AMU minority status: Education is very important source of cultural power, says SC

New Delhi: The Supreme Court observed on Wednesday education is a very important source of cultural power and it cannot be said that a pre-Constitution institution is not entitled to claim right under Article 30 of the Constitution.
Article 30 deals with the right of religious and linguistic minorities to establish and administer educational institutions.
A seven-judge constitution bench headed by Chief Justice D Y Chandrachud is hearing arguments on the vexed question of the minority status of Aligarh Muslim University (AMU).
The bench observed any institution which fulfils the requirements of Article 30 is entitled to claim the right irrespective of whether it has been established prior to the adoption of the Constitution or after that.
“We cannot say that a pre-Constitution institution is not entitled to claim the right under Article 30 of the Constitution. Obviously they are, so long as they satisfy two yards (yardsticks) namely, established by a minority and two, being administered by a minority,” the CJI told Solicitor General Tushar Mehta, who was arguing for the Centre.
Mehta urged the bench to not read the AMU Act, 1920 in the context of Article 30.
“Please do not read the 1920 Act in the context of Article 30. It is at a period of time in history where Article 30 was not there. The Indian Constitution was not there. There was no concept of minority, there was no concept of fundamental rights…,” he argued during the fifth-day of hearing in the matter.
“Really speaking, what your contention boils down to is this, that this is not a denominational institution when the university is established in 1920. Therefore, the subsequent development namely the adoption of the Constitution on January 26, 1950 cannot confer upon it a denominational character for the reason that you had surrendered that denominational character. That is your submission,” the CJI told Mehta.
The bench, also comprising Justices Sanjiv Khanna, Surya Kant, J B Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma, observed that one has to also understand that it (1920) was a period when absolute control vested in the imperial power (the British).
The CJI observed the British government did not want any one institution in India to become so powerful so as to affect the imperial dominion’s power.
“All the regulatory statutes were intended to provide one overarching objective and that objective was nothing should be done to destroy the hegemony of the imperial government and the colonial power,” he said.
“Education is a very important source of cultural power and we have seen it pre-independence and we have seen it post-independence,” Justice Chandrachud said.
The CJI said the law is not that one can claim the right under Article 30 only if and institution has been established after 1950.
During the hearing, the bench also asked whether non-Muslims were appointed as vice-chancellor or pro-vice chancellor of AMU since 1920.
Mehta said he is being told that four non-Muslims were appointed.
“Why is it that before the advent of the Constitution and post the Constitution, the predominant choice of chancellors by successive governments have been Muslim. That is certainly one factor that has to be borne in mind,” the bench observed.
Mehta said, “Can by government appointing a particular community, though the law does not require it to do, change the character of that university?” As the hearing commenced on Wednesday, the solicitor general said it emerges from the record that both the AMU and BHU (Banaras Hindu University) were getting Rs 1 lakh each per year at that time from the then British government.
“As on date, AMU gets Rs 1,500 crore per year. They also may have some self generation of fees etc…some 30-40 crores,” he said.
He said even today the AMU is not administered by the predominant minority community.
“The argument which was made on the other side was this that you can establish institution of your choice and you have a constitutional discretion to administer it. But if you give that discretion, exercise that discretion by giving administration to others… that did not detract your position under Article 30,” the CJI observed.
The arguments remained inconclusive and would resume on January 30.
Earlier this month, the Centre had told the apex court that AMU cannot be a minority institution given its “national character”.
In his written submissions filed before the apex court, Mehta had said the university has always been an institution of national importance, even in the pre-independence era.
AMU’s minority status has been caught in a legal tangle for the last several decades.
The top court had on February 12, 2019 referred to a seven-judge bench the hugely contentious issue for adjudication. A similar reference was made earlier.
A five-judge constitution bench had in the S Azeez Basha versus Union of India case in 1967 held that since Aligarh Muslim University was a central university, it cannot be considered a minority institution.
However, it got back its minority status when Parliament passed the AMU (Amendment) Act in 1981.
In January 2006, the Allahabad High Court struck down the provision of the 1981 law by which the university was accorded a minority status.
The Congress-led UPA government at the Centre moved in appeal against the high court order. The university also filed a separate petition against it.
The NDA government spearheaded by the BJP told the Supreme Court in 2016 that it will withdraw the appeal filed by the erstwhile UPA dispensation.

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