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Whether a minority institution or not, question remained unanswered.
-By Muhammad Iftekhar Khan, student of LLB (Hons.) at Banaras Hindu University.
Aligarh Muslim University is a public central university in Aligarh, Uttar Pradesh, India, originally established by Sir Syed Ahmad Khan, a scholar and social reformer, as the Mohammedan Anglo-Oriental College in 1875. Mohammedan Anglo-Oriental College turned into Aligarh Muslim University with the Aligarh Muslim University Act 1920.
The university is an institute of national importance as declared under seventh schedule of the Constitution of India at its commencement. It offers numerous courses in traditional and modern branches of education. Several prominent personalities like Freedom fighter Khan Abdul Gaffar Khan, former president Zakir Hussain, former vice President Hamid Ansari, hockey legend Major Dhyan Chand, had taken their education from the institution.
University and the dispute of minority status
The dispute relating to its status of minority institution can be traced back to the amendments made in 1951 and 1965, and thereafter the Supreme Court decision in Azeez Basha v. UOI 1967, where the apex court held that AMU does not holds a position of Minority Institution. In 1981, Union Government made an amendment to the AMU Act and granted it a status of minority institution.
In 1981 itself, a two judge bench of the apex court in case of Anjuman-e-Rahmania vs District Inspector of Schools questioned the validity of Azeez Basha ruling and referred the matter to the seven judges bench. While the case was still pending, AMU in 2005 reserved it 50% Post Graduates seats for Muslim students only. This was challenged in Allahabad High court and the HC declared that AMU was never the minority institution and the reservation made is unconstitutional and impermissible. The judicial chain continues and this decision was again challenged in SC. Eight petitions were filed including one from the Union Government. In 2014 BJP replaces the UPA government and in 2016 Union Government withdraws it petition contending that establishing a minority institution contradicted a secular state’s principles and in 2019, the issue was referred to a seven-judge bench.
Amendment introduced in 1951 and 1965
The central government passed two amendments in 1951 and 1965 to amend the AMU Act of 1920. The amendment changed the structure of the governing body of the university and gave several powers to the president of India.
Key changes included replacing the position of the ‘Lord Rector’ as a ‘Visitor,’ with the President of India. Allowed Non-Muslims to be part of University Court (administrative body). Provisions related to the membership of Muslims only in the University Court were removed, allowing non-Muslims to participate. Furthermore, these reduced the authority of the University Court and enhanced the powers of the Executive Council, essentially making the Court a body appointed by the President.
These amendments were challenged in the Supreme Court in case of Azeez Basha vs UOI 1967.
Case of Azeez Basha vs Union of India 1967
The prime Contention was that Muslims had established AMU and thus had the right to manage it under Article 30(1) of the Indian Constitution, thus contended and advocated for its minority character. Article 30 (1) of the Constitution gives power to all religious and linguistic minorities to establish and administer educational institutions.
A five-judge bench of the SC in the Azeez Basha vs Union of India case 1967 held that AMU is not a minority institution as it was a central university, it could not be considered. The court opined that it might be true that the Act have been a result of the Muslim minority’s endeavours, but it doesn’t means that the university, was established by the Muslim minority.
Amendment of 1981
Now after the judgment of the superior court, a nationwide protest starts from Muslim community. And the Union Government, keeping in view all the political factors, introduced an amendment to the AMU Act in 1981. The amendment explicitly affirmed its minority status by amending Section 2(l) and Subsection 5(2)(c) of the AMU Act, and also declared the institution as “Institution of national importance”.
After amendment Section 2(l) of the AMU Act provides that “University” means the educational institution of their choice established by the Muslims of India, originated as the Mohammedan Anglo-Oriental College, and it was subsequently incorporated as the Aligarh Muslim University.
Section 5(2)(c) says the University shall have the following powers to promote especially the educational and cultural advancement of the Muslims of India.
Allahabad Highcourt’s decision in 2006
Aftermath of 1981 amendment, while SC was considering the question of Azeez Basha ruling in another case of Anjuman-e-Rahmania vs District Inspector of Schools, in 2005, AMU reserved 50% of postgraduate medical course seats for Muslim candidates. This was challenged and the Allahabad High Court overturned this reservation, nullifying the 1981 Act. The court reasoned that as per the SC’s Azeez Basha vs Union of India, case AMU didn’t qualify as a minority institution. The matter went to Supreme Court once again.
Ongoing observations in Supreme Court
In 2016, the Union government withdrew its appeal and in 2019, the Supreme Court held that the correctness of Azeez Basha has remained undetermined, and a three-judge Bench presided by the then CJI Ranjan Gogoi referred the matter to a seven-judge Bench.
Now since the question relating to the minority status had been a roller coaster, there were two prominent question in front the apex court-
- What makes a “minority institution” under Article 30 of the Constitution ?
- Whether Parliament’s 1981 amendments to undo the Basha decision were correct in law ?
It is also important to note that section 2(g) of The National Commission for Minority Educational Institutions Act 2004 states “Minority Educational Institution ” means a college or an educational institution established and administered by a minority or minorities.
Argument from State
•Solicitor General argued that AMU is not and cannot be a University of any particular religion or religious denomination because University has been declared by the Constitution of India to be of national importance.
• By giving status of minority institution to of AMU, the implemention of the reservation policy would be exempted, resulting in separate admission procedures. Solicitor General claimed that this could have drastic consequences, especially for an institution of high scale like AMU.
• It is submitted that a national institute like AMU ought to maintain its secular origins and serve the larger interest of the nation first.
• In relation to the amendment of 1981 respondent argued that the mere omission of the word ‘establish’ from the Preamble and addition of ‘established by the Muslims of India’ in the definition of the University Section 2(l) of the AMU Act cannot change the historical fact that the University was established by efforts of a large number of people, including the State, which had no religion. Also the Act of the Indian Legislative Council, did not provide for a minority character to the University.
• Respondent also referred to a speech of M.C. Chagla, then education minister, eminent jurist, and former chief justice of Bombay High Court, in which he said the institution was “neither established nor administered by minorities”.
•Under the 1920 act, the erstwhile Muhammadan Anglo-Oriental College had “surrendered” its minority status to the British government.
• Solicitor General also raised the point of funding to the institution and told the bench that AMU and BHU (Banaras Hindu University) used to get Rs 1 lakh per year from the British government from 1920 till the Constitution was framed in 1950. Further the grant increased to Rs 2 lakhs per year for some years and today, the AMU gets Rs 1,500 crores per year, plus some fee reduction of Rs 30-40 crores.
• Solicitor General in relation to the administrative wing of the university said – “The visiting board of the AMU as per the 1920 Act had no Muslims. The university was subordinate to a body of non-Muslims and the law director of AMU,also, as per the 1920 Act was the Governor General.”
Argument from the Petitioners
• Senior Advocate Kapil Sibbal, appearing for the AMU, argued that an institution only needs to be “established” as a minority institution. “It is not necessary that the institution be administered by a minority,” he argued. He submitted that that the mere administration by a non-minority group would not mean that minorities have relinquished their control. He further contended that doing so would lead to Article 30 losing its very purpose.
• The secular structure of the country cannot be discarded by challenging the minority status of AMU.
• The founders of AMU and everybody else did not think of it in a statutory sense and they were very clear that government supervision may be there but no government control.
•Petitioner cited the historical facts including transformation of Mohammedan Anglo Oriental College into AMU and the architecture of the building-use of deep green colour, domes Quranic inscriptions. The emblem of Amu contains a Quranic verse which is its motto, having a university mosque, employs muezzins, has separate department of studies for Sunni theology, Shia theology, Islamic studies, Arabic language and literature Persian And Urdu, Islamic philosophy and Quranic studies- are the other characteristics which shows the intention of the founders and supports the idea of its minority status.
• AMU said that the Azeez Basha decision no longer held because it was superseded by cases such as TMA Pai, under which the court held that minority status cannot be taken away by mere legislative intervention.
•All the land, infrastructure, movable or immovable property, asset and teaching staffs that belongs to Mohammedan Anglo-Oriental College were transferred to AMU. Rejecting the minority status would destroy the dreams of many minority childrens to join the workforce of India.
The apex court observed that a minority institution need not exclusively offer religious courses and can have a secular administration, admitting students from diverse communities and the presence of office-bearers from a majority community in some administrative wings of educational institutions does not necessarily dilute their minority character, on the question of whether an institution could be regarded as a minority educational institution for the reason that it was established by the peoples belonging to a religious or linguistic minority. The court also observed that the 1981 amendment to the AMU Act, which effectively accorded it a minority status, only did a “half-hearted job” and not restore to the institution the position it had prior to 1951.
Conclusion
The controversy which arose with the Azeez Basha case ruling, had passed so many stages, even after 57 year remains unresolved. The supreme Court had reserved its judgment in the latest hearing of the case.
