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Govt tells SC: AMU is of national character ought to maintain its secular character


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New Delhi: The Aligarh Muslim University (AMU) is an institution of “national character” that ought to maintain its secular origins and serve the larger interest of the nation first, the government told the Seven Judge bench hearing on the issue of retaining minority institution status of Aligarh Muslim University.

The Centre maintained that AMU, like the Banaras Hindu University, is an institution of national character, adding that no such university can be a minority institution.

The hearing started on Tuesday before a seven-judge Constitutional Bench of the Supreme Court of India on a batch of petitions on the issue of retaining the minority institution status of Aligarh Muslim University.

The seven-judge bench headed by Chief Justice D Y Chandrachud will decide on the question of whether an educational institution created by a parliamentary statute enjoys minority status under Article 30 of the Constitution.

Other members of the bench are Justice Sanjiv Khanna, Justice Surya Kant, Justice JB Pardiwala, Justice Dipankar Datta, Justice Manoj Misra, and Justice KV Vishwanathan.

“Owing to the secular ethos and nature of the nation and the Constitution, because AMU is an institution of educational ‘national character’, it cannot be considered to be a minority institution irrespective of the question whether it was established and administered by the minority at the time of inception or not,” Solicitor General Tushar Mehta said in written submissions, adding that no other institution declared to be of national importance by Parliament is a minority institution.

“AMU is not and cannot be a university of any particular religion or religious denomination as any other university, which is declared by the Constitution of India to be of national importance,” he added.

The ASG said that the grant of minority status would make it open for AMU to provide for reservations, even among teachers, of up to 50% or more to Muslims, while it would continue not to provide for reservations for SCs, STs, OBCs, and EWS.

Mehta stated that legally, an institution must be both “established” and “administered” by a minority group to come under the ambit of Article 30, and since the Basha judgment rendered a finding following a factual determination that AMU was predominantly a non-minority institution, it was not open for Parliament to change those findings of fact by way of amendments in 1981.

The seven-judge bench is expected to lay down parameters for granting minority status to an educational institution under Article 30 of the Constitution and also decide whether an educational institution created under a parliamentary statute can be given such status, effectively re-looking at the Basha verdict.

On Tuesday, AMU, through senior advocate Rajeev Dhavan, argued that private and minority institutions are the heart and soul of India’s education system and that the Basha judgment requires a reconsideration for ignoring several key aspects of the law as well as the purpose of having such institutions.

The five-judge bench ruling in the Azeez Basha case in 1967 was that the Supreme Court ruled against the minority status of AMU, noting that the university was neither established nor administered by a Muslim minority and holding that it cannot enjoy protection for minorities to administer educational institutions under Article 30(1) of the Constitution.

The central government had sought to overturn the top court’s 1967 Basha order by passing amendments to the AMU Act in 1981. The Allahabad High Court, however, junked these amendments in 2006, leading AMU and the then UPA government to challenge them before the Supreme Court.

Later, in 2016, the National Democratic Alliance government withdrew from the appeal, contending that it did not acknowledge the minority status of the University.

In 2019, the issue was referred to a larger bench to define the parameters for the grant of minority status to educational institutions. If declared a minority institution, AMU need not reserve seats for Scheduled Castes, Scheduled Tribes, other backward classes (OBC), and economically weaker sections (EWS).

During the arguments on Tuesday, the bench remarked that administration of a minority institution under Article 30 cannot mean “absolute” or “100% administration,” and therefore, merely because the right to administer is regulated by a statute to a certain extent, it does not detract from the minority character of an institution.

In 2005, AMU reserved 50% of seats in postgraduate medical courses for Muslim candidates by claiming it to be a minority institution. This was set aside by the Allahabad High Court. A year later, in 2006, the Union government and AMU challenged the High Court’s decision before the Supreme Court.

The court will continue hearing the case on Wednesday.

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