Minority Status of AMU

Preface

The issue of the Minority status of Aligarh is one that has widely affected this campus. There has been great talk over it and it is one of the most easily politicised issues in AMU. Despite this, it is very disheartening to note that few students here really know what this issue is all about, its political history and the legal perspectives surrounding it. In fact, it is common to see that most people on this campus take their stand on this issue based on highly generalised notions of ‘religion vs. secularism’ or ‘conservative vs. moderate’. It is supposedly a moderate and nationalist point of view to oppose AMU’s minority status and a religious or conservative point of view to support it.

There could be nothing further from the truth. The debate surrounding AMU’s minority character is in reality a constitutional issue surrounding the rights of minorities. Article 30, over which the entire issue is based and which will be dealt with in more detail later, is a constitutional safeguard laid down by the constitution makers of India and is similar to many provisions in constitutions of other nations having plural societies.

In India the pluralism of society has always been used as a polarising force in our politics, and so it is no surprise that the issue of AMU’s Minority Character has become muddled in the muck of vote banks and political ideologies. The secularists of AMU have long opposed it as an anti-national cause, while on the other hand the conservatives have championed it as a pro-Muslim cause.

Both these notions are far-removed from the truth. We must understand this issue in the context of historical realities and not by assumptions polarised by petty politics.

The efforts of Sir Syed Ahmad Khan were directed at recognising changing realities and placing the community in a better position to survive and adjust in them, for clearly to Sir Syed’s mind resistance was not a feasible option at that point of time. With Independence and Partition, the realities changed again. There were many sections of the Indian society that were manifestly in a worst-off condition than the others, and so it was natural that as a responsible democracy our constitution provided various safeguards for these disadvantaged minorities. Even apart from being disadvantaged, the very fact that various minorities existed, all having distinct cultures and traditions, it was very logical that a democracy must provide for their right to enjoy these cultures and traditions.

This is no case of minority appeasement or cheap vote bank politics, it is the basic principle behind the process of Nation-building, a necessary requirement for the running of a plural society. Reservations for minorities and the right of minorities to establish and administer educational institutions of their choice is a part of this process. No Nation can progress if sections of its society lag behind and are denied the opportunity to better themselves. It is in recognition of this basic fact that these various safeguards were provided in the constitution. But the entire issue of ‘minority’ has become embroiled in vote-bank politics and lost its true relevance.

The issue of the Minority Status of AMU is an issue that must be seen in this context. It is the fight for a right that has been provided in the constitution of India. It is not the case that all the voes of Indian Muslims will be lifted as soon as AMU gets minority status, but the recognition of a right is an achievement in itself. And especially in a time when the community looks upon the state with great mistrust, it will be a confidence booster  for all.

This work in your hand is an effort to bring the issue back into perspective and discuss it in the context of constitutional law where it truly belongs. It is natural that in some places the politics surrounding this issue will be discussed, but that is a part of constitutional law itself.

The purpose of this work is simply to inform the students of AMU about what this issue really is, and to spread awareness about it the way that it deserves.

 The Legal Perspective

The main point of law pertaining to the issue of Aligarh Muslim University’s minority status is that whether or not the AMU is covered (or as some like to put it, ‘protected’) by Article 30 of the Constitution of India. Article 30 states that:

“(1)All minorities whether based on religion or

language shall have the right to establish and

administer educational institutions of their

choice.

(2)The state shall not, in granting aid to educational

institutions, discriminate against any .

educational institution on the ground that

it is under the management of a minority,

whether based on religion or language.”

An institution coming under article 30 would have the right to manage its affairs according to its own laws, customs and traditions and to promote the welfare of the community it represents as it deems fit, such as through reservation of seats or other means. In other words, it would have the status of a ‘Minority Institution’.

In the case S.P. Mittal vs. Union of India (AIR 1983 SC 1), the Supreme Court has that in order to claim the benefit of Article 30(1), the community in question must show; (a) that it is a religious/linguistic minority; (b) that the institution was established by it. Further, the NCMEI in its judgement on the minority status of Jamia Milia Islamia noted that, based on various authoritative judgements of the Supreme Court, the following facts are to be proved for grant of minority status certificate to a minority educational institution on religious basis:

(1)   that the educational institution was established by a member/members of the religious minority community;

(2)   that the educational institution was established for the benefit of the minority community; and

(3)   that the educational institution is being administered by the minority community.

However, before analyzing the case of AMU along these parameters, it is necessary to first take a very brief look at the history AMU’s foundation and the various cases and legislative amendments that have affected Aligarh’s minority status. In fact, it can be said that the very evolution of these parameters is directly related to the controversy over AMU’s minority character.

In the year 1877, the Muhammadan Anglo-Oriental (M.A.O) College at Aligarh was started as an educational institution under Allahabad University with the stated aim of educational regeneration of Muslims of India. As the movement for converting it into a University gathered momentum, a Muslim University Association (MUA) was formed and subsequently to collect funds for the establishment of the university a Muslim University Foundation Committee (MUFC) was brought into being.

After a long and arduous movement, the history of which has been recorded in various places and is well known among Aligs, The Aligarh Muslim University Act was passed in 1920. This act formed the AMU by incorporating into it the M.A.O. College, MUA & MUFC. Its preamble reads as follows:

“AN ACT TO INCORPORATE A TEACHING AND

RESIDENTIAL MUSLIM UNIVERSITY AT ALIGARH

Whereas it is expedient to incorporate a teaching and residential

Muslim University at Aligarh, and to dissolve the Societies registered

under the Societies Registration Act, 1860 (21 of 1860), which are

respectively known as the Muhammadan Anglo-Oriental College,

Aligarh and the Muslim University Association, and to transfer to

and vest in the said University all properties and rights of the said

Societies and of the Muslim University Foundation Committee”

The foundation of AMU was considered a major moment of triumph by the Muslim community, for its foundation was the culmination of a great number of efforts by many individuals as well as the Muslim community at large. It was naturally understood that its establishment would greatly advance the cause of Muslim education and the Minority Character of AMU was considered by many as a matter of course.

Notwithstanding the political storm that perpetually seemed to surround Aligarh, the first serious controversy regarding its minority status was raised in 1965. Following a disturbance on campus, the AMU Constitution was suspended and an ordinance, soon to become the AMU (Amendment) Act 1965, was passed that had far-reaching consequences for the minority character of AMU. The most significant change it brought about was to section 23(2) of the AMU Act, which provides for the constitution and powers of the Court.

The original 1920 Act had envisaged the Court as the supreme decision-making body of the university, and the membership of the Court was reserved for Muslims only, a clear indication – or so it seemed – that the administration of AMU was meant to be kept in the hands of the Muslims.

The all-Muslim character of the Court had already been taken away by the 1951 AMU (Amendment) Act. But The AMU (Amendment) Act of 1965 completely changed the nature of the University’s administration. It essentially reduced the Court to a nominated advisory body, while at the same time concentrating power in the hands of the Vice-Chancellor and members of the Executive Council, who were nominated by the Visitor (i.e., by the President of India, or in other words the Government of India) or were ex-officio members.

In effect, this took away the administration of the university from Muslim hands and concentrated it with the Union Government. The stand of the then Minister of Education M.C. Chagla was clear; he did not consider the University to be a minority institution as defined in the Constitution.

The constitutionality of the 1965 and 1951 (amending) Act was challenged in the Supreme Court and in October 1967 the Supreme Court gave its judgement in what is now famously known as the Azeez Basha vs. Union of India case. The court concluded that in Article 30(1) of the constitution, the words “establish and administer” must be read conjunctively, that is, a minority community may claim the right to administer an institution only if the institution was established by that minority community. And in the case of AMU, the court said that since the AMU had come into being by an act of parliament it could not be said to have been established by the Muslim community. Thus it rejected the contention that AMU was a minority institution under Article 30(1) of the constitution and thus could not claim the right to be administered by the Muslims.

The Supreme Court’s interpretation of the establishment of AMU was – and continues to be – very perplexing for those who were familiar with the history of its formation, and more so to those who had spent a great deal of time in AMU having been connected with the various places and institutions related to the history of the Aligarh Movement and the many struggles connected with that movement, from the foundation of the M.A.O School and college and the many efforts and campaigns leading up to the formation of the AMU. To any Alig, and to many others to be sure, the passing of the AMU Act 1920 was direct result of the efforts of Sir Syed Ahmad Khan in particular and the Muslim community at large. Tara Chand, a prominent historian and member of the Rajya Sabha at the time, said that:

“It will be a falsification of the history of

India if it is asserted from any quarter that

the Aligarh Muslim University was not

established by the Muslims, and primarily for

the educational advancement of the Muslims

of India..” (Taken from “Aligarh’s Long Quest for Minority Status” by Violette Graff)

The SC itself in its judgement acknowledged the fact that the M.A.O College was the nucleus of AMU, and that it was only because of the foundation of the M.A.O. College and the subsequent movement to convert it into a university that the AMU Act was eventually passed.

But the court reached its conclusion arguing that no matter what the background or cause, the university still came into being by an act of parliament and thus could not be said to have been established by the Muslim community.

This decision has become a precedent in determining the rights of the minorities under Article 30 of the constitution, but nevertheless it was also widely criticised. The minorities commission ten years later clearly stated that if the Supreme Court’s view in this case is correct then it would mean that a linguistic or religious minority is debarred from establishing a university in as much as a university can only be established by an act of the central or state legislature. The prominent constitutional lawyer and author H.M. Seervai perhaps put it best when he wrote that:

“It is the first case in which the Supreme Court

has departed from the broad spirit in which

it had decided cases on cultural and educational

rights of minorities... It is submitted

that the decision Is clearly wrong and productive

of grave public mischief and it should

be overruled.” (Taken from “Aligarh’s Long Quest for Minority Status” by Violette Graff)

Following strong reactions from many sides, the government appointed a committee of eight prominent Muslim jurists and educationalists called the Beg Committee, which came out with a report that was hailed from all sides representing the Aligarh Cause. Its central recommendation had to do with amending the Section (1) of the AMU Act. The formulation of the recommended amendment was in the following, very clear, terms:

“(1) This act may be called the Aligarh Muslim

University (Amendment) Act...

(2) Notwithstanding any judgment, decree or'

order of any court or tribunal to the contrary,

the Aligarh Muslim University shall

be deemed to have been established by the

Muslim minority of India as an educational

institution of its choice, and shall be administered

and managed as provided for in

articles 29 and 30 of the Constitution”

There was great optimism that a bill would soon be passed incorporating the recommendations of the Beg Committee. But the bill that was eventually passed in 1972 was completely contradictory to what was being demanded. Instead of granting AMU its minority status, it further amounted to creating dents in its autonomy by vastly strengthening the VC and further removing all safeguards for ensuring Muslim representation in the AMU Court. The justification of the Government was that these were necessary steps for improving the efficiency of the University and for the further ‘democratisation’ of its structure and functioning and hence to ‘modernise’ it. In fact, the 1972 Amendment did not much concern itself with the minority character issue, its central focus was to overhaul the entire administrative system of the university by bringing more and more powers into the hands of the VC, something that was being done all over India. Of course, this did have serious ramifications for the autonomy of the institution, as more and more control was given over to the Union Government

After another long series of campaigns, controversies and committee-reports, the next amendment came in 1981, and this finally seemed to be a step in the right direction. Its most important features are:

(1)     The much disputed word ‘establish’ was omitted from the long title and preamble of the AMU Act so that it now read "An act to incorporate a teaching and residential Muslim university at Aligarh". By this omission it looked to settle the controversy over the SC’s interpretation of the establishment of AMU.

(2)     A comprehensive definition of the word university was given by adding clause (1) to section 2 of the AMU Act, which read as: “University” means the educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh and which was subsequently incorporated as the Aligarh Muslim University.” Again, this definition sought to make it explicitly clear that the university was not established but only “incorporated” by an act of parliament. Conversely, since it was stated to be established by the Muslims of India, they could claim protection under Article 30 of the Constitution.

(3)     Sub-clause (c) was added to Section 5(2) in order to formally recognise the mission of AMU. It reads as follows: “to promote especially the educational and cultural advancement of the Muslims of India”

It seemed as if the question had been settled for good. AMU’s minority status was guaranteed and moreover provisions had been made for sufficient reservation of Muslims in the AMU Court. But there was one more clause that was added and which ultimately worked to dilute the very meaning of the minority status. This was Section 8 of the AMU Act, which after the amendment of 1981 read as under:

“8. University open to all classes, castes and creeds- The

University shall be open to all persons (including the teachers and

taught) of either sex and of whatever race, religion, creed, or class”

This seemingly innocent clause in effect meant that AMU, though a minority institution, could not reserve seats for students of the minority community that established it. This to a large extent took the meaning out of the “minority status” as the very purpose of insuring that a minimum number of Muslim students always be present in AMU could not be fulfilled by it.

The decision of the Allahabad HC in the case of Dr Naresh Agarwal versus Union of India and Others # made it clear that despite having been granted a ‘minority status’, AMU could not reserve seats for giving admission to Muslim candidates.

The controversy that lead to this case arose when the university tried to reserve 50% seats for Muslims in Post Graduate Medical courses. This decision was taken by the Admission Committee of the university on 10^th January 2005. After being approved by the Executive Council, the decision was forwarded to the Central Government for approval. Subsequently the Union of India gave its approval in a letter dated 25^th February 2005 and the admission policy was moved forward.

This decision was challenged in the Allahabad High Court by 34 different petitioners who claimed their right to participate in the admission process for selection against 50% of the total seats had been violated. They challenged it on the ground that Article 30 did not apply to AMU and the decision violated their Fundamental Rights under article 14 # and article 29(2) of the Constitution.

The Allahabad High Court ruled in favour of the petitioners, stating that AMU had no right to reserve seats for Muslims. As far as the 1981 (amending) Act was concerned, the HC categorically stated that Section 2(1) of the Act sought to fabricate history and by merely stating that the University was established by Muslims could not subvert the fact that it was actually established by an act of Parliament. Hence, in legal terms, it ‘read down’(that is, interpreted it in a way that is different from the original meaning intended by the legislators, but otherwise consistent with the Act) Section 2(1) of the Act which was intended to guarantee that AMU would come under the purview of Article 30 of the Constitution. Justice Tandon held that mere deletion of the word “established” from the from the long title of the act and amendment to Section 2(1) could not alter the fact that AMU was created by an act of parliament. Hence, AMU could not be said to be a minority institution within the meaning of Article 30. Subsequently, the decision of the AMU Academic Council and the Executive Council concerning the reservation of seats for Muslims, as well as the letter of approval of the Union of India, was quashed by the Court.

The decision of the HC has been challenged in the SC, but for 5 years now the case is dragging along with no end in sight. The fate of AMU’s minority status hangs in the balance.

Conclusion

In conclusion, it is necessary to reiteriate that in raising this issue we only itend to spread awareness about its true nature and start a constructive discourse over it. There will be many questions over its relevance and the impact it may have on the University. Regarding the issue of impact, it is neceaary to dispell some doubts at this juncture.

There is an assumption thast the granting of minority status will mean AMU will automatically and necessarily have 50 reservation for Muslims in all courses. This is not true. It simply means that AMU shall have the right, if it so wishes, to introduce such reservations in courses where it feels it is required. It can then be used to target those areas where Muslims are lagging behind. This selective reservations can be used very productively to reduce the talent-opportunity deficit among Muslims’ of India, and will be fruitful for the whole nation in the long term.

In the end, we only state that we are open to all questions and suggestions and points of view. We hope this effort proves fruitful to the students of AMU in understanding this precarious issue.

(with thanks to SIO,AMU ZONE)