Parliament could not overcome the 1967 Supreme Court judgment against Aligarh Muslim University’s (AMU) minority status by merely modifying a definition clause under the AMU Act to say that the university was established by the Muslims of India and not by the legislature, a seven-judge Constitution bench observed on January 10, 2024.

According to a bench led by Chief Justice of India Dhananjaya Y Chandrachud, the 1981 amendments by Parliament to insert a new definition of “university” under the AMU Act could not take away the basis of the five-judge bench verdict in the Azeez Basha case in 1967 if it did not make fundamental changes in the act that was interpreted by the court to rule that AMU was neither established nor administered by a Muslim minority community. Based on this finding, the 1967 ruling declared that

AMU was not a minority institution and cannot thus enjoy protection for minorities to administer educational institutions under Article 30(1) of the Constitution.  “When Parliament introduced the 1981 amendments, one change that they brought  was to change the definition of ‘university’. But did the substantive provisions of the amended statute make a fundamental change in the basis of the decision in Basha?

Because, if it did not make any fundamental change in the basis of the statute that was interpreted in Basha, then, clearly, it is outside the power of Parliament to do so [override the effect of the 1967 judgment],” observed the bench. The bench, which also included justices Sanjiv Khanna, Surya Kant, JB Pardiwala,

Dipankar Datta, Manoj Misra and Satish Chandra Sharma, added that it was open for Parliament in 1981 to amend the AMU Act even with retrospective effect to indicate that it was altering the relevant provisions to ensure AMU is administered by minority.

“That, Parliament could do but if Parliament does not do that or it has not done that, then it cannot merely by change in definition overcome the impact of a binding judgment…There is a distinction between amending a statute to take away the basis of
a judgment and amendments that deal only with the reasoning part of it,” the court remarked.

It added that the 1981 amendment did not use the non-obstante clause —  notwithstanding any judgment, decree or order of a court.
“So, it’s not a validating provision. It’s merely amendments to the definition provision…the definition, envisaged in the view of the Parliament, historical evolution of AMU. This doesn’t override Basha. Because Parliament can and could take away
the basis of Basha. But it merely alters the definition. That’s all,” observed the bench.

The Constitution bench’s remarks assume significance in the wake of the emphasis laid by AMU in its appeal on the 1981 amendments to contend that Basha’s judgment required a review and that the parliamentary will was consistent with minority status
for the university.

The central government had sought to overturn the top court’s 1967 Basha verdict by passing amendments to the AMU Act in 1981. The Allahabad high court, however,  junked these amendments in 2006, leading to AMU and the then United Progressive
Alliance (UPA) government to challenge it before the Supreme Court. In 2016, in a reversal of the previous stand, the National Democratic Alliance (NDA) government sought to withdraw the Centre’s appeal, maintaining that AMU was not a minority institution and that the Basha judgment was correct.

If declared a minority institution, AMU need not reserve seats for Scheduled Castes, Scheduled Tribes, other backward classes (OBC) and economically weaker sections (EWS). On the second consecutive day of the arguments on a clutch of petitions relating to
AMU’s minority status, senior counsel Rajeev Dhavan and Kapil Sibal argued for the university and its alumni association. Dhavan, in his turn, cited the 1981 amendments to press that Parliament made “substantive” changes to restore the minority status of AMU after the unpropitious 1967 judgment. Sibal, on his part, urged the bench to decide the fundamental question whether AMU is a minority institution or not, arguing the issue cannot depend on 1981 amendments or any other statute but on the judgments of this court.

The bench, however, told the counsel that it cannot decide the case by treating the 1981 amendments to be valid because it was not ruling upon the correctness of the Allahabad high court judgment but was concerned with the 2019 reference to it by a smaller bench for defining the parameters for the granting of minority status to educational institutions.

“For us to decide whether Basha was decided correctly or not, we will have to look at the state jf statutory provisions as on the date Basha was decided. But how inadvisable would it be to decide the correctness of a Constitution bench judgment in Basha on the basis of statute as it stood in 1967 and that will have an impact on AMU’s minority status today, but we do not take into account the subsequent developments,” said the bench.  Called upon to interpret the terms “establish and administer” under Article 30 that
defines a minority institution, the court further said that the term “establish” goes to the founding moment and takes to a time in the past, but the term “administer” was not confined to a moment in the past.

“The mere fact that some part of the administration is also looked after by non- minority candidates who have a representation voice by virtue of their service or association with the institution will not dilute the minority character of the institution. But at the same time, it cannot be to the point where the entire administration is in non-minority hands…we may not be able to lay down a numerical test, 50 or 60 % of the administration etc. It will be very dangerous to do that. It must be more in the nature of a qualitative test,” it added. The court heard the case on January 11, 2024. Through the written submissions of solicitor general Tushar Mehta, the Centre on January 9, 2024, told the court that its decision in 2016 to withdraw its support for minority status to AMU was based on “constitutional considerations alone” because the erstwhile UPA government’s stand to legally fight for it was “against public interest” and contrary to the public policy of reservation for marginalized sections.

Stressing that the change of government at the Centre was inconsequential to the reversal of the stance, the NDA government maintained that the Union government should have never filed a separate appeal in the top court against the 2006 judgment of the Allahabad high court, which held that AMU is not and has never been a minority institution. The previous government’s stand was further in the teeth of a five-judge

bench ruling in the Azeez Basha case in 1967, said the Centre, adding AMU is an institution of “national character” that ought to maintain its secular origins and serve the larger interest of the nation first.
Source: HT