New Delhi: Dealing with the festering dispute over Aligarh Muslim University’s (AMU) minority status, the Supreme Court on Wednesday witnessed a brief heated discussion on the imposition of Emergency in the country in 1975 and also wondered how a law officer, representing the Centre could say that he would not support an amendment passed by Parliament.
On June 25, 1975, then Prime Minister of India, Indira Gandhi, imposed an Emergency and arrested many opposition leaders. The Emergency remained in effect from June 25, 1975, to March 21, 1977.
A seven-judge bench headed by Chief Justice of India D Y Chandrachud and comprising Justices Sanjiv Khanna, Surya Kant, J B Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma, is hearing pleas in connection with the hugely disputed minority status of AMU. The Centre had submitted before the apex court that the survey of the provision of the Aligarh Muslim University at the time of the inception of the university in 1920 points towards a predominantly national and non-minority character of the university, and, the minority element was "only present as an exception or a carve out as opposed to the omnipresent non-minority character".
During the morning session of the hearing, Solicitor General Tushar Mehta, representing the Centre, pointed out that the Allahabad High Court had struck down the 1981 amendment on various grounds, and as a law officer, he was entitled to submit that the high court’s view appeared to be correct.
During the day-long hearing, Justice Sanjiv Khanna asked Mehta whether he accepted the 1981 amendment. “This is an amendment by the Parliament. Is the government accepting?” asked Justice Khanna. Mehta replied, “I am not”. The reference was to the 2006 Allahabad High Court ruling that held the 1981 amendment unconstitutional. AMU's minority status was restored by an amendment to the AMU Act in 1981.
CJI, who appeared to be surprised by Mehta’s reply, said “How can you not accept an amendment by Parliament? Mr Solicitor, Parliament is an eternal indestructible body under the Indian Union. Irrespective of which government represents the cause of the Union of India, Parliament’s cause is eternal, indivisible and indestructible.”
He added, “And I can’t hear the government of India say that an amendment which Parliament made is something I don’t stand by”. The CJI added, “You have to stand by this amendment. You have an option. Go through the amending route and change the amending Act again.”
Mehta said, “I am not arguing a matter of A versus B. I am before a seven-judge Constitution bench answering constitutional questions. The amendment in question was subjected to challenge before the high court”. “There is a judgment declaring that it is unconstitutional for ABCD grounds and as a law officer, it is my right as well as my entitlement and duty to say that this view appears to be correct”, said Mehta.
At this juncture, the CJI said: “Mr Solicitor this will be radical because a law officer will be telling us that I do not abide by what Parliament has done. You have to stand by what Parliament has done, Parliament is supreme. Parliament is undoubtedly supreme in its law-making function”.
The CJI told Mehta that Parliament can always amend the statute, in which case the law officer can say the statute has been amended. The apex court further asked him: "Can the court hear any organ of the Union of India say that they won’t accept the amendment?" Mehta replied that as a law officer, "it is my right that this view (the high court judgment) appears to be correct".
“Parliament is an eternal, indivisible, indestructible entity under the democracy…how can you say 'I do not accept the validity of an amendment'," said the CJI. Mehta said he was not disputing it and asked if a law officer is expected to say that the amendments made in the Constitution during the Emergency were true only because they were made by the Parliament?
The CJI replied that the 44th amendment came only for that purpose and added that it came to remedy the evils, which were perpetrated in the name of constitutional amendments. Mehta said how it will be decided that these evils were perpetrated. “Exactly, you prove my point. The power to decide is in the elected body of the people, which is the Parliament. Parliament can always say that what we did during the Emergency was wrong and we are rectifying it...," the CJI remarked.
Mehta cited the Allahabad judgment and added that the Act is not on the statute book. Senior advocate Kapil Sibal, who was representing AMU Old Boys Association, one of the petitioners, said he was in the court "that day", referring to the Emergency period, and the then Attorney General Niren De in the apex court argued that what is being done is right and defended the Emergency provision because he could not say otherwise.
The apex court was informed that nine high courts had struck down the Emergency provision, however, Mehta added that there were other high courts which upheld it. Mehta said the court had asked Niren De "if somebody is hanged, can we not do anything". “He said yes, we cannot do anything and it was not to defend it (Emergency). It was to instigate the judges, please interfere”, said Mehta.
“When court questioned, do we not protect Article 21, when somebody’s personal liberty is being deprived. He (Niren De) said you cannot do it. It was to instigate the court, not to defend (Emergency)”, he added. To deflect further discussion on the Emergency, one of the judges on the bench queried Mehta that his submission was that the Allahabad High Court verdict erased the 1981 amendment. Mehta agreed and proceeded with his submissions in the matter.
In 2005, AMU reserved 50% of seats in postgraduate medical courses for Muslim candidates by claiming it to be a minority institution, which was set aside by the Allahabad High Court. In 2006, Centre and AMU challenged the high court’s decision before the Supreme Court. In 2016, the Centre withdrew from the appeal contending that it does not acknowledge the minority status of the university.
The top court had on February 12, 2019, referred to a seven-judge bench the hugely contentious issue of the minority status of AMU. A similar reference was also made in 1981. In 1967, a five-judge constitution bench in the S Azeez Basha versus Union of India case in 1967 held that since the Aligarh Muslim University was a central university and it cannot be considered a minority institution. The university got back its minority status when Parliament passed the AMU (Amendment) Act in 1981.
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