AMU Minority Status | Day 7: Aligarh Muslim University was constitutionally recognised as a non-communal institution, respondents argue

Respondents: Parliament cannot disregard historical facts acknowledged by judgements 

Senior Advocate Neeraj Kishan Kaul argued that the 1981 amendment to the Aligarh Muslim University Act, 1920 attempted to rewrite history by disregarding historical facts acknowledged in Azeez Basha v Union of India (1967). Kaul was referring to the fact that the AMU was established by the British government, and not by the Muslim community—as recognised in Azeez Basha. The 1920 Act originally stated that the AMU Act was to “establish a teaching and residential Muslim University at Aligarh.” The 1981 amendment deleted the word “establish.” It also amended the definition of “University” to include an educational institution “established by the Muslims of India.” 

Kaul argued that the parliament cannot “deny a fact by subsequent legislation” by creating “legal fiction.” He further pointed out that the 1981 amendment only attempted to change who “established” the university but made no change in the provision related to the administration of the university. 

Chief Justice D.Y. Chandrachud pointed out that Kaul’s argument can have the effect of diluting the Parliament’s powers, adding that the Parliament is allowed to take a different view “as opposed to the factual and legal view.” Justice Sanjiv Khanna added that the legislature is allowed to make laws with a retrospective effect if they feel a mistake has to be corrected.

Kaul and Senior Advocate Guru Krishnakumar relied on Indra Sawhney (II) v Union of India (1999), which held that a  fact established by a legislation cannot override fact recognised by the Court. Krishnakumar highlighted that the moment there is factual finding in a judgement the legislature cannot overcome that fact using subsequent legislation. Senior Advocate Vinay Navare argued that the AMU Act, 1920 had dissolved the old institutions and established new entities which cannot be altered by the 1981 Amendment. Senior Advocate Archana Pathak Dave added that the 1981 amendment “brazenly” tried to overrule the facts and the ratio laid down in Azeez Basha.  

Respondents: Granting Minority rights would violate Constitutional provisions 

Kaul argued that AMU was included as an institution of national importance under Entry 63 of List 1 i.e. the Union list in the Constitution of India. Entry 63 also includes Benaras Hindu University (BHU). This would give the Union government the sole right over the university. He stated that any alteration to the status of AMU would only be through a constitutional amendment—unlike the procedure adopted by the Parliament in 1981. Justice Khanna pointed out that amendments were made to the AMU Act in 1951 and 1965 as well. Kaul responded that those amendments did not change the character of the university. The 1951 and 1965 amendments reduced the role of the Muslim community in AMU. According to Kaul, the 1981 amendment attempted to change the entire character of the institution as “established” by minorities. 

Krishnakumar relied on a speech made by H.V. Kamath in the Constituent Assembly where he stated that the Union should legislate on these universities “to show their impartial non-communal nature.” He also pointed out that Naziruddin Ahmed, member of the Muslim League in the Constituent Assembly, had stated that the universities were “rightly placed under the jurisdiction of the Union.” According to Krishnakumar, even Dr. B.R. Ambedkar found it important that AMU and BHU should “go beyond a communal character.”

Navare added that granting the minority status to AMU would undermine the authority of the Parliament and “rob” its powers vested under Entry 63. He contended that AMU and BHU are on par under Entry 63. Granting AMU a minority status would be rewriting Entry 63, he said.   

Respondents: Minority rights were never demanded in the past

Kaul argued that Azeez Basha was decided over 57 years ago and no demand for a minority status was made during that time. Krishnakumar added that the legislature reinforced the minority nature of the university in 1951 and 1965 by reducing the involvement of the Muslim community. Additionally, Krishnakumar contended that apart from the “skirmish” in 1981, there was no claim for a minority status.  

Discussing minority rights, Krishnakumar stated that the “new sovereign” gets to decide how to “deal with a particular right.” He pointed out that the demand for 50 percent reservation for Muslims in AMU is at the expense of reservation rights for the Scheduled Caste, Scheduled Tribes, and Socially and Economically Backward Classes. Kaul also stated that the 50 percent demand is not well founded in law because such reservation was never made available in the history of AMU. “Which reservation is being taken away? Which right of the minority is being taken away?” Kaul asked.  

Amidst his arguments, the Chief asked Kaul the reason for containing the founding members of the university in the schedule of the AMU Act. Kaul replied that the Act should not be read so “exclusively” and “selectively’, and this would be using a “pick and choose” approach to conclude that AMU was a minority institution. 

Dhavan: AMU was a result of a “movement,” not a “surrender”

Dhavan began his arguments by setting the context—not to the case, but to his approach in the case. “I apologise, there have been two views about me…one is that I come out all guns blazing, the other I found, my lord….was—Dr. Rajeev Dhavan was the other senior counsel who made his own detailed submission with a mileage of legal acumen coupled with passion, thereby exacerbating the attack. I think this is good, my lord” he said.

Minority groups, he argued, were recognised before the Constitution came into force, unlike arguments by respondents that the concept of minority came only after 26 January 1950. He stated that the Indian Councils Act, 1909; Government of India Act, 1919; Government of India Act, 1935—all enacted before the Constitution—granted reservation to Muslims, Sikhs, and Christians in the legislature. 

Dhavan then referred to Articles 15(5) and 15(6) which exempts minority institutions from granting reservation to the SC/ST/SEBC communities. Further, he pointed out that parliamentary legislations such as the National Commission for Minorities Act, 2004 recognise minority rights. Additionally, parliamentary legislation also excluded minority institutions from the requirement of providing reservations for other disadvantaged groups. 

He contended that minority education is the “root of minority protection” which is consistent with the doctrine of equality. Summed up, Dhavan’s arguments were that minority rights, with the exclusion of the SC/ST/SEBC community, are both recognised by the Parliament and the Constitution. 

Dhavan then argued that the respondents were playing with words to portray that the Mohammedan Anglo-Oriental College “surrendered” its minority status to the British government. Minority rights were in continuation with the establishment of AMU, he said. Several provisions which showed that all assets, liabilities, funds, objects of MAO College, with promotion of Islamic learning, and the special provisions for Muslim students were included under the AMU Act. Dhavan also provided relevant excerpts from Azeez Basha where these facts were acknowledged. According to him, the formation of AMU was a “movement”, and not a “surrender.”

Respondents had proposed that the character of “national importance” would automatically result in the loss of a minority status under Article 30. Dhavan argued that Entry 63 only deals with the “competence” of the Union to make laws on AMU and BHU. Simply put, it has little to do with who has established and administered the university. He contended that Article 30 “cannot be read out of existence” due to incompetence. 

The Bench will hear final arguments on 1 February 2024.