Muslims in India are worse off than Scheduled Castes in terms of education and they can only be empowered through education, Senior Advocate Kapil Sibal argued on Wednesday before the Supreme Court while defending the minority status of the Aligarh Muslim University (AMU) [Aligarh Muslim University Through its Registrar Faizan Mustafa v Naresh Agarwal and ors].
Muslims are not empowered in India, the senior counsel submitted before the Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjeev Khanna, Surya Kant, JB Pardiwala, Dipankar Dutta, Hands Misra and Satish Chandra Sharma.
“What is there in this Article (Article 30, dealing with rights of minorities to establish and administer educational institutions) is only some reservation and now they are supposed to be denied that also! If my administration is unduly interfered with then of course courts can be approached. Let us be clear on this – Muslims are below even scheduled castes in terms of education. These are facts. We are not empowered enough and only way to empower ourselves is through education and most of the popular courses does not have much minority and only majority. This is because they are not empowered,” Sibal stated.
Wednesday marked the second day of hearing in a batch of petitions concerning the minority status of the AMU.
Sibal is appearing for the AMU Old Boys (Alumni) Association in the matter.
The questions of law involved in the case concerns the parameters for granting an educational institution minority status under Article 30and whether a centrally-funded university established by parliamentary statute can be designated a minority institution.
The matter was referred to a seven-judge in February 2019 by a bench led by then CJI Ranjan Gogoi.
AMU was held to be a Central University by the Supreme Court in the 1968 case of S Azeez Basha vs Union of India. In the said case, the Court also held that a minority status under Articles 29 and 30 of the Indian Constitution cannot be conferred on a Central University.
However, the minority status of the institute was later reinstated by bringing in an amendment to the AMU Act.
This was challenged before the Allahabad High Court, which set aside the move as being unconstitutional, leading to the instant appeals by AMU before the Supreme Court.
Notably, in 2016, the Central government withdrew its appeal in the matter.
Final hearings in the matter began yesterday, when the seven-judge bench observed that an educational institute is not barred from enjoying minority status merely because it is regulated by a statute.
The CJI, at the outset, remarked that without recognition, a minority institute is akin to a shell.
“There may be a number of reasons needed for administering the institute, but it cannot go to the establishment of the institute. The establishment may be existent on the lease of land. It goes to the founding moment. Without recognition you will only be a shell. Establishment takes you to the moment of the past. Administer is the continuing factor. We have to see whether the governing body of AMU is mostly of minority members,” the CJI observed.
Senior Advocate Rajeev Dhawanappearing for the petitioners, responded by submitting that the AMU governing body did consist mostly of Muslims.
Further, he reiterated that the Azeez Basha decision no longer stands.
“A non-minority institution cannot say that I will admit only certain students. But this admission criteria has been granted only to minority institutions,” the CJI then stated.
Dhavan, in turn, stressed that secularism is part of the basic structure of the Indian Constitution.
Meanwhile, Justice Khanna asked whether the decision in Azeez Basha meant that for an institute to be protected under Article 30, it must be run as a charity, to which Dhavan replied in the affirmative.
“A eleven-judge bench said so. Who am I to say something different now?” the senior counsel remarked.
“Azeez Basha also did not look at the whole Act or purpose of the Act. So the purpose of the Act is clearly, as the Allahabad bench put it, green. So Basha looks at antecedent history and ignores it,” Dhawan added.
Justice Khanna then remarked that there is a distinction between amending a statue to take away the basis of a judgment and overruling the judgment itself.
After Dhavan concluded his submissions, Sibal began his arguments.
He said that when the Constitution was framed, education was a State subject.
Speaking on the origins and impact of the AMU as a minority institution, Sibal went on to submit:
“The genesis (of AMU) is a movement within the Muslim community to bring a change among themselves … I was in Riyadh. All doctors are from the AMU serving the royalty, I was in Doha. Most of the CAs are from AMU. They said they do not get jobs in India and would love to come back. And most are Muslims! What is the right that a minority has today? All compliances has to be met with. I must comply with student teacher ratio, my courses have to be in compliance with that of University.”
The senior counsel added that he is arguing in respect of the diversity of the constitutional ethos of the country, which cannot be allowed to be destroyed (by not recognising minority educational institutes).
“Legal establishment has to be in terms of the law,” Justice Khanna remarked.
Sibal agreed and stressed that the Azeez Basha decision ignored the law.
The hearing will continue on Thursday.
