Centre's stand to withdraw appeal is 'political': AMU to Supreme Court

Aligarh Muslim University (AMU) on Tuesday opposed in the Supreme Court the NDA government's stand to withdraw the appeal filed by the erstwhile UPA regime against the Allahabad High Court order divesting the varsity of its minority tag, saying the decision was based on "political considerations."

AMU, in its affidavit, said a decision taken at the government level will not be nullified by a change of government led by another political party, particularly when such a decision affected the interests of the nation as a whole.
The university, while responding to the Centre's plea seeking withdrawal of appeal from the apex court, said the government cannot question the validity of a law made by Parliament or doubt the wisdom of Parliament in making the law, more so before a court of law.

It also opposed the ground taken by the NDA government that AMU was set up by a central act and that a five-judge constitution bench in 1967 in the Aziz Basha case had held that it was a "central university" and not a minority institution, saying the High Court had wrongly struck down certain sections of the Aligarh Muslim University Act, 1920 to take away its minority tag. Elaborating on the ground for opposing the Centre's plea, the varsity said the appeal filed by the UPA government cannot be withdrawn by the NDA government.

"Considering these facts and the importance of the issues involved in the present appeal, the decision taken after change of Government at the Centre, by the present NDA Government led by a member of the Bharatiya Janta Party, does not appear to be a sound decision based on cogent and valid reasons, but one based on political considerations," the varsity said in its affidavit. The AMU affidavit quoted the Centre's affidavit as saying: "simply asserting that the AMU has been established by the minority community is an illegitimate usurpation of judicial power."

It said such a plea on the part of the "executive wing of the State accusing Parliament of illegitimate usurpation of judicial power is unconstitutional, highly irreverential and irresponsible apart from being ex facie improper. It amounts to contempt of Parliament." The varsity further said "Union of India cannot be permitted to withdraw its appeal on this ground. It is well settled by this Hon'ble Court that a decision taken at the governmental level will not be nullified by a change of government by another political party assuming power particularly when such a decision affects the interest of the nation as a whole."

It said parliamentary democracy is part of the basic structure of the Constitution and therefore it is the duty of the Executive to defend Parliament whenever and wherever any Act of Parliament is challenged. "It is not open to the Central Government to question the validity of a law made by Parliament or to doubt the wisdom of Parliament in making the law; more so, before a court of law," it said.

The University said that apex court should appoint an eminent senior advocate as amicus curiae to assist it, considering the substantial questions of law of general public importance involved in the batch of appeals, including the correctness of Constitutional Bench judgments in Azeez Basha versus Union of India case.

It said that none of the facts mentioned by Centre are new and all the facts were in the knowledge of the Union when it had filed the present appeal before the apex Court in 2006. AMU said that in respect of other Universities, the Governor/Lt Governor used to be the Chancellor but the varsity was provided a special dispensation in 1920 in comparison to other State established universities which also shows its "unique minority character".

The Allahabad High Court had in January 2006 struck down the provision of the AMU (Amendment) Act, 1981 by which the university was accorded minority status. AMU Act was enacted in 1920 dissolving and incorporating Mohammedan Anglo-Oriental (MAO) College. AMU (Amendment) Act in 1951 was passed by Parliament to do away with compulsory instruction in Muslim theology. The amendment opened membership of the Court of AMU to non-Muslims.

Changes were introduced by the 1966 amendment to AMU Act, which was challenged before the Supreme Court by S Aziz Basha. The SC dismissed the petition in 1967 holding that AMU was not a minority institution because it had been established by an Act of Parliament and had not been set up by Muslims.