New Delhi: The BJP-led NDA government has told the Supreme Court that the Constitution did not treat Aligarh Muslim University either as minority institution or otherwise, and its decision to withdraw the challenge to the judgment of the Allahabad High Court on the minority status of AMU “is based upon constitutional considerations alone and the change of governments is inconsequential”.
The Centre has stressed that the request for withdrawal is based on the original stand taken by the Union of India. A seven-judge constitution bench led by the Chief Justice of India has started hearing petitions on the question of the AMU’s minority status. Solicitor General Tushar Mehta, in his written submissions, said the Constitution did not treat Aligarh Muslim University either as a minority institution or otherwise.
The Centre said AMU has contended before the apex court that – (i) Once having filed the special leave petition (SLP) against the order of Allahabad, the Union of India cannot change its stand; and (ii) Union of India cannot support an argument against the constitutional validity of an amendment made by the Parliament in the year 1981.
“The stand taken by the government to withdraw the challenge to the judgment of the high court is based upon constitutional considerations alone and the change of governments is inconsequential”, said Mehta’s submissions.
Explaining the change of stand, Mehta said the stand taken earlier by the government to file a special leave petition challenging the judgment of the high court was contrary to the original stand of the central government taken in Azeez Basha case.
“It was also contrary to the binding judgment of this court in the Azeez Basha case. The stand taken to file SLP was also against the public policy of reservation meant for SCs/STs/OBCs/EWSs as applicable to central universities, therefore, against public interest. It is, therefore, submitted that the prayer for withdrawal of appeal has been made after due consideration of the legal position”, said Mehta’s submissions.
Mehta’s submissions said if AMU's contention for minority tag succeeds, it will not be obliged to provide reservation to SCs/STs/OBCs/EWS, and AMU is not providing reservation to these sections due to a 2006 status quo order.
“If the arguments of the Aligarh Muslim University are accepted, while it will continue not to provide for reservation for SCs/STs/OBCs/EWS, it will provide for reservation for Muslims which can be up to 50 per cent or even more”, said Mehta’s submissions.
The government further added that it will also be not obliged to follow the Central Educational Institution (Reservation in Teachers Cadre) Act, 2019, which provides for reservation in employment of teaching faculty in all universities.
A five-judge Constitution bench of the SC had in the case S. Azeez Basha vs Union of India in 1967, held that AMU was not entitled to minority education status as it “was neither established nor administered by the Muslim minority”.
The Centre alleged that AMU was trying to give it a political colour. "The respondent, unfortunately, has made an attempt to give a political hue to the matter by stating under para 14 of their affidavit that the decision taken after change of Government at the Centre is based on political consideration," added Mehta.
The Centre said Aligarh Muslim University has always been an institution of national importance even in the pre-independence era. “A survey of the documents surrounding the establishment of the Aligarh Muslim University and even the then existing legislative position enunciates that the AMU was always an institution having a national character”, said Mehta’s submissions.
“It is submitted that owing to the obviously secular ethos and nature of the nation and the Constitution, considering the fact that AMU is an institution of educational ‘national character’ it cannot be considered to be a minority institution irrespective of the question whether it was established and administered by the minority at the time of inception or not”, it added.
The Centre said Aligarh Muslim University is not and cannot be a university of any particular religion or religious denomination as any university which is declared by the Constitution of India to be of national importance should, by definition, cannot be a minority institution.
Centre strongly opposed AMU’s contention that the judgement in Azeez Pasha needs to be reconsidered saying it is settled law. The central government pointed out that AMU “has so far not challenged any of the amendments namely the first amendment in the year 1951, the second amendment in the year 1965, the third amendment in the year 1972 and the fourth amendment in the year 1981 in the Aligarh Muslim University Act, 1920”. “The University can, thus, not re-agitate the factual and fact based legal controversies already decided by a five-Judge bench which is clear from the present reference....”, it said.
The government said the case of Aligarh Muslim University and Banaras Hindu University is sui generis case since the framers of the Constitution chose to place these two Universities in List I as a part of Entry 63, though the subject of education is otherwise in the State List [at the time of Independence].
The submissions, citing constituent assembly debates, said “the said debates by the founding fathers make the non-minority character of both these institutions crystal clear”. The government contended that owing to the obviously secular ethos and nature of the nation and the Constitution, AMU cannot be considered to be a minority institution irrespective of the question whether it was established and administered by the minority at the time of inception or not.
Mehta’s submissions said that “no other universities are specifically named in the constitution itself thereby highlighting the national importance of the AMU and the national/non-minority character of AMU”.
The hearing in the matter will continue today.
In 2005, AMU had reserved 50% 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, 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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