:: Related Stories  ::

 

 
Faizan Mustafa

AMU : reopening a settled matter

By Faizan Mustafa

Aligarh Muslim University’s (AMU’s) minority character is in the news again. Smriti Irani, just four days before the cabinet reshuffle, had approved the Central government’s affidavit opposing AMU’s minority character. The case will come up for hearing in the Supreme Court on July 11. Most people including some top TV anchors are not aware that this historic case is not about the rights of minorities. The case is fundamentally about the powers of Parliament: Can Parliament, to promote fundamental rights, enact a law ‘incorporating’ a minority university? Does Parliament have the powers to overturn judicial decisions? Can a government in a parliamentary democracy refuse to defend Parliament in the court of law?

As many as five fatwas were issued against AMU’s founder Sir Syed Ahmed Khan, including one from Mecca, which declared: “This man (Sir Syed) is erring and causes people to err. He is rather an agent of the devil and wants to mislead Muslims. It is a sin to support the college. May God damn the founder! And if this college has been founded, it must be demolished and its founder and his supporters thrown out of the fold of Islam.” At a time when religious fundamentalism is on the rise and the country is debating whether to ban a fanatical Muslim preacher, the human resource development ministry’s affidavit is not only strange but hugely disappointing. This will close the doors of modern liberal education for thousands of poor Muslims.

What to say of AMU, even Banaras Hindu University was originally a minority university because the Hindus too, in spite of their numerical superiority, were a minority in terms of powerlessness during the British regime. Article 30(1) of the Indian Constitution gives the minorities, whether based on religion or language, the fundamental right to ‘establish and administer educational institutions of their choice’. Thus, this right is available not only to the religious minorities like the Christians and Muslims but also to the Hindus wherever they are a minority. In fact, in some states like Jammu and Kashmir, Punjab and several north-eastern states, they too are a religious minority.

No one has ever doubted the minority character of Mohammadan Anglo-Oriental College (MAO College). The Supreme Court in 1967 and Allahabad High Court in 2005 admitted the so-called ‘deep green’ character of the college. The moot question is: Has the college on its conversion in 1920 into Aligarh Muslim University through an Act of Governor-General-in-Council lost its minority tag? Section 5 of the AMU Act says AMU shall inherit not only all debts, liabilities, etc. of the MAO College but also all its rights. Thus, common sense tells us that AMU has inherited the minority tag of MAO College.

Departing from its otherwise liberal approach of expanding the ambit of fundamental rights in general and minority rights in particular, the Supreme Court in 1967 opined that since the preamble of the 1920 AMU Act had stated that ‘whereas it is expedient to establish a Moslem University at Aligarh’, it is clear that the university was established by the government and thus it cannot be given minority status. Justice K N Wanchoo’s judgment has been criticised by all the leading jurists. In fact, HM Seervai, India’s greatest constitutional law writer, went to the extent of terming this regressive decision as ‘productive of great public mischief’. The Supreme Court itself in 1981 noted these criticisms and decided to have a fresh look at the decision by a larger bench.

In the meanwhile, Parliament took the initiative through an amendment in 1981 itself to clarify its intention and not only deleted the crucial word ‘establish’ from the preamble and the long title of the Act but also explicitly stated that AMU was an institution of their choice established by Muslims of India and it in fact originated as MAO College and was merely ‘incorporated’ and not really ‘established’. In 2005, the Allahabad High Court struck down this amendment and termed it as the ‘brazen overruling of judicial verdict’. Thus Parliament lost the case in Allahabad and the government of India, which is subordinate to Parliament, appealed to the Supreme Court on behalf of Parliament. In a parliamentary form of government, the government takes directions from Parliament because it is responsible to Parliament. The Central government’s affidavit has now abandoned Parliament’s cause and AMU has the onerous task to speak for Parliament. The government’s decision is legally untenable as Parliament’s power to amend the AMU Act, 1920, was upheld even by the Supreme Court in 1967.

How to decide the question of Parliament’s competence to legislate? The thumb rule is to see whether the subject concerned is within the competence of the assemblies. If the answer is ‘no’, Parliament’s jurisdiction cannot be challenged. Since AMU is mentioned in the Union List, the legislative competence of Parliament cannot be questioned. Now the next issue is: Does the 1981 amendment violate any fundamental right? The answer is a big ‘no’. It in fact promotes fundamental rights under Article 30. What the constitution prohibits is the violation of the fundamental rights by Parliament, not their promotion and realisation.

Finally, can Parliament overturn a judicial verdict by amending a law? The answer is ‘yes’. It routinely does so by removing the basis on which the judgment was rendered. This year itself the Central government overturned a Supreme Court decision on enemy property through an Ordinance and recently on UGC NET by mere UGC Regulations. The Vodafone judgment was similarly overturned during UPA rule by a retrospective parliamentary amendment. Whether the court rises to the occasion again and protects minority rights as it has been doing all these years remains to be seen. (Courtesy : The Hindustan Times)

Faizan Mustafa is Vice-Chancellor, NALSAR University of Law.
The views expressed here are personal.

Why AMU should be an exception ?
By N. R Madhava Menon

Every institution of higher learning develops its own character and identity based on its history, leadership, scholarship and student body. Aligarh Muslim University (AMU), which occupies a unique place among pre-Independence universities in India, carries an identity which depicts the idea of India in its character of pluralism, inclusiveness and unity in diversity. It may or may not be a minority institution in the strict legal sense, but it is an institution forN R Madhava Menon minorities fully financed by the Indian state which showcases how minorities are treated in the Republic even after the forced Partition of the country based on religion.

A vehicle for community uplift

Like the author of this essay, thousands of non-Muslims who could not have access to higher education in the so-called leading universities in the country were attracted to Aligarh because of its low cost, excellent academic ambience and equal opportunities provided for learning and research. For several decades, AMU continued to be the destination for Muslims from all over India seeking higher education, with the result one finds many of them in leadership positions in nation-building activities across the country and beyond. In Kerala, Jammu and Kashmir, Tamil Nadu, Bihar and a few other States, every educated Muslim has some link or the other with AMU which, in turn, helped to fulfil the mission of Sir Syed Ahmad Khan, the founder of AMU, to uplift the community from backwardness and isolation. I would argue that if a large section of Muslims refused to migrate to the Islamic Republic of Pakistan and preferred to stay back in secular India, it is partly because of the influence of AMU education on them and their families. Thus perceived, AMU requires special treatment in the Indian scheme of things.

The liberal democratic polity India adopted provided abundant space to test its strengths and weaknesses. Despite having paid a heavy price, India stood by its ideals and endeavoured to cultivate an inclusive society based on democratic values, showing to the world that diversity can be a virtue in peaceful development and coexistence. If this analysis still holds good, one need not get upset by occasional manifestations of extremism and distrust raising its ugly head in campuses, including Aligarh. To be fair, AMU has been relatively peaceful and free from extremist activities for several years now though it also had its share of violence in the past.

One may recall an ugly incident from the 1960s to illustrate the point. A distinguished diplomat from an aristocratic family and a personal friend of the then Prime Minister was the Vice Chancellor. The faculty and the students broadly belonged to three segments, one group communally inclined and active, another group Left-oriented and ideologically motivated, and a third neutral group devoted mainly to academic pursuits. A rumour floated that the new Vice Chancellor was handpicked by the Central government to compromise the perceived minority character of the institution. Aligarh being a small town and the university the only dominant public institution in the city, rumours emerging from the university got quick currency in every home. One day when the Executive Council was in session, a section of students led by the union president barged into the hall, disrupted the meeting, assaulted the Vice Chancellor and physically dragged him out, hitting him mercilessly. All this happened near one of the hostels of which I was the warden. Subsequent events proved that there was no substance to the rumour and that it had been orchestrated by a few extremist elements to advance their own agenda of having monopoly control over the institution.

A university that doesn’t discriminate

Such instances happen on other campuses as well and things return to normal when facts are brought to light. In my seven years at Aligarh, initially as a postgraduate scholar and later as a member of the faculty, I never experienced any discrimination whatsoever and received friendship and respect from all sections of the AMU family. Everyone eats the same food supplied at heavily subsidised prices by the university and gets equal access to all facilities on campus. The teacher-student relationship is exemplary. Of course, the student body is predominantly Muslim and that is what it was meant to be; but no meritorious student is excluded on the ground that she is not a Muslim. Given the fact that there is inadequate representation of Muslims in many universities outside, it is not surprising why AMU’s staff and students are predominantly Muslims and that too from the lower income groups. The university is a source of livelihood to thousands of poor Muslim groups in the neighbourhood.

It is clear that AMU is an institution of national importance and should be treated as such by the Central and State governments. Of course, there is scope for negotiated settlement of friction points which arise from time to time. The university stands to gain monetarily and otherwise if it has minority status. Even without that, the government can treat it differently from others acknowledging its unique character in the government’s policy of inclusion which is manifest in the slogan “sabka saath, sabka vikas”. The university on its part should recognise its social responsibility under the Constitution by giving preference in admission to Scheduled Caste/Scheduled Tribe groups and backward sections across communities. A memorandum of understanding between the university and the government with an oversight body representing the two sides should be able to get the objectives of the two sides accomplished to each others’ satisfaction.

Like every other Aligarian, I was happy when the President, as the Visitor of the university, allowed AMU to set up campuses in West Bengal, Bihar and Kerala where the respective State governments — realising the potential it holds for minorities’ education in their States — liberally made land grants. The brand name has its own value; but the quality of education and character of the institution depend on the local leadership and the relationship it builds with the parent university. The beginning in Malappuram in Kerala, where it got over 300 acres of prime land, was impressive and promising. Students across all communities applied in large numbers for its programmes despite the fact that classes were to be held in rented buildings. Contract teachers assembled hurriedly worked under a curriculum set by the Aligarh faculty that wasn’t customised to local requirements. Yet learning went on, examinations were held and programmes completed on schedule, giving the message that AMU is capable of imparting quality higher education anywhere in the country.

There is no reason why the initiative should be thwarted because of some legal or technical hurdles. It is now a question of the future of thousands of students and the prestige of a great university which has established its credentials in higher education for almost a century. After all, State governments have invested in the venture and people everywhere have supported it. Given the fact that the representation of the largest minority group in higher education is still very low, there is no reason why the Central government should not be equally enthusiastic and encourage it as it has done before. Of course, the present role of AMU in these campuses is that of an incubator and eventually they must become independent universities possibly competing with AMU for quality and excellence in scholarship. It is also not necessary that all campuses outside Aligarh should be alike in structure, programmes and management. They can develop through public-private partnerships as institutions of excellence primarily catering to higher education needs of minorities and backward classes, paving the way for inclusive development of all sections.

(N.R. Madhava Menon is a Law educator, Chancellor of two Central universities, and an alumnus of AMU.)

 

 Best viewed in 1024*768 pixel resolution  |   Disclaimer   |   © Academics-India.com