New Delhi: The Delhi High Court on Tuesday recalled its order taking on record an affidavit of the NDA government saying Jamia Millia Islamia was not a minority institution, and striking off the response of the erstwhile UPA government supporting its minority status. The high court recalled its 13 March order saying it had "erroneously" not noted that there were other parties in the matter who could have been affected by the proceedings.
It allowed the plea of the university vice-chancellor, its registrar and the teachers' association that the present government has not established any ground for replacement of the existing affidavit of 29 August, 2011. They said that neither were they served a copy of the Centre's recent application to take on record the fresh affidavit, nor were they heard before the disposal of the plea.
A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar said there was merit in the submission and added: "we have erroneously not noted that there were other respondents, who could have been affected by the outcome of the proceedings". The court said it was trite that all the affected parties were required to be heard before passing an order and recalled its 13 March order.
On 13 March, the court had accepted the prayer made by the Centre's counsel and permitted them to file a fresh counter affidavit which was submitted on 5 March. It had also said that the 2011 affidavit supporting the minority status, shall stand struck off from the record. Reversing the previous government's stand, the Centre had filed the revised affidavit in the high court opposing the order of the National Commission for Minority Educational Institutions (NCMEI) declaring Jamia Millia as a religious minority institution.
The HRD ministry, under then minister Kapil Sibal of the UPA-II government, had on 29 August, 2011, submitted an affidavit in the court stating that the government respects the declaration made by NCMEI. The fresh affidavit, filed by the BJP-led government last month, cited the Supreme Court's decision in the Azeez Basha Vs Union of India case of 1968 to justify the change in stand. It stated that the first affidavit did not take note of the Azeez Basha case, in which the apex court had said that a university incorporated under an Act of Parliament cannot claim the status of a minority institution.
“In any event, in the present case, the Board of Jamia Millia Islamia (JMI) is elected and need not necessarily consist of majority belonging to Muslim religion. The question of it being a minority institution therefore does not arise,” the affidavit, filed by deputy secretary of Department of Higher Education under the HRD ministry, had said.
“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 affidavit had said.
It had said that the earlier stand of the government that it respected the NCMEI's decision that JMI was a minority institution may be treated as withdrawn, considering its repugnancy vis-a-vis the facts and Supreme Court ruling in Azeez Basha's case and "treating it as an incorrect understanding of the government about the legal position that JMI is a minority institution".
The latest affidavit had concluded that JMI “is not a 'minority institution' having been set up by an Act of Parliament and funded by central government and also that it was not set up by a minority sect”.
The high court had in March 2011 sought the Centre's response on a petition seeking quashing of the order of the NCMEI conferring minority status to JMI. Petitioner Vijay Kumar Sharma had argued that the commission's order was "contrary to law and violative of provisions of the Jamia Milia Islamia Act".
The 22 February, 2011 order of NCMEI empowered the university to do away with all existing quota policies for the SC/ST and OBC candidates and reserve 50 per cent of the seats for Muslim students in all its programmes.
The petition had said,"the Commission order will mean, a large number of students belonging to non-Muslim community will be deprived of their right to seek admission in the university. Such a reservation cannot be allowed in a central university managed and funded by the state."
Firstpost is now on WhatsApp. For the latest analysis, commentary and news updates, sign up for our WhatsApp services. Just go to Firstpost.com/Whatsapp and hit the Subscribe button.
Updated Date: Apr 24, 2018 21:41:03 IST