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Uttarakhand’s UCC Bill: Unravelling the Impact and Implications for Uttarakhand.

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INTRODUCTION:

Uniform Civil Code (UCC) seeks to establish a uniform body of laws that regulates personal affairs, including inheritance, property rights, marriage, and divorce, regardless of a person’s religious beliefs. The Directive Principles of State Policy (DPSP) are policies that the Indian Constitution seeks to implement for the benefit of society. The DPSP is defined in Chapter IV of the Indian Constitution, which states that the state shall strive to establish a Uniform Civil Code (UCC) throughout India’s territory. Personal laws in India are currently governed by scriptures, which can be confusing and discriminatory towards women’s rights. The DPSP, which was enacted to ensure civil law uniformity, has yet to be enforced.

The fundamental goal of the UCC is to treat every citizen equally under the same set of civil laws, irrespective of their race, religion, caste, or section. According to Article 44 of Chapter IV of Indian constitution, “The State shall endeavour to secure for its citizens a Uniform Civil Code (UCC) throughout the territory of India.”

HISTORICAL BACKGROUND OF UCC:

The Uniform Civil Code (UCC) first appeared in the British government’s 1835 report on colonial India, which emphasised the need for uniformity in the codification of Indian law in terms of crimes, evidence, and contracts, and specifically suggested that personal laws of Hindus and Muslims be kept out of such codification.

Increased legislation dealing with personal issues in the far reaches of British rule compelled the government to establish the B N Rau Committee to codify Hindu law in 1941. The Hindu Law Committee’s task was to investigate the necessity of common Hindu laws. The committee, following scripture, recommended a codified Hindu law that would grant women equal rights.

The Rau Committee report was submitted to a select committee chaired by B R Ambedkar, which met in 1951 following the adoption of the Constitution. While discussions were ongoing, the Hindu Code Bill lapsed and was resubmitted in 1952. The bill was then passed as the Hindu Succession Act in 1956, which amended and codified the law governing intestate or unwilled succession among Hindus, Buddhists, Jains, and Sikhs.

WHY UCC IS IN NEWS:

The Uniform Civil Code has been a source of contention and discussion in India for decades. Recently, the state of Uttarakhand took a significant step towards implementing a UCC.
Previously, the State government formed a five-member committee led by Desai to develop a draft proposal for implementing the UCC. The committee prepared a draft bill, which the chief minister introduced in the assembly. Following deliberations, the Uttarakhand assembly passed the Uniform Civil Code Uttarakhand 2024 Bill, making it the first state in India to implement a Uniform Civil Code.  

The Bill establishes common law for matters such as marriage, divorce, property inheritance, and so on, and it applies to all Uttarakhand residents with the exception of scheduled tribes.

HIGHLIGHTS OF THE UCC ACT:

  • The Uniform Civil Code establishes a common law for marriage, divorce, and property inheritance, replacing personal laws from various religions. The common code prohibits bigamy and polygamy, and provides equal property rights to both sons and daughters.
  • It eliminates the distinction between legitimate and illegitimate offspring, ensures equal property rights after death, and applies to both adoptive and biological children.
  • The law requires live-in couples to be legally registered. According to the proposed legislation, people who are in a live-in relationship must officially register their relationship within a month of starting it and obtain parental consent. Registration of such partnerships is required for “any individual residing in Uttarakhand or in a live-in relationship outside of the state.” Registration, however, may be denied if one partner is married, a minor, or if consent to the relationship was obtained through coercion or fraudulent means. Partners can also end their relationship by submitting a statement to the registrar.
  • The UCC Bill sets the marriage age at 18 for women and 21 for men across all communities. Furthermore, it is not permissible to file a divorce petition until at least one year after marriage.
  • The Uniform Civil Code will not apply to Scheduled Tribes (ST) community members.

WHY IS IT OPPOSED?:

  • The opposing views on the current bill stem from a variety of reasons. The passage of this legislation would potentially violate various communities’ religious autonomy by interfering with religious customs and traditions without their consent.
  • Some argue that a single code may not adequately accommodate the diverse customs and sensitivities of various communities. This, in turn, may limit the diversity of religious and cultural practices in India.
  • On the issue of live-in relationships, critics claim that the bill allows the government to intrude into citizens’ personal lives. They believe that the rules governing live-in relationships are an invasion of privacy.
  • The state’s opposition parties oppose passing the bill because they believe there was insufficient debate on it, and they have proposed that the bill be referred to a select committee of the House to examine its provisions.
  • Some religious leaders have questioned the government, asking why Scheduled Tribes are excluded but cannot be Muslims.
  • People also felt that personal-related practices are deeply ingrained in the religious and cultural identities of various Indian communities. Implementing a uniform civil code may require them to give up their identities, which could lead to turmoil in society and communal tension.

CONCLUSION:

For decades, the Uniform Civil Code (UCC) has sparked debate and discussion in India. It seeks to establish a uniform set of laws governing personal matters such as marriage, divorce, property rights, inheritance, and others, regardless of an individual’s religion. The implementation of the Uttarakhand Uniform Civil Code is a significant step towards equality and social justice. It reflects the state’s commitment to ensuring that personal laws are uniform regardless of religious affiliation. Though the bill has both supporting and opposing views, it will be interesting to see how the bill affects the lives of Uttarakhand residents as it works its way through the legislative process.

 

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Written by – Surya Venkata Sujith

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Regulatory Conformity in Digital Finance: Paytm’s Compliance Journey with RBI Directives

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Introduction

In the fast-changing field of digital finance, regulatory compliance is essential for ensuring confidence, stability, and security. Paytm, India’s top digital payment provider, has faced numerous hurdles in complying with the RBI’s rigorous standards. The crux of the matter involves RBI issuing orders barring new deposits after February 2024. Restriction upon Paytm payment bank limited was imposed to not allow deposits, credit transactions, top ups in any customer accounts, wallets, FASTags, etc. after February 29, 2024

Legal background

The Reserve Bank of India, in exercise of its powers under section 35A of the Banking Regulation Act, 1949, had directed Paytm Payments Bank Ltd (PPBL or the bank) to stop onboarding of new customers with immediate effect The Comprehensive System Audit report and subsequent compliance validation report of the external auditors revealed persistent non-compliances and continued material supervisory concerns in the bank, warranting further supervisory action. Accordingly, in exercise of its powers under section 35A of Banking Regulation Act, 1949 and all other powers enabling it in that behalf, the Reserve Bank of India, has today directed PPBL as, [1]

After February 29, 2024, no more deposits, credit transactions, or top-ups will be permitted in any customer accounts, prepaid instruments, wallets, FASTags, NCMC cards, and so on, with the exception of any interest, cashbacks, or refunds that may be credited at any moment.

Customers may withdraw or use balances from their accounts, including savings bank accounts, current accounts, prepaid instruments, FASTags, National Common Mobility Cards, and so on, without restriction, up to the available balance.

After February 29, 2024, the bank should not provide any other banking services, including fund transfers (regardless of the name or type of the services, such as AEPS, IMPS, etc.), BBPOU, or UPI facilities.

The Nodal Accounts of One97 Communications Ltd. and Paytm Payments Services Ltd. will be cancelled as soon as possible, but no later than February 29, 2024.

Nodal accounts – Nodal Accounts are bank accounts that businesses open to hold funds on behalf of their customers and vendors. It was implemented by the RBI to ensure that no business or intermediary withholds illicit funds from its clients.

Challenges faced by Paytm

Paytm faces various hurdles in conforming to RBI requirements, including KYC compliance. The RBI requires strong KYC rules to verify customers’ identities and reduce the risk of financial crimes such as money laundering and terrorism financing. However, executing KYC rules presents practical hurdles, particularly in distant places with limited access to documentation. Paytm faces the tricky issue of balancing regulatory compliance with user comfort and accessibility.

The RBI-imposed transaction limits provide another problem for Paytm. While these limits are necessary to avoid misuse and ensure financial prudence, they can occasionally impede the smooth operation of digital payment platforms, especially for high-value transactions or during busy hours.

Paytm continues to prioritize data security as part of its regulatory compliance efforts. The RBI stresses strong cybersecurity measures to safeguard users’ sensitive information and avoid data breaches. Paytm will need to invest considerably in technology and infrastructure to ensure compliance with these severe security requirements.

Furthermore, ensuring interoperability with other payment platforms and banks, as required by the RBI, poses technological and operational problems. Interoperability allows for easy transactions across different payment systems, which increases user convenience. However, establishing interoperability necessitates substantial coordination and standardization efforts from multiple stakeholders.

Addressing regulatory issue

Paytm has a multifaceted approach to dealing with regulatory obstacles. The organization invests in cutting-edge technology and robust infrastructure to improve data security and compliance. Paytm also employs novel methods, like as biometric authentication and e-KYC, to streamline the KYC process and improve customer experience. Additionally, Paytm works closely with regulatory authorities and industry stakeholders to ensure that its operations are in line with developing regulatory standards. The company actively participates in industry forums and working groups to inform policy discussions and build regulatory frameworks that promote digital innovation and financial inclusion. Furthermore, the company, part of One97 Communications, is a leader in Indian fintech and faces challenges of regulatory scrutiny and customer uncertainty. The organisation also announced that it will set up a three-member advisory committee to strengthen the governance matters.[2]

Conclusion

Lastly, as India’s leading digital payment platform, Paytm has substantial hurdles with regulatory compliance. Paytm, on the other hand, addresses these difficulties head on by leveraging technology, engaging with regulators, and emphasizing user education, reinforcing its commitment to regulatory compliance, consumer trust, and financial integrity. As India’s digital economy evolves, Paytm’s path to regulatory compliance demonstrates the need of innovation, collaboration, and responsible governance in building a strong and inclusive financial ecosystem.

[1] https://www.rbi.org.in/Scripts/BS_PressReleaseDisplay.aspx?prid=57224

[2] https://www.business-standard.com/companies/news/paytm-payments-bank-rbi-controversy-how-will-it-impact-the-customers-124020901485_1.html

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Written by- Namitha Ramesh

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Dual Employment Dilemma: Navigating India’s Labor Laws and Contractual Challenges in the Modern Workforce Landscape

Articles

INTRODUCTION:

Dual employment is becoming more common as people look for different professional experiences or numerous sources of income in today’s competitive labour environment. Employees may benefit from this, but there are also legal and regulatory issues here, especially in a nation like India. . The increasing pursuit of diverse career pathways by professionals and the exploration of flexible organisational structures by organisations necessitate the comprehension of the intricate regulatory standards regarding dual employment.

Understanding Dual Employment:

Being employed by more than one employer at the same time is known as dual employment in India or the double employment rule. This indicates that a worker works a full-time job and gets paid by one business while working part-time for another company.

The ‘Moonlighting Clause’:

To better enforce this objective, many employers put a “Moonlighting Clause” in their agreements, offer letters, or employment contracts. As a “Negative Covenant,” the Moonlighting Clause forbids employees from moonlighting or taking on side work while doing their regular duties. This is a legally binding rule that is crucial to maintaining transparency and compliance in the workplace in India.

The Moonlighting Clause is typically explained to the employee during the onboarding process to ensure that both the employer and the employee agree to its conditions. It provides information to the employee about their obligations by describing the specific conditions and restrictions related to doing two jobs concurrently.

LEGAL FRAMEWORK:

Section 60 of the Factories Act lists several restrictions on dual work. It is quite clear that “unless there are specific circumstances that may be prescribed, no adult worker shall be required or allowed to work in any factory on any day on which he has already been working in any other factory.” Employing organisations that are not categorized as “factories,” as that term is defined in Section 2(m) of the Factories Act, are subject to the Shops and Establishments Act. This all-encompassing law governs employment and working conditions in a variety of settings, such as retail stores, offices, motels, restaurants, theatres, and public amusement areas. Schedule I B, Section 8 of the Industrial Employment (Standing Orders) Act, 1946 lays forth the terms of an order for “exclusive service.” The directive concentrates on the following: “A worker shall not, at any time, act against the interests of the industrial establishment in which he is employed, nor shall he accept employment outside of the establishment that could be detrimental to the interests of his employer.” The constitution’s Article 21 guarantees both the right to life and individual freedom.

In the case of Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni, the Court held that “the right to livelihood” is a part of “the right to life” as guaranteed by Article 21. The Court interpreted this ruling liberally.

EMPLOYMENT CONTRACT (RULES AND REGULATIONS) AND PROCESS OF SEEKING PERMISSION FOR DUAL EMPLOYMENT:

Employment contracts, which are formal agreements between employers and employees, specify the terms and circumstances of a professional engagement. These include the duties and obligations of the parties, working hours, compensation, and any specific rules and regulations governing the employment relationship. Employees typically need authorization from their primary employers to work two jobs at once. This involves following a proper process in which individuals inform their primary employers of their intention to take on additional work and receive their permission. Understanding the proper channels and procedures for asking authorization is crucial to maintaining transparency and averting conflicts.

In the case of Manager, Pyarchand Kesarimal Ponwal Bidi Factory vs. Omkar Laxman Thange and Others, an employee was transferred from a factory to the head office. The Supreme Court noted that the general rule governing the relationship between a master and servant is that a service contract with one master precludes service with another master unless the contract expressly states otherwise or the master consents.

In a decision upheld by the Supreme Court, the Madras High Court held in the case of Tamil Nadu Racecourse General Employees Union v. Government of Tamil Nadu that “if the contract provides otherwise or the master consents, there may not be any prohibition to have dual employers.”

POTENTIAL LEGAL CONSEQUENCES FOR NON-COMPLIANCE:

Regulations prohibiting multiple works must be followed, or there may be dire repercussions. The possible legal repercussions, including contract termination, fines, and legal actions, would be described in this section. Employers and workers are encouraged to follow the rules because they are aware of the potential repercussions, which create a compliant and responsible work environment.

CHALLENGES AND SUGGESTIONS:

Conflict of Interest: Having two jobs can put you in a conflict of interest, particularly if they are in related or competing businesses. Employees should exercise caution when accepting dual employment offers that could compromise their primary position, as employers may insert clauses in employment contracts addressing such conflicts.

Performance and Commitment: Employers might be worried about how a person’s performance and dedication to their main work could be affected by having two jobs. It is imperative that employers and employees communicate openly in order to resolve any issues and set clear expectations for the amount of time and effort required.

Legal Consequences: There may be legal repercussions if employment contracts or applicable labour regulations are broken. If an employee works more than one job without permission, their employer may discipline them, perhaps terminate them. Workers have to operate in compliance with the relevant regulations and be conscious of the possible legal ramifications.

CONCLUSION:

Navigating India’s multiple employment rules requires a thorough understanding of the relevant labour laws and employment contracts. Employers and employees are both necessary to ensure compliance and address any difficulties. Maintaining the integrity of employment relationships while fostering a work environment that fulfills the evolving needs and goals of the workforce necessitates open communication, transparency, and compliance with regulatory requirements. As the nature of work continues to evolve, all stakeholders in the employment ecosystem need to be informed of how the law is evolving.

REFERENCES:

  1. https://www.linkedin.com/pulse/landscape-dual-employment-india-laws-regulations-khalid-khan?utm_source=share&utm_medium=member_android&utm_campaign=share_via
  2. “Dual Employment Or Moonlighting In India” by : Natasha Mahajan , Nivedita Udupa and George E. Cyriac, Available At: https://www.mondaq.com/india/contract-of-employment/1304076/dual-employment-or-moonlighting-in-india
  3. https://www.legalserviceindia.com/legal/article-9591-moonlighting-dual-employment-in-indian-law.html
  4. Government of Tamil Nadu vs. Tamil Nadu Racecourse General Employees Union(1993 ILLJ 977 Mad)
  5. Pyarchand Kesarimal Ponwal Bidi Factory vs. Omkar Laxman Thange and Others (AIR 1970 SC 823)
  6. Bombay v. Dilipkumar Raghavendranath Nandkarni (1983) 1 SCC 124

BY: Komal Goswami

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Journey to the Development of Criminology

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Abstract

The project’s goal is to improve our understanding of crime and its social ramifications by concentrating on the advancement of criminology. The research combines established criminological ideas with cutting-edge disciplines including neurology, technology, and sociology through an interdisciplinary method. The project aims to investigate the dynamic nature of criminal behavior in order to discover new elements that contribute to criminality and to create creative approaches for crime prevention and intervention. It also highlights how crucial international cooperation and information exchange are to addressing the problems facing criminology today. The ultimate objective of the project is to support the development of criminology as an all-encompassing and flexible discipline that can handle the complexity of contemporary society and promote more successful approaches to criminal justice and crime prevention.[1]

Introduction

The term criminology is formed with two Greek words ‘Krino’ meaning accusation and ‘Logos’ meaning study or reason. Criminology means studying the behavior of criminals and the crime. The term criminology not only includes the aspects of criminal law but also the aspects of sociology, psychology, anthropology and statics. It is in general a non-legal aspect of crime. One can only understand the reason behind a particular crime when the behavior and mind of the criminals are studied. The study of crime and criminals helps the country understand where the law in the society is lacking. The legislative while passing a law keeps in mind the behavior of the people in the society and with the changing mindset of people, we can witness changes brought in the existing laws. In criminology the relation between the crime and the society is understood and studied.

Cesare Lombroso gave the theory on classification of criminals, where he classified criminals as born criminals, occasional criminals, criminals by passions and criminal epileptics.

According to Edwin Sutherland who is considered as one of the founding fathers of criminology said that the “study of social, cultural and environmental factors that influence criminal behavior are equally important as that of study of behavior of criminals”.[2]

Travis Hirschi an influential criminologist defined criminology as “study of causes of criminal behavior and society’s reaction to the same”.

History of Criminology

The criminology for the first time was coined in 1885 by an Italian Law Professor Raffaele Garofalo as criminologia in Italian which means studying the crime. Then in 1887 the French Anthropologist Paul Topinard used the term criminology. Around 1940 the American School of criminology was formed and in 1950 first school of criminology was started. The mid-20th Century talks about modern criminology which involves studying the crime with the help of sociological, psychological and economic conditions. Cesare Lambos is the father of modern criminology. After 21st Century marks the time of new criminology where the criminologists study the causes behind the crime.

Schools of Criminology

There are mainly four schools of criminology

  1. Pre- classical school: This school of thought was dominant during 17th Century in Europe. It is also known as Demonological School. The major scholar of this school of criminology was Saint Thomas Aquinas. The theory was dominant due to the dominance of church and religion during that period. The scholars of this school thought that a person commits a crime due to some external force and the same is beyond his/her control of understanding. It was believed that the punishment to the offender will be given by God and the God will serve the justice. People practiced stone pelting and believed that if no harm is caused to the person, then that means he is innocent and if harm caused then he was considered guilty.
  2. Classical school: The major scholars of this school are Cesare Beccaria, Jeremy Bentham and Chester Barnard. The classical school of criminology emerged during the 18th This school of criminology believes that humans are free to make their own choices based on their interests and same can be stop by setting the fear of punishment among the people.[3]
  3. Positivist school: The major scholars of this school are Paul Topinard and Raffaele Garofalo This school of criminology emerged in 19th The scholars of this school opposed the theory of classical school and said that humans always are not rational and they can commit a crime due to the external factors as well like psychological factor, biological factor, and social factor.
  4. Chicago school: The major scholars of this school are Clifford Shaw and Henry D. Mckay. This school of criminology emerged in the early 20th This school studies criminal behavior from the sociological perspective and they particularly study crime with defined spatial distribution.

 

Criminology in India, Canada, USA and UK

India

The population in India is increasingly rapidly, and with the same we can witness that the crime rate is also increasing in the country. As per the Crime Index 2023, India stands at 77th position in the world’s most criminal countries. As per NRCB report 2021, the states with highest crime rate in India includes Kerala, Gujarat, Tamil Nadu and many more and as per the Women, Peace and Security Index 2021 Nagaland has the least number of crimes. However, the study of criminology in India is at a very beginning stage. Many institutions do not offer the study of criminology course because of which many people are not even aware about the course. However, in 1954 a center for criminology was established and it is one of the oldest centers in India. Then in 1970 Indian Society of criminology was set up to advanced the study of criminology and related areas. In 2022, 43rd All India Conference of Indian Society of Criminology was held in West Bengal. Still, after various conferences being held and department being set up to look at the crimes, we can witness that crime against women and organized crime is rapidly increasing and to curb this we need to enhance the area of criminology.

Canada

In Canada, criminology started in 20th Century. In 1960, Université De Montréal was established as the first school of criminology in Canada by Denis Szabo. Most of the criminology research are done in universities where research has evolved. There are consensus and conflict perspectives of Canadian Criminologists. The “Consensus” perspective criminologists says that the rules made in a country are equal to all and everyone shares them, and according to them the people who violates the rules needs more attention. The “Conflict” perspective criminologists look at how social injustice, power struggles, and structural tensions in society contribute to crime and deviance. Various organization are set up in Canada where the criminologist participates to promote social sciences and law. The development of criminology in Canada has been impacted by social and political changes. Critical criminology and social justice have received more attention within the discipline as a result of growing attention to issues like indigenous rights, racial imbalances in the criminal justice system, and the connection between social injustice and crime. The distinctive social, cultural, and legal circumstances of Canada have influenced the development of criminology there. It keeps changing to meet new concerns, improve evidence-based policies, and support an equitable and efficient criminal justice system.

USA

Criminology in USA developed in late 19th Century and it has significantly evolved over the time. Criminology was influenced highly by the positive school of criminology. The study of criminal conduct and its causes has benefited from the contributions of notable individuals like Cesare Lombroso and Emile Durkheim. The thesis of the “born criminal” developed by Lombroso and Durkheim’s sociological method served as the cornerstone for criminology research in this nation. The establishment of the Chicago School of Criminology in the early 20th century was one of the significant turning points in the growth of criminology in the USA. Urban crime patterns and delinquency were the subject of ground-breaking studies by academics like Clifford Shaw, Ernest Burgess, and Robert Park. Their work paved the path for the sociological perspective in criminology by emphasizing the social and ecological aspects that affect criminal conduct. The development of crime control strategies and the administration of justice have both been significantly influenced by criminology in the United States. For instance, a concentration on punitive tactics and mass incarceration resulted from the “war on drugs” emergence in the 1980s and 1990s. However, there has been a trend in recent years toward evidence-based procedures and a bigger focus on recovery, community-based initiatives, and restorative justice strategies.

UK

In early 20th century, the classical school of criminology, which placed a strong emphasis on reason and deterrent in combating crime, had an impact on criminology in the UK. The investigation of criminal behavior, the study of criminal causes, and the creation of crime prevention tactics were the main areas of concentration. The Institute of Criminology was founded at the University of Cambridge by Sir Leon Radzinowicz, in 1959, which became a leading institution for criminology research and education. Criminal justice changes and policies in the UK were greatly influenced by criminology. Criminologists’ research impacted the creation of programs including diversionary supervision, restorative justice, and community policing. The Home Office Research Unit’s founding in 1971 made it even easier to make decisions on public policy based on facts. In order to serve as a professional organization for criminologists in the UK, the British Society of Criminology (BSC) was established in 1957. The BSC was essential in fostering criminology scholarship, investigation, and cooperation. Universities all around the nation have developed criminology programs over time, offering undergraduate and graduate degrees in the subject. The focus on theoretical viewpoints in criminology in the UK has given way to an applied and multidisciplinary approach. The field of study continues to contribute to our understanding of crime, the creation of efficient crime prevention techniques, and the advancement of criminal justice systems.

Conclusion

Criminology is multifaceted field that plays an important role in understanding and preventing crime in a society. In this article we have delved into the major school of criminology and how criminology has developed over the years. The study of criminology has developed into a dynamic and varied field that constantly adapts to new problems and advancements. Our understanding of crime has improved. It has also cleared the way for more potent methods to deal with criminal conduct and advance justice. The goal of society is to prevent crime, advance justice, and build safer communities for everybody. This goal can be achieved through comprehending the reasons of criminal behavior and putting evidence-based measures into practice. To address new difficulties and create efficient policies and practices in the area of crime and criminal justice, criminology must continue to engage in research, collaboration, and innovation.

The course of Criminology is offered in various countries, but still many people are not aware about the course and the work done by the criminologists. There is need to look at the problems and enhance the requirement of criminologists in a particular country. To address the underlying reasons of criminal behaviour and lower the frequency of crimes, governments should engage in crime prevention programs. These initiatives could be community-based projects, public awareness campaigns, social welfare programs, or assistance for vulnerable groups. The Government should also provide funds to the criminology researchers as their research helps in formulation of effective crime prevention strategies, and decision making within the criminal justice system. Government should also take steps to provide support services to victims like counselling, legal assistance, healthcare, etc.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Hargunn Kaur Makhija

[1] 5th Year, B.A.LL.B (Hons.), Maharashtra National Law University, Aurangabad

[2] Edwin Sutherland – “Principles of Criminology” (1939)

[3] Cesare Beccaria – “On Crimes and Punishments” (1764)

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Aligarh Muslim University’s Minority Status: A Legal and Historical Examination.

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INTRODUCTION:

One of the oldest and most prominent universities in India, Aligarh Muslim University (AMU), has been involved in a legal dispute concerning its minority status for many years. Muslim reformer Sir Syed Ahmed Khan established AMU as the Muhammadan Anglo-Oriental College in 1877 with the intention of preserving Islamic values while addressing Muslim educational lag. The Muslim University Association and MAO College became a part of AMU when the Aligarh Muslim University Act of 1920 took effect. Whether AMU qualifies for minority status under Article 30 of the Indian Constitution in the present circumstances is the question.

HISTORICAL BACKGROUND:

Muhammadan Anglo-Oriental College, also known as Aligarh Muslim University, was founded in 1877 by Sir Syed Ahmed Khan. It was later incorporated by the Aligarh Muslim University Act of 1920.

In 1965, the Act underwent additional amendments, redistributing the Court’s powers among various bodies, including the executive, with the President of India nominating the governing body.

In S. Azeez Basha & Anr. v. Union of India, the dispute started in 1967. The petitioners contested AMU Act amendments, claiming that their rights under Article 30(1) namely, the right to establish and administer educational institutions had been violated. According to the Supreme Court, the efforts of the Muslim minority may have led to the 1920 Act’s passage. That being said, this does not mean that Aligarh University was founded by the Muslim minority in accordance with the 1920 Act.

In 1981, the Act underwent yet another amendment that defined ‘university’ as an establishment “established by the Muslims of India.” AMU instituted reservation policies in 2005, designating Muslim candidates for half of the postgraduate medical seats. Using the Supreme Court’s ruling in Azeez Basha as guide, the Allahabad High Court heard a challenge to this policy that same year. The argument was that since AMU is not a minority institution, the reservation is void.

The Allahabad High Court struck down the reservation policy, ignoring the 1981 amendment and ruling that AMU was not a minority institution based on Azeez Basha, rejecting the Union government’s and the university’s argument that the 1981 amendment rendered the Azeez Basha precedent invalid.

The reservation policy was put on hold in 2006 after an appeal was filed with the Supreme Court. The National Democratic Alliance government denied AMU’s minority status in 2016 by withdrawing from the appeal.

A three-judge bench referred the Azeez Basha ruling to a seven-judge bench on February 12, 2019, for review. The case was finally taken up by a seven-judge bench led by Chief Justice of India D.Y. Chandrachud on October 12, 2023.

LEGAL PROVISIONS INVOLVED:

All linguistic and religious minorities have the fundamental right to establish and administer any kind of educational institution they choose, according to Article 30(1) of Part III of the Constitution. Article 30(2) mandates that the State provide ‘equality of treatment’ to all educational institutions receiving aid, irrespective of whether they belong to minority or not.

PRESENT POSITION OF THE ISSUE:

In this case, the Supreme Court addresses two issues concerning the AMU’s minority status.

  1. What are the criteria for granting minority status to educational institutions under Article 30 of the Constitution?
  2. Can educational institutions established by parliamentary statute qualify for minority status under Article 30 of the Constitution?

Dr. Dhavan, the petitioners’ counsel, argued that a minority educational institution should not lose its minority status just because it is subject to statutory regulation and that the constitutional viewpoint, which supports the integration of liberal and religious education, should be taken into account.

He contended that the Azeez Basha ruling was in conflict with itself since the top court determined that a university had to be recognised by law for its degrees to be recognised. Nonetheless, the court found that AMU would lose its minority status if the statute were to recognise it.

Dr. Dhavan contended that this would nullify Article 30 and subordinate a fundamental right to a statute by requiring all minority institutions to apply for recognition under a statute and give up their minority status.

Dr. Dhavan emphasized that, for the purposes of Article 30, “established” includes terms like “found,” “recognise,” “confirm,” and “admit.” In response to a question concerning the distinction between “found” and “bring into existence,” he explained that the former refers to incorporation while the latter takes into account prior circumstances.

The respondent’s attorney is Tushar Mehta, the Solicitor General of India. He contended that unlike “nationalist” institutions that opposed and denounced the British government, Solicitor General Tushar Mehta asserted that AMU chose to be a “loyalist” institution and ceded its minority status to the government. Azeez Basha, he said, accepted this ceding of rights.

The SG contended in the Azeez Basha case that the ruling only applied to the 1920 Act and did not create a law that was generally applicable, implying that a university loses its minority status upon incorporation. He made it clear that the 1920 Act was the main focus of the Azeez Basha case, and that AMU is not a minority university under that Act.

Underlining the significance of AMU as a national university, Tushar Mehta asked the Court to consider the matter from a social justice standpoint in order to ensure that students from the SC/ST/SEBC sections have equal access to it. Currently, between 70 to 80 percent of AMU students identify as Muslims.

CONCLUSION:

From January 10 to February 1, 2024, the seven-judge bench, presided over by Chief Justice of India DY Chandrachud, heard arguments for eight full days.

The Chief Justice of India has reserved the matter to make a decision at a later time after considering all of the arguments.

The question of whether AMU can assert its minority status and whether the Azeez Basha ruling ought to be reversed will be decided by the court. In addition to AMU, this decision has significant ramifications for minority universities throughout India.

To sum up, the AMU minority status case emphasizes how important it is to strike a careful balance between historical context, legal interpretations, and constitutional rights. AMU’s minority status is in jeopardy while we wait for the Supreme Court’s ruling.

 

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Written by – Surya Venkata Sujith

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