Aligarh Muslim University.
Credit: PTI File Photo
New Delhi: The Supreme Court on Tuesday said merely because the right to administer is regulated by a statute and to certain extent is not untrammelled, it does not detract from the minority character of an institution.
Hearing a batch of petitions related to minority character of Aligarh Muslim University (AMU), a seven-judge bench led by Chief Justice of India D Y Chandrachud asked what happens when a statute [when applied] takes over an erstwhile institution and converts it into the mandated statutory form.
"It becomes a body corporate, [but] does that conversion deprive it of its minority character, or is that only a matter of form? To convert the form which was society into a body corporate, or does that change in form completely destroy the minority character?" the bench further asked.
The AMU, for its part, emphasised that the right to administer a minority institute flowed from the right to establish one guaranteed under the Constitution.
The bench said, “Article 30 (right of minorities to establish and administer educational institutions) of the Constitution uses the expression establish and administer. Now there is no absolute standard of administration that you must administer 100 percent, so to make Article 30 effective, you don’t have to postulate that the administration by the minority has to be an absolute administration and that today in a regulated society, nothing is absolute".
Further, the bench said, "Virtually every aspect of life is regulated in some way or the other. So, merely because the right to administer an educational institution is regulated by a statute and to certain extent is not untrammelled, does not detract from the minority character of the institution”.
Senior advocate Rajeev Dhavan, for the AMU concurred with the view, saying that is the essential point.
"In administration, there is no constitutional definition of the expression administer. The courts have held what administration means but the right to administration itself is regulated by the statute,” the bench said.
Dhavan submitted that it cannot always be only Muslim and for Muslim.
“Because, after the Constitution, all the universities have a liberal element in them. Please give representation to students, teachers, all that is there in our university statutes,” he said.
The bench said, “You don’t have to be administrating only religious courses, you can be administering a purely secular educational institution, that's one, secondly, the law is not that you only admit students of your community — you can admit from any community, without forcing because it is the right of establishment in administration”.
The bench said, therefore, the minority institution doesn't lose its character according to the petitioners' submission merely because various aspects of its existence are regulated by the statute including aspects of the administration of the institution.
"The state in public interest is entitled to regulate or the Parliament as the case maybe,” the bench said.
Dhavan argued that the validity of the 1967 Azeez Basha judgment has to be looked at in the context of subsequent judgments that may be contradictory. He submitted that AMU was a recognised institute of excellence and that the decision in Azeez Basha took a very narrow view of Article 30.
He asked how can because of a regime change, the Union of India can change its stance. He said the Union government contended before the Allahabad High Court that 'S Azeez Basha and Anr vs Union of India' (1967) was wrong.
Till 2005 and even in Azeez Basha, they (central government) had defended the statute, but now there is a change in regime and hence change in stand.
He asserted that the purpose of this (AMU) was to give Muslims access to education.
“We agree that minority educational institutions should not be ghettos, and we agree that they should be institutes of excellence," the counsel said.
The petitioners have also sought a review of Azeez Basha judgment, which said it is not a minority institution. He contended that the right to administer a minority institute flowed from the right to establish one, and throughout the world, there are minority state institutions.
The hearing would continue on Wednesday.
A constitution bench is hearing plea by AMU and others, where it will decide on the question whether an educational institution created by a parliamentary statute enjoys minority status under Article 30 of the Constitution.
The bench also comprised Justices Sanjiv Khanna, Surya Kant, J B 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, which was set aside by the Allahabad High Court. In 2006, 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.
The top court had on February 12, 2019 the matter referred to a seven-judge bench to decide the contentious issue of the minority status of AMU.
In 1967, a five-judge Constitution bench in the S Azeez Basha had held that since the Aligarh Muslim University was a central university, it cannot be considered a minority institution. However, the university's minority status was restored when Parliament passed the AMU (Amendment) Act in 1981.