Can A Government Law Officer Argue Against Law Made By Parliament: Read Heated Discussion Before Constitution Bench
On the fifth day of hearing before the Constitution Bench in the matter pertaining to the minority status of the Aligarh Muslim University (AMU), a heated discussion took place, when Solicitor General Tushar Mehta appearing for the Union of India submitted that the Centre is not accepting the amendment made by the Parliament in 1981 to the Aligarh Muslim University Act 1920.
In support of his argument, he said that if a law officer is to accept all the laws made by the Parliament, then a law officer would have had to accept all the amendments made during the Emergency (1975-1977).
It is to be noted that the Parliament in the year 1981 amended the Aligarh Muslim University Act 1920 to confer minority status to the University. Subsequently, in 2006, the Allahabad High Court struck down the 1981 amendment declaring that AMU was not entitled to claim the rights under Article 30 of the Constitution.
During the course of arguments, Justice Khanna asked, “This is an amendment by the Parliament…Is the government accepting the amendment or not?”
“I am not”, said Mehta in response.
To which, the CJI immediately retorted saying, “How can you not accept an amendment by the Parliament? Mr. Solicitor, Parliament is an eternal, indestructible body under the Indian Union”.
Tushar Mehta agreed and added that it is continuing.
“…and irrespective of which government represents the cause of the Union of India, Parliament’s cause is eternal, indivisible, indestructible. We can’t hear the government of India to say that the amendment that the Parliament have made is something that I don’t stand by. You have to stand by this amendment”, CJI continued to say.
“Allow me to answer that…”, said Mehta.
However, CJI continued, “You have an option to go to the amending rules and change the Amending Act again”.
“Milords, I am not arguing a matter of A v. B, I am before a 7-judge-Constitution Bench, answering constitutional questions that is No. 1. No. 2, the amendment in question was subjected to challenge before the High Court and there is a judgment declaring that it is unconstitutional for A,B,C,D grounds and as a Law Officer it is my right, as well as my entitlement and duty, to say that this view appears to be correct”, Mehta said.
CJI, expressing his disagreement with the argument, said, “This would be radical, because a Law Officer would be then telling us that I don’t abide by what Parliament has done…Parliament is undoubtedly supreme in its law-making function. Parliament can always amend the statute, in which case, a law officer can say that now I have an amended statute”.
“Can we hear any organ of Union government to say that notwithstanding a parliamentary amendment, I don’t accept this amendment”, he added further.
“Milord I am supporting the judgment”, said Mehta in reply.
“Would a Law Officer be expected to say that whatever amendments were made in the Constitution of India during emergency were true only because they were made by the Parliament, here I have a judgment of the High Court…”, asked Mehta.
CJI interrupted the Solicitor General to say, “That is why the 44th Amendment came…It was only for that…it came to redress the evils which were perpetrated in the name of constitutional amendments... Parliament can always say that what we did during the emergency was wrong and we are rectifying it...”.
Mehta then said, "Not after it is set aside by the Division Bench of a High Court and therefore it is not on the statute book. And when I am not in an A v. B situation, I am before a Constitution Bench answering a legal proposition- whether such a thing can be done or not. There is an affidavit filed by the government, it is not my stand. It could have been my stand also, but if I can’t argue that this amendment could not have been made, I will have to support, or any law officer will have to support, every amendment made during the emergency, irrespective of whether it is my view or somebody else’s view that this was to remove some anomalies or bad things happening to the citizens of India...”.
Senior Advocate Kapil Sibal then made a submission which was not audible. Tushar Mehta then turned to Sibal appearing for the Old Boys Association (who was objecting to the statement) and said, “…I am sorry please don’t make it a political thing”.
The discussion between Sibal and Mehta however was then put to rest by CJI, when he said, “Let’s not allow the pristine character of the dialogue to degenerate. We will give you 30 seconds to make your point of law, not personally on the Solicitor General. Let's keep our personal... just 30 seconds".
Sibal then submitted, "I was in court on the day the emergency argument was made. I was only going to make a historical reference. I was sitting in Court when the Attorney General of India Niren De was standing here and arguing that what is being done is right. I defend the emergency provision. Why? Because he could not say otherwise. It was only that I am saying. I was not going to say anything against him(Solicitor General)".
Tushar Mehta then said, "You did say something, you used an uncivilised word which is not used in the Court and you generally do not use".
Mehta then continued to make his point, "The distinction is, Niren De was not in a situation where one High Court had struck it down and the provision was not on the statute book".
"Yes, Madhya Pradesh High Court had struck it down", Sibal retorted.
"There were other High Courts which had upheld. All your lordships are aware. Mr. Niren De told the Court that if somebody is hanged, he said we cannot do anything. It was not to defend it. It was to instigate the judges that- please interfere. Everyone knows that there are two versions. When Mr. Niren De, the learned Attorney General then, told the Court, when the Court asked- do we not protect Article 21 if somebody is being hanged or his personal liberty is deprived- he said yes you cannot do it. It was not to defend the act. It was to instigate the Court. This is the position, please interfere", Tushar Mehta submitted.
Trying to put an end to the discussion, Justice Surya Kant said, "Mr Solicitor General, let's come back to the point. Your argument is that 1981 amendment you need not comment for the simple reason that by virtue of a judicial verdict, this provision has been erased from the statute book".
"Correct. It does not exist as of now. I will leave it at that", Tushar Mehta submitted and moved on with his submissions.
The Constitution Bench hearing the matter comprises Chief Justice DY Chandrachud, Justice Sanjiv Khanna, Justice Surya Kant, Justice JB Pardiwala, Justice Dipankar Datta, Justice Manoj Misra and Justice Satish Chandra Sharma.
Earlier, before the Constitution Bench, Advocate Shadan Farasat appearing for petitioners argued that if the University ceases to be a minority institution, then that would hamper the education of Muslim women in India. Solicitor General Tushar Mehta objected to the argument saying that it belittles Muslim women.
Senior Advocate Kapil Sibal appearing for a Petitioner (Old Boys Association), previously argued that since the minority community could not have been empowered through reservation, there was no other way to give an opportunity to those left out, except through Article 30.