Right to establish minority educational institutes not meant to ghettoise minorities: Supreme Court in AMU case

The Supreme Court on Thursday made it clear that the right of minorities to establish and administer educational institutes under Article 30 of the Constitution is not meant to ghettoise any religious community [Aligarh Muslim University Through its Registrar Faizan Mustafa 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 noted that it is permissible for such institutes to admit students from other religions communities too."Object of Article 30 is not to ghettoise the minority, and it is okay to bring others too," the CJI remarked..The comment was made during the third day of hearing in a batch of petitions concerning the minority status of Aligarh Muslim University (AMU).The questions of law involved in the case concerns the parameters for granting an educational institution minority status under Article 30, 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 in 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 Kapil Sibal, appearing for the AMU Old Boys' (Alumni) Association, continued his submissions today in favour of AMU's status as a minority institution. "The right to administer is the right to manage the affairs of the institute and it is entrusted to the body of people on whom the founders had faith to carry on the task and it is not just the minority," he submitted. .The CJI, in turn, remarked that Article 30 does not mandate that the administration of minority institutions has to be by the minority only and the board can have Hindu majority as well. "It confers the right on the minority to administer in the way they want to, you may have a minority or not have minority (members)," the CJI said..Solicitor General (SG) Tushar Mehta reiterated that the scope of the reference in the present matter cannot be to reinterpret the decision in Azeez Basha. The CJI responded by noting that the Court may have to look at the case from a broad viewpoint, including by examining the effect of the Azeez Basha judgment. "We are a Constitutional court sitting in a bench of seven (judges). So it would not be appropriate (for us) to decide the question on facts like who leased the land etc, but the broader scenario ... We have to see the effect of us (for example) holding Basha was wrongly decided and its impact on the amendment Act and the Allahabad High Court order. If is upheld then amendment becomes subsidiary," the CJI said. .Notably, SG Mehta stressed today that the 1981 Amendment Act did not restore minority status on AMU. Rather, he argued that AMU was conferred a minority status for the first time with the Amendment Act as such a status was never there before for the University, he said. Meanwhile, Justice Khanna observed that if the Azeez Basha judgment were to be overruled, then the challenge to the 1981 Act becomes moot, to which the CJI agreed.Justice Kant weighed in saying that if the 1981 Amendment Act is upheld, then a relook of the Azeez Basha ruling would become academic..These observations led Sibal to suggest that the Court could give a ruling on whether AMU was a minority institution, regardless of whether the Azeez Basha ruling was correct."Your lordships can give a declaration that I am a minority institution regardless. Nature of institute then will not change. Are courts precluded from such a declaration? (Validity of) 1981 Amendment Act can be decided without Basha. If my lords says Basha is incorrectly decided, nothing remains," Sibal said..Senior Advocate Salman Khurshid also argued today on behalf of the petitioner."Rights which have been granted to me are primordial rights. I hope that the integrity and harmony of the Constitution in the essence of interpreting primordial rights leads to liberal construction of the term administration," Khurshid argued.Khurshid also pointed out that institutes like Jamia Millia Islamia are offshoots of AMU. However, Justice Khanna replied that this aspect was beyond the scope of the reference..Advocate Shadan Farasat, appeared for another petitioner, Haji Muqeet Ali Qureshi. Farasat argued that AMU was one of the main reasons for the growth of an educated Muslim middle class in India."If the court holds it is not a minority then it will damage this entire cause. Tirthankar Jain University, ERA University Lucknow - all these are minority universities. If Azeez Basha stands, there cannot be any minority university in this country. If I go, so will they go. None of them can stand," he emphasised. He argued that the minority status of AMU was also a reason why the university is opted for by minority communities. "Families in Bengal. etc send their children only to AMU. This is only because of the minority status and this is important for the minority. Women Muslim students are especially sent to AMU because of the minority status. These are sociological facts and we do not expect a judicial finding on the same," he said..Farasat also referred to the administrative set up of AMU."Muslims are in overwhelming majority both in the Executive Committee and the academic council. Why do I need to aggressively change the regime when minorities have been in control of the University since the last 104 years?" he asked..As the hearing drew to a close, Justice Sharma asked whether there was any other centrally-funded university that has been conferred the status of a minority institution. "Is there any other minority university in India which is hundred percent funded by the Central government?" the judge asked. Farasat answered by saying Jamia in Delhi is an example, but that he does not have data on whether there are others at present..The hearing will continue on January 23.Final hearings in the matter had begun on January 9, Tuesday, when the Court observed that an educational institute is not barred from enjoying minority status merely because it is regulated by a statute.During yesterday's hearing, Senior Advocate Sibal argued that Muslims in India are worse off than Scheduled Castes in terms of education and they can only be empowered through education.