A controversy erupted recently with the repeal of the 1981 Amendment Act to the Aligarh Muslim University (AMU) Act, 1920. Will repealing the Amendment Act take away the minority status of the University? Such concerns started pouring in and made the general public anxious.
AMU was given its legal shape by the AMU Act, 1920. After 1950, many amendments took place in the said Act, and one of them was in 1981 through the AMU Amendment Act, 1981. The 1981 amendment can be read in the background of a judgement by a five-judge Supreme Court bench in the Azeez Basha case (1967).
In Basha, the court said “AMU was neither established nor administered by the Muslim minority”, and accordingly that the protection to minority institutions under Article 30 of the constitution of India does not apply at all to the university. The Supreme Court had different reasons to reach this conclusion which I am not getting into here.
Azeez Basha raised serious concerns amongst the Muslim community at large. Through the 1981 amendment, the word ‘University’ in the 1920 Act was defined as an “educational institution of their choice established by the Muslims of India, which originated as the Mohammedan Anglo-Oriental College, Aligarh”. The Act was further amended stating that the university shall have the power to promote the educational and cultural advancement of India’s Muslims.
There were 20 other amendments brought through the 1981 Amendment Act in different areas that are not relevant to the purpose of the present article.
Legislative process
In our parliamentary system, if a provision is added or deleted by bringing an amendment to an existing Act, then the proposed amendment has to be passed through a separate Act called the ‘Amendment Act’. Once this Amendment Act is passed, then it goes to the President for her assent. After assent is obtained, the Amendment is incorporated into the existing original Act. But at the same time, the Amendment Act simultaneously remains present in the statute book, though its purpose has been served.
This issue was clarified by a two-judge bench of the Supreme Court in Jethanand Betab (1960), when Justice Subba Rao stated that the main objective of repealing and amending Acts is only to strike out unnecessary Acts and remove dead matters from the statute book. This is to lighten the burden of an ever-increasing number of unnecessary legislations which have already served their purpose.
In this regard, there is another judgment of a two-judge bench of the Bombay high court in K.K. Vasudeva Kurup (2012), where it has been held that once the Amendment Act has served its purpose by amending the original Act, it is not necessary to continue the former in the statute book.
The controversy
Coming to 1981 amendments to the original AMU Act of 1920, it was a matter of general routine to remove the Amendment Act from the statute book. The only way of doing this was to repeal the Amendment Act.
I must clarify that those aspects of the 1981 Amendment Act relating to minority status were repealed in 1988 – much prior to 2019 – by the Repealing and Amending Act, 1988. But for some reason, two sections of the 1981 Amendment Act that did not relate to minority status were left out of the 1988 repeal. The Repealing and Amending Act, 2019 was enacted only to the extent of removing these two sections.
Similar confusion had arisen in 2015 in relation to the repeal of the Waqf Amendment Act 2013. Since the 2013 amendment was made part of the original Waqf Act of 1995, there was no reason to continue the Amendment Act in the statute book. Considering the seriousness of the controversy that had been created, the Central Waqf Council had to come up with a clarification that the amended provisions of 2013 in the Waqf Act were made part of the original Act and the same are still part of the law.
Minority status and AMU
In 2005, after the 1981 Amendment Act, the Allahabad high court again declared that AMU is not a minority institution within Article 30 and the 1981 Amendment was declared invalid. This issue came to the Supreme Court in 2006.
In February 2019, the Supreme Court held that the correctness of Azeez Basha has remained undetermined, and referred the matter to a seven-judge bench to decide whether the judgment is correct or not. Hence at this stage, the issue of AMU’s minority status is pending before the Supreme Court.
It is true that to connect the repeal of the 1981 Amendment Act to the minority status of AMU being taken away or even affected is a wholly incorrect understanding of the law. However, to undermine the anxieties of people with regard to the attack on minority institutions in the country is unfair. The shadow of Azeez Basha and the 2006 reference are just the tip of the iceberg.
M.R. Shamshad is an advocate, Supreme Court of India.