Aligarh Muslim University.
Credit: PTI File Photo
New Delhi: The Supreme Court on Wednesday expressed surprise over the Union government not standing by a 1981 amendment by Parliament into the Aligarh Muslim University Act, restoring minority status to the institution.
Hearing the matter, a seven-judge bench led by Chief Justice of India D Y Chandrachud asked Solicitor General Tushar Mehta whether he accepted the 1981 amendment.
“This is an amendment by the Parliament. Is the government accepting," the bench asked Mehta, who replied, “I am not”.
The court was examining petition by the AMU against 2006 Allahabad High Court's judgment which held the 1981 amendment was unconstitutional.
The minority status was restored by an amendment to the AMU Act in 1981.
Apparently surprised by Mehta’s reply, the bench asked, “How can you not accept an amendment by Parliament? Parliament is an eternal indestructible body under the Indian union. Irrespective of which government represents the cause of the Union of India, Parliament’s cause is eternal, indivisible and indestructible.”
The CJI said, “And I can’t hear the Government of India say that an amendment which Parliament made is something I don’t stand by”.
“You have to stand by this amendment. You have an option. Go through the amending route and change the amending Act again,” the CJI told Mehta.
The Solicitor General, on his part, said, “I am not arguing a matter of A versus B. I am before a seven-judge Constitution bench answering constitutional questions. The amendment in question was subjected to challenge before the high court”.
“There is a judgment declaring that it is unconstitutional for ABCD grounds and as a law officer, it is my right as well as my entitlement and duty to say that this view appears to be correct,” Mehta said.
Mehta said as a law officer it is his right that the high court judgment appears to be correct.
He asked if a law officer would be expected to say that the amendments made in the Constitution during the Emergency were true only because they were made by the Parliament.
The bench said that 44th amendment came only for that purpose and added that it came to remedy the evils, which were perpetrated in the name of constitutional amendments.
Mehta said how it will be decided that these evils were perpetrated.
“Obviously, exactly, you prove my point. The power to decide that is in the elected body of the people, which is the Parliament. Parliament can always say that what we did during the Emergency was wrong and we are rectifying it” the bench said.
Senior advocate Kapil Sibal, for AMU Old Boys Association, one of the petitioners, said he was in the court that day, referring to the Emergency period, and the then Attorney General Niren De in the apex court argued that what is being done is right and defended the Emergency provision because he could not say otherwise.
Mehta, however, said the court had asked Niren De that if somebody is hanged, can we not do anything. “He said yes, we cannot do anything and it was not to defend it (Emergency). It was to instigate the judges, please interfere,” Mehta said.
“When court questioned, do we not protect Article 21, when somebody’s personal liberty is being deprived. He (Niren De) said you cannot do it. It was to instigate the court, not to defend (Emergency)," Mehta maintained.
In 2005, AMU had reserved 50 per cent seats in postgraduate medical courses for Muslim candidates by claiming it to be a minority institution, which was set aside by the Allahabad High Court.
In 2006, the Centre and AMU challenged the high court’s decision before the Supreme Court. In 2016, the Centre withdrew from the appeal contending that it does not acknowledge the minority status of the university.
On February 12, 2019, the court referred the matter to the seven-judge bench. A similar reference was also made in 1981.
In 1967, a five-judge constitution bench in 'S Azeez Basha versus Union of India' held that since the Aligarh Muslim University was a central university, it cannot be considered a minority institution.