunctively or conjunctively. Does a university have to be both established and administered; or either established or administered by a minority under Article 30.  

Kaul will continue his arguments on 31 January 2024.