'Let's Not Dilute Parliament's Powers' : Supreme Court On Arguments Against 1981 Amendment To AMU Act [Day 7]

On the 7th day of the hearing of the case concerning the minority status of the Aligarh Muslim University(AMU), the Supreme Court sounded a word of caution to the respondents on making arguments which may limit the law-making powers of the Parliament.The respondents, who oppose the AMU's minority status, challenged the validity of the 1981 Amendment to the AMU Act on the ground that it overruled the Azeez Basha judgment of the Supreme Court to effectively confer minority status for the University.Senior Advocate Mr Neeraj Kishan Kaul, stressed that the 1981 Amendment did not remove the basis of reasoning given in Azeez Basha and altered the history of AMU.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.Kaul expressed, “ By a legislative fiat or legal fiction you cannot take away a historical legislative fact, you cannot alter history” The CJI was however quick to remind the senior counsel of the serious repercussions such an argument may have. He cautioned Mr NK Kaul to not assert anything that may impact the unfettered law-making powers of the Parliament and the prospective bearing such a contention would have. He opined, “Mr Kaul you are also appearing on the side of the Govt. In the eagerness to uphold the striking down of the 81 amendment, let us not do something which substantially cripples down the powers of the Parliament. In the effort to sustain the decision of the Allahabad High Court and to get over the 1981 amendment, we shouldn't be doing something, I mean, 'we' means You... which really in that sense substantially mute the powers of the Parliament in future. We have to be very careful because what we are laying down is the law for the future on the powers of the constitutional body” Kaul countered this by reminding the bench of the times when the actions of the Parliament in terms of law-making have also been struck down and held to be ultra vires. The CJI explained that it is within the Central legislature's domain to take a certain view while dealing with terms like 'established' within the Act. “Let's not go into a wider context and dilute the powers of the Parliament by laying such a broad proposition that it is not open for the Parliament while legislating to take a view of the historical facts to the contrary....”Last week, the Supreme Court had expressed surprise at the stand of the Union Government that it was not supporting the 1981 amendment and wondered whether it was open for the government to say that it was opposed to a law made by the Parliament.At a later part of the discussion, the CJI noted that Entry 63 of List I of the Constitution which terms Banaras Hindu University(BHU) and Aligarh Muslim University (AMU) as institutions of National Importance, crystalizes the constitutional understanding of these institutions. The CJI propounded whether the amendment of 1981 altered the said constitutional understanding upon the basis on which Entry 63 was premised at the time of enforcing the constitution.“ So it( Entry 63) freezes that constitutional understanding as at the date of commencement of the constitution. If the constitution adopts a particular understanding of these 2 institutions which says institutions known at the commencement of the constitution as AMU and BHU, can a subsequent legislature alter that understanding which is a foundation of 63 ...now Entry 63 tells us that these two institutions of National Importance are those which were known at the commencement of the constitution. Then can you by a legislative fiat alter that constitutional understanding which forms the basis of 63?.” On The Effect Of Giving Minority Status To An Institution Of National Importance - Sr Adv Guru Krishna Kumar Explains Presenting arguments for one of the respondents, Sr Advocate Mr Guru Krishna Kumar submitted how AMU was always open to diverse communities and did not restrict its faculty-student intake to only the Muslim sect. Reliance was on S.8 of the AMU Act which reads - 8. University open to all persons.—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: Provided that nothing in this section shall be deemed to prevent religious instruction being given in the manner prescribed by the Ordinances to those who have consented to receive it. To which the CJI also observed that AMU was required to be modelled on the same pattern as BHU, he read out, “ Hindu leaders were given an undertaking that AMU would be on lines of BHU”. Justice Khanna, taking note of the submission on AMU being of National Importance reposed an earlier question raised by the CJI, of whether branding the institution of national importance does way with a minority...

'Let's Not Dilute Parliament's Powers' : Supreme Court On Arguments Against 1981 Amendment To AMU Act [Day 7]

Anmol Kaur Bawa

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