In Aligarh, remember the Constitution

The issue is essentially about Article 30 of the Constitution. That Article upholds the right of religious and linguistic minorities to ‘‘establish and administer’’ educational institutions ‘‘of their choice’’.

The history of constitutional adjudication is replete with judicial pronouncements on various facets of Article 30: what is a minority? What is a minority institution? What is meant by the right to administer? What about teaching faculty and curriculum? What about recognition and affiliation? What about ensuring minimum standards? What about admissions procedure? Must there be a minimum number of minority students? Must there be a maximum number of minority students?

The Supreme Court has changed its mind from time to time and from one generation of judges to another. The last binding pronouncement came from an impressive bench of 11 judges, although not necessarily in an impressive judgment, because within months, another bench of five Judges had to interpret it, and to an extent, modify it in the process.

Academics and scholars will continue to argue about the TMA Pai case but the fact remains that Article 30 survived very pointed attacks based on the preceding Article 29 (that enjoins non-discrimination). Critics of AMU reservations should therefore read the Constitution and the Supreme Court judgment.

It is too late, perhaps even silly, to question Article 30, or indeed its logical consequences. It is pointless to curse the UPA government for alleged appeasement of Muslims.

The special protection of minority culture is integral to a democracy. Societies that were relatively homogenous too have over a period become pluralistic due to global migration. Where no legislation existed to address the unique problems of religious minorities, new laws are being passed.

Therefore the only question left to ask is whether the UPA government should for reasons of political expediency, have denied a minority its constitutional entitlements? I assume the answer is an emphatic ‘‘No’’.

There is another question that no one seems to be asking: does this step help AMU itself? And, therefore, will it help Muslims ultimately? The vice- chancellor thinks it does and will. He is sincere in his belief. He is obviously motivated by a wish to see AMU excel without closing its portals to Muslims. Let us trust him.

He thinks this will attract good Muslim students from across the country, and why not? Reservations do not necessarily mean below average students. Nowadays students with 90 per cent marks have a difficult time getting the courses they are keen to pursue.

The traditional ratio of Muslim and non-Muslim students in AMU has been 3:2. Recent admissions under the new system have indicated that the ratio is not going to be adversely affected.

What AMU sought to do indirectly and at the cost of inbreeding, it can now do transparently and without questionable compromises — to seek the best Muslim students studying side by side their talented compatriots.

An interesting question that has not been conclusively answered by the Supreme Court — since the AMU Act was amended in 1981 to nullify the court’s earlier, somewhat technical judgment (Azeez Basha vs Union of India) holding that a Central university by definition could not be an institution established by a minority because it is set up by statute) — is: is a Central university susceptible to minority status?

The answer has to be a conceptual and philosophical one. Last time the court said ‘‘No’’. We still need to know what it will say now. But one fact should not be lost sight of — the transition of an admittedly minority institution to a Central university is a consensual act. The Society or Trust that purports to hand over its educational institution can insist on permissible conditions to be put in its charter.

The law does not prohibit state funding of minority institutions; indeed it clearly indicates that such a bar is unconstitutional. So insisting on preservation of minority character is, prima facie, a legitimate expectation. That appeared to be the juridical basis of the AMU Amendment Act that specifically recognised AMU’s minority character.

For those who appear shocked by these developments, let them be reminded that Delhi’s St Stephen’s College and Madras Christian College have the same rights as AMU! There is thus a right that precludes any argument about what is the right thing to do. People can disagree about the latter but there is no legitimate scope for controversy about the former.

The BJP has even less reason to complain. Last year it offered a similar reservation scheme to Jamia Hamdard, in return for the institution accepting a common entrance test. AMU had some concern about that as a precedent eroding autonomy. The issue of the autonomy of a university is a serious matter, as much as the convenience of students in not having to write multiple entrance tests for college or university.

So long as AMU is accepted as a minority institution it could have taken its own decision about reservations. That the government helped it to do so is the right thing for it to have done. The UPA deserves a hand for its clarity of thought and courage of conviction.

But this benevolence must not convert itself into permanent paternalism. A university, like a responsible adult, must be free to decide its own plans and future. Liberalism allows for well-meaning advice but abhors dictation.

It is perhaps true that Sir Syed Ahmed Khan had hoped to establish AMU as the Oxford of the Orient. It is certainly true that Jamia Millia was conceived by Dr Zakir Husain to be a nationalist institution with national character, established by Muslim citizens of India.

But to assume that the minority character of any institution automatically dilutes its national significance is to say that Article 30 undermines the secular majesty of our Constitution.

The AMU debate tragically points to the superficiality of our understanding of the cherished secular ethos. We may fault the minority for the manner in which it advocates its case.

But the real danger to democracy lies in the majority failing to reexamine hasty assumptions. The fear of BJP exploiting this development should not force us to convert strategy postures into a mistaken view about peoples’ rights.

The author is a senior Congress politician and former Union minister