Supreme Court questions the Centre for not backing the Parliament granting minority status to AMU in 1981

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India Tomorrow

NEW DELHI—A Supreme Court bench headed by Chief Justice DY Chandrachud has questioned the central government’s stand for not backing the Parliament’s amendment to the AMU Act in 1981 which has given minority status to the institution.

The question was raised by the bench during hearing of a bunch of petitions on the issue.

During the hearing, Solicitor General Tushar Mehta refused to back an Amendment passed by Parliament to overturn 1967 Aziz Basha judgment which had held that AMU is not a minority institution.

Stating that the Parliament is supreme and no government law officer can refuse to endorse a law validly passed by it, the CJI told SG representing the central government, “Parliament is indestructible and it is a Union. It is irrespective of who espouses the Union government. As the SG you cannot say that you do not stand by the Amendment. Parliament is supreme and eternal, indivisible entity under the democracy. How can you say you do not accept validity of the Amendment.”

The CJI’s observation assumes significance as the BJP-led central government in 2016 withdrew its previous appeal in the court supporting the minority status of the AMU.

The SG has argued that since AMU was established by a law passed by the British government in 1920, it had surrendered its minority rights and hence, could no longer claim the protection of Article 30.

However, the bench disagreed with this contention. The bench said that it cannot be said that an institution that came into existence before the adoption of the present Constitution cannot have rights under Art 30. “Of course, it can have that, provided it satisfies two yardsticks: that it was founded by a minority and that the minority administers it. Is the statutory route destructive of them having a minority status post the Constitution?”, the CJI questioned.

The CJI stated that the regulatory framework under British rule must be brought in conformity with the rights-based regime under the Constitution.

The bench also questioned the findings of the much discussed 1967 Aziz Basha judgment that held AMU cannot claim minority status.

One of the Solicitor General’s key arguments was about the interpretation of the controversial 1967 Aziz Basha judgment. According to the Union government, the petitioners have misunderstood this previous judgment.

Justice Sanjeev Khanna said there were contradictions in the Basha judgment regarding whether the ‘university’s Court’ under the AMU Act could be considered the supreme governing body. Justice Khanna said that at one place, the Aziz Basha holds that the AMU court is the supreme governing body while at another place it says that the AMU court is not the supreme governing body of the institution.

Justice Surya Kant also cast doubts over the Azi Basha case findings by questioning if the AMU’s Court was truly supreme when most of the administrative powers were conferred on the Executive Council as per the Act.

In 1968, the Supreme Court in Aziz Basha vs Union of India had declared AMU a Central University. The judgment had also stated minority status under Article 29-30 cannot be given to a Central University.

But the Parliament granted AMU minority status in 1981 via an amendment to the 1920 Act. However, in 2006, the Allahabad High Court revoked this status, denying AMU minority rights under Article 30.

AMU appealed this before the Supreme Court. The then UPA government submitted an appeal in the apex court, supporting the minority character of the AMU. But the BJP government at the Centre inn 2016 withdrew the appeal supporting AMU’s minority status.

When the hearing resumes on 30 January, the bench is likely to examine the 1981 Amendment’s validity that had granted minority status to AMU.

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