Minority status?

If we accept the reasoning of the apex court in the AMU case, it means that a religious minority is debarred from establishing a university inasmuch as a university can only be established by a legislature

Written by Aftab Alam | Published:January 27, 2016 12:00 am
We should not overstate the role of the Central legislature and underplay the role of those who really founded the AMU. The role of the 1920 act had more declaratory than constitutive value. We should not overstate the role of the Central legislature and underplay the role of those who really founded the AMU. The role of the 1920 act had more declaratory than constitutive value. (Illustration by C R Sasikumar)

Notwithstanding Justice A.P. Sen’s pertinent observation in Lilly Kurian versus Sr Lewina and others (1978), “the protection of the minorities is an article of faith in the Constitution of India”, this principle has been under continuous attack. Earlier this month, Attorney General Mukul Rohatgi submitted before the Supreme Court that Aligarh Muslim University (AMU) was never intended by Parliament to be a Muslim university. This rekindles a sensitive and old controversy about the minority character of this historic university. Setting aside the political fury generated by this controversy, it is time to pause and ponder over this issue dispassionately, as it not only involves many legal questions of great significance but is also intrinsically linked to the sentiments of India’s largest minority.

The legal battle over the AMU’s minority character dates back to October 20, 1967, when the Supreme Court in S. Azeez Basha and another versus Union of India, deviating from the broad spirit in which it had decided other cases on educational rights of minorities, erroneously concluded on narrow and technical grounds that the AMU was established by the Central legislature and not by Muslims. This led to a wave of angry campaigns by Muslims across the country. After a prolonged struggle, in 1981, Parliament passed an amendment to the 1920 act to restore the AMU’s minority status. The word “establish” in the title of the act was deleted, and Section 2(l) and Subsection 5(2)(c) were added, clarifying that the university was “an educational institution of their choice established by the Muslims of India” and which “was subsequently incorporated” as the AMU. Furthermore, the AMU was entrusted with the responsibility of promoting “the educational and cultural advancement of the Muslims of India”.

Most agitating Muslims believed that, though not perfect, the amendment had overruled Azeez Basha and finally, the AMU’s minority character had been restored. But to their shock, first a single-judge bench and later a division bench of the Allahabad High Court in 2005 once again held that the AMU was not a minority university. In the opinion of the court, the 1981 amendment was in itself not sufficient to overrule Azeez Basha as it left Sections 3, 4 and 6, which constituted its basis, unamended. Surprisingly, the court even questioned the competence of Parliament to overrule the Supreme Court decision as it was “disentitled to assume the role of a court of appeal”.

The moot question in this case is who established the AMU? If we accept the reasoning of the Supreme Court in Azeez Basha, it simply means that a religious or linguistic minority is debarred from establishing a university inasmuch as a university can only be established either by an act of the Central or state legislature. This contradicts Azeez Basha’s own position that an educational institution, for the purpose of Article 30(1), includes a university as well. Can we just brush aside the long history of the establishment of the AMU, a part of which was reproduced in the judgment itself? Can we overlook the fact that a sum of Rs 30 lakh was collected by Muslims in 1920 to constitute a permanent endowment to meet the recurring expenses of the proposed university? And if Muslims knew that the AMU would be like any other university, would they have taken such pains to collect funds or surrendered the Mohammedan Anglo Oriental (MAO) College, which, even in the view of the court, was a minority institution? If the AMU had nothing to do with Muslims, the governor general would not have congratulated them when the AMU Act of 1920 was passed. Is the word “Muslim” in the title of the university without any relevance?

In fact, the confusion seems to emanate from the blurring of the distinction between the words “establish” and “incorporate”. Founding a university afresh with all its buildings and other infrastructure is altogether different from merely incorporating or upgrading an existing functional institution. We should not overstate the role of the Central legislature and underplay the role of those who really founded the AMU. The role of the 1920 act had more declaratory than constitutive value. The 1920 act merely gave recognition to an existing entity and did not “establish” it. We should not forget that Muslims established the AMU in the only manner in which a university at that time could have been established.

The matter of the AMU’s minority character raises a larger issue of conflict between the judiciary and legislature. Parliament, through the 1981 amendment, had clarified all doubts that had arisen due to the Azeez Basha judgment. After this amendment, all disputes on the AMU’s minority character should have come to an end. Holding the view that the 1981 act had not altered the entire basis of Azeez Basha is erroneous. In fact, the entire confusion stems from a literal and narrow interpretation of the word “establish”, and a wrong inference drawn from the AMU’s long history. Parliament, in fact, had altered the entire basis of Azeez Basha by declaring, in unambiguous term, that the “AMU was established by the Muslims of India”.

Tara Chand, an eminent historian of modern India, once succinctly remarked, “it will be a falsification of the history of India if it is asserted from any quarter that the AMU was not established by the Muslims and primarily for the educational advancement of the Muslims of India”. It is the duty of the government to ensure that the rights guaranteed to minorities are not turned into a “teasing illusion and promise of unreality”.

The writer is professor of political science at the AMU

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  1. S
    sofikul islam
    Apr 11, 2017 at 3:03 pm
    laskar pur
    Reply
    1. S
      Sirius
      Jan 27, 2016 at 4:10 pm
      Muslim OBC's are provided reservations ...
      Reply
      1. S
        Sirius
        Jan 27, 2016 at 4:11 pm
        St Stephens is not a separate university , it comes under DU ...
        Reply
        1. M
          MyTake
          Jan 27, 2016 at 3:57 am
          If it is to be done in the name of minority it should be called Minoritysity and not University. Go back to the basics!
          Reply
          1. K
            K SHESHU
            Jan 27, 2016 at 1:01 pm
            Though the university is a minority established one, it would be good if it imbibes the secular character of this country.
            Reply
            1. A
              Atul
              Jan 27, 2016 at 2:59 pm
              So much resistance by Muslims about every thing secular is an ominous sign for India. In a secular country, both majority and minority have to forego some rights. 50% reservation in one insute of India is not going to uplift the Muslims. Infrastructure where everybody in India has access to college education would uplift the status. We do believe that there is infrastructure for everybody to get admission to a college irrespective of caste / religion. Reservation matters only where the selection is by exam. I see no advantage for a graduate insution to remain a minority insution.
              Reply
              1. A
                Anand Iyer
                Jan 27, 2016 at 11:44 am
                Perfect :)
                Reply
                1. A
                  Anand Iyer
                  Jan 27, 2016 at 11:50 am
                  Why don't you campaign for uniform civil code for all communities? That will prove how secular you are.
                  Reply
                  1. A
                    ashok
                    Jan 26, 2016 at 9:12 pm
                    what about minority non Muslims in Kashmir. They are not even recognized as minorities.
                    Reply
                    1. B
                      Bala Varadarajab
                      Jan 26, 2016 at 8:57 pm
                      This is ridiculous. Minority Insutions must be subject to the laws of the land. There must be a common civil code. It is worthwhile pointing out that in secular country, there should be no place for arcane religious law.
                      Reply
                      1. R
                        Rajesh
                        Jan 27, 2016 at 12:06 pm
                        1984 riots killed thousands more. There was never so much controversy from pseudo-seculars. Why in case 2002 ?
                        Reply
                        1. R
                          Rajesh
                          Jan 27, 2016 at 9:26 am
                          BTW, ch..tiya, when you cannot even spell the PM's name without showing your bias, why do you expect anyone to take you seriously? Your disease has no cure.
                          Reply
                          1. R
                            Rajesh
                            Jan 27, 2016 at 9:21 am
                            I didnt ask what Nehru bootlickers thought, fake Swamy. The fact is that if you check the religion of the applicant, you are communal. I understand why you bootlickers defend communalism, but I never intended by comment for slaves of the criminal dynasty.
                            Reply
                            1. R
                              Rajesh
                              Jan 27, 2016 at 9:24 am
                              So if you murder someone, Swamy's defence will be, I am not the only murderer, why is the govt arresting me. Typical pseudo-secular . They have no answer to the question, so they try multiple attempts at diversion.
                              Reply
                              1. R
                                Rajesh
                                Jan 27, 2016 at 12:10 pm
                                The choice is simple.........Either we have insutions that select people on merit with no concern for religion at all (SECULARISM) or we have insutions that check the religion of the applicant before making a decision (COMMUNALISM/PSEUDO-SECULARISM).
                                Reply
                                1. A
                                  Aditya
                                  Jan 26, 2016 at 8:54 pm
                                  Why are you interested in ghettoisation of education. We failed in regulating our residences atleast not here. Adamancy on AMU would definitely hurt in securing reservations for Muslim students in educational insutions country wide. Education must be secular in its holistic framework.
                                  Reply
                                  1. D
                                    D.K. Bhatt
                                    Jan 27, 2016 at 1:46 pm
                                    India had openly enunciated her dream of adopting secularism as one of the foundational objects right from the first quarter of the twentieth century when pernicious plans for its vivisection on communal basis were being devised. The horrors and tragedies accompanying India’s parion led the Consuent embly to unanimously resolve in July 1949 that ‘communal’- based reserve consuencies, quotas and discriminations prevailing thitherto shall have no place in the Indian Consution, although cultural, religious, linguistic and educational rights of minorities shall be protected through guaranteed fundamental rights. Since the Central and State governments were granted the sovereign power to establish, through incorporation, universities –it was very clear from the very outset that statutory universities in India, whether pre-Consutional or post-Consutional, can only bear a secular character. Prior to incorporation of University Grants Commission Act 1956 it was possible for a body or community of persons to establish a non-statutory university though its degrees had no legal recognition. However the 1956 Act strictly reserved the privilege of establishing university solely for Centre or State Governments and prohibited all private ventures in this area. Thus post-independence there cannot be anything like a legally recognised “minority university” in India since the very concept is incompatible with the overall secular scheme of the Indian Consution purposely adopted by the founding fathers. The guaranteed minority rights to “establish” minority educational insutions of its choice has further been granted statutory recognition through “The National Commission of Minority Educational Insutions Act, 2004” which in its Sec 2 (g) defines “minority educational insution” to mean “a college or insution (except a university) established or maintained by a person or group of persons from amongst the minorities.” So, a religious or linguistic minority community may establish a college, school or educational insution of its choice, but it cannot establish or incorporate a University. Thus “Basha” decision of the apex court, while determining the status of AMU, might seem to have taken a hyper-technical interpretation of the AMU Act 1920, but perhaps that is the only interpretation that accords with the basic secular credentials of the Consutional scheme.
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                                    1. M
                                      Mukhtar Ahmad
                                      Jan 27, 2016 at 10:25 am
                                      Change the consution then there is no problem. But till then you have to accept what it says
                                      Reply
                                      1. M
                                        Mukhtar Ahmad
                                        Jan 27, 2016 at 4:54 am
                                        The problem with people is in understanding the provision in consution under article 30 which provides the right of minorities to establish and run the educational insutions. We all agree that every citizen of India needs to be educated. There is also a need for every community based on religion or language to maintain their specific culture. Now this only. possible if at least 50 % people belong to that particular community. As far as providing grant by the government is. concerned it is the money paid by all the citizen of the country including those belonging to minority community. I have seen insutions in Malaysia , Australia being run by specific communities fully funded by the government.
                                        Reply
                                        1. d
                                          dv1936
                                          Jan 26, 2016 at 9:42 pm
                                          Let India be for all Indians. Fragmentation in the name of minorities, Dalits etc is the most unpatriotic philosophy and should be stopped. Those Muslims who want a special status should go to stan.
                                          Reply
                                          1. g
                                            guru592006
                                            Jan 27, 2016 at 5:02 pm
                                            The case before SC basically relates to Reservation for OBC/SC/ST. AMU does not agree for thus being Minority University. The case simply relates to this.
                                            Reply
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