How would lack of minority tag hamper Muslim women’s education: SC to AMU

In 1967, the Supreme Court in the case S. Azeez Basha vs Union of India, had held that AMU was not entitled to minority educational institution status as it “was neither established nor administered by the Muslim minority”. The SC held that the university was brought into existence by the Central legislature and “not by the Muslim minority”. In the current reference, AMU and others have taken the stand that the bench should examine whether Basha judgment was correctly decided or not.

Justice Datta made the remarks as advocate Shadan Farasat — appearing for the Haji Muqeet Ali through his legal representative R Mustafa Muqeet, part of the local Muslim community at Aligarh — referred to the contribution of AMU towards Muslim women education and expressed apprehension that the lack of minority tag may adversely affect this.

“This university has served a very important purpose of creating an educated Muslim middle class… Education of Muslims and AMU go hand in hand… Students from Bengal, Kerala, Karnataka from Muslim families send their children only to AMU. Today there are exceptional universities all over the country… but the composition of AMU is from all over India, because of its minority status. Because that minority identity is relevant to a minority. That’s why we have Article 30 (which deals with the rights of minorities to establish and administer educational institutions). And this is especially true for women students because the burden of bearing the cultural markers of identity, be it a majority or be it a minority, always comes on the women. When it comes to girl education, the existence of the minority status of AMU is very relevant, it’s a very important consideration in families sending their women to this institution… If the institution ceases to be a Muslim minority institution, it may very well hamper the higher education of Muslim women in India”, Farasat told the bench presided by Chief Justice of India D Y Chandrachud.

Responding to Justice Datta’s remarks, Farasat said that till the Basha judgment, AMU was considered to be a minority institution and that due to the operation of a 2006 status quo order, it has continued to be a minority institution.

The bench, also comprising Justices Sanjiv Khanna, Surya Kant, J B Pardiwala, Manoj Misra and Satish Chandra Sharma, is hearing the reference made to it by a three-judge bench in February 2019. The bench will resume hearing the matter on January 23.

During Thursday’s hearing, the CJI reiterated that a minority institution will not lose its rights under Article 30 merely because it has people from other communities too in its administration.

“If you apply the expression administer in a very strict sense, namely that there should be no outsider at all, or excluding on the ground that there are only 37 (minority community members) out of 180 (members in the administration), a minority can never run a university… The object of Article 30, if I may use the expression and don’t take it otherwise, is not to ghettoise the minorities. So if you get other people also associated in the administration, it doesn’t detract from your character as a minority institution,” the CJI observed.

The CJI also pointed out that the AMU statute itself mandates that “you have to induct into the AMU court a large number of people who are not minority” and wondered if it would affect the minority status claim.

Senior advocate Kapil Sibal denied that it will affect the claim in any manner and said, “I can challenge it. If the statute interferes to the extent that I feel that my right to administration, that is the right conferred under Article 30, is being impeded, I can challenge it. But I can accept it too… So, therefore, overwhelming participation of others in the administration, even if they are in a majority, even if by statute, will not destroy the character of the university.”

CJI Chandrachud added that “Article 30 does not mandate that administration must be only by the minority itself, in the sense that the personnel who administer are not required by Article 30 to belong to the minority. What Article 30 contemplates and recognises is the right, namely the right of choice, the discretion given to minorities to administer in a manner which they deem appropriate. Therefore it’s not that if you don’t have only people of your community, then you are losing your minority character. Because the choice is yours. You may or may not have persons belonging to your community… The essential element of Article 30 is the conferment of choice on the minority. It cannot be read in the reverse to impose an embargo that you will not have anybody save your community in the administration”.

Sibal said he himself had been a member of the governing body of St Stephen’s College and most of the members were non-minority. “Minorities will not have expertise in running many of these institutions and may have to call people from outside,” he said, adding that doesn’t mean it dilutes the minority character.

The senior counsel said that the “genesis of the institution is the test” and added that in the case of AMU, the inspiration to set up, steps taken for persuading the government and the essential paraphernalia of initial funding were by the minority.

Backing AMU’s claim for minority tag, Senior Advocate Salman Khurshid said Aligarh has a unique culture to expound, imagine and interact. He said that the university was established due to the efforts of the Muslim community.

Dwelling on the interpretation of the word “establish” in Article 30, he said “minority rights cannot suddenly disappear by way of an artificially restricted interpretation of a word like establish”.