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

The fifth day of the hearing in the Aligarh Muslim University(AMU) case witnessed certain dramatic moments when the Solicitor General of India submitted that he was not supporting the amendment passed by the Parliament in 1981 which had the effect of conferring minority status to the AMU.

A seven-judge bench led by the Chief Justice of India expressed surprise at this submission of the SG and asked how can the law officer of the Union Government oppose an amendment passed by the Parliament.

"The Parliament is an indestructible, indivisible and continuous entity. We can't hear the Govt of India say that they don't stand by the amendment." CJI DY Chandrachud told the SG.

SG Tushar Mehta however reiterated his stand. Pointing out that the Allahabad High Court had struck down the 1981 amendment on various grounds, the SG said that as a law officer, he was entitled to submit that the High Court's view appeared to be correct, especially while answering a Constitutional issue before a 7-judge bench.

This surprised the bench even further. "This is radical, a law officer saying that he won't abide by what the Parliament has held! Can we hear any organ of the Union say that they won't support the amendment notwithstanding that it has been passed by the Parliament? The Parliament is an indestructible, indivisible entity. How can you say I don't accept the validity of the amendment?", CJI remarked.

To buttress his stand, the SG referred to the notorious amendments made to the Constitution during the Emergency period. "Would a law officer be expected to say that whatever amendments made to the Constitution during the Emergency are valid, just because they were made by the Parliament?" SG asked.

"That is why the 44th Amendment came into being, to remedy all the evils," CJI replied. SG

"We decided that these were the evils which were perpetrated", SG asked.

"Obviously, you prove my point. The power to decide is with the elected body of the people. The Parliament can always say that what we did in the emergency is wrong and can always rectify that",  CJI said. 

At this point, Senior Advocate Kapil Sibal interjected to point out that the then Attorney General for India Niren De had defended the emergency. SG responded by saying that Niren De was not in a situation where there was a High Court judgment. Here, there was a view taken by a High Court, which the Union is entitled to support. The SG underscored that it was not his personal view as a law officer but the view expressed by the Union Government in an affidavit.

The 1981 amendment was passed to dilute the effect of the 1967 judgment of the Supreme Court in Azeez Basha case which declared that AMU was not a minority institution. In 1981, the Parliament amended the Aligarh Muslim University Act 1920 to effectively confer the University a minority status.  However, in 2006, the Allahabad High Court struck down the 1981 amendment and declared that AMU was not entitled to claim the rights of a minority institution under Article 30 of the Constitution. The appeal against the High Court judgment was referred to a 7-judge bench by the Supreme Court in 2019.

Live updates from today's hearing can be read here.