Minority or not has to be decided by today's standards, says SC in AMU case

An institution of national importance must reflect the "national structure", the Centre told the Supreme Court on Tuesday while pointing out that around 70 to 80 per cent students studying at Aligarh Muslim University (AMU) are Muslims even without reservation.

A seven-judge Constitution bench headed by Chief Justice D Y Chandrachud, which is hearing arguments on the vexed question regarding the minority status of AMU, was told by Solicitor General Tushar Mehta, representing the Centre, that social justice would be a very determining factor in deciding the case.

"Your lordships would bear in mind that it is almost an admitted position between the parties that even without reservation, approximately 70 to 80 per cent students are Muslims," Mehta told the bench, which also comprised Justices Sanjiv Khanna, Surya Kant, J B Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma.

"I am not on religion. It's a very, very serious phenomenon. An institution of national importance declared by the Constitution must reflect the national structure. Without reservation, this is the position," he said.

In his written submission filed in the apex court, Mehta has said a minority educational institution is not required to implement reservation policy under section 3 of the Central Educational Institution (Reservation in Admission) Act, 2006 (as amended in 2012).

During the sixth day of hearing, Mehta, while referring to the reservation aspect, said AMU is one of the finest universities and is recognised as an institution of national importance.

"So, a deserving candidate of Scheduled Caste or Scheduled Tribe or a socially and economically backward class person would not have the reservation but a person having all economic, everything at his command based on religion would have reservation...," he said.

During the day-long hearing, Mehta said there was no concept of minority or minority rights in 1920. The AMU Act came into being in 1920.

"Mr Solicitor General, in the absence of an express obliteration of the past by the statute, can the court not look into the pre-existing history unless we find that there are certain express provisions in the statute...," the CJI asked.

Mehta said his answer would be "no" for the simple reason that history always has several shades.

He said it would not be possible for any party to request the court to go behind it and try and find out the history.      

Mehta said equality is the "heart, soul and blood" of the Constitution after India became free from the British regime.

A five-judge Constitution bench had in the S Azeez Basha versus Union of India case in 1967 held that since AMU was a central university, it cannot be considered a minority institution.

However, it got back its minority status when Parliament passed the AMU (Amendment) Act in 1981.

Later, in January 2006, the Allahabad high court had struck down the provision of the AMU (Amendment) Act, 1981 by which the varsity was accorded minority status.

During the hearing on Tuesday, the bench referred to the 1981 amendment and said the intent behind it was to modify the statute so that reasoning given in the Basha case was not applicable.

The bench also heard the submissions of senior advocates Rakesh Dwivedi and Neeraj Kishan Kaul during the day.

Dwivedi said that to be a Muslim is one thing and to be a minority is another thing.

The issue of right under Article 30 of the Constitution, which deals with the right of religious and linguistic minorities to establish and administer educational institutions, also cropped up during the hearing.

"The question which is really being addressed before us is whether they are established and administered by a minority. The fact that they are a minority today in UP... that they were a minority at that relevant point of time, because whether they were a minority or not has to be decided on today's standards," the bench said.

Dwivedi said minority is a "political concept".

He said that in 1920, neither the Muslims nor the Hindus were part of then government and they were equal in the sufferings.

"There was no question of minority. The relationship was of the imperial ruler and the subject. We were all subjects, all treated alike, all subjected in the same manner," he argued.

"Is it your contention that because prior to 1947 there was no concept of minority as we constitutionally recognise today, therefore, any institution which has been established before 1947 or really before the advent of the Constitution... no such institution will be entitled to claim minority status? It will boil down to that," the bench said.

"What change took place on January 26, 1950, that the Muslims, which according to you would not have minority status before 1950, suddenly got minority status after 1950? What is the big change that took place," it asked.

Dwivedi said by that time, the country stood divided into two.

The CJI said post-independence, the Constitution assured an equal citizenship to everyone whether one is a Hindu or a Muslim.

The arguments remained inconclusive and would continue on Wednesday.

The top court had on February 12, 2019, referred to a seven-judge bench the contentious issue for adjudication. A similar reference was made earlier.

The Congress-led UPA government at the Centre moved an appeal against the 2006 high court order. The university also filed a separate petition against it.

The NDA government spearheaded by the BJP told the apex court in 2016 that it will withdraw the appeal filed by the erstwhile UPA dispensation.