A Delhi High Court bench of Acting Chief Justice Justice Gita Mittal and Justice C Hari Shankar recently allowed the Centre’s plea to take on record the revised affidavit dated March 5, 2018, that indicated change in the stand taken by the government earlier in Vijay Kumar Sharma v National Commission For Minority Educational Institutions & Ors W.P.(C) 1970/2011. Further, in the absence of any demurrer to the Centre’s plea, the earlier affidavit dated August 29, 2011, has been struck off from the record.

On August 29, 2011, the HRD Ministry, under then minister Kapil Sibal, had submitted an affidavit in court stating that the government respects the declaration made by the National Commission for Minority Educational Institution (NCMEI) that Jamia Millia Islamia is a religious minority institution, however, this view has become otiose in view of the revised affidavit whereby the Centre has adopted a paradigm shift in its approach and has stated that the earlier stand of Government of India is an incorrect understanding of the legal position and the same may be withdrawn.

Bringing out anomalies in the previous affidavit, the revised affidavit inculcates that the previous affidavit had not taken note of S Azeez Basha v Union of India [AIR 1968 SC 662] in which the Supreme Court had enunciated that a university incorporated under the Act of Parliament cannot claim minority status. The germane excerpts from the revised affidavit are as follows:

“Treating a central university as a minority education institution is repugnant to law besides undermining its status and is against the basic tenet of a Central University.

By no stretch of imagination Article 30 (1) could be read to mean that even if an educational institution has been established by a Central Act, still the minority has the right to administer it.”

The NCMEI in 2011 had declared Jamia Millia Islamia as a religious minority institution in view of the fact that Jamia Millia Islamia was founded by Muslims for the benefit of the community and it never lost its identity as a Muslim minority educational institution. The commission had also said the institution was covered under “Article 30 (1), read with Section 2 (g) of the National Commission for Minority Educational Institutions Act”.

Interestingly, the fickle view of the Centre is in line with its stand on the minority status of Aligarh Muslim University (AMU) before the Supreme Court in January 2016, wherein the erstwhile Attorney-General voiced that AMU could not be categorised as a minority institution.

Incidentally, Article 30(1) indubitably gives minorities, whether based on religion or language, the right to ‘establish and administer educational institutions of their choice’. It is noteworthy that the State under Article 30(2) cannot, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is a minority institution.

According to Section 2 (o) of the the JMI Act, Jamia Millia Islamia was established by Muslim nationalist leaders in 1920 at Aligarh in response to Mahatma Gandhi’s call to boycott all educational institutions supported or run by the colonial regime, a group of nationalist teachers and students quit Aligarh Muslim University, protesting against its pro-British inclinations. The prominent members of this movement were Maulana Mehmud Hasan, Maulana Mohamed Ali, Hakim Ajmal Khan, Dr. Mukhtar Ahmad Ansari, and Abdul Majid Khwaja. Jamia Millia Islamia became a Central University by an Act of the Indian Parliament in 1988.