The Centre on Tuesday told the Supreme Court that an institution like Aligarh Muslim University (AMU) which is recognised as an institution of national importance by the Constitution “must reflect the national structure”. Solicitor General Tushar Mehta, appearing for the Centre, told a CJI D Y Chandrachud-led seven-judge Constitution bench that is hearing a reference on AMU’s minority status that declaring it to be a minority institution would mean no reservation for those belonging to Scheduled Caste (SC), Scheduled Tribe (ST), and Socially and Educationally Backward Class (SEBC). He said that the court therefore “would also examine (the issue) from the point of view of social justice and equality”. The bench also comprised Justices Sanjiv Khanna, Surya Kant, J B Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma. The CJI pointed out that the provision exempting minority educational institutions from the application of reservation to SC, ST and SEBC was provided by the 93rd amendment to the Constitution. Mehta responded that “I’m only saying the test (to decide if it’s minority or not) would be very rigorous” and “social justice would be a very determining factor in deciding this”. The law officer said that petitions were filed in the Allahabad High Court in the wake of the 93rd amendment and sought a declaration that AMU is not a minority institution. He pointed out that “even without reservation approximately 70-80% of students (in AMU) are Muslims”. Senior Advocate Rakesh Dwivedi, who appeared for some parties opposing AMU’s claim to minority status, said Article 30 rights, which deals with the right of religious and linguistic minorities to establish and administer educational institutions, cannot be stretched back in time so much as to confer minority rights on groups before the Constitution came into existence without first determining whether such group was a minority at that point in time. Dwivedi referred to the 1967 decision of a five-judge SC Constitution bench in the case ‘S Azeez Basha vs Union of India’ in wherein it was held that AMU was not entitled to minority education status as it “was neither established nor administered by the Muslim minority” and said the SC, however, proceeded in the case on a wrong assumption that Muslims were a minority in 1920 when AMU was established. To a query from the CJI whether the minority rights would not continue to operate upon the coming into being of the Constitution, Dwivedi said only those rights which existed would continue. The arguments remained inconclusive and will continue on Wednesday.
