Tuesday, November 29, 2022

A Question of Status

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Should Aligarh Muslim University be categorized as a minority institution? A recent submission made in the Supreme Court by the government has reignited this debate. It is now up to the apex court to resolve it
By Meha Mathur

Should the historic Aligarh Muslim University and Delhi’s Jamia Millia Islamia continue to enjoy the status of being minority educational institutions? Attorney General (AG) Mukul Rohatgi reignited an old controversy when he recently deposed before the Supreme Court that they cannot. His argument is that the two institutions have been created by acts of legislature and are centrally funded.

Sir SYED’s DREAM: The historic Aligarh Muslim University was founded in 1877 and declared a varsity in 1920
Sir SYED’s DREAM: The historic Aligarh Muslim University was founded in 1877 and declared a varsity in 1920

Are the AG and the government fishing in troubled waters? After many twists and turns, the case pertaining to AMU—which was founded in 1877 and declared a university in 1920—is pending in Supreme Court since 2006. Established in 1920, Jamia was granted minority status by the National Commi-ssion for Minorities Educational Institutions in 2011.

This status was challenged in the Delhi High Court on several grounds—that Jamia was not started with the mandate of being a minority institution and that the new status violates its secular character. Another argument was that it receives heavy funding from the University Grants Commission. How then can it be accorded minority status? But HC dismissed these petitions in September 2011.

Now, the top court’s decision in the AMU case will definitely have a fresh bearing on Jamia’s status once again. It all boils down to which interpretation of history and the Constitution will prevail.

AMU has its origins in the Mohammedan Anglo Oriental (MAO) College set up in 1877 by a group of Muslims led by Islamic scholar, modernist and social activist Sir Syed Ahmad Khan. He and his group felt that easterners, particularly Muslims, had lost out with the coming of the British, as they were not well educated and ill-equipped to take up jobs in British institutions. Sir Syed wanted members of his community to partake of modern education and get the best of jobs. At his behest, wealthy Muslims—as well as Hindus —came forward to contribute to the establishment of educational institutions.

In his book Understanding the Muslim Mind, Rajmohan Gandhi clarifies that the qaum Sir Syed referred to at times meant Muslims, and at times Hindus and Muslims together. According to Rajmohan Gandhi, Sir Syed wanted a Muslim college and insisted that all Muslims pray five times a day and wear the traditional red fez. But he also welcomed Hindus as day scholars, forbade cow slaughter on the campus, and made it clear that Hindus and Muslims were equally entitled to scholarship.

It was after his death in 1920 that MAO was converted to a university—under the Aligarh Muslim University Act, 1920. Two specific changes were effected in the structure of the institution under this Act, which have a bearing on the present debate.

1. The MAO, alongside two other bodies —the Muslim University Association and the Muslim University Foundation—legally came to an end and the three bodies voluntarily surrendered their properties to AMU.

2. While the court of the university was the supreme body of the university and no person other than a Muslim could be part of the board, the Governor General of India was to be the rector of the university, and there was an executive council, comprising not necessarily Muslims, that had the powers over the administration of the university overriding the court of the university.

The same year that AMU was established, buoyed by the momentum of the non-cooperation and Khilafat movements and nudged by Mahatma Gandhi and the Ali Brothers, a breakaway group of students and teachers, among them future President of India Zakir Husain, set up Jamia in tents outside AMU, upset that the institution was taking funds from the oppressive British government. Among those who helped establish the institution were Dr MA Ansari, Ajmal Khan and Jamnalal Bajaj. It shifted to Delhi in 1925. Over the next three decades, Jamia’s ethos and functioning were largely aligned with nationalist movement, even if a majority of students were Muslims.

According to Rajmohan Gandhi, Sir Syed wanted a Muslim college and insisted that all Muslims pray five times a day and wear the traditional red fez. But he welcomed Hindus as day scholars.

Articulating the ethos behind the Jamia Millia schools, its long-serving vice-chancellor the late Zakir Husain had famously said: “These new schools of ours will, without doubt, be Muslim institutions with Islamic ideals. But no narrow or false interpretation of these ideals will be allowed to convert them into breeding grounds of communalism and communal selfishness.”

However, in granting minority status to Jamia in 2011, the chairman of the minorities commission, Justice MSA Siddiqui had said: “We have no hesitation in holding that Jamia was founded by Muslims for the benefit of Muslims and it never lost its identity as a Muslim minority educational institution.”

In 1950, the Constitution of India was promulgated which, as part of fundamental rights, gave minorities the right to “establish and administer” educational institutions of their choice under Article 30. So those supporting minority status for AMU and Jamia say it is in keeping with the fundamental rights spelt out in the Constitution.

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In 1951, an amendment was made to the AMU Act, which made religious instruction in the university optional. Also, instead of rector, the university was to have a visitor, and non-Muslims were now allowed into the court (originally the supreme governing body of the university). But in 1965, in another amendment, the university court was not to be the supreme governing body but advisory to the visitor and executive council.

A group of Muslims challenged this on the grounds that it was violating their right to establish and manage their institution and also their right to hold its property. They also claimed that their right to profess, practice and propagate their religion under Article 25 as also their right to conserve their language, script and culture was being violated.

The court ruling introduced some surprising dimensions to this issue. In S Azeez Basha and Anr vs Union of India in October 1967, the five-judge Supreme Court bench headed by Chief Justice KN Wanchoo held that the word “establish and administer” must be read together. It made the following observations:


In his opinion to the HRD ministry, Attorney General Mukul Rohatgi is understood to have quoted a 1967 Supreme Court judgement which had said that AMU is technically not a minority institution and the same principle applied to Jamia Milia Islamia. He has deposed before the Supreme Court that they can no longer enjoy minority status.

Since Muslims did not establish the university, they didn’t have the right to administer it. The AMU Act might have been passed as a result of efforts by members of the Muslim community, but not by the Muslim community. The university was brought into being by the 1920 Act, and thus by the central legislature.

The statutory bodies of the AMU as per the 1920 Act were not necessarily manned by Muslims, except for the board.
With the 1920 Act, Muslims had voluntarily surrendered to the university their assets, and therefore, they had no claim left to any property.

Only those institutions “established” by minorities can be “administered” by minorities.

Over the years other dimensions were added to this discourse, such as, can minority institutions be centrally funded and can centrally funded institutions have religious ins-tructions?

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Prof Akhtarul Wasey, Commissioner for Linguistic Minorities in India, who is an alumnus of AMU and a former faculty member at Jamia, says he was part of the agitation for minority status, and was arrested seven times during the struggle. He says: “Those questioning the minority character of AMU and Jamia forget they are not denouncing the minority character of these institutions but the very spirit of the Indian constitution.”

Criticizing the argument that a university formed by legislation cannot be a minority institution, he says: “It’s like a pandit saying after solemnizing the marriage pheras that the bride will go with him because he solemnized the marriage. Of course, it’s the central government or state which will grant the status of a university.”

Meeting the demands of the community, Indira Gandhi brought in the 1981 amendment, restoring the minority status of Jamia. In effect, it said that the intention behind the Act of 1920 had to be taken into account; it also gave credence to the fact that AMU was a natural successor of MAO.

With this, the 1967 judgment should have been nullified, but this was not to be. Minority status led to AMU bringing in reservations for Muslim students, as a result of which non-Muslim internal students would lose out. They went to the Allahabad High Court, and in 2005, Justice Arun Tandon again delinked AMU from MAO, ruling that only a legislative act can establish a university, and minorities cannot. The matter went into appeal to the division bench of Allahabad High Court, which again upheld the single-judge ruling, quashing the 1981 amendment act. The matter must be now decided by the SC.

Nevertheless, the government’s stand hasn’t surprised anyone. Kamal Faruqui, ex-chairman of Delhi Minorities Commission and former secretary, Samajwadi Party, opines: “The government’s agenda is to create these problems and serve the agenda of RSS. They don’t like minorities’ existence in the country. They want minorities to live at the mercy of the majority.”

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Both Faruqui and Prof. Wasey cite the case of Jamia Hamdard, a centrally-funded minority institution which is doing pioneering work in pharmacy and Unani medicine. Prof Wasey says: “Atal Bihari Vajpayee ki ek baat chhipa rahe hai (One fact, involving Vajpayee, is being kept under wraps). When he was PM and Murli Manohar Joshi the HRD minister, Jamia Hamdard was given status of a minority institution. Either the present political dispensation should declare they were both wrong, or follow the path of Vajpayee.”

The Muslim community is hoping for a positive judicial outcome. Adds Wasey: “Everybody knows that the Constitution has given safeguards to weaker and long-suppressed sections. That is the duty of the state. The Constitution very clearly says the state shall not discriminate while giving grants. Minorities have the right to establish educational institutions of their choice.”

Citing Section 2 of Article 30, he says that the government can’t discriminate in funding education institutions, irrespective of whe-ther they are based on religion or not. Expre-ssing optimism, he says: “I am a Muslim and I have full faith in the Constitution.” It is a sentiment shared by many Muslims in the country.

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