NEW DELHI: On February 12 a three-judge bench led
by Chief Justice Ranjan Gogoi decided to review the
Basha case that had firmly held that the
Aligarh Muslim University was not a minority
Chief Justice Ranjan Gogoi, Justices L. Nageswara Rao
and Sanjiv Khanna referred the matter to the larger
bench of seven judges on the request of Attorney-General
K.K. Venugopal and senior advocate Rajeev Dhavan who
pleaded on behalf of the AMU.
In Azeez Basha vs
Union of India case a five-judge bench had, in
1968, ruled that AMU was neither established nor was
being maintained by the Muslim minorities hence could
not be given the status of a minority institution. A
review of a five judge bench, therefore, required a
The CJI’s bench made the reference when AMU’s appeal
against a 2006 Allahabad High Court verdict came up for
hearing before it. The HC had struck down provisions of
an amendment made in 1981 to the law governing AMU,
restoring the university’s minority status circumventing the
Basha case judgement.
Basha case, the five judge bench had held
that since AMU was established through a parliamentary
legislation, it could not be deemed to have been
established by an individual or a community. Therefore,
the court ruled, AMU cannot be accorded minority status
as provided under Articles 29 and 30 of the Indian
However, 20 years later, in 1981 the then Education
Minister Sheela Kaul moved an amendment to the AMU Act to remove the technicalities that prevented the
university from being declared a minority institution.
In February 2005 a notification was issued
permitting AMU, as a minority institution, to reserve 50
per cent seats for Muslim students during admissions.
The notification was challenged in the Allahabad
high court, which in January 2006, quashed it. The High
Court even struck down sections 2(L) and 5(2)(C) of the
Aligarh Muslim University (Amendment) Act, 1981 which
granted minority institution status to the university.
The court said the sections were ultra vires of
Both AMU and the Centre had approached the top court
in appeal. But in a U-turn, the NDA government in
July 2016 withdrew its appeal and relied on the Azeez
Basha judgement. The then Attorney General, Mukul
Rohatgi, submitted that the
Basha case judgement could not be
overridden and that according minority status to AMU
would be contrary to the verdict. Rohatgi said the
ruling still holds good.
An affidavit was subsequently filed withdrawing the
Centre’s appeal and also all letters issued by the
Ministry of Human Resource Development under the United
Progressive Alliance regime. “This letter, along with
any other letter issued from the MHRD supporting the
minority status of the AMU, may be treated as
withdrawn,” the affidavit had read. The AMU opposed the
Centre’s move to withdraw itself from the case.
AMU case : Govt
NEW DELHI: On July 6, 2017 the Central government formally withdrew
its appeal in the Supreme Court against an
Allahabad High Court judgement
striking down minority status to Aligarh Muslim University.
The appeal (CA 2286/2006) filed in the Supreme Court by
the previous Congress-led government that had sought to
retain the minority tag for the Aligarh Muslim
The Union government also withdrew all letters issued by
the Ministry of Human Resource Development (MHRD) under
the UPA regime allowing the AMU to reserve 50% of its
seats for Muslims in the faculty of medicine.
“This letter along with any other letter issued from
the MHRD supporting the minority status of the AMU may
be treated as withdrawn,” read a government affidavit
filed in Aligarh Muslim
University vs Naresh Agarwal & others case in
the apex court.
The NDA government which came to power two years ago
had, from the very beginning, made its intention clear
about AMU's status. It said it stood by the 2005
Allahabad High Court judgement, a decision that both the AMU and
the previous UPA government had appealed against in the
Supreme Court. Wednesday's affidavit sought to withdraw
the Civil Appeal 2286 of 2016 in Aligarh Muslim
University vs Naresh Agarwal & others case.
The outcome of the case could also set a judicial
precedent for a similar legal battle in the Delhi High
Court over the status for the Jamia Milia Islamia
University, which was declared a minority institution
during the UPA government in 2011.
The BJP government argues that granting AMU minority
status is in violation of the Constitution which does
not permit a secular India to set up and fund
institutions on religious lines.
In its affidavit, the BJP government quoted former
Prime Minister Indira Gandhi — who had told Parliament
during a debate in 1972 that “if this demand (minority
status to AMU) is conceded, the government cannot resist
similar demands from other minorities, religious as well
In 2006, the UPA government and AMU appealed against
Allahabad High Court judgement
that struck down a 1981 parliamentary amendment to grant
the university minority status. The amendment
circumvented a 1967 SC ruling which said that the AMU
was not a minority institution as it was set up by the
Central government and not the Muslims.
“No judgment of a court can be undone by Parliament and/
or any legislature passing a law merely undoing
consequences of the said judgment. That would amount to
abrogation of judicial power by the legislature and
would be contrary to the very structure of the
Constitution,” the government told the top court.
Once the government takes back its appeal, the top court
will be left with AMU’s petition to decide. The
three-judge SC bench hearing the case has already
allowed the varsity to respond to the government stand
and permitted fresh interventions in the case.
When the case comes up for hearing later this month, the
bench is likely to refer the matter to a constitution
During a hearing of the case in April, CJI TS Thakur had
wondered if a central university could be a minority
institution. “We can understand a college or school
being a minority institution,” CJI Thakur had said.
No 'minority status' to AMU, govt tells Apex
NEW DELHI : On April 4, 2017 the Attorney General told the Supreme
Court in no uncertain terms that the NDA government wants to
withdraw the "minority status" granted to Aligarh Muslim University.
Making his submission, orally though, before two
separate benches hearing two different cases, Attorney
General Mukul Rohatgi told the Apex Court that the
minority status would be "contrary to the country's
He reiterated the government stand, taken earlier on
January 11 before the 3 judge bench in Aligarh Muslim
University vs Naresh Agarwal & others in Civil
Appeal No 2286/2006, that the government could not be
seen as setting up a minority institution in a “secular
Mukul Rohatgi's impromptu statement was made
before the bench of Chief Justice T.S. Thakur and
Justice U.U. Lalit in a case filed by Abrar Ahmed, an
alumni of AMU, who had challenged the appointment of
vice-chancellor Zameerudin Shah on the ground that the
VC had no academic background and was only a retired
Rohatgi who was present in the court of the Chief
Justice in connection with some other matter made an
impromptu statement that the Centre wants to withdraw
the institution's minority status.
In his brief submission before the CJI's bench, Rohatgi said
that the matter
relating to the minority status of AMU was already under
consideration of the bench headed by Justice Khehar (in Aligarh Muslim
University vs Naresh Agarwal & others in Civil
Appreal No 2286/2006) and
suggested that the question of Shah's appointment be
referred to the same bench. He told the court that in
1967 a five-judge constitution bench had in the
Basha case held that AMU was not a minority institution,
but in 1981 the then Union Government had amended the
rules to grant it that status.
"Azeez Basha continues to be the law of the land. We
have taken a considered view. Azeez Basha holds the
position. We have decided to withdraw the appeal,"
Rohatgi told the bench of Justice Thakur.
Rohatgi said :
“We have taken a conscious decision to withdraw the
appeal but AMU is entitled to carry on with its appeal.”
The CJI wondered whether a central university could be a
minority institution. “We can understand a college or
school being a minority institution,” justice Thakur
Meanwhile in Aligarh Muslim University vs
Naresh Agarwal & others, the three-judge bench headed
by Justice J.S. Khehar said that it would hear in July the
dispute relating to the minority status for AMU that the
UPA government wanted to continue, but the
NDA government wants to scrap.
In 2005, the
Allahabad High Court had struck down
AMU's minority status, a decision that both the AMU and
the previous UPA government had appealed against in the
apex court. The NDA government that has since come to
power wants to withdraw the appeal filed by the UPA
Earlier, counsel Prashant Bhushan appearing for
Abrar Ahmed questioned vice-chancellor Zameerudin Shah's appointment on the ground
that he lacked the
eligibility criteria laid down in the UGC guidelines.
Bhushan argued that the Allahabad High Court on
October 16, 2015, had erroneously refused to quash the
2012 appointment of Shah. The vice-chancellor, a retired
lieutenant-general, did not fulfil the criteria that he
should have worked for at least 10 years as a professor
in a university or an equivalent post in a research or
The bench directed the Centre to respond and asked
the Attorney General to assist the court. It posted the
matter for further hearing after four weeks.
The bench headed by Justice Khehar allowed the
Centre to file an application for withdrawing the UPA
government's appeal against the Allahabad High Court
"This matter should also go before a seven-judge
bench," Rohatgi told the bench of Justice Khehar as he
recalled that the 1967 judgment of the apex court
Basha case was
delivered by a 5-judge Constitution bench. The present
three-judge bench cannot review the judgment passed by a
5-judge bench and, hence, the matter should be referred
to a seven-judge bench, he said. Justice Khehar said it
would consider the plea in July.
Another senior advocate, Rajeev Dhavan, appearing
for petitioner who supports minority status for the
institution, agreed that the matter be referred to a
seven-judge bench for authoritative pronouncement.
Senior counsel P.P. Rao, appearing for AMU, sought
permission to file a counter affidavit to oppose the NDA
government's move to withdraw the UPA's appeal.
If declared a minority institution, AMU need not
reserve seats for scheduled castes, scheduled tribes and
other backward classes.
Appeal to PM
It may be recalled that a five member delegation from the Aligarh Muslim
University, led by Vice Chancellor Lt. Gen. Zameer Uddin
Shah, had met the Prime Minister on March 5 seeking
his support to the cause of AMU as a minority
The delegation met the
Prime Minister following mediation by a close Modi aide
Zafar Yunus Sareshwala, Chancellor of
Maulana Azad National Urdu University (MANUU), Hyderabad
who arranged the meeting.
At the 40-minute meeting, Vice-Chancellor, Lt.Gen. (Retd) Zameer Uddin
Shah raised the
issue of the minority character of the university while
seeking Mr. Modi’s support in the legal battle to
preserve its status.
He raised the issue of off-campus centres of the
university in Kerala at Malappuram , West Bengal
(Murshidabad) and Bihar (Kishanganj), after HRD Minister Smriti Irani told a
ministerial delegation from Kerala that the Ministry
would not financially support those centres as they were
“Lt.Gen. Shah informed the Prime Minister [that] these
Centres had been approved by the highest policy-making
bodies: AMU Executive Council, University Court,
Government of India and the President of India, in his
capacity as the Visitor of the university,” Rahat Abrar,
university spokesperson, told this correspondent. Lt.Gen. Shah
said the BJP had supported the minority character of the
AMU when it contested the Lok Sabha elections in 1977 on
the manifesto of the Janata Party. The manifesto said,
“A consensus on the restoration of the autonomy and
original character of the Aligarh Muslim University,
which had been gradually impaired by previous
Lt.Gen. Shah particularly mentioned the Union government's
U-turn with Attorney-General Mukul Rohatgi submitting in the Supreme Court that the stand taken by the previous
government was wrong. The five-member delegation, which
included the Vice-Chancellor, urged the Prime Minister
that the government must revert to its original stand of
supporting the minority character of the AMU.
The Vice-Chancellor handed over a memorandum, which said
the Centre had sanctioned “Rs. 447 crore” for the
off-campus centres. Against this, the university has
been given a meagre Rs. 130 crore. He said the AMU was
being given less funds than Banaras Hindu University,
which is of equal size, and Jamia Millia Islamia, which
is half the size.
Ever since the BJP government came to power at the
Centre, Aligarh Muslim University has been feeling
cold-shouldered by the Ministry of Human Resource
Development. The university which has got used to being
successive Congress governments, particularly
so during Indira Gandhi's prime ministership and Arjun
Singh's HRD ministership got a major shock on
January 11 this year.
Appearing in a well-watched case (Aligarh Muslim
University Vs. Naresh Agarwal & Ors. C.A. No. 2286/2006), Attorney general Mukul
Rohatgi told a Supreme Court bench of Justices J S
Khehar, M Y Eqbal and C Nagappan on January 11, 2016 :
"It is the stand of the Union of India that AMU is not a
minority university. As the executive government at the
Centre, we can't be seen as setting up a minority
institution in a secular state."
Rohatgi said though the Centre had filed an appeal, it
was now inclined to withdraw it as it felt that the
Azeez Basha case judgment still held good and that
the AMU could
not be termed a minority institution since it was set up
under an Act of Parliament.
The AG's stand drew immediate reaction from Justice
Eqbal, who asked, "Is the change of stand because of
change in the government at the Centre?"
Rohatgi said, "The previous stand was wrong. The law
laid down in
Azeez Basha case by a five-judge bench of
the Supreme Court on October 20, 1967 still holds good.