Supreme Court to examine if Aligarh Muslim University’s minority character got lost by 1920 Act

New Delhi, January 23

The Supreme Court on Tuesday said it will examine if the “denominational character” of the Aligarh Muslim University as a minority institution got lost when it was designated as a university under the 1920 AMU Act.

On the fourth day of hearing on minority status of the AMU, a seven-judge Constitution Bench led by CJI DY Chandrachud sought to know if the AMU Act, 1920 had the consequence of abrogating its status as an institute governed by a religious minority.

“The mere fact that it was given university status does not amount to a surrender of the minority status… We have to independently see whether by the 1920 Act the denominational character of AMU was lost,” noted the Bench – which also included Justice Sanjiv Khanna, Justice Surya Kant, Justice JB Pardiwala, Justice Dipankar Datta, Justice Manoj Misra and Justice Satish Chandra Sharma.

“Because, today there is recognition that without aid no institution — minority or non-minority — can exist. Merely by seeking aid or being granted aid you don’t lose your right to claim your minority status. That’s now very well settled,” it said. The Bench would resume the hearing on Wednesday.

The Bench was examining of AMU was a minority institution under Article 30 of the Constitution which conferred right to “establish and administer” educational institutions on religious and linguistic minorities.

It would also test the correctness of a 2006 judgment of the Allahabad High Court, declaring that AMU was not a minority institution.

“What happened between 1920 and January 25, 1950?” the CJI asked Solicitor General Tushar Mehta.

“Between 1920 and the Constitution coming into force, there is no change in the Act. 1920 (Act) remains as it is… The first amendment comes in 1951. The 1920 Act speaks about incorporating a teaching and residential Muslim university in Aligarh. In 1951, the AMU Act was amended to do away with the compulsory religious education provided to Muslim students by the university,” Mehta said.

As the Bench asked if the 1920 legislation was consistent with recognising the pre-existing history of AMU… or the 1920 Act itself resulted in the abrogation of any claim to minority status, Mehta said at the time of its inception in 1920 the university had a predominantly national and non-minority character.

“In fact, the minority element was only present as an exception or a carve-out as opposed to the omnipresent non-minority character,” Mehta said, referring to provisions of the AMU Act.

Attorney General R Venkataramani said, “In my understanding, this is not a case which has emanated from deprivation of Article 30 right.”

During the hearing, the Bench said the right under Article 30 in certain areas may be conditional or contingent upon provision of a regulatory law.

As the Bench sought to know the recurring expenditure incurred by the university from 1920 to 1950 and who funded those, Mehta said the expenditure was borne by the government and it was currently Rs 1,500 crore annually.

Based on the top court’s 1967 judgment in ‘S Azeez Basha versus Union of India’ that held that since AMU was a central university, it can’t be considered a minority institution, the Allahabad High Court had in 2006 declared that AMU was not a minority institution.

The AMU and the then UPA government had challenged the 2006 Allahabad High Court verdict in the Supreme Court. However, the BJP-led NDA government in 2016 told the top court that it will withdraw the appeal filed by its predecessor government as “the previous stand was wrong”.

The Centre has now contended that given its “national character”, 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.

If the Supreme Court finally declared AMU a minority institution, SCs, STs and OBCs will not get reservation in admission.

The verdict would set a judicial precedent for a similar legal battle over the status for the Jamia Millia Islamia University, which was declared a minority institution during the UPA government in 2011.