'Let's Not Dilute Parliament's Powers' : Supreme Court On Arguments Against 1981 Amendment To AMU Act [Day 7]

Kaul expressed, “ By a legislative fiat or legal fiction you cannot take away a historical legislative fact, you cannot alter history”

The CJI was however quick to remind the senior counsel of the serious repercussions such an argument may have. He cautioned Mr NK Kaul to not assert anything that may impact the unfettered law-making powers of the Parliament and the prospective bearing such a contention would have.

He opined, “Mr Kaul you are also appearing on the side of the Govt. In the eagerness to uphold the striking down of the 81 amendment, let us not do something which substantially cripples down the powers of the Parliament. In the effort to sustain the decision of the Allahabad High Court and to get over the 1981 amendment, we shouldn't be doing something, I mean, 'we' means You... which really in that sense substantially mute the powers of the Parliament in future. We have to be very careful because what we are laying down is the law for the future on the powers of the constitutional body”

Kaul countered this by reminding the bench of the times when the actions of the Parliament in terms of law-making have also been struck down and held to be ultra vires.

The CJI explained that it is within the Central legislature's domain to take a certain view while dealing with terms like 'established' within the Act.

“Let's not go into a wider context and dilute the powers of the Parliament by laying such a broad proposition that it is not open for the Parliament while legislating to take a view of the historical facts to the contrary....”

Last week, the Supreme Court had expressed surprise at the stand of the Union Government that it was not supporting the 1981 amendment and wondered whether it was open for the government to say that it was opposed to a law made by the Parliament.

At a later part of the discussion, the CJI noted that Entry 63 of List I of the Constitution which terms Banaras Hindu University(BHU) and Aligarh Muslim University (AMU) as institutions of National Importance, crystalizes the constitutional understanding of these institutions. The CJI propounded whether the amendment of 1981 altered the said constitutional understanding upon the basis on which Entry 63 was premised at the time of enforcing the constitution.

“ So it( Entry 63) freezes that constitutional understanding as at the date of commencement of the constitution. If the constitution adopts a particular understanding of these 2 institutions which says institutions known at the commencement of the constitution as AMU and BHU, can a subsequent legislature alter that understanding which is a foundation of 63 ...now Entry 63 tells us that these two institutions of National Importance are those which were known at the commencement of the constitution. Then can you by a legislative fiat alter that constitutional understanding which forms the basis of 63?.”

On The Effect Of Giving Minority Status To An Institution Of National Importance - Sr Adv Guru Krishna Kumar Explains

Presenting arguments for one of the respondents, Sr Advocate Mr Guru Krishna Kumar submitted how AMU was always open to diverse communities and did not restrict its faculty-student intake to only the Muslim sect. Reliance was on S.8 of the AMU Act which reads -

8. University open to all persons.—The University shall be open to all persons (including the teachers and taught) of either sex and of whatever race, religion, creed, caste or class:

Provided that nothing in this section shall be deemed to prevent religious instruction being given in the manner prescribed by the Ordinances to those who have consented to receive it.

To which the CJI also observed that AMU was required to be modelled on the same pattern as BHU, he read out, “ Hindu leaders were given an undertaking that AMU would be on lines of BHU”.

Justice Khanna, taking note of the submission on AMU being of National Importance reposed an earlier question raised by the CJI, of whether branding the institution of national importance does way with a minority character.

Kumar explained that the branding of the institution as of 'National Importance' bestows upon the institution, a character above all the regular institutions. Being a cut above the others also comes with its perks, one of the main perks being the substantial government funding that AMU gets to maintain its status as a centre of academic excellence. Kumar contended that the declaration of AMU being of a minority status would then mean the deprivation of the substantial funding that AMU gets from the Centre.

The Legal Dangers In Accepting The Independent Status Of AMU - Sr Advocate Vinay Navare Highlights

Appearing as one of the intervenors, Sr Advocate Navare brought to light to possible legal dangers in granting minority status to AMU. According to him if minority status is granted to AMU, then the exclusive jurisdiction of the Parliament to make laws on AMU as an institution of 'National Importance' will be dissolved.

He submitted that “ Dangers not in a political or social sense but purely the legal sense. Entry 63 takes care of AMU as an institution of National Importance. If AMU is recognised to be a minority institution, the Parliament will be robbed of the powers conferred under entry 63….BHU and AMU are both in power in entry 63, the moment you recognise it minority, the even-handedness with respect to the powers of parliament in handling the two institutions will be rewritten as a result of that. ”

As per Navare, AMU being substantially funded shall be considered as a 'State' under Article 12 of the Consitution. Article 12 defines 'State' to include all local or other authorities within the territory of India or under the control of the Indian Government. He furthered that if AMU is a State, then it could not be entitled to do what other minority institutions do.

“If it is a state under article 12, it cannot do something which a minority institution is entitled to do. Virtually my lord though it is a state and bound by articles 15 and, 16 it will not be liable to do that, it's the consequence that arises in allowing it to do that.”

Thus Navare implied that being 'State', AMU presently is bound by the restrictions under Articles 15 and 16 of the Constitution. However, once the status of minority is granted to the University, it may no longer be held accountable under the guarantees provided for non-discrimination and equality of opportunities in matters of public employment.

Background

The bench led by CJI DY Chandrachud comprising Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and SC Sharma is hearing a reference arising out of the 2006 verdict of the Allahabad High Court which held that AMU was not a minority institution. In 2019, a 3-judge bench of the Supreme Court referred the issue to a 7-judge bench. One of the issues which arise in the case is whether a University, established and governed by a statute (AMU Act 1920), can claim minority status. The correctness of the 1967 judgment of the Supreme Court in S. Azeez Basha vs. Union Of India (5-judge bench) which rejected the minority status of AMU and the 1981 amendment to the AMU Act, which accorded minority status to the University, also arose in the reference.

Reports of previous hearings :