The educational status of Muslims in India is even worse than Scheduled Castes and it can only get better if they are equipped with education, Senior Advocate Kapil Sibal maintained before the Supreme Court while arguing in favour of the minority status of the Aligarh Muslim University (AMU) on behalf of AMU Old Boys Association.
Sibal’s arguments happened on Wednesday, the second day of the hearing in a case related to AMU’s minority status before the Supreme Court’s seven-judge constitutional bench.
“What is there in this Article (Article 30, dealing with the 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 the only way to empower ourselves is through education most of the popular courses do not have many minorities and only the majority. This is because they are not empowered,” Sibal said.
Sibal further maintained that he was arguing to protect the diversity of the constitutional ethos of the country and requested the court “please do not allow this to be destroyed.”
As per the Basha case (1968) the court said “AMU was neither established nor administered by the Muslim minority”, implying that the constitutional protection granted to minority institutions under Article 30 in India doesn’t extend to the university and hence it was held to be central university by the Supreme Court.
The minority status of the varsity was later reinstated in 1981, after making the amendments in the AMU Act (1920).
In 2005, much after the 1981 Amendment, the Allahabad High Court again declared that AMU is not a minority institution within Article 30 and the 1981 Amendment was declared invalid.
In February 2019, the Supreme Court stated that the accuracy of the Azeez Basha case remains undetermined and needs to be explored forwarding the case to a seven-judge bench.
During yesterday’s hearing, the seven-judge bench maintained that “an educational institute is not barred from enjoying minority status” because it is regulated by a statute.
Today the Court established that an institution without recognition is similar to a shell.
CJI stated, “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.. etc… it goes to the founding moment. Without recognition, you will only be a shell. Establishment takes you to the moment of the past. Administering is the continuing factor. We have to see whether the governing body of AMU is mostly of minority members.”
Senior Advocate Rajeev Dhavan, arguing on behalf of AMU submitted that the AMU’s governing body did consist mostly of Muslims and that they will show it.
Dhawan further argued, “Our submission is that Azeez Basha’s judgement is dead and buried now because of the internal contradictions and because of the next decisions thereafter.”
Further, he reiterated that the Azeez Basha is contradictory since it says a university can be a minority institution but then when there is intervention of statute you lose the right. All judgments cited goes against this.. Azeez Basha also did not look at the whole act or purpose of the act.. so the purpose of the act is clearly, as an Allahabad bench put it, was green. So A Basha looks at antecedent history and ignores it.
“A non-minority institution cannot say that it will admit only certain students. But this admission criteria has been granted only to minority institutions,” the CJI then stated.
To which Dhawan responded saying that secularism is part of the basic structure of the Indian Constitution.
After Dhawan rested his case, Advocate Kapil Sibal continued by explaining the genesis of the institution and the impact of AMU as a minority institution.
“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 have to be met with. I must comply with the student-teacher ratio, my courses have to comply with that of the University.”
Further Sibal also argued that Azeez Basha’s decision took a very narrow path of the law and ignored the law.
The further hearing of the case will commence the next day.