Recognising historical events by way of law is in exclusive domain of parliament: Supreme Court in AMU case

The Supreme Court on Tuesday made it clear that the recognition of history and historical events by enacting laws is in the exclusive domain of parliament [Aligarh Muslim University Through its Registrar Faizan Mustafa v Naresh Agarwal and ors]..A Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma yesterday continued hearing the batch of petitions concerning the minority status of Aligarh Muslim University (AMU).The CJI, during the course of the hearings, commented that the objective of the 1981 AMU Amendment Act was to recognise the historical fact that it was established by the Muslims of India.Solicitor General (SG) Tushar Mehta, appearing for the Central government, then argued,"But I also cannot wish it away. But before that, the Minister said it was a part of the election manifesto. Lordships may realise the danger if the Parliament were to be permitted to recognise hundreds of years ago history. I leave it at that."The CJI then replied that the same is in the parliament's exclusive domain."I am happy; very happy. I am arguing a University matter but Parliament deals with many historical matters", the SG responded."Subject to constitutional validity, of course," the CJI reminded..Yesterday marked the sixth day of hearing in the case.The questions of law involved in the case concern the parameters for granting an educational institution minority status under Article 30 of the Constitution, and whether a centrally-funded university established by parliamentary statute can be designated a minority institution.The matter was referred to a seven-judge in February 2019 by a bench led by then CJI Ranjan Gogoi.AMU was held to be a Central University by the Supreme Court in the 1968 case of S Azeez Basha vs Union of India. In the said case, the Court also held that a minority status under Articles 29 and 30 of the Indian Constitution cannot be conferred on a Central University.However, the minority status of the institute was later reinstated by bringing in an amendment to the AMU Act of 1920. The amendment was brought about in the year 1981.This was challenged before the Allahabad High Court which in 2006 set aside the move as being unconstitutional, leading to the instant appeals by AMU before the Supreme Court.Notably, in 2016, the Central government withdrew its appeal in the matter..Hearing on TuesdayThe SG yesterday began his submissions by saying that when a statute comes into place, whatever existed prior to it is extinguished and the new Act takes over. The CJI remarked that this would depend on the nature of the statute, which could be a "curing statute", an "altering statute" or a statute that expressly says its effect would be "irrespective of the past.""There cannot be a general reading like this," the CJI opined. The SG went on to submit that, "Whenever legislature wants to recognise a founding event, parliament has done it by a legislative enactment but the parties cannot ask the court to do this because both parties can have different take on the founding event.".The CJI then posed the question."In the absence of express obliteration of past by the statute, cannot the court look into? Or is there a constitutional bar on the courts to look into the history and circumstances which led to the creation of the institution by a statutory enactment?" The SG replied in the negative, arguing that history has different shades.Unless the founding event is recognised once the law comes into force, there is no place for that event, he said. .Justice Khanna then remarked that the 1981 amendment was brought to modify the statute in a manner that makes the reasoning given in the Azeez Basha judgment inapplicable..SG Mehta went on to assert that tests applied by courts to examine whether a university is a minority institution must be a very strict test. "The test of this court to determine which university is a minority has to be a very strict test. Being an institution of eminence and national importance, AMU has 70 to 80 per cent Muslims and that cannot be so; this is without reservation. An institution recognised as an institution of eminence and national importance must resemble the national structure," the SG stressed in conclusion. .Senior Advocate Rakesh Dwivedi, appearing for a private respondent (one Vivek Kasana), then began his submissions by stating that being a Muslim and being "in minority" are two different things."I mean like in Jammu and Kashmir, Muslims are not a minority and is a majority. We say that today Muslims are a minority and we jump to the conclusion that they were a minority in 1920 as well," he explained. The CJI pointed out that in the present case, the question is whether the AMU was a minority institute back then. "Who is the majority and minority will be decided on the date the Constitution came into force," Justice Khanna added.Dwivedi maintained that it has to be examined whether Muslims are always a minority."We just assume Muslims as minority and stamp them with benefits. It has to be decided now, whether at all they are minority. The question has been evaded for 75 long years," the senior lawyer argued. The CJI replied that the historical reasons for why Muslims were accorded a minority status should be examined."Why was it there? It was a safeguard to the minority that they will be protected. And one such provision of Article 30, and that they can establish their educational institutions," the CJI pointed out. The CJI also reiterated that AMU founder Sir Syed Ahmad Khan's relationship with government was not material. "It is about the group rights here. The group was minority, speaking in a constitutional sense. Saying that the founder was in touch with the ruling powers then is not a means to say that the group is not the minority. A political party in a State may regard a minority as an important vote bank, so can we say that it fulfills all criteria of being minority, but since it is an important vote bank, can we say it is not minority? Then it becomes very subjective," he added. .Meanwhile, Dwivedi argued that from 1935 to 1947, barring some exceptions, AMU had pioneered the movement for the creation of Pakistan."Muslims were rulers before the British and this was nothing but an alliance between two people who used to rule us. And this shows that they set up these institutes to create dominance of the imperial rule!" he added..Senior Advocate Neeraj Kishan Kaul also made submissions yesterday, and stated that AMU had gone beyond the reference order while making its submissions before the Court. "Would this Court ever go into a question of law, which is settled for as long as 56 years? Whether it is Mother Provincial, St Stephen',s etc. (these cases) have not casted doubt on Basha (judgment) with regard to administer(ation) or establishment of AMU not by minority as held in Azeez Basha.".The hearing will resume today (Wednesday, January 31)..Read our detailed coverage of the hearings so far:Day 1Day 2Day 3Day 4Day 5.[Follow our live-coverage of Tuesday's hearing]