Mukul Rohatgi, Attorney-General (AG) of India, told the Supreme Court last week that the Indian government was contemplating a review of its earlier decision to support the minority status given to Aligarh Muslim University (AMU).
This has set the ball rolling for a renewed confrontation between the proponents and detractors of the minority cause. The minority character of the AMU was taken for granted in popular perception, though its legal standing as a minority institution was frequently questioned as the university was fully funded by the state. Rohatgi lent voice to the latter when he said: “As the executive government at the Centre, we can’t be seen setting up a minority institution in a secular state.”
Whether the Indian government will actually walk the talk and be ready for a prolonged legal battle with the more orthodox sections of the Muslim community who would see it as an affront to their religious rights (minority status is the soul of AMU – the VC of AMU has said soon after the AG’s submissions in the court), or it is just a political ploy of the BJP-led government to tell the minority community that it would harm its own interest if it continued to oppose the ruling party is a matter of conjecture at this stage. However, it is certain that a debate will ensue once again, about the desirability of awarding minority status to institutions of higher learning run on taxpayer’s money.
If vote bank politics of the BJP is now seen dictating the withdrawal of the minority status to AMU, it was vote bank politics of the Congress which had bestowed the minority status to the university in the first place. AMU was set up in 1920 by an Act passed in the then central legislature of the imperial government. After independence, necessary changes were carried out in the 1920 AMU Act to make it run as a premier institution in a secular state.
The 1951 AMU (Amendment) Bill was formulated by two respected nationalist leaders – Maulana Abul Kalam Azad, the then Union education minister and Dr Zakir Hussain, the then vice chancellor of AMU. The Bill was piloted by Jawaharlal Nehru on the floor of Parliament. Can anyone doubt the secular credentials of these three leaders of Independent India or their concern for the protection of the minority interests?
But, unfortunately, some orthodox elements of the Muslim community went to court against the 1951 AMU (Amendment) Act — along with the 1965 (Amendment) Act passed during the tenure of another stalwart of India, Lal Bahadur Shastri, to bring about operational efficiency of the AMU — and wanted reversion to the terms of the original 1920 Act that made AMU an enclave of Muslims which suited the then colonial government’s divide-and-rule policy. The petitioner Azeez Basha claimed that the Amendments carried out to the original 1920 Act were violative of Article 30(1) of the Constitution that gives rights to minorities to establish and administer educational institutions of their choice.
The Azeez Basha Vs Union of India case, 1967 is a milestone in this debate, because a five-judge constitutional bench of the Supreme Court, headed by Chief Justice KN Wanchoo, gave a ruling that remains controversial even today. The Bench said: “The Aligarh University , when it came into existence in 1920, was established by the central legislature by the 1920 Act. It may be that the 1920 Act was passed as a result of the efforts of the Muslim minority. But that does not mean that the Aligarh University when it came into being under the 1920 Act was established by the Muslim minority.”
The Constitution Bench went on to add: “As for the Muslim minority, they had already given up the property when the Aligarh University was brought into existence by the 1920 Act and that property was vested by the Act in the Aligarh University. The Muslim minority cannot now after the Constitution came into force on 26 January, 1950 lay claim to that property.”
The SC bench was categorical in its conclusion: “The Aligarh University was neither established nor administered by the Muslim minority and therefore there is no question of any amendment to the 1920 Act violating Article 30(1), for that Article does not at all apply to the university.”
The SC verdict greatly agitated a vast section of the Muslim community which then began political lobbying to overturn the judicial verdict by fresh legislative action. But Indira Gandhi then ignored their plea and the Janata Party that came to power in 1977 was too caught up in internal squabble to take up the case in right earnest. It was in 1980 that a desperate Indira made a firm election pledge in the party manifesto: “The minority character of the Aligarh Muslim University will be assured.”
Indira came to power and kept her word. Her government piloted another amendment in 1981 to the AMU 1920 Act that described AMU as ‘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.”
This linguistic subterfuge was resorted to sidestep the SC reservation but the Allahabad High Court was not convinced. In 2006, a single judge bench and later a division bench of the court squashed the 1981 Amendment as unconstitutional and struck down the benefits of the minority institution that the AMU enjoyed.
The University went to the Supreme Court challenging the HC order. The Central government pleaded in favour of the university. The Supreme Court admitted the special leave petition by the AMU on its undertaking that it will not implement 50 percent reservation for Muslim students and stayed the operations of the high court judgment. Almost 10 years have passed, the Supreme Court has not yet found time to come to a decision on the matter. That has suited the AMU as well as the Centre.
But with a new government in power and with a contrary position taken by this government on the minority status issue, hopefully, the Supreme Court will be nudged to take a final call on the issue sooner than later.