Regulation by statute not a bar on institute enjoying minority status: Supreme Court in AMU case

The Supreme Court on Tuesday observed that an educational institute is not barred from enjoying minority status merely because it is regulated by a statute, while hearing a case concerning the minority status of the Aligarh Muslim University (AMU) [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 added that under Article 30, (right of minorities to establish and administer educational institutions) of the Constitution, there need not be absolute administration by a minority group to claim such a status."In Article 30, we do not have to postulate that administration by the minority has to be absolute, and in a regulated society we cannot have think of the same, where all parts of our lives is regulated some way or other. So being regulated by a statute does not detract it from having a minority status. If the right of administration is regulated by statute, then there is no bar to minority status. So only religious courses administering is not needed. Students from all communities can be admitted and not from only one community", Chief Justice of India (CJI) DY Chandrachud remarked.The Court was hearing the case concerning the minority status of the Aligarh Muslim University (AMU). .The questions of law involved concerns the parameters for granting an educational institution minority status under Article 30, and whether a centrally-funded university established by parliamentary statute could be designated as 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 AMU was later reinstated by bringing in an amendment to the AMU Act. This was challenged before the Allahabad High Court which 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..When the matter was taken up by the Supreme Court today, Solicitor General Tushar Mehta (representing the Central government), at the outset, objected to AMU making the matter seem like a reconsideration of the Supreme Court decision in Azeez Basha's case..Senior Advocate Rajeev Dhavan, who appeared for AMU, argued that the validity of the Azeez Basha judgment has to be looked at in the context of subsequent judgments that may be contradictory. "India has a diversity which is more than any continent across the world. Even if you come to my land, Uttar Pradesh you will see the variation, this is what we seek to preserve. 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. Union of India stand now is in defiance to the stand of Parliament in 1981. It is duty bound to follow the will of Parliament as taken in 1981," Dhavan added..Dhavan stressed that AMU was a recognised institute of excellence and that the decision in Azeez Basha took a very narrow view of Article 30.He added that the right to administer a minority institute flowed from the right to establish one. "What was the purpose of this (AMU) Act? It was to give Muslims access to education. We agree that minority educational institutions should not be ghettos, and we agree that it should be institutes of excellence. This university protects Urdu as a language and it is mentioned in schedule 8 as well. I went to Pakistan, and they also protect the Urdu language. Though I have my own qualms with schedule 8; even English is in the list of Indian languages now," he further argued. .The University has a completely Muslim character, he submitted, mentioning the mosque on campus, and appointments of Muslims for higher positions. "There was no doubt about its character at all. It cannot be said that the constitutional right to administer an institution cannot be asked to be surrendered unless its character is given up. This will also lead to the exclusion of tertiary education ... It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds," Dhavan added. .Dhavan also underscored that students of all religions can apply and take admission to AMU. "Such other communities bring in income and they do not have to be turned away to enjoy the protection. Minority educational institutions cannot be allowed to fall below the parameters of excellence. This protection is needed to prevent discrimination against the minority. State has no right to compel minority education institutions to give up their character at all," he said in conclusion..The hearing will continue tomorrow.