AMU Minority Status | Day 8: Seven-judge bench reserves judgement

Dhavan: AMU always had a minority administration 

Dhavan divided the evolution of the AMU Act into four phases: 

1. The AMU Act between 1920-1951 
2. The second phase between the amendment in 1951 before the 1965 Amendment
3. The “controversial” phase due to a “glitch” after the 1965 Amendment
4. The restorative phase after the 1981 Amendment. 

Dhavan argued that the administration of AMU was in the hands of the Muslims during the first phase, evident from the original text of the AMU Act, 1920. He read aloud several provisions which showed the authority of “the Court”—supreme governing body of AMU—over its daily administration. This included the power to make statutes, ordinances, pass resolutions, and elect persons to work in the administration. He argued that the Lord Rector, who according to the respondents had supreme authority over AMU, just had a supervisory role. Senior Advocate Kapil Sibal argued that such supervisory control was also over the Mohammedan Anglo-Oriental College (MAO) before it was converted to AMU. 

Moving to the 1951 amendment, the second phase, Dhavan argued that the legislation was enacted to make the AMU Act 1920 consistent with the Constitution of India. The 1951 amendment removed compulsory religious education to conform with Articles 28 and 29 which makes religious education non-mandatory in aided institutions. Azeez Basha v Union of India (1967) which declared the non-minority character of AMU had correctly acknowledged the intent of the 1951 amendment, he said. The 1951 amendment also renamed the “Lord rector” as a “visitor.”

The third phase, the 1965 amendment, chipped away the minority status by removing “the Court’s” role as the supreme governing body of AMU. Dhavan stated that “the Court” was given an advisory role to the “visitor”, who is the President of India. 

Justice Sanjiv Khanna asked if the  minority administration of AMU was diluted with the 1965 amendment. Dhavan answered in the affirmative, stating that the provision bestowing the advisory role was “invasive” and should be struck down if minority status was being restored to AMU. CJI D.Y. Chandrachud pointed out that the amendment would not be “obliterated” and would still “hold the field” even if Azeez Basha is struck down. “This is the problem in our path” the Chief stated. The “problem” would also be striking down the 1965 amendment. 

Dhavan then stated that the amendments made in 1972 and 1981 were an attempt to return AMU to the minorities. The 1981 amendment which changed the definition of “University” to state that AMU was “established by the Muslims of India.” Additionally, the 1981 amendment added that AMU was formed to “promote the educational and cultural advancement of Muslims” in India. Dhavan claimed that the role of “the Court” was restored as the supreme governing body of the institution. Hence, except between 1965 to 1981, AMU was always a minority institution. 

CJI Chandrachud pointed out that the mandatory representation of the Muslims in the institution was 37 out of 180 after the 1981 amendment. Sibal interjected. Numericals have nothing to do with the character of a minority institution, he said. Unconvinced, the Chief responded that the 1981 amendment did a “half hearted job” as it did not restore the position AMU had prior to 1951. Before 1951, “the Court” consisted of only Muslims. Dhavan answered that the 1981 amendment had to be consistent with the democratic set up which included the inclusion of non-muslims in the university. Agreeing with Sibal, he stated that the Court should rely on the original purpose of setting up the university and not the numbers. 

Dhavan concluded his arguments in the case stating, “I yield to Mr. Sibal, my Guru.” Sibal followed Dhavan’s arguments on the “right to administer” a minority institution under Article 30. 

Sibal: Minority institutions have the “choice” to administer how they please

Sibal argued that the right to establish an institution under Article 30 also confers the right to administer an institution. This right to administer, he stated, can include any mode of administration one may deem fit and cannot be limited to a minority group or person. Looking at the numerical representation in the administration is the “wrong test” which would only provide “wrong answers,” he said. Sibal was arguing that the person who established a minority institution has the “choice” to include non-minorities in its administration while retaining its minority status at the same time. He provided the example of St.Stephens College, Delhi where the Christian representation was “not even 5 per cent” but was still considered a minority institution. 

More compellingly, Sibal pointed out that the Supreme Court itself had never relied on a numerical test for determining the minority status in administration. The correct test to identify the “right to administer” was laid down in T.M.A Pai Foundation v State of Karnataka (2002): 

1. Right to admit students 
2. To set up a fee structure 
3. Constitute a governing body 
4. Appoint a teaching staff 
5. Take action against “dereliction of duty” on part of any employee 

A person who established the university, he said, has to satisfy this 5 step-test, which the founders of AMU had achieved. He argued that a minority institution can accede to some restrictions in order to maintain a particular standard of education. With that, the institution also retains the right to challenge any invasive restrictions imposed on it. 

Sibal: Minority institutions can be an institute of “national importance” 

Countering Solicitor General Tushar Mehta’s argument from day four, Sibal stated that there was never any surrendering of minority rights to the British government. The truth, he said, was that MAO college wanted a status of an independent university which the British government later granted. Moreover, the imperial government “never interfered” with the administration of the university after it was incorporated. He added that MAO college had a similar supervisory control of the British government even when it was not a university. He emphasised that MAO was acknowledged as a minority institution under Azeez Basha. 

The respondents, he said, were making a “communal argument” by claiming that AMU was a “loyalist” of the British government. He added that Sir Syed Ahmad Khan—founder of AMU—was only loyal to the Muslim community and their upliftment. 

Sibal then shot down arguments that AMU was an institute of national importance under Entry 63 of the Union list. He asked if respondents were implying that AMU is “too good to be a minority institution” and whether an institution of national importance would automatically lose its position under Article 30. 

While concluding his argument, Sibal declared that it would be a “sad day” for the country if the minority status of AMU is taken away. 

Farasat: Parliament has a right to be heard

Farasat argued that the validity of the 1981 amendment should not be considered in this case. Parliament in 1981 had made the amendment with an intention to restore the minority status to AMU and is now contested by the present Union government. According to Farasat, the petitioners too were only using and defending the 1981 amendment because it is in their favour. Farasat argued that a Union’s arguments cannot be considered without also hearing the Parliament on their reasoning for bringing in this law. Hence, he suggested that the Court must avoid dealing with the amendment altogether. 

The Bench briefly heard submissions from Khurshid and Shamshad before reserving the judgement.