The Supreme Court on Wednesday questioned Solicitor-General Tushar Mehta’s submission that the government did not accept the 1981 amendment made by Parliament to the Aligarh Muslim University Act, and said it cannot take such a stand.
The top court said that “irrespective of which government represents the cause of the Union of India, Parliament’s cause is eternal, indivisible and indestructible” and that the government would have to stand by the amendment.
It began with Justice Sanjiv Khanna, who was part of a seven-judge Constitution bench hearing the question of AMU’s minority status, asking Mehta, appearing for the Centre, whether he accepted the 1981 amendment.
Presided by Chief Justice of India DY Chandrachud, the bench also comprises Justices Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma. The court is hearing a reference made to it by a three-judge bench in February 2019.
“This is an amendment by the Parliament. Is the government accepting?” asked Justice Khanna.
“I am not,” the solicitor-general responded.
Expressing surprise, the CJI said, “How can you not accept an amendment by Parliament? Mr Solicitor, Parliament is an eternal indestructible body under the Indian union. Irrespective of which government represents the cause of the Union of India, Parliament’s cause is eternal, indivisible and indestructible.”
He added, “And I can’t hear the Government of India say that an amendment which Parliament made is something I don’t stand by. You have to stand by this amendment. You have an option. Go through the amending route and change the amending Act again.”
The solicitor-general said,“I am not arguing a matter of A versus B. I am before a seven-judge Constitution bench answering constitutional questions. The amendment in question was subjected to challenge before the high court and there is a judgment declaring that it is unconstitutional for ABCD grounds and as a law officer, it is my right as well as my entitlement and duty to say that this view appears to be correct”.
The reference was to the 2006 Allahabad High Court ruling that held the 1981 amendment unconstitutional.
The CJI exclaimed, “This would be radical because a law officer would be then telling us that I don’t abide by what Parliament has done. You have to stand by what Parliament has done. Parliament is undoubtedly supreme in law making function. Parliament can always amend the statute, in which case a law officer can say I have an amended statute now… Can we hear any organ of the Union government say that notwithstanding a Parliamentary amendment, I don’t accept this amendment?”
The solicitor-general said he was supporting the 2006 judgment.
As the CJI reiterated that “Parliament” is an “eternal indivisible and indestructible entity under democracy”, the solicitor-general said he was not disputing that.
The CJI then asked, “How can you say I don’t accept the validity of an amendment?”
The solicitor-general responded, “Would a law officer be expected to say whatever amendments were made in the Constitution during Emergency were true only because they were made by the Parliament?”
“Here I have a judgment of the high court,” he added.
The CJI pointed out that was why “the 44th amendment came in”. “It came only to redress the evils which were perpetrated in the name of a constitution amendment”.
“Who will decide that these are evil being perpetrated?” asked the solicitor-general.
“Obviously you prove my point. The power to decide that is in the elected body, which is Parliament. Parliament can always say what we did during the Emergency was wrong and we are rectifying it…,” the CJI said.
“Not after it has been set aside by the division bench of a high court and therefore is not any more on the statute book,” the solicitor-general added.
“There is an affidavit filed by the government. It is not my stand. It could have been my stand also. But if I cannot argue that this amendment could not have been made, any law officer will have to support the amendments made during Emergency irrespective of whether it is my view or anybody else’s view that this was to remove some anomalies or bad things happening to the citizens of India,” the senior law officer said.
At this point, senior advocate Kapil Sibal, appearing for the AMU Old Boys Association, referred to the then attorney-general defending the Emergency provisions brought in by the Indira Gandhi government. “I was sitting in the court when the Attorney-General Niran De was arguing that what is being done is right. I (Niran De) defend the Emergency provision. Why? Because he could not say otherwise,” Sibal added.
The solicitor-general responded that “the distinction is Niran De was not in a situation where one high court had struck it down and the provision was not on the statute book.”
As Sibal said the Madhya Pradesh High Court had struck it down, the solicitor-general replied that there were other high courts which had upheld it.
The solicitor-general added, “Everyone knows there are two versions. When asked by the court, ‘do we not protect Article 21 if somebody is being hanged or a personal liberty is being deprived’, Niran De’s answer was ‘yes you cannot do it’. It was not to defend the act, it was to instigate the court to act, and this is the position, ‘please interfere’.”
In 1967, the Supreme Court in S Azeez Basha vs Union of India, held that AMU was not entitled to minority status as it “was brought into existence by the central legislature and not by the Muslim minority”.
The minority status was restored by an amendment to the AMU Act in 1981 but this was challenged before the Allahabad High Court, which struck down the changes in January 2006.
AMU and the UPA government appealed against the high court decision. But the NDA government informed the apex court in 2016 that it was withdrawing the appeal filed by the previous government.
Presided by Chief Justice of India DY Chandrachud, the bench also comprises Justices Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma. (File Photo) 
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