The Jinn of Minority Status case is out of the bottle again in Supreme Court at present. The minority status case is purely a legal issue but it has never been handled carefully and enthusiastically by the AMU administration prior to 2004. After the passing of 50% reservation for Muslims in 2004, the case went to the court of law and argued with full power by senior lawyers namely; Mr. S.S. Ray, Dr. S. Dhawan & company under the best possible supervision of Prof. Faizan Mustafa, who took charge of the Registrar by the time this case, went for hearing. But, we lost the case in Allahabad high court in 2005.
The volte-face by the Government on the minority institution status in Supreme Court and subsequent developments triggered serious debate in the media. I as a member of the Executive Council was also witness and a party to this entire episode when reservation was approved. It is unfortunate that now we have been entangled into this legal web, but more unfortunate is our ignorance about its details and media trials are making it further complex.
The chequred history of this great seat of learning was itself expressed by the Viceroy Lord Lytton, on January 8, 1877 while laying the foundation stone of the MAO College, which Sir Sayed conceived with Islamic spirit and secular character. In furtherance of the objective of establishing a Muslim University, Mohammedan University Foundation Committee was formed on January 10, 1911 under the presidentship of Sir Agha Khan. A Memorandum based on Muslim denomination was submitted to the Government of India in 1912. On Government’s demand a huge sum of Rs 30 lakhs as reserve fund (endowment) was raised (equivalent to Rs 800 Crores of now). The preamble of the draft Constitution, which has now become more significant, reads:
“And whereas from the beginning the object of the founder and the Muslim community was to raise such College to the status of a University, And whereas during the last thirty five years of its existence the said College has very largely extended and expanded, And whereas a memorial has been presented to the Trustees of the said College and other representative of the Muslim community praying for the erection of a Muslim University at Aligarh, and inviting attention to the advantages which a University of their own would confer on their community, to the inadequate representation which their community has in the existing Universities, to the enthusiasm which their own University would create amongst the Musalmans for education at every stage, to the advantages of teaching over a purely examining University, and to the need for religious teaching and the protection of oriental learning,
And whereas it appears to the Government that, considering the peculiar circumstances of the Muslim community and its special educational requirements such a prayer is just and reasonable…………”
The Aligarh Muslim University bill was passed by the Imperial Legislative Council and Gazetted on December 1, 1920. The first amendment in AMU Act in the post independent India was enacted in 1951 by allowing non-Muslims as the members of the Court, theology was declared as non-compulsory subject and composition of the Court, the Academic and the Executive Council was changed drastically. Another amendment in the Act in 1965 was a severe blow to the original character of the University. The Democratic supreme governing status of the Court reduced to a nominated advisory body. It was criticized by all the sections of Muslim community and was challenged by Aziz Basha in the Supreme Court on the grounds of minority status of the institution. He lost the case on a very narrow and debatable technical ground. It was held that as the University was established by the Central Legislature, the Muslim community cannot claim to administer it; hence the said amendment is constitutional.
In 1972 another amendment was passed but it could not fulfill the aspirations of Muslim community, as a result the movement for the restoration of minority character of the University remained continued with renewed vigour and zeal. Finally, some major changes in sections 2(l) and 5(2)(c) were incorporated with the promulgation of another amendment in the AMU Act in 1981.
Under Section 2(l): Earlier the University was defined as “University” means the Aligarh Muslim University, which was amended as “University” means the educational institution of their choice established by the Muslims of India, which originated as Mohammedan Anglo-Oriental College, Aligarh and which was subsequently incorporated as Aligarh Muslim University. The Section 5(2)(c) provides “The University shall have the powers, namely- to promote especially the educational and cultural advancement of the Muslims of India”.
The University always maintained admissions based on competition open to all sections of society; it was only in 2003, the Supreme Court in Saurabh Chaudhri vs. Union of India case decided that 50 % seats of MD/MS should be surrendered to the AIIMS for All India test after validly reserved seats for SC/ST etc. The Director General of Health Services asked the University to surrender 50% seats after validly reserved seats for SC/ST etc. The AMU was earlier allocating their 25% seats to All India quota, decided to reserve 50% seats for Muslims, 25% of the total for All India quota and remaining 25% for Internal students. The surprising element was that the Supreme Court directed 50% of the total seats for All India quota, while DG Health asked 50% after reservation for SC/ST etc. It is indeed un-absolvable that our Vice-Chancellor and the then Registrar completely forget that at MD/MS level, even constitutional reservations for SC/ST do not exist and in a cynical haste they tried to be fooled the Supreme Court also (presuming that earlier also we were giving 25% of the total seats and with 50% reservations for Muslims we will manage to give only 25% of the total). However, next year, AMU was directed once again that 50% of the total seats prior to any reservation shall be surrender as All India quota as the letter of DG Health GOI was not correct and currently this is our practice till date. It simply means that had we would have won the reservation case, it would have been impossible to save our 25% seats from All India quota; this simply defeated the very basis of our reservation. The Allahabad High Court quashed the reservation policy and subsequent decision of striking down sections 2(l) and 5(2)(c) by the divisional bench of High Court is the basis of the recent appeal in the Supreme Court.
The lack of preparedness on part of the then dispensation can best be judged by their handling of reservation issue, how easily it has been jeopardized. The university did not realise that MD/MS is the most prestigious admission in the country and at that time also there were nearly dozen cases in the SC including Magan Malhotra, Pradeep Jain, Dinesh Kumar and many more. It was not realised that any tinkering with the reservation in MD/MS would have been far reaching consequences and the same did happen. If the university was really interested they could have started reservation with admission in B.A/B.Sc./B.Com program and subsequently apply over others quietly.
Why I am writing all these is to point out that the University administration shall work on unanimity and should give weightage to all stakeholders? I distinctly remember that I was an elected member of that EC which took decision about the reservation and the AMU administration was so complacent that they did not make Saurabh Chaudhry case a part of the agenda and it was only on my insistence it was supplied to me in the evening just about 14-15 hours before meeting. I pointed out the discrepancy in the judgment and DG health letter but nobody gave ears to it. No legal opinion was tabled in EC and even the committee constituted for this purpose was devoid of any legal authority or even member from our own law faculty. Remember another person was the Registrar at that time and had a person with legal acumen like Prof. Faizan Mustafa would have been at the helm of affairs the situation would have been different. The administration in its populist enthusiasm forget that the Aziz Bash case shall be undone before any such action (remember AMU was not a party in Aziz Basha case and never appealed against it unfortunately). It is not intended to doubt the intention of the then University administration, it was indeed done with best intention to prevent surrender of 25% more seats but the method was inappropriate, in haste and summarily rejecting the advice of members in the council by treating them as opposition. Even a liberal dissent in AMU is treated as a big crime and the administration treat them as persona non grata. The next VC shall give a serious thought to this attitude.
Historically, the vast majority of the Muslim community and the well-wishers of the University rightly consider it a minority institution. The 1981 AMU amendment Act has further strengthened our belief, as it has duly recognized its origin as MAO College. Our views were also based on the fact that the principle of reservation and preference (Article 15 and 16) is embedded in our Constitution and it does not flout the right to equality (Article 14). Further, Article 29 does not control the scope of Article 30(1), which provides the minorities to establish and administer their educational institution. The Supreme Court in one of its judgment in 1993 ruled that “there is no absolute when claims to justice on complaints of inequality are considered. The goal of Articles 14 and 16 are limited to equality among comparables.”
By any standards, Muslims are the weakest section of our society and are obviously incomparable. The principal considerations before the Supreme Court while deciding Saurabh Chaudhri’s case were also similar: “ There can be no doubt that the policy of ensuring admissions to the MBBS Course on All India basis is a highly desirable policy, based as it is on the postulates that India is one nation and every citizen of India is entitled to have equal opportunity for education and advancement, but it is an ideal to be aimed at and it may not be realistically possible, in the present circumstances, to adopt it, for it cannot produce real equality of opportunity unless there is complete absence of disparities and equalities – a situation which simply does not exist in the country today.” Article 14 of our constitution forbids class legislation but permits reasonable classification based on intelligible differentia. The Supreme Court in Saurabh Chaudhri’s case has justified 50% institutional quota on grounds of institutional continuity in education. The internal quota in our present admission policy is a classification based on intelligible differentia and hence in harmony with the Supreme Court judgment. The question on the validity of reservation on account of a government aided institution has also been settled by the Supreme Court in TMA Pai case……”A minority institution does not cease to be so, the moment the grant-in-aid is received by the institution. The aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to minority group.”
The Allahabad High Court’s judgment in 2005 and now pronouncement of Central government that AMU is not a minority institution clearly point out the incompetence of the Parliament to incorporate the 1981 amendment has stirred majority of common people, as to how the Parliament, which is the supreme authority is unable to prevail. The relevant articles of fundamental rights of our constitution, Aziz Basha case and procedures of validation need to be mentioned here to clear this cloud of confusion.
As described earlier the concluding para of the above said Aziz Basha judgment explicitly mentions ……”These provisions in our opinion clearly show that the administration was also not vested in the Muslim minority; on the other hand it was vested in the statutory bodies created by the 1920 Act, and only in one of them, namely, the Court, there was a bar to the appointment of anyone else except a Muslim, though even there some of the electors for some of the members included non-Muslims. We are, therefore, of opinion that 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 being unconstitutional under article 30 (1) for that article does not apply at all to the Aligarh University.”
H.M.Seervai in his detailed critique concluded with respect to Aziz Basha ruling “ the Muslims brought the University into existence in the only manner in which a University could be brought into existence; namely by invoking central legislation. The Muslim community provided funds, building, colleges and endowment for the University and without them, the University as a body corporate would be an unreal abstraction. It is submitted that the decision is clearly wrong and productive of great public mischief and should be overruled.”
Therefore, in all practical sense the Supreme Court’s decision is acceptable that it is parliament who established AMU not the Muslims but then please accept that the Imperial parliament established Aligarh Muslim University for the Muslims. The provision of only Muslim members in the Court which was executive body and inclusion of theology as a compulsory subject in 1920 Act was a clear assertion of the then legislature. It was only post independent India in 1951 when these provisions were withdrawn.
The final picture emerges out of above discussion with due respect to H.M.Seervai, is that technically the legislature is competent to change the basis of a decision by enactment of a general law to the extent that the decision could not have been given under amended conditions, but it cannot set aside the fact determined by the Court. Therefore, the possible remedy is enactment of general law under Article 30 of the Constitution, so that the AMU, which was originated as MAO College and later, incorporated as a University by an Act of Parliament in 1920, can be classified as a minority institution. The same remedy is suggested by the High Court divisional bench judgment.
Our Constitution through Article 368 empowers Parliament to amend, by way of addition, variation or repeal any provision of the Constitution according to the laid down procedures. Unlikely but significant is the fact that in1973 in Keshavnandan Bharti case and in 1980 in Minerva Mills case the Supreme Court in its’ doctrine’ has held that the basic structure or the frame work of the Constitution cannot be changed by the Parliament. The purpose of the procedure of Constitutional amendment as laid down in Article 368 is not to restrict the amending powers of the Parliament, but only to ensure that any amendment which affects the right of the constituents of the Indian federation is made only if it has their support to the extent and in the manner prescribed in the Article. The procedure is also tribute to the care taken by the authors of the Constitution to ensure that the federal government respects the rights of its constituents. All these categorical assertions and care in the letter and meaning of the Constitution face the assertion of this unprecedented and novel ‘doctrine’. The doctrine is not sanctioned by any provision of the Constitution, its ambit is neither defined nor perhaps definable, and its application is unpredictable. What it says amounts to saying that Parliament cannot amend any provision of the Constitution which the Court may going by its own unstated criteria and whenever it may decide to do so, consider being a basic feature of the Constitution. The most pertinent question is that what happens then if Parliament passes a Constitutional amendment in compliance with Article 368 and the Court declares it invalid under its own doctrine? This question is not imaginary. My apprehension lies on the present judicial activism, the fact that the concept and process of reservation vis-à-vis minorities is under maturation and finally the observation of the High Court bench on page 24 that the Supreme Court has taken a view and “once this view is taken, it cannot be dislodged by an Act of Parliament; it cannot be perhaps be dislodged by any means, and in this issue the point of changing the basis of the judgment, or brazenly overruling a court’s judgment is not involved. It is a point of incompetence of the Parliament”. However, by any stretch of imagination the definition of AMU under section 30(1) amounts to tinkering with basic structure of the constitution as depicted in above doctrine. Moreover, article 31-A provides saving (protection) to the laws which are inconsistent with fundamental rights under Article 13, 14 and 19.
The Courts are too harsh on AMU minority subject in the past. Technically such interpretations may be possible, but successively the spirit of entire case is ignored. Whatever may be the level of apprehensions and complications, we expect that the Supreme Court will undo the Azeez Basha judgment through present constitutional bench.
It is not only our wish but also firm belief that our University would ultimately be in the possession of its legitimate heir – the Muslim Community. The Courts of law and secular people of this Country have always behaved with objectivity and justice in the past and this is the sole reason that our optimism has not deserted us.
Anwar Khursheed, Professor, King Saud University, Riyadh, KSA E-mail: [email protected]
