The Supreme Court on Tuesday asked the Union government to give religion-wise data of students studying across institutions deemed to be of national importance after the latter argued that the Aligarh Muslim University (AMU) cannot demand minority status owing to its special character as an educational institution.

The seven-judge Constitution bench, led by Chief Justice of India Dhananjaya Y Chandrachud, called upon the Centre to adduce the statistics to back its claim that no other institution of national importance has any religious minority as a dominant group.

“Do you have the data regarding that? There is no question of reservation in such institutions because it’s barred under Article 15 (prohibiting discrimination based on religion),” the bench, which also comprised justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma, observed.

“It asked If you have the data, give us a break-up,” it told solicitor general Tushar Mehta, who represented the Centre in the case and argued that the idea of granting minority status to AMU, which is an institution of national importance, fall afoul of ideals of social justice and equality.

READ | Aligarh Muslim University cannot be minority institution, Centre tells SC

According to Mehta, all institutions of national importance must show diversity and the national structure and therefore, AMU cannot press for a minority status to defeat the representation that the marginalised sections of society are entitled to. If declared a minority institution, AMU need not reserve seats for Scheduled Castes, Scheduled Tribes, other backward classes (OBC) and economically weaker sections (EWS).

“If AMU, despite being one of the finest universities would not have reservation for ST/SC/ OBC and would have at least 50% reservation for Muslims, a deserving candidate of SC/ST community would not have reservation but a person having all economic resources at his command will have entitlement to this institution based only on religion,” contended the law officer, arguing on the sixth day of the hearing related to AMU’s minority status.

As Mehta informed the bench that there are as many as 165 such institutions of national importance, the court sought to know the religious composition of these institutions. “We will provide give it in 2-3 days. All such universities have students from all walks of life,” the S-G said.

The court is seized of a clutch of petitions, seeking reconsideration of the Supreme Court’s five-judge bench judgment in the Azeez Basha case in 1967. The 1967 judgment declared that AMU was not a minority institution and could not enjoy protection for minorities to administer educational institutions under Article 30(1) of the Constitution. In 1981, Parliament passed amendments to the AMU Act to change the definition of “university” in its endeavour to grant minority status to AMU.

The Allahabad high court, however, junked these amendments in 2006, leading to AMU and the then United Progressive Alliance (UPA) government to challenge it before the Supreme Court. But in 2016, in a reversal of the previous stand, the National Democratic Alliance (NDA) government sought to withdraw the Centre’s appeal, maintaining that AMU is not a minority institution and that the Basha judgment was correct. The Centre also said that it does not support the 1981 amendments in the AMU Act.

In its written submissions, the Centre has maintained that AMU is an institution of “national character” that ought to maintain its secular origins and serve the larger interest of the nation first.

“Owing to the obviously secular ethos and nature of the nation and the Constitution, considering the fact that AMU is an institution of educational ‘national character’, it cannot be considered to be a minority institution irrespective of the question whether it was established and administered by the minority at the time of inception or not,” stated Mehta’s written submissions, adding no other institution declared to be of national importance by Parliament is a minority institution.

On Tuesday, Mehta further argued that statute is the final word for understanding the character of an institution and since the AMU Act neither describes it as a minority institution nor provides for administration only by persons belonging to a minority community, the petitioners cannot ask the court to go behind the statute to ascertain the facts relating to the founding of the University.

Responding, the bench said that merely because the AMU Act provides for the manner of administration, it cannot lead to a finding whether it was a minority or majority institution. “Just because administration is provided by the statute that may not be criteria. We have to find out who are the people actually administering it,” it added. The S-G, on his part, highlighted that Parliament refused to grant rights of administration to the community by way of a statutory change even though it amended the AMU Act in 1981 to state that the University was established by Muslims.

Following the conclusion of Mehta’s submissions, senior advocate Rakesh Dwivedi argued on behalf of one of the petitioners who had approached the Allahabad high court, challenging the 1981 amendments.

Dwivedi opposed the plea for the grant of minority status, arguing neither Muslims nor any other community was considered minority during the British rule nor did Sir Syed Ahmad Khan, who founded AMU, moved the proposal to set it up as a minority institution. He pointed out that Khan was an employee of the British government, who acted as an extended arm of the then rulers and used their money and resources to set up AMU.

The court, however, told Dwivedi that the dominance test must depend on the community, not individuals. “Dominance has to be in relation to the community and not to the founder alone just because the founder was bowing down to the then powers…Also, dominance can keep on varying from time to time…Dominance is also a function of socio-economic advancement. What if there’s a community which does not have the benefit of education as the Muslims were at that time, the community was not highly advance socially, economically etc,” it said.

The court added that minority rights are group rights and cannot depend on individuals. “A political party in a state may regard a minority as an important vote bank. So, can we say that it fulfils all criteria of being minority, but since it is an important vote bank, it is not minority? Then the whole thing becomes very subjective,” it said.

Dwivedi also implored the bench to determine a definition of “minority”, saying it is high time the seven-judge bench lays down the criteria for availing of entitlements under the Constitution.

The bench will continue hearing the case on Wednesday.

The Constitution recognises “institution of national importance (INI) under Entry 63 of the Union List. The Centre grants the status of INI to premier higher educational institutions in India through an act of Parliament. According to the Ministry of Education, an INI is an institute that “serves as a pivotal player in developing highly skilled personnel within the specified region of the country/state”.

Such institutions get special funding from the Centre while the University Grants Commission Act gives them the ‘Degree Granting Status’ too. IITs, IIMs, AIIMS and Delhi University also figure in the list of 165 INIs.