How does it matter for people whether the Aligarh Muslim University is a minority institution or not when it has continued to be an institute of national importance without the minority tag, the Supreme Court said on Thursday as it underlined that the intent of Article 30 of the Constitution is not to "ghettoise the minority".
Article 30 deals with the right of minorities to establish and administer educational institutions.
Grappling with the hotly debated issue of minority status of AMU, the apex court also deliberated upon what would be the impact on the 2006 Allahabad high court verdict striking down the provision of the 1981 amendment Act by which the university was accorded the minority status, if the bench were to hold that S Azeez Basha versus Union of India case was wrongly decided.
A five-judge Constitution bench of the top court had, in the S Azeez Basha versus Union of India case in 1967, held that since AMU was a central university, it cannot be considered a minority institution.
"Without the minority tag, the institution has continued to be an institution of national importance. How does it matter for the people whether it is a minority institution or not? It is only the brand name, AMU," observed the bench, also comprising Justices Sanjiv Khanna, Surya Kant, J B Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma.
Advocate Shadan Farasat, appearing for one of the petitioners favouring minority status of AMU, said until the Basha judgment came, the varsity was considered as a minority institution.
"Basha (judgment) came. 1981 amendment sought to undo it. Thereafter, it has been litigated through and there has always been a stay, except from the reservation aspect," he said. A minority institution has the liberty of not granting quotas for Scheduled Caste, Scheduled Tribe, and OBC candidates.
The Centre, in a recent submission before the Supreme Court, had said minority educational institutions are not required to implement the reservation policy under Section 3 of the Central Educational Institute (Reservation in Admission) Act, 2006 (as amended in 2012).
"So, really speaking, today, because of the operation of the status quo order of your lordships on the 1981 amendment, it continues to be a minority institution," Farasat argued, adding that if the apex court upholds the judgment delivered in Basha case, AMU will become a non-minority institution for the first time.
While hearing some pleas challenging the high court's 2006 verdict, the apex court had in its order noted that the counsel for AMU undertakes that they will not implement 50 per cent reservation for Muslims in admission.
"As regards all other matters regarding appellant institution, status quo will be maintained from the filing of the writ petition before the high court," the apex court had said in its April 2006 order which Farasat referred to.
During the hearing on the vexed question for the third day on Thursday, Farasat said when it comes to women's education, the existence of minority status of AMU is very relevant and, if AMU ceases to be a Muslim minority institution, it may hamper the higher education of Muslim women.
"Muslim women are studying everywhere. Let's not belittle them," Solicitor General Tushar Mehta said.
Farasat said AMU's minority status and women’s education have gone together and have fostered education, particularly among Muslim women.
"The fact that I am a successful minority institution can't be the basis for making me move out of the minority status," he contended.
He said a minority institution can be an institute of national importance and it is not as if only the majority can establish institutes of national importance.
During the day-long arguments, the CJI observed, "The object of Article 30 (of the Constitution) is not to, if I may use the expression and don't take it otherwise, is not to ghettoise the minority".
He said Article 30 does not mandate that the administration must only be in the hands of the minority community "in a sense that the personnel who administer are not required by Article 30 to belong to the minority".
What Article 30 contemplates and recognises is the right, namely the right of choice, the discretion which is given to the minority to administer in a manner which they deem appropriate, Justice Chandrachud observed.
"Therefore, it is not that if you don't have only people of your community, you risk losing your minority character. Because the choice is yours," the CJI said.
The court had on Wednesday wondered why AMU was considered having a minority character when there were only 37 Muslim members in the 180-member governing council.
Senior advocate Kapil Sibal, appearing for one of the parties, said in a university, there are several departments which are run and it is the varsity's choice to also get non-minority people for it.
"That does not destroy my character as an institution," he said, adding that a minority community may not have the expertise to run many of these institutions and has to take people from outside.
"The inspiration to set up an institution is that of the minority (community). The steps taken to set up the institution is of the minority. The persuasion done by the institution to the government and the authorities is by the minority," Sibal argued.
Deliberating on the impact if the apex court were to hold that Basha case was wrongly decided, Justice Chandrachud said the high court had set aside the 1981 amendment Act on the ground of Basha.
"Now the fact of the matter is that if we come to the conclusion that Basha was wrongly decided, the immediate impact of that would be that denial of minority status to AMU was wrong," the CJI said, adding that its decision on the validity of Basha judgment would impact not just the amendment but also the high court verdict.
The arguments in the matter remained inconclusive and would continue on January 23.
