By Aftab Alam, New Age Islam
05 November, 2024
The Aligarh Muslim University (AMU) has been at the epicentre of the legal and political discourse ever since 1968, when the Supreme Court (SC) in Azeez Basha vs Union of India (1968) stripped it of its minority status. This week, a seven-judge constitution bench headed by the Chief Justice of India (CJI) Dr. D.Y. Chandrachud, and comprising justices Sanjiv Khanna, Surya Kant, J.B. Pardiwala, Dipankar Datta, Manoj Misra and Satish Chandra Sharma, is likely to deliver its verdict on AMU’s minority status. This judgment was reserved on Feb 1, 2024, after eight days of intense hearings.
The genesis of the present case lies in a writ petition filed before the Allahabad High Court Dr. Naresh Agarwal v Union of India (2005) challenging the decision of the university to introduce a policy of reserving 50 percent of seats in the postgraduate medical courses for Muslim candidates in the light of the SC’s verdict in St. Stephen's College vs. University of Delhi (1991) case and after receiving approval from the Government of India (GOI). Firstly, on October 4, 2005, a single judge of the HC held that Azeez Basha continues to be good law and that AMU was not a minority institution entitled to protection under Article 30(1) of the constitution. Later, a division bench of the HC dismissed the appeal filed by the university and struck down Sections 2(L) and 5.2.C of the AMU Act which were introduced through the 1981 Amendment Act to reaffirm and restore AMU’s minority status.
This decision of the HC surprised the university, jurists, and the Muslim community alike as they believed that Aziz Basha had become infructuous after the 1981 amendment to the AMU Act. Later, a batch of eight civil appeals, including those by the Union of India (UOI) and the AMU, were filed challenging the judgment of the Allahabad HC. On 24 April 2006, a Division Bench of the SC comprising Justices K.G. Balakrishnan and D.K. Jain put a stay on all other matters regarding appellant institution when AMU declared that it would not implement Muslim reservation in admissions. The bench further said that since the question raised in these appeals is of general importance, it is desirable that the matter be considered by a larger bench.
Subsequently, on February 12, 2019, a 3-judge bench comprising Chief Justice Ranjan Gogoi and Justices L. Nageswara Rao and Sanjiv Khanna referred the AMU matter to a seven-judge bench for its consideration, framing two basic questions in the reference order for an authoritative pronouncement. Firstly, whether the Azeez Basha was correctly decided and whether it suffers from internal contradiction and reasoning on facts and on law, and secondly, what are indicia for determining an educational institution as minority institution to qualify for protection under Article 30(1) – an issue that was framed by the eleven Judge Bench in the TMA Pai Foundation vs State of Karnataka, (2002) but was left to be answered by any subsequent regular bench of the SC. Another issue that needed consideration was whether the 1981 AMU Amendment Act changed the basis of Azeez Basha and rendered it nugatory, an argument which was not entertained by the Allahabad HC. Subsequently, on October 12, 2023, the CJI constituted a seven-judge bench to hear the matter.
It must be noted that the correctness of the SC judgment in the Azeez Basha was already doubted by historians, political commentators, and jurists. H. M. Seervai, an eminent constitutional law expert, declared it “clearly wrong and productive of grave public mischief” and pleaded for its overruling. Professor S.P. Sathe, called for reconsideration of Basha because “if incorporation of a university is the sole test of its establishment, no private university can ever be started in India.” Similarly, Prof. Tara Chand, a noted historian, stated that “It will be a falsification of the history of India if it is asserted from any quarter that the AMU was not established by the Muslims, and primarily for the educational advancement of the Muslims of India.” The SC in Anjuman-e-Rahmaniya vs District Inspector of Schools (1981) also questioned the correctness of Azeez Basha and referred it for reconsideration by a seven Judge Constitution Bench.
It is a matter of fact that the Union of India (UOI), represented through successive governments since 1981, recognized and maintained the minority character of AMU. In its affidavit filed before the HC in 2005 and SC in 2006, the Union of India effectively contended that Azeez Basha was wrongly decided. The UOI also submitted that the 1981 amendment to the AMU Act was brought as a ‘corrective statute’, to reaffirm and restore AMU’s minority status.
However, in 2016, the BJP-led NDA Government sought to withdraw the appeal filed by the UOI against the decision of the Allahabad HC in 2006. The SC, however, never decided during hearings whether the UOI can withdraw the appeal or not due to non-adherence to the procedure laid down by the court for withdrawal of appeals under ORDER XIX, Rule 26 of the SC Rules. In this regard it is also important to recall that the SC in State of Haryana v. State of Punjab (2002) held that “the decisions taken at the governmental level should not be so easily nullified by a change of Government and by some other political party assuming power, particularly when such a decision affects some other state and the interest of the nation as a whole. The SC further held that the succeeding government must be held duty-bound to continue and carry on the unfinished job rather than putting a stop to the same.
Interestingly, the precursor to the BJP, the Jana Sangh, which was part of the merged Janata Party, had advocated for the restoration of AMU's minority character. The Janata Govt in May 1977 even introduced in the Lok Sabha an AMU (Amendment) Bill to restore its minority character, but it could not be enacted due to the early dissolution of the Lok Sabha, owing to internal squabbling. The BJP stalwarts such as LK Advani and Atal Behari Vajpayee were part of the Morarji Desai cabinet that had introduced the bill. Subsequently, after a prolonged struggle by the Muslims of India, the AMU Act 1920 was amended in 1981, restoring AMU’s minority status.
The UOI and others opposing the petition for almost three days mostly argued on how AMU surrendered its minority status after the 1920 legislation and how the British government had the sole authority on its administration. The Solicitor General Tushar Mehta argued that the promoters of AMU were loyal to the British government, and chose to surrender their rights, while many other institutions like Jamia Millia Islamia (JMI) chose not to cooperate with the British Government, and unlike AMU, have a minority status today. The CJI, however, countered that siding with a government or being a “loyalist” does not necessarily mean that AMU denounced its minority status. He pointed out that being against the government is not a prerequisite for being a minority institution.
Tushar Mehta argued that, in contrast to the claim of petitioners that AMU was established with funding, money, and property owned by MAO College, several donors, including Hindu Maharajas, contributed to the funding of MAO College in Aligarh. He further stated that the land on which the college was built was donated by Lieutenant Governor Sir John Strachey. Mehta also argued that AMU is fully funded by the Union government. Earlier, the British government used to allocate 30 lakh rupees every year, and now the Union government allocates rupees 1,500 crores for AMU. Yet another respondent argued that the university has expanded from the previous 74 acres to 1150 acres of land with multi storied buildings, all because of the Union government’s aid. It was further argued that it would be a “public mischief” to overrule Azeez Basha, which would take away the Union’s control over the university.
The respondents also argued that AMU was never administered by the Muslims as, under Section 13 of the AMU Act 1920, the government had complete control over the administration of the university through the Lord Rector who had power to give orders to the authorities of AMU, namely, the Court (supreme governing body), Executive Council, and the Academic Council. Tushar Mehta argued that the administrative team running the day-to-day operations was answerable to Lord Rector. This was countered by Justice Khanna stating that the Lord Rector was only “symbolic in-charge”. When the CJI pointed out those provisions could be tested as permissible regulatory measures under Article 30, Mehta refuted it on the grounds that there was no concept of a minority institution at the time when the AMU Act was legislated. Mehta further stated that there was never a mandate for the university to be run by Muslims and most of the people in the administration just happened to be Muslims as the law never required it to be so.
The argument that the administration of AMU was “not vested in the Muslim minority” under the 1920 Act defies the fact that the Muslim community had de jure and de facto control over the management of AMU as its supreme governing body, the AMU Court comprises only Muslims. The Court had not only power to appoint all important functionaries, i.e. Chancellor, Pro-Chancellor, and Vice-Chancellor but also had powers to frame Statutes and to review the Annual Report of the university. The power vested in the Lord Rector was merely supervisory in nature and never meant to manage the day to day administration of the university.
It must be further underlined that the presence of a few non-minority members in the governing body of a minority educational institution does not take away the controlling power of the said institution with respect its management till minorities have a preponderating voice. If we look at the composition of the AMU Court, the supreme governing body of the university, includes, beside others, representatives of Muslim culture and learning, Muslim Colleges of Oriental learning, Chairmen of Wakf Boards, Muslim Educational and Cultural Societies and All India Muslim Educational Conference etc. even after the 1951 Amendment that dropped the clause providing for exclusive Muslim membership of the Court, indicate preponderance of Muslims in it and therefore hardly undermines its minority character. Justice Krishna Iyer in Gandhi Faiz-e-Am College (1975) rightly held the presence of some non-minority members in the governing body of a minority educational institution is reasonable and promotive of the excellence in the administration and does not undermine the minority character of the institution.
The respondents also failed to appreciate the distinction between regulatory measures and the administration of an educational institution. The SC has already fairly settled in the Kerala Education Bill (1958) that the right to administer does not include the right to mal-administer. In Mother Provincial (1970), the SC stated that minority institutions cannot be allowed to fall below the standards and excellence expected of educational institutions or, under the guise of exclusive right of management, to decline to follow the general pattern. The state may legitimately prescribe reasonable restrictions to ensure the excellence and prevent mismanagement and are intended to make minority educational institutions an “effective vehicle of education for the minority community,” provided they are not “destructive or annihilative of the character of the institution established by the minority” as stated by the SC in Sidhajbhai Sabhai (1963) case.
Sir Syed, while framing the rules of the MAO College himself, emphasised the importance of a general supervision by the government over all the important matters so that no harm is caused to the college due to mismanagement or improper working of the trustees. External supervision by the government over the management of any educational institution cannot be equated with the surrender. Under Rule 38 of the MAO College, the Director of Public Instruction of the North West Province and Oudh was appointed as an ex-officio Visitor of the College, who had power of supervision and of making a report to the Government. Under Rule 144 stipulated that the Government shall have power “at any time and in any way to call for and examine the accounts of the college”. Similarly Rule 145 provided that “the Government shall have power to institute any enquiry with a view to ascertaining whether the provisions of the laws of the College for the time being in force are duly complied with, and if not, to compel the Trustees to comply with them.”
The Azeez Basha wrongly held that AMU was not a minority institution because it came into being by the Central Legislature and not by the Muslim minority. It was neither in 1920 nor even today, can anyone establish a university without a statute. The Division Bench of the Allahabad High Court in Naresh Agarwal (2005) even acknowledged this fact and stated that a university cannot be set up without the intervention of the government. If Azeez Basha is held to be a good law, it would have large implications for the educational rights guaranteed to religious and linguistic minorities under Article 30(1) of the Constitution. The minorities would never be able to establish a university as a university can only be established by an act of the central or state legislature and, effectively, all the existing universities established by them would lose their minority status. The respondents have erroneously argued that the judgment of the bench would not have a “trickledown effect” on any other institution, statute or judgment as the Azeez Basha cannot be claimed to be sui generis, fact-specific judgment pertaining to AMU. The formal incorporation of an institution through a statute or recognition under a regulatory scheme should not be considered indicative of whether an institution qualifies as a minority educational institution.
Another argument of the respondent was that AMU cannot have minority status because Entry 63 of the Union List in the Seventh Schedule of the Constitution declares AMU along with BHU as an institution of national importance, providing a safeguard for its status. If AMU is acknowledged as a minority institution, it would impede the powers vested in Parliament under Entry 63. It was argued that recognising the AMU as a minority institution would not only upset the equitable balance of Parliament’s authority over the two institutions, but also would undermine the authority of the Parliament and “rob” its powers vested under Entry 63. The Bench, however, clarified that the effect of Entry 63 is to place AMU and BHU under the exclusive legislative jurisdiction of the Parliament, designating them as institutions of national importance.
It was further asserted that conferring minority status upon the university could potentially exempt it from the constitutional obligations of the Scheduled Caste (SC), Scheduled Tribes (ST), and Socially and Economically Backward Classes (SEBC) reservations. R. Venkataramani, the Attorney-General of India, contended that the unfettered right under Article 30 does not absolve them from having to abide by other “constitutional demands and requirements” regarding reservations. Mehta argued that a university of national importance such as AMU must have students from a diverse “spectrum” of backgrounds, and granting minority status would only allow higher representation of one community and would make deserving SC/ST/SEBC candidates lose their chance of studying in such a prestigious institute. It was also argued that the bench would have to choose between extending reservations to Muslim minorities or the SC/ST/SEBC community, as recognising the minority status of AMU would be at the expense of reservation rights for these communities.
It must, however, be pointed out that Articles 15(5) and 15(6) of the constitution exempt minority educational institutions from granting reservations to other disadvantaged groups. Furthermore, several parliamentary legislations such as Right of Children to Free and Compulsory Education Act, 2009, Central Educational Institutions (Reservation in Admission) Act, 2006, and Central Educational Institutions (Reservation in Teachers Cadre) Act, 2019, have also excluded minority institutions from the implementation of national reservation policy. Furthermore, besides minority institutions, the Institutions of Excellence such as Homi Bhabha National Institute, Mumbai and its constituent units, Tata Institute of Fundamental Research, Mumbai.North-Eastern Indira Gandhi Regional Institute of Health and Medical Science, Shillong, National Brain Research Centre, Manesar, Gurgaon, Jawaharlal Nehru Centre for Advanced Scientific Research, Bangalore, Physical Research Laboratory, Ahmedabad, Space Physics Laboratory, Thiruvananthapuram, and Indian Institute of Remote Sensing, Dehradun are also exempted from the implementation of reservation in admissions.
During the course of hearing, the CJI asked whether the bench should also consider the validity of the 1981 amendment which changed the definition of “university” under the Act to say, a university established by the “Muslims of India.” However, the petitioners expressed their desire to avoid this line of argument, at least at this stage arguing that if Azeez Basha was struck down then the 1981 amendment would become redundant, and if it is upheld then a smaller bench of this court could consider it. Mehta wanted the 1981 amendment to be considered to avoid duplicity of hearings, which he said the petitioners were trying to do as they would get a “second chance” to argue about the minority status by relying on the 1981 amendment. Justice Khanna wanted to limit the scope of the hearing to the correctness of Azeez Basha as it would get the job done.
Representing one of the respondents, advocate Rakesh Dwivedi raised the question of defining the term minority as, in his opinion, it has remained undecided in 75 years of the Constitution. He asserted that the community claiming minority status must numerically be fewer than the majority and still, if the said community belongs to the ruling group, then it would not qualify as a minority. He went on to even argue that during British rule, though Christians were numerically a minority, they still would not meet the criteria for a minority as they belonged to the ruling religious community, and hence the Christian educational institutions today should not enjoy minority status. In his opinion, Muslims were not a minority because under British rule both Hindus and Muslims were considered equals. Citing Sir Syed Ahmad Khan, the founder of the MAO College, Dwivedi claimed that the Muslim community never considered itself as a minority and instead as rulers prior to the British government.
Respondents also argued through Neeraj Kishan Kaul that the 1981 amendment to the AMU Act, 1920 attempted to rewrite history by disregarding historical facts acknowledged in Azeez Basha. He stated that the parliament cannot “deny a fact by subsequent legislation” by creating “legal fiction.” He asserted that the 1981 amendment only attempted to change who “established” the university but made no change in the provision related to the administration of the university. Another counsel, Guru Krishnakumar, relying on Indra Sawhney (II) v Union of India (1999), stated that a fact established by a legislation cannot override facts recognised by the Court. He underscored that the moment there is a factual finding in a judgment, the legislature cannot overcome that fact using subsequent legislation. It was argued by advocate Kaul that any alteration to the status of AMU would only be through a constitutional amendment—unlike the procedure adopted by the Parliament in 1981. However, Justice Sanjiv Khanna added that the legislature is allowed to make laws with a retrospective effect if they feel a mistake has to be corrected. He also pointed out that amendments were made to the AMU Act in 1951 and 1965 as well. The CJI justice D.Y. Chandrachud cautioned that Kaul’s interpretation would have the effect of diluting the power of the Parliament.
The petitioners argued that AMU was merely an extension of the MAO College which, according to Azeez Basha, was established by the Muslim community to impart liberal education for Muslims and therefore recognised it as a minority institution. The effect of the transformation of the ‘MAO College’ into ‘Aligarh Muslim University’ was merely a change in status of the educational institution – and not a birth of an altogether new or distinct educational institution. The court in Aziz Basha erroneously drew an inference that AMU was established by the Government of India and not the Muslim community, because the Muslim community could have established a university without the need for legislation or statute. It must be noted that all the assets of the MAO College were used to develop AMU. This includes the teaching staff, the property, the funds, and its administrative staff and a corpus of rupees thirty lakhs, as the then government insisted that it would only establish a university if this condition is met.
The Azeez Basha judgment came as a huge shock to the minorities in general and Muslims in particular. Most of them considered that in independent India their educational institutions were well protected by article 30 of the Constitution, but the decision belied the assurances given to them a few years ago by no other than the SC itself in the Kerala Education Bill(1958) case: “So long as the Constitution stands as it is and is not altered, it is, we conceive, the duty of this court to uphold the fundamental rights and thereby honour our sacred obligation to the minority communities who are of our own”. In the opinion of eminent jurist H.M. Seervai, the Azeez Basha was the first case in which the SC had departed from the broad spirit in which it had decided cases on cultural and educational rights of minorities. The Azeez Basha, therefore, must be struck down for being wrong and contradictory.
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* The author is professor at AMU and heads strategic and security studies programme of the university. His research interests include human rights, constitutional law and public international law.
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8:07 AM
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