[The iconic Bab e Sir Syed, Aligarh Muslim University in a file photo]
Controversy on minority character of AMU began on 25 April 1965, when the AMU Vice Chancellor, Mr. Ali Yavar Jung was grievously assaulted by a group of students. This provided an excellent opportunity for Education Minister M.C. Chagla, a Khoja Muslim from Mumbai, in fact, a classic Uncle Tom, to show his secular credentials. He had an ordinance issued on May 20, 1965, destroying the “autonomy of the AMU”.
This ordinance soon became an Act of 1965, which changed drastically the statutes, the main amendment being related to Section 23(2) of the founding Act of 1920, which provided for the composition and powers of the Court. Under the new dispensation (1965 Amendment Act), the Court was reduced to a nominal advisory body.
The campaign for the protection of the AMU’s “Muslim Character” started in 1965 in reaction to the AMU (Amendment) Act. It was supported by the Majlis-e-Mushawarat, the Pro-Congress Jamiat-ul-Ulema-i-Hind and Jamaat-i-Islami, joined the Old Boys’ Associations. The AMU issue did not concern the University community alone but all Indian Muslims. The Majlis proposed a series of measures, largely inspired by its Jamaat-i-Islami members.
In asserting AMU’s cultural distinction, Muslims re-asserted their existence as a distinct minority, endured with special rights. The demand for the preservation of AMU’s Muslim character led to the demand for the recognition of AMU’s minority status.
The 1951 and 1965 Amendment Acts were challenged in the Supreme Court by S. Aziz Basha and Others. The petitioners challenged constitutional validity of these Acts. They articulated their prayers that these Acts violate various Articles of the Constitution, such as Article 30 (1); 26 (a), (c) and (d); 31 (1); 25 and 29. The petitioners claimed that the Aligarh Muslim University was a minority institution and as such the legislations setting up new administrative bodies were ultra vires under Article 30 (1).
The Supreme Court in this case did not accept any contention of the petitioners and ruled that AMU is established by government and not by the Muslim minority.
Meanwhile the new Amendment Act 1972 was passed by Parliament. This Amendment Act too did not state that AMU had been established by Muslims, primarily for Muslims, provoking a new wave of protests. An Action Committee, including students, teachers and alumni was formed to demand the repeal of the Act. Prof. Nurul Hasan, the then Minister of Education, after having taught in AMU, defined the University as a symbol of ‘composite culture’. He insisted on the need to preserve AMU’s historical character and cultural atmosphere. (AMU (Amendment) Bill of 1972.
In January 1978, the Minorities Commission, being concerned with the issue of AMU minority status produced a remarkable and very comprehensive document whose conclusion sounded convincing. In addition to sound advice regarding the autonomy and the democratic functioning of the university, the Commission suggested the following formula for the definition of the institution which they said, seemed to meet the needs of the case!
“University means the educational institute of their choice established by the Muslims of India, and which was incorporated and designated as Aligarh Muslim University in 1920 by this act.”
In our view the virtue of this formation lies in the fact that, while it accepts the legitimate claim of Muslims that AMU should be entitled to the constitutional guarantee of the fundamental right embodied in Article 30, it would in no way affect the powers of parliament to discharge its proper functions in regard to ‘an institution of national importance’.
The long-drawn struggle for the restoration of minority character came to an end with the promulgation of the AMU (Amendment) Act, 1981. The Act by and large meets the aspirations of the Indian Muslims and the University community. It defines the term “University” to bring out specifically that the University is the “educational institution of their choice established by the Muslims of India, which originated as the Mohammedan Anglo-Oriental College, Aligarh and which was subsequently incorporated as the Aligarh Muslim University”. (AMU Amendment Act 1981)
The Act empowered the University to promote especially the educational and cultural advancement of Muslims of India. The Muslim community was presented as an all-India unified body. The University Court, re-established as ‘Supreme Governing Body’ was meant to represent this all-India community, the number of representatives of Muslim culture and learning considerably increased. In a way, the Court was the Muslim community, the decision of the Court was often presented as the decision of the community itself. AMU is the only University declared as a minority institution by the Parliament.
[University Jama Masjid, Aligarh Muslim University]
The 1981 Act marks a watershed in the history of the Aligarh Movement. It has given a new turn and new scope to the movement. Besides restoring its minority character and democratic functioning, the Act bestows on the University a power which no earlier Act had given to it. Section 5(2)(c) of the Act empowers the University “to promote especially the educational and cultural advancement of the Muslims of India”. The Act empowered the University to carry extension work of a specified nature all over the country. No other University appeared to have been vested with this kind of power. The Act by and large meets the aspirations of Indian Muslims and the University community.
Immediately after the promulgation of the 1981 Act, steps were taken to reconstitute the Court, the Executive Council and the Academic Council under the provisions of the new Act. The Court, which remained in abeyance since 1965, held its first meeting on 20 December 1982.The reconstituted Executive Council and the Academic Council had started functioning accordingly.
A number of activities conducive to the intent of the provisions were started by the University authorities at the very outset. These included efforts to contact Deeni Madrasas, recognize their degrees for admission in the University and broad base their curricula, opening of a Centre for Promotion of Science and reviving the Urdu journal “Tahzibul Akhlaq” for cultural reform.
In 1981, an amendment was brought in by Parliament to accord the university minority status, which was denied by the Supreme Court in its judgment on S. Azeez Basha v. Union of India. The Attorney General had told the Supreme Court that the AMU could not be categorized as a minority institution.
Aziz Basha judgment of 1967 has been severely criticized by H.M. Seervai, the greatest constitutional law expert at the time who declined the post of Attorney General of India offered by P.M. Morarji Desai in 1977. Jurist Seervai observed that
... this 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” (Graff 1990: p.1772).
Another legal scholar, Professor S.P. Sathe writes:
The view of the Court that since the Aligarh Muslim University was incorporated by an Act of the Central Legislature it could not be a minority institution is too textual. If incorporation of a university is the sole test of its establishment no private university can ever be started in India. This is neither constitutionally sound nor educationally desirable. The Act of incorporation is a device of social control, not of regimentation in educational planning. It is submitted that the law needs to be reconsidered not only in the light of our constitutional ideology but also from the standpoint of sound educational policy (Ahmad 2017, pp. 119-20).
Legal scholars were not the only ones who doubted the wisdom of the Apex court but historians like Dr. Tara Chand who was then a Member of the Parliament in the Raj Sabha reacted very strongly to the situation. He said:
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 (Graff 1990: p.1772).
AMU Vice Chancellor raised the issue of reservation of seats in MD/MS and PG Diploma courses before the Secretary, MHRD, Government of India on 24 February 2005. He sought formal approval of the Government of India for reserving 50 per cent seats in the MD/MS and PG Diploma Courses in the Faculty of Medicine of this University for Muslims of India.
Joint Secretary (HE), MHRD, in his letter dated 25 February 2005, conveyed that “this Ministry has no objection to the decision taken by the appropriate authorities of the AMU to reserve 50 per cent of the total seats in MD/MS/PG Diploma Courses in the Faculty of Medicine of the University for Muslims of India on an All-India basis”.
In another letter, Joint Secretary, Ministry of HRD, on 16 May 2005, addressed to the Registrar, AMU, conveyed that “this Ministry has no objection to the policy of reservation of seats for the Muslims of India”.
In view of the reservation policy, referred to above, some aggrieved candidates approached the High Court of Allahabad against the Union of India and others, as it had permitted the AMU to grant 50 per cent reservation for Muslims. In total, five related Writ Petitions were filed by 34 petitioners who obtained MBBS degree and claimed right for admission to PG Medical courses of the University.
The Allahabad High Court in its judgment on Naresh Agarwal v. Union of India and Others (2006) ruled that AMU is not a minority institution as it is not established by Muslims. This judgment was based on the ruling of S. Azeez Basha v. Union of India. The Attorney General had told the Supreme Court that the AMU could not be categorized as a minority institution.
After the Allahabad High Court upheld the 1967 Supreme Court judgment, both the Union of India and AMU filed two separate review petitions before the Supreme Court. At the time of filing the petition, the Congress-led UPA I was in power.
But in a U-turn, the NDA government of Narendra Modi of BJP in July 2016 withdrew its appeal and relied on the Azeez Basha judgement. The then Attorney General, Mukul Rohatgi, submitted that the Azeez Basha case judgement could not be overridden and that according minority status to AMU would be contrary to the verdict. Rohatgi said the ruling still holds good. An affidavit was subsequently filed withdrawing the Centre’s appeal and also all letters issued by the Ministry of Human Resource Development under the United Progressive Alliance regime. “This letter, along with any other letter issued from the MHRD supporting the minority status of the AMU, may be treated as withdrawn,” the affidavit had read. The AMU opposed the Centre’s move to withdraw itself from the case. Then Chief Justice T.S. Thakur wondered how government of India can withdraw its own affidavit filed by previous government, as with change of party in government, government of India does not change. It is gratifying to note the first BJP Prime Minister, Atal Bihari Vajpai, had supported minority status of AMU.
On 12 February 2019, the Supreme Court has referred the petition on the issue of minority status of AMU to a seven-judge bench. The matter has been referred to the larger bench to determine the correctness of minority status of AMU and to define the parameters for granting minority status to the institution.
Article 30(1) of the Indian Constitution gives all religious and linguistic minorities the right to set up and run educational institutions, including schools, colleges and universities. The law guarantees that governments will not discriminate in giving aid on the basis of their being ‘minority’ institutions, thus sealing in a commitment by the Government of India to allow minorities to flourish. This provision was included in the constitution to assure minorities of being able to maintain and propagate their unique and special educational aspects.
AMU was founded as the Madrasatul Uloom in 1875 in Aligarh, and evolved into the Mohammedan Anglo Oriental College in 1877. The College later became AMU in 1920 by an Act of federal Assembly. This Act was passed on the proposal of Muslims who deposited Rs. 30 lakhs with the government as required by the government.
Protection of minorities is the hallmark of a civilization. These guarantees are essential in a democratic and pluralistic country like India. The framers of the constitution showed utmost sensitivity to the needs and aspirations of the minorities. Accordingly, special safeguards were guaranteed to the minorities and were incorporated in the chapter on fundamental rights with a view to inculcate in them a sense of confidence and security.
Special rights enjoyed by religious minority institutions are:
1. Under Art 30(1)(a), such institutions enjoy right to education as a Fundamental Right. In case the property is taken over by state, due compensation to be provided to establish institutions elsewhere. 2. Under Article 15(5), they are not considered for reservation. 3. Under Right to Education Act, 2009, they are not required to provide admission to children in the age group of 6-14 years up to 25% of enrolment reserved for economically backward section of society. 4. In St Stephens vs Delhi University case, 1992, SC ruled that these institutions can have 50% seats reserved for minorities. 5. In TMA Pai & others vs State of Karnataka & others 2002 case, Supreme Court ruled that they can have separate admission process which is fair, transparent and merit based. They can also separate fee structure but should not charge capitation fee.
On 12 February 2019, the Supreme Court had referred AMU’s case to seven judge constitutional bench for adjudication. Nearly four years have passed with this decision, no hearing of the case has taken place. There is a ray of hope under the new Chief Justice of India, Dhananjaya Y. Chandrachud, who took oath of office on November 9, 2022, because since he took charge, the apex court has disposed of 6,844 cases till 16th December 2022, i.e., in one month six days. The AMU case should be taken up as early as possible, especially when the whole nation is watching that under the present federal government minorities are at the receiving end.
References and Further Reading
Ahmad, Shah Rukh, “The minority status of Aligarh Muslim University”, ILI Law Review, Vol. 1, 2017, pp. 119-20 Graff, Violette, “Aligarh's Long Quest for 'Minority' Status: AMU (Amendment) Act, 1981”, Economic and Political Weekly, Aug. 11, 1990, Vol. 25, No. 32 (Aug. 11, 1990), pp. 1771-1781, available at: https://www.jstor.org/stable/4396615
[The writer, Abdulrahim P. Vijapur, is Emeritus Professor of Political Science, University of Science and Technology, Meghalaya. Formerly Professor of Political Science at Aligarh Muslim University, Aligarh.]
For all the latest News, Opinions and Views, download ummid.com App.
Select Language To Read in Urdu, Hindi, Marathi or Arabic.
