Happenings in the last few months point to a disturbing trend in our public discourse. The recent outcry against affirmative action for SC/ STs, the pruning of subsidies for the poor and now the chorus against minority status for the Aligarh Muslim University are scathing testimony to a system that sees progress in terms of profit and power, not people. We seem bent on discarding the few privileges accorded to those at the lowest end of the social hierarchy.
The attorney general’s outrageous deposition in the ongoing AMU case in the Supreme Court that “as the executive government at the Centre, we can’t be seen as setting up a minority institution in a secular state”, in effect, damns our Constitution, which swears by secularism and yet contains specific provisions for minorities, including the fundamental right “to establish and administer educational institutions of their choice”. Historical records and the courts of law acknowledge the undeniable Muslim character of the AMU and the fact that it was nurtured and sustained by the Muslim community.
Significantly, the five-judge Supreme Court verdict in the Azeez Basha versus Union of India case (1967) embodies the crux of the arguments against granting minority status to the AMU. Riddled with analytical inconsistencies, the judgment is a classic example of rationalisation that obfuscates the truth. The court acknowledges that “the nucleus of the Aligarh University was MAO College” and that the Muslim community had really no alternative but to approach the legislature for incorporation as a university because “generally speaking, the government only recognised degrees of universities established by it by law”. Shockingly, the judgment then rides on this technicality to erase the contribution of the Muslim community and makes the specious observation that “the conversion of that college into a university was not by the Muslim minority; it took place by virtue of the 1920 act which was passed by the Central legislature.” Further, by quibbling over the word “establish” in Article 30(1) and deciding that it means “to bring into existence” and not “to found”, the court carries the absurd logic further to conclude that the AMU was established by the government. In the court’s reckoning, the ratifying authority, that is, the legislature, is the progenitor, and not those who actually built the institution that was ultimately incorporated as a university. The honourable court’s logic is as bizarre as that of a publisher who claims authorship of a book because he published it. For good reason did H.M. Seervai observe that the judgment “was clearly wrong and productive of grave public mischief”.
Although deeply flawed, the Azeez Basha judgment has been invoked to beat back the AMU Amendment Act of 1981 that unambiguously declared the AMU a minority institution. The Allahabad High Court order of 2005 striking down the amendment went on to state that “declaring the AMU as minority institution by Parliament enactment is not in the competence of Parliament in view of the judgment of the apex court (in the Azeez Basha case)”. In other words, according to the Allahabad judgment, the Azeez Basha verdict is sacrosanct as an eternal verity and beyond the purview of lawmakers to amend. In arriving at this sweeping conclusion, the court has overlooked the implications of later and larger-bench Supreme Court verdicts (Kerala vs Mother Provincial, 1970, St Xaviers College vs State of Gujarat, 1974) that obliquely questioned the very basis and narrow judicial interpretation of the Azeez Basha judgment. The Allahabad judgment not only undermines the political executive’s powers but endangers the constitutional rights of all universities set up by linguistic and religious minorities.
The government is clearly not in favour of supporting the pending appeal in the Supreme Court praying for minority status for the AMU. It is now for the Supreme Court to determine the fate of this historic institution, which is not only important cultural heritage but a symbol of the aspirations of the Muslim community. The case is a test of our commitment to secular democracy and to minority concerns.
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