Even though the HRD Ministry had earlier supported JMI as a religious minority institution, it is now withdrawing that stance of its. 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.
Mukul Rohatgi, the then Attorney General of India, had advised the HRD Ministry then headed by Smriti Irani, that it can change its view in court and revert to the stand that JMI is not a minority institution.
He also told the ministry 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 wherein the Supreme 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. It is known that the HRD Ministry had accepted Mukul Rohatgi’s advice.
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.