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Aligarh Muslim University, Aligarh Through Its V.C. v. Malay Shukla & Others - SPECIAL APPEAL No. 1321 of 2005  RD-AH 7977 (22 December 2005)
Special Appeal No.1321 of 2005
The Aligarh Muslim University, Aligarh
Malay Shukla and another
Special Appeal Nos.1322 of 2005, 1323 of 2005, 1324 of 2005, 1327 of 2005, 1346 of 2005, 1347 of 2005, 1348 of 2005, 1395 of 2005, 1397 of 2005, 679 of 2005, 680 of 2005, 681 of 2005, 682 of 2005, 728 of 2005, 747 of 2005, 748 of 2005, 749 of 2005, 750 of 2005, 751 of 2005, 1396 of 2005 and 1320 of 2005.
Hon'ble Ajoy Nath Ray, CJ.
Hon'ble Ashok Bhushan, J.
(Delivered by Hon'ble Ajoy Nath Ray, CJ.)
The short basic issue in all these appeals is whether the Aligarh Muslim University is a minority Institution. The point arises because suddenly some eighty five years after incorporation, they chose for the first time to reserve a Muslim quota, by way of a 50% reservation of post-graduate course seats meant for qualified MBBS doctors. The judgment under appeal before us has been delivered by an Hon'ble Single Judge of our Court on the 4th of October, 2005. Both sides, to be more accurate, all parties, felt aggrieved, and came up in appeal. The appeals will all be disposed of by this common order.
On the one side, who spoke first, were the Aligarh Muslim University, represented by Mr. S.S. Ray, leading Dr. Dhawan, the Union of India and the learned Attorney General on whose behalf Mr. Gopal Subramaniam addressed us, two individuals one of whom is a member of the Court of the University, which is its administrative body, the Minority Commission whose case was put forward by Mr. Ravindra Srivastava, and groups of Muslim students, admitted on quota, represented by two learned counsel one of whom was Mr. Ashok Khare and another Mr. S.A. Shah.
On the other side were certain dissatisfied students whose case was put forward by Mr. Ravi Kant. Before we proceed any further, we make it clear that in spite of the most elaborate expertise and painstaking arguments on the part of the University and its supporters, we felt so utterly unconvinced that Mr. Ravi Kant was called upon to speak for about two hours whereas the other side had amongst themselves addressed us for some five days or so. Those hearings were substantially full day hearings.
Although we cannot say the same thing about the various reasons given by Hon'ble the Single Judge and the orders passed by his Lordship, we have no hesitation in upholding his Lordship's main and primary decision in these matters, which is that Basha still holds the field and the 1981 Act must give way before it wherever the two come in conflict.
Basha is the case of Azeez Basha, a Five Judge Bench decision of the Supreme Court and the report of the case will be found at AIR 1968 S.C. 662. It ruled that the University is not a minority institution.
The 1981 Act is an Act of our Parliament, No.62 of 1981 being Aligarh Muslim University (Amendment Act 1981), which received assent of the President of India on the 31st December, 1981 and was published thereafter on the same day.
In Basha, the Court spoke through the Hon'ble then Chief Justice K.N. Wanchoo; it is a decision running to about 12 pages of the All India Reporter.
That case has to be read by any reader of this judgment before proceeding any further herewith. On the simple principle of following higher and binding authorities, we have to give this case full and complete effect and none of the statements in this case can be discounted by us. It would be wrong for us to quote the case fully here and it would be a wholly unnecessary and unusual exercise; but the case should be treated as quoted herein fully and we must be understood hereafter as bearing in our minds all the time the basic and first principle that we in this Bench are forbidden to look behind the decision of a five Judge Bench of the Supreme Court of India.
The problem before us arose because Parliament, an equally binding source of law so far as we are concerned, chose to pass the amending Act of 1981 which, according to appellants, (by the appellants hereafter we shall mean the University and its supporters; we shall refer to the aggrieved non-Muslim students as the cross-appellants hereafter), the said Act of 1981 changed the basis of Basha and that too to such an extent that today, we as the appropriate pronouncing authority must pronounce the Aligarh Muslim University as a minority Institution, the Basha case notwithstanding.
The task before the Hon'ble Single Judge was, and before us also is, to see whether the 1981 Act so altered the basis of the Basha case, legally and validly, as substantially to convert the Aligarh Muslim University into a minority Institution because, and only because, of the said amendment Act, or whether, if the Act by its words had succeeded in purporting to achieve that object, it, by that very reason, transgressed the permitted authority and limit of Parliament, which cannot, simply like a superior Court, overrule the decision given by any Court of law, least of all the Supreme Court of India. The issue is, did the 1981 Act make such changes as Parliament was entitled to make, and thereby achieve the effect of altering the non-minority character of the Aligarh Muslim University, or did it seek to achieve that end by simply and substantially overruling the Supreme Court decision, for which it has no competence.
Although the Basha case is to be treated as quoted here by us, we must recount here some of the salient points mentioned in that judgment, in the manner we respectfully read it.
It took into account, in some detail, the early history leading to the setting up of the Aligarh Muslim University by an Act of the Indian Legislative Council in 1920. That Act received the assent of the Governor General on the 14th of September, 1920. Several, but not all, property of the University earlier belonged to one MAO College, the full form being the Mohammadan Anglo Oriental College and the Muslim University Association. These were Mohammadan Institutions no doubt. The inception of these came sometime in the latter part of the 1870's; one of the leading gentlemen, who took a prominent part in this, was one Sir Syed, father of the illustrious Hon'ble Judge of Allahabad High Court Mahmood, J., the short lived Barabankian from Olympus. The idea was to set up a University and the ambition was to go on the lines of the University of no less a status than Oxford, or Cambridge. An interesting fund was raised to as large an extent as Rs.30 lac, even in those days, by collecting one rupee from every Mohammdan of the then British India. Whether this was followed to the letter or not, we need not inquire into.
Mr. S.S. Ray told us that a bare look at even some of the albums showing pictures of the Aligarh Muslim University would convince anybody of its deep green character. The architecture and the Quoranic inscriptions are all there.
Be that as it may, in the Basha case their Lordships went on to consider the effect of the Aligarh Muslim University Act of 1920 ((XL of 1920). Their Lordships were considering the issue for judging the validity of certain amendments made to the Act in the years 1951 and 1965.
Although the Union of India through Mr. Subramaniam has been at pains to argue before us that the Aligarh Muslim University is a minority Institution, the stand of the Union of India before the Supreme Court was radically different. We cannot make much of this opposing stand because Parliament had intervened with the 1981 Act and the Union of India and the Attorney General are entitled to support the Acts of Parliament in courts of law. Whether they will succeed in their support or not, is quite another matter.
Before the Supreme Court, the Union of India argued that the Aligarh Muslim University was a free Institution and not a minority one; as such the amendments made in 1951 and 1965 were all supported by the Union. The Supreme Court accepted the Union's contention and ruled in as clear terms as possible that the Aligarh Muslim University was not a minority University; it is not necessary for us to enter again into details about the exact nature and scope of the 1951 and 1965 amendments. Suffice it for us to say that those dealt, amongst other things, with a recasting of the constitution of the Court of the University, which was originally dealt with amongst others by Section 23 of the act of 1920. All the members of the Court in 1920 had to be Mohammadans; there was a clause in Section 23 by way of a proviso, that unless one were a Mohammadan one would not be entitled to be a member of the Court. These were substantially changed; the proviso forbidding non-Mohammadans from becoming members of the Court was done away with, and Azeez Basha and some others were aggrieved, but to no effect. In ruling the Aligarh Muslim University to be non-minority, their Lordships considered several matters, but to our mind the most important one was about the grant of degrees, and incorporation of the University itself.
This matter must be dealt with specifically and in some detail. Prior to 1920, the MAO College was affiliated to the University of Allahabad; degrees were granted by the Allahabad University to students of this College; the College did not itself grant degrees then.
There has been some dispute raised before us whether in 1920 it would be possible for the Mohammadan community to found a University on their own, without intervention of an Act of the Legislature, for the purpose of granting degrees to their own students. In the Basha case, the Supreme Court has at least assumed that it would be possible for the Mohammadan community to set up a University on their own without any legislative Act. What the Supreme Court has said in this matter, we have to and we do accept. We only note that after 1956 and the passing of the University Grants Commission Act a University can only be set up by the appropriate legislature; on the basis of Yashpal's case, which was given to us by Dr. Dhawan, and paragraph 59 thereof (2005, 5 SCC 420), the safest way to go about it, would be to have the State Legislature utilize their power under List-II Entry-32. The University Grants Commission can of course make a deemed University as provided in the Act. It seems that even before the 1956 Act, and even way before we gained our Independence, the setting up of a University fair and square would need intervention of the Supreme Government. The word ''University' might be referred to in this regard in Earl Jowitt's Dictionary of English law; the power of a University to grant degrees in general does not seem to be an exclusive right of theirs; there seems to be some doubt as the Encyclopedia Americana and also Jowitt's Dictionary seem to state that Colleges are as competent as Universities to grant degrees. The passage at 15 Halsbury 256 can also be referred to; it states there that the essential feature of a University seems to be that it is incorporated as such by the sovereign power; Blackstone is referred to there.
For us these authorities need not and perhaps should not be looked into; in Basha the Supreme Court opined that it would be possible for the Mohammadans to set up a University on their own, but what they could not be certain about, in setting such an Institution up, would be the matter of recognition of the degrees.
It is not stated clearly in Basha what exactly this recognition means; however, with all due respect, we assume that the recognition of the degree would mean recognition by the sovereign power and all its subordinates of the validity and reliability of the degrees to be granted.
Basha clearly stated that the certainty of recognition of a University degree could be had by the Mohammadan community, if the University were brought into existence by the Legislature. In paragraph 26, on the left column of page 673 of the said report his Lordship the then C.J. said as follows:
"It seems to us that it must have been felt by the persons concerned that it would be no use bringing into existence a University, if the degrees conferred by the said University were not to be recognised by the Government."
It was later on said in the same left column:-
...it would not be possible for the Muslim minority to establish a University of the kind whose degrees were bound to be recognised by Government and therefore it must be held that the Aligarh University was brought into existence by the Central legislature and the Government of India. If that is so, the Muslim minority cannot claim to administer it, for it was not brought into existence by it. Article 30 (1), which protects educational institutions brought into existence and administered by a minority, cannot help the petitioners..."
In our respectful reading this was the cornerstone of the Basha judgment. Their Lordships held the University to be different from the pre-existing Mohammadan College; it is noted by their Lordships that there were long negotiations and a tussle between the Mohammadan community and the then Government; the Government did not wilt to the Mohammadan wish to have a Mohammadan institution for the benefit of the Mohammadan community, if not exclusively, at least substantially; this was not acceded to by the Government.
The Mohammadans gave way; they took what they got. In the affidavit before us the repeated requests made by the Mohammadan community for their own College are mentioned in several places. Mr. Subramaniam took us through those paragraphs to demonstrate that the wish of the community to set up a University of their own was indeed there, and they tried very hard, no doubt, to have their wishes granted.
India of 1920 is not same as the India of 2005 or 2006. Section 3 (28) of the General Clauses Act, 1897 as amended up to date clearly says that the India of 1920 is British India; we do not have to go to a General Clauses Act definition to know that it was not a country where there were different political parties of any real power or importance; it was not an India where one community could wait for a more supportive and sympathetic political party to come in power and then gain their objective; there was no democracy. What the British said, went. For any public achievement the people of India, whether Mohammadans or not, had to be in the good books of the English people. Any other achievements had to be made underground. It was in this context that the University was set up by the then ruling Government; as soon as it was incorporated under the auspices of the English Government and the English Legislature, the University had all success and all support from the very beginning; the Mohammadan community chose the politically right path of inviting high English personages like Lord Lytton to be associated with their College; once they gave way to the manner in which the then Legislature desired to set up the University, the degrees of the University had full and 100% value. The degrees of a University, even if it could be set up independently then, which was in the bad books of the English Government, but wholly Mohammadan and wholly green, and perhaps wholly good, was of no practical value; it would either die or go underground. The other University, which was set up by the Act of 1920 started with a prospect of prosperity and prospered it has, right until date.
We are aware that their Lordships of the Supreme Court have not looked at the issue in the light that we have respectfully used above, but we feel confident, again respectfully, that we have not gone against what the Supreme Court has stated but only tried to support it, such support being necessary in the face of the current challenges.
It is on record that the finances of the Aligarh Muslim University became the headache of the Government after incorporation; it is on record that some 74 acres of extra land went to the Aligarh Muslim University as part of the prosperous setting up process; it is provided in the Act itself that the fund of Rs.30 lac would be utilized for recurring expenditure; this means that the Muslim fund would help the University and die out and no Muslim nucleus would remain even in the accounts of the Aligarh Muslim University.
In the Basha case certain supervisory powers of administration were clearly pronounced as important, e.g., it is stated in paragraphs 7, 8 and 9 as follows.
Section 6, the degree section so to speak, laid down that degrees, diplomas and other distinctions of the University shall be recognized by the Government like those of any other University. Section 8 provided that the University shall be open to all persons of either sex and whatever race, creed or class. Section 13 provided that the Lord Rector shall have the right to cause an inspection to be made and also cause an inquiry to be made. The Court had to comply with these provisions; the Lord Rector could issue directions and after explanations were considered his directions had to be complied with by the Court of the University. Section 14 contained the provision for the visiting board which also had power to inspect; it had annulling powers; the Visiting Board also had overriding powers. Although the Court had to be composed in the beginning of Muslims only, their Lordships said in paragraph 9 of the Basha judgment that there was no condition that the Lord Rector had to be of the Muslim community.
A very great attempt was made before us to show that the Basha case, in any event, needed guarded reading in view of later Supreme Court cases.
It was said that in the PAI case 2002, 8 SCC 481 the Supreme Court has, in a much larger Bench than the Basha Bench gone into the issue of governmental control of even minority Institutions. The argument therefore ran, that the administrative control by, say, the Lord Rector or the Visiting Board, would not be factors robbing the Aligarh Muslim University of its minority status today in the light of the PAI judgment. We are of the opinion that this views the coin from a side, which is seriously opposite and wrong. That a minority institution, for the purpose of stopping maladministration and gross unfairness, is subject to governmental control does not mean that when it is to be decided whether an institution is a minority institution or not, the factors of governmental control ought to be discounted altogether. That would be a complete misreading of PAI and it would be viewing PAI from the wrong and opposite angle; that minority institutions can be controlled does not mean that control of institutions by the Government does not tend to show an institution up as basically a non-minority institution; when one is considering the degree of control permitted for a minority institution, one assumes the minority status; when the minority status or the non-minority status is not admitted or assumed, the factor of administration and control by free or non-minority groups becomes not only important, but very important.
Reference has been made to the St. Stephen's College case about the importance of administration in determining minority status. The report is at 1992, 1 SCC 558. Brother Bhushan in his Lordship's judgment has also dealt with the importance of administration as a determinative factor for judging minority status. I fully agree with his Lordship.
In answering Question 3 (a) in the TMA PAI case, Kripal C.J. said at page 587 of the report above mentioned as follows:-
"Q.3(a) What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person (s) belonging to a religious or linguistic minority or its being administered by a person (s) belonging to a religious or linguistic minority?
A. This question need not be answered by this Bench; it will be dealt with by a regular Bench".
That the question has been left unanswered by the Bench does not mean that all earlier Supreme Court Cases of lesser strength are overruled; one has to read the earlier cases and the openness of the question all together. We in the Division Bench of the High Court are in the happy position that we have no problem in following St. Stephen's, and the other cases.
In our respectful opinion, the question of establishing and administering an institution is infinitely the most relevant at the point of time of its coming substantially into being. Attention must be focussed at that point of time. Who established it? Who was then administering it? What was the purpose of establishing it? The answers to these questions will enable the Court to determine whether the institution is a minority one or not. We are of the respectful opinion that not one of these questions can be held to be irrelevant in the matter of ascertaining whether an institution is a minority one or not. More than this on this issue we do not have any courage to say.
The question of administration in 1920 after the Act came into being was gone into in Basha. The college and the Union however argued that the point of time for our inquiry is much before, perhaps even in 1870, when the M.A.O. College was founded. We do not agree; there is no doubt that the M.A.O. College, if it had remained as such would be a minority institution. The issue before us is not whether the MAO College was a minority College or not. The issue before us is whether the Aligarh Muslim University of 1920 is a minority institution or not. That certainly came into being in 1920. Whether it was established and administered by the minority community through the year 1920, is a question, which we must answer by taking into account both Basha and the 1981 Act. This brings us to the crux of the issue, i.e. whether the MAO College and the Aligarh Muslim University are one and the same thing and the process of the incorporation in 1920 is no more than something superficial, something procedural, some mere process, which cannot touch the substance of the matter.
We do not here again wish to set down under two tables the items in Aligarh Muslim University, which were green and the items in Aligarh Muslim University, which were free, so to speak, white. The Supreme Court has done so in Basha; the history of the Mohammadan tint has been considered; the passing of all property of the Muslim association and the Muslim College, the passing of all their bequests and receipts to the University have been considered by the Supreme Court; their Lordships have considered all factors and we simply have to follow them. In following them, we cannot escape the conclusion that their Lordships treated the MAO College and the Aligarh Muslim University as two different and distinct entities; one was set up by the Mohammadan community and the other by the Legislature; one was affiliated to the University of Allahabad and was unable to grant degrees of its own; the other was set up by an Act of legislature and a Section permitted it to grant degrees as recognised as those of any other University; the one had Mohammadans completely in control of administration; the other had serious supervisory control over the Mohammadan Court by, inter alia, the Board; one had building, property and some money; the other had, may be the same building, but much more property and unlimited English funds.
Their Lordships did not opine that the MAO College permeated into the Aligarh Muslim University, or that if it had changed anything, it had only changed into a dinner jacket from a Sherwani.
In the face of this, Parliament passed the said Act of 1981; the one and the most important sub-section in the said Act is sub-section 2 (l), which reads as follows:-
"2.(l) "University" means the educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh and which was subsequently incorporated as the Aligarh Muslim University".
Several other amendments were made in 1981, but this sub-section is the key to the lock. Is this sub-section good? Can this and Basha subsist? These are the basic questions.
The University was at pains to submit that this sub-section and Basha cannot subsist; if this sub-section were before the Basha Court, according to them, the decision would have been otherwise; they relate to the test of Prithvi Cotton, 1969, 2 SCC 283. According to them 2(l) made all the difference; further according to them, this difference the Parliament was entitled to make.
Thus, we proceed on the basis that 2 (l) and Basha cannot subsist. We agree with the University to this extent, and to this extent therefore, we respectfully disagree with the Hon'ble Single Judge, who has read down 2 (l) only but not struck it down. But was Parliament entitled to insert 2 (l)? The point is the point of Parliament being disentitled to assume the role of a Court of appeal in regard to judgments of courts of law. There are two ways, basically, a judgment can get overruled. First, it might be by direct appeal; that is not possible in Basha; in other matters, it might be that the same issue comes up before a court of higher authority and the earlier precedent is disapproved. This is another equally effective way of overruling in law; if the High Court had said that X is a minority institution in one case and thirty years later, the Supreme Court had said no, X is a non-minority institution, the High Court's judgment would get substantially overruled, practically as effectively as an appeal then and there would have overruled it.
Either way of overruling a judgment is forbidden to Parliament. Several cases in regard to this resolution of conflict between Court cases and legislative Acts have been considered by the Hon'ble Single Judge and also cited before us. Brother Bhushan has also referred to those.
We mention only three below:-
(i) 1989 (3) SCC 488: Ujagar Prints (II) Vs. Union of India
(ii) 1997 (8) SCC 522: S.S. Bola & Others Vs. B.D. Saridana
(iii) 1996 (7) SCC 637: Indian Aluminium Company Vs. State of
We refer specifically however, to a case given by Dr. Dhawan, a very recent one, being the case of Virender Singh Hooda and others Vs. State of Haryana and another (2004) 12 SCC 588. At page 610 in paragraph 46, the following sentence occurs in the beginning:-
"It is equally well settled that the legislature cannot by a bare declaration, without anything more, directly overrule, reverse or override a judicial decision; it may, at any time in exercise of the plenary power conferred on it by the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based (I.N.Saksena v. State of M.P. (1976) 4 SCC 750: 1977 SCC (L&S) 36).
This is the test that we apply. In our opinion, the test applies on all fours. Section 2 (l) is an enforced declaration of substantial identity. Even according to the University, on the basis of 2 (l) the minority status has to be declared. Thus, they themselves argue that the definition is a definition of substantial identity as between the Mohammadan College and the incorporated University.
The Supreme Court did not hold so; it held exactly otherwise; it was fully aware (said with the greatest of respect) of what it needs for an institution to qualify as a minority institution; it never said that incorporation and incorporation alone as a process was the sole factor why their Lordships were deciding the University to be a non-minority one; numerous factors were considered by their Lordships; by consideration of those factors, their Lordships reached a conclusion of separation, of distinctness, as between the minority College and the non-minority University.
What Section 2(l) does is that it both overrules the view taken by the Supreme Court of the situation prevailing in 1920 and it lays down, practically in so many words, that the University is an Article 30 establishment.
Why do we say that it does so? Because 2 (l) states that the University was only subsequently incorporated from and out only of the Anglo Oriental College, which was already there, and if that is so, and if there is no distinction between these two, then, because of the process of incorporation and the process of incorporation only, it is impossible to say that the minority institution has lost its minority character.
We have said that in Basha the Supreme Court took a view of the 1920 situation; the view was a reasoned view; there were many factors, which persuaded their Lordships to come to a final decision that the Aligarh Muslim University was different from the MAO College and was so substantially different as to make the one a free institution notwithstanding the other being a minority one. By Section 2 (l) the reasoning and the decision are directly ridden roughshod over by Parliament; it does away with the reasoning by enforcing by way of declaration that the MAO College became the Aligarh Muslim University by incorporation and that the one is the other excepting for incorporation and incorporation alone; at the same time it lays down in the definition a proposition; the necessary corollary of which is a statement that the Aligarh Muslim University partakes of the same minority status as its substantially indistinguishable predecessor had, that predecessor being the MAO College. The necessary corollary is a very close second step and so close as to be practically indistinguishable from the definition itself. Section 2 (l) therefore seeks to state practically in stark terms that Parliament has overruled the Basha decision. This Parliament is not entitled to do.
We are again grateful to Dr. Dhawan for giving us authorities for the proposition that if a deemed provision is introduced by way of a statutory fiction or enactment, the Court must proceed consequently thereupon also, and not give the definition a truncated meaning by stopping with the definition and refusing to give it its due consequences also.
The root case is the House of Lords decision in the Finsbury Borough Council case, reported at 1952 Appeal Cases 109: (1951) All.ER 587.
This was approved in the case of Arooran Sugars Ltd, (1997) 1 SCC 326, see paragraph 11.
The Supreme Court reproduced the following dictum of Lord Asquith:-
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it ....The statute says that you must imagine a certain state of affairs. It does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."
The consequence therefore is, that the Court cannot stop from giving effect to the consequence of 2 (l). What is this consequence? The consequence is that Aligarh Muslim University becomes a minority institution. Is it a remote consequence? Not at all. Is it a direct consequence? Most certainly yes. Is it an proximate consequence? The answer is that it is so proximate that it is hardly possible to call it even a mere consequence of S. 2 (l); it was as if Parliament had said the Aligarh Muslim University is a minority institution, full stop.
The learned Single Judge in the court below has opined that this case satisfied the test of Parliament seeking brazenly to overrule a judicial decision. We respectfully agree.
In the original 1920 Act, also, there was a definition. The definitions had not gone up to (l) at that time; Section 2 (h) of the 1920 Act originally defined the term University as follows:-
"2 (h) ''University' means the Aligarh Muslim University."
This definition is changed; this Aligarh Muslim University is made to be substantially indistinguishable in form and succession from the MAO College; the definition Section might be a small one, but it is a vital one. Parliament had no authority in the face of the Basha ruling to make this type of change and sit in appeal or sit in review over a five Judge decision of the Supreme Court. It was not a mere change of basis; the basis which prevailed in 1920 had been looked at by the Court and the view had been taken thereon. A deemed fiction changing that basis by way of a definition section is no different from saying that the decision is overruled and the view is not what the Supreme Court had taken but the view is, as we the Parliament now say it is. We are quite clear in our minds that Parliament overstepped its limits.
Just before 1981 there was another Amendment Act of 1972, which inserted Section 5 (9A), which defined the boundaries with respect to a University mosque. We think that this is neither here nor there. Even in the original statute Section 5 (2) as one of the object clauses laid down that the University would have powers to promote oriental and Islamic studies and give instruction in Muslim theology and religion and to impart moral and physical training. This type of mingling of Islamic study along with other matters does not at all alter the status of the University to a minority status.
Other changes than 2 (l) were also made in 1981, but those we will come to later. We must now more fully explain what it is exactly, in the practical world, that has compelled us to inquire into the free or minority status of this University. There have been time gaps in the list of dates and years in the history of the Aligarh Muslim University, which would make Rip Van Winkle look like suffering from lack of sleep. From 1920 until 1947 or 1950, nothing much happened; it was a period of dormancy. There were amending Acts of 1951, 1965, 1972 and 1981; there was a Basha case in 1967-68; it was, so to speak just a little stirring in bed, but not really getting out of it, because the non-minority institution continued to be non-minority institution through the Basha decision. The 1981 amendments were made, but those remained in the book; it hardly touched anybody; at least it did not touch anybody badly enough for him to come to Court or raise any public issue in the media. Dr. Dhawan said that after the 1981 Act, the University was awaiting the PAI decision; it needed a decision for its stand on reservation. May be so, but it awaited in a state of complete dormancy. There might have been committees within the University thinking of what to do if it is a minority institution, but the waves never went out of the University pond. Then came 2004-2005; examinations were held on the 31st of January, 2005 for the purpose of filing up 157 posts in the stream M.D., M.S., i.e. all Post Graduate Medical Courses. The qualification needed for these studies is that the students have to be already a qualified MBBS, i.e. a qualified practitioner. The Post Graduate Medical Course of the Aligarh Muslim University has been there for a long time and it is a reputed one. Many Post Graduate Doctors from the Aligarh Muslim University will be found in many a reputed Hospital and Nursing Home. We believe this to be so and our belief, in spite of our giving it expression during hearing, was not contradicted by anybody.
50% of these 157 seats, (we shall not bother about the fraction) were attempted to be reserved for the Mohammadan students for the 2005 examinations.
The Mohammadan reservation there has never been for the last 85 years. The University was only in name a Muslim University. There were institutional reservations, but those are possible even for free institutions. The minority status might have been discussed in the private Halls of the University; we do not know about that. The claiming of a Muslim quota came for the first time for the Post Graduate Doctoral courses starting in the year 2005 and the gap is from 1920 to 2005.
Examinations were held; the Muslim quota has been given effect to; 50% seats have been filled up by Mohammadan students who have been given preference on the basis of the their religion; students have felt aggrieved; they have come before the Court; criticism was made that only one or two came first, and then in groups, and mostly after the first interim order had been passed by the Court in a writ petition.
That might be so, but we are herein concerned with the claim of the Muslim reservation after long 85 years; we do not know what the practical effect of a change of a free post graduate doctoral course into a minority reserved post graduate doctoral course will be; it is not for us to inquire into the practicalities. It is for us only to note facts and to go about the law of the matter.
The Muslim reservation was claimed on the basis of and solely on the basis of the 1981 amendments; if there were no amendments in 1981, this litigation would not be on. Two other provisions entered in 1981 by way of amendment are, in our opinion, material, but the others, so far as this court is concerned, can remain on the statute book.
The next amendment after Section 2 (l) is Section 5 (2) (c). This is set out below:-
"5 (2)(c). to promote especially the educational and cultural advancement of the Muslims of India".
We are of the opinion that if the University is free, which according to our judgment it is, this sub-section cannot survive. It is flatly discriminatory. If a clause like this were to be introduced into the Charters of the Banaras Hindu University directing that it should promote especially the educational and cultural advancement of the Hindus of India, it would be discriminatory. This new Section 5 (2) (c) is discriminatory for exactly the same reason. It would be a wrong view to take that by introducing just 5 (2) (c) the Act has so changed the basis or the whole situation as to cause the Court to take a different view from Basha. It would be placing an overmuch importance on a comparatively small thing. The main issue is 2 (l); the decision on that has to shape the decision on 5 (2) (c); we are of the clear opinion that it is not the other way round.
The cross appellants in the Court below asked for striking down of Section 2 (l) and Section 5 (2) (c); they did not specifically ask for striking out of another amendment which is certainly related to the minority issue.
In the preamble of the 1920 Act, it is stated as follows:-
"An Act to establish and incorporate a teaching and residential Muslim University at Aligarh".
By the 1981 Act, the words ''establish and' have been removed. The reason is very simple; Article 30 uses the word establish; if establishment and incorporation are even kept in proximity, there might be a doubt whether incorporation alone might rob the University of its minority status; incorporation is a single factor, but it is not an unimportant factor. It is a process, but it is a process of a very high order. It is only by incorporation that Universities could be brought into being in 1981, apart from a deemed status being given to it. Leaving the words ''establish and incorporate' together would therefore militate with the object and purpose of introduction of Section 2 (l); it was therefore sought to be removed by the 1981 Act.
We are of the opinion that this removal is bad and must be struck down. The preamble of the Act must remain as it was.
The Supreme Court having taken a view that ''incorporation and establishment' are connected and are importantly connected, that view taken in regard to the 1920 situation, cannot be summarily overruled by Parliament so as to bring into existence a new minority institution.
We are therefore of the opinion that along with 2 (l) Section 5 (2) (c) must also fall and there should be a restoration of the preamble as it was.
This brings us to a second point, which arose during the course of argument; it was not argued in the Court below, but the Court having felt the necessity of hearing views of both sides on it, put the query to them and answers came forth with all the usual compliance and learned expertise.
It is a point of legislative competence. We are concerned with a simple Act of Parliament of 1981. We are not concerned with a constitutional amendment or, as Dr. Dharwan prefers, an exercise of a constituent power by Parliament. Nor we are concerned with any such unprecedented thing as a referendum to the people of India and the change, or part breakdown as per Dr. Dhawan, of the Constitution on the basis thereof. These are different and higher matters. We are concerned only with a simple Act of Parliament, which cannot by itself amend the Constitution. The Aligarh Muslim University is not merely a University, but a field of legislative power. Entry-63 of List-I of the 7th Schedule of our Constitution runs as follows:-
"The institutions known at the commencement of this Constitution as the Benares Hindu University, the Aligarh Muslim University and the [Delhi University; the University established in pursuance of Article 371-E;] any other institution declared by Parliament by law to be an institution of national importance".
Section 2 (l) of the 1981 Act defines the Aligarh Muslim University. It is a definition different from what prevailed on the date of adoption of the Constitution. The new purported definition is not mechanical or unsubstantial and not something to which the principle de minimis non curat lex is applicable. It is a substantially altered definition of an item mentioned in the Constitution. In our opinion, the definition of any word or item in the Constitution cannot be inserted by Parliament excepting by way of a Constitutional amendment. On this ground, the 1981 Act suffers from the lack of legislative competence.
See how this works out in practice. If the 1981 Act were not there, Parliament would be legislating for Aligarh Muslim University, although the State of Uttar Pradesh would be legislating for other Universities situated in the State of Uttar Pradesh under Entry-32 of List-II. Parliament could not, say, in 1980, even purport to make a law or cause a subordinate legislation to come into being to the effect that 50% of the Aligarh Muslim University Post Doctoral seats would be reserved for Mohammadans. That is because Basha was holding the field. Aligarh Muslim University was a free University and 50% seats could be no more reserved for Muslims there than for Hindus in B.H.U. So Parliament could not do it in 1980. However, the 1981 Act then came into being. If it is good, then 2 (l) changes the free status of the University into a minority status, as a matter of definition and by force. And immediately direct consequences result. The University and its officials boldly put forward the Muslim reservation, which was incompetent even for Parliament to put forward in 1980. How has this power been purported to be assumed? Because of the 1981 Act and none other. So Parliament has given to a University a power to do something, which it was incompetent to do even by legislation; how has it given that power? It has given that power by simple legislation. If that legislation is valid, then it has succeeded in giving power beyond its own ordinary power as per the Constitution, to some other authority. This is absurd; the absurdity occurred because and only because Parliament has sought by a simple Act of Parliament to define a Constitutional institution and field.
Parliament is similarly incompetent from another point of view. A minority institution cannot be created by Parliament; only a minority can create it. Whether a minority has succeeded in creating an Article 30 institution of the Constitution or not, is in the peculiar province and jurisdiction of the courts of law to declare. Parliament is incompetent to declare by, at least a simple legislation, an institution to be a minority institution. If it could do that then it could add to Article 30 by saying A,B,C,D, etc. will be Article 30 institutions. Parliament cannot do it, not at least by a simple Act of Parliament, if by anything else. When a dispute arises as to the minority status, parties come to Court and the Court takes a view; the taking of this view either results in a declaration or otherwise of the minority status of the institution. In this instant case, the Court had taken a view. The view was taken on facts and on the effect of the rights, liabilities and duties attaching to the institution being the Aligarh Muslim University. It was within the province of the Court to take this view. Once this view is taken, it cannot be dislodged by an Act of Parliament; it cannot perhaps be dislodged by any means, and in this issue the point of changing the basis of the judgment, or brazenly overruling a Court's judgment is not involved. It is a point of incompetence of Parliament. It is only for a Court to decide whether an institution is a minority institution or not; the Court can take a different view at a different point of time, but Parliament has no authority to force the Court to take such a different view in a minority status matter. Just as a carpenter has no power to force the soil, air and sunlight to produce a tree, Parliament has no power to force on to a Society a minority institution. Politics is not permitted in this restricted constitutional field. We would strike down the aforesaid provisions of the 1981 Act on this separate ground alone, and we make it clear that in this and the earlier ground of Parliament directly overruling Azeez Basha, both of us have felt absolutely in agreement.
The reliefs, which we ought to grant, have now to be reasoned out; we have not fully heard out the admitted Mohammadan students on the basis of the quota, which we now declare to be invalid. We have heard their appeals and we take their appeals on record. These Post Doctoral courses last for a year or two. Those started in the beginning of the year 2005 and the year is over. We are unable to upset the study programme of these qualified Doctors, who have got in, so far as the records show, perhaps luckily but without any fault of their own. The fault might lie with the University because of its insufficient foresight and its insufficient publicity in taking in as many as 50% Mohammadan students when they were claiming the Mohammadan reservations after 85 years of the incorporation of the University for the first time, but we leave it to the conscience of the University and its key people and its advisors.
The University communicated with the Union of India before it claimed the reservation for itself and went ahead with the examinations. The concurrence of the Union was communicated to the University by its letter dated 25.2.2005. The concurrence therefore came far later than the examinations; the concurrence was rendered temporarily invalid within a fortnight by the passing of the interim order of Court. We cannot help saying that people in high positions should have thought a little more about the uncertainty they might be introducing in the career of students before they went ahead with a somewhat sudden claim of a Muslim minority quota.
We are unable to dislodge the students, who are studying and we are aware that this will have to be at the cost of the cross appellants, who are 34 in number. Dr. Dhawan was at pains to show how only a few of them might still, in any event, be said to somewhat aggrieved, but we are of the opinion that it will not serve any useful purpose to enter into these details now, as we cannot grant them much relief. Even the locus standi of the students was challenged at first, but the issue of locus is such a narrow one that it would be impossible to say that none of the cross appellants had in any view of the matter any legal locus standi to challenge the Muslim quota. Locus on the part of the Minority Commission and the Union of India was also challenged by the cross appellants in their turn. We have found these objections to be not worthy of detailed, or even any, discussion in a heavyweight constitutional matter like this. The relief that we grant to the students, if relief those can be called, are spelt out below. Before the 50% claim of Muslim quota, the Aligarh Muslim University had 75% institutional reservation and 25% free admission on all India basis. Dr Dhawan was at pains to argue that at present an institutional reservation above 50% is not possible. We are however not concerned with institutional reservation as a rule, but with moulding of relief for a year; the issues are thus, so far as we understand, slightly different.
On the above basis, the following orders are passed.
(i) The judgment and order under appeal is affirmed excepting to the extent indicated below;
(ii) The Aligarh Muslim University is declared to have always been and is a free institution and not a minority institution within the meaning of Article 30 of the Constitution and that the ruling in Basha is in no way touched.
(iii) Sections 2 (l) and 5 (2) (c) introduced in the Aligarh Muslim University Act of 1920 by the said 1981 Amendment Act are invalid and those insertions are struck out.
(iv) The removal of the words ''establish and' from the preamble of the 1920 Act by the 1981 Act is invalid and those words are restored to the preamble.
(v) The claim of 50% Mohammdan quota for the post graduate medical courses by the University is declared as unconstitutional and impermissible and they shall make no claim of minority quota in like or other manner in future.
(vi) The Union's communication dated 25.2.2005 vetting the purported minority status of the Aligarh Muslim University by permitting their claim of Muslim reservation is quashed and set aside.
(vii) The admission of Muslim students made on the invalidly claimed quota of 50% is maintained on account of pure practicality.
(viii) The University shall undertake an exercise of recasting the results of the examinations of 2005 and will ascertain thereby which of the cross appellants would have secured admission instead of which of the Mohammdan students admitted in the 50% quota; alternatively which of the 34 cross appellants would have obtained a more preferred choice of discipline according to their priorities, and instead, which Mohammdan students were permitted to have such disciplines because and only because of the 50% quota. The exercise shall be made by way of recorded writing and preserved in the documents and records of the University and communication shall be made by the University in this regard to the cross appellants or their advocates on record within a period of a fortnight from the date of completion of judgment.
(ix) The above exercise will not mean that any of the Mohammdan students will be dislodged by any of the cross appellants; the exercise will however mean that if possible, the University will offer the newly seen to be entitled cross appellants disciplines more of their choice, if according to the University they will be able to complete such disciplines within the limited time available in a reasonable manner.
(x) Furthermore, if any of the so seen newly entitled candidates have not secured admission to the Aligarh Muslim University at all and take the examinations for the post doctoral course in 2006, then and in that event, the better result of the two years shall be counted in favour of such cross appellants; it is clarified that such better results will be counted only within the same institutional reservation.
In granting the above orders, we are aware that in the Court below the prayer for restoration of the preamble of the Act to its original form was not made; in this type of litigation, however, in our opinion, the procedure of amendment is infinitely less important than the arguments made on the relief, and the necessity of making as quickly as possible one full and compendious order, so far as one particular Court is concerned, at one and the same time.
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