Non-minority candidates looking after some administration will not dilute minority character: SC

The issue of AMU's minority status has been caught in a protracted legal wrangle for the last several decades.

New Delhi: The Supreme Court on Wednesday asked if it could it be the position in law that even though the controlling voice is not of the minority yet it should be treated as a minority education institute under Article 30 of the Constitution.

Hearing a matter related to minority status of Aligarh Muslim University (AMU), a seven-judge bench led by Chief Justice of India D Y Chandrachud said that the mere fact that some part of administration of an educational institution is also looked after by non-minority officials does not “dilute” its minority character.

The bench, also comprising Justices Sanjiv Khanna, Surya Kant, J B Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma, said that Article 30 of the Constitution says that every minority, whether religious or linguistic, shall have the right to establish and administer educational institutions of their choice.

The bench said it cannot be to a point where the entire administration is in non-minority hands.

"What is worrying is that the test is of management for the purpose of administration, we take the point that as a university governed by law, you have to induct people, representatives of various stakeholders in the university – teachers, students, faculty," the bench said.

The bench asked senior advocate Rajeev Dhavan for AMU even though the controlling voice in the administration is not that of the minority yet it must be treated as being administered by that minority.

“For treating an educational institution administered by a minority, the controlling voice in the administration might not be of minority, or could it be the law, even though the controlling voice is not of the minority yet it should be treated as a minority education institute under Article 30, because the minority has some element of presence on the managing body, and would some element of presence in the managing body suffice,” the bench asked Dhavan.

The counsel, however, said all Vice-Chancellors have been Muslims, therefore they have not lost control entirely to secular forces.

A contention has been made that since AMU is getting aid from the government, it cannot claim to be a minority institution.

To this, the bench said no institution can exist without a grant of land and the existence is dependent on the lease from the government, and second, it may not be able to function without aid from the government.

The bench noted that all these aspects may be relevant to the existence of an institution, but they have no bearing on the establishment of the institution.

AMU has submitted that it was established by the Muslim community for educating and empowering the community.

Dhavan emphasised that Azeez Basha verdict is “no longer a good law” and referred to the 1981 amendment Act which restored AMU’s minority character.

Senior advocate Kapil Sibal, representing Old Boys Association, said much water has flown since the Basha judgement was delivered. Sibal said "Under Article 30, I can set up a school, college, university, now you say I have a right to set up a university but you say if I go to the statute, UGC would say I am University, I lose my status, it’s not understandable, the very logic is not understandable."

“I want to ask myself a question… what is the right that the minority has today? I have to comply with all standards. I can’t appoint a teacher without an appropriate qualification,” Sibal said.

"The institution that I have established, I just want a little reservation and they want to deny that also," he said.

Sibal claimed he stood here for the diversity of the constitutional ethos of this country and pleaded to the court not to allow that to be destroyed.

Citing government’s contention against the 1981 amendment, Sibal said the executive can’t go against a parliamentary statute.

He claimed that Muslims in India are far behind Scheduled Castes in terms of education and they can only be empowered through education.

The court would continue to hear the matter on Thursday.