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”.