The Aligarh Muslim University ( AMU) has filed five appeals in the Supreme Court of India against the impugned judgment dated January 4, 20006. All the appeals are similar running into two volumes each. To the advantage of the AMU, the Union of India has filed an appeal against the Allahabad High Court judgment running into 12 volumes containing almost all important documents from the inception of the Madarsatul Uloom to the establishment of the AMU in 1920. One appeal has been filed by aagainst the Allahabad High Court Judgment and AMU is not a Minority University.
WHO WENT TO ALLAHABAD HIGH COURT AND WHY?:
The University under the Vice Chancellorship of Mr. Nasim Ahmad, reserved 50% seats for Muslim Students in some super- speciality courses in the Jawaharlal Nehru Medical College of the University and elsewhere. The non- Muslim medical students, some internal and some external, filed various writ petitions challenging the said reservation on the ground that in view of the Supreme Court judgment in Azeez Basha and another versus the Union of India and others, ( AIR 1968 SC 662), since the AMU is not a minority institution under Article 30 (1) of the Constitution of India, hence there can’t be any reservation for Muslim candidates and if there is one, the same is illegal and unconstitutional.Hence, the 50% reservation for Muslim candidates be declared void and illegal.
THE STAND OF THE UNIVERSITY:
The stand of the University, inter alia, before the single judge was that the Aligarh Muslim University Amendment ) Act, 1981 passed in the regime of Mrs Indira Gandhi, fully restored the minority character of the AMU and also it overruled the 1967 Azeez Basha judgement delivered by a constitution Bench of the Supreme Court.
ISSUES FRAMED BY THE HIGH COURT
The High Court framed four issues: “(1) whether the judgment and order of the Hon’ble Supreme Court in the case of Azeez Basha, AIR 1968 SC 662 is no more a good law in view of the change effected in the statutory provisions vide amending Act 62 of 1981? Whether the provisions of Act 62 of 1981 especially Section 2 (1) and Section 5 (2) (C) are retrospective in nature and have the effect of declaring the Aligarh Muslim University as a minority institution within the meaning of Articles 30 of the Constitution ? (2) whether the amended section 2 (L) and 5 (2) ( C) are within the legislative competence of the Parliament and whether the said amendments are a brazen attempt to overrule the judgment of the Hon’ble Supreme Court in the case of Azeez Basha ( supra) ? (3) whether the reservation of the entire 50% seats from Muslims required to be filled on the basis of entrance examinations to be conducted by the Aligarh Muslim University from internal as well as external candidates is arbitrary and violative of Article 14 and Article 29 (2) of the Constitution of India, and (4) whether the petitioners have any locus to maintain the present Writ Petitions and whether the petitions have become infructuous in view of the subsequent development?
THE JUDGEMENT OF THE SINGLE JUDGE:
The learned single judge held : (i) the Parliament has no power to amend as was done in 1981 whereby
previous amendments ( 1951 and 1965 ) are rendered nugatory. “In the opinion of the Court, the power to
amend statutory provisions cannot be extended to such an extent as to create a situation whereby legislative
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Act, declared constitutionally valid could be rendered unconstitutional by subsequent legislative
enactment”, (ii) the 1981 Act does not substantially change the basis of the Azeez Basha judgment,. In the
words of the court,” the declaration under Section 2 (I) is on the face of it an attempt to negate the
judgment of the Hon’ble Supreme Court especially when such declaration has been made without altering
the foundation/ basis on which the judgment in the case of Azeez Basha was based; (iii) the word
‘established’ in Section 2(I) may be read with reference to the Mohammandan Anglo Oriental College
only, which was established by Muslims; and (v) fundamental rights including the right under Article 30 are
available to the natural persons only and not to the juristic persons like the AMU, hence it cannot reserve
seats for itself.
THE JUDGMENT OF THE DIVISION BENCH;
The AMU challenged the Judgment of the Single Judge which was decided by a division Bench.The
Division Bench went a step further and quashed the AMU (Amendment Act, 1981 holding it
unconstitutional and beyond the competence of the Parliament. The result of this judgment was that the
AMU no longer remained a minority institution. The present position is that there are three judgments
against the AMU, the Azeez Basha judgment and the two High Court judgments .( it will not be out of
place to mention here that I had given a an unsolicited written opinion to the then V.C not to appeal against
the Single judge judgment in the High Court as the atmosphere in the Allahabad High Court was not
congenial , rather appeal directly to the Supreme Court against the Single Judge judgment . But on the
opinion of a former Chief Justice, the University filed appeal in the Division Bench of the Same High
Court. Had my advice been acted upon, the dangerous adverse judgment of the Division Bench could have
been avoided.
THE HISTORY OF AMU (AMENDMENT ) ACT,1981
Realising its own flawed stand that it had established the AMU, the Central Government, under the
Primeministership of Mrs. Indira Gandhi, amended the 1920 Act so as to restore the minority status of the
University : (i) The word ‘establish ‘was deleted from the title of the Act; (ii) Section 2 (L) was added
defining the University as ‘the educational institution of their choice established by the Muslims of
India, which originated as the Mohammadan Anglo-Oriental College, Aligarh and which was
subsequently incorporated as the Aligarh Muslim University.” (iii) a new sub-section 5 (2) (C) was
added to the powers of the University which said,” to promote especially the educational and cultural
advancement of the Muslims of India” and (iv) the University Court was restored with all its
previous powers. This amendment, though without a non obstante clause, changed the very basis of the
Azeez Basha Judgment.
CRUX OF THE ISSUE:
The crux of the issue is whether the AMU ( Amendment ) Act,1981 saying that the AMU is a minority
institution established by the Muslims of India holds the field or the 1967 Azeez Basha judgment to the
effect that the AMU is not a minority educational institution as it was not established by the Indian
Muslims, rather, it was brought into existence by the British Parliament through the AMU Act, 1920 holds
the field today qua the AMU.
THE AZEEZ BASHA JUDGEMENT:
As will be clear hereinafter, the amendment in the AMU Act, in 1951 and in 1965 virtually took away the
management and administration of the AMU from the hands of the Muslims which prompted some well
wishers of the AMU to approach the Supreme Court to challenge the vires of 1951 and 1961 amendments.
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After the establishment of the University in 1920, the Muslims were de facto and de jure administering it.
Section 23 ( 1) of the Act provided for a University Court which was the supreme governing body. The
proviso to Section 23 ( 1) stressed that “no person other than a Muslim shall be a member thereof,” the
reference being to the University Court. By using the word “shall, “the proviso left no doubt that none
else than a Muslim could be a member of the Court which was unequivocally declared to be the supreme
governing body of the University. The Legislature in 1920 was so much concerned about the nature and
establishment of the University that it declared in the annexure to the Act the names of the Founding
Members of the University Court numbering 124 who were all Muslims. The trouble started with the
amending Act of 1951 which, though, made some routine amendments on account of coming into force of
the Constitution, but some amendments were of far reaching consequences. The most substantial change
was that the proviso to Section 23 ( I) which required that all the members of the University Court would
only be Muslims was deleted. This amendment was not challenged, reason might be that there was
practically no substantial change in the administrative set-up. The trouble reached its zenith when in 1965
some more drastic changes were made in the 1920 Act. The main amendment in the 1965 Act was in
Section 23 of the 1920 Act with respect to the composition and the powers of the University Court. Sub-
Sections ( 2) and (3) of Section 23 of the 1920 Act were deleted with the result that the Court no longer
remained the Supreme governing body and could no longer exercise the powers conferred on it by sub-
sections (2) and (3) of Section 23. In place of these two sub- sections, a new sub section (2) was put in,
which reduced the functions of the Court to three only, namely,”(a) to advise the Visitor in respect of any
matter which may be referred to the Court for advice; (b) to advise any other authority of the University in
respect of any matter which may be referred to the Court for advice, and ( c) to perform such other duties
and exercise such other powers as may be assigned to it by the Visitor or under this Act.” By further
amendments of Sections 28,29,34 and 38, the powers of the Executive Council were correspondingly
increased. The Statutes were also amended and many of the powers of the Court were transferred to the
Executive Council. Further, the constitution of the Court was drastically changed by the amendment of the
8th Statute, and it practically became a body nominated by the Visitor except the Chancellor, the Pro-
chancellor and the members of the Executive Council who were ex-officio members and three Members
of Parliament, two to be nominated by the Speaker of the House of the People and one by the Chairman of
the Council of States. Drastic changes were also made in constitution of the Executive Council. Finally, the
1965 Act provided that, “every person holding office as a member of the Court or the Executive Council, as
the case may be, immediately before the 20th day of May, 1965 ( on which date Ordinance No.II of 1965
was promulgated) shall on and from the said date cease to hold office as such”. It was also provided that
until the Court or the Executive Council was reconstituted, the Visitor may by special or general order
direct any officer of the University to exercise the powers and perform the duties conferred or imposed by
or under the 1920 Act as amended by the 1965 Act on the Court or the Executive Council as the case may
be. The contention of S. Azeez Basha and other petitioners was that by these drastic amendments
brought about by the 1951 Act and the 1965 Act, the Muslim minority was deprived of the right to
administer the AMU and that this deprivation was in violation of Article 30 (1) of the Constitution,
hence ultra vires the same.
IS PRESENTLY THE AMU A MINORITY INSTITUTION?;
In view of the Allahabad High Court judgment, the AMU is not a minority educational institution. But the
Supreme Court, while admitting the special leave petitions filed by the AMU and on its undertaking that it
will not implement the 50% reservation, stayed the operation of the High Court Judgment, Hence, the
AMU is at present a minority institution. The order dated 24-4-2006 passed by Hon’ble Mr. Justice K.G
Balakrishnan, Hon’ble Mr. Justice D.K Jain is as follows”
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“Delay condoned. Permission to file lengthy list of dates is granted.
Leave granted. Mr. K.V Vishwanathan, learned counsel
Appearance and is granted four weeks time to file counter affidavit.
Learned counsel for the appellant-University undertakes
that they will not implement 50% quota reservation for
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 question raised in these
appeals are of general importance. It is desirable that the matter be
considered by a large Bench. Office shall place the matters
before Hon’ble the Chief Justice of India for further directions.”
for respondent no.1 entered.
A GOLDEN OPPORTUNITY LOST:
The stage was set for the victory of this case in 2010. Reasons can’t be given here. But, the
University Advocate did not appear on 25-3-10. when the case was called for hearing. The order dated
25-3-2010 passed by Hon’ble Chief Justice K.G Balakrishnan and Hon’ble Justice Panchal and Hon’ble Justice
Chauhan is as under.
“ITEMS NO.103 COURT NO.1 SECTION XI
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s).2286 OF 2006
ALIGARH MUSLIM UNIVERSITY Appellant(s)
VERSUS
NARESH
(With appls(s) for impleadment and prayer for interim relief)
NARESH AGARWAL &ORS.
(With prayer for interim relief and office report)
Civil Appeal No.2317 of 2006
Civil Appeal No.2318 of 2006
Civil Appeal No.2319 of 2006
Civil Appeal No.2320 of 2006
Civil Appeal No.2321 of 2006
(With prayer for interim relief and office report)
(With office report)
Date:25/03/2010 These Appeals were called on for hearing today.
CORAM:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE J.M. PANCHAL
HON’BLE DR. JUSTICE B.S CHAUHAN
For Appellant(s) Mr. Ejaz Maqbool, Adv. (Not Present)
Mr. Mohan Pandey, Adv.(Not Present)
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For Respondent(s) Mr. R.C Kohli, Adv,(Not Present)
Ms. Sadhna Sandhu, Adv.
Ms.Rashmi Malhotra, Adv.
For Mr. D.S. Mahra, Adv
For Ms.Sushma Suri, Adv
Mr. Abhinav Mukerji, Adv.
Ms. Garima Prashad, Adv.(Not .Present)
UPON hearing counsel the Court made the following
ORDER
Adjourned to August,2010
(G.V. Ramana) (Vijay Dhawan)
Court Master Asst. Registrar”
A NEW RISK FACTOR:
The stand of the Union Govt is very important in this case. Remember in 1967, it was the stand of
Central Govt that the AMU was not established by the Muslims of India but was brought into
existence by a parliamentary enactment. The Union Govt in 1981 passed the AMU ( Amendment)
Act, 1981 saying that it was established by the Muslims of India. It also revived the University Court
with its full powers. In 2006, the UPA-II filed an appeal against the Allahabad High Court Judgment.
Now, the question to ponder is: what will be the stand and attitude of the present Narendra Modi led
Central Govt?
WHAT SHOULD BE OUR STAND IN THE S.C?:
The two main fundings returned by the High Court against the AMU are (1) The Parliament had no
Legislative competence to enact the AMU Amendment Act, 1981 thereby rendering the Azeez Basha
Judgment non otiose , and (2) The 1981 Amendment does not change the basis of the S.C judgment.
It may be mentioned here that the S.C has held in many judgments that the Parliament cannot overrule/
annual a S.C Judgment & normally as that would amount to parliament working as an appellate court
over the Supreme Court Which is not allowed under any by the Construction but the Parliament can do so
by changing the basis of the Judgment).
Strange are the ways of Judgments. The Azeez Basha Judgment deprived the AMU of its minority
character it proved to be a lane but it became a boon for the Jamia Millia Islamia minority status
Case before the National Commission for the minority Educational Institution Commission.
Likewise, Some help can be taken from the Azeez Basha Judgment to rebut the H.C holding that
Parliament had not legislation competence to enact the 1981 Amendment Act rendering the Azeez
Basha Judgment in effective. While defending the Parliament in enacting the AMU ( Amendment)
Act,1951 and similar Act in 1965, the Supreme Court said in the Azeez Basha judgment: The Supreme
Court, in the Azeez Basha judgment itself and in many other subsequent judgments, has recognized the
legislative power of the Parliament in respect of Entry 63, Schedule vii ( Union List) of the Constitution
which refers to the BHU, the AMU and the DU). Defending the 1951 and 1965 Acts, the Supreme Court
said “each university has problems of its own and it seems to us that it is for the legislature to decide
what kind of constitution should be conferred on a particular university established by it. We have
already said that we are not concerned with the policy of the legislature in enacting the 1965 Act;
nor are we concerned with the merits of the provisions of the 1965 Act.”
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In the AMU’s Present case pending in the Supreme Court, the prestige and honour of the Central
Govt/ Parliament/ Legislature is involved. The Govt was always like to retain its power. The Advocate of
the AMU may argue that the Parliament was Legislative competent to enact the AMU Act, 1920. It was
equally competent to pass the 1951 and 1965 Amendment Acts as reorganized by the S.C in the Azeez
Basha judgment. Thus, it was equally competent to enact the 1981 Act restoring the minority character of
the AMU. This way the Present Govt to may support us because we are reiterating its Legislative power
in view of Entry 63, Schedule VIII ( Union List) Where AMU finds a mention.
THE BASIS OF THE JUDGMENT CHANGED:
The basis of the Azeez Basha judgment is the unusual meaning given to the word” establish.”
According to the Supreme Court, ‘establish’ mean to bring into existing a new institution.
On this interpretation, the S.C says that the MAO College was established by this Indian
Muslims but the AMU was brought into existence not by Muslims of India but by a Parliamentary
Enactment, viz.,AMU Act, 1920. This basis has been changed by the definition of the University
( Section 2 (1) as” the educational institution of their choice established by the Minority of India,
Which originated as the MAO College, Aligarh and which was subsequently incorporated as the
AMU”.
WHAT SHOULD BE DONE NOW?
The Govt may not harm but the communal bureaucrats may. The case may be listed for hearing
anytime and in any case it will be heard by the Supreme Court during the present political dispensation
at the Centre. It is for the community leaders and the Vice Chancellor, AMU to ponder over and take
some safety measures in advance to avoid a panic like situation when the cases comes on board for
hearing in the Supreme Court.
MUSHTAQ AHMAD (ALIG)Advocate on Record, Supreme Court of India
MUSHTAQ AHMAD (ALIG)
& Acting Secretary, IICC
Cell: 9871774451
Email:mushtaqahmadsupremecourt@hotmail.com
Advocate on Record, Supreme Court of India
Email:mushtaqahmadsupremecourt@hotmail.com