The central government has decided to withdraw its earlier stand in court on Jamia Millia Islamia’s (JMI) minority status, The Indian Express has learnt. The HRD Ministry will file a fresh affidavit in the writ petitions pending with the Delhi High Court, stating that its support for the order of the National Commission for Minority Educational Institutions (NCMEI) on February 22, 2011, declaring JMI a religious minority institution, was an error in its understanding of the legal position.
The Ministry will also tell the court that JMI was never intended to be a minority institution as it was set up by an Act of Parliament, and is funded by the central government. As first reported by The Indian Express on January 15, 2016, the Attorney General of India had advised the HRD Ministry, then under Smriti Irani, that it was entitled to change its view in court and revert to the stand that JMI is not a minority institution, and that to respect the ruling of NCMEI was not in accordance with the law.
The A-G, who was Mukul Rohatgi then, had further said that the government relies on the Supreme Court’s decision in the Azeez Basha Vs Union of India case of 1968 to support the change in its stand. In the Azeez Basha case, the apex court had said that AMU was not a minority university as it had been set up by the British legislature and not by the Muslim community.
The HRD Ministry, when it was under Irani, accepted the A-G’s advice, it is learnt. The writ petitions on JMI are not listed for hearing as of date. The government will file a fresh affidavit whenever it comes up for hearing. Higher Education secretary K K Sharma did not respond to The Indian Express’ query via email on August 4. JMI vice-chancellor did not wish to comment on the issue.
The shift in the government’s view, sources in the legal community said, wasn’t too surprising as it is in line with the Centre, under the NDA-II, retracting its predecessor’s stand on the minority status of AMU before the Supreme Court in January 2016. In 2011, the NCMEI had held that “Jamia was founded by the Muslims for the benefit of Muslims and it never lost its identity as a Muslim minority educational institution”, and was, therefore, “covered under Article 30(1)… read with Section 2(g) of the National Commission for Minority Educational Institutions Act”. Article 30(1) of the Constitution gives all religious and linguistic minorities the right to set up and run educational institutions, including schools, colleges and universities.
It was in pursuance of the NCMEI order of 2011 that JMI university discontinued reservation for SC/ST and OBC students and set aside half its seats in each course for Muslim candidates. Thirty per cent of the total seats in each course were earmarked for Muslim applicants, 10 per cent of the total seats for Muslim women applicants and another 10 per cent were reserved for Muslim Other Backward Classes and Scheduled Tribes as notified under the Central government list.
When the order was legally challenged, the HRD Ministry, under then minister Kapil Sibal of the UPA government, had submitted an affidavit in Delhi High Court stating that the government “respects the declaration made by NCMEI”. According to Section 2 (o) of the JMI Act, the Jamia University 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. It eventually shifted to Delhi and was run by a registered society called the Jamia Millia Islamia society. In 1962, JMI became a deemed university. In 1988, it got the status of central university through a central law
Courtesy: Indian Express