AMU Surrendered Rights To British, Argues Centre; Political Inclination Of Founders Immaterial For Minority Status, Says Supreme Court [Day 4]

He submitted, “They were institutions in the British time which had the reputation, granted degrees except they were not under the British crown”

Referring to his written submissions, he explained how the founders of the AMU were considered 'loyalists' to the Imperial regime. SG said that there was a breakaway group who were opposed to the loyalist stand of AMU and the nationalists started the Jamia Milia Islamia.  Sr Advocate Mr Rakesh Dwivedi interjected to add that the book 'The Loyal Musalman' written by the founder of AMU, Sir Syed Ahmad Khan shows that the "whole purpose of this MAO(Muhammadan Anglo-Oriental College, which later became the AMU) was to create an educated class of Muslims who are loyal subjects".

The CJI however, observed that the political inclination of the founders during the British Raj could not deprive AMU of its minority status.

The CJI opined, “The fact that the loyalists were in alignment with the views of the Imperial power doesn't make it any less an institution founded by a minority. Founded by the minority does not mean that you have to be in opposition to the govt. Therefore to say there were two factions - the loyalist or nationalist movement does not have bearing that it seizes to be a minority institution. We are just saying that this hypothesis is equally consistent with the fact that a minority institution may or may not be politically inclined towards the govt.”

The CJI further remarked that books being a secondary source of evidence, the Court has to be careful while dealing with underlining materials in a book.

“We are just making a small caveat as far as the books are concerned”.

To which the SG clarified that through his submissions he draws that the founders of AMU surrendered their minority rights to the Imperial Regime while other institutions did not. The discussion went as follows :

SG : That's not my case, I'm just trying to show how historically you surrendered while others did not. Others also had the option of surrendering their rights as a denominational institution .....but they continued their existence de hors the govt. You could have stuck to your ground. Vishwa Bharati stuck to its ground.

At this point, the CJI asked if the universities like Vishwa Bharati awarded degrees which were not recognized by the British crown. The SG replied in the affirmative and said that the degrees were recognized post-independence after the enactment of the UGC Act.

The point emphasised by the SG was that AMU 'surrendered' its rights to the British crown and hence cannot claim minority rights. He explained that this was the ratio of the 1967 Azeez Basha judgment, which declared that AMU was not a minority institution. The petitioners have urged the present bench to revisit Azeez Basha.

"My intention was not that because they sided with British don't trust. They had every right to take their own political stand, maybe that was the beneficial stand for the students etc," the SG added clarifying that he was merely explaining the ratio of Azeez Basha.

AMU Though Founded By Minorities Could Still Be Of Secular Form - The CJI Highlights

On the aspect of Article 30 and its application in light of the secular administration of AMU, the CJI remarked upon the written notes of the SG. To suggest that AMU lacked minority character because the intention of the founder Sir Syed was to set up an entirely secular educational institution is 'fundamentally inconsistent with the principles underlying Article 30”, the CJI said.

“A minority institution may set up a purely secular form of institution. Then you said that the minority element was a small portion of the larger idea of Sir Syed, this cannot be a correct constitutional test to apply”

The SG countered this by explaining that the issue at hand is that Article 30 could not be the basis of testing the pre-constitution establishment.

“The difficulty is that we are testing something that happened in 1920 based on Article 30, which was not there at that time.”

The CJI said that the issue is whether the University acquired a minority status after the adoption of the Constitution.

Funding And Administration Of AMU Controlled By The British Crown - Contends SG Tushar Mehta

The SG stressed that the historical facts and the context in which AMU was created have to be seen holistically, especially in light of the complete scheme of the 1920 Act.

In doing so, he submitted on 3 compartments (a) correspondence between the MAO and British authorities; (b) the debates in the imperial parliament and (c) the Act itself as it stood in 1920.

The main contention of the respondents was that the actual control of the administration had to be construed from the provisions of the 1920 Act. Relying upon S.30 of the Act of 1920 which dealt with the issuance of ordinances with regard to various administrative aspects of AMU, the SG emphasized :

“He says non-denominational, government-controlled ordinances will be the first ordinances. It cannot be amended without his approval (governor general's) .... see my lord the absolute power... my lord same provision is for statutes also. complete governmental control, outside control. Kerala Bill your lordships would remember says sprinkling of outsiders, complete control of the administration by the minority community with sprinkling of outsiders”

Thus the SG underlined that for AMU to qualify as a minority institution, the administration should in turn be controlled by the minorities with only a small faction of non-minorities, however, as per the legislation that didn't appear to be the case. He added, that at the time of the establishment of AMU, no decision was made by anyone other than the legislative council.

“I am respectfully urging that the Britishers were very clear that it would be non-denominational, and it would have our(Britishers') full control. If these are the two things then it is not a minority institution.”

Dwelling on this argument, Justice Khanna remarked, “ The term used in the Constitution is 'administer'. Now the issue would be day to-day administration of the university, that would be the test? Or it will be the test to see as pointed out by councils of the other side - de facto who had the control? Who are in charge and taking decisions. Just keeping in mind also Article 28 and the bar created, and restrictions created by that.”

On the provisions of financing AMU, CJI brought attention to S.7 of the original Act. The discussion between him and SG then followed :

CJI : Section 7 means that the entire 30 lacs which was the initial Muslim corpus was really what was transferred from the MAO and the Muslim University Associate

SG : Correct, S.4 also says that. Therefore I say that while dissolving one body, the Act will have to do something about the property.....what would be necessary would be the "establishment and administration".

CJI: The finance would have some bearing on the establishment right? The person who has established may have contributed to the finance, that's a very important indicator.

SG : 30 lacs came from several people including Hindu rajas, kings ...

The SG also referred to S.8 of the Orginal AMU Act of 1920, to submit that a minority institution can be open to everyone and that alone wouldn't rob it of its minority character if otherwise its other attributes are satisfied.

S.8 of the 1920 Act provides, “The University shall be open to all persons (including the teachers and taught) of either sex and of whatever race, religion, creed, caste or class: …”

Moreover, the respondents also emphasized that the decision in Basha is only specific to the 1920 Act and it does not lay down any universally applied law as such that once a University is incorporated it loses its minority status. As per the Union, Basha merely examined the 1920 Act and held that AMU specifically is not a minority university.

Background

The 7-judge Bench comprising CJI DY Chandrachud, Justice Sanjiv Khanna, Justice Surya Kant, Justice JB Pardiwala, Justice Dipankar Datta, Justice Manoj Misra and Justice SC Sharma is dealing with a challenge to a 2006 decision of the Allahabad High Court which held that though AMU was established by a minority community, it was never administered or claimed to be administered by the minority community and thus cannot be considered as a minority institution.

In 2019, a 3-judge bench of the Supreme Court referred the issue to a 7-judge bench. One of the issues which arise in the case is whether a University, established and governed by a statute (AMU Act 1920), can claim minority status. The correctness of the 1967 judgment of the Supreme Court in S. Azeez Basha vs. Union Of India (5- 5-judge bench) which rejected the minority status of AMU and the 1981 amendment to the AMU Act, which accorded minority status to the University, also arise in the reference.

Detailed report on the hearings of the first half of day 4 can be found here

Case Details: ALIGARH MUSLIM UNIVERSITY THROUGH ITS REGISTRAR FAIZAN MUSTAFA vs. NARESH AGARWAL C.A. No. 002286/2006 and connected matters