A government cannot choose not to stand by a parliamentary enactment, a seven-judge bench of the Supreme Court said on Wednesday, debating a point of order with the government’s law officer in a case concerning the minority status of Aligarh Muslim University (AMU).Questioning the Centre for its disagreement with the parliamentary amendments in 1981 that sought to grant minority status to the Aligarh Muslim University (AMU), the Constitution bench pointed out that the government and its law officers should support the amendments until Parliament’s exercises its “supreme power” to make subsequent changes. It highlighted that, till then, such decisions have to be defended before a court of law by the government irrespective of the dispensation in power.
“Parliament is an eternal, indestructible body under the Indian Union. Irrespective of which government represents the cause of the Union of India, Parliament’s cause is eternal, indivisible and indestructible. We cannot hear the government of India to say that an amendment which Parliament made is something they don’t stand by,” observed a bench led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud.Adding it will be “radical” for the government’s law officer to oppose parliamentary legislations, the bench said: “Can we hear any organ of the Union government to say that ‘notwithstanding a parliamentary amendment, I don’t accept this amendment’? Parliament is an eternal, indivisible and indestructible entity under the democracy.”While it is always open to Parliament to further modify its amendments, the bench that also comprised justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma, added the government ought to defend all legislative acts.The court’s observations were triggered by solicitor general (SG) Tushar Mehta’s categorical statement that the law officer and the government do not subscribe to the 1981 amendments that sought to nullify a five-judge bench judgment in the Azeez Basha case in 1967. The 1967 judgment declared that AMU was not a minority institution and could not enjoy protection for minorities to administer educational institutions under Article 30(1) of the Constitution. In 1981, Parliament passed amendments to the AMU Act to change the definition of “university” in its endeavour to grant minority status to AMU.The Allahabad high court, however, junked these amendments in 2006, leading to AMU and the then United Progressive Alliance (UPA) government to challenge it before the Supreme Court. But in 2016, in a reversal of the previous stand, the National Democratic Alliance (NDA) government sought to withdraw the Centre’s appeal, maintaining that AMU is not a minority institution and that the Basha judgment was correct.On the fifth day of the arguments before the seven-judge bench, S-G Mehta said that the 1981 amendments seemed to have changed the historical fact how AMU was established and that he has never come across such an amendment. When asked by the bench whether the government was accepting the 1981 amendment or not, Mehta replied in negative.“How can you (government) not accept an amendment by Parliament? Mr Solicitor, Parliament is an eternal, indestructible body under the Indian Union...We cannot hear the government of India to say that an amendment which Parliament made is something they don’t stand by. You have to stand by this amendment,” the bench told Mehta.It added that Parliament can go through the amending route again to make further changes. “Parliament has the ultimate power,” it said.
Responding, the SG said that after the 2006 judgment of the Allahabad high court, it is his right as a law officer as well as a duty to say that he agrees with the high court.“This will be radical because then a law officer will be telling us ‘I will not abide by what Parliament has done’. You have to stand by what Parliament has done. Parliament is undoubtedly supreme in its law-making function. Parliament can always amend a statute in which case a law officer can say that ‘now I have an amended statute’. Can we hear any organ of the Union government to say that notwithstanding a parliamentary amendment, I don’t accept this amendment? How can you say that I do not accept the validity of a parliamentary amendment?” it asked.At this point, the SG raised set of notorious amendments made in 1976 by the then Indira Gandhi government during the Emergency to suspend the fundamental rights and curtail the power of judicial review of the constitutional courts. “Could a law officer today say that I stand by whatever amendments were made during the emergency? Besides, here, I have a judgment of a constitutional court,” he said.Justifying its plea, the Centre on its part has maintained that AMU was established under a 1920 law and not by the Muslim minority, adding it was never accorded the status of a minority institution.The court will resume its hearing in the case on January 30.AMU was established with a purpose to provide secular education to a community that was in the lowest stage of education at the time, the Supreme Court observed on Wednesday, wondering if the University could be denied minority status solely based on the facts and regime that prevailed in the pre-Constitution era.Differentiating AMU from IIT-Roorkee, which was also established before independence, the court said that AMU was different from other institutions of specialisation or excellence. “It was to provide a forum for the upliftment of a community that had traditionally been deprived of education,” said the CJI-led bench.“Post-Constitution must we not bring in all our rights realisation in a manner consistent with our Constitution? Anything else, will that be a sound constitutional doctrine? Anything that happened pre-Constitution, does it not have to be brought in conformity with the post-Constitution rights regime?” it asked SG Mehta.On Mehta’s assertion that AMU surrendered its denominational character and agreed to overarching control of the British government in 1920, the court observed that any surrender of rights during the imperial rule should be viewed with the strictest possible construction. “Because what you are really stating is that someone otherwise entitled to that right had surrendered that right,” said the seven-judge bench.
TAGS: Supreme Court AMU Minority Status Parliamentary Enactments Constitutional Bench Government Stand
