‘Can’t hear GOI say they don’t stand by amendment’ made in Parliament — SC in AMU minority tag case

Seven-judge SC bench was hearing pleas challenging a 2005 Allahabad HC order quashing a 1981 amendment that altered the AMU Act, 1920, to confer minority status to Aligarh Muslim University.

Aligarh University Campus | Commons

New Delhi: A seven-judge bench, looking into the question of whether Aligarh Muslim University – a central government university – can be given a minority tag, expressed surprise Wednesday that Solicitor General Tushar Mehta was not supporting a 1981 Parliamentary amendment that conferred minority status to the university.

“The Parliament is an indestructible, indivisible and continuous entity. We cannot hear the government of India say they don’t stand by the amendment,” remarked Chief Justice of India (CJI) D.Y. CHandrachud, who heads the bench.

This comment and more came when Mehta, on the fifth day of the hearing, supported the Allahabad High Court judgment that struck down the 1981 amendment, which was passed to dilute the 1967 judgment of Supreme Court in the Azeez Basha case, declaring that AMU was not a minority institution.

The 1981 amendment altered the AMU Act, 1920, to confer minority status to the varsity. Upon a challenge, the Allahabad HC quashed the amendment in 2005, holding the university was not entitled to claim the rights of a minority institution under Article 30 of the Constitution.

This decision was challenged by the Centre as well as the university before the SC immediately afterward, with the apex court in 2019 referring the matter to a seven-judge bench.

Before the reference was done, the Centre filed an application, informing the court that it wanted to withdraw its appeal. This application was filed in April 2016, two years after the BJP came to power in the Centre.

The court’s oral observations Wednesday did not deter Mehta, who remained firm on his stand. In response to the verbal comment, Mehta said the HC had set aside the amendment on various grounds and, as a law officer, he was entitled to say the view taken in the HC judgment was correct.

Mehta’s reiteration further surprised the bench, with the CJI saying, “This is radical – a law officer saying he won’t abide by what the Parliament has held. Can we hear any organ of the Union say that they won’t support the amendment, notwithstanding that it has been passed by Parliament? The Parliament is an indestructible, indivisible entity, how can you say – ‘I don’t accept the validity of the amendment’?”

To validate his argument, Mehta questioned whether the “notorious amendments” made during the Congress-imposed Emergency were valid. He asked: “Would a law officer be expected to say that whatever amendments made to the Constitution during the Emergency are valid, just because they were made by the Parliament?”

At this, the CJI recalled that the 44th amendment was introduced to remedy “all the evils (amendments made during Emergency),” to which Mehta said: “Who decides whether it is evil?”

In a quick response, the CJI said it was the Parliament – the elected body – that would decide if an amendment was invalid and could nullify it by amending.

Senior advocate Kapil Sibal, who was appearing for the AMU Old Boys Alumni Association, interjected to point out that then Attorney General Niren De had supported the proclamation of Emergency in the court.

But Mehta sought to underscore the difference in the two cases. As for the Emergency, the solicitor said, there was no high court order. But in the present the situation is that there is a HC judgment, which the Centre is entitled to support.

Mehta clarified his submission was not a personal view, but the Centre’s stand.

(Edited by Tikli Basu)