Non-minority officials can't dilute minority character: SC on AMU

The mere fact that some part of administration of an educational institution is also looked after by non-minority officials does not "dilute" its minority character, the Supreme Court observed on Wednesday while hearing the hugely disputed minority status of Aligarh Muslim University (AMU).

The seven-judge Constitution bench of the apex court headed by Chief Justice D Y Chandrachud underlined that Article 30 of the Constitution says that every minority, whether religious or linguistic, shall have the right to establish and administer educational institutions of their choice.

"The mere fact that some part of the administration is also looked after by non-minority candidates who have a representative voice by virtue of their service in the institution or their association or engagement with the institution will not in that sense dilute the minority character of the institution," the bench said on the second day of the day-long hearing on the vexed issue.

"But it cannot be to a point where the entire administration is in non-minority hands," said the bench, which also comprised Justices Sanjiv Khanna, Surya Kant, J B Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma.

The issue of AMU's minority status has been caught in a protracted legal wrangle for the last several decades.

A five-judge Constitution bench had in 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, the reputable institution, established way back in 1875, got back its minority status when Parliament passed the AMU (Amendment) Act in 1981.

In January 2006, the Allahabad high court struck down the provision of the 1981 law by which the university was accorded the minority status.

The Congress-led UPA government at the Centre moved in appeal against the Allahabad high court verdict. 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.

It had cited the 1967 judgment in the Basha case to claim that AMU was not a minority institution since it was a central university funded by the government.

The top court had on February 12, 2019, referred to a seven-judge bench the contentious issue of the minority status of AMU. Another such reference was made in 1981.

In its written submission filed in the apex court, the Centre has said AMU cannot be a minority institution given its "national character".

It has said AMU 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.   

During the hearing on Wednesday, the bench told senior advocate Rajeev Dhavan, appearing for AMU, that he had made an important point on the interpretation of Article 30 of the Constitution about who could establish and administer minority educational institutions.

"For instance, no institution can exist without a grant of land, you cannot construct if you don't get land. So your existence is dependent on the lease which you get (from the government)...  Second, in today's time you may not be able to function if you don't have aid (from government)," Justice Chandrachud said.

Those opposing the minority status of AMU have been insisting that since it is a central university getting aid from the government, it cannot claim to be a minority institution.

CJI Chandrachud said all these aspects may be relevant to the existence, viable existence, of an institution, but they have no bearing on the establishment of the institution. The university has contended that it was established by the Muslim community for educating and empowering the community.

Dhavan argued that the Azeez Basha verdict is "no longer a good law" and referred to the 1981 amendment Act which restored AMU's minority character.

Senior advocate Kapil Sibal, who argued for one of the parties, said much water has flowed under the bridge since the Basha judgment was delivered.

"I want to ask myself a question -- what is the right that the minority has today? I have to comply with all standards. I can't appoint a teacher without an appropriate qualification.

"What is it that this Article gives you? Just a bit of reservation -- is there anything else? Institution that I have established, I just want a little reservation and they want to deny that also," Sibal argued.

He said if there was any undue interference in the functioning of the university, then it has the right to challenge it.

"Administration by outsiders does not destroy the minority character of my institution," he said, adding, the only way to be empowered was through higher education.

"I don't stand here for Aligarh Muslim University. I stand here for the diversity of the constitutional ethos of this country and I plead to your lordships, don't allow that to be destroyed. There is no such thing as one size fits all, especially in the field of education," Sibal contended.

Referring to government's contention against the 1981 amendment, Sibal said the executive can't go against a parliamentary statute.

"Can the government say I will go against the statute?" Sibal asked, adding the executive can't change its mind on a statute which Parliament has passed.

The arguments in the matter remained inconclusive and would continue on Thursday.