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

During the hearing of the case concerning the minority status of the Aligarh Muslim University, the Supreme Court on Thursday (January 12) asked if the 'minority tag' was important for the University, since it has been existing as an institute of national importance for over a hundred years.

“Over the last 100 years, without the minority institution tag, it(AMU) has continued to be an institution of national mportance. How does it matter that if we are not with you on Basha(Azeez Basha judgment)? How does it matter for the people whether it is a minority institution or not ? It's only the brand name AMU”, Justice Dipankar Datta, a member of the 7-judge bench asked.

Advocate Shadan Farasat, appearing for one of the petitioners supporting the minority claim of the AMU, submitted that till the 1967 Azeez Basha judgment, the University enjoyed minority status. Later, through the 1981 amendment to the AMU Act, minority status was given to the institution. Although the Allahabad High Court ordered in 20016 that AMU is not a minority institute, its minority status is continuing as per the status quo orders of the Court, he said.

"Today, because of the status quo orders on the 81 amendments,  it continues to be a minority institution. In fact if your lordships uphold Basha, for the first time clearly now, it will cease to be a minority institution,” he replied.

Justice Satish Chandra Sharma, another member of the bench, sought to know if there is any other minority institution which is 100% funded by the Central Government. Farasat said that he doesn't have clear data on it but expressed the belief that Jamia Milia Islamia is such an institution which is almost 100% centrally funded.

The 7-judge Bench comprising CJI DY Chandrachud and Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and SC Sharma is dealing with a challenge to a 2006 decision of the Allahabad High Court which held that though AMU was established by a minority community, it was never administered or claimed to be administered by the minority community and thus cannot be considered as a minority institution. 

AMU's minority status important for Muslim education

Farasat, representing petitioner Haji Muqeet Ali Qureshi, highlighted how AMU has a major role in developing an educated Muslim class in the country. 

He explained, “Students from Bengal, Karnataka Orissa etc of Muslim families will send their children only to AMU, especially women students. The burden of bearing the cultural markers of identity be it the majority or minority will always come on women.”

He said that AMU helped in furthering the cause of Muslim girl child education and that too at the level of higher studies.

However, Solicitor General (SG) Mr Tushar Mehta interjected this by saying, “They (Muslim Women) are studying everywhere, let's not belittle them”

Farasat countered this by saying that this is a sociological aspect that he puts forth, that it's a fact that “Communities send their children generally and women specifically, because of the minority status, it is a fact”. He layered the argument on women empowerment by mentioning an illustrious list of women AMU Alumni which included distinguished historian Rana Safvi, Novelist Ismat Chugtai, notable NASA scientist Hashima Hasan and Educationist Najma Akhtar. He added that the first inaugural chancellor of AMU was a woman, namely Sultan Jahan Begum of Bhopal, which in itself was of historical importance as she was the first female chancellor of any Indian University.

Muslim Composition in AMU

Farasat emphasized the composition of the Court of AMU and contended that at no point in time for the previous 40 years, has the University had less than 80 per cent Muslims.

It was further submitted that the composition of the Executive Council for the last 40 years is that 80-100 per cent of the Executive Council is contained within the minority group. Composition of a similar nature is also indicated in the Academic Council.

The total student composition in the university is 23,675 out of which the Muslim students are 18,700 which amounts to 77.39 per cent. Out of the total female students 81 per cent consists of Muslim female students while out of the male students, 79% are Muslims.

In his concluding remarks, Farast addressed the written submissions of the Solicitor General. He said that tenor to the SG's written submissions suggested that AMU can't be given minority status since it is an institution of national importance. “The fact that I am a successful minority institution cannot be the basis of making me move out of my minority zone. A minority institution can be an Institue of National Importance, it's not that only majority-established institutions can be of national importance. That is my final submission,” he said.

On the issue of reference

During the first half of the day, the Supreme Court asked what would be the consequence if the Azeez Basha decision is held to be erroneous and how it will impact the Allahabad High Court judgment and the 1981 amendment. The bench led by CJI DY Chandrachud pondered on whether the 1981 Act could have simply declared the minority status of the AMU without taking away the basis of Azeez Basha judgment.

Senior Advocate Kapil Sibal, appearing for the AMU Old Boys' Association, replied that the 1981 Amendment Act only reaffirmed that AMU was a minority institution. If the Court gives a declaration on the minority status of AMU, the 1981 amendment becomes insignificant, he explained.

Establish In Constitutional Sense Is Different From Establish In Statutory Sense - Sr. Adv Kapil Sibal

CJI pointed out that the Azeez Basha decision is based on the premise that AMU was established by a statute and not by the community, 

"What they are saying is that an educational institution includes a University. AMU in the character of a university is established by an Act of the central legislature and because it is established by an act of central legislature notwithstanding all the efforts made by the Muslim community, the establishment is by the act of the legislature and not by Muslim community, that's the logic.,” CJI said.

To counter this, Sibal elaborated that the word establish as enunciated under Article 30(1) of the Constitution is on a different footing from the concept 'Establishment' under an UGC Act. In essence, the former term connoted the genesis of an institution whereas the latter, in the statutory sense, is the recognition of incorporation to grant a degree.

Sibal expanded on this by referring to S.2 (f) of the UGC Act 1956 which provides :

(f) “University” means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act…

He analysed that while the term under the Statute meant incorporation under legislation, the expression 'establish' under Article 30 is only with reference to setting up an institution. It was stressed that “ The word establish used in 30 is in the constitutional sense, the word establish in the statute is used in the statutory sense”

To factually show that AMU was 'established' by the Muslim community, the senior advocate drew the bench's attention to the formal transfer of land and other key resources done by the MAO to AMU which included infrastructure, movable-immovable properties, all the employees and students under the MAO. It was pointed out that the Muslim University Association raised Rs. 30 lacs which was equivalent to today's 300 crore rupees which reflects the community's efforts in founding AMU. Mr Sibal, in submitting the point of transfer and transition of MAO to AMU pressed on the element of continuity of the minority character. 

“So this is how continuity, genesis, and foundation are established and Basha acknowledges all this but it says it doesn't matter because there is an Act. It matters because it is the only institution of its kind to set up with the intent to serve the interest of secular India and to protect the minority institutions to empower them to be in workforce of India, if you reject this you destroy that dream, that dream should not be destroyed”

On the point of restricted interpretation of the term 'establish', Sr. Advocate Salman Khurshid also highlighted in his submissions the importance of 'Political Morality' as laid down by philosopher Ronald Dworkin in the book 'Freedom's Law'. Pitching political morality to be akin to the Indian concept of 'Constitutional Morality', the senior advocate expressed “ An integrated idea of constitutional morality would certainly point to coming to conclusion that minority rights cannot suddenly disappear by way of an artificially restricted interpretation of a word like establish”

AMU Represents The Country's Diverse Cultural Ethos; A Dream Of Sir Syed - Expresses Mr. Khurshid

Sr. Advocate Salman Khurshid began by explaining the intentions of Sir Syed and the backdrop of Aligarh Muslim University. After 1857, Sir Syed visited Oxford University and used its inspiration to create MAO and its architectural aspects. He mentioned how during the founding days when Sir Syed went out to collect funds for the Institution, he was met with harsh resistance from extreme conservatives.

It was further elaborated how in terms of the notion of maximum freedom to educational institutions, the kind of freedom that is needed for a minority institution is to enable it to carry the flavour of the minority, “the cultural ethos of minority institution”.

“If Basha stands then there cannot be a minority university in the country, forget AMU, including the examples given by the learned solicitor (referring to the minority institution mentioned in the Centre's written submissions).The statute is the legal device and the establishing body is the registered society/ sponsoring body , this is what Basha misses", Khurshid said.  

During the submissions, Senior Advocate Salman Khurshid took the liberty to recite a few lines from the famous AMU Tarana composed by its Alumnus, renowned poet Majaz Lucknawi which reflects the cultural flavour of the institution and the place it held in the hearts of the students.

“Ye mera chaman hai mera chaman, main apne chaman ka bulbul hun,

Jo taaq-e-haram mein roshan hai, wo shama yahan bhi jalti hai

Is dasht ke goshe goshe se, ek joo-e-hayat ubalti hai

Ye dasht-e-junoon deewanon ka, ye bazm-e-wafa parwanon ki

Ye shahr-e-tarab roomanon ka, ye khuld-e-bareen armanon ki

Fitrat ne sikhai hai ham ko, uftaad yahan parwaaz yahan

Gaaye hain wafa ke geet yahan, chheda hai junoon ka saaz yahan”

(I am the nightingale of my garden, this is my garden, I belong here;

the light that you find in haram sharif in Medina is lit here in the university;

From every spot of this garden there is a stream of life that flows;

This is a place of people passionate about Aligarh, where we rise to heaven;

This is the citadel of those who have aspirations, of those who have dreams;

nature has taught us here, learn to begin your life here, fly high here;

We have sung the songs of faith here, this is the place where we started the lyrics of faith)

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]