Read Time: 12 minutes

Synopsis

The Central government has submitted before the Supreme Court that its 2016 decision to withdraw the special leave petition against the Allahabad High Court's 2006 order on minority status of Aligarh Muslim University, was based upon the factual and constitutional considerations alone.

Claiming that the AMU unfortunately tried to give it a political hue, the government also claimed the previous decision by the UPA government to challenge the HC's order of 2006 was against public interest and contrary to the policy to reservation for the marginalised sections of the society, besides being in the teeth of a five-judge bench decision in the Azeez Basha’s case in 1967.

"Aligarh Muslim University, unlike its name suggests, is not, in fact, a university dominantly functioning as a Muslim university as it is not established and administered by the minority," it asserted.

In his written submission, Solicitor General Tushar Mehta said that the Constitution did not treat Aligarh Muslim University either as minority institution or otherwise.

“The stand taken by the government to withdraw the challenge to the judgment of the high court is based upon constitutional considerations alone and the change of governments is inconsequential,” he stated.

He contended that the stand taken earlier by the government to file a special leave petition was contrary to the original stand of the central government taken in the Azeez Basha case by a five-judge Constitution bench. 

“It was also contrary to the binding judgment of this court in the Azeez Basha case. The stand taken to file SLP was also against the public policy of reservation meant for SCs/STs/OBCs/EWSs as applicable to central universities, therefore, against public interest. It is, therefore, submitted that the prayer for withdrawal of appeal has been made after due consideration of the legal position,” Mehta’s submissions said.

The Constitution bench had in the case S Azeez Basha vs Union of India in 1967, held that AMU was not entitled to minority education status as it “was neither established nor administered by the Muslim minority”.

Alleging that AMU was trying to give it a political colour, Mehta said, “It is unfortunate that a factual issue which has already been authoritatively decided by a constitution bench of this court is being politicised and controverted on misconceived grounds."

He also said Aligarh Muslim University has always been an institution of national importance even in the pre-independence era. 

“A survey of the documents surrounding the establishment of the Aligarh Muslim University and even the then existing legislative position enunciates that the AMU was always an institution having a national character," he said.

Mehta maintained the AMU cannot be considered as a minority institution.

“Owing to the obviously secular ethos and nature of the nation and the Constitution, considering the fact that AMU is an institution of educational ‘national character’, it cannot be considered to be a minority institution irrespective of the question whether it was established and administered by the minority at the time of inception or not,” it said.

It also vehemently opposed AMU’s contention that the judgement in Azeez Pasha needs to be reconsidered.

The AMU “has so far not challenged any of the amendments namely the first amendment in the year 1951, the second amendment in the year 1965, the third amendment in the year 1972 and the fourth amendment in the year 1981 in the Aligarh Muslim University Act, 1920,” it said. 

“The University can, thus, not re-agitate the factual and fact based legal controversies already decided by a five-Judge bench which is clear from the present reference,” it further contended.

The government said the case of Aligarh Muslim University and Banaras Hindu University is sui generis case since the framers of the Constitution chose to place these two Universities in List I as a part of Entry 63, though the subject of education is otherwise in the State List (at the time of Independence).

"Any attempt of Aligarh Muslim University, which has never challenged any of the provisions of the Aligarh Muslim University Act, 1920 needs to be prevented from converting this reference into an appeal against the judgment in case of Aziz Basha," it said.

If AMU is declared a minority institution, the government said it would result in the university having a separate admission procedure despite being an institution of national importance with other institutes of national importance.

"The resultant effect of the said exemption would be drastic as AMU is an extremely old and large institute with vast properties and an enormous amount of students studying in various courses. It is submitted that a large national institute like Aligarh Muslim University ought to maintain its secular origins and serve the larger interest of the nation first," it said.

A seven-judge Constitution Bench of the Supreme Court of India led by Chief Justice of India D Y Chandrachud began hearing on January 9 the plea by AMU to decide on the question whether an educational institution created by a parliamentary statute enjoy minority status under Article 30 of the Constitution.

The bench also consists of Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma.

In 2005, AMU had reserved 50% seats in postgraduate medical courses for Muslim candidates by claiming it to be a minority institution. This came to be set aside by the Allahabad High Court. A year later, in 2006, the then UPA Union government and AMU challenged the High Court's decision before the Supreme Court. 

Later, in 2016, the National Democratic Alliance government, withdrew from the appeal contending that it does not acknowledge the minority status of the University.

 

Cause Title: Aligarh Muslim University Through its Registrar Faizan Mustafa vs. Naresh Agarwal and Ors.