Aligarh Muslim University Case : Can Institution Of National Importance Have Minority Character? Supreme Court Discusses [Day 7]

"Now once an institution is declared of National Importance, then calling it a denominational institution would somehow seem to detract from that status of an institution of National Importance. Why do you say that there is no antagonism between an institution being of National Importance and yet having a minority character?”, CJI asked Senior Advocate Dr.Rajeev Dhavan, who represents the AMU.

Dr.Dhavan replied that the entries in the lists in the seventh schedule deal with only the question of the competence of Union and State Governments over various subjects and that these entries cannot limit fundamental rights.

He elaborated that the stature of a Fundamental Right like the one provided under Article 30 cannot be hindered or subdued by the Schedules attached to the Constitution. He expressed that Article 30 could not be read out of existence at the behest of List I which merely decided the issue of law-making competence.

During the rejoinder arguments presented by the Petitioners, the CJI verbally observed that before the 42nd Amendment Act of 1976, Entry 11 of the State List dealt with the subject of education including Universities. Entry 25 of the Concurrent List before the 42nd Amendment dealt with educational and vocational training of labour, however, both entries in the State and Concurrent List were subject to Entry 63 of the Union List which provides AMU and BHU to be institutions of National Importance.

“What Entry 63 of the Union List did was once the subject was in entry 63 union list, it was taken out of the fold of state jurisdiction. The exclusive jurisdiction to legislate was conferred upon parliament.”

However, it was further observed that Entry 11 of the State List was deleted by the 42nd Amendment Act and instead substituted Entry 11 of the Concurrent List which dealt with vocational and technical training of labour.

“Now post the 42nd amendment you will see Entry 25 of List 3 which says education, technical education etc subject to Entry 63, 65, 64, 66”

Thus the bench made it clear that the effect of Entry 63 is to make the two institutions of National Importance - AMU and BHU only under the exclusive jurisdiction of the Parliament.

“In respect to these two institutions - AMU and BHU, the legislative competence is exclusively rested with the Parliament,” CJI said.

Dwelling deeper, CJI noted that since the institutions were declared of National Importance, they must require a degree of uniformity of 'legislative structure' and that is the reason that Parliament has been conferred with exclusive jurisdiction to make laws on it under Article 245.

The Concept of Minority Existed In Pre-Constitution Era - Dr Dhavan Refers To Electoral Acts

Countering the claim of respondents that there could not a be concept of minority before the Independence and all communities whether Hindus or Muslims were subjects under the British Crown, Dr Dhavan referred to a variety of Pre-Independence Electoral Acts such as the Act of 1909 (Minto-Morely Reforms), the 1919 Government of India Act and the Government of India Act 1935. He pointed out that all these Acts contained provisions reserving specific seats in the electoral frameworks for the then recognised minorities which included Muslims and Sikhs.

“Therefore minority status was something that was known before the Constitution, it isn't a question that arises only after the Constitution.”

Dr Dhavan further emphasised that the sociological factors underplaying the communal atmosphere before and after the Independence of India were a manifest recognition of 'Minority Character' in the society.

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 :

AMU Institution Of National Importance, Minority Status Will Exclude SC/ST/OBC Reservations : Centre Tells Supreme Court [Day 6]

AMU Case : To 'Muslims Not Minority In 1920' Argument, Supreme Court Says Present Day Standards Relevant [Day 6]