Cannot ignore fact that Aligarh Muslim University was established for Muslims: Supreme Court

The fact that the Aligarh Muslim University (AMU) was established for Muslims cannot be ignored, the Supreme Court said on Wednesday while dealing with a case concerning whether the university is entitled to claim minority status under Article 30 of the Constitution [AMU v Naresh Agarwal and ors]..A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma also made it clear that even a minority institute can be designated an institute national importance by the parliament..In today's hearing, Senior Advocate Neeraj Kishan Kaul (appearing for the respondents) stated that it was "completely misplaced" to argue that the minority rights of Muslims were in danger."Which right of reservation or minorities is being taken away? What is being done that fabric of the secular structure of the country is being pierced? Nothing. All citizens are equal," Kaul said..In his reply, CJI noted that,"We also have to understand that even a minority institution can be an institution of national importance and that Parliament can designate even a minority institution as an institution of national importance. This also we have to understand. We also cannot ignore the fact the University was established for Muslims, and when it was made it was on the lines of Banaras Hindu University [BHU] and that was a precedent.".The hearing today also took a seemingly unpalatable turn during arguments by former Chief Justice of the Chhattisgarh High Court, Senior Advocate Yatinder Singh."Parsis, etc. cannot decide elections but Muslims as per 2011 census were 14.2 per cent, but their population is the highest. When I speak with my Muslim friends, I ask do you know how do you form the population? They say, now we have become 23 per cent. So Muslims as a minority affects the elections. Asaduddin Owaisi is a creation of BJP; they want to divide the Muslim vote and wherever they combine, they win," Singh argued.The CJI was prompt to warn against steering the case into political questions."Let us not steer away from the area of constitutional law. Let us not comment on political personalities," the CJI said.Singh, however, went on to add:"There was a famous mathematician of the last century. He was jew. He came to India and came to Allahabad University. He was impressed by the Gita. He always used to quote Gita. He came to AMU as a professor, and got trapped there, and AMU had an anti-Hindu atmosphere. Please listen to me; he left from AMU. If he did not go, then AMU would have been (like) Princeton. And India lost that.".Today marked the seventh day of hearing in the case.The questions of law involved in the case concern the parameters for granting an educational institution minority status under Article 30 of the Constitution, and whether a centrally-funded university established by parliamentary statute can be designated a minority institution.The matter was referred to a seven-judge in February 2019 by a bench led by then CJI Ranjan Gogoi.AMU was held to be a Central University by the Supreme Court in the 1968 case of S Azeez Basha vs Union of India. In the said case, the Court also held that a minority status under Articles 29 and 30 of the Indian Constitution cannot be conferred on a Central University.However, the minority status of the institute was later reinstated by bringing in an amendment to the AMU Act of 1920. The amendment was brought about in the year 1981.This was challenged before the Allahabad High Court which in 2006 set aside the move as being unconstitutional, leading to the instant appeals by AMU before the Supreme Court.Notably, in 2016, the Central government withdrew its appeal in the matter..Hearing todaySenior Counsel Kaul at the outset argued that the 1981 amendment act does not remove the basis of the Azeez Basha verdict. He further submitted that the AMU was set up by the government and not by Muslims. "Establishment of AMU by then British government is a fact based on historical finding. MAO [Muhammadan Anglo-Oriental] college was dissolved and AMU was founded by the then Central government (British government) and not the Muslims. 1981 Act does not deal with administration at all, it is about establishment being removed... definition of university, etc."The CJI replied that the 1920 Act gave AMU the form of a statutory university but this did not dilute the fact that it was established by Muslims. "Parliament in 1981 had this in sight. Mr. Kaul, while arguing for the government and in eagerness to argue for uphold the striking down the 1981 Amendment, see that you do not cripple the powers of parliament. This will have effect on powers of the constitutional body. Please note that this will be used in the future as well. Please see that the powers of parliament are not diluted by such a broad proposition (or that arguments are made) to exclude powers of the Parliament to go into the historical perspective," the CJI added. .Senior Advocate Guru Krishnakumar then began arguments and questioned the basis of the amendment Act. "When a judgment finds factual finding on historical facts, then that cannot be superseded by a Parliamentary amendment. Yes, legislature can remove basis of a judgment but merely doing this is not permissible at all.".Senior Advocate Vinay Navare argued that according to precedents, the minority status of an institute is State-specific."So if this is held, that AMU does not have a minority status, then what happens to its campus in Jammu & Kashmir?" he added. .Senior Advocate Archana Pathak Dave argued that the Azeez Basha judgment is good law and determined the character of only AMU."1981 amendment tried to brazenly overrule the Basha judgment which it could not have done," Dave maintained..In rejoinder submissions, Senior Advocate Rajeev Dhavan (for AMU) argued that minority protection lay at the heart of secularism. "Concept of minority goes to the root of minority protection under the Indian Constitution, and is one of the key features of secularism. Minority protection goes to the heart in what secularism is all about; it is about bringing about equality keeping in mind autonomy of minority institutions. There is a constitutional and a statutory premium to the protection of minority status," he emphasised..The hearing will continue tomorrow. .Read our detailed coverage of the hearings so far:Day 1Day 2Day 3Day 4Day 5Day 6.[Follow our live-coverage of today's hearing]