Mere Fact Of AMU Being Established By British Law Doesn't Indicate Surrender Of Minority Status, Says Supreme Court [ Day 5]

The Constitution Bench of the Supreme Court on Wednesday(January 24) continued with its 5th day of hearing arguments from the side of the Union in the Aligarh Muslim University(AMU) minority status case. Solicitor General of India Tushar Mehta (SG) argued that AMU cannot claim minority status as it was established by an imperial legislation passed by the British Crown (AMU Act 1920).The Chief Justice of India, presiding over the 7 Judges Bench verbally observed that the regulatory frameworks during the British Era had one sole objective, that “nothing should be done to destroy the imperial hegemony of the colonial power”. He further stressed that it is in this context that the establishment of a Pre-Constitution Institution like AMU has to be seen. “The law is not that you can claim the right under article 30 only if you establish after the Constitution,” CJI Said.The bench comprising CJI DY Chandrachud, Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and SC Sharma is hearing a reference arising out of the 2006 verdict of the Allahabad High Court which held that AMU was not 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-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.The key aspects deliberated by the Court included the notion of 'surrendering rights' by the AMU to the British; understanding the ambit of powers of the 'Supreme Governing Body' of the University and the Bench's take on dealing with the correctness of Basha with Amendment Act of 1981 in the hindsight. Need To Interpret 'Surrendering Of Rights' In The Strictest Sense Possible - Opines The CJIThe key contention of the Union during the hearings was that since AMU was established under the Imperial Act in 1920, it surrendered its rights as a minority to the British Crown and therefore could not anymore claim to be of a minority character.However, did not seem to be agreeing with this proposition, the bench said that this fact alone will not indicate surrender of minority status if the University is otherwise fulfilling the criteria for minority status as per Article 30 of the Constitution. Dwelling further into this premise, the bench observed that in a post-constitution scenario, the law before and after the judgement in Basha is that on seeking financial aid/ recognition you don't surrender your minority status. The CJI remarked, “Therefore the mere fact that you had to take the law-making route could not by itself be a circumstance of you indicating to surrender the minority status.” "Therefore the circumstance that the route which you followed through law making in now post 1956 is irrelevant to your minority status," CJI added.SG said that there were many Pre-Constitution universities, which chose to remain independent and did not seek recognition from the British. "In those days, it was the spirit that people preferred graduates of such universities which were not recognised by the British. IIT Roorkee was a nonlaw-made university."On the issue of recognition and the availability of choice to the pre-constitution institutions to surrender or not surrender their rights to the British regime, the Chief Justice noted that it was imperative at the time for graduates to get a degree to be employed. He expressed, “Even if you had a choice, there is one very critical thing, why do people seek recognition? People seek recognition so that your students have employability, credibility etc. There were some institutions which had credible degrees even though they were not recognised by the govt. But is that the price which you may necessary ask the minority to pay? ….that the point really, that's the heart of the matter. Post constitution, must we not bring in all rights realisation in a manner consistent with the constitution”According to the CJI, the historic developments like the making of the AMU which happened in the pre-constitutional era needed to be brought into conformity with the Post-Constitution Rights Regime. To which the SG replied, “There are judgements on the preconstitutional era on how you surrender your rights and what are the effects in the post-constitutional regime.” The CJI countered this by emphasizing that surrendering of rights must be read in a very strict context. He said, “ Surrender of rights even in a preconstitutional era should be accepted with the strictest possible construction because you are really stating that in that sense someone otherwise entitled to that right will be surrendering their right”. In the Post-constitution scenario, one doesn't get an option ...

Mere Fact Of AMU Being Established By British Law Doesn't Indicate Surrender Of Minority Status, Says Supreme Court [ Day 5]

Anmol Kaur Bawa

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