The Supreme Court on Tuesday was told that the antecedent historical data recognising the Muslim character of Aligarh Muslim University (AMU) cannot be taken away merely because it has been brought under the statutory regime regulating its administration, curriculum, syllabus and other aspects of its functioning.

A seven-judge constitution bench comprising Chief Justice DY Chandrachud, Justice Sanjiv Khanna, Justice Surya Kant, Justice JB Pardiwala, Justice Dipankar Datta, Justice Manoj Misra and Justice Satish Chandra Sharma was told that in today’s regulated society, where everything is regulated including administration to ensure that staff both teaching and non-teaching get their due, curriculum, syllabus and other things, does not take away the minority character of the AMU.

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“In deciding the character of a university, the antecedent circumstance and the events are important … Recognition and affiliation cannot stand in the way of the minority institution … and the whole question of administration and aid from the government does not lead to minority institutions surrendering their rights,” senior advocate Rajeev Dhavan told the constitution bench.

Opening the arguments for one of the petitioners, senior advocate Rajeev Dhavan questioned the Central government for change in its stance from the one taken by all the earlier governments holding that even though AMU was a central university but it retained its Muslim character. However, the Central government, now, is no longer adhering to the earlier position.

Asking the Solicitor General Tushar Mehta to respond to this when he will advance his argument in the days to come, Rajeev Dhavan wondered: “How can there be a change of stance with the regime change. Whether the stance of the government can be changed with the change of the regime. I will like the solicitor General to address this issue.”

Dhavan said: “The provisions of the University Grants Commission Act, 1956 read with the National Commission for Minority Educational Institutions Act, 2004 clearly show that establishment or incorporation of an institution under a statutory regime will not deprive minority institution recognition.”

The top court is hearing a batch of petitions including by the Aligarh Muslim University, Aligarh Muslim University Old Boys Alumni Association and others, seeking the restoration of the minority character of the AMU.

The top court in 1967 had in the Azeez Bhasha case held that the AMU was a central university and, minority status under Article 29 and Article 30 cannot be conferred on it.

At the outset of the hearing, Solicitor General Tushar Mehta told the bench that the reference to the seven-judge constitution bench was confined within the ambit of Article 30 of the constitution, however, the written submissions of the senior advocates appearing for the petitioners have enlarged the scope of the hearing. At this, senior advocate Dhavan said that hearing of the matter will have to include 1968 five-judge constitution bench judgment and other aspects. Dhavan said that October 20, 1967 judgment was “internally contradictory” and that aspect had to be considered.

In a way the seven-judge constitution bench would be relooking the 1967 judgment by a five-judge constitution bench. The hearing will continue on Wednesday – January 10, 2024.