Even though AMU is facing a legal battle over its minority status, it has been performing its constitutionally ordained duty. Is the challenge to the University symbolic of the crisis of secularism in India?
By Sanjay Raman Sinha
The minority status of Aligarh Muslim University (AMU) is undergoing constitutional assessment. A seven-judge bench of the Supreme Court is hearing a matter related to AMU’s minority character. The dispute is over 50 years old and has been heard and adjudicated many times by more than one benches.
The apex court bench headed by Chief Justice DY Chandrachud and comprising Justices Sanjiv Khanna, Surya Kant, JB Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma examined if AMU should get the protection of Article 30 of the Constitution.
Incidentally, Article 30 provides for the right of minorities to establish and administer educational institutions. The provision states: “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”
The apex court is hearing a challenge to the Allahabad High Court order of 2016 in which it was held that AMU is not a minority institute. However, the minority status is continuing as per the status quo orders of the Court. The High Court had overturned AMU’s reservation policy and nullified the 1981 amendment, affirming the Supreme Court’s 1967 decision in S Azeez Basha vs Union of India.
In 2016, the NDA government withdrew its appeal in the Supreme Court, stating it could not endorse setting up a minority institution in a secular state. In 2019, a three-judge bench led by Chief Justice Ranjan Gogoi referred the matter to a seven-judge bench for a comprehensive review.
In the current case, two key issues are under consideration:
a) What are the parameters for granting an educational institution minority status under Article 30?
b) Can an educational institution created by a parliamentary statute enjoy minority status under Article 30?
Addressing the rights of minorities to establish and administer educational institutions, the chief justice had importantly stated that the intent of Article 30 was not to “ghettoize the minority”.
This comment gains importance in context of provisions of the Constitution which expressly provide for the rights of minorities to preserve, protect and promote their religious, educational and cultural rights. The idea underlying the provisions is not only to mainstream the minorities, but to provide them opportunities for better prospects educationally.
It has been argued that the absence of recognition under Article 30 could have a detrimental impact on the career prospects of the Muslim community. The denial of reservation to the minority community will result in fewer degrees and job opportunities for them, it was argued.
Justice Wanchoo in Azeez Basha case had looked into the historical background of AMU. He said: “It is necessary to refer to the history previous to the establishment of the Aligarh University in 1920 in order to understand the contentions raised on either side. It appears that as far back as 1870, Sir Syed Ahmad Khan thought that the backwardness of the Muslim community was due to their neglect of modern education. He therefore conceived the idea of imparting liberal education to Muslims in literature and science while at the same time instruction was to be given in Muslim religion and traditions also.”
A five-judge Constitution bench had previously held in S Azeez Basha vs Union of India case of 1967 that as a central university, AMU cannot be considered a minority institution. This and other similar verdicts form the fulcrum of arguments against AMU’s minority status.
In Azeez Basha, the question of “established” and “administered” in reference of Article 30 was raised, leading to the current reference. The bench in Azeez Basha had stated: “The Act may have been passed as a result of the efforts of the Muslim minority, but that does not mean that the University, when it came into being under the 1920 Act, was established by the Muslim minority.”
During the present hearing, Chief Justice Chandrachud had commented that “being regulated by a statute does not detract it from having a minority status”. He also stated that being a minority educational institution does not imply that it cannot administer a “purely secular education”. He also said that the minority institution can admit students from any community.
These three points are fairly good pointers as to where the case is heading. Minority status notwithstanding, the University is performing its constitutionally ordained duty.
AMU counsel Senior Advocate Rajeev Dhawan had forcefully argued that the University has students from all communities, but retains a “Muslim character”. AMU’s highest decision-making body—“The Court”—is Muslim. “The State has no right to compel minority education institutions to give up their character at all,” he had added.
The Aligarh Muslim University Act was enacted in 1920 by the British government. The Act was amended in 1951 in order to do away with Islamic teachings, in contradiction to the secular curriculum. The Act was amended again in 1967, which was challenged in the Azeez Basha case. AMU was declared a minority institution by the AMU Amendment Act in 1981 by Parliament. In 2005, the Allahabad High Court had quashed this Act, holding it unconstitutional and held that AMU was not a minority institution. The then UPA government appealed to the Supreme Court. However, the NDA government withdrew this in 2016.
A basic legal question in this issue is whether Muslims studying in AMU can be considered as a deprived class and hence, applicable for reasonable classification. Separate provisions for Banaras Hindu University are a case in point for similar specific legislation for AMU.
Azeez Basha had addressed the issue. “It seems that the charge of discrimination is based on the provisions of the Banaras Hindu University Act, which University is established by an Act of its own. We do not think that. Article 14 requires that the provisions in every University must always be the same. Each University has problems of its own and it seems to us that it’s for the legislature to decide what kind of Constitution should be conferred on a particular university.’’
This stand of the Basha bench refers directly to the question in reference: Can an educational institution created by a parliamentary statute enjoy minority status under Article 30?
The next attack on the constitutionality of the 1965 Act is based on Article 19 and the argument seems to be that the statute deprives Muslims of their right to acquire, hold and dispose of property and to form associations or unions. It is said that the Muslim minority has been deprived of the right to manage the Aligarh University. Article 19 (l)(f) does not give the right to any citizen to hold property vested in a corporate body like the University. All that it provides is that all citizens have the right to acquire, hold and dispose of property of their own.
While introducing the 1981 AMU Amendment Act, the central government had plainly stated its intent to grant a Muslim minority character to the University. The aim held: “The Government have introduced in Parliament an Amendment Bill to remove doubts in the minds of Muslim community regarding the character of Muslim Universities. But the amendment of the Aligarh Muslim University Act would be meaningless and would be redundant if Statutes are not amended to satisfy the sentiments of the Muslim community. It is, therefore, necessary to introduce a Bill in the Parliament to achieve this objective.” The education minister had added: “We also propose to amend the definition of the expression ‘University’ in the Act to make it beyond any shadow of doubt that the University was the educational institution of their choice established by the Muslims of India. These two vital amendments seek to restore the original character of the University.…”
The laws were amended so that the Court’s composition would also be predominantly Muslim, including representatives from the All India Muslim Education Conference. The Court is the supreme governing body of the University and exercises all the powers of it.
Two points emerge here—The educational and religious rights of minorities have been kept in mind while amending the AMU act; secondly, if the rights of Muslims as a class operating through the AMU have been violated, the 1981 amendment has sought to reaffirm the educational religious rights of the Muslim minority.
The Supreme Court’s current hearing is not only important for determining AMU’s minority character, but it is an issue intricately linked with the India’s secular commitments. The verdict will also have implications for minority rights, particularly the establishment and administration of educational institutions.
Significantly, the AMU minority status legal battle is symbolic of the crisis of secularism which the Indian State is facing, and the rights of minorities in an increasingly majoritarian country. As the two main parties, the BJP and the Congress, differ on definition and application of secularism, the resultant politics is exacting its pound of flesh.