Aligarh Muslim University’s (AMU’s) minority
character is in the news again. Smriti Irani, just
four days before the cabinet reshuffle, had approved
the Central government’s affidavit opposing AMU’s
minority character. The case will come up for
hearing in the Supreme Court on July 11. Most people
including some top TV anchors are not aware that
this historic case is not about the rights of
minorities. The case is fundamentally about the
powers of Parliament: Can Parliament, to promote
fundamental rights, enact a law ‘incorporating’ a
minority university? Does Parliament have the powers
to overturn judicial decisions? Can a government in
a parliamentary democracy refuse to defend
Parliament in the court of law?
As many as five fatwas were issued against
AMU’s founder Sir Syed Ahmed Khan, including one
from Mecca, which declared: “This man (Sir Syed) is
erring and causes people to err. He is rather an
agent of the devil and wants to mislead Muslims. It
is a sin to support the college. May God damn the
founder! And if this college has been founded, it
must be demolished and its founder and his
supporters thrown out of the fold of Islam.” At a
time when religious fundamentalism is on the rise
and the country is debating whether to ban a
fanatical Muslim preacher, the human resource
development ministry’s affidavit is not only strange
but hugely disappointing. This will close the doors
of modern liberal education for thousands of poor
What to say of AMU, even Banaras Hindu University
was originally a minority university because the
Hindus too, in spite of their numerical superiority,
were a minority in terms of powerlessness during the
British regime. Article 30(1) of the Indian
Constitution gives the minorities, whether based on
religion or language, the fundamental right to
‘establish and administer educational institutions
of their choice’. Thus, this right is available not
only to the religious minorities like the Christians
and Muslims but also to the Hindus wherever they are
a minority. In fact, in some states like Jammu and
Kashmir, Punjab and several north-eastern states,
they too are a religious minority.
No one has ever doubted the minority character of
Mohammadan Anglo-Oriental College (MAO College). The
Supreme Court in 1967 and Allahabad High Court in
2005 admitted the so-called ‘deep green’ character
of the college. The moot question is: Has the
college on its conversion in 1920 into Aligarh
Muslim University through an Act of
Governor-General-in-Council lost its minority tag?
Section 5 of the AMU Act says AMU shall inherit not
only all debts, liabilities, etc. of the MAO College
but also all its rights. Thus, common sense tells us
that AMU has inherited the minority tag of MAO
Departing from its otherwise liberal approach of
expanding the ambit of fundamental rights in general
and minority rights in particular, the Supreme Court
in 1967 opined that since the preamble of the 1920
AMU Act had stated that ‘whereas it is expedient to
establish a Moslem University at Aligarh’, it is
clear that the university was established by the
government and thus it cannot be given minority
status. Justice K N Wanchoo’s judgment has been
criticised by all the leading jurists. In fact, HM
Seervai, India’s greatest constitutional law writer,
went to the extent of terming this regressive
decision as ‘productive of great public mischief’.
The Supreme Court itself in 1981 noted these
criticisms and decided to have a fresh look at the
decision by a larger bench.
In the meanwhile, Parliament took the initiative
through an amendment in 1981 itself to clarify its
intention and not only deleted the crucial word
‘establish’ from the preamble and the long title of
the Act but also explicitly stated that AMU was an
institution of their choice established by Muslims
of India and it in fact originated as MAO College
and was merely ‘incorporated’ and not really
‘established’. In 2005, the Allahabad High Court
struck down this amendment and termed it as the
‘brazen overruling of judicial verdict’. Thus
Parliament lost the case in Allahabad and the
government of India, which is subordinate to
Parliament, appealed to the Supreme Court on behalf
of Parliament. In a parliamentary form of
government, the government takes directions from
Parliament because it is responsible to Parliament.
The Central government’s affidavit has now abandoned
Parliament’s cause and AMU has the onerous task to
speak for Parliament. The government’s decision is
legally untenable as Parliament’s power to amend the
AMU Act, 1920, was upheld even by the Supreme Court
How to decide the question of Parliament’s
competence to legislate? The thumb rule is to see
whether the subject concerned is within the
competence of the assemblies. If the answer is ‘no’,
Parliament’s jurisdiction cannot be challenged.
Since AMU is mentioned in the Union List, the
legislative competence of Parliament cannot be
questioned. Now the next issue is: Does the 1981
amendment violate any fundamental right? The answer
is a big ‘no’. It in fact promotes fundamental
rights under Article 30. What the constitution
prohibits is the violation of the fundamental rights
by Parliament, not their promotion and realisation.
Finally, can Parliament overturn a judicial verdict
by amending a law? The answer is ‘yes’. It routinely
does so by removing the basis on which the judgment
was rendered. This year itself the Central
government overturned a Supreme Court decision on
enemy property through an Ordinance and recently on
UGC NET by mere UGC Regulations. The Vodafone
judgment was similarly overturned during UPA rule by
a retrospective parliamentary amendment. Whether the
court rises to the occasion again and protects
minority rights as it has been doing all these years
remains to be seen. (Courtesy : The Hindustan
Faizan Mustafa is Vice-Chancellor, NALSAR
University of Law.
The views expressed here are personal.
Why AMU should be an exception ?
By N. R
Every institution of higher learning
develops its own character and
identity based on its history,
leadership, scholarship and student
body. Aligarh Muslim University
(AMU), which occupies a unique place
among pre-Independence universities
in India, carries an identity which
depicts the idea of India in its
character of pluralism,
inclusiveness and unity in
diversity. It may or may not be a
minority institution in the strict
legal sense, but it is an
institution for minorities fully
financed by the Indian state which
showcases how minorities are treated
in the Republic even after the
forced Partition of the country
based on religion.
A vehicle for community uplift
Like the author of this essay, thousands of non-Muslims who could not have access to higher education in the so-called leading universities in the country were attracted to Aligarh because of its low cost, excellent academic ambience and equal opportunities provided for learning and research. For several decades, AMU continued to be the destination for Muslims from all over India seeking higher education, with the result one finds many of them in leadership positions in nation-building activities across the country and beyond. In Kerala, Jammu and Kashmir, Tamil Nadu, Bihar and a few other States, every educated Muslim has some link or the other with AMU which, in turn, helped to fulfil the mission of Sir Syed Ahmad Khan, the founder of AMU, to uplift the community from backwardness and isolation. I would argue that if a large section of Muslims refused to migrate to the Islamic Republic of Pakistan and preferred to stay back in secular India, it is partly because of the influence of AMU education on them and their families. Thus perceived, AMU requires special treatment in the Indian scheme of things.
The liberal democratic polity India adopted provided abundant space to test its strengths and weaknesses. Despite having paid a heavy price, India stood by its ideals and endeavoured to cultivate an inclusive society based on democratic values, showing to the world that diversity can be a virtue in peaceful development and coexistence. If this analysis still holds good, one need not get upset by occasional manifestations of extremism and distrust raising its ugly head in campuses, including Aligarh. To be fair, AMU has been relatively peaceful and free from extremist activities for several years now though it also had its share of violence in the past.
One may recall an ugly incident from the 1960s to illustrate the point. A distinguished diplomat from an aristocratic family and a personal friend of the then Prime Minister was the Vice Chancellor. The faculty and the students broadly belonged to three segments, one group communally inclined and active, another group Left-oriented and ideologically motivated, and a third neutral group devoted mainly to academic pursuits. A rumour floated that the new Vice Chancellor was handpicked by the Central government to compromise the perceived minority character of the institution. Aligarh being a small town and the university the only dominant public institution in the city, rumours emerging from the university got quick currency in every home. One day when the Executive Council was in session, a section of students led by the union president barged into the hall, disrupted the meeting, assaulted the Vice Chancellor and physically dragged him out, hitting him mercilessly. All this happened near one of the hostels of which I was the warden. Subsequent events proved that there was no substance to the rumour and that it had been orchestrated by a few extremist elements to advance their own agenda of having monopoly control over the institution.
A university that doesn’t discriminate
Such instances happen on other campuses as well and things return to normal when facts are brought to light. In my seven years at Aligarh, initially as a postgraduate scholar and later as a member of the faculty, I never experienced any discrimination whatsoever and received friendship and respect from all sections of the AMU family. Everyone eats the same food supplied at heavily subsidised prices by the university and gets equal access to all facilities on campus. The teacher-student relationship is exemplary. Of course, the student body is predominantly Muslim and that is what it was meant to be; but no meritorious student is excluded on the ground that she is not a Muslim. Given the fact that there is inadequate representation of Muslims in many universities outside, it is not surprising why AMU’s staff and students are predominantly Muslims and that too from the lower income groups. The university is a source of livelihood to thousands of poor Muslim groups in the neighbourhood.
It is clear that AMU is an institution of national importance and should be treated as such by the Central and State governments. Of course, there is scope for negotiated settlement of friction points which arise from time to time. The university stands to gain monetarily and otherwise if it has minority status. Even without that, the government can treat it differently from others acknowledging its unique character in the government’s policy of inclusion which is manifest in the slogan “sabka saath, sabka vikas”. The university on its part should recognise its social responsibility under the Constitution by giving preference in admission to Scheduled Caste/Scheduled Tribe groups and backward sections across communities. A memorandum of understanding between the university and the government with an oversight body representing the two sides should be able to get the objectives of the two sides accomplished to each others’ satisfaction.
Like every other Aligarian, I was happy when the President, as the Visitor of the university, allowed AMU to set up campuses in West Bengal, Bihar and Kerala where the respective State governments — realising the potential it holds for minorities’ education in their States — liberally made land grants. The brand name has its own value; but the quality of education and character of the institution depend on the local leadership and the relationship it builds with the parent university. The beginning in Malappuram in Kerala, where it got over 300 acres of prime land, was impressive and promising. Students across all communities applied in large numbers for its programmes despite the fact that classes were to be held in rented buildings. Contract teachers assembled hurriedly worked under a curriculum set by the Aligarh faculty that wasn’t customised to local requirements. Yet learning went on, examinations were held and programmes completed on schedule, giving the message that AMU is capable of imparting quality higher education anywhere in the country.
There is no reason why the initiative should be thwarted because of some legal or technical hurdles. It is now a question of the future of thousands of students and the prestige of a great university which has established its credentials in higher education for almost a century. After all, State governments have invested in the venture and people everywhere have supported it. Given the fact that the representation of the largest minority group in higher education is still very low, there is no reason why the Central government should not be equally enthusiastic and encourage it as it has done before. Of course, the present role of AMU in these campuses is that of an incubator and eventually they must become independent universities possibly competing with AMU for quality and excellence in scholarship. It is also not necessary that all campuses outside Aligarh should be alike in structure, programmes and management. They can develop through public-private partnerships as institutions of excellence primarily catering to higher education needs of minorities and backward classes, paving the way for inclusive development of all sections.
(N.R. Madhava Menon is a Law educator, Chancellor of two Central universities, and an alumnus of AMU.)