Article 30's Test Is Not That Minorities Must Administer The Institution Themselves : AMU Case Petitioners To Supreme Court [Day 8]

On the final day of hearings of the 7-judge Constitution Bench on the issue of granting minority status to the Aligarh Muslim University, the bench and petitioners dwelled to see whether the Amendment Act of 1981 restored the position of AMU as it was before 1951 or was amendment done “half-heartedly”.

The 1981 Act amended Section 2(l) of the AMU Act to state that “University” means the educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh, and which was subsequently incorporated as the Aligarh Muslim University.

Chief Justice of India DY Chandrachud, during the hearing, noted that while the 1981 Amendment Act does endeavour to bring back the Muslim voice into the AMU, apart from a few cosmetic changes, the Amendment did not seem to restore the AMU's position as per its original Act in 1920. The changes brought in seemed rather a half-hearted job.

The CJI expressed, “A thing that is worrying us is the 1981 Amendment does not restore the position prior to 1951. In other words, the 81 Amendment does a half-hearted job ...they were placating that sentiment. But when it actually came to the brass stacks, they didn't go back to the positions prior to 1951. And what they did was it brought the Muslim voice into the AMU administration as we see it. But it still stops short, even the Parliament which had the power to do, it still stops short of taking us back to the 1920 Act. They made a few concessions but they never took it back to 1920, it could be reflected upon.”

Dr Rajeev Dhavan, presenting the rejoinder arguments from the University's side, explained that to understand the intention of the Parliament in bringing about the said Amendment, the whole scheme and purpose of the Amendment has to be taken note of. He drew out the similarities between the 1920 Act and the 1981 Amendment to show that the latter wholeheartedly intended to promote educational and cultural advancements of Muslims in particular.

“We have to look at the purposes of the University. And these are writ large, I'll read out of the amended Act, the purposes your lordships will find in the original act - to promote oriental and Islamic studies and to give instructions in Muslim theology and religion and to impart moral and physical training. Now what was added in 72 was to promote the study of religion, civilization and culture in India and see which is important which comes in 81- to promote especially the educational, and cultural advancements of Muslims in India.”

Dr Dhavan further emphasized the importance of understanding the purpose of the legislation while construing the law. He added, “It is the purposes of the statute which will also run alongside. We cannot read the Act minus the purposes of the Statute. This is the fundamental distinction we wish to make, that you go by the purpose, you go by the empowerment and to that extent the statute is crystal clear.”

Twin Test Of 'Establish & Administer' Misconceived By The Respondents - Urges Sr Adv Kapil Sibal

In a major part of his rebuttal arguments, Senior Adv Kapil Sibal, supporting the minority status for AMU, emphasised that it is not required under Article 30 to prove mandatorily for a minority community that it has both established and directly administered the educational institution. As per Sibal, Article 30 gives one the right to administer the institution. However, such administration has to be seen in a fluid context, where the establishing community may sub-delegate its administering powers to a non-minority.

Sibal gave the example of the functionings of St. Stephen's College, and how despite having a minority status, its internal administration is a composite of people from a variety of communities and not dominated by Christians alone.

He expressed, “I don't think minorities administer any minority institution in this country. If you apply the wrong test, you get the wrong answer. Take St. Stephens, how many teachers are a minority? Not even 5%, administration, 5%.... what's the relevance? This whole numerical argument is irrelevant to Article 30. Take St Stephens in the context of DU statute example, I am not part of the syndicate, I am not part of the executive council, I am not part of the academic council, that means I am not a minority institution? What tests are we applying? Never before in the history of this Court have these tests been applied. That's why there are no judgments cited my lords.”

Referring to the 5 tests laid down in the decision of the Supreme Court in TMA PAI Foundation & Ors v. State of Karnataka , Sibal contended that the 5 indicia of administration in an educational institution, in the constitutional essence would include :

(a) to admit students;

(b) to set up a reasonable fee structure;

(c) to constitute a governing body;

(d) to appoint staff (teaching and non-teaching); and

(e) to take action if there is dereliction of duty on the part of any employees.

The idea that only when the administration is fully populated by the minority community, will the claim under Article 30 satisfy was incorrect in the opinion of Sibal. According to the senior counsel, administration under Article 30 was granted to minority communities as a matter of 'right' and not a strict obligation.

He opined, “ It's not a twin test, that's not the test, whether I am administering. And throughout these days all are arguing to show me if it is administering. It is not required by 30. You will never get that. That way there will be no minority institutions left in this country. So what are we trying to do? Apply a test which will destroy the entire minority structure of education in this country? .... I have a right to administer, not a duty that I must administer everything. No judgment of this court since 1950 has held this.”

Countering the previous argument of the respondents on how AMU was supervised by the Governor General and the founders of the university owed their loyalty to the British Crown, Sibal posed “Does the President of India have to be Christian to get St Stephens a minority status? What kind of an argument is that?”

“Please do not apply a test which may be constitutionally suspect,” he urged.

Political Inclination Of Founders Irrelevant In Deciding The Question Of Minority - Mr Sibal Illustrates

Terming the contention on Sir Syed Khan's political allegiance to the Crown as "wholly irrelevant and divisive”, Sibal explained how such an argument had no bearing on deciding the question of constitutional interpretation of Article 30.

He illustrated how during the freedom movement there were several Indians who were either working for the British Crown or choosing a radically divergent path like Netaji Subhas Chandra Bose but that would not divorce such individuals from their loyalty towards their country.

“ Another argument made was that we were loyal to the British.  So were the soldiers loyal to the British when they fought in the World War, and so were Allahabad University and IAS officers, is that an argument? That's a communal argument. Let us not deviate from the essential constitutional question. Loyalty to the British... or there were several people who were not part of the freedom struggle... that doesn't mean that they were not loyal to India. Their concepts were different, and some people wanted social change. Netaji said I will revolt, I will be part of the Axis, others said I will be part of the Allies. We cannot put a status to an institution based on these kinds of considerations. Wholly irrelevant and divisive.”

The rejoinder arguments were thereafter concluded and the bench reserved its verdict on the matter.

Background

The Constitution Bench headed by CJI DY Chandrachud comprising Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and SC Sharma was 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.

Representing AMU and the AMU Old Boys' Association, were Senior Advocates Dr Rajeev Dhavan and Mr Kapil Sibal along with Mr Salman Khurshid, Mr Shadan Farasat who appeared on behalf of intervenors.

The Union of India was represented by the Attorney General Mr R Venkataramani as well as the Solicitor General Mr Tushar Mehta. Several other senior advocates including Mr Neeraj Kishan Kaul, Mr. Guru Krishna Kumar, Mr Vinay Navare, Mr. Yatinder Singh, Mr. Vikramjit Banerjee (ASG) and Mr KM Nataraj (ASG) also appeared to advance arguments on behalf of respondents and intervenors.

Throughout the 8 days long round of hearing, several key aspects of deliberation were put before the bench and the bar. Ranging from the interpretation of Article 30 of the Indian Constitution, its interplay with Entry 63 of List 1, the legislative history of AMU, and analysis of the various Amendment Acts from 1951 up to 1981 undertaken to the original 1920 AMU Act