Mere Fact Of AMU Being Established By British Law Doesn't Indicate Surrender Of Minority Status, Says Supreme Court [ Day 5]

The Chief Justice of India, presiding over the 7 Judges Bench verbally observed that the regulatory frameworks during the British Era had one sole objective, that “nothing should be done to destroy the imperial hegemony of the colonial power”. He further stressed that it is in this context that the establishment of a Pre-Constitution Institution like AMU has to be seen.

“The law is not that you can claim the right under article 30 only if you establish after the Constitution,” CJI Said.

The bench comprising CJI DY Chandrachud, 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 arise in the reference.

The key aspects deliberated by the Court included the notion of 'surrendering rights' by the AMU to the British; understanding the ambit of powers of the 'Supreme Governing Body' of the University and the Bench's take on dealing with the correctness of Basha with Amendment Act of 1981 in the hindsight.

Need To Interpret 'Surrendering Of Rights' In The Strictest Sense Possible - Opines The CJI

The key contention of the Union during the hearings was that since AMU was established under the Imperial Act in 1920, it surrendered its rights as a minority to the British Crown and therefore could not anymore claim to be of a minority character.

However, did not seem to be agreeing with this proposition, the bench said that this fact alone will not indicate surrender of minority status if the University is otherwise fulfilling the criteria for minority status as per Article 30 of the Constitution. 

Dwelling further into this premise, the bench observed that in a post-constitution scenario, the law before and after the judgement in Basha is that on seeking financial aid/ recognition you don't surrender your minority status.

The CJI remarked, “Therefore the mere fact that you had to take the law-making route could not by itself be a circumstance of you indicating to surrender the minority status.”

"Therefore the circumstance that the route which you followed through law making in now post 1956 is irrelevant to your minority status," CJI added.

SG said that there were many Pre-Constitution universities, which chose to remain independent and did not seek recognition from the British. "In those days, it was the spirit that people preferred graduates of such universities which were not recognised by the British. IIT Roorkee was a nonlaw-made university."

On the issue of recognition and the availability of choice to the pre-constitution institutions to surrender or not surrender their rights to the British regime, the Chief Justice noted that it was imperative at the time for graduates to get a degree to be employed.

He expressed, “Even if you had a choice, there is one very critical thing, why do people seek recognition? People seek recognition so that your students have employability, credibility etc. There were some institutions which had credible degrees even though they were not recognised by the govt. But is that the price which you may necessary ask the minority to pay? ….that the point really, that's the heart of the matter. Post constitution, must we not bring in all rights realisation in a manner consistent with the constitution”

According to the CJI, the historic developments like the making of the AMU which happened in the pre-constitutional era needed to be brought into conformity with the Post-Constitution Rights Regime.

To which the SG replied, “There are judgements on the preconstitutional era on how you surrender your rights and what are the effects in the post-constitutional regime.”

The CJI countered this by emphasizing that surrendering of rights must be read in a very strict context. He said, “ Surrender of rights even in a preconstitutional era should be accepted with the strictest possible construction because you are really stating that in that sense someone otherwise entitled to that right will be surrendering their right”. In the Post-constitution scenario, one doesn't get an option of waiver of their fundamental rights, he added.

“We are now dealing with a post-constitutional assertion of rights of a minority who found its post-constitutional assertion on the basis of institutions founded in pre-constitution.  

Disagreeing with the same, the SG contended that such reasoning would be akin to paying a negative tribute to all those who chose, despite having an option, not to get into the law-making by the British parliament. He supplemented this by giving the example of IIT Roorkee and how despite being non recognised university in the pre-constitution era, it still garnered immense credibility.

Differentiating the two institutions in question, i.e. IIT Roorkee and AMU, the CJI remarked that the purpose of AMU is crucial in interpreting the 'surrendering of rights'. He said that AMU was envisioned to provide secular education to the community which was the lowest at that time.

CJI also wondered if the Court should be taking a positivist approach - which goes by the strict statute - or a more substantive approach. The legal positivist approach will yield a direct result, as it only entails an examination of who established and administers the institution. 

On 'Supreme Governing Body' as Discussed in Azeez Basha - Justice Khanna highlights key contradictions

One of the main submissions of the SG today focused on the reading of the much debated judgement, Azeez Basha, which according to the Union has been wrongly understood by the Petitioners.

However, Justice Khanna in his observations on Basha pointed out that :

“ This is what was highlighted by them, because once you hold that the court was a supreme governing body then and the pre-1951 position was that they were all Muslims that is the contradiction pointed out in the judgment. Because here they clearly say that the court will be the supreme governing body of the institution. You said there's a distinction between policy and administration ... what you highlighted was that policy is equivalent to administration which will be slightly debatable. Here the contradiction which is pointed out is the judgement refers to several provisions and holds that the court (of AMU Act) is not the supreme administrative body and then in paragraph over here, they themselves contradicted in saying that the court is still maintained as the supreme governing body of the institution ... I am just highlighting.”

Referring to the various provisions as set out in the scheme of the AMU Act (as amended in 1951), the SG explained that it would misnomer to consider the Court under S.23 of the AMU Act as the 'supreme governing body'. The 'Supreme Governing Body' would exercise powers except for those provided under the statute. The statute confers absolute power on the executive council about admissions.

S. 23 of the AMU Act provides :

(1) The Court shall consist of the Chancellor, the Pro-Chancellor, the ViceChancellor and the Pro-Vice-Chancellor (if any), for the, time being, and such other persons as may be specified in the Statutes.

(2) The Court shall be the supreme governing body of the University and shall exercise all the powers of the University, not otherwise provided for by this Act, the Statutes, the Ordinances and the Regulations and it shall have power to review the acts of the Executive and the Academic Councils (save where such Councils have acted in accordance with powers conferred on them under this Act, the Statutes or the Ordinances)

In light of the same Justice Surya Kant further clarified if that meant that the court was supreme only concerning those powers which are not expressly or by implication conferred. The SG replied “yes, therefore residuary, that's my respectful submission.”

The Way Forward- Court Brainstorms On The Effect Of Overruling Azeez Basha

In the middle of the submission pertaining to the interpretation of the decision in Azeez Basha v. UOI, the Court diverted the discussion on what would be the course of events after the present bench decided on the correctness of the judgement.

Consequently, a question sprung from the CJI with respect to the changes in the definition of 'university' brought in by the Parliament through its 1981 Amendment Act. As per the 2006 Allahabad High Court's decision, the 1981 Amendment Act which conferred minority status to AMU was held unconstitutional.

“ Can by merely an amendment to the definition can you take away the basis of Basha.... Section 2(l) merely alters the definition of the expression University but does the alteration of the definition take away the basis of Basha.”

Sibal suggested that if the Court is to hold Azeez Bahsa to be wrong, then the question of the validity of the 1981 amendment does not arise at all, as the AMU will then have minority status regardless of the amendment. If the Court is agree with Azeez Basha, then the question of the 1981 amendment be relegated to the regular bench, Sibal suggested, as it was not an issue of reference. However, the SG opposed, saying that there cannot be another round of litigation and urged that all the issues be decided by the present bench itself.

The discussion was however concluded with Justice Khanna simplifying-

“ In case we go into the 81 Amendment then this issue will arise whether the amendment made by parliament, subsequently you can withdraw. There are two options - either we accept the ratio of Basha. If we do then there are three conclusions- 1. de jure established by statute and not by a minority; 2. established not by a minority; 3. Not administered by minority communities. As far as the 1981 Act is concerned, it is only de jure establishment by the statute. It doesn't deal with the other conclusions. If I am not mistaken when we read Basha it deals with all three conclusions …the effect of 81 Amendment that may have to be sent back to the HC for a fresh consideration”.

Also from the hearing - How Can A Law Officer Say He Won't Support An Amendment Passed By Parliament? Supreme Court Asks Solicitor General In AMU Case

Case Details : ALIGARH MUSLIM UNIVERSITY THROUGH ITS REGISTRAR FAIZAN MUSTAFA vs. NARESH AGARWAL C.A. No. 002286 / 2006 and connected matters

Reports of previous hearings :

Aligarh Muslim University Case | Historic Antecedents Of Institute Must Be Seen To Assess Minority Status, AMU Tells Supreme Court [Day 1]

What Extent Of Minority Presence Required In Administration To Claim Protection Of Article 30? Supreme Court Discusses In AMU Case [Day 2]

Article 30 Not Intended To Ghettoise Minorities, Minority Institution Can Include Others In Administration: Supreme Court In AMU Case Hearing [Day 3]

AMU Continued As Institution Of National Importance, Why Minority Status Important? Supreme Court Asks [Day 3]

AMU Minority Status Case | Article 30 Not A Mere Enabling Provision, It's An Obligation On State, Says Supreme Court [Hearing Day 4]

AMU Surrendered Rights To British, Argues Centre; Political Inclination Of Founders Immaterial For Minority Status, Says Supreme Court [Day 4]