Should minority not have controlling voice in institution’s administration: SC on AMU status

The CJI posed the query as Senior Advocate Rajeev Dhavan, appearing for AMU, sought to underscore the Muslim character of the university.

The test is of management right, said CJI Chandrachud

The Supreme Court on Wednesday wondered whether a minority should not have the controlling voice in the administration of an educational institution for it to qualify as one one administered by a minority, or would the mere presence of the community members in the governing body suffice?

“What is worrying is this. The test is of management right, for the purpose of administration. We take your point that as a university governed by law, you have to induct people who are representatives of various stakeholders in the university… But this would lead to a de minimis argument that even though the controlling voice in the administration is not that of the minority, yet, we must still treat it as being administered by that minority. For treating an educational institution as administered by a minority, should the controlling voice in the administration not be of the minority? Or could it be the position in constitutional law that, even if the controlling voice in the administration is not of the minority yet, it should be treated as a minority education institution under Article 30…?,” asked CJI D Y Chandrachud, presiding over a seven-judge Constitution bench.

Read | Decision inconsequential to govt change… AMU has to be non-minority: Centre to SC

The CJI posed the query as Senior Advocate Rajeev Dhavan, appearing for AMU, sought to underscore the Muslim character of the university.

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Explaining the administrative details in the 1981 amendment to the AMU Act, of 1920, Dhavan told the bench it makes it clear that the AMU court shall be the supreme governing body. To a query from the CJI, he informed the bench that the total numerical strength of the court is about 180.

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The CJI then asked, “expressly by the statute, there is requirement that 32 of the 180 odd must be ordinarily they would be Muslims. Then there are 5 representatives of the All India Muslim Education Conference. So, 37 of a total of 180… If we say that the test under Article 30 is that it must be administered (by minority), would it be sufficient that the administration is given to a composite body, a large body, a multi-member body out of which say in this case 32 or 37 out of 180 are Muslims. Does that then satisfy the administration test under Article 370?”

Dhavan replied that “the presence is there and that is enough. In this day and age you have to incorporate the other people… it’s inevitable… it doesn’t have to be 100%… Take the vice-chancellor, they all are Muslims. Therefore presence. They have not lost control entirely to secular forces”.

Senior Advocate Kapil Sibal, appearing for the AMU Old Boys Association, urged the court to interpret the 1920 AMU Act, a pre-Constitution law in terms of Article 30. The court, which is deciding a reference made to it in February 2019, however, pointed out that there has not been any challenge to the 1920 Act. Sibal referred to how there was provision of quota for SC/STs in the Constitution, but none for Muslims, Christians etc. The hearing will resume on Thursday.

Ananthakrishnan G

Ananthakrishnan G. is a Senior Assistant Editor with The Indian Express. He has been in the field for over 23 years, kicking off his journalism career as a freelancer in the late nineties with bylines in The Hindu. A graduate in law, he practised in the District judiciary in Kerala for about two years before switching to journalism. His first permanent assignment was with The Press Trust of India in Delhi where he was assigned to cover the lower courts and various commissions of inquiry. He reported from the Delhi High Court and the Supreme Court of India during his first stint with The Indian Express in 2005-2006. Currently, in his second stint with The Indian Express, he reports from the Supreme Court and writes on topics related to law and the administration of justice. Legal reporting is his forte though he has extensive experience in political and community reporting too, having spent a decade as Kerala state correspondent, The Times of India and The Telegraph. He is a stickler for facts and has several impactful stories to his credit. ... Read More