Article 30's Test Is Not That Minorities Must Administer The Institution Themselves : AMU Case Petitioners To Supreme Court [Day 8]

On the final day of hearings of the 7-judge Constitution Bench on the issue of granting minority status to the Aligarh Muslim University, the bench and petitioners dwelled to see whether the Amendment Act of 1981 restored the position of AMU as it was before 1951 or was amendment done “half-heartedly”. The 1981 Act amended Section 2(l) of the AMU Act to state that “University” means the educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh, and which was subsequently incorporated as the Aligarh Muslim University.Chief Justice of India DY Chandrachud, during the hearing, noted that while the 1981 Amendment Act does endeavour to bring back the Muslim voice into the AMU, apart from a few cosmetic changes, the Amendment did not seem to restore the AMU's position as per its original Act in 1920. The changes brought in seemed rather a half-hearted job. The CJI expressed, “A thing that is worrying us is the 1981 Amendment does not restore the position prior to 1951. In other words, the 81 Amendment does a half-hearted job ...they were placating that sentiment. But when it actually came to the brass stacks, they didn't go back to the positions prior to 1951. And what they did was it brought the Muslim voice into the AMU administration as we see it. But it still stops short, even the Parliament which had the power to do, it still stops short of taking us back to the 1920 Act. They made a few concessions but they never took it back to 1920, it could be reflected upon.” Dr Rajeev Dhavan, presenting the rejoinder arguments from the University's side, explained that to understand the intention of the Parliament in bringing about the said Amendment, the whole scheme and purpose of the Amendment has to be taken note of. He drew out the similarities between the 1920 Act and the 1981 Amendment to show that the latter wholeheartedly intended to promote educational and cultural advancements of Muslims in particular. “We have to look at the purposes of the University. And these are writ large, I'll read out of the amended Act, the purposes your lordships will find in the original act - to promote oriental and Islamic studies and to give instructions in Muslim theology and religion and to impart moral and physical training. Now what was added in 72 was to promote the study of religion, civilization and culture in India and see which is important which comes in 81- to promote especially the educational, and cultural advancements of Muslims in India.” Dr Dhavan further emphasized the importance of understanding the purpose of the legislation while construing the law. He added, “It is the purposes of the statute which will also run alongside. We cannot read the Act minus the purposes of the Statute. This is the fundamental distinction we wish to make, that you go by the purpose, you go by the empowerment and to that extent the statute is crystal clear.” Twin Test Of 'Establish & Administer' Misconceived By The Respondents - Urges Sr Adv Kapil Sibal In a major part of his rebuttal arguments, Senior Adv Kapil Sibal, supporting the minority status for AMU, emphasised that it is not required under Article 30 to prove mandatorily for a minority community that it has both established and directly administered the educational institution. As per Sibal, Article 30 gives one the right to administer the institution. However, such administration has to be seen in a fluid context, where the establishing community may sub-delegate its administering powers to a non-minority. Sibal gave the example of the functionings of St. Stephen's College, and how despite having a minority status, its internal administration is a composite of people from a variety of communities and not dominated by Christians alone. He expressed, “I don't think minorities administer any minority institution in this country. If you apply the wrong test, you get the wrong answer. Take St. Stephens, how many teachers are a minority? Not even 5%, administration, 5%.... what's the relevance? This whole numerical argument is irrelevant to Article 30. Take St Stephens in the context of DU statute example, I am not part of the syndicate, I am not part of the executive council, I am not part of the academic council, that means I am not a minority institution? What tests are we applying? Never before in the history of this Court have these tests been applied. That's why there are no judgments cited my lords.” Referring to the 5 tests laid down in the decision of the Supreme Court in TMA PAI Foundation & Ors v. State of Karnataka , Sibal contended that the 5 indicia of administration in an educational institution, in the constitutional essence would include : (a) to admit students;(b) to set up a reasonable fee structure;(c) to constitute a governing body;(d) to appoint staff (teaching and non-teaching); and(e) to take action if there is dereliction of duty on the part of any employees. The...

Article 30's Test Is Not That Minorities Must Administer The Institution Themselves : AMU Case Petitioners To Supreme Court [Day 8]

Anmol Kaur Bawa

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